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The Secretary of State for India in Council Vs. Chaturbhuj Nanda and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal1019,48Ind.Cas.963
AppellantThe Secretary of State for India in Council
RespondentChaturbhuj Nanda and ors.
Excerpt:
civil procedure code (act v of 1908), order i, rule 10 - appeal--misjoinder of parties--procedure, proper. - .....by the defendant, the secretary of state for india in council, against the decision of the learned district judge of midnapur, dated the 23rd may 1916. in form, the decision of the learned district judge affirms the decision of the subordinate judge; but, in substance, it does not. the suit was brought by the plaintiff under the provisions of section 104h of the bengal tenancy act. the first defendant was the secretary of state for india in council. before the subordinate judge, 'the plaintiff was successful and, in that court, the learned judge directed the secretary of state to pay the costs of the plaintiff. the secretary of state then preferred an appeal to the court of the district judge and the learned district judge, having properly directed himself to the law, as is.....
Judgment:

1. This is an appeal preferred by the defendant, the Secretary of State for India in Council, against the decision of the learned District Judge of Midnapur, dated the 23rd May 1916. In form, the decision of the learned District Judge affirms the decision of the Subordinate Judge; but, in substance, it does not. The suit was brought by the plaintiff under the provisions of Section 104H of the Bengal Tenancy Act. The first defendant was the Secretary of State for India in Council. Before the Subordinate Judge, 'the plaintiff was successful and, in that Court, the learned Judge directed the Secretary of State to pay the costs of the plaintiff. The Secretary of State then preferred an appeal to the Court of the District Judge and the learned District Judge, having properly directed himself to the law, as is admitted on both sides, held that the Secretary of State for India in Council was not a necessary party to the suit and ought not to have been joined as a defendant. Thereupon, the learned District Judge said that he would strike off from the record the name of the Secretary of State for India in Council as a defendant to the suit and, as a necessary consequence of that, he dismissed the appeal of the Secretary of State making no order as to costs. That obviously is wrong. The proper order the learned Judge ought to have made is this. The learned District Judge should have set aside the order of the primary Court in so far as it decreed the plaintiff's suit against the first defendant and, in lieu thereof, he ought to have directed that the suit as against the first defendant should stand dismissed with costs both in the primary Court and before himself. That is the order which we must make, with this addition that the appellant must have his costs in this Court also. The decree as against the other defendants will stand.


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