hundred rupees, or with imprisoment for a term which may extend to a month, or with both.

This section applies to H. C. and P. S. C. C.

Failed in the Suit.-Where a plaint in forma pauperis has been admitted, but the Judge holding he has no jurisdiction, returns the plaint to the plaintiff, he has, no jurisdiction to make the plaintiff pay the Court-fees-The Collector of Ratnagiri vs. Janardan, I. L. R., 6 Bom., 591, and neither this section nor section 211, ante, apply to cases of failure, other than adjudicated failure-The Collector of Kanara vs. Krishnappe, I. L. R., 15 Bom., 77.

Where a petition for leave to sue in forma pauperis has been filed and is pending, and the petitioner pays the necessary amount of stamp-fees, the petition should be treated for the purposes of limitation as a plaint from the date on which it was filed and not from the date of payment of the fees-Skinner vs. Orde, 4 C. L. R., 331; I. L. R., 2 Alla., 241. See note and section 409, ante.

Revision: Review.-Where the Court omitted to make an order as to which of the parties was to pay the stamp-fee, it was held the error could not be rectified on the application of Government-Shoshee Churn vs. Kamarali, 1 Shome, 266; and in another case it was decided that as Government was not a party to the suit it could not be heard in regard to a defective decree-The Secretary of State, Petitioner, 2 C. L. R., 461; but in Bombay the Collector of Revenue is allowed to apply under section 622, post, and have the error of a subordinate Court amended-The Collector of Kanara vs. Krishnappe, I. L. R., 15 Bom., 77.

Defendant. This section does not apply to the costs of a successful defendant in a pauper suit-Jetha vs. Gulraj, I. L. R., 8 Bom., 577.

Refusal to allow applicant to sue as pauper to bar susbequent application of like nature.

413. An order of refusal made under section 409 to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any) incurred by Government in opposing his application for leave to sue as a pauper.

Act VIII of 1859, section 310. This section applies to H. C. and P. S. C. C. This section does not apply when the Court has not passed an order of refusal, for instance, if it returns the application to have the question for pauperism tried by a Court of concurrent jurisdiction-Skinner vs. Orde, 6 Alla., 225; I. L. R., 2 Alla., 241; or strikes off for the present," the application for default by non-appearance-Rejah Bhoj Singh vs. Ram Maha Koonwer, 3 Agra, Mis., 1; or dismisses it in default of prosecutionIn the matter of Umasundari, 5 B. L. R., App, 29. Under such circumstances the application may be renewed or revived.

414. The Court may, on motion by the defendant, or by the Government Pleader, of which one week's notice in writing has been given to

Dispaupering.

the plaintiff, order the plaintiff to be dispaupered(a) if he is guilty of vexatious or improper conduct in the course of the suit;

(b) if it appears that his means are such that he ought not to continue to sue as a pauper; or

(c) if he has entered into any agreement with reference to the subject-matter of the suit, under which any other person has obtained an interest in such subject-matter.

This section applies to H. C. and P. S. C. C.

If it appears from facts that have been discovered after permission to sue in formå pauperis has been granted, that the applicant ought not to be allowed to continue to sue as a pauper, the remedy is by application under this section and not by appeal or motion in the superior Courts-In the matter of Khodejoonissa, 7 W. R., 486.

415. The costs of an application for permission to sue as a pauper and of an inquiry into pauperism are costs in the suit.

Costs.

This section applies to H. C. and P. S. C. C.

CHAPTER XXVII.

SUITS BY OR AGAINST GOVERNMENT OR PUBLIC OFFICERS. 416. Suits by or against the Government shall be instituted by or against (as the case may be) The Secretary of State for India in Council.

Suits by or against

Secretary of State in

Council.

This section applies to H. C. and P. S. C. C.

Notice. See section 424, post.

Form of Suit-In all suits against Government, the Court should see that the defendant is properly described, and that no description is inserted other than what is prescribed by the law. Imperfect plaints should be invariably returned for amendment -Cal. Cir. Ŏ. No. 5, 1875. And see Vijaya vs. The Secretary of State for India, I. L. R., 7 Mad., 466, p. 478.

An action cannot be maintained against The Secretary of State. It must be brought against "The Secretary of State for India in Council"-P. & C. S. N. Co. vs. The Secretary of State for India, Bourke, 167; 5, Bom., App., 1: Nobin Chunder Dey vs. The Secretary of State for India, I. L. R., 1 Cal., 11, p. 14 ; 21 & 22 Vic., cap. 106, section 65. This error may be waived directly. Thus where A was sued as "Agent to the Governor-General on the part of Government," and defended the suit on behalf of Government through the Government Pleader, it was held to be substantially a suit against GovernmentRoopan Tewaree vs. Buckle, 10 W. R., 142, and see also The Municipal Committee of Moradabad vs. Chatri, 466, p. 478; I. L. R., 1 Alla., 269.

The Secretary of State must be sued where the cause of action has arisen-Subaraya Mudali vs. The Government and Cunliffe, 1 Mad., 286; Rundle vs. The Secretary of State in Council, 1 Hyde, 37. See also Hearsay vs. The Secretary of State, 6 Alla., 46; Doya Narain vs. The Secretary of State, I. L. R., 14 Cal., 256. He cannot claim the benefit of Act XVIII of 1850, protecting judicial officers-Vijaya vs. The Secretary of State, I. L. R., 7 Mad., 466.

Amendment.-Where a suit was wrongly brought against a Magistrate, the Bombay High Court in regular appeal allowed the name of the Magistrate to be struck out and that of The Secretary of State for India in Council to be inserted.-Nilkanthapa Maikapa vs. The Magistrate of Taluka, I. L. R., 6 Bom., 670; Balaram vs. The Magistrate of Taluka, 1. L. R., 6 Bom., 673; compare Chuni Lal vs. Ram Kishen, I. L. R., 15 Cal., 460. See "PRACTICE," post.

Suit will not Lie.-No action will lie against the Government for possession of immoveable property without proof of title-section 9, Act I, 1877; or on account of its transactions with Foreign States-The Secretary of State for India in Council vs. Kamachee Boye Sahaba, 7 Moore, 477; Doss vs. The Secretary of State for India in Council, L. R., 19 Eq., 509; or, 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 private individual delegated by a Sovereign to exercise them-P. & O. S. N. Co. vs. The Secretary of State for India, Bourke, 167; 5 Bom. App., 1; such as assuming the Government of a country, and resuming a jagheer-The East India Company vs. Syed Ally, 7 Moore, App., 555; Bhagwan Singh vs. The Secretary of State for India, 2 Ind. App., 38; or, for seizing the property of a native in a recently-conquered country (who had been refused the benefit of the articles of capitulation of a fortress of which he was Governor, but who had been permitted to reside under military surveillance in his own house, where the seizure was made), where the seizure was made if not flagrante, yet nondum cessante bello, the country was quiet and the Court

sitting-Elphinstone vs. Bedrechund, 1 Knapp., 316; or on account of any act done by officers and soldiers carrying on hostilities; or for the acts of any naval officers in seizing, as prize, property of a subject under the supposition that it was property of an enemy; or for any act done by a military or naval officer, or by 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-Reg. XI, 1822, section 38-P. & O. S. N. Co. vs. The Secretary of State for India, 5 Bom. App., Bourke, 167; or for the acts of officers appointed to impose and collect excise duties-Nobin Chunder Dey vs. The Secretary of State for India, I. L. R., 1 Cal., 11; but see The Secretary of State vs. Hari Bhanji, I. L. R., 5 Mad., 273; Vijaya vs. The Secretary of State, I L. R., 7 Mad., 466, pp. 472, 478.

In the case of Dhankji Dadaji vs. The East India Company, Perry's O. Cases, 343, it was held that, after the Charter, the Company could not be held liable for the illegal acts of their officers, or con mitted under the orders of the Local Government, such as taking forcible possession of the dwelling-house of an ex-Dewan of the Gaekwar of Baroda, resident in Bombay, and the forcible seizure of his papers under the orders of the Local Government.

Suit will Lie. -The Secretary of State has been held liable for the acts of officers in connection with settlements-Shaikh Zuhoorooddeen vs. The Collector of Goruckpore, 4 B. L.R., (P.C.), 31; the illegal levy of import duties by a Collector of Customs-Hari Bhanji vs. The Secretary of State, I. L. R., 4 Mad., 344; and the sale of waste lands-Rundle vs. The Secretary of State, 1 Hyde, 37. The Secretary of State 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-P. & O. Co. vs. The Secretary of State for India, Bourke, 167; 5 Bom. App., 1, when acting in the discharge of their duty, within the limits of their authority; or if they exceed that authority, when the Government, in fact or in law, directly or by implication, has ratified the ex·cess-The Collector of Masulipatam vs. Cavaly Vencata, 8 Moore, 529; 2 W. R., P. C., 61; The Secretary of State vs. Sheo Singh, I. L. R., 2 Alla., 756. So, where Government coolies let fall an iron funnel, which they were carrying from the Kidderpore Dockyard to a steamer in the river, and the noise of its fall startled a horse, and he rushed over it and injured himself, The Secretary of State was held liable-P. & O. Co. vs. The Secretary of State for India, Bourke, 167; 5 Bom. App., 1; and so he is liable for negligence in the carriage of goods by the Government Bullock Train-Id.; The Post Master of Bareilly vs. Earle, 3 Alla., 195; and so also he can be sued if the Government, professing to be acting under municipal law, wrongfully removes a municipal commissioner- Vijaya vs. The Secretary of State, I. L. R., 7 Mad., 466. But where an officer in the Public Works Department entered into a contract in excess of his authority, it was held that Government was not bound by it-Beer Kishore vs. Government of Bengal, 17 W. R., 497.

Not an Act of State.-Lands were held as jagheer under the Sovereign of an independent State, and on the conquest of the territory by the East India Company the jagheerdar remained in the same position towards the Company: Held, the seizure of the tenure, and the arms and stores pertaining to it after the death of the jagheerdars, was not an act of State. Their Lordships of the Privy Council said :

"The act of Government in this case was not the seizure by arbitrary power of territories, which up to that time had belonged to another Sovereign State: it was the resumption of lands previously held from the Government under a particular tenure upon the alleged determination of that tenure. The possession was taken under colour of a legal title; that title being the undoubted right of the sovereign power to resume and retain or assess to the public revenue all lands within its territories upon the determination of the tenure under which they may have been exceptionally held rent-free. If by means of the continuance of the tenure, or from other cause, a right be claimed in derogation of this title of the Government, that claim, like any other arising between the Government and its subjects, would prima facie be cognizable by the Municipal Courts of India"-Forester vs. The Secretary of State, 12 B. L. R., 120; see also the case of Viziaramarazu vs. The Secretary of State, I. L. R., 5 Mad., 91; Hari vs. Shaik Ajmudin, I. L. R., 11 Bom., 235.

Government confiscated the property belonging to certain rebels, and put it up for auction sale to the highest bidder without reserving any right to object to the purchaser. The Government refused to perfect the sale, and, in a suit for specific performance, raised the defence that it was an act of State. Their Lordships of the Privy Council said :

"It has been said that this suit could not be instituted by the respondent inasmuch as what was done was an act of State which could not be called into question. The meaning, as their Lordships understand it, of an act of State is something which pertains to the functions of Government. Suppose, for instance, any question had arisen with regard to the propriety of confiscating the rebels' property that would have been an act of State. Probably the determination of the Government to sell that confiscated property might also be treated as an act of State; but in the sale the Government was exactly in the situation of an individual selling his property by auction, and when the property was knocked down, the relation of vendor and vendee existed between the Govern

ment and the highest bidder”—Sheo Lall Bohra vs. Sheikh Mahomed, 13 W. R. (P.C)., 4. Compare this case with Nobin Chunder Dey vs. The Secretary of State, I. L. R., 1 Cal. 11; there is some difficulty in reconciling them, and the High Court of Madras has declined to follow the latter-The Secretary of State vs. Hari Bhanji, I. L. R., 5 Mad., 273.

And where the East India Company when called upon to account for the property of a deceased State prisoner answered that they had dealt with it as sovereigns, their answer was set aside-Essadah Bye vs. The East India Company, 1 Tay. and Bell, 290. And the distinction is that Government is liable for acts professed to be done under a municipal law; but not for acts done in the exercise of its sovereign power which are not professedly justified by municipal law-The Secretary of State vs. Hari Bhanji, I. L. R., 5 Mad., 273; see also Walker vs. Baird, App. Cas., (1892), 491.

A suit will lie against Government to set aside a settlement and obtain possession and in such Government should be a party-Mahomed Israil vs. Wise, 21 W. R., 327; Krishna Lall vs. Bhyrub Chunder, 22 W. R., 52; but see Krishna Chandra vs. Harish Chandra, 8 B. L. R., 524; to declare that certain lands are not liable to assessment because they are included in a permanently settled estate-The Secretary of State vs. Fahamialannissa, I. L. R., 17 Cal., 590; to contest an order to pay revenue at an increased rate-Kebul Ram vs. Government, 5 W. R., 47; for specific performance of a contract of sale-Rundle vs. The Secretary of State in Council, 1 Hyde, 37; for damages on account of wrongful dismissal of a servant-Hughes vs. The Secretary of State, 7 B. L. R., 688; or other breach of contract-Ross Johnson vs. The Secretary of State, 2 Hyde, 153 but not for damages arising from a Magistrate taking up a public ferry-The Collector of Patna vs. Romanath Tagore, 7 W. R., 191; nor for a pension-Act XXIII, 1871, section 4. The action taken by the revenue authorities under Act IX of 1847 is final, and cannot be questioned; but that does not debar a proprietor from bringing before a Civil Court his right to hold the property at any settlement that may be made-18 W. R., 23; W. R., 38; Reg. App., 268 of 1876-Narain Chunder Chowdhry vs. Tayler. And a suit to declare that land assessed forms part of a permanently settled estate will lie-The Secretary of State vs. Ram Torab, I. L. R., 7 Alla., 140.

Practice. To question an act of State directly or indirectly the contention should be raised in a suit to which the Government has been made a party-Umjad Ally vs. Mohum dee Begum, 11 Moore, 550; 10 W. R., 25. Where the lands, the subject of the suit, are stated to be chowkidaree, or ghatwalee Government should be made a party-The Collector of Beerbhoom vs. Mooktakhessee Dabeah, S. D., 4th July, 1860. So in a suit to recover possession of a chur which had been leased to defendant: Held, Government a necessary party-Cannon vs. Bissonath Adhicaree, 5 C. L. R., 154.

Persons authorized to

417. Persons being ex-officio or otherwise authorized to act for Government in respect of any act for Government. judicial proceeding shall be deemed to be the recognized agent by whom appearances, acts and applications under this Code may be made or done on behalf of Gov

ernment.

Act VIII of 1859, section 17, cl. 3; section 26, cl. 6. This section applies to H. C. and P. S. C. C.

Plaints in suits by Secretary of State in Council.

418. In suits by The Secretary of State for India in Council, instead of inserting in the plaint the name and description and place of abode of the plaintiff, it shall be sufficient to insert the words "The Secretary of State for India in Council."

Act VIII of 1859, section 26. This section applies to H. C. and P. S. C. C. See note under section 416, ante.

Agent for Govern

419. The Government Pleader in any Court, or such other person as the Local Government may for any Court appoint in this behalf, shall be the agent of the Government for the purpose of receiving

ment to receive process.

processes against the said Secretary of State in Council issuing out of such "Court.

The words from "Court" to "shall" have been inserted by Act VIII of 1888, section 35.

Act VIII of 1859, section 52. This section applies to H. C. and P. S. C. C.

Appearance and an

State in Council.

420. The Court, in fixing the day for the said Secretary of State in Council to answer to the swer by Secretary of plaint, shall allow a 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.

Act VIII of 1859, section 67. This section applies to H. C. and P. S. C. C.

Attendance of person

421. The Court may also in any case in which the Government Pleader is not accompanied by any person on the 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.

able to answer questions relating to suit against

Government.

Act VIII of 1859, section 67. The section applies to H. C. and P. S. C. C.

Service officers.

on public

422. Where the defendant is a public officer, 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 conve niently so served.

Act VIII of 1859, section 62. This section applies to H. C. and P. S. C. C. The Registrar is not a necessary party to a suit under section 79 of the Registration Act III of 1877–Radhakissen Rowra vs. Chooneeloll, 5 C. L. R., 172.

Practice. All suits against an officer in his official capacity should describe him by his official title. If the plaint contains a description not in conformity with the law it should be returned-Cal. Ĉir. O. No. 5, 1875. See "AMENDMENT," section 416, ante, p. 391.

If the summons is not sent to the head of the office, it must be served in the usual way. The Government Pleader is not the agent of every public officer, as he is of the Government to accept service.

Governor and Council of Madras.-The Madras High Court has no jurisdiction over the Governor and Council-In the matter of Wallace, I. L. R., 8 Mad., 24.

Judicial Officers.--By Act XVIII of 1850, no person acting judicially is liable to be sued in the Civil Courts for any act done or ordered by him to be done, in the discharge of his judicial duty, whether or not within the limits of his jurisdiction; provided that he at the time in good faith believed himself to have jurisdiction to do or order the act complained of. No action at all will lie against a judicial officer while acting in the exercise of his jurisdiction-Prahlad Maharudra vs. Watt, 10 Bom., 346; and see App. Cas., 1892, p. 64; but if a Judge has not jurisdiction and has the knowledge, or even if he has the means of knowledge of his want of jurisdiction, he is liableCalder vs. Halket, 2 Moore, 293; In re Toy, 1 Tay. and Bell, 219; The Collector of Sea 27

O'K., CIV. P.