(9) When there has been no refusal, applicant may revive his application for leave to sue as a pauper. Raja Bhoj Sing v. R. M. K., Agra Rep., VI. 1. CHAPTER XXVII. Factum a judice, quod ad officium ejus non pertinet ratum non est By or against the Secretary of State for India in Council, shall be instituted suits by or against Government. For Government all persons ex officio or otherwise authorised to act for it in any judicial proceeding shall be deemed recognized agents. In plaints, in lieu of the usual designation, &c., of plaintiff, it will be sufficient to insert "the Secretary of State for India in Council." The Government pleader in any Court is the agent for receiving processes against Government issuing therefrom. For the appearance and answer by Secretary of State reasonable time must be allowed, and may be extended at discretion for necessary communication with Government, through the proper channels, and issue of instructions to Government pleader. Where Government pleader is not accompanied by person able to answer material questions relating to suit against Government, Court may direct his attendance. If defendant is public officer, Court may send copy of summons to head of the office in which he is employed, if it appear so to be most conveniently served. If public officer considers it proper to refer to Government before answering the plaint, he may apply, and Court may grant extension of time necessary for making such reference, and receiving orders through the proper channel. Previous to suing Secretary of State or public officer, written notice must be, two months beforehand, delivered to, or left at office of, a Secretary to the local Government, or Collector of district (if it be case of Secretary of State), or at office if (it be public officer, stating cause of action, and name and abode of intending plaintiff. The plaint must show that such notice has been so delivered. No arrest can be issued in such suits without the consent in writing of the District Judge. Where Government undertakes defence of suit against public officer, Government pleader, on being furnished with authority to appear, shall apply to Court, and thereon Court shall cause note of his authority to be entered in the register. But where no such application is made on or before day fixed for answer, case shall proceed as suit between private parties, save that defendant shall not be liable for arrest, nor his property to attachment, save in execution of a decree. Public officer shall be exempted from personal appearance if he satisfy the Court that he cannot absent himself from duty without detriment to public service. Where decree is given against Government or public officer, a time shall be specified within which it is to be satisfied, and if not so satisfied, Court shall report case for orders of local Government, and no execution shall issue unless it remain unsatisfied for three months from the date of such report. (4) The Calcutta High Court (U. C. O. C. The power to cede territory was not one of the for its object the dismemberment of the State in times of peace, as such a law must of necessity affect the authority of Parliament, and those unwritten laws and constitutions of the United Kingdom of Great Britain and Ireland whereon depends the allegiance of persons to the Crown of the United Kingdom. Where an estate is seized by the Crown by its right of conquest, and not by virtue of any legal title, such seizure must be regarded as an act of the State, and is not liable to be questioned in a municipal Court. Secretary of State for India in Council v. Kamachee Boye Sahaba followed; Sirdar Bhagwan Singh v. the Secretary of State for India in Council, L. R. 1. A., 38; see also Mirzulf Ali v. Yeshoada Bai Sahib, Bom. H. C., IX. 314. Judicial officers who also exercise executive functions are reminded that, under 18 of this Act, and sec. 15 of the Panjab Chief M. 420. (67) The Court, in fixing the day for the said Appearance and answer Secretary of State in Council to by Secretary of State in answer to the plaint, shall allow a Council, reasonable time for the necessary communication with the Government through the proper channels, and for the issue of instructions to the Government pleader to appear and answer on behalf of the said Secretary of State in Council or the Government, and may extend the time at its discretion. (í) M, 421. (67) The Court may also in any case in which Attendance of personable the Government pleader is not acto answer questions relating companied by any person on the to suit against Government. part of the said Secretary of State in Council, who may be able to answer any material questions relating to the suit, direct the attendance of such a person. Service on public offi cers. M. 422. (62, 68) Where the defendant is a public officer, (j)the Court may send a copy of the summons to the head of the office in which the defendant is employed, for the purpose of being served on him, if it appear to the Court that the summons may be most conveniently so served. Extension of time to enable officer to make reference to Government. M. 423. (69.) If the public officer on receiving the summons considers it proper to make a reference to the Government before answering to the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel; and the Court upon such application may extend the time for so long as appears to be requisite. M. 424. No suit Notice previous to suing Secretary of State in Council or public officer. shall be instituted against the said Secretary of State in Council or against a public officer until expiration of two months next after notice in writing has been in the case of the Secretary of State in Council delivered to, or left at the office of, a Secretary to the Local Government or the Collector of the District, and, in the case of a public officer, delivered to him or left at his office, stating the cause of action and the name and place of abode of the intending plaintiff; and the plaint must contain a statement that such notice has been so delivered or left. M. 425. No warrant of arrest shall be issued in such suit without the consent in writing of the District Judge. Aarest in such suits. Court Act, suits or appeals instituted in any Court subordinate to the Chief Court may be transferred to any other Court subordinate thereto, and competent in respect of the value of the suit or appeal to try the same; and also that original suits may, under sec. 14 of the last mentioned Act, be removed for trial into the Chief Court. This may be done as well upon the application of a judicial officer in whose Court a suit subject to such transfer or removal is instituted, as upon the application of either of the parties, if the circumstances are such as to render the transfer or removal expedient for purposes of justice. Officers exercising executive functions are not seldom engaged in matters which subsequently give rise to suits against Government, instituted in the district where the cause of action has arisen, and before such officers in their judicial capacities, and the Chief Court deem it advisable to call attention to the above, as indicating the right course for judicial officers, under such circumstances, to adopt. Commissioners and Deputy Commissioners will, when submitting applications to superior authority for the transfer or withdrawal of civil cases, always record a short statement of the case, with their reasons for making the application. At present this is not always done, and the omission causes great inconvenience and delay. Panj. C. O., I. 14, 15. The Calcutta High Court (U. C. O. C. H. C. 117) direct the Government pleader shall, in lieu of a vakalatnama, file a memorandum on stamped paper whenever he appears for Government on its own account, or for a public officer under sec. 426. Such memo. shall be in the form prescribed and state on whose behalf he appears. If he appear for a public officer otherwise than under sec. 426, he shall file a vakalatnama in the same way as if he were not a Government pleader. (i) The period required will depend upon circumstances, and no invariable rule can be laid down on the points but in most case a period of two months will probably be suitable. In fixing the period required in any case, the representations of the officer who receives the summons, or who is conducting the case on behalf of Government, should meet with due consideration, as the Code clearly contemplates that reference to Government, through the proper departmental channels, involving a certain delay, shall be allowed for, and an extension of time should be given on reasonable cause being shown; but, on the other hand, the Civil Courts should be cautious to prevent undue delays in these as in all other classes of suits. Panj. C. O. I. 23, 24. Although the entry by a Collector of a particular person's name as "occupant" affords, however mistaken no ground for an action against the Collector, yet where there is an apparent and reasonable ground for apprehending legal injury from the Collector's proceedings, as when the Collector affirms one person's title to the ex clusion of another, by entering his name in the register of "watans" (compiled under Reg. XVI. of 1827, sec. 19.) or where damage to a person's right is likely to arise from the Collector's act, it is not improper to join the Collecter as a party to a suit. Where a suit is instituted against a Collector and another person, and the Collector does not appeal: Held that the question of the District Court's jurisdiction to entertain the suit being a ground common to all the parties affected by the judgment, it is open to the other person to object that the plaint did not disclose a cause of action against the Collector, and that the District Court consequently had not jurisdiction. Sangapa Malapa v. Bhimangowda Mariapa, Bom. H. C. Rep., X. 194. The mere entry of the name of one parcener in immoveable property in the Collector's books, as the occupant or owner, is not sufficient ground for an action by a coparcener against the Collector, inasmuch as the Collector's books are kept for purposes of revenue, and not for purposes of title. But if the Collector improperly enjoin the plaintiff from taking, or other parties from paying to the plaintiff his share of the rents or profits, an action may be maintained against the Collector. The Collector of Poona v. Bhavanra V. Balkrishna, Bom. H. C. Rep., X. 192. (j) The Chief Court is of opinion that this rule may conveniently be extended to all cases in which it may be necessary to serve a summons on a defendant or witness in the service of Government, or of a public department. In all such cases, therefore, unless in very special circumstances, which should be recorded, the process should be forwarded to the head officer of the office in which the defendant or witness is employed, and such officer, after causing the summons to be served on the person to whom it is addressed, if practicable, will return it to the Court issuing the summons, with the written acknowledgment of such person endorsed thereon. With the view of ensuring prompt obedi ence to the requisition of such processes a reasonable time should be fixed for M. 426. (70) If the Application where Gov ernment undertakes defence. Government undertake the defence of a suit against a public officer, the Government pleader, upon being furnished with authority to appear and answer to the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register. M. 427. (71.) If such application is not made by the Government pleader on or before the day fixed in the notice for the defendant to appear and answer to Procedure where no such application made. the plaint the case shall proceed as in a suit between private parties, except that the defenDefendant not liable to dant shall not be liable to arrest, assert before judgment. nor his property to attachment, otherwise than in execution of a decree. M, 428. (72) In a Exemption of public offlcers from personal appcar ance. Procedure where decree is against Government or a public officer. suit against a public officer the Court shall exempt the defendant from appearing in person when he satisfies the Court that he cannot absent himself from his duty without detri ment to the public service. M. 429. (201) When the decree is against the said Secretary of State in Council or against a public officer, a time shall be specified in the decree within which it shall be satisfied; and if the decree is not satisfied within the time so specified, the Court shall report the case for the orders of the Local Government. Execution shall not issue on any such decree unless it remains unsatisfied for the period of three months computed from the date of the report. CHAPTER XXVIII. SUITS BY ALIENS AND BY OR AGAINST FOREIGN AND NATIVE RULERS. enemies residing in British India_with the permission of the Governor-General in Council and alien friends may British India as if they were subjects M. 430. Alien When aliens may sue. sue in the Courts of of Her Majesty. No alien enemy residing in British India without such permission, or residing in a foreign country shall sue in any of such Courts. Explanation.-Every person residing in a foreign country, the Government of which is at war with the United Kingdom of Great Britain and Ireland and carrying on business in that country without a license in that behalf the attendance of the person summoned, in order that his official superior may make suitable arrangements for the conduct of duties during his subordinate's absence. Simultaneously with the issue of the summons, the Courts should make a communication of their having done so, by usual proceeding (a letter), to the head of the office or department of the person summoned. Thus, if a native Judge has occasion to summon a patwari or kanungo to give evidence, he should send an official proceeding, intimating that fact to the Collector to whom such officer is subordinate. Panj. C. O. I, 20, 21. CHAPTER XXVIII. Protectio trahit subjectionem. ALIEN friends may sue in the Courts of British India as if they were subjects of Her Majesty, but alien enemies residing in a foreign country cannot; if they are residents with the permission of the G. G. in C. in British India, then they are no more subject to disqualification in suing than are alien friends. Alien enemies are persons residing in a foreign country, the Government of which is at war with the United Kingdom, and earrying on business in that country without licence in that behalf from one of H. M.'s Secretaries of State or Secretary of State for Government of India. A foreign State may sue, subject to two provisoes, (i) that it has been recognized by Her Majesty or the G. G. in C. (ii) that the object of the suit is to enforce private right of head or subjects of such foreign State. The Court is to take judicial notice of the fact that it has not been recognized as above. Persons specially appointed at their request by Government, to prosecute or defend for Sovereign Princes or ruling Chiefs, whether in subordinate alliance to British Government or not, and residing within or without British India, are to be deemed their recognized agents. Any such Princes, chief, Ambassadors or Envoys of foreign States may only with Government consent, certified by signature of one of its Secretaries, be sued in any competent Court not subordinate to a District Court. The consent shall not be given unless. (1) Prince, &c., have institued a suit against the person so suing. (2) The Prince &c. by himself or another, trades within local limits of such jurisdiction. (3) Subject-matter of suit is immoveable property situate within the said local limits, and in possession of such Prince &c. Sovereign Princes, &c. are exempt from arrest, and no decree can be executed against their property save with Government consent, certified as aforesaid. Decrees of those Courts in native States can be executed in British India who, by a notification in the Gazette are granted this privilege, as long as the notification remains in force. It is a principle recognized by the Courts of all civilized States that a foreign Sovereign is by comity exempt from process against his person, and His Excellency the Viceroy and Governor General in Council is clearly of opinion that the Feudatory Chiefs of the Central Provinces, though not independent, are, under the sanads and engagements executed in 1865, endowed with such a measure of sovereignty as would entitle them to the benefit of this exemption. I am to add that if persons effecting the arrest of a Feudatory Chief, contrary to the view taken by Government of the law applicable to the case, subject themselves to legal liabilities, the Government of India would not feel themselves called upon to indemnify them, Government of India F. D. 671 d. 16th March, 1874. |