6

(2) Revenue Court' in sub-section (1) means a Court having jurisdiction under any local law to entertain suits relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits as being suits of a civil nature of which its cognizance is not barred by any enactment for the time being in force." [Act VII of 1888, section 3.]

Generally speaking Revenue Courts are Civil Courts within the meaning of this Code-Nilmoney Singh vs. Mukerjee, I. L. R., 9 Cal., 295; Adhirani vs. Raghu, I. L. R., 12 Cal., 50, and its provisions govern the Revenue Courts of the N.-W. Provinces in those matters upon which the Rent Act is silent-Mahdo Prakash vs. Murli, I. L. R., 5 Alla., 406; Fahimunnisa vs. Ajudhia, I. L. R., 6 Alla., 170.

Sections extending to

Courts.

5. The chapters and sections of this Code specified in the second schedule hereto annexed extend Mofussil Small Cause (so far as they are applicable) to Courts of Small Causes constituted under Act No. XI of 1865, and to all other Courts (other than the Courts of Small Causes in the towns of Calcutta, Madras and Bombay) exercising the jurisdiction of a Court of Small Causes. The other chapters and sections of this Code do not extend to such Courts.

Act XI of 1865 refers to Mofussil Small Cause Courts only. See section 17, Act IX of 1887.

Saving of jurisdic

6. Nothing in this Code affects the

and procedure jurisdiction or procedure

(a) of Military Courts of Request;

(b) of officers appointed to try small suits in Bombay;

(a) of Military Courts of Request;

(b) of a single officer duly appointed in the Presidency of Bombay to try small suits in military bázárs at cantonments and stations occupied by the troops of that Presidency; or (c) of Village Munsifs or Village Pansifs and Village Pan- chayats under the provisions of the Madras

(c) of Village Mun

chayats in Madras.

(d) of Recorder of Rangoon sitting as an Insolvent Court.

Code; or

(d) of the Recorder of Rangoon sitting as an Insolvent Court in Rangoon, Maulmain, Akyab or Bassein;

or shall operate to give any Court jurisdiction over suits of which the amount or value of the subject-matter exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

Act VIII of 1859, sections 383, 384.

Any Court Jurisdiction.-This section prevents a Court executing a decree passed in a suit beyond its pecuniary jurisdiction--Gokul Kristo vs. Aukhil Chunder, 1. L. R., 16 Cal., 457; Durga Churn vs. Umtara, id., 465.

7. With respect to

Saving of certain Bombay laws.

(a) the jurisdiction exercised by certain jágirdars and other authorities invested with powers under the provisions of Bombay Regulation XIII of 1830 and Act No. XV of 1840 in the cases therein mentioned, and

(b) cases of the nature defined in the enactments specified in the third schedule hereto annexed,

the procedure in such cases and in the appeals to the Civil Courts allowed therein, shall be according to the rules laid down in this Code, except where those rules are inconsistent with any specific provisions contained in the enactments mentioned or referred to in this section.

Act VIII of 1859, section 384.

The Code of Civil Procedure, except so far as its provisions enact rules for appeals from subordinate Courts, does not apply to proceedings under the Military Courts of Requests Act, Act XI of 1841-Gunsam Doss vs. Mooltan Mull, 2 Alla., 192.

It does not apply to Mamlatdars' Courts in Bombay-Kasam vs. Sha Ahmed, I. L. R., 13 Bom., 552.

It does apply to the Vice-Admiralty jurisdiction of the High Court. In the matter of the ship Fanny Skolfield, I. L. R., 17 Cal., 337.

Presidency Small

Cause Courts.

8. Save as provided in sections 3, 25, 86, 223, 225, 386, and Chapter XXXIX, and by the Presidency Small Cause Courts Act, 1882, this Code shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay.

Act VIII of 1859, section 382.

The power of extending this Code to the Presidency Small Cause Courts given to the Local Government by this section as it originally stood has been taken away-See In re Waller, I. L. R., 6 Mad., 431; and Act VII of 1888, section 4.

PART I.

OF SUITS IN GENERAL.

CHAPTER I.

OF THE JURISDICTION OF THE COURTS AND Res Judicata.

10. No person shall, by reason of his descent or place of birth, be in any civil proceeding exempted from the jurisdiction any of the Courts.

of

Act VIII of 1859, section 4. This section applies to H. C. and P. S. C. C. This section does not affect special legislation, such as that which has been provided for the care of the persons and property of minors-Re Shannon, 2 Alla., 79.

11. The Court shall (subject to the provisions herein.

Courts to try all civil

contained), have jurisdiction to try all suits suits unless especially of a civil nature excepting suits of which their cognizance is barred by any enact

barred.

ment for the time being in force.

Explanation.-A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rights or ceremonies.

This section corresponds to Act VIII of 1859, section 1. It applies to H. C.

Government.-See section 416, post, and note.

Ministerial and Judicial Acts.-See note under section 422, post.

Minors. See section 440, post. See also "Barred by any Enactment," above. Lunatics. See section 440, post.

Charities.-See section 539, post.

Divisions of jurisdiction.-See Narivahoo vs. Turner, 16 Ind. App., 156, p.

162.

Suit of a Civil Nature.-See Meenaksha vs. Subra Maniya, 14 Ind. App., 160. The word "suit" has a wider meaning than the word "action."-In re Wallis, 23 L. R. Ir., 7; and includes all contentious proceedings of an ordinary civil kind-Bhopendro vs. Baroda, I. L. R., 18 Cal., 500.

"Barred by any Enactment."-A Munsif is not debarred by Act IX of 1861 from entertaining a regular suit by a Hindu father for possession of his minor sonKrishna vs. Reade, I. L. R., 9 Mad., 31; nor was an ordinary Civil Court prevented by section 265 of the Contract Act from trying a suit for dissolution of partnership-Ramjiwan Lal vs. Chand, I. L. R., 7 Alla., 227.

Co-sharers.-"If there be two or more tenants in common, and one (A) be in actual occupation of part of the estate, and is engaged in cultivating that part in a proper course of cultivation as if it were his separate property, and another tenant in common (B) attempts to come upon the same for the purpose of carrying on operations there, inconsistent with the course of cultivation in which A is engaged and the profitable use by him of the said parts and A resists and prevents such entry, not in denial of B's title; but simply with the object of protecting himself, such conduct on the part of A would not entitle B to a decree for joint possession; or for an injunction; but

only to damages-Watson & Co. vs. Ramchand, 17 Ind. App., 110; and where a co-sharer sets up ferry at his own expense on the joint property; but does not dispossess the other co-sharers or restrict their user of the land or ferry, they cannot obtain any relief by way of injunction, damages or accounts of the profits, even though he denies their title-Luchmeswar Singh vs. Manowar Hossein, 19 Ind. App., 48.

Hereditary Office and Pension-As to how far a suit will lie for a pensicn, &c., see Khando Narayan vs. Apaji, I. L. R., 2 Bom., 370; Chinto Abaji vs. Lakhshmibai, I. L. R., 2 Bom., 375; Gopal Hanmant vs. Sakharam, I. L. R., 4 Bom., 251; Vasudeb Vithal vs. Ram Chandra, I. L. R., 6 Bom., 129; and as to what are pensions-Vasudev Shadasie vs. Collector of Ratnagiri, 4 Ind. App., 119; Parudas Rajaji vs. Mohram Kalyandas, I. L. R., 1 Bom., 203, p. 206; The Secretary of State vs. Jamnadas, I. L. R., 6 Bom., 737, and Shahzadee Hazara vs. Collector of Burdwan, 23 W. R., 378, overruled by Mahararal vs. The Government of Bombay, 8 Ind. App., 77. A suit for a share of a vatan will lie-Moheyodin vs. Chotibibi, I. L. R., 5 Bom., 578; Syed Mahomed Isaack vs. Azeezoonnissa, I. L. R., 4_Mad., 341; or to be declared a vatandar-Ramchandra vs. Anant Sat, I. L. R., 8 Bom., 25; see also Balkrishna vs. Balaji, I. L. R., 9 Bom., 25; Parsha vs. Lagmyashan, I. L. R., 13 Bom., 83; Janardanrar vs. The Secretary of State, I. L. R., 13 Bom., 442, but inam-grants, of a personal or political character are within the prohibition-Panchanadayyan vs. Nilakandayyan, I. L. R., 7 Mad., 191. See also in regard to inam land-Venkata vs. Rama, I. L. R., 8 Mad., 249; Srinivasayyar vs. Lakshmamma, I. L. R. 7 Mad., 206; Venkatanarasimha vs. Suryanarayana, I. L. R., 12 Mad., 188; Venkatanarayana vs. Subbarayudu, I. L. R., 9 Mad., 241.

Sanction.-Suits under the Pensions Act require sanction; but if the requisite sanction is obtained before decree, the original defect is cured-Mahammad Azmat vs. Lalli, I. L. R., 8 Cal., 422.

Assignee. The assignee of a pension, under the Pension Act, cannot sue-Imtiaz Begum vs. Liakatunnissa, I. L. R., 6 Alla., 630; unless the assignment took place before the Pensions Act-Imtiaz Begum vs. Liakatunnissa, I. L. R., 7 Alla., 886.

Costs. A suit will not lie for the costs of defending a possessory action under Act V, 1864 (Bom.)-Jalam Panja vs. Khoda, 8 Bom., 29; nor for costs incurred in resisting a claim under sections 278, 280, 281 of this Code-Ref. Case, 3 Mad., 341; nor for costs incurred in prosecuting a person for a criminal offence-Fazal Imam vs. Fazul, I. L. R., 12 Alla., 166; or in defending a criminal prosecution—Mahomedali vs. Bayama, I. L. R., 14 Bom., 100; and where a Court of competent jurisdiction orders or refuses costs, no separate action will lie-Kadir Bakhsh vs. Salig Ram, I. L. R., 9 Alla., 474. See note on section 2, "pleader," ante.

SEIZURE OF CATTLE.-A suit will lie for compensation on account of wrongful seizure of cattle-Shuttrughon vs. Hokna, I. L. R., 16 Cal., 159.

Agreement -No action will lie to recover the rent of lodgings knowingly let to a prostitute to carry on her vocation there-Gaurinath Mookerjee vs. Madhumani, 9 B. L. R., App., 37; 18 W. R., 445, though prostitution is recognized and legalized by the Hindu law-Chalakonda vs. Chalakonda, 2 Mad., 56; but see Khubchand vs. Beram, I. L. R., 13 Bom., 150; nor for money lent on an agreement to get a divorce and marry the lender-Bai Vijli vs. Nansa, I. L. R., 10 Bom., 152; nor for future cohabitation-In re Vallance, 26 C. D., 353; nor to recover money lent by a Judge to a native officer on his establishment in contravention of Regulation XXXVIII of 1793-Ooduy Chund vs. Palmer & Co., 3 S. D. A., Sel., 18. Nor on an agreement by which a person is partially restrained from exercising a lawful profession, trade or buisness of any kind-Madhub Chander vs. Rajcoomar, 14 B. L. R., 76; Oakes vs. Jackson, I. L. R., 1 Mad., 134; but see illustration (b), section 74, Act' IX, 1872; Mackenzie vs. Striramiah, I. L. R., 13 Mad., 472; 15 Mad., 79. Nor on an agreement not to carry on a trade with the assistance of others than the defendant's own casteVailhelinga vs. Saminada, I. L. R., 2 Mad., 44.

Money paid under an illegal contract cannot to be recovered-Kearley vs. Thomson, 24 Q. B. D., 742.

Unconscionable agreement.-See Chunni Kuar vs. Rup Singh, I. L. R., 11 Alla., 57; Kamini Soondari vs. Kali Prosunno, 12 Ind. App., 215; Fry vs. Lane, 40 C. D., 312; Nevill vs. Snelling, 15 C. D., 679; the Rialto, 1 P. D. (1891), 175; Loke Indar vs. Rup Singh, I. L. R., 11 Alla., 118.

Marriage. A suit will lie for the consideration of a marriage among HindusVisvanathan vs. Saminathan, I. L. R., 13 Mad., 83; but no suit will lie on a contract entered into by Hindus by which it is agreed that, on the happening of a certain event, a marriage is to become null and void-Sitaram vs. Mussamut Aheeree, 11 B. L. R., 129. But a contract by a Muhammadan with his first wife not to marry a second is not illegal -Hurron vs. Khyroollah, Fulton, 361. Nor is authority granted to divorce him if he either marries again or he violates any condition of the marriage contract-Hamidoollah

vs. Faizunnessa, I. L. R., 8 Cal., 327. See, however, Futawa Alimgiri, vol. 1, p. 384; Fatawa Kazikhan, vol. 1, p. 278. Nor will a suit for specific performance of an agreement to marry lie-Umed Kika ys. Nagindas, 7 Bom., 122; Shaikh Bhugun vs. Shaikh Rumjan, 24 W. R., 380; though one for damages against a guardian for breach willMulji vs. Gomti, I. L. R., 11 Bom., 412; but a contract to marry a minor on payment of a consideration is void-Dulari vs. Vallabdas, I. L. R., 13 Bom., 126; Ram Chand vs. Audaito, 1. L. R., 10 Cal., 1054; but see Visvanathan v. Saminathan, I. L. R., 13 Mad., 83. As to a suit to declare a marriage void among Parsees, see Pershotam vs. Maherbai, I. L. R., 13 Bom., 302. See "RESTITUTION OF CONJUGAL RIGHTS" and infra. Subscription.-See Kedar Nath vs. Gorie, I. L. R., 14 Cal., 64.

Criminal Proceedings.—A suit will not lie on a contract affecting the course of justice, such as to obtain the release of a badmash by killing the Police-officer in whose charge he is-Protima Aural vs. Dukhia_Sircar, 9 B. L. R., App., 38; nor to hush up a case and suppress a criminal prosecution for a consideration-Jeetoo Mahato vs. Moneeram, 17 W. R., 84; Kandan Chetti vs. Coorjee, 2 Mad., 187; In re Campbell, 14 Q. B. D., 32; otherwise, if the contract be to forego a prosecution in a case in which, though a compromise could not be legally effected, it had been allowed by the Magistrate-Sheikh Nubbee vs. Bibee Hingon, 8 W. R., 412, or it is to compound criminal proceedings in a foreign country for an offence committed there, and the law of the country permits the transaction-Subraya Pillai vs. Subraya, 4 Mad., 14.

Cesses. Nor can a contract be enforced for or about any matter prohibited or made unlawful by statute; thus, where certain farmers agreed to pay over and above the jummas such sums as would be realized under the head of zabita-batta, and were sued for these sums by the zemindar, it was held that the stipulation was illegal and opposed to section 3, Regulation V of 1812, and the suit was dismissed-Radha Mohun vs. Ganga Pershad 7 S. D. A., Sel., 166. So an agreement to pay the Purabi collected from the village has been declared illegal under section 10, Act X of 1859-Kamala Kant vs. Kalu Mahomed, 3 B. L. R., 44; 11 W. R., 395; Sonnum Sookul vs. Shaikh Elahee Buksh, 7 W. R., 453. Nor will a suit lie against a tahsildar to account for money "exacted" in excess of the rent; otherwise, if the payment had been made voluntarily Nobin Chunder vs. Gooroo Gobind, 14 W. R., 447; 25 W. R., S. But where the talab beshi has been paid voluntarily for several years, and has been incorporated in the rent, and the two payments form the subject of one receipt, the cess is not illegal and the ryot must pay it-Serajgunge Jute Co. vs. Torabdee, 25 W. R., 252; not soTiluckdhari vs. Chulhan, I. L. R., 17 Cal., 131; 16 Ind. App., 152; Radha Prosad vs. Bal Kowar, I. L. R., 17 Cal., 726. In the North-West it has been held that a suit to collect cesses not authorized by Regulation VII, 1822, is not maintainable-Khyrat Ali vs. Mahomed Yaseen Khan, 1 Agra, 207; Sheikh Bisharut vs. Seetul Misser, 1 Alla., 37; though a suit lies by a zemindar to establish his right to a cess and to question the validity of a Settlement-officer's refusal to record it-Mahomed Ali Khan vs. Oomrao Singh, 2 Alla., 425; Akbar Khan vs. Sheoratan, 1. L. R., 1 Alla., 373.

A suit will lie to recover a sum alleged to have been illegally levied as tax under the Abkari Act-Narain vs. Sakharam, I. L. R., 9 Bom., 462.

Champerty and Maintenance. -No suit will lie on a contract having the qualities attributed to champerty or maintenance in English law, something against good policy and justice, tending to promote unnecessary litigation and in a legal sense immoral, and to the constitution of which a bad motive is in the same sense necessary -Fischer vs. Kamala Naicker, 8 Moore, 170; Ramrav Khanderas v. Govind, 6 Bom., 63, and not bona fide entered into merely to obtain an interest in the litigation, but an unfair, illegitimate transaction got up for the purpose merely of spoil or of litigation, disturbing the peace of families, and carried on from a corrupt and improper motive -Chedambara Chetty vs. Ranga Krisna Muthu, 1 Ind. App., 241; 22 W. R., 148; Mullajafjaarje vs. Yacali, 7 Mad., 128; Gurusami vs. Subaraya, I. L. R., 12 Mad., 118; Ram Coomar Coondoo vs. Chunder Canto, 4 Ind. App., 23. R., the owner of certain property, having died, and his immediate heirs having subsequently died without issue, A, as the next-of-kin, attempted to take the property of the deceased, and, being opposed, brought a suit under Act XIX of 1841, and subsequently alienated a moiety of his right, title, and interest, valued at Rs. 75,000, to B, in consideration of Rs. 50 in cash, his trouble and assistance in managing and conducting the suit and defraying the expenses of it. The suit was dismissed. Afterwards B sold the interest he had acquired to T for Rs. 1,700 advanced by the latter, and expended in the proceedings, valuing the interest sold at Rs. 2,18,000. T brought a suit against the person in possession and A. Held, the contract was void as against public policy-Tara Soonduree Chowdrain vs. Court of Wards, 20 W. R., 446; see also Sheikh Abed vs. Lalla Ram, 13 W. R., 426. So a contract made to assist another in carrying on litigation against a third party out of a spite and ill-feeling to such third party is against public policy-Bamun Dass vs. Huro Lall, 10 W. R., 140; but not a fair agreement to supply funds to carry on a suit in consideration of having a share of the property if recovered-Ram Coomar Coondoo vs. Chunder Kanto Mookerjee, 2

O'K., CIV. P.