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Customs vs. Chithambaram, I. L. R., 1 Mad., 89, unless it appears that he had an honest belief, framed on enquiry and consideration, that he was acting within his powers-Ragunada vs. Nathamuni, 6 Mad., 423; Taraknath vs. The Collector of Hooghly, 4 B. L. R., 37; Vinayak vs. Bai Itcha, 3 Bom., 36 ; Vithoba vs. Corfield, 3 Bom., App. 1; Teyen vs. Ram Lal, I. L. R., 12 Alla., 115. This immunity extends not merely in respect of acts in Court sedente curia ; but in respect of all acts of a judicial nature, and issuing a warrant of arrest-Calder vs. Halket, 2 Moore, 293; adjudicating a penalty under section 24, Act VI of 1863The Collector of Sea Customs vs. Chithambaram, I. L. R., 1 Mad., 89; postponing a sale in execution-Meghraj vs. Zakir Hoossein, I. L. R., 1 Alla., 280, are judicial acts. If, on the other hand, the act is within his jurisdiction, he is protected absolutely, and the question of good faith does not arise-Meghraj vs. Zakir Hossein, I. L. R., 1 Alla., 280; Ousley vs. Plovden, 1 Bouln., 165 ; Teyen vs. Ram Lal, I. L. R., 12 Álla., 115. Thus where a Judge was sued for words spoken, falsely and maliciously, and it appeared that they had been spoken while the Judge was trying a case in which the plaintiff was a party : Held, po cause of action, on the ground that no action would lie for words spoken or acts done in his judicial capacity in a Court of Justice-Scott vs. Stansfield, L. R., 3 Eq., 220; Ali Kurreem vs. Sandys, 1 Bouln., 1; Seaman vs. Netherclift, 1 C. P. D., 540; 2C. P. D., 39; App. Cas., 1892, p. 64; but this immunity is in respect of the character of Judge, which if a man assume knowing that in fact he is not so, either in respect of the subjectmatter or the parties, he has no immunity-Calder vs. Halket, 2 Moore, 293.

A plaint declaring that a Judge knowingly and maliciously issued an illegal order does not disclose a cause of action. Nor is stating that a Judge acted "maliciously and without authority” sufficient--Girdharlal vs. Jaganath, 10 Bom., 182. It must not only aver that he had no jurisdiction, but also that he had no reasonable and probable cause for supposing that he had jurisdiction-Prahlad Maharudra vs. Watt, 10 Bom., 346.

Municipal Commissioners when acting as Magistrates are entitled to the same privileges-Shazada Halimoozzumah vs. Chairman of Hooghly, 13 W. R., 310. In Bombay, such a suit against a municipality can only be heard by the District Judge-The Ahmedabad Municipality vs. Mahamad Jamal, I. L. R., 3 Alla., 146.

Executive Officer.—There is no such general protection granted to executive officers, and their acts may be questioned-R. vs. Collins, 2 Q. B. D., 35 ; Sinclair vs. Broughton, 9 Ind. App., 152; Mukoond vs. Joy, 1 W. R., 16. They are exempted in special cases,

-Act XVIIÍ, 1850, section 1; Act V, 1861, section 43; and where they are allowed any special protection when acting under any Act, there is no rule of law more firmly established than that if they bonà fide, and not absurdly, believe that they are acting in pursuance of the statute and according to law, they are entitled to the special protection which the Legislature intended for them, although they have done an illegal act-Spooner vs. Judov, 4 Moore, 353.

The following rules were laid down in Ousley vs. Plouden, 1 Bouln., 165.

1st.--If an officer is authorized by law to do the act which he does, he is justified in doing it. Whatever his object or intention may be at the time he does it, he is not confined in his defence to the authority which alone he may have produced when he acted, and may resort to any authority which he possessed to justify his proceeding. See, however, Gasper vs. Mytion, 1 Tay., 291.

2nd.--- In cases of breach of contract, such as the dismissal of a servant, the master may justify the dismissal, upon a ground other than that assigned by him at the time of dismissal, provided that, at that time, the cause existed and was known to him.

On the matters laid down in these rules see Trent vs. Hunt, 9 Exch. Rep., 14 ; Cowan vs. Milbourn, 2 Ex., 230; Moothoormohun Roy vs. The Bank of Bengal, I. L. R., 3 Cal., 392.

The removal of an obstruction by a Magistrate, in the exercise of powers given him under Act VI of 1868 (B. C.), section K, is an executive act, and even the circumstance that a fine has been imposed on the person who set up the obstruction does not protect the Magistiate, under Act XVIII of 1850, from an action to try the right of the person to have the obstruction there-Chunder Narain vs. Brojo Bullub, 21 W. R., 391.

The Madras High Court has jurisdiction to try suits against Revenue Officers for acts ultra vires, done in their official capacity-The Collector of Sea Customs vs. Chithambaram, I. L. R., 1 Mad., 89.

423. If the public officer on receiving the summons Extension of time to considers it proper to make a reference to enable officer to make

the Government before answering to the reference to Government.

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.

Act VIII of 1859, section 69. This section applies to H. C. and P. S. C. C.

This application must be made by the officer on his own behalf. It should not be made in the name of Government. 424. No suit shall be instituted against the said Secre

tary of State in Council, or against a public Notice previous to

officer in respect of an act purporting to suing Secretary of State in Council or public be done by him in his official capacity, officer.

until the 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 relief which he claims ; and the plaint must contain a statement that such notice has been so delivered or left.

Act XV of 1873, section 43 This section applies to H. C. and P. S.C.C. The words from “plaintiff" to " and have been inserted by Act VII of 1888, section 36.

Act done in Official Capacity:- Where a Collector thinking three Mamlatdars had no right to give plaintiff certificates destroyed them, it was held to have been done in his official capacity-Swamiray vs. The Collector of Dharwar, I. L. R., 15 Bom., 411. But where a minor under the Court of Wards was sued for a debt due by his father and the Collector was appointed guardian ad litem : Held, notice was not necessary- Anantharaman vs. Ramasami, I. L. R., 11 Mad., 317.

Adding Parties.- It has been held that this section does not prevent a Court adding The Secretary of State as a party to a suit under section 32, ante-Bal Mokoond vs. Jirjudhun, I. L. Ř., 9 Cal., 271.

Notice when Required -A public officer is entitled to notice only in those cases in which he is sued for damages on account of some wrong inadvertently committed by him in the discharge of his duty-Shahebzadee vs. Fergusson, I. L. R., 7 Cal., 499°; Chunder Sikhur vs. Obhoy Churn, I. L. R., 6 Cal., 8; Sardar Singji vs. Ganpat Singji, I. L. R., 14 Bom., 395; Bhau Balapa vs. Nana, I. L. R., 13 Bom., 313 ; Annaji vs. Subramanya, I. L. R., 13 Mad., 442; Joshi Kalidas vs. Dakor Municipality, I. L. R., 7 Bom., 398; Flower vs. Local Board, 5 C. D., 347. See, however, Birj Mohan Singh vs. The Collector of Allahabad, I. L. R., 4 Alla., 102; p. 111 ; Ranchhod vs. Dakor Municipality, I. L. R., 8 Bom., 421.

Form of Notice.-It should be in the form of a notice, and not like a mere letter. An attorney's letter declaring that he has been instructed to take legal proceedings is informal--Lewis vs. Smith, Holts's N. P. C., 27 ; Norris vs. Smith, L. R., 2 P. & D., 353, nor is a notice objecting and asking a re-consideration of the order complained of sutticient-Abhoanath Bose vs. Chairman of Municipal Commissioners of Kishnaghur, 7 W. R., 92.

It must state the cause, but not the form of the action-Sabin vs. Deburgh, 2 Camp., 196; and the relief which he claims, and no other cause of action can be raised at the trial-Ullman vs. The Justices of the Peace for Calcutta, 8 B. L. R., 265. The section, in short requires that the intending plaintiff should substantially inform the officer of the ground of complaint so as to enable him to see if there is any ground for the actionJones vs. Bird, 5 B. & Ald., 837; Parbutti Churn vs. Nobin Chunder, 13 C. L. R., 195 ; he should, therefore, set forth sufficiently clear the grounds of the complaint-Smith & Co. vs. West Derby Local Board, 3 C. P. D., 423; and the time and place where the act complained of was done-Breese vs. Jerdeen, 12 L. J. Q. B., 234. Lastly, the notic should give the name and place of abode of the party intending to sue; Dwarkanath Gupta vs. Corporation of Calcutta, I. L. R., 18 Cal., 91, p. 92. See on this, James vs. Swift, 4 B. & C., 681; and also Eales vs. Municipal Commissioners of Madras, I. L. R., 14 Mad., 386.

Service.—The notice must (in the cause of a public officer) be served personally or left at his office. The day of serving the notice and that of bringing the action must be both excluded in computing the two months-Young vs. Higgon, 6 M. & W., 49.

Public Officer.-A Collector appointed to manage a minor's estate is a public officer within this section-Nursingrav vs. Luxumanrav, I. L. R., 1 Bom., 318; a nazir appointed as guardian ad litem of a minor is not-Mohun Ishuar vs. Hakee Rupa, I. L. R., 4 Bom., 638; Jadow Mulji vs. Chhagan, I. L. R., 5 Bom., 360, nor is a Collector-Anantharaman vs. Ramasami, I. L. R., 11 Mad., 317; and see Bhau Balapa vs. Nana, I. L. R., 13 Bom., 343. See cases under" Public Officer,” section 2, ante.

Special Appeal.—Want of notice cannot be raised for the first time in special appeal - Municipal Committee vs. Chatra Singh, I. L. R., 1 Alla., 269. 425. No warrant of arrest shall be issued in such suit

without the consent in writing of the Arrests in such suits.

District Judge. This section applies to H. C. and P. S. C. C. 426. If the Government undertakes the defence of a

suit against a public officer, the GovernApplication where Government undertakes ment Pleader, upon being furnished with defence.

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.

Act VIII of 1859, section 71. This section applies to H. C. and P. S. C. C.

When Government has undertaken the defence, the Government Pleader, in lieu of a vakalutnama, files a memorandum on unstamped paper-Cir. Civ. O., No. 23, Cal., 1871.

This does not change the nature of the suit, which will continue as before. The suit is against the officer, and against him, the decree, if any, must be passed.

427. If such application is not made by the GovernProcedure where no ment Pleader on or before the day fixed in such application made. the notice for the defendant to appear and answer to the plaint, the case shall proceed as in a suit between

Defendant not liable private parties, except that the defendant to arrest before judg- shall not be liable to arrest, nor his pro

perty to attachment, otherwise than in execution of a decree.

Act VIII of 1859, section 71. This section applies to H. C. and P. S. C. C.

If the application is not made before the day fixed in the notice to appear and answer under section 422, or section 423, no note will be made in the register, and the suit will proceed as a private suit. 428. In a suit against a public officer in respect of such

act as aforesaid, the Court shall exempt Exemption of public officers from personal

the defendant from appearing in person appearance.

when he satisfies the Court that he cannot absent himself from his duty without detriment to the public service.

Act VIII of 1859, section 72. This section applies to H. C. and P. S. C. C.
The discretion to compel his attendance or otherwise rests with the Judge.


429. When the decree is against the said Secretary of

State in Council or against a public officer Procedure where decree is against

in respect of such act as aforesaid, a time Government or public 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.

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

Execution shall not issue before three months, and until the period mentioned in the decree has expired.


RULERS. 430. Alien enemies residing in British India with the

permission of the Governor-General in When aliens may sue.

Council, and alien friends, may sue in the Courts of British India as if they were subjects 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 under the hand of one of Her Majesty's Secretaries of State or of a Secretary to the Government of India, shall, for the purpose of the second paragraph of this section, be deemed to be an alien enemy residing in a foreign country. When foreign State 431. A foreign State may sue in the

Courts of British India :
Provided that

(a) it has been recognized by Her Majesty or the Gov. ernor-General in Council, and

(6) the object of the suit is to enforce the private rights of the head or of the subjects of the foreign State.

may sue.

The Court shall take judicial notice of the fact that a foreign State has not been recognized by Her Majesty or by the Governor-General in Council.

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

Alien.--As to the right of an alien to enter British territory see Musgrove vs. Cheen, App. Cas., (1891), 272.

If the foreign State has been recognized, the recognition is concluisve of the right to Sue. A foreign State is limited to subjects stated, in the text, and cannot sue for anything else ; infringing its prerogative right does not constitute a cause of action- Emperor of Austria vs. Day, 2 Giff., 628.

Private Rights—This is, those private rights of a State that must be enforced through a Court of Justice as distinguished from its political rights-Hajon Manik vs. Bur Sing, I. L. R., 11 Cal., 17.

Practice-Foreign States can only obtain relief subject to the rules of the Court, and pursuant to its rules of practice, and one of the conditions is that, like an individual, it will give discovery. Where a foreign State is plaintiff, the defendant should apply to it to name some person from whom discovery may be sought, and if it refuses, the Court will be justified in dealing with the suit as if it were the case of an ordinary individual in which discovery had been refused-United States of America vs. Wagner, 2 Ch. App., 590 ; Republic of Peru vs. Weguelin, L. R., 20 Eq., 140. 432. Persons specially appointed by order of Govern

ment at the request of any Sovereign Prince Persons specially appointed by Govern- or ruling Chief, whether in subordinate ment to prosecute or alliance with the British Government or defend for Princes or Chiefs.

otherwise, and whether residing within or

without British India, or at the request of any person competent in the opinion of the Government to act on behalf of such Prince or Chief, to prosecute or defend any suit on his behalf, shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of such Prince or Chief.

An appointment under this section may be made for the purpose of a specified suit or of several specified suits, or for the purpose of all such suits as it may from time to time be necessary to prosecute or defend on behalf of the Prince or Chief.

A person appointed under this section may authorize or appoint persons to make and do appearances, applications and acts in any such suit or suits as if he were himself a party to the suit or suits.

Act VIII of 1859, section 17. The words from “ British India” to “to” and the last two paragraphs have been added by Act VII of 1888, section 37. This section applies to H. C. and P.S. C. C.

A political agent if not specially appointed cannot sue on behalf of a Prince-Ventkarav Madhavrav, I. L. R., 11 Bom., 53. See section 434A, infra. 433. (1) Any such Prince or Chief, and any

Ambassador Suits against Princes,

or Envoy of a Foreign State, may, with the Chiefs, Ambassadors consent of the Governor-General in Counand Envoys.

cil, certified by the signature of one of the

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