Sarkar-E-Aali Zaria Nazim vs Athar

Qamar Hasan, J.—This is an appeal on behalf of the Director of Endowments against the judgment and decree dated 27th Bahman 1357F., of the First Judge, City Civil Court, awarding the Respondent the possession of mulgi bearing Municipal No. 6545/6546 situate in Maharaj Gunj, Hyderabad, and mesne profits amounting to O. S. Rs. 960/- and future mesne profits at the rate of Rs. 10/- per mensem till the date of the recovery of possession.

The Respondent''s case, as set up in the plaint was that the muggy in disguise was mortgaged possessorily with one Zanuruddin in the year 1300F., on whose death the mortgagee''s right devolved on his brother Waziruddin. On the hitter''s death, in a suit brought for the distribution of his assets the indulge in question fell to the share of Mahbub Begum. Mahbub Begum in her turn sold it to the Respondent on 8th Tnir J.344F., by a registered sale-deed (page 13 of the printed copy).

One Mahbub Ali attached the muigi in execution of his decree in 1346- with the result that objection petitions were filed not only by the Respondent but also by one Bhikamdas. The objection filed by Bhikamdas was allowed and the Respondent withdrew the petition with, liberty to file a fresh petition as and when the occasion arose. Being fortified with the order passed on his objection petition, Bhikamdas applied for possession of the muigi but the Court of Darul Qaza in view of the fact that the Respondent was in its possession refused the petition and directed him to bring a suit for possession.

After the Respondent purchased the disputed muigi in 1342F. proceedings were started as to the endowed nature of the disputed muigi in 1343F., and the n Director of the Endowments ordered it to be registered as such in the Register for Endowments on 18th Meher 1345F., and thereafter by removing the Respondent''s lock forcibly took possession of it on 27th Khurdad 1347F. Before approaching the Court of law the Respondent moved the Endowment Authority for redress but without success.

Consequently, he brought the present suit for relief as stated above. The Appellant in reply denied or pleaded want of knowledge with respect to all the material allegations made in the plaint and liaised the plea that the proper party to the suit was the Government and not the Appellant and since the necessary requirement of Act 5 of 1320F. had not been complied with, the suit was not maintainable. There was a further plea that the allegations in the plaint were vague and not clear as to whether the suit was against the Government or against a Public Officer in his official capacity.

On these pleadings, the following issues were raised:

Whether the Plaintiff purchased the muigi in dispute on 8th Thir 1342F., from Mahbub Begum and whether she was competent to effect the sale?

Whether the Endowments Department broke open the lock and took possession of the muigi in dispute on 27th Khurdad 1347F.?

What is the effect in this suit of the order of the Court of Darul Qaza allowing die objection petition of Bhikamdas?

Whether the suit was within time?

Whether the suit was maintainable?

To what relief, if any, the Plaintiff is en-! titled?

In order to substantiate the issues of fact adjusted as above, the Plaintiff-Respondent adduced documentary evidence and examined five witnesses in-

cluding himself. The Appellant, despite several opportunities given by the Court below, did not produce any evidence in rebuttal. The trial Judge, alter a survey of the evidence adduced, found the above intentioned issues in favour of the Respondent and decreed the suit in die aforesaid terms.

The learned advocate for the Appellant did not contest the appeal on facts. His main and the only attack was directed against the frame of the suit. It was contended by him that according to the Respondent''s own showing in paras 5 and 12 of the plaint the alleged dispossession was not brought about by following the procedure laid down in Section 14 of the Dastur-ul-Amal Awhaf. Therefore the dispossession would be attributed to a tortuous act for which the responsibility would lie with the person, who actually committed the trespass, and not on his successor-in-office because the latter cannot be said to be his representative in any capacity.

Consequently, the suit ought to have been brought against die actual to treason or against die executive head of the then Government, which had a perpetual line of succession. It was furdier urged that Director of Endowments is neither a legal or natural person, therefore the suit ought to have been instituted in die name of natural person then holding office of the Directorate of the Endowments. In this connection, reliance was placed on Muhammad Ghousuddin v. Fariadoon Sohrab Chenoy, 39 Dec LR 49 (A); Dilawar Dad Khan v. Nazim Umur Mushabi, 40 Dec LR 415 (B); AIR 1927 176 (Privy Council); The Sheriff of Bombay Vs. Hakmaji Motaji and Co., ; Bhuban Mohini Debi and Another Vs. Biraj Mohan Ghosh, and Babu Rameshwar Prasad Singh and Others Vs. Md. Ayyub, .

Let me therefore address myself to the question whether Sarkar-e-Aali was a necessary party and the suit could exclusively be brought against that entity. No doubt, if Sarkar-e-Aali had any proprietary or pecuniary interest in the property and claimed to have such interest tiierein, he would be deemed to lie u necessary party. But, in the present suit, it is neither pleaded nor proved that Sarkar-e-Aali was interested in die subject-matter of the dispute as proprietor.

The Respondent had been dispossessed because in the opinion of the officer concerned the muigi in question was an endowed property and the Respondent could not be allowed to retain its possession cither as successor-in-interest of the mortgagee or as owner by virtue of purchase from Mahbub Begum. By no order of die Sarkar-e-Aali the Respondent was dispossessed. As the material on the record stands, the then incumbent of die Directorate of Endowments dispossessed the Respondent on to ground that he was not entitled to continue in possession after a - declaration as to the endwed nature of the muigi.

In diese circumstances, it is difficult to see how Sarkar-e-Aali can be said to be a necessary party to the suit. The Director of Endowments had no justifiable excuse to take law into his hand and dispossess the Respondent without having recourse to a Court of law... The act of predecessor-in-office of the Appellant was, indubitably a wrongful act and he was no more that trespasser. The Appellant, as successor-in-office seeks to justify the trespass, and is insistent upon reaping the fruits of trespass, so much so that in para 8 of the memorandum of appeal he claims to have acquired title by prescription and raised the plea of limitation.

A trespasser or his successor is bound to restore property wrongfully taken possession of. In other words, the property can be followed in the hands of any one who may be in wrongful possession of the same. In such cases, no question of personal liability of a public officer arises. It is for this reason that the authorities cited by the learned advocate for the Appellant, assuming that they are correctly decided, are distinguishable.

Apart from that, the question whether a Government servant is to be sued eonomine will have to be examined on the language of the Statute.

Section 439 of the Hyderabad CPC provided that

No suit shall be instituted against a Government servant in respect of any act purporting to be done by such Government servant in his official capacity,; until the expiration of two months next after notice in writing has been delivered to him or left at his office stating the cause of action, the name, description and place of residence of the .Plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been delivered or left.

In the first place it is to be observed that while the section requires the Plaintiff to state his name, it does "no: say that notice should be addressed to the Government servant not qua the Government servant but in his name given to him by his parents. If the contention advanced on behalf of the Appellant is, accepted as correct, it would mean that the expression ''Govt. servant'' as used in the section is more than a designate personae and not the person himself.

2, The, Legislature of the State of Hyderabad has not deemed it necessary to define the expression as has been done by the Indian Legislature in the Indian CPC by defining the expression ''public officer'' as used in Section 80, CPC Code. The reason for that to my mind appears to be that the expression "Govt. servant" and the "act of the Govt. servant" has been compendiously defined in Section 3,017-A) and (17-B) of the Hyderabad General Clauses Act, In the former clause "Govt. servant" has been. defined as including a person who is in the service of the Sarkar (Govt.) and is remunerated by salary, fees or commission for the performance of any public duty or who performs that duty even without, receiving any remuneration. The expression "act of the Govt. servant" in the latter clause has been defined to mean an act which he does in his official capacity.

''In 36 Dec LR 625 (G), which has a reference under the Stamp Act it has been laid down that the definition of "Govt. servant" as given in Section 3 (17A) of the Hyderabad General Clauses Act would also include and cover "public officer''''. When the Legislature itself defines ''''Govt. servant" as including a person with certain qualification, I am not prepared to say that Govt. servant is not a person. If he is a person, as to which there can be no doubt now, he can be sued as such and it is not necessary, that he should be sued to nominee which is another capacity of the same person or individual.

It may be noted that neither the definition, of the expression "person" nor "Govt. servant'''' proposes to be exhaustive. They begin with the word ''include''. The expression ''includes'' is used in interpretation of clauses to enlarge the meaning of tire word in the body'' of the Statute and when it is so used, these words not only signify according to their natural import but also those things which the interpretation clause declares that they shall include.

I am at one with the learned Advocate for the Appellant that an Office or a Govt. Department is not a person because they do not fall within the ambit of the definition of that expression in Section 3(43) of the Hyderabad General Clauses Act. But I am not prepared to concede that the officer holding the office is not a person especially when he is defined to be a person in the General Clauses Act.

The interpretative view I am taking appears to be more reasonable. If any other view is taken, anomalies are bound to result. Supposing in the present suit, the Defendant was the actual person economies who dispossessed the Respondent, on the death of such a person or on his being placed on the retired list or for any other reason is succeeded by any other person in, office, the suit would automatically terminate since the successor would not: be legal representative of the original Defendant in any sense or if he is brought on the record, he would raise the plea that the suit be dismissed because no notice u/s 439 had been served upon him.

The legal representatives of the original Defendant sued economies could not be brought on the record because they have nothing to do with the property which a third person holds by virtue of his office. This would necessarily involve a succession of suits against every successors-in-office after complying with the requirements of notice. It can therefore be said that such an anomalous position was not within the contemplation of the Legislature when it enacted Section 439 of the Hyderabad Code or Section 80 of the Indian Code of the Civil Procedure.

In the result the appeal is dismissed. The Appellant is directed to put the Respondent in possession of the suit property along with manse profits due, within three months of the decree in this appeal. He will also pay the Costs of this appeal and of the Court below to the Respondent.

Kumarayya, J.

I have the advantage of going through the judgment of my learned brother. I have not an inkling of doubt that the Plaintiff has an effective cause of action and that his case on merits is strong. The counsel for the Appellant too did not stress on the merits but confined his arguments to the frame of the suit. His contention is that a suit would lie either against the State (Sirkar Aali) or against the public officer in his personal name but not against the office which he had held at the time of the act complained of, for the office is not a natural or juristic person., No doubt the distinction between the two forms appears to be a technical one but it does as I believe, involve a question of legal principle and of common justice which it will be dangerous to disregard. The point, therefore, for determination in this appeal is, whether the Plaintiff-Respondent, Syed Athar, seeking relief against the Director, Ecclesiastical Deparl roent for the acts done by him in discharge of his official duties could in law sue his successor-in-office in his official name and not in his personal name.

''lire facts have been set out at sufficient length by my learned Brother in his judgment. I would state only such as are material to the point under consideration. The suit mulgies bearing Municipal Nos. 6545 and 6546 originally were mortgaged by Bhikamdas with Zahuruddin in the year 1300F. They were however left unredeemed during the lifetime of Zahuruddin.

On his death, they, in partition, fell to the share of fcshabub Begum as his heir who conveyed the same under a registered sale-deed in favour of the Plaintiff, Syed Athar in the year 1342F. He continued in possession till the year 1347F. when he was forcibly dispossessed by the Ecclesiastical Department of which Moulvi Aliuddin Ahamed was the Director, The possession was not taken through tlie intervention Of the Court as the Dastm-ul-Amal Awhaf which provides for such a procedure had not been promulgated till that time.

On the representation of the Plaintiff, the said Director by the order dated 6th Farwardi 1349F. directed him to seek remedy in a Court of law as the suit mulgi was the wakf property and was taken possession of under the orders of the Government. An appeal against this order did not yield any favourable result and on 20th Mehor I354F. the Plaintiff was informed by the Secretary that orders were passed by the Chief Minister to the effect that the Plaintiff could, if he chose, file a civil suit.

Under the law, in these circumstances, it was open to the Plaintiff to bring a suit either against die Government or against the Director for the acts done by him in his official capacity. In the former case, he had to obtain permission from the Government by following a special procedure, but, in the latter case, it was sufficient if a formal notice u/s 439, Hyderabad CPC corresponding to Section 80, Indian CPC is given to the officer.

The Plaintiff adopted the latter course and gave notice on 6th Meher 1355F. in Compliance with the provisions of Section 439, Hyderabad CPC corresponding to Section 80, Indian CPC and brought the present suit on 26th Azur 1356F. impleading Nazim Umurc Mazhabi, Director of Ecclesiastical Department, as the Defendant. It may be noted, however, that the person holding office as Nazim at this time was different from the Nazim under whose orders he was dispossessed. The suit was filed for possession, mesne profits and also for damages and costs of the suit.

The then Nazim Umure Mazhabi filed his written statement and pleaded inter alia that the plaint was vague inasmuch as it does not appear - whether the suit is against the Government or against the public officer as such for an act done in discharge of his duties. The Plaintiff in his rejoinder stated in express terms that his suit was against the public officer for his act done in his official capacity in derogation of Plaintiff''s right and not against the Government or the State and that if in spite of this the Defendant was particular for the due sanction of the Government the Faimaish of the Chief Minister is sufficient for the purpose (vide paragraph 2 additional pleas of the rejoinder).

The First Judge, City Civil Court decreed the claim of the Plaintiff. The learned Judge does not appear to have made a distinction between a suit brought against a public officer in his official name and the one brought against him as an individual. The whole controversy therefore in this appeal hinges on the question, whether a suit could be brought against a public officer, in any other way, except a. an individual.

It is contended that the Nazim Umure Mazhabi is not a legal person so as to sue or be sued and hence the suit brought against him is untenable in law. In my opinion there is much substance in this argument. It is no doubt permissible to bring a suit for the acts done by a public officer in his official capacity either against him or against the Government.

But if a person chooses the former course he can only make the officer personally liable and not the office that he has held at the time of the impugned act. The law in this regard is well settled and there is a large catena of cases in this regard. I would like to refer to only two cases of the Hyderabad High Court 39 Dec LB. 49 (A) and 40 Dec LB. 415 (B).

In the first mentioned case, it was clearly observed that if a suit is brought in reLticn to an act done by a public officer done in his official capacity, it must be first ascertained whether the Plaintiff seeks to cast liability on the Government for the said act or the officer in his individual capacity the Plaintiff seeks to proceed against the public officer in his official name or the department, the suit will be maintainable only if that office or depart ment is natural or a juristic person.

It was further observed that a suit contemplated by Section 439-H, Code of Civil Procedure, is not against the office or the department but against the person holding the office and that the public officer referred to therein is the particular person against whom the liability is sought to be attached and not the office that he holds. Similar was the observation in 40 Dec LB. 415 (B). The view of the Indian High Courts seems to be the same. In The Sheriff of Bombay Vs. Hakmaji Motaji and Co., at p. 526 (D), the law on the subject has been succinctly laid down by Blackwell, J. in the following words:

There is nothing in any of the Sections, from 79 to 82 of the Code or in Order 27, which contemplates a suit being brought, if I may say so, against the office as distinguished from the individual for the time being holding the office, and in my judgment, all that Sections 79 to 82 and Order 27, contemplate is this, that if an individual holding an office has an action brought against him in respect of an act purporting to be done by him in his official capacity, then he shall have an opportunity of bringing the matter to the notice of the Government so as to enable the Government to defend, if the Government chooses to undertake his defence. But neither the sections nor the Order, in my judgment, give any warrant for the contention that the action can be brought in any other way except against the individual as an individual." In the said case, the Sheriff of Bombay was sued for damages on account of the escape of the judgment-debtor from his bailiffs custody. From the time the suit was instituted till its final disposal, more than one person succeeded to the office of Sheriff.

The suit was brought in the name of Sheriff of Bombay without specifying the individual in respect of whose acts or omission the Plaintiff was claiming damages. It was held that Sheriff of Bombay not being a legal person, the suit was untenable. In Bhuban Mohini Debi and Another Vs. Biraj Mohan Ghosh, , it was observed that if it is intended to sue the officer for certain acts done or purported to be done in his official capacity the Plaintiff can sue the- officer only as an individual. Similar is the observation in Babu Rameshwar Prasad Singh and Others Vs. Md. Ayyub, .

In this view of law, the Plaintiff could neither sue the department nor the office which represents the line of successors of the officers against whose act the Plaintiff has brought his suit. Such office or department is not a juristic person capable of suing or being sued. It is however argued that R. S3 framed under Dastur Ulamal Awkaf of 1349F. gives that status to the department.

But this rule as ''held in 40 Dec LR 415 (B), is ultra vires as it goes beyond the rule-making power conferred under the Act. Besides, it has a restricted scope and, does not give any power to file a suit of this kind. Further, obviously the suit is not against the Department. Section 439 expressly provides that "no suit shall be instituted against a public officer in respect of any act purporting to be done by such public officsr in his official capacity until the exDiration of two months next after notice in writing has been delivered........

In any opinion, the suits contemplate by this section are'' the suits against a particular public servant in relation to the acts done by him and not against his successor. The word "such"'' connotes the particular person holding the office. Section 441 provides that in cases instituted against any public oilier, the Government may take upon itself the responsibility of defending the case. Otherwise the case will proceed against the Defendant just like other ordinary cases.

Section 442 specifically lays down that in suits bought against any public servant lor the act done Ly him in the discharge of his official duly, he will not be arrested nor his property well be attached otherwise than in execution of the decree. This makes it clear that a public servant for his act may also be arrested in execution of a decree. The intention, therefore, is clear two the suits against the public servant will be in relation to his own act and tile liability will not extend to his successor-in-office. Thus, for purposes of Sections 439 and 442, Hyderabad C. P C, it is not every public officer holding the post at any time but only that particular person whose acts have given cause of action is liable to be sued and his liability to the extent laid down in the Code will be personal for in execution of the decree he is even liable to be arrested. The words in Sections 439 and 442 are explicit and do not contemplate any vicarious liability on the successor in office.

An action in tort, therefore, for the act of Mir Ajiuddin- Ahmed, the then Director, is not competent against his successor-in-office. However, the Plaintiff as owner, can follow his property in the hands of any person provided the suit is framed in ''that manner and is against the person in whose possession the property'' is. If it is retained by a Public officers-in'' due discharge of his duties as such, the be sued as an individual. But evidently, this suit has not been brought against any particular successor in-office specifying his name and after due notice-to him., The Plaintiff could as well sue the Government for the act of their officer in discharge of his duties., I do not think it is at all necessary that the Government must have any proprietary interest in the property to be answerable for such action. It is sufficient if the Government is interested in its retention and management by its agent or paid public servant. The property was taken over by its agent; the Chief Minister when approached in due course of law did not order the return of the property to the party; but directed the party to bring legal action, if so advised. Under these circumstances, a civil suit could lie against the Government. We are not concerned with the question, what were the various legal remedies open to the Plaintiff.

We are concerned only with the question, whether the suit, as brought, is tenable in law or not. As it is not against the legal or natural person, in my opinion, it is liable to be dismissed in limine. The appeal is therefore allowed. In the circumstances, there will be no order as to costs.

Jaganmoian Reddy, J.

This appeal comes before me on a difference of opinion between my brothers, Qamar Hassan and'' Kumarayya JJ. as to the maintainability of the suit filed by the Respondent against the Appellant. The facts relating to the filing of the suit are not in dispute. The suit malgi No. 6545/0546 situated in Maharaj Gunj in the City of Hyderabad was mortgaged with possession with one Zahuruddin in 1300 Fasli on whose death the mortgagee''s right devolved on his brother, Vaziruddin.

On the death of Vaziruddin Mahbub Begum-brought an administration suit for the distribution of his assets and the suit Malgi fell to her share. On the 8th Thir, 1344 F. the Respondent who was the Plaintiff purchased the said malgi from Mahbub Begum by a registered sale deed. Immediately after the sale one Mahbub Ali attached the suit malgi in execution of his decree in 1346 F. whereupon the Respondent-Plaintiff as well as one Bhikam Das filed claim petitions.

The claim petition of Bhikam Das was allowed and the Respondent withdrew his petition with liberty to file a fresh one as and when the occasion arose. Bhikam Das thereupon applied for the possession of the Malgi in the Court of Darul Khaza which exclusively dealt with the rights of Muslims under the Muslim Law, but that Court rejected the petition having regard to the fact that the Respondent was in possession of the property.

The Petitioner was directed to bring a suit for possession. It may here be observed that proceedings were started in 1343 F. in the Endowments Dept., for having the suit malgi registered as such in the register of endowments. The Director of Endowments ordered on 18th Mehr, 1345 F. that as the suit malgi is an,.endowed property, it should be registered. After this order the Respondent was forcibly dispossessed and the malgi taken possession of on 27th Khurdad 1347 F, (1st May, 1938). The Respondent on his being thus forcibly dispossessed filed an application in the Ecclesiastical provisions of Section 439 will apply and he must Department for the restoration of his petition .but this application was dismissed on 8th Feb. 1940. Against this dismissal he appealed to the Secretariat on the l26th Aug. 1945 but received a Faimaish purporting to be under the orders of the President of the Executive Council directing the Respondent to have recourse to a court of law.

After receiving this Faimaish Respondent gave notice Oh the 12th August, 1946, to the Director of Endowments Department demanding possession of the suit malgi. and for payment of manse profits and damages, failing which he was informed that a suit would be filed. After expiration of the two months a suit which is the subject matter of this appeal, was filed on 26-10-1946 against Nazim Sahib, Umoor-e-Mazhabi, Sarkar-e-Aali (Director of Endowments, H.E.H. the Nizam''s Government). This was decreed. Against this the first appeal was filed and the only point that was urged was that the suit as framed cannot lie and ought to be dismissed on the ground that if it was a suit against the Government servant for acts done in his official capacity requiring service of notice u/s 439 of the Hyderabad CPC the person occupying the office of Director of Endowments should have been sued and not the Director of Endowments and/or if the suit was against the Government, permission should have been sought under Suits against the Government Act by presenting the plaint to the legal adviser of the Government, and obtaining permission thereon.

In order to appreciate these contentions it is necessary to examine the plaint allegations. In para 5 the Plaintiff alleged that in 1347 F. his rnalgi was taken possession of after breaking the lock on behalf of the Department of Endowments, H.E.H. the Nizam''s Government and immediately a detailed application was filed in the said Department complaining of the taking of the illegal possession, that on this petition Moulvi Aliuddin Ahmed, the Director of Endowments Department, passed orders on 6th FarwnaJi, 1349 F., to the effect that the malgi was endowed property and it was taken possession of under the orders of the Government and that if the Plaintiff has any right thereto, he can take action against the Government according to procedure.

In para 12 in claiming damages the Plaintiff alleged illegal acts against the Department of Endowments which had illegally and deliberately taken possession of the malgi in spite of knowing that it was in possession of the Plaintiff and in para 5 it was stated that before the suit was filed a notice was served on the Nazim Umoor-e-Mazhabi, H.E.H. the Nizam''s Government on 6th Melir, 1355 F. m accordance with the provisions of Seel ion 439 G.P.C. It was prayed that possession be given to the Plaintiff of Malgi 6545/6546 situated at Mahraj Gunj by dispossessing Nazim Umoor-e-Mazhabi who was then occurring the office.

The Director of Endowments Department in his written statement, paragraphs 2 and 3 of the additional grounds took the plea that he was not a necessary or proper party and by reason of the nature of the suit H.E.H. the Nizam''s Government should have been made a party and that the suit is not maintainable without obtaining permission under the Suits against the Government Act.

The Plaintiff in paragraph 2 of the additional, grounds of rejoinder reiterated that the Director of Endowments at the time had taken action in his official capacity and since he has been transferred his legal representative, the present Nazim, has been rightly made a party and that the suit was only against the Government servant for acts done officially and consequently no Government permission is required nor has the Suits against the Government Act any relevance, and at any rate even if such a permission is necessary, the Faimaish (Memo) issued under the orders of the President of the Executive Council would be sufficient.

In paragraph 3 the Plaintiff again insisted that it is only a suit against the Government servant for acts done in his official capacity and not against the Government. The Plaintiff has in, his evidence asserted that his suit was against the Endowments Department of H.E.H. the Nizam''s Government and'' that in 1345 F. Din Yar Jung (Aliuddin Ahmed) was the Director.

There in no manner of doubt on these pleadings that the suit as framed was definitely against the Director of Endowments Department of H.E.H. the Nizam''s Government and the Plaintiff insisted that there was no necessity to obtain permission to-file the suit under the Suits against the Government Act. Notice u/s 439 was considered to-be sufficient. An English translation of Sections 439,. 441 and 442 of the repealed Hyderabad CPC which govern this suit is as under:

"Section 439: No suit shall be instituted against a Government servant in respect of any act purporting to be done by such Government servant in his official capacity until the expiration of two months next after notice in writing has been delivered to or left at his office stating the cause of action, the name, father''s name and place of residence of the Plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

Section 441: (1) Where the Government undertakes the defense of the suit against a government servant, the Government Pleader will be ordered to-appear and defend it and he will file an application in the Court, on such application being filed the Court, shall cause a note of such authority to be entered in the Register of Civil Suits.

(2) Where no application under Sub-section (1)-is made by the Government Pleader on or before the date fixed in the notice for the Defendant to appear and answer, the case shall proceed as in a suit between private parties.

Section 442: In a suit instituted against a Government servant in respect of any act purporting to be done by him in his official capacity-

(a) the Defendant shall not be liable to arrest nor his property to attachment otherwise than in execution of a decree; and (b) Where the Court is satisfied that the Defendant cannot absent himself from his duty without detriment to the public service, it shall exempt him from appearing in person.

The above sections more or lesson Respondent to Section 80, Order 27 Rule 8 and Section 81 respectively of the Indian Code of Civil Procedure, with this difference, namely, that the Indian, provisions contemplate a suit not only against a public servant but also against the Government.

A public officer for the purposes of Indian CPC has been elaborately defined by Clause 17 of Section 2 thereof as a person falling Under any (of the descriptions enumerated therein from (a) to (h) while a Government servant has been defined not under the Hyderabad Code of CPC but "under the Hyderabad General Clauses Act III of 1308 F. Clause 17 (A) of Section 2 whereof is ''as follows:

The words ''Government servant'' shall include very person who receives a monthly pay or remuneration from the Government or who receives any for Government work, or who does any Government work without wages.

The crucial question in this case is whether the suit should have been against the Government s(Sarkar-e-Aali) or against the Nazim, Umoor-e-Maz-habi, (Director of Endowments) or against the individual Director who illegally took possession purporting to act in his official capacity. If the suit image is in the possession of the Government and if, they have to, be ejected there from in order to put 57 the Plaintiff in possession, then the remedy would be against the Government. If on the other hand court Director of Endowments can be sued in his Cape City as Director regarding possession and retention of '' the endowed property the suit would be against him. Otherwise, it is contended diat the suit against - the Director of Endowments authorised under law to sue or be sued must be deemed to be a suit;

against the Government. It is further contended that if the suit is against the Government servant as such only a notice u/s 439 is to be given to a particular Government servant economize for any act purporting to be done in his official capacity. The question in this case is not that the Nazim, the successor-in-office of Sri Aliuddin Ahmed, the then Director, should be allowed to reap the fruits of trespass but against whom the suit should have been filed.

If against the Government then u/s 3 of the Suits against the Government Act v. of 1320 F., no suit will lie unless permission is obtained after following the procedure laid down therein from the. Madurul Maham. The procedure envisaged for obtaining permission is for the person seeking permission to file an application before the Legal Advisor to the Government stating therein all matters which would be required to be stated in a plaint to be filed in a civil suit.

Without examining the provisions of the aforesaid Act in any great detail it may be said that if permission is given that will be endorsed upon the application which will be filed as a plaint in the court within three months after paying the court fee thereon. Obviously though the Director Sri Aliuddin Ahmed endorsed on the Plaintiff''s application as admitted by him in the plaint that the magi was taken possession of under the orders of the Government and though the Plaintiff pursued the matter and appealed to the Secretary to the Government and received a Memorandum to say that the President of the Executive Council had ordered that if " the Plaintiff so desires, he can file a suit in the appropriate court, he did not seek permission under the'' - "Suits against the Government Act. The Plaintiff was fully aware at the very begin-Haggling of the lies that the Nazim .purported to act under rash; takers of the Government. He did not at any time ''''''" contest that statement to be incorrect. On the other "hand he proceeded on the assumption that the act'' A. I. R.

of the Nazim" was runner the "Government orders and'' appealed to the" Secretary to the Government, and he was left in no doubt about this matter when hoi deceived the Famish from the President of the Executive Council.

In these circumstances it is necessary to determine whether the suit as framed by the Plaintiff is maintainable or riot. The Plaintiff may bring, a suit? for acts done by Government servant in his official/ capacity either against the Government or against that person. But if he chooses the former course, as I have already stated, he should file the suit against the Government and if he wants the adopt the latter method, as indeed it is now strenuously urged before me on his behalf, the question would then arise as to whether he should file the suit against the Government servant economies or against the office which he holds.

As I have already stated the pleadings clearly show that the Plaintiff desired to file the suit against the Director of Endowments Department in his capacity as such for acts done on behalf of the Department, which! it, is, submitted is what is required for; notice u/s 439 of the Hyderabad CPC Code.

For the purpose of proper understanding of the rights of a subject to sue a Government servant or the Government in the former State of Hyderabad minder the Hyderabad Law, it is necessary to state that the basis adopted was analogous to that prevailing in England where the Crown could not be sued upon the ground that the King can do no wrong. Neither the King could be made liable by action, nor could it be said that he has authorized another to commit a wrong.

It therefore follows that not only is the action not available against the King for breach of contract but no action lies against a servant of the Crown for a breach of the contract entered into by him in that capacity because the principle qui fact per alum fact per se would not apply. The only remedy which a citizen has is by way of a petition of right addressed to the Home Secretary asking him that His Majesty should let right be done leaving it to be granted in proper cases.

This right has lain in England since middle ages for recovery from the Crown of land or chattels to which the claimant was entitled including cases where the taking or retention of such property by a subject would now be regarded as a tort. A Government Department not being a legal entity and consisting merely of a number of individual servants of the Crown could not be sued for the tort of a Minister of an official of the Department, nor the Head of tiled Department or other superior officer or the person who committed the tort could be sued because the common law regarded all of them as being the fellow servants of the Crown and not as master and servant.

The general rule therefore is that the action should be brought against the actual wrong doer or wrong-doers personally and not against the servant or agent of the Crown or of the Department. It is not necessary to go into the long chain of case law on this subject. There have been statutory exceptions to the above rule where Parliament has in some cases either specifically or by use of language conferred on the Government Department or the Minister in his official capacity with or without in corporating such Department or Minister the right Constitution under which th0 Government of India to sue or to be sued or to bring or defend actions, and the Governments of States may sue or be sued, Under the Hyderabad Law the suits against the in relation to their respective affairs in the like cases Government Act was similar in scope to that rage as the Dominion of India and the correspondent looted by the Petition of Rights Act, J.8IS0. The pact- provinces or the corresponding States might have teen under the latter Act was prepared and depot- been sued if the Constitution had not been enacted, sited with the Home Secretary u/s 2 by in the name of the Union of India or in the name the person aggrieved. The Home Secretary after of the State subject to any provisions which may be .consulting the Attorney General, if he so wishes made by the Act of Parliament or of the Legislature decides in his absolute discretion whether or not to of such State acting under or by virtue of the powers grant a fiat (let right be done). The subject has no conferred by the Constitution.

redress if the fiat was refused. The procedure for suits against the Crown has When the fiat has been obtained a copy of the been laid down in the Code of Civil Procedure. Due petition and fiat endorsed with the prescribed prayer to historical background to which I have adverted is lodged at the treasury. The Crown has 28 days there have been numerous cases where the question thereafter to plead or demur to the petition. There- in what cases a suit will lie against the Govern-after the procedure resembles that in an ordinary have been considered. It is not necessary for High Court action. An examination of the suits the scope of this enquiry to examine those cases. If against the Government Act also shows clearly that is however well settled that in regard to suits or con-it is similarly drawn up tracts the Government as such cannot claim any u/s 7 if the suit relates to property minify from the liabilities of being sued, taken by the Government or relating to compensation In so far as suits on. torts are concerned the thereto or relates to such property with respect general view is that subject to certain exceptions a to which the Government owes any money under a suit based on tort will not lie against the Govern-contract the Madurul Maham, Sirkar-e-Aali (Presiment in respect of the acts and defaults of its servient of the Executive Council) had the right to grant vents. See State of Bihar v. Abdul Majid, AIR 1954 permission, or if he so thinks he could direct that SCC 245 (II), where Mahajan C.J., observed that as the same be heard by any special committee subject regards torts of its servants in exercise of sovereign to such restrictions as he may think necessary. If powers the Company was not, and the Crown in he thinks that no permission should be given, it will India was not, liable, unless the Act had been order-have to be submitted to His Exalted Highness under ed or ratified by it. In High Commissioner for Section 9 and whatever orders received from him will AIR 1948 121 (Privy Council) (actual passage on page 243 of Ind App):

Section 13 makes it clear that the Act does not (at p 127 of AIR), it is observed thus in any way affect the sovereign authority of H.E.H. "it is unnecessary to cite authority to establish the Nizam. The position in India was different and that no action for tort can lie against the Crown and, the rule of English Law was not applicable, be- therefore, any right of action must either be based cause of historical reasons. As the East India Com- on contract or conferred by statute." which was governing the various territories The position under the Hyderabad Law at the time acquired by it, being a trading concern could sue or when the suit was instituted in so far as the fore the sued in respect of transactions entered into by the 0f the Government servants are concerned is the Company and it enjoyed no exception from legal same that is, the Government cannot be sued. It is proceedings. The Company also acquired in course only the respect to the property or obligations of time delegated powers of sovereignty in the ad- arising under the contracts that the procedure relainistration of its territories ting to permission was regulated by the Suits against Because of this dual capacity the distinction the Government Act. A suit relating to an action in came to be made in respect of liabilities to sue in the tort can no doubt be brought against the individual local Courts between business and mercantile under who is alleged to have committed the tort in much "takings carried on by the Company whether for its the same way as was the case in England, own benefit or public benefit and acts done in con- It therefore appears that Section 439 lays down section with: the governmental powers which could the procedure of giving" notice to the Government not be: exercised, say, by the sovereign or someone servant with respect to the acts, purporting to be done delegated with the authority from sovereign. The in his official capacity. The question whether it distinction was one with respect to the capacity in refers to the individual economies is a matter which the act was done will now have to be considered. It is argued that) If the act was done in the capacity of a trading since the legislature of the Hyderabad State did not concern a suit lay against the Company, but not define the expression'' ''Government servant'' as was in act of state or sovereignty. This distinction pre- done by the Indian legislature under the Indian Civil veiled after the responsibility for the administration Procedure core d Section 2-17 (A)&2:17 (B) of the Government of India was taken over by the Hyderabad General Clauses Act has compendia Crown, when the rights of the subject in this regard oily defined the expressions ''Government servant were preserved u/s 65 of the Government and ''act of the'' Government servant'' as such, Gov-of India Act, 1858, and Were retained by Section 32 ornament servant can be sued by reference to his of the Government of India Act, 1919 office without the necessity of being sued economize. Section 176 of the Constitution Act 1935 likewise No doubt the definition of the expression ''Person is down that the same remedies will be available as defined by Section 2 (43) would include any Comas would have been available against the Secretary of pany or Association or body of persons whether instate, in Council as if the Act had not been passed. corporate or not but-that does not exclude other tart subjects now regulated under Article 300 of the persons. When section- 2-17 (A) defines a Govern-(Oct.) 1957 Andh. Pra. D.F./48

net servant, it includes every person who receives remuneration or does Government work without remuneration. The office as such cannot be said to be a person because it is not the office that receives the remuneration or salary or does the work. It is fee person that occupies the office that receives the "termination and dotes the Government work and it is'' he who is the Government servant.

It is precisely for this reason that Section 2 (43) in defining a person specifically says that it includes a, company or association or body of persons whether incorporate or not. There was nothing to prevent the legislature from specifically including the Department or the Head of the Department of the Government by virtue of his office. I may point out that in the first explanation to Clause (17) (A) of Section 2 of the General Clauses Act the fact that the Government servants are natural persons is made clear, by stating that railway employees, members and servants of Municipal Committees shall also be considered as Government servants, and the second explanation says "wherever the expression ''Government servant'' occurs it applies to every person who was virtually holding the office, of the Government servant whatever defect there might be in his right to hold that post

The question whether the definition of ''Government servant* also includes a Government Department or Corporation etc., must be determined on the context pf the Section. In this connection it will be appropriate to cite the forceful observations of Lord Blackburn in Pharmaceutical Society v. London and Provincial Supply Association, 5 (1880) ACC 857 (J). Actual passage is on page 869:

The word ''person'' may very well include both a natural person, a human being and an artificial person, a corporation. I think that in an Act of Parliament, unless there be something to the contrary, probably (but that I should not like to pledge myself to it ought to be held to include both. I have equally no doubt that in common talk, the language of men, not speaking technically, a ''person'' does not include an artificial person, that is to say, a corporation.

Nobody in common talk, if he were asked who is the richest person in London, would answer, the London and North Western Railway Company. This his absurd. It is plain that in common conversation and ordinary speech a ''person'' would mean a natural person: in technical language it may mean the artificial person; in which way it is used in any particular Act, must depend upon the context and the subject matter."

In my view, on a reading of Section 2 (43), the office or the Government Department is not a person not only because it is not included in the said definition but because it is neither a natural person nor an artificial person, fore a legal person. If this is so, how can the Nazim Umoor-e-Mazhabi be considered either as A natural person or as an artificial person or a legal person or a corporation sole?

Further in my view a close reading of Section 439, 441 and 442 of the Hyderabad Code of CPC "Indicates, clearly that the Government servant to ''which .a reference is made therein, is the natural person, Section. 439 was designed to give the Government servant an opportunity to refer the matter relating to the suit against him and to report the circumstances, if any, under which the alleged ad Complained of was committed so as to give an opportunity to the Government to determine whether ha was acting bona fide in his official capacity or not.

If the Government considers his act to be done in'' furtherance of his official act, it will defend his suit as envisaged u/s 441, but, if not, the suit against the Government servant will proceed as if it is a suit between private parties. The fact that u/s 439 the Government servant''s name and the father''s name have to be given and that u/s 441 (2) if the Government is not prepared to defend, the case is to proceed as if it is between two private parties and that u/s 442 he is not liable to arrest nor his property is liable to attachment otherwise than in execution of a decree, would clearly show that it is against the person eonomine.

These provisions militate against the- submission that the suit could be against a particular office in the Government. If the submission was true it would lead to untenable results, because the person who on the date of the: decree occupies the office would be liable to the execution of the decree, if any, given against him though he had nothing to do with the act complained of, If Section 439 is read with Section 441 it would clearly appear that the suit relating to any act done by a Government servant in his official capacity would be one against him personally and not against the office as such which he holds. This is also clear both from the decisions u/s 80, CPC as well as u/s 439 of the Hyderabad Code of Civil Procedure. In AIR 1927 176 (Privy Council) , Viscount Sumner, speaking for their Lordships of the Privy Council observed'' at page 182:

This section and its predecessor Section 424 of the Code of 1882 have stood for over forty years, substantially in the same form, as a protection to officials in precise terms against personal responsibility for official action.

In The Sheriff of Bombay Vs. Hakmaji Motaji and Co., , Marten C.J., and Black-well J., were considering the case where a judgment-debtor escaped from the custody of bailiffs of the Sheriff of Bombay who was then Tenulji Nariman and in these circumstances whether a suit against the Sheriff of Bombay as such would lie. It was there held after examining the relevant provisions of the Supreme Court Charter 1823 relating to the appointment of Sheriff of Bombay that he was not a corporation sole and that no doubt it may be that he is a public officer within the meaning of Section 2 (17) (d), CPC but he cannot be sued in his official name. Marten, C. J., at page 523 says as follows:

To my mind the Plaintiffs main argument rests on this fallacy that because you can bring a suit against a public officer in respect of acts done by him in his official capacity, it follows that you can sue that officer by his official name, as for instance, the Sheriff of Bombay, just as if he was a corporation'' sole.

Again at page 525 he observes:

The Sheriff of Bombay is an officer whose office runs for a period of one year and hence it is only right and fair that he should only be liable for any wrongs committed during his period of office. On what principle then can he be sued for acts or defaults of his predecessors? Accordingly, this apparent technicality involves questions of principle and of common justice.

Blackwell, J., at page 526 says thus:

But neither the sections nor the Order, in my judgment, give any warrant for the contention that the action can be brought in any other way except against the individual as an individual.

Coming to the authorities u/s 439, Hyderabad CPC a Full Bench of the former Hyderabad High Court in Md. Barkat Ali Shah v. Nawab Akhtar Yar Jung Bdr. Mohamad Umoor-E-Madhabi, Sarkar-E-Ali, ILR 17 Dec 140 (K), 30 years ago after considering the relative position in England and India and u/s 439 of the Hyderabad Code of CPC as well as under the Suits against the Government Act held that the suits against the person occupying the office of the Secretary, Umoor-E-Mazhabi was that which was contemplated u/s 439.

After pointing out the distinction between Sections. 80 of the Indian CPC and 439, Hyderabad CPC and the suits against the Government Act it was observed that in interpreting Section 439 the important thing to bear in mind was whether the suit was against the Government servant or Government. The law does not presume that either the Government or the Government servant are out to destroy the rights of an individual nor is it to be presumed that if a Government servant is in the wrong the Government will insist upon supporting him.

If a suit is filed against a Government servant in his official capacity for his official acts his costs may be paid by the Government, u/s 441. This is the purpose for which notice has been pro-: vided for u/s 439. The whole judgment proceeded on the assumption that the suit should be against the person occupying the post as indeed that was the case before the Full Bench.

In 39 Dec LR 49 (A), a Bench of the same High Court again held that the suits against the Government or against the Government servant were governed by different provisions of law than those governing in India and Pakistan, that the procedure relating to suits against the Government were more analogous to those relating to the remedy by way of a petition of right in England, that suits against the Government servant were of two kinds: (1) against him personally and (2) against him for acts done in his official capacity and that if it is with respect to the latter, it must be considered whether the liability is to be foisted on the Government or against the Government servant.

In so far as it is a suit against the office whether such a suit will lie or not would depend upon whether the office is a- juristic person or not and that it is not every person that is clothed with juristic personality. It was further observed that suits against the Government Servant could only be filed with I respect to acts done in his official capacity which are torts.

In the case of,40 Dec LR 415 (B), another Full '' Bench held that, the Nazim, Umoor-E-Mazhabi C Director of Endowments), was not a legal or juristic person and the rules made under the Endowments Act relating to the filing of the suits were ultra vires of the rule making power. It was further held that if the suit is against any particular Government servant in relation to acts done in his official capacity, the provisions of Section 439 will operate and if it is against him personally as such not in relation to an official act, then the said provisions are inapplicable.

In Tukaram v. Collector, Parbhani, ILR 36 Dec 524 (L), it was held following the Sheriff of Bombay case that the suit cannot be against the officer u/s 439 of the Hyderabad CPC but an individual must be made a party. Another Full Bench of the same High Court in State v. Venkat Rao, ILR 36 Dec 170 (M), has stated that in suits filed against the Government servant unless under any law any Department or office or the officer is given the status of a legal person, he will not be included in the definition of person''.

The Tahsildar as such has no legal status in order to declare him a person. It is clear that the person who is appointed to that post can only be the natural person, but the office as such does not have any legal status. A person who comes within the definition of ''person'' does not cease to be a person because he happens to occupy a post.

The learned Advocate for the Respondent argues that these decisions of the erstwhile Hyderabad High Court are not binding upon me. Even so they are persuasive precedents entitled to respect. In determining what the law in the former Telengana area is we are bound to take notice of a long chain of decisions over 30 years. I had also, sitting with Kaliluzzaman, C. J., in Mir Ahmed Ali Khan v. Rangarao, ILR 38 Dec 480 (N), held similarly, that is, that an office or an officer as such is not a legal person, unless by any law a particular Department! or officer has been given the juridical status and! that the Awwal Taluqdar was not a legal person.

It is again contended by the learned Advocate for the Respondent that u/s 10 Dasturul Amal Aukhaf (Endowment Regulation) a suit for declaration of right could be filed within a year against the rejection of a claim made before the Nazim relating to the entry of a property in the Register of Endowments, and that Rule 33 made under the rule-making power conferred by Section 16 permits the filing of such a suit against the Department.. Having regard to this provision the learned Advocate submits that the Nazim, Umoor-E-Mazhabi, can be sued, as the statute in effect changes his position from that of an agent to a principal.

As I have already pointed out the rule has beer held to be ultra vires of the rule-making powers, conferred by Section 16 by the Full Bench in 40 Dec L Rl 415 (B). That apart even an examination of the rule making power u/s 16 inclines me to accept that view as correct. There is no provision u/s 16 specifically conferring a power on the Endowment Department to make a rule relating to the filing of a suit u/s 10.

Even otherwise Section 10 read with Rule 33 postulates three conditions: Firstly, that there should have been an entry of the property in the Register of Endowments, secondly that a claim petition should have been filed and rejected and thirdly, the suit should be against the Department. In this case none of these conditions have been fulfilled. It is stated that the Act was not in force at the time when the possession of the property .was taken away and consequently no claim could be filed with respect to the property forcibly taken possession of by the Department. In any case, therefore, the provisions are not applicable.

In my view the suit as framed is not maintainable. Whether it is considered as a suit against the Government or as against the Government servant u/s 439, Hyderabad Code of CPC the suit is liable to be dismissed, In the result the appeal is allowed, the judgment and decree of the trial Court reversed and the suit dismissed and in the circumstances there will be no order as to costs.

This appeal coming on for orders before this Court this day, this Court delivered the following Order:

Qamar Hasan, J. In the result of the majority judgment pronounced by the learned Third Judge and by one of us, the appeal will be allowed and the suit will stand dismissed. There will be no order as to costs.