Procedure-Improper Joinder of Government officer as defendant—Rejection of plaint-Return of plaint for presentation to proper Court. Where a plaint is presented to the Judge of a district, in which plaint an officer of Government is added as a nominal defendant, no cause of action being alleged against him, the proper course for the District Court to adopt, is either to reject the plaint, or to call upon the plaintiff to amend it by striking out the name of the officer improperly added as a defendant, and, upon the plaintiff consenting to do so, to return the plaint to the plaintiff for presentation to the court of the lowest grade competent to try it. Where the District Judge did not adopt this course, but proceeded to try the cause, the High Court annulled his decree, and (the plaintiff consenting to amend his plaint) returned it to him for amendment and presentation to the proper court. THIS HIS was an appeal from the decision of A. Bosanquet, Judge of the District of Ahmadnagar, rejecting the plaintiff's claim. The plaintiff in his plaint alleged that the proprietor of certain lands, situated in Taluka Parner, redeemed them from his mortgagees, of whom the defendant No. 1, Chimá valad Ládu, was one, and mortgaged them to the plaintiff, placing him in possession on the 23rd of June 1860; that in a summary suit brought by the defendant, Chimá, in the court of the Mámlatdár, the second defendant, the latter, by an order dated the 9th of July 1868, deprived him of his possession, The plaintiff prayed that a decree should be passed against both the defendants, and that his possession should be restored to him. 1873. January 28. 1873. HARI v. CHIMA'. The defendant, Chimá, stated that he had the right of SHRIDHAR possession in consequence of his mortgage from the proprietor, which was, as he alleged, still unredeemed. The Mámlatdár pleaded that he had full authority to dispose of the complaint of the first defendant under Bombay Act V. of 1864, and that as he had acted bond fide, he was protected by Act XVIII. of 1850. The District Judge, holding the decree of the Mámlatdar's court conclusive on the question of possession, and being of opinion on the evidence that the plaintiff had not proved his claim, gave a decree in favor of the defendants. The appeal was heard by SARGENT, Acting C.J., and MEL VILL, J. Bahiravnath Mangesh for the appellant. Chunilál Mániklál for the respondents. PER CURIAM:-The plaint does not allege a cause of action against the Mámlatdár, nor seek any relief against him The plaint should, therefore,have been rejected by the Judge unless the plaintiff consented to amend it by striking out the name of the Mámlatdár; in which case he would have had no jurisdiction to try the suit. This Court annuls the decree, and the plaintiff, by his Vakil,consenting to amend the plaint by striking out the name of the Mámlatdár, returns it to him. to be presented in the proper court. It is clear that the Mámlatdár is only a nominal defendant, and that his being made so was solely for the purpose of evading the law. Decree annulled. [APPELLATE CIVIL JURISDICTION.] Special Appeal No. 374 of 1872. BA'PU bin IshvAR .... LAKSHUMAN BA'JI...... .Appellant. Limitation Suit to set aside order-Date of order-Signing of order -Civ. Proc. Code, Secs. 185 and 246-Act XXIII, of 1861, Section 33 In computing the time for bringing a suit to set aside an order made under Section 246 of the Code of Civil Procedure, the date upon which the order is signed, and not the date upon which it is verbally made, should be considered. THIS THIS was a special appeal from the decision of R. F. Mactier, District Judge of Satara, in a regular appeal, affirming the decree of the Subordinate Judge of Vittey. The suit was brought to recover possession of a house. The defendant, Lakshuman, under a decree in his favour against Bandu, attached the house in execution. Bápu then applied, under Section 246 of the Civil Procedure Code, to raise the attachment on the ground that the house belonged to him, as he had purchased it from Bandu before the attachment. That application was rejected, and Bápu was referred to a regular suit. The order of rejection was orally given on the 1st August 1864, but was not signed by the Subordinate Judge till the 30th of that month. The plaint in the present suit was filed on the 28th August 1865. The defendant, Lakshuman, inter alia pleaded that the claim was barred under Section 247 of the Code of Civil Procedure. Both of the Lower Courts decreed in favour of the plaintiff. The District Judge said— "Issue (1) Is this claim barred ? 1873. March 3. 1873 BA'PU bin ISHVAR v. BA'JI. "This claim was filed 28th August 1865, and under Section 246 of the Civil Procedure Code, any claim by a party against whom an order refusing to give up the property to LAKSHUMAN him has been passed, must be made within a year from the date of the order; the 'order' here is dated 1st August 1864, but the date of its being signed is 30th August. Now, it seems to be plain that the order was not an 'order' till it was signed as such, and that if, from any cause, there was a difference of time between the actual drafting of the order and the signing of it, the latter date is to be held as the date of the order." The Court's Sheristedár has given a deposition about this, and has stated that the Subordinate Judge gave the order verbally on the date when it was written out; but from an oversight the signature was not made on the order till 30th August. It is said that the order was pronounced on the 1st August, though the delay insigning took place as above. But by the words of Section 247 'the date of the order,' I can only consider the 'order' to be an 'order' when it is signed and not before; and I do not think that the verbal explanation given will set aside the written date of the signature, and must hold that an order signed 30th August must be considered to be one of this date, and that as this claim was made within one year after this date, i.e., 28th August 1865, it is not barred, and on this ground I must on the first issue hold this claim to be within limit." The special appeal was argued befored WESTROPP, C.J., and MELVILL, J. Mániksha Jahangirshá for the appellant. Ghanashám Nilkant for the respondent. PER CURIAM: Having regard to Section 185 of the Civil Procedure Code and Section 38 of Act XXIII. of 1861, this Court is of opinion that the order made under Section 246 of the Civil Procedure Code was not complete until it was signed upon the 30th August 1864, and therefore this Court affirms the decree of the District Judge with costs. Decree affirmed with costs. Small Cause Court-Jurisdiction-Implied contract-VarshásanClaim to recover share in Varshásan received by Defendant-Act XI. of 1865, Sec. 6. Suit to recover a share in a varshàsan payable by the Gaekwad's Sunkur Lall Pattuck Gyawal v. Mussamut Rám Kalee (18 Calc. Keshav Bhat v. Bhágirthi Bái (3 Bom. H. C. Rep. A. C. J. 75 ) over- THIS HIS case was referred to the High Court by Syud Hussein El Medini, Judge of the Small Cause Court at Surat, with the following observations : "The plaintiff brings this action to recover the above sum to which, he alleges, he is entitled as a sixth sharer in a varshásan originally granted by the Gaekwad to their ancestor, which the defendant, being now the eldest member of the family, draws from the Nowsaree Treasury and distributes among the several sharers. "The plaintiff had before filed a suit in the Munsif's Court at Surat to recover the money which then had accrued due. The Munsif gave a decree in his favour, but the then Judge of Surat reversed the decree on the ground' that the action was virtually to try the right to the hak in question, a right which a foreign court is not competent to adjudicate on.' The High Court, however, in Special Appeal No. 539 of 1867, set aside this ruling and remanded the case to the Judge who then confirmed the decree of the Munsif. 1873. March 4. |