KEDAR NATH SANYAL Vs. S K GHOSE

JUDGEMENT

(1.) In this Rule, we are invited by the Plaintiff to set aside an order of the District Judge of Andaman and Nicobar Islands by which he has dismissed the Plaintiff's suit on the ground that the facts alleged in the plaint constitute a criminal offence and as such the civil court has no jurisdiction to proceed with the trial of the suit. The Plaintiff Petitioner filed a suit for the recovery of 61 Mauds 75 pounds of SNA-shells lying in the custody of the Superintendent of Police, Port Blair, and the value of those goods was stated to be Rs. 4,204. The facts alleged by the Plaintiff in his plaint are these:

(2.) That on Aug. 18, 1954, the Plaintiff sent a consignment of 61 Maunds 75 pounds of sea-shells from Mayabandar Port in North Andamans to Port Blair in South Andamans by M.V. Mahavir, the freight to be paid either at the time of loading or at destination. M. V. Mahavir arrived at Port Blair on Aug. 19, 1954 and the Plaintiff sent his agent, Krishna Swami, to the Marine Jetty to get delivery of the shells on payment of freight but he found that the shells were covered by a ticket in the name of the Defendant No. 1, S.K. Ghose. The Plaintiff alleged that the ticket in the name of S. K. Ghose was fraudulently obtained in collusion with the Serang of the boat and with the help of opposite party No. 2, Tha Sang, who purported to be the consignor and who had been in the employment of the Plaintiff till July 1954, when he was dismissed. When the Plaintiff discovered the fraud, he reported it to the Engineer and Harbour Master of Port Blair and at the instance of the Harbour Master, the Superintendent of Police, Port Blair, took the consignment of sea-shells in his custody. Upon these allegations, the Plaintiff made a prayer for a declaration that he had title to the sea-shells which were lying in the custody of the police. The Plaintiff also made a further prayer for restraining the Defendants from taking delivery of the sea-shells from police custody. The Defendants filed a written statement contesting the claim of the Plaintiff on the merits.

(3.) At the trial, the learned District Judge of Andaman and Nicobar Islands, without trying the suit on merits, came to the following finding: