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TMI Blog1940 (11) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 137 arises out of Suit No. 215 of 1938 in the Court of the Munsif of Begusarai. 3. The facts are that during the pendency of a dacoity case one of the prosecution witnesses by name Sitaram Sahu on 27th November 1935, presented an affidavit in the Court of Rai Bahadur Pashupati, S.D.O., to the effect that the plaintiff had instigated this witness not to identify correctly before the Court some accused persons whom he had identified at a test identification. After the conclusion of the sessions trial, a complaint was presented to the District Magistrate by Rai Bahadur Pashupati Ghosh, S.D.O., Begusarai, against the plaintiff charging him with offence punishable under Section 193 read with Section 116, Penal Code, in relation to the proceedings in the dacoity case. The plaintiff was put on his trial and acquitted. In the trial of the plaintiff Babu Ramprit Pandey, an Inspector of Police, was a witness and so was Babu Bhubaneshwar Prasad, Sub-Inspector. 4. The plaintiff instituted the present suit impleading Eai Bahadur Pashupati Ghosh as defendant l, Babu Ramprit Pandey as defendant 2 and Babu Bhubaneshwar Prasad as defendant 6 along with three other defendants, persons not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on said to have been started as a result of a conspiracy among the defendants. Notices under Section 80, Civil P.C., were served, but the plea was urged that the plaintiff should also have obtained the consent of the Governor under Section 270(1), Government of India Act. The Munsif held that the section barred the suit as against defendant 4 Rai Bahadur Pashupati Ghosh, but that it could proceed against the other defendants. The application before us is against this order so far as it declines to allow the suit to proceed against defendant 4. 8. The learned Advocate-General has taken a preliminary objection that neither of these applications ought to succeed, because the petitioner has not availed himself of the more appropriate remedy that was open to him. He could have appealed to the District Judge from the decision of the Munsif as from a decree. 9. We are referred to the definition of decree in Section 2(2), Civil P.C. It means a formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, and it is deemed to include the reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had another remedy by way of appeal and has not availed himself of it. The preliminary objection therefore seems to be well founded and the applications are liable to be dismissed on this ground. As however both the cases have been fully argued I shall indicate the view I take on merits. 13. In the civil Revision No. 137, stress is laid on the allegation in the plaint that the defendants had conspired together to bring a false case against the plaintiff. This, it is said, could not be or purport to be an act done in execution of their duty and therefore the bar in Section 270(1), Government of India Act, has no application. 14. It is further argued that the maintainability of the suit must be decided on the allegations in the plaint alone and without reference to any matters of fact not contained in the plaint. The latter proposition is not to be accepted unreservedly as applying without qualification to every suit of this nature. If an act done by a public officer is apparently an official act, its character as such will not be changed by allegations that it was done in bad faith or that it had not that character which it purports to have. Applicability of the statute depend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff were acts done by these persons in the execution of their duty as servants of the Crown. It has been pointed out in Jogendra Nath Roy v. Price 24 Cal. 584 that an act may be one which on its very face could be nothing but an official act or it may be an act in respect of which the question would have to be determination the facts whether the defendant in committing the act was or was not acting in his official capacity. The giving of evidence by a public officer may be an act regarding which it is to be determined on the facts of the particular case whether it was or was not done in an official capacity. There may be cases in which a public officer giving evidence does so in the execution of his duty as such officer. 17. In the case of a Civil Surgeon who holds a post mortem examination and is examined as a witness to prove the post mortem report and the results of that examination, or in the case of an investigation Sub-Inspector who after investigation submits a charge sheet and is examined to prove the course of his investigation and the submission of the charge sheet, it can very well be argued that the giving of such evidence is an act done in the discharge of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes that the rejection of a plaint will amount to a decree. The order rejecting the plaint, therefore, is appealable and if the order passed by the Munsif in the present case is taken to amount to rejection of the plaint as against the parties represented by the Advocate-General, that order must be held to be a decree and was as such appealable. 22. It is, however, contended that the order of the Munsif was not passed under Order 7, Rule 11, because that provision contemplates the rejection of the plaint as a whole and not the rejection of the plaint in part or against some of the defendants. The learned Advocate General does not concede that this is so. But assuming that the contention is correct, we have still to enquire whether the order passed by the Munsif was appealable or not under the Civil Procedure Code.' In my opinion, the order was appealable, because it is fully covered by the definition of the decree in Section 2 of the Code. The question which was raised before the Munsif was whether in law any suit could be instituted against the opposite party before us without obtaining the consent of the Governor as laid down in Section 270. The Munsif has held that such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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