KHITISH CHNADRA ACHARYA CHOWDHURY Vs. OSMOND BEEBY

JUDGEMENT

(1.) The suit out of which this appeal arises is one brought against Mr. Osmond Beeby, at one time the administrator pendente lite of the estate of one Dakhina Mohan Roy. The purpose of the suit is to recover from him five sums mentioned in the plaint with interest, on the ground that they have been wrongfully retained by him and that the retainer is wrongful inasmuch as it is, according to the plaintiff, in excess of the remuneration to which he was entitled under the order ap-pointing him administrator pendente lite.

(2.) The facts on which the plaintiffs base their claim are set out clearly and minutely in the plaint. A written statement has been filed which puts in issue these facts and suggests a complexion of the case that would, (it is contended), if established, constitute an answer to this claim. Now, it so happens that the defendant, who was practising here as an Advocate at the time that he was appointed administrator pendente lite, has since retired from India and now lives in England. In view of this fact, the Attorneys on both sides seem to have come to an agreement, a very proper agreement in view of the circumstances of the case, that the opinion of the Court should be sought, as to whether the plaint was one on which a decree could be passed in favour of the plaintiff, having regard to the circumstances either there set out or there indicated.

(3.) The case was accordingly put down, as it is termed in this Court, for settlement of issues, but there was no such agreement as is contemplated in Order XIX, Rule 6, and it is, therefore, difficult to see how the case, as it came before the Court, could be dealt with otherwise than on the lines that there should be a consideration and determination as to whether the plaint disclosed a cause of action. It was suggested to us by Mr. Knight, who pressed the case of his client, the defendant, with some insistence, that there was a wider investigation open to the Court, but I must confess my inability to follow it, because in the absence of such an agreement as indicated in Rule 6, I do not see how the Court can properly deal with a matter of this kind except on the allegations in the plaint. This is the view apparently that commended itself to the learned Counsel, a very experienced Counsel, who appeared for Mr. Beeby in the Court of first instance, for I find from the Court notes of the proceedings, that Mr. Mitter "on this proceeding raises the issue whether the plaint discloses any cause of action. If that fails, the other issues may be tried on the trial of the case on facts." Then Mr. Mitter submitted that the plaint disclosed no cause of action. That I, think, is the only legitimate matter for our consideration on the present application. The learned Judge, Mr. Justice Haringhon, decided adversely to the plaintiffs and it is from that judgment that the present appeal has b9en preferred.