IZZAT ALI Vs. MUHAMMAD SHARAPAT-ULLAH KHAN

JUDGEMENT

(1.) THIS is an appeal against an order of the District Judge of Budaun dismissing a certain suit. The order as it stands is based upon a finding that the plaint discloses no cause of action; but it is possible that the District Judge may have understood himself to be acting under Clause (a) of Rule 11 of Order VII of the Code of Civil Procedure. His order does in fact seem to turn upon a finding that it is clear from the statement of facts given in the plaint itself that the suit is one the cognizance of which is forbidden by the provisions of the Judicial Officers Protection Act, No. XVIII of 1850. It is impossible for us to uphold the order of the court below on the grounds on which it proceeds. In paragraph 11 of the plaint the cause of action is stated to be that the defendant took the plaintiff into custody, and secondly, that the defendant brought a false charge against the plaintiff, knowing the said charge to be false. The latter of these two allegations discloses on the face of it a cause of action with which the Act for the protection of Judicial Officers has nothing to do. As regards the allegation that the defendant took the plaintiff into custody, it may prove upon investigation that the plaintiff was arrested upon a warrant issued by the defendant, who is admittedly a Magistrate, under such circumstances that the provisions of Act XVIII of 1850, already referred to, would bar the cognizance of any suit against this defendant based upon his action in causing the plaintiff to be arrested. THIS may be so, or may not be so; but it certainly is not apparent from the statement in the plaint itself that the suit in question is barred by the provisions of Act XVIII of 1850. We must set aside the order and decree of the court below, and, as that decree has been based on a preliminary point, we make an order of remand under the provisions of Order XLI, Rule 23, of the Code of Civil Procedure, directing the court below to re-admit the suit on to its file of pending cases and to proceed to dispose of it according to law. Obviously issues should be framed, and if, in the opinion of the Judge, there Is any preliminary issue which requires to be disposed of first, it is open to him to proceed with the trial in that way. Costs of this appeal will abide the result. Walsh, J.

(2.) I entirely agree. It Is quite clear that the learned Judge interposed too soon. There are at least two ways of disposing of a case, upon a preliminary point. A plaint can no doubt he struck out and a suit dismissed on the ground that the plaint discloses no cause of action. But to entitle a court to do that, the court must look at the plaint and at nothing else, And if on reading the plaint it is clear that, if the allegations are proved in accordance with the plaint, there is any sort of cause of action, however trivial, frivolous and doubtful it may be, it is the duty of the court to hear the evidence and decide it on the merits. Another method is where a cause of action is shown on the plaint and it is open to a court to take such evidence and only such evidence as may be necessary to show that there is a complete answer in law to the plaintiffs suit. But that is a decision on the merits. The defence under the Judicial Officers Protection Act is just as much a defence on the merits as any other defence, such as limitation or payment or any other matter in the case of a money claim. The law for good reason has provided certain protection such as limitation by effluxion of time in cases of money debts and such matters, and in the case of Judicial Officers, statutory provisions that they should not be subjected to malicious and trumpery persecution in the form of suits for what they do in the discharge of their duty on the Bench. But if the plaint does disclose a case which, if proved, constitutes a cause of action in the eyes of the law, the Judge must take such evidence as is necessary to bring the case within the protection of the Act, because, after all, that is a matter of defence and not a matter which arises on the plaintiff s plaint. This may be a mere storm in a tea- cup, and it seems a great misfortune that the Judge under the circumstances jumped as quickly as he did. It may, on the other hand, be that the plaintiff has some real grievance. In either view, the sooner the facts are heard in evidence and established and the law applied to them, the better for every body concerned. I would merely suggest by way of addition that where it is clear upon his own statement of facts that the plaintiff has no remedy-in order to save waste of time in going in detail through evidence which can only have one result, there is an admirable method provided by the Code and, in my opinion, intended to be followed by the court, namely, - to require the plaintiff or his legal representative, after issues are framed, to make an opening statement of his case and of the materials with which he proposes to support it. The court and the defendant then know what the facts are with which they are to be asked to deal, and what the legal considerations applicable to those facts are. And in a case of this kind where the plaintiff s pleader opens the case and states the facts that he is in a position to prove, and upon his own opening statement it appears that, even if he proves every single matter opened by him and it remains uncontradicted, none the less there would be an absolute answer in law to the action, it; is open to the Judge to assume in the plaintiff s favour that every fact opened is proved and upon the merits to dismiss the suit. I do not suggest that that is always a good method, because there is sometimes a difference between the opening statement and the evidence as proved. But at any rate it seems to me that the defence really and substantially relied upon in this case is a defence which goes to the merits and can only be tested when the facts relied upon by the plaintiff are known. At present nobody knows what they are.