BRAJENDRA KISHORE ROY CHOWDHURY Vs. MALUFFEMAN

JUDGEMENT

(1.) This is a suit by the same plaintiff as in the suit in which judgment has just been delivered L.O. Clarke V/s. Brajendra Kissore Roy Chaudhry 13 C.W.N. 458; 9 C.L.J. 298; 36 C. 433; 5 M.L.T. 367; 2 Ind. Cas. 436 and it seeks to recover damages against the defendant, who was District Superintendent of Police in the district of Mymensingh, for certain alleged unlawful acts done by him on the 27 and 28 of April 1907. As regards what was done on the 28 of April, it is conceded by the appellant that if the action against Mr. Clarke succeeded, this action as regards the events of that date must fail. The action against Mr. Clarke has succeeded, and we have, therefore, to deal with the incidents of the 27 April only.

(2.) The facts of this part of the case may be dealt with very briefly: It appears that at about nine o clock in the evening the defendant and Mr. Barneville, the Sub-Divisional Officer, heard a report of a fire arm, and a man told them that a man had been shot. They went in the direction from which the report of the shot had come and met a wounded man. The defendant says that he was then informed that the shot had been fired by one Prokash Dutt, and that he, accompanied by four or five young men, had run in the direction, of the plaintiff's cutchery. The defendant then says that he then proceeded to the cutchery with a view to arresting the men, and that, when approaching the cutchery, he met Inspector Kamini with a body of Police, who told him that the men had run into the cutchery. The plaintiff's case is that the defendant, while he was in the cutchery, assaulted one of the plaintiff's servants--one Bhow Nath Ojha-- and caused damage to the cutchery buildings. It may be taken that the defendant entered into the plaintiff's cutchery with a view to arresting these men, and his action was prima facie justifiable. I do not think that there is anything in the alleged damage to the corrugated-iron door of the plaintiff's naib's bed-room, or even if there were, that the defendant was to be held liable for it or for any damage done to the buildings by the Mahomedan mob who were not acting in any way under his directions: nor have these points been seriously pressed. The argument has really centered upon the point whether Bhow Nath Ojha was really assaulted by the order of the defendant. But if he were, I think that there would be a considerable difficulty in saying that the plaintiff could sustain the present suit, though Bhow Nath Ojha might have been able to do so. The plaintiff is really seeking to maintain this action on the footing of a trespass to the person of his servant, by reason of which he has been deprived of his services. His case is that this old man, Bhow Nath Ojha, was so badly beaten that he had to leave Jamalpur, and he was away for ten months, during which the plaintiff lost the benefit of his services. This case is not substantiated. From his own evidence it appears that this old man had left Jamalpur at about 3 or 4 o clock in the morning of the 28 and did not return for ten months. He made no complaint: he was not sent to the hospital. He first says that he was not hurt; then he says that "he was hurt but was not wounded, as no part, of his body was broken, and that he did not tell anyone that he had been beaten till he returned from his country ten months afterwards." There is nothing to show that this assault, if any, a most trumpery one,--was committed under the orders or directions of the defendant. 1 think, therefore, that the Court of first instance was perfectly right in dismissing the suit; and this appeal is dismissed with costs. Harington, J.

(3.) I agree with the judgment which has just been delivered and do not desire to make any observation upon it. Brett, J.