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Madhab Chandra Dutta Vs. Jajnoo Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1928Cal231
AppellantMadhab Chandra Dutta
RespondentJajnoo Ram and ors.
Cases Referred and Goma Mahad v. Gokaldas Khimji
Excerpt:
- .....to the present case it will be necessary to find such as was found in that case, that the paddy passed into the custody of the court - a fact with regard to which there is absolutely no evidence and no attempt even appears to have been made on behalf of the petitioner to establish that it was really under the order of the court that the paddy was taken possession of or that the possession of ranjit keot could in any sense be construed as being the possession of the court. if the attachment that was made by the police was made in the exercise of those powers which the police have for the prevention of a breach of the peace, either with or without reference to a magistrate, the latter not acting in his judicial capacity, it stands to reason that the attachment cannot be said to.....
Judgment:

Mukerji, J.

1. This Rule has been issued to show cause why the decree passed by the Small Cause Court Judge of Barpeta, dated 31st March 1927, should not be set aside. The rule has been issued at the instance of the defendant in a suit. The plaintiff claimed damages from the defendant on the allegations that certain crops which had been grown by him were attached at the instance of the defendant and that subsequently the land was given back to the plaintiff, but that the crops which had been attached were damaged and, in consequence thereof, the plaintiff alleged, he was entitled to recover damages. The defence of the defendant, so far as it was necessary for the purpose of the argument that had been advanced on his behalf was that there was a petition filed by the defendant for proceedings being taken against the plaintiffs under Section 107, Criminal P.C., and that, while the said proceedings were either pending or under contemplation, the paddy standing on the land was attached by the police and kept in the custody of a third person named Ranjit Ram Keot and that the damage that had been caused to the paddy was caused during the time that it was in such custody. The defendant states in his petition to this Court that the said attachment was apparently made under the provisions of Section 146, Criminal P.C. It may be stated, however, that the materials on the record are wholly insufficient for the purpose of arriving at a definite conclusion as to the circumstances under which and the provisions of the law in consonance with which the said order of attachment was made. All that appears from the record is that the paddy was attached by the Police and kept in the custody of Ranjit Keot and that an order was passed by the criminal Court, on the 16th March 1926, which ran in these words:

This primarily is a matter for the civil Court to decide as to who should get the paddy. 14 the claim is decided here, it will not be final. Proceedings struck off.

2. The Munsif gave the plaintiff a decree for Rs. 54, that is to say, the price of 27 maunds of paddy calculated at the rate of Rs. 2 per maund.

3. The substantial contention that has been urged in support of the rule is to the effect that inasmuch as the paddy was not in the custody or possession of the defendant, but that the police had made it over to a third person named Ranjit Ram Keot, it should be taken that such attachment was made under some sort of order legally passed by a Court of competent jurisdiction as a presumption should always be made in favour of the validity of an act done by a public servant, and, if that view be taken, the petitioner cannot be held responsible for any damages that may have been caused to the paddy. In support of this contention reliance has been placed upon the decision in the case of Peruvian Guano Co. v. Dreyfus [1892] A.C. 166 and a passage in Mayne on Damages, 10th Edn. p. 394, where the principles laid down in that case have been discussed. Broadly stated, the principle laid down by the House of Lords in that case was that, where the possession of some property becomes the possession of the Court, a person, at whose instance the rightful owner may have been deprived of his possession in respect of property no longer remains liable for any damages that may be caused to it.

4. To apply that principle to the present case it will be necessary to find such as was found in that case, that the paddy passed into the custody of the Court - a fact with regard to which there is absolutely no evidence and no attempt even appears to have been made on behalf of the petitioner to establish that it was really under the order of the Court that the paddy was taken possession of or that the possession of Ranjit Keot could in any sense be construed as being the possession of the Court. If the attachment that was made by the police was made in the exercise of those powers which the police have for the prevention of a breach of the peace, either with or without reference to a Magistrate, the latter not acting in his judicial capacity, it stands to reason that the attachment cannot be said to have been made under an order passed by a Court of competent jurisdiction and the person in whose custody the property is kept can hardly be said is be in possession on behalf of the Court. If the attachment was made under as order of the Magistrate under Section 146, Criminal P.C., of which, how ever, there is no evidence, it may be said that the property was custodia legis and for certain purposes the possession of the Court will have to be treated as being the possession of the rightful owner for instance, as regards the question of limitation, such as was held in the case of Abinash Chandra v. Tarini Charan A.I.R. 1926 Cal. 782. So long, however, as the defendant is unable to establish that the Court was in possession it is obvious that he remains liable for all the damages that may have been caused to the property in respect of which he has wrongfully put the plaintiff out of possession. The principle was very well stated in the case of Smith v. L.& S.W. Ry. [1871] 6 C.P. 14 (20), where it was stated that in a case originating even in negligence:

the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not.

5. The principle applies with greater force to a case where it is not merely negligence but a wilful wrong that is committed. Such a person remains liable much more for the consequences, - at least for the natural consequences - of his wilful wrong. The facts that false allegations were made to the effect that the defendant himself was the owner of the paddy, having grown the same, and that upon the basis of such false allegations proceedings under Section 107, were sought to be instituted and that the plaintiff was kept out of possession of the paddy which really belonged to him, the paddy being taken by the police and made over to a third person for safe custody, these facts, taken together establish a case of wilful wrong as against the defendant and unless he is able to show that there are circumstances which would justify the Court in passing the order which would have the effect of enabling him to escape from the responsibility for the natural consequences of his act I think the plaintiff is entitled to recover damages from him. That an action of this description based on grounds such as appear in the present case is maintainable is apparent from the cases of Mudvirapa Kulkami v. Fakirapa Kenardi [1883] 7 Bom. 427 and Goma Mahad v. Gokaldas Khimji [1878] 3 Bom. 75, and other cases which need not be specifically mentioned. I any accordingly of opinion that there is no reason to interfere with the decree that has been passed in this case and that, therefore, the Rule should be discharged.

6. The rule is accordingly discharged with costs one gold mohur.


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