PYARI LAL AND CO Vs. E G ROOKE

JUDGEMENT

(1.) This was a suit brought by a Coal Company, called the Pyari Lal Coal Company, against the defendant, Mr. Rooke, who is the owner of another coal concern, in which it was set forth that the defendant had made application to the Magistrate, and obtained from him an order opening a certain road as a public thoroughfare, and praying that the order of the Magistrate be set aside, and that road be closed. The Munsiff gave judgment for the plaintiffs, except so far as they claimed that foot passengers should not be allowed to pass either way, which was disallowed, but it was declared that the road should be closed as a road for carts. Against this decision, which was affirmed by the Subordinate Judge of the district, the defendant has appealed specially. The ground of special appeal, which seems to us to arise in this case, which has not been taken in the petition of special appeal, bat which we have allowed to be taken as it affected the jurisdiction of the Courts, and was one which in our judgment ought not to be allowed to pass over, is, that the order made by the Civil Court in this case is one which it was not competent to make. I think the order made is clearly beyond the competency of the Civil Court. The defendant, it seems, has obtained an order from the Magistrate, which was I presume, under the 308th section of the Code of Criminal Procedure, declaring the road in question to be a public thoroughfare, and ordering it to be kept open. It seems to me quite clear that the Civil Court has no jurisdiction to call directly in question, the propriety of such an order. The plaintiff may have civil right, which he may possibly be enabled to enforce in other ways, but it seems to me quite clear, that a Civil Court is not competent to declare a road, which has been opened by the order of the Magistrate, to be no public thoroughfare, and to direct that it be closed by the assistance of the officers of the Court.

(2.) I think, therefore, that the decision of the Court below must be set aside and the plaintiff's suit dismissed with costs of the Court below; but it has been suggested that the ground on which our decision is based, has not been taken in the Court below, while if it had been taken there, special appeal might not have been called for : and the appellant has not pressed for the costs of the special appeal, we therefore make no order for the costs of the special appeal.