Arthur Strachey, C.J.
1. This is a suit in which the plaintiff claims to recover from the Secretary of State for India in Council certain articles, or, in the event of their having been sold, the sum of Rs. 10 as their value.
2. Now the allegations of the plaint, with reference to the cause of action against the Secretary of State, are as follows:--'On the 21st April 1894, Natthe was found guilty by Mr. O.G. Arthur, Magistrate, 1st class, in the case of Queen-Empress v. Natthe, under Section 417 of the Indian Penal Code, and was ordered to pay a fine of Rs. 200 to Government. In order to realize the aforesaid fine the following articles were seized through the police of Muttra, and the said articles were estimated by the police to be worth Rs. 10-5-0. The aforesaid articles belong to the plaintiff. He raised an objection before Munshi Narain Singh, who succeeded Mr. Arthur, that the aforesaid articles might be released. But the said officer rejected the said objection without taking any evidence on 16th June 1894. The cause of action accrued on 16th June, the day the objection was rejected, within the limits of the jurisdiction of this Court. Although the aforesaid convict is the son of the plaintiff, (sic) living separate from him for a long time. He had no right and (sic) in the seized articles detailed below. The plaintiff is therefore entitled to receive back the said articles, or if they have been sold by auction, Rs. 10 may be awarded, no matter for what price they were sold.' That is all the substantial part of the plaint.
3. The Court of First Instance decreed the claim. On appeal the Lower Appellate Court modified the first Court's decree. There was hence a Second Appeal by the appellant to this Court. The learned Judges who heard that appeal differed in opinion. Mr. Justice Blair was of opinion that the suit was not maintainable against the Secretary of State, and that the suit should be dismissed. Mr. Justice AIKMAN, on the other hand, was of opinion that the decree of the lower Court was right. Under Section 575 of the Code of Civil Procedure, the judgment of Mr. Justice AIKMAN prevailed, and this appeal against his decision has been brought by the defendant under the Letters Patent.
4. One of the grounds taken in the memorandum of the second appeal to this Court was that the plaintiff had shown no cause of action. That point was not raised in the defendant's written statement, but that written statement did not admit any cause of action by the plaintiff, and thereby put the plaintiff to the proof of his whole case. The learned Judges of this Court stated that in consideration of the importance of the point at issue they would allow the appellant to support his appeal by any argument which lay within the scope on his grounds of appeal. The whole of both judgments is substantially occupied with the discussion of the question whether the plaintiff' had shown any cause of action against the Secretary of State in Council. Considering that that question lay at the root of the whole suit, we think there can be no doubt that the learned Judges were right in allowing it to be raised and argued. The same ground of appeal is stated in the memorandum of appeal to us under the Letters Patent.
5. To our minds, however, the question whether any cause of action is shown presents itself in a somewhat different form from that in which it appeared to the learned Judges. What they discussed was rather the question whether any cause of action had been established in the sense of a liability in the Secretary of State in respect of such acts as the seizure and sale of the goods claimed by the plaintiff. But in our view there is a preliminary question, that is, whether, on the face of the plaint, any cause of action against the Secretary of State is even alleged by the plaintiff, We have come to the conclusion that the plaint discloses no such cause of action. What it discloses is that in order to realize a fine imposed upon a third person, certain goods belonging to the plaintiff were wrongfully seized by the police, and that, while these articles were in the custody of the Court, the Magistrate rejected an application by the plaintiff for their release. That is the whole of what the plaint describes as the cause of action. The plaint stops with the Magistrate's rejection of the application, and consequently with the retention of the articles in the hands of the Court. There-is nothing more No action by the Secretary of State or by any person for whom he could be deemed responsible is referred to or even hinted at. After stating these facts the plaintiff goes on to claim the articles, or, if they have been sold, Rs. 10 as their value, from the Secretary of State, who is not alleged ever to have been in possession of them, or to have any connection with them in any way whatever. In this state of the case it appears to us wholly unnecessary to consider any of the questions which were so elaborately discussed in the judgments on the appeal. Upon the short ground which I have mentioned, namely, that the plaint discloses no cause of action against the Secretary of State in Council, we are of opinion that (sic) must be allowed and the suit dismissed. As regards costs we order that, having regard to the fact that the plaintiff had no notice until a late stage of the case of the objection which is fatal to his suit, each party pay his own costs in each of the Courts.