SAMARENDRA CHANDRA DEB Vs. BIRENDRA KISHORE

JUDGEMENT

(1.) IN this case the order for final admission has been made by this Court but the transcript of the record has not yet been sent to England. The respondent has now applied that the appeal may be directed to be taken off the file or in the alternative that the petition may be transmitted to their Lordships of the Judicial Committee for disposal. The circumstances under which this application has been made may be shortly stated. The plaintiff who is the appellant before the Judicial Committee sued the defendant who was then the duly appointed Jubaraj of the Gadi of Hill Tipperah for declaration that he himself by virtue of his previous appointment as Rom Thakur was entitled to the succession after the demise of the then Raja and that the defendant had no right of succession thereto. One of the objections taken to the maintenance of the suit was, that it was not competent to the Municipal Courts of British INdia to entertain a suit of this character in which the validity of an act of State by a Sovereign Prince was called in question. The suit was dismissed by the Court of first instance and this decision was affirmed on appeal to this Court. The plaintiff then obtained leave to appeal to His Majesty in Council. During the pendency of this appeal, the father of the defendant the Maharaja of Hill Tipperah died on the 12 March 1909 and on the 3 June following, the Government, of INdia recognised and sanctioned the succession of the defendant to the Raj of Hill Tipperah and rejected the memorial of the plaintiff for recognition as Raja. The defendant now contends that by virtue of the recognition of the Government of INdia he has become a Sovereign Prince and that the appeal can no longer be prosecuted against him. On behalf of the appellant, it has been contended that this Court has no jurisdiction to entertain this application. IN view of the decision of this Court in Jadunundan Koer V/s. Ham Jibanlal 10 C.L.J. 331; 4 INd. Cas. 454 it is clear that it is Competent to this Court to deal with this application. The sole question is what order should be passed thereupon. The question raised is one of considerable importance and if this Court directed the appeal to be taken off the file, it would be open to the appellant to apply for leave to appeal to His Majesty in Council against such order. It is, therefore, more convenient that the application should be considered by the Judicial Committee. The order will be that the application be transmitted to the Judicial Committee with a report that the facts stated therein appear to this Court to be well founded.