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Qaim Husain vs L. Pirbhu Lal And Anr.

High Court Of Judicature at Allahabad|26 April, 1938


1. This second appeal arises out of a suit for damages for wrongful attachment. The defendant-appellant Qaim Husain attached a crop belonging to one Jasan on 5th October 1932 in execution of a decree against him. The defendant-respondent Rahmatullah was appointed to take charge of the produce of the crop. I understand that the crop was reaped and put on the threshing-floor. An objection to the attachment was taken by Pirbhu Lal plaintiff-respondent who alleged that the crop had been sold to him on 8th September 1932. It was eventually found that Pirbhu Lal's allegation was correct. In the meanwhile, the crop had again been attached in order to meet a demand for canal dues. This attachment was presumably made under the orders of the Collector. Under the provisions of Northern India Canal and Drainage Act, arrears of canal dues can be recovered in the same way as arrears of land revenue. Pirbhu Lal after obtaining a decree or order that the property had been wrongfully attached instituted the suit which has given rise to this appeal in order to recover damages and has obtained a decree from the Courts below. In second appeal it was argued in the first place that the plaintiff in order to establish a claim to damages had to prove that the attachment was malicious and without reasonable and probable cause. In support of his argument learned Counsel referred to the rulings in Poonabai v. D.B. Seth Ballabhadas (1920) 7 A.I.R. Nag. 116, Nanjappa Chettiar v. Ganpathi Gounden (1912) 35 Mad. 598 and Palani Kumarasami v. Udayar Nadan (1909) 32 Mad. 598, but it seems to me that the question is concluded by the decision of their Lordships of the Privy Council in Kissorimohun Roy v. Harsukh Das (1890) 17 Cal. 436 Their Lordships said:
It does not appear to their Lordships that, in order to entitle him to recover full indemnity for the wrongful attachment of his goods, the respondent is bound to allege and prove that the appellants resisted applications maliciously, and without probable cause.
2. In that case, an application had been made to the Court that the attachment was illegal and had been opposed. Their Lordships pointed out that the appellants relied mainly upon the English case in Walker v. Olding (1863) 1 H. & C. 621 and then said that the case was not a good authority for the law applicable in India because in India the decree-holder himself took the responsibility of pointing out the property to be attached, whereas in England the sheriff was bound to use his own discretion and was directly responsible to those interested for the illegal seizure of goods. There can be no doubt I think, in view of the decision in Kissorimohun Roy v. Harsukh Das (1890) 17 Cal. 436 that it is not necessary in a case of wrongful attachment to prove malice and the absence of reasonable and probable cause. The second argument addressed to me by the appellant is that he is not responsible for the loss of the plaintiff-respondent's property because that loss did not in any way arise out of the wrongful attachment. In reply to this argument learned Counsel for the respondent has referred to the cases in Bishambhar Nath v. Gaddar (1911) 33 All. 306 and Goma Mahad patil v. Gokaldas Khimji (1873) 3 Bom. 74. Those were eases in which there had been a wrongful attachment and the attached property had been stolen when in the custody of the bailiff of the Court. In so far as the case of this Court is an authority, I as a single Judge must follow it, but the case is authority only for the proposition that a person who induces a Court to make a wrongful attachment is liable for the value of the goods attached if they are stolen while in the custody of the bailiff of the Court. They are not strictly authority for the proposition that a person who induces a Court to make a wrongful attachment is liable for the loss of the goods if they are subsequently attached under another order of that or some other Court and are sold and lost to the owner of them. Learned Counsel for the plaintiff-respondent relies particularly upon the following passage in the judgment of the single Judge of this Court which was afterwards upheld in a Letters Patent appeal:
It may be conceded that the theft or disappearance of the plaintiff's crops while under attachment was not in any sense the consequence of the wrongful attachment by the defendant. The fact remains that the plaintiff has suffered a loss for which he is entitled to compensation. His crops were wrongfully attached by the defendant-appellant. He is entitled to get back his crops or their value if the crops themselves are not available. The plaintiff had a complete cause of action at the date of the wrongful attachment and his right to the relief he was entitled to was not impaired by the subsequent occurrences for which he was not responsible : see Bishambhar Nath v. Gaddar (1911) 33 All. 306 at p. 307.
3. Although I am bound by the ultimate decision of the Court, I am not, I conceive, bound to accept all the arguments upon which that decision is based or all the propositions stated in the course of those arguments. I would however hesitate to differ even from the arguments or observations if it did not seem to me that they are contrary to those expressed by their Lordships of the Privy Council in Kissorimohun Roy v. Harsukh Das (1890) 17 Cal. 436. Their Lordships said:
The illegal attachment of the respondent's jute on 28th November 1883 was thus the direct act of the appellants, for which they became immediately responsible in law ; and the litigation and delay, and consequent depreciation of the jute, being the natural and necessary consequences of their unlawful act, their Lordships are of opinion that the liability which they incurred has been rightly estimated at the value of the goods upon the day of the attachment.
4. It seems to me that this passage leads to the inference that the appellants would not have been responsible if the loss had not been the consequence of their unlawful act. That was a case where some jute was attached before judgment and depreciated in value while it was in the custody of the bailiff of the Court. If learned Counsel for the plaintiff-respondent is to be deemed to have adopted the arguments used in Bishambhar Nath v. Gaddar (1911) 33 All. 306 and Goma Mahad patil v. Gokaldas Khimji (1873) 3 Bom. 74, then I must say that it does not seem to me that those arguments justify the decree passed by the lower Appellate Court in the present case. It is to be noticed that this is not a suit for specific moveable property lost or acquired by theft or dishonest misappropriation or conversion or for compensation for wrongfully taking or detaining the same. The crop was not stolen or misappropriated or converted or wrongfully taken or detained by the defendant-appellant. It was taken and detained by the Court through its officer. The suit is one for compensation for a malfeasance independent of contract. In Goma Mahad patil v. Gokaldas Khimji (1873) 3 Bom. 74. the Bombay High Court relied upon the English case in Keene v. Dilke (1849) 4 Ex. 388 which was a case in which the sheriff who had himself attached the goods and in whose possession they were was sued. That might well have been an action for wrongful detention of the property.
5. Referring to the observations made in the case of this Court, I must say that the malfeasance of the defendant-appellant in pointing out to the officer of the Court goods which were not the property of the judgment-debtor undoubtedly gave rise to a cause of action, but that that malfeasance alone would not entitle the owner of the property to obtain a decree for damages. It would be necessary for him to prove that special damage ensued from the act of malfeasance. It often is a question of controversy whether any particular damage resulting from a wrongful act is too remote or is not the direct result of that act or is not a natural and probable cause of such act or could not be foreseen by any reasonable person, but I do not know that it has ever been held in so many words that a plaintiff may recover damages for a wrongful act on account of loss which arose not out of that act but out of something entirely independent.
6. In the present case there is nothing to show and no reason for presuming that the act of the Collector in attaching the crop in execution of a claim for canal dues had any connection with the attachment at the instance of the defendant-appellant. It is impossible for the plaintiff, respondent to say that his crop would not have been attached by the Collector and consequently lost to him if it had not previously been attached by the defendant-appellant. From the passage which I have quoted from the case in Bishambhar Nath v. Gaddar (1911) 33 All. 306 it would appear that the learned Judge was in some measure influenced by the fact that the loss was caused by a subsequent occurrence for which the plaintiff in that case was not responsible. In the present case it cannot be said that the defendant-appellant had any responsibility in the matter. He could not oppose by force the act of the Collector in attaching the property. He would have had no locus standi if he had gone into the Collector's Court and objected to the attachment on behalf of the real owner. It appears that he did all he could because the judgment of the lower Appellate Court shows that he did make an application to the Collector objecting to the attachment upon the ground that it was made while his own attachment was in force. His application was rejected. On the other hand, the plaintiff-respondent if he had any good legal ground for objecting to the attach, ment by the Collector could have made an application to the Collector to remove the attachment so that he certainly had some responsibility in the matter. He made no objection and the objection made by the defendant-appellant was overruled. The presumption therefore is that the Collector's order attaching the crop was perfectly legal. I do not see how the defendant-appellant can be held responsible for the price of the crop when the crop was taken from the plaintiff-respondent properly under legal process which had no connection at all with the previous attachment made at the instance of the defendant-appellant. I hold therefore that the defendant, appellant was not liable in damages to the plaintiff-respondent. I allow the appeal and dismiss the suit with costs in all Courts. Leave to appeal is granted.
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Qaim Husain vs L. Pirbhu Lal And Anr.


High Court Of Judicature at Allahabad

26 April, 1938