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HossaIn Ali Mirza Vs. Abid Ali Mirza and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1894)ILR21Cal177
AppellantHossaIn Ali Mirza
RespondentAbid Ali Mirza and ors.
Excerpt:
secuirty for costs - civil procedure code (actxiv of 1882), section 380--cantonment of secunderabad. - .....have pledged themselves to the statement in their affidavit that the plaintiff is residing out of british india and 'does not possess any immoveable property within british india independent of the property claimed in this suit.' the plaintiff, who claims to be a british subject, in his affidavit in answer says, that ten years ago he removed from the city of hyderabad to the british cantonment of secunderabad and became a permanent resident of such cantonment, and he adds that the british cantonment of secunderbad is within british india. he does not say that he has any other residence in british india, or that he possesses immoveable property within british india independent of the property claimed in this suit. therefore, the only question i have to determine is whether or not he is a.....
Judgment:

Sale, J.

1. This was an application made by some of the defendants under Section 380 of the Code, for an order that the plaintiff do furnish security for all costs incurred and likely to be incurred by the defendants in this suit. The applicants have referred to the title of the suit in which the plaintiff is described 'as residing at Hyderabad', and to an application which was made by the plaintiff in connection with a suit between the present defendants in which he is described as 'residing at Hyderabad, Deccan, in the dominions of His Highness the Nizam of Hyderabad', and they have pledged themselves to the statement in their affidavit that the plaintiff is residing out of British India and 'does not possess any immoveable property within British India independent of the property claimed in this suit.' The plaintiff, who claims to be a British subject, in his affidavit in answer says, that ten years ago he removed from the City of Hyderabad to the British Cantonment of Secunderabad and became a permanent resident of such Cantonment, and he adds that the British Cantonment of Secunderbad is within British India. He does not say that he has any other residence in British India, or that he possesses immoveable property within British India independent of the property claimed in this suit. Therefore, the only question I have to determine is whether or not he is a person residing within British India. This depends upon whether or not the Cantonment of Secunderabad forms part of British India.

2. Article 4 of the Hyderabad Treaty No. 42 of 1798, which is referred to in Aitchison's Treaties, Volume V, page 174, provides that a place within the territories of the Hyderabad State shall be fixed upon as a Cantonment for the British Government. Secunderabad was the place fixed upon under that treaty and it became a British Cantonment, but it does not necessarily follow that it also became British territory. In order to obtain information as to the circumstances under which it came into existence as a British Cantonment, and the real character of its connection with the British Government, the Registrar at my request wrote to the Foreign Office. The reply, that it is still the property of the Nizam and it is not considered to be within British India, was communicated to the parties. So far as appears, there never has been any actual cession of territory by the Hyderabad State for the purposes of a Cantonment. This fact distinguishes this case from that relating to the Wadhwan Cantonment I.L.R. 9 Bom. 244. It appears from Macpherson's List of British Enactments in force in Native States, that the British Government exercises in the Cantonments of Secunderabad powers similar to those which it exercises in British India; but it also appears from a notification, No. 45911., dated 21st November 1888, referred to at page 195 of Macpherson's List of British Enactments in force in Natives States, that the powers exercised in the Secunderabad Cantonment have been exercised under Sections 4 and 5 of Act XXI of 1879, being the Foreign Jurisdiction and Extradition Act, which sections regulate the exercise of any power or jurisdiction which the Governor-General in Council has within any country or place beyond the limits of British India. There is, so far as I am aware, nothing to show that territorially the Secunderabad Cantonment has ever ceased to be part of the Hyderabad State, or that it has ever become vested in Her Majesty within the meaning of the General Clauses Act, I of 1868. That being so, I must, for the purposes of Section 380, regard the British Cantonment of Secunderabad as being a place out of British India. As the result, an order will be made in terms of Section 380 requiring the plaintiff to furnish security to the satisfaction of the Registrar. The costs of the application will follow the result.


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