Macpherson and Ameer Ali, JJ.
1. The question raised in this appeal is whether the suit could be instituted (sic) notice, or rather before the expiry of the period of notice, prescribed by Section 424 of the Code of Civil Procedure. The case as set out in the plaint, is that the defendant who was the District Magistrate of Rajshahye committed the plaintiff to the Sessions on charges under Sections 386 and 109 of the Indian Penal Code, and that the plaintiff was, under an order of the Magistrate, enlarged on bail. The trial at the Sessions Court did not take place on the date fixed, but was postponed on the application of the plaintiff. Subsequent to the postponement, the plaintiff says that, while he was in Calcutta, the defendant caused him to be arrested under a warrant and had him taken to Rajshahye where he was again enlarged on furnishing fresh security. He charges that this act was illegal and malicious. Then the plaint proceeds to state that, subsequent to the commitment of the plaintiff, the defendant, together with others, trespassed into the plaintiff's house at Nattore without his knowledge and consent and against the protest of his servants. On account of these two illegal acts, the plaintiff prays that a sum of Rs. 25,000 may be awarded to him as damages. It is set out in the plaint that, although no notice was necessary under Section 424, a notice had been given.
2. The defendant admitted that a notice was given, but contended that the suit was not maintainable, as it bad been brought before the expiry of the prescribed period, and there is no doubt that this was so. The subordinate Judge has thrown out the case on that ground, and the plaintiff now appeal contending that, under the circumstances stated in the plaint, a notice was not necessary, and that even if it was, the Subordinate Judge had no authority to dismiss the suit, Section 424 being merely one of procedure. We think there cannot be the slightest doubt that, under the circumstances stated in the plaint, the first act of which the plaintiff complains, viz., his arrest under the warrant, was an act purporting to have been done by the defendant in his official capacity. The defendant was admittedly the Magistrate of the District. In that capacity he had committed the plaintiff to trial, and in that capacity he thought it necessary to have the plaintiff arrested in order that fresh security might be given. We are not concerned with the question whether that was a legal or an illegal act, suffice it to say that it is an act, which, in our opinion, is clearly of the kind contemplated by Section 424. The learned pleader for the appellant contends that as the act is said to have been done maliciously, Section 424 does not apply, and that that section only applies to acts done inadvertently, and as authority he cites the case of Shahunshah Begum v. Fergusson I.L.R. 7 Cal. 499. There certainly are some remarks of Mr. Justice Cunningham which would lend support to this contention, but that was a case of a very different description from this, and we think the remarks made must be taken in connection with the facts of that particular case, and not as of general application. There the Official Trustee was sued by the plaintiff who claimed a certain interest in a trust property which she had failed to get, and in the suit brought by the plaintiff against the Official Trustee, it was held that no notice was necessary. This is a case of a wholly different character, and 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.
3. Then it is said that the Subordinate Judge had no authority to dismiss the suit. But if the law says that 'no suit shall be instituted,' we fa(sic) see how it is to be tried or what other course than dismissing the suit (sic) have been adopted.
4. Then as regards the second act in respect of which damages are claimed viz., trespass into the plaintiff's house, it may be a question whether, on the allegations in the plaint, that act was one done by the Magistrate in his official capacity. But we think it is unnecessary to go into that question. Assuming that as regards it, a notice was not necessary, the suit was not one which in respect of the first act charged could be instituted. The two acts are mixed up together in the plaint, and one lump sum is charged as damages for both. It may be that we could allow the plaint to be amended by striking out of it the cause of action and damages claimed in respect of the arrest so as to convert the suit into one for damages with reference to the trespass only. Even in that case the question would have to be tried whether the defendant in committing the act of alleged trespass was or was not acting in his official capacity, and evidence on that point would have to be taken. We do not think that this is a case in which we ought now to allow the plaint to be amended. The plaintiff persisted throughout that the suit, as frames was maintainable, and permission to amend the plaint was never asked for in the lower Court. We therefore dismiss the appeal with costs.