1. This second appeal arises out of a suit against a Sub-Inspector of Police for damages for libel. The cause of action is thus stated in para. 2 of the plaint:
The defendant taking undue advantage of his post as a Thanedar, through avarice, malice and enmity without any reasonable and sufficient ground and in order to cause loss to the plaintiff made some wrong entries on different occasions, without the knowledge and information of the plaintiff, and eventually after secretly obtaining the permission of the higher authorities dishonestly misrepresenting facts, entered the name of the plaintiff in the register of badmashes.
2. The real name of the register thus described is a ' History Sheet'. These History Sheets are confidential documents of the police department, of which not even the persons regarding whom they are prepared are supposed to be aware.
3. The learned Judge of the Court below seems to have been in some doubt whether the suit was one for libel, or partly for libel and partly for some unnamed kind of tort, but in this Court at any rate the latter contention has not been put forward. The learned Subordinate Judge who tried the case came to the conclusion that the defendant was not responsible for the plaintiff's name being entered in the history sheet, that the plaintiff had, therefore, no cause of action and that in any case the suit was barred by limitation under Article 24 of the Limitation Act. He was also of opinion that whatever part the defendant had taken in reference to the plaintiff had been taken in good faith. He omitted and this is the only flaw in his otherwise excellent judgment to consider an issue which lay at the thresh hold of the proceedings and which had been raised before him, namely whether the suit must fail on the ground of want of proper notice as required by Section 80 of the Code of Civil Procedure. The case came in appeal before an Officiating District Judge who reversed the Subordinate Judge's findings on all points. The judgment of the learned Officiating District Judge is not a satisfactory one, and if this were a first appeal some of his findings might be difficult to accept even on the face of the judgment itself. As, however, this is a second appeal his findings of fact must be accepted unless it can be said that there was no evidence to support them or that they are based on some error of law. His principal findings are that it was the defendant who caused the history sheet to be opened, and that in doing so the defendant acted out of malice and from improper motives. The second finding is not open to attack in second appeal. The first finding can be, and has been, attacked on the ground that it is based largely on a misreading of the pleadings. The learned Judge was under the impression that the defendant admitted in his written statement that the history sheet was opened at his instance. The defendant had in fact denied that ha was in any way responsible for the entry. On the question of notice the learned Judge held that no notice was necessary because the defendant acted from improper motives, and on the question of limitation he held that Article 120 of the Limitation Act was applicable and that in any case so long as history sheet was in existence there was a continuing wrong which entitled the plaintiff to the benefit of Section 28 of that Act. The history sheet was not closed till 1919 which was within one year of the filing of the suit.
4. The first question which we have to decide is whether the defendant was entitled to notice of the suit under Section 80 of the Code of Civil Procedure. The plaintiff did in fact send a notice to the defendant, but it is admitted that he filed his suit without waiting for the expiration of the two months prescribed by the Section. If, therefore, notice was necessary the suit must fail and should have been dismissed. The contention urged on behalf of the respondent in this Court is that which was adopted by the Court below, namely that Section 80 has no application unless the act complained of was done in good faith. On the language of the Section the question seems to us to admit of no doubt. The Section does not require N that the act should have been done in good faith; it merely requires that it should purport to be done by the officer in his official capacity. If the act was one such as is ordinarily done by the officer in the course of his official duties, and he considered himself to be acting as a public officer and desired other persons to consider that he was so acting, the act clearly purports to be done in his official capacity within the ordinary meaning of the term 'purport'. The motives with which the act was done do not enter into the questions at all. Here the act complained of, namely causing of the plaintiff's name to be entered in the history sheet was an act which came within the scope of the ordinary functions of a police officer; indeed it was one which could only be done by an officer of police acting in that capacity; and there is no doubt that in reporting to his superiors with a view to the history sheet bang opaned he understood himself to be acting and would be understood by his superiors to be acting is the capacity of Sub-Inspector. We agree with the observation of the learned Chief Justice of the Calcutta High Court in Dalcshina Ranjan Ghose v. Omar Chand Oswal : AIR1924Cal145 that if the Courts would be satisfied to give effect to the natural meaning of the language used in the Sections of the Code a great deal of time would be saved.
5. This view of the Sections stated above was taken by the Calcutta High Court in the case just cited, and was taken by a Full Bench of the Madras High Court in Samanthale Koti Beddi v. Pothuri Subbiah 46 Ind. Cas. 86 : 41 M. 792 : 7 L.W. 586 : 84 M.L.J. 494 : 23 M.L.T. 357 : (1918) M.W.N. 414 (F.B.). It is suggested that the course of decisions in this Court is in favour of the opposite view, and reliance is specially placed on a decision of Mr. Justice Banerji in Muhammad Saddiq Ahmed v. Parma Lal 26 A. 220 : A.W. (1903) 241. That case certainly lends some support to the view put forward by the respondent. The case was one against a Sub-Inspector, and the acts alleged against him were that he wrongfully searched the plaintiff's house, kept him for some hours in confinement at the thana, and publicly used abusive language to him. The first two of these acts were acts which came within the ordinary scope of a Sub-Inspector's duties; the third was one which was entirely outside them. That case was distinguished in two later cases to both of which the same learned Judge was a party, Bakhtawar Mal v. Abdul Latif 29 A. 567 : A.W.N. (1907) 170 and Jugal Kishore v. Jugal Kishore 10 Ind. Cas. 1 : 88 A. 540 : 8 A.L.J. 509. It was argued before us that because Mahammad Saddiq Ahmad's case was distinguished in the two later cases, it must be considered to have been accepted as good law. This argument cannot be maintained either as a general proposition or with reference to these particular decisions. If a case is distinguished it is unnecessary to express any opinion as to its correctness, and it is notorious that cases are sometimes distinguished on very slender grounds to avoid the responsibility of appearing to overrule them. In the very case with which we are dealing we find that in the case in Bakhtawar Mil v. Abdul Latif 29 A. 567 : A.W.N. (1907) 170 Banerji, J. referred, with approval to a Calcutta case Jogendra Nath Roy Bahadur v. Price 24 C. 534 : 12 Ind. Dec. (N.S.) 1058 which is inconsistent with his own earlier dicision. In the Calcutta case the defendant was alleged to have acted maliciously and the main defence was that this dispensed with the necessity of notice. The learned Judges say
We are not aware of any instance certainly no such case has been cited to us in which it has been held that the Section does not apply to the case of a public officer charged with a tortious act done by him in his official capacity. The Section does not seem to us to warrant the drawing of any distinction between acts of this kind done inadvertently or otherwise.
6. The most important of the latter cases for our purpose is however that of Baahcha Singh v. Jafar Beg 30 Ind. Cas. 178 : 13 A.L.J. 788. It was suggested that the decision in it is consistent with the rule laid down in Muhammad Saddiq Ahmad's case but we have examined the paper book and we find that this was not the case. The suit was brought jointly against a Sub-Inspector and a private person, the allegation being that the Sub-Inspector at the instigation of the defendant and knowing full well that Bachcha Singh was innocent of the offence charged against him, had implicated him in a criminal trial in place of Bachcha Ahir the real accused. The case was actually decreed by the District Judge against the other defendant on the ground that he had acted maliciously and without reasonable and probable cause. It was dismissed against the Sub-Inspector solely on the question of want of notice, without determining whether the Sub-Inspector was actuated by malice or not. This decision was upheld by the High Court. The effect of the decision was therefore that the Sub-Inspector purported to act in his capacity of a public officer whether he was actuated by improper motives or not. It is unnecessary tor us to consider the English cases which have been cited on this question because those decisions all proceed upon enactments the language of which is different from that of the Section which we have to construe. It is further unnecessary to deal with other issues, though we think that the case would have failed on the ground of limitation if not on other grounds also. We are in complete agreement with the view laid down by the Full Bench of the Madras High Court in Samanthala Koti Beddi v. Pothuri Subbiah 29 A. 567 : A.W.N. (1907) 170 and we accordingly allow the appeal and dismiss the plaintiff's suit with costs in all Courts including in this Court, fees on the higher scale.