REHMANBUX Vs. DHALOO MAL

JUDGEMENT

(1.) THIS is a revision application by one Rahim Bux, who has since died, against an appellate order of the District Judge, Jodhpur, granting com-pensation to Dhaloo mal respondent under Section 95 C. P. C.

(2.) RAHIM Bux instituted a suit for the recovery of appears of rent and for ejectment against Dhaloo Mal in respect of a house situated at Jodhpur. On the date on which he instituted the suit he filed an application under Order 38 Rule 1 c. P. C. supported by an affidavit praying that a warrant of arrest be issued for the arrest of Dhaloo Mal. It was alleged in the application and the affidavit that Dhaloo mal was intending to leave the jurisdiction of the Court. The learned Civil Judge in whose Court the suit was instituted issued a warrant of arrest for Dhaloo Mal who was arrested and brought before him on the very day. He was released on furnishing security. He filed an application on 9-1-58 for the cancellation of the order of arrest and for the discharge of the surety. But the learned Civil Judge took no action on this application. Ultimately the suit was decreed on 24-5-58 against dhaloo Mal. On 31-5-58 he moved the present application under Section 95 C. P. C. for compensation on the ground that the arrest was applied for on insufficient ground. The learned Civil Judge found that the allegation made in the application and the affidavit that Dhaloo Mal was intending to leave the jurisdiction of the Court was false. But he did not award any compensation on the ground that on the application of Dhaloo Mal the order of arrest had not been cancelled and the surety had not been discharged. In doing so he followed a decision of the Allahabad High court in Gyan Prakash v. Kishori Lal, AIR 1942 All 261. That decision in turn relied on Arjun Biswas v. Abdul Biswas, AIR 1921 Cal 774; Rama Mudali v. Marappa goundan, AIR 1934 Mad 638 and some English decisions. The decision in AIR 1934 Mad 638 is also based on an English decision. The provision of Section 95 C. P. C. has not been referred to in it. AIR 1921 Cal 774 was the case of a suit for damages and not an application under Section 95 C. P. C. The English decisions relied on also arose out of actions for damages. It appears that no summary remedy similar to that provided under Section 95 C. P. C. was provided under the English law. As was pointed out in a subsequent decision of the Madras High Court in palanisami v. Kaliappa, AIR 1940 Mad 77 Section 95 C. P. C. alone governs the procedure in a summary application for compensa-tion for wrongful arrest or attachment and there is no justification for hedging this remedy round with restrictions which the section itself does not import.

(3.) I am accordingly of the view that the decision which the learned Civil Judge followed does not lay down the law correctly and this decision was rightly set aside by the learned District Judge on appeal.