PURNA CHANDRA MITRA Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This second appeal arises out of a suit which is of a novel character. The plaintiff who was for some time employed by Government as a Sub-Assistant Surgeon and who claims to be a private medical practitioner at Ranchi, was at the instance of a complainant of a criminal case summoned by the Sub-Divisional Officer of Khunti to appear before him on 23 September 1932. He appeared on that date and claimed Rs. 28 as travelling allowance and compensation for loss of professional income, Rs. 16 according to him being his compensation for loss of his professional fee and Rs. 12, the cost of hiring a taxi from Ranchi to Khunti and back. The learned Magistrate passed an order which runs thus: "Passed for second class fare". It appears that the complainant of that case Brindaban Manjhi (defendant 3 in the suit) filed a list of witnesses whom he wanted to be summoned. The learned Sub-Divisional Magistrate ordered that "respectable witnesses named in the list should be summoned only after expenses are deposited". Below this order there is a report of some ministerial officer which is to the effect that the lorry hire is Rs. 12-12-0 for first class and Rs. 6-6-0 for second class. On the margin of the list of witnesses opposite the names of some of them certain orders are written which are apparently in the handwriting of the Sub- Divisional Officer himself. "Second Class" is noted against the name of the plaintiff indicating that the complainant Brindaban Manjhi had to deposit second class fare for him. It is in evidence that in pursuance of this order Rs. 6-6-0 was deposited by the complainant on 15 September 1932. When the plaintiff asked for his compensation and travelling expenses the learned Magistrate simply ordered: "Passed for second class fare". That is to say, the plaintiff was allowed Rs. 6.6. The plaintiff did not draw the money and after giving notice under Section 80, Civil P. C, brought the present suit for recovery of Rs. 33 against (1) the Secretary of State, (2) the then Sub-Divisional Officer Mr. Hardman, and (3) Brindaban Manjhi, the complainant, at whose instance the plaintiff was summoned. The trial Court dismissed the suit on merits and further held that it was not maintainable. He has awarded to defendants 1 and 2 Rs. 100 as special damages to be paid by the plaintiff. The decree has been affirmed by the learned Judicial Commissioner of Chota Nagpur. He has not expressed any opinion about the maintainability of the suit, but has held that Rs. 6-6-0 which was ordered to be paid to the plaintiff was sufficient. The plaintiff has preferred this second appeal.

(2.) In my opinion the suit was not maintainable in the civil Court. It is entirely within the discretion of the Court which summons a witness to order how much; expenses should be allowed to him and which party should pay it. In criminal oases the Court may within certain limits order the Government to pay the expenses of the complainant and witnesses. If a Court has ordered a certain sum to be paid to a witness and if he is aggrieved by that order and thinks that he has not been sufficiently paid it is open to him to approach a higher tribunal for the redress; but I am clearly of opinion that he cannot appeal to the civil Court against the order nor can he sue the party or the Government for recovery of any additional amount, much less can he claim it from the presiding officer of the Court. The learned advocate of the plaintiff has relied on Kamal Mandalini v. Paramsukh Chakrabutty AIR 1926 Cal 289. In that case the Court had ordered a particular party to pay a certain amount to a particular witness. That party failed to do so and then a suit was instituted to compel him to pay the money which was due to the plaintiff in pursuance of an order of the Court. But here it is not a case for realization of the money ordered to be paid to the plaintiff by the Court. In my opinion the trial Court was right in holding that the suit was not maintainable in the civil Court because, this is in effect a suit for either compelling the Magistrate to pass an order of payment of costs against the Government under Section 544, Criminal P. C, or on the party to pay more than what he had ordered him to pay or is an appeal to the civil Court against the order of the Magistrate. In either case it is not maintainable.

(3.) This being my view I do not wish to enter into the merits of the case, that is to say, to express any opinion whether the amount allowed to the plaintiff for his attendance at Khunti on 23 September, 1932, was sufficient or otherwise, but I have no hesitation in saying that the plaintiff might have honestly felt that he was unfairly treated. It is not disputed that he hired a taxi for his journey from Ranchi to Khunti and back. The learned Munsif who tried the suit is not justified in saying that though the time for his attendance in Court was fixed at 10 a.m. he could have attended even by 10-30 as he ought to have known that the Court did not sit before 10-30 a.m. I think it is necessary that witnesses should try to be in attendance in the Court which summons them at the time specified in the summons and should not speculate that the time given is not correct. On the other hand, it may be said that it was open to the plaintiff to go to Khunti a day earlier or he ought to have made enquiries whether there was any bus other than that of United Motor Company available. Though the learned Magistrate allowed only second class bus fare the learned Judicial Commissioner has held that on analysis it includes Rs. 4-14.0 compensation of loss of professional income also. I am discussing these matters in order to decide whether or not I should interfere with the order of special damages which has been passed against the plaintiff by the trial Court and confirmed by the Court of appeal. This case cannot be said to be false and I am not prepared to hold that it was vexatious. It may be that the plaintiff attached too much importance to himself and thought that accepting only Rs. 6-6-0 was something beneath his dignity. He had certainly spent Rs. 16 on taxi hire. The suit was no doubt misconceived but does not call for special damages. The learned Government Pleader has contended that I have got no power to interfere as no second appeal lies in this case, the suit being of a nature which is cognizable by the Court of Small Causes. On the other hand, it is contended on behalf of the appellant that the suit comes within Clause (3), Schedule 1, Small Cause Courts Act. I do not, however, wish to give any decision on this point as I am of opinion that Section 35-A, Civil P. C, has no application and the order has been passed without jurisdiction and can be set aside in revision. The result is that the decree of the learned Munsif is modified only to this extent that the order of damages passed in favour of defendants 1 and 2 is set aside. The plaintiff's suit will be dismissed with costs to defendants throughout. Hearing fee of this Court will be one gold mohur.