SUDHANGSHU SEKHAR DEY Vs. HARICHARAN GHOSE

JUDGEMENT

(1.) In this suit the plaintiff Sudhangshu Sekhar Dey seeks to recover damages from the defendant Haricharan Ghose for his arrest on civil process on 27 July 1929 at 6 Lyon's Range in the office of the Burma Shell Oil Storage and Distributing Co. of India Ltd., where the plaintiff has for some years been employed as a clerk. A large part of the case is not disputed. In 1925 the plaintiff and his brother-in-law became tenants of a portion of premises No. 7 Jugipara by-lane in the suburbs of Calcutta of which the defendant is the owner. These tenants remained in that portion of the premises until January or February 1927 at a rent of Rs. 50 a month. It is admitted by the leading counsel for the plaintiff that he proved an extremely unsatisfactory, not to say dishonest, tenant, and never attempted to pay an anna on account of his rent unless compelled to do so by legal process. Indeed in January 1927 there were no less than three rent suits pending in the Court of Small Causes, Sealdah, against the plain tiff in respect of rent due for various-periods of his tenancy. On 13 January 1927, a comprehensive settlement was arrived at. The only terms of the settlement with which I am concerned are those with regard to two of the rent suits, namely Suits Nos. 1576 of 1926 and 2888 of the same year. Under the settlement the plaintiff consented to a decree in the defendant's favour for a sum of Rs. 174 payable in monthly in. stalment of Rs. 20 in Suit No. 1576 and another decree in the defendant's favour for Rs. 188-6 0 payable by monthly instalments of Rs. 16 in Suit No. 2888.

(2.) The plaintiff's case is that he has paid: one instalment of Rs. 20 and one instalment of Rs. 16 on account of sums due in respect of the decrees. The defendant does not admit that the payment of Rs. 16 was on account of the decree in respect of the decree in Suit No. 2888,, and alleges an oral arrangement whereby the sum was appropriated of the liabilities of the plaintiff on other accounts. The receipt granted by the defendant-however bears out the plaintiff's version in this respect although no satisfaction has been recorded in respect of the payment. It is common ground however that, except for this payment, the decree-in Suit No. 2888 had not been satisfied by payment on the date of arrest of which he complains. Both the decrees were transferred from the Small Cause-Court of Sealdah to the Small Cause Court of Calcutta for execution some time in the first half of the year 1929. The first important date in the case is 26 July 1929. On that date the defendant's pleader applied to the Calcutta. Small Cause Court for an order that a body warrant without notice should issue against the plaintiff and that he should be committed to jail. The grounds of the application are that the decree in Suit No. 2888 of 1926 is still unsatisfied, that the plaintiff is about to leave the jurisdiction of the Court and will leave the jurisdiction as soon as notice is served, and that the decree has been passed long ago and the defendant has paid nothing, and that the plaintiff will not be able to realize anything if the application be not granted. These grounds are not verified by the defendant, but by a man named Santi Pado Bhattacharjeo who describes himself as the defendant's gomasta and was undoubtedly acting with the defendant's full authority in the matter.

(3.) The application was dealt with by the Registrar of the Small Cause Court who admittedly had jurisdiction in the matter and who issued the body warrant asked for. The former Deputy Registrar, Mr. Kanai Lal Chatterjee, has given evidence as to the practice of the Small Cause Court in these matters and learned Counsel for the defendant has not sought to challenge his statement that the Small Cause Court like, most other Courts, is in the practice, when a warrant of arrest is applied for, of issuing the preliminary notice to show cause contemplated by Order 21, Rule 37, Civil P. C., and that it does not issue a warrant immediately except where special grounds are shown to exist. The plaintiff's case is that the Small Cause Court bailiff accompanied by Santi Pado Bhattacharjee came to the office of his employers on 27th June and forcibly arrested him in the circumstances which have lowered him in the eyes of his fellow clerks in the office and also in the eyes of the European officers of the company by which he was employed. In order to obtain his release he was compelled to draw money there and then from the cashier of the company and make over the sum of: Rs. 188-6-0 being the total amount for which the consent decree was originally made. The plaint states that the following statements in the application for the warrant were made maliciously and without reasonable and probable cause, namely, the statement that the plaintiff was about to leave the jurisdiction of the Court and would leave the jurisdiction as soon as notice was served and also the statement that the plaintiff had paid nothing and that the defendant would not be able to realize anything if the application was not granted.