2. That the said CD is still living (or, that the said C D died on or PART II about the day of 18 and E F is his legal representative). Defences. Non-joinder of Joint-promisee-One joint-promisee cannot sue by himself either for the whole of the debt or for his share. When one joint-promisee is dead, his representative should be joined as a plaintiff,† or, if he refuses, as a defendant. Non-joinder of Joint-debtor.-It is no defence that one of several jointdebtors has not been made a party, as under section 43 of the Contract Act, 1872, the promisee may compel any one of the joint-promisors to perform the whole of the promise; but the defendant may apply under section 32 of the Code of Civil Procedure to have his co-promisor added as a defendant, and if it appears that his appearance before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, it will order such co-promisor to be added. Objection when to be Taken.—All objections for want of parties must be taken before the first hearing.‡ Form No. 369. PLAINT DOES NOT STATE FACTS SUFFICIENT TO CONSTITUTE That the plaint does not state facts sufficient to constitute a cause of action. Practice. When the plaint does not disclose a cause of action, the Court may either reject it, or order it to be amended ;§ but the Court is justified in examining the pleaders on both sides, and from their examination eliciting and fixing the real issues, and determining the case on the trial of such issues.|| An objection as to the plaintiff having no cause of action may be taken at any stage of the suit. Div. I. Suits on Coutract. Form No. 370. WANT OF CAPACITY TO SUE, That the plaintiff has not legal capacity to sue (state reason why). Practice.-Incapacity to sue is a defect not admitting of cure, and the Court is bound to consider it, though urged for the first time in special appeal.** Ramsebuk v. Ramlall Koondoo, I. L. R., 6 Cal. 815. + Contract Act, 1872, s. 45. Civil Procedure Code, s. 34. § Civil Procedure Code, s. 53. || Man Gobind Sircar v. Umbika Monee Dossia, 16 W. R. 218. ¶ Parbati Charan Mukhopadhya v. Kalinath Mukhopadhya, 6 B. L. R. App. 73. ** Radha Kishen v. Bakhtawur Lall, 1 Agra, F. B., 173. PART II. Div. I Suits on Form No. 371. WANT OF CAPACITY-ALIEN ENEMY. Contract. 1. That the plaintiff was not, at the commencement of this suit, and is not now, a subject of Her Majesty, but was and is an alien, born out of the allegiance of Her Majesty, and within the in Kingdom of 2. That at the commencement of this suit the Government of was, and still is, at war with, and is now an enemy of, Her said 3. That the plaintiff then was, and still is, an alien enemy, abiding without British India, and at within the said , and adhering to the said enemies of Her Majesty. Alien Enemy Defined.-The explanation to section 430 of the Civil Procedure Code gives the following definition of "alien enemy residing in a foreign country": "Every person residing in a foreign country, the Government of which is at war with the Government of the United Kingdom of Great Britain and Ireland, and carrying on business in that country without a license in that behalf under the hand of one of Her Majesty's Secretaries of State, or of a Secretary to the Government of India." Incapacity of Alien of Enemy.-By section 430 of the Civil Procedure Code, alien enemies residing in a foreign country, or residing in British India without permission of the Governor-General in Council, are incapable of suing in our Courts. of Form No. 372. WANT OF CAPACITY-ASSIGNMENT. That before the commencement of this suit, and on the 18 at day the plaintiff duly assigned the subjectmatter and cause of action set forth in the plaint to one A B, who then was, and has been ever since, the holder thereof. Form No. 378. WANT OF CAPACITY-DENIAL OF PLAINTIFFS' INCORPORATION. 1. That there was not at the commencement of this suit, nor is there now, any such company as the iff in this suit, company, named as plaint 2. That the plaintiff was not a de facto company, nor did the per- PART II sons claiming to compose the said alleged company, at the commencement of this suit, claim in good faith to be a company. Form No. 374. WANT OF CAPACITY-DENIAL OF DIRECTORSHIP. That since the expiration of the said first year (or after the day of 18), he has not been a director of said company, and has not in any way managed the affairs or concerns of said company as such. Form No. 375. WANT OF JURISDICTION. That the Court has no jurisdiction of the person of the defendant (or of the subject-matter of the suit-state why). Practice.-A Court cannot try a case without jurisdiction, even with the consent of parties, and the submission of defendant cannot oust the jurisdiction of the Appellate Court to set aside the decision.† An Appellate Court cannot treat a plea to jurisdiction as a technical plea which may be disregarded if the Court is satisfied with the decision on the merits.‡ When an objection to the jurisdiction has been raised and allowed in an early stage of the suit, the plaint should be returned to be presented in the proper Court,§ even though the suit has been registered, in fact at any stage of the suit,¶ and even after the trial has concluded,** but not after decree has been passed by ultimate Court of Appeal.†† Test for Jurisdiction.-Whether a Court has jurisdiction or not in a suit, depends not on the value of the stamp according to the rules of the Court Fees Act, but upon the amount or value of the subject-matter in dispute, i.e., the actual market Roy Bhoopendro Nath Chowdhry v. Kalee Prosunno Ghose, 24 W. R. 205. + Roy Bhoopendro Nath Chowdhry v. Kalee Prosunno Ghose, supra; Government v. Ranmalsingji Amarsingji, 9 Bom. H. C. B. 242; Aukhil Chunder Sen v. Mohini Mohun Doss, 4 C. L. R. 491; Foster v. Underwood, 3 Ex. Div. 1. Keshava Sanabhaja v. Lakshminarayana, I. L. R., 6 Mad. 192. § Khoosal Chund v. Palmer, 2 Agra H. C. R. 280. || Khandu Moreshrav v. Shivji Bin Gorkoji, 5 Bom. 12; Kavasji Framji v. Wallace, 1 Bom, 113. 300. ¶ Bhadeshvar Chowdhry v. Gouri Kant Nath, I. L. R., 8 Cal. 834; 11 C. L. R. ** Prabhakarbhal v. Vishvambhar, I. L. R., 8 Bom. 313. + In re Bai Amrie, I. L. R., 8 Bom, 389. Defences. Div. I. Contract. PART II. value of what the plaintiff is suing for, which should be estimated by the aid of the Defences, best evidence available bearing on the actual value.† In a recent case the Bombay DIV. I. High Court have held that what determines the jurisdiction of a Court, is the claim, Suits on or subject-matter of the claim, as estimated by the plaintiff; and the determination Contract. having given the jurisdiction, the jurisdiction itself continues, whatever the event of the suit, and this is so notwithstanding a bona fide error in the estimate made by the plaintiff. Suits on Contract-Where to be Instituted.—In suits on contract plaintiff may bring his suit either in the Court of the place where the contract was made, or in that of the place where it was to be performed.§ Acts of State.-The Courts have no jurisdiction to entertain a suit against Government on account of any act done, or contract entered into, in the exercise of powers usually called sovereign, that is, powers which cannot be lawfully exercised except by a sovereign, or by a private individual delegated by a sovereign to exercise them, or on account of any act done by officers and soldiers carrying on hostilities, or for the acts of any naval officers in seizing a prize, the property of a subject, under the supposition that it was the property of an enemy, or for any act done by a military or naval officer or any soldier or sailor whilst engaged in military or naval duty, or for the acts of its officers or servants, in the exercise of judicial functions; but the Government is liable for the acts done by public servants in the conduct of undertakings which might be carried on by private individuals without having any sovereign powers delegated to them. But where an act complained of is professedly done under the sanction of municipal law, and in the exercise of powers conferred by that law, the fact that it is done by the sovereign power, and is not an act which could possibly be done by a private individual, does not oust the jurisdiction of the Civil Courts.¶ Small Cause Courts-Suits for Contribution.-The general rule is that a suit for contribution does not lie in a mofussil Small Cause Court in the * Chunder Nath v. Brindabun Shaha, 25 W. R. 39; Kirty Churn Mitter v. Annath Nath Deb, I. L. R., 8 Cal. 757; 11 C. L. R. 95; Dayachand Hemchand v. Hemchand Dharamchand, I. L. R., 4 Bom, 515: Bai Makhor v. Bulakhi Chaku, I. L. R., 1 Bom. 1; Kalu Bhiwaji v. Vishram Mawaji, I. L. R., 1 Bom. 543; Jeebraj Singh v. Inderjeet Mahton, 18 W. R. 109. + Nauhoon Singh v. Toofanee Singh, 20 W. R. 33. Lakshman v. Babaji, I. L. R., 8 Bom. 31; see also Joy Doorga Dassee v. Manick Chand Baboo, 16 W. R. 248. § Gopi Krishna Gossami v. Nil Komul Banerjee, 13 B. L. R. 461; 22 W. R. 79; Luckmee Chund v. Zorawur Mull, 8 M. J. A. 291; Prem Shook v. Bhekoo, 3 Agra H. C. R. 242; Hills v. Clark, 14 B. L. R. 367; Sami Ayyangar v. Gopal Ayyaugar, 7 Mad. H. C. R. 176; Mahomed Abdul Kader v. E. I. Ry. Co., I. L. R., 1 Mad. 377; Laljee Lall v. Hardury Narain, I. L. R., 9 Cal. 105; 11 C. L. R. 125. || P. & O. S. N. Co. v. Secretary of State, Bourke, 167; 5 Bom. H. C. R. App. 1. ¶ The Secretary of State v. Hari Bhanji, I. L. R., 5 Mad. 273. DIV. I. Suits on absence of a contract to contribute. Therefore a suit for contribution for money PART II. paid by one judgment-debtor in satisfaction of a joint-decree against him and Defences. others cannot be entertained by a Court of Small Causes, which cannot deal with questions of equity ;† nor a suit for contribution between coparceners in a revenue-paying estate, or for contribution between coparceners in a jama;‡ but a suit by one surety against another for contribution, when the sureties are bound by the same instrument, is a suit on an implied contract, and therefore within the jurisdiction of a Court of Small Causes.§ Small Cause Courts-Seamen's Wages.-Civil Courts (including Small Cause Courts) have jurisdiction to try suits for wages brought by seamen against the master, whatever the nationality of the vessel.|| Small Cause Courts-Suit for Property Attached.-A suit to recover moveable property attached in execution of a decree, and damages for its wrongful attachment, and to set aside the order disallowing an objection to be taken to its attachment, is not a suit cognizable by a Court of Small Causes ; nor a suit for a declaration of title to such property, and for its recovery by the removal of attachment; nor a suit by a decree-holder to establish his right to attach and sell certain property as belonging to his judgment-debtor.†† Contract. and the the plaintiff the promissory note of B C for Rs. • Rambux v. Mudhoosoodun, B. L. R. Sup. Vol. 675; 7 W. R. 377. + Ramjoy v. Joy Nath, I. L. R., 9 Cal. 395; Shaboo v. Noorai, B. L. R. Sup. Vol. 691; but see contra Goomdo v. Bapu, 5 Mad. H. C. R. 200. Nobin Krishna v. Ramkumar, I. L. R., 7 Cal. 605. § Hari Trimbak Akolkar v. Abasaheb, I. L. R., 4 Bom, 321, Fritz Olner v. Lavezzo, I. L. R., 10 Cal. 879. Mahkund Lal v. Nasir-ud-din, I. L. R., 4 All. 416. ** Ilahi Baksh v. Sita, I. L. R., 5 All. 462; Shiboo Narain v. Mudden Ally, I. L. R., 7 Cal. 608; but see contra Nathu Ganesh v. Kalidas, I. L. R., 2 Bom. 365; Gordham Prema v. Karsandas, I. L. R., 2 Bom. 179. ++ Chhaganal v. Jesham Rao, I. L. R., 4 Bom. 503. |