K A MAHAMMAD SHERIFF SAHIB Vs. HUSSAIN GHOUSE

JUDGEMENT

(1.) This appeal raises the question how a surety bond given by a third party for the appearance of the defendant, is affected by the return of the plaint for presentation in cause suit and applied for the arrest of the defendant before judgment. The respondent gave a bond in order to secure the release of the defendant. The essential terms of this bond are that the respondent undertakes that the defendant will appear at every hearing till the case is finished, that if there is a decree in this case against the defendant the respondent undertakes that the defendant will appear whenever required until the decree is settled, that if he fails to appear the respondent will produce him under the orders of the Court and that if he fails to produce him, he will be liable for any decree which may be passed. Both the Courts below have agreed that no special significance is to be attached to the use of the word in the bond and that it does not mean anything more than "case" and has no reference to the precise number given to the case. That view of the local use of the word number in Tamil with reference to a litigation is undoubtedly correct.

(2.) The Court trying the small cause suit held that it had no jurisdiction and returned the plaint for presentation as an original suit. The plaint was accordingly re-presented on the original side of the same Court and the trial proceeded without any fresh bond being taken from the surety. The only question is whether this bond given by the respondent to guarantee the appearance of the defendant in the case can be taken to cover the subsequent original suit into which the small cause suit became transmuted.

(3.) There is no direct authority. Cases have been quoted in which it has been held that when a suit is dismissed and restored to file by the Court which dismissed it or when a suit is dismissed and restored by the appellate Court, the bond of a surety for the satisfaction of the decree enures to the benefit of the plaintiff in the restored suit - Veeraswami V/s. Ramanna (1934) 68 M.L.J. 444 : I.L.R. 58 Mad. 721 (F.B.) and Irangauda V/s. Irbasappa, (1926) I.L.R. 51 Bom. 31. In both these cases it is apparent that the restored suit is a continuation of the original proceedings and that when a party gives a bond for the performance of any obligation which may result from a pending suit, he will normally be taken to contemplate the possibility of that suit undergoing various vicissitudes in the Court in which it has been filed and the Court to which an appeal lies. The position is to my mind, quite different when a third party gives a bond guaranteeing the appearance of a defendant in a particular action and in proceedings in execution of the decree in that action and the action is terminated by a rinding that the Court has no jurisdiction with a direction to the plaintiff to seek his remedy in another Court having jurisdiction. The return of the plaint terminates the litigation and the re- presentation of the plaint in a different Court in effect starts a fresh litigation on the same cause of action. It cannot be taken as in the contemplation of the surety when he guarantees the appearance of the defendant in a particular case that the bond will also cover the appearance of the defendant in another case in a different Court though on the same cause of action; and I do not think it makes any difference that the plaint is re-presented on the original side of the same Court in which it was first of all filed as a small cause. There has been a change in the proceedings in which the defendant is required to appear. The change in the present case is a change from the more or less summary proceedings of a small cause into an action under the ordinary procedure with all the elaborations which that procedure entails. On the principle of Section 133 of the Contract Act, this change, to my mind, discharges the surety. In this view, I dismiss the appeal with costs.