P (PLP)

Where there is a joint cause of action against two or more per sons, a discharge against one of them operates as a discharge against all. If accord is made with one joint tort‑feasor or to one joint‑debtor, it operates as a discharge to the other joint tort‑feasor or the other joint‑debtor, the reason being that the cause of action, which is one and indivisible having been released, all persons otherwise‑liable thereto, are consequently released. As for example, if one takes a chattel from one and another after wards has wrongfully detained that chattel, then the first and second men are not the joint tort‑feasors because there is a perfectly independent right of action against each. (1913) 3 K.B. 764, (190) 84 L. T. 504 referred to. S. A. 1421 B

3. Asir, for Appellant. A. C. Bhattacharyya, for Respondent. No. 1422 Prafulla Chandra Nag., for Appellant. M. Asir, for Respondent No.

5. A. C. Bhattacharyya, for Respondent No. 1 JUDGMENT.‑Second Appeal 1421 of 1944 by defendant No. 1 arises out of Money Appeal No. 8 of 1943 and Second Appeal 1422 of 1944 by defendant No 2 arises, out of Money Appeal No. 5 of 1943. Both the appeals were dismissed by the learned Additional District Judge, First Court, Mymensingh on the 10th March, 1944, affirming a decision of the learned Munsifl, Second Court, Jamalpur, dated the 10th December, 1942, in Money Suit No. 27 of 1942/23 of 1940 decreeing the plaintiff's suit, which was a suit for recovery of a sum of Rs. 613‑Z‑0 by way of damages f9r the alleged wrongful and negligent acts of the principal defendants Nos. 1 and 2, which resulted in a loss of 34 maunds and 2J seers of jute to the plaintiff. The plaintiff's case is that he is a dealer in jute and he has hired the godown of prof orma‑defendant No 5 for storing , jute in it. The defendant No. 1, who is a Sub‑Inspector of Police, seized 37 maunds and odd seers of jute from the plaintifl's said godown and also a boat on a false information lodged by proforma‑defendant No. 3, an agent of proforma‑defendant No. 4 to the effect .that the plaintiff had committed a criminal breach of trust in respect of 35 and odd maunds of jute, which the proforma‑defendant No. 3 had made over to the plaintiff at Suntia Hat for being carried on hire in plaintiff's boat to the godown of the proforma‑defendant No. 4 at Sarishbari. The Investigating Officer, defendant No. 1 left the jute and the boat seized by him in the custody of the defendant No. 2, on the latter having executed two Jimmanamas. The jute and the boat were seized on the 11th and 12th August, 1939, and a charge‑sheet was submitted against the plaintiff on the 30th August, 1939 and the plaintiff was convicted by a Magistrate of Jamalpur on the 23rd November, 1939, under section‑407 of the Indian Penal Code but he was acquited in appeal on the 18th December, 1939, and the present suit was for recovery of the jute and the boat or their price amounting to Rs. 803‑6‑0 in all from the defendants Nos. 1 and 2 and the suit was instituted on the 14th May, 1940, in the First Court of Munsiff at,Jamalpur after the service of a notice under section 80 of the Code of Civil Procedure. The suit was contested by the principal defendants Nos. 1 and 2 by filing two separate written statements. Both the defendants denied that they misappropriated the jute. The Sub- Inspector, defendant No. 1, alleged that he was not personally liable as he acted in good faith in pursuance of an enactment in the discharge of his public duty as a Police Officer and that part of the seized jute was sold under the orders of the Magistrate, who had ratified his act in leaving the jute in the custody of the defendant No. 2 under Jimmanamas and that thereafter the rest of the jute was stolen away from the godown between the 22nd and 26th November, 1939 while it was in the custody of the defendant No. 2 for which be could not be held liable. The defence of the defendant No. 2 inter alia was that there was not or could not be any cause of action against him and he was not liable to the plaintiff in any way and that he had taken good care of the jute while it was in his custody and that he had all along, been praying to the defendant No. 1 and the magistrate to relieve him of the responsibility of a Custodian of the seized goods which responsibility was thrust on him by the defendant No. 1 in spite There was a contested trial in the First Court of Munsiff at Jamalpur and the learned Munsiff dismissed the plaintiff's suit, as in his opinion the suit was not properly framed as an action in tort for wrong to movable property, though he held that the action of the defendant No. 1 in leaving the seized goods with the defendant No. 2 on a, Jimmanama was not warranted by law. The plaintiff preferred an appeal against the decision of the learned Munsiff and at the hearing of the appeal the plaintiff filed a petition for amendment of the plaint in order to modify it according to the requirements of an action in tort and this prayer for amendment of the plaintiff was allowed on payment of costs to the defendants and the suit was remanded for fresh trial on the basis of the amended plaint. It may be stated here that the costs ordered to be paid to the defendants by the Appellate Court were paid to them and that the defendants did not take any steps against the order for amendment of the plaint but rather accepted the order for amendment of the plaint and submitted to the order and not only that but the defendant moved the learned District Judge of Mymensingh for transfer of the suit from the First Court of Munsiff at Jamalpur as that Court had expressed some definite opinion on certain matters touching on the merits of the case in his judgment and this prayer was allowed and the learned District judge ‑transferred the case to the learned Munsiff, Second Court, Jamalpur, for fresh trial after After the amendment of the plaint, defendants Nos. 1 and 2 have filed additional written statements. The defendant No. 1 contends inter alia that he acted in good faith as a public servant and that the jute was not lost due to any wrongful or negligent act on‑his part, that the suit was barred by limitation, that he was entitled to a fresh notice under section 80 of the Code of Civil Procedure after the amendment of the plaint and that the Province of Bengal was a necessary party to this suit. The defendant No. 2 contended that he was not liable for any damages to the plaintiff and that he was not guilty of any negligence. The learned Munsiff decreed the suit in full with costs against both the defendants Nos. 1 and 2 on the findings (1) that no fresh notice under section 80 Civil Procedure Code was required to be served on the defendant No. 1 after amendment of the plaint, (2) that the plaintiff was the owner of `the jute and he was in possession at the time of the seizure, (3) that defendant No. 1 induced defendant No. 2 to retain custody of the jute inspite of his repeated endeavours to be relieved of the burden which was thurst on him (4) that defendant No. 1 shirked his duty and responsibility and acted rashly, negligently, illegally and wrongfully in leaving the seized jute in the custody of the defendant No. 2 in violation of the statutory provisions under an inoperative Jimmanama and the action of the defendant No. 1 in leaving the seized jute in the custody of the defendant No. 2 was not ratified by any order of the Criminal Court and so the defendant No. 1 was liable for the consequence of his negligent and wrongful act, (5) that both the defendants being joint intermeddlers thereof and the plaintiff having been deprived of his jute by their actions unlawfully, both the defendants were liable as joint tort‑feasors in an action for their conversion and trover, (6) that it was unnecessary for the plaintiff to prove negligence or intent to deprive in an action for conversation, (7) that the Province of Bengal was not a necessary party, (8) that the suit was not governed by Article 2 but by Article 48 as well as Article 49 of the. Limitation Act and so ryas not barred by limitation and, (9) that the plaintiff was entitled to recover the market price of his, jute, from the possession of which he had been deprived by the acts of the defendants Nos. 1 and

2. Against the said decision Money Appeal No. 8 of 1943 was filed by the defendant No. 1 and Money Appeal No. 5 of 1943 was filed by the defendant No. 2 in the Court of the District Judge of Mymensingh and both the appeals were heard analogously by the learned Additional District Judge, First Court, Mymensingh, and the Court of Appeal below dismissed both the appeals holding inter alia (1) that as no fresh bond was executed in favour of the Magistrate himself and the Jimmanama was taken by the Police Officer though in the name of the Crown, they cannot have the effect of legalising unauthorised act of the defendant No. 1 and to bring the jute into the custody of the Magistrate himself in the eye of law, (2) that the practice to leave the seized article in the custody of the local people under Jimmanama without previous reference and order of Magistrate as provided in section 523 read with section 56‑A of the Code of Criminal Procedure cannot override the statutory enactment in respect thereof and will not exempt the defendant No. 1 from his liability, in tort even though he had neither want of good faith and bona fide therein, which has no place in deciding the liability 'for tort, if any, established, (3) that though the seizure of the jute was lawful, the defendant No. 1 cannot escape liability for his un authorised leaving of the goods in the custody of the defendant No. 2 without obtaining an order for the same from the Magistrate as required under the law and in that he acted negligently, (4) that the defendant No. 1 was personally liable, (5) that Article 2 of the Limitation Act was not applicable and that the suit was not barred by limitation, (6) that the defendants were joint tort feasors and they were jointly liable for the loss of the jute of the plaintiff and (7) that the plaintiff's claim was just and proper and not excessive. The present Second Appeals Nos. 1421 and 1422 of 1944 have been filed by the defendants Nos. 1 and 2 respectively against the said decision and I shall deal with the two appeals separately. In Second Appeal No. 1421 of 1944 filed by defendant No. 1 Mr Asir on behalf of the appellant raised 3 contentions before me ; firstly, Mr. Asir contended that the suit could not proceed after remand without a fresh notice under section 80 of the Code of Civil Procedure. Secondly, Mr. Asir wants to contend on behalf of the defendant No. 1 that his client cannot be held liable in tort as it has been found by the learned Additional District Judge that there is a practice prevalent in the Police Department that when articles are seized by an Investigating Police Officer at a place, which lies at a very great distance from the Criminal Court, generally the seized articles are placed in the hands of a local person under a jimmanama so there is no liability of his client for the loss of the plaintiff's jute by theft‑from the custody of the surety, namely, the defendant No. 2, and no liability attached to his client and in that connection Mr. Asir submitted ‑that the Courts below were not right in invoking the provisions in section 516‑A of the Code of Criminal Procedure to hold that the Sub- Inspector of Police had no authority to leave the seized articles with a local man on the basis of a Jimmanama and at any rate the action taken by the defendant No. 1 had been ultimately ratified by the Magistrate of Jamalpur, and the last contention of Mr. Asir was that the suit was barred by limitation and Article 2 of the Limitation Act would be applicable. To take up the first point of Mr. Asir, namely, whether a notice was necessary under section 80 Civil Procedure Code, to be served afresh after remand, in my opinion, there is no substance in that contention. The facts are that on appeal from the decision of the learned Munsiff, First Court, Jamalpur, the plaintiff, during the pendence of the appeal, prayed for amendment of the plaint and this prayer for amendment of the plaint in converting the suit to one of tort was neither contested by the defendant No. 1 nor by the defendant No. 2 and their only contention then was that if they were compensated sufficiently in money and if they were allowed an opportunity to file an additional written statement to meet the case of the amended plaint, they had no objection to the granting of the prayer of the plaintiff. Then we find that each of the defendants was paid' Rs. 16 as compensation by the plaintiff and each of them has filed an additional written statement and that a. copy of the amended point was also supplied to each of the defendants. A notice under section 80 of the Code of Civil Procedure is served on the defendant two months before the institution of the suit. He object of the notice required by section 80 of the Code of Civil Procedure is to give the Public Officer an opportunity to reconsider his legal position and to make amends or settle the claim, if so advised, without litigation. Admittedly, in this case the copy of the amended plaint was' given to the defendant No. 1 more than two months before the hearing of the suit. Moreover in my view, the amendment did not change the nature of cause of action but had merely amplified the facts constituting the cause of action in order to bring it in line with the requirements for an action in tort: The cause of action ‑means a bundle of essential facts which is necessary for the plaintiff to prove in order to succeed in the suit and it does not depend on the nature or character of the amendment made in the plaint. As I have already stated, in this case the prayer for an amendment was allowed by the Court without any objection from the, defendants and they never protested against the said amendment and once the amendment is allowed, it takes effect from the date of institu tion of the suit. It is argued by the defendant No. 1 that there has been reduction in the plaintiff's claim after the amendment of the‑ plaint and that is stated to be a ground on which the defendant No. 1 claims a fresh notice but in my opinion this reduction in the claim of the plaintiff after the amendment of the plaint has been to the advantage of the defendants and these defendants had been compensated by award of costs. I may also state here that the defendant No. 1 by his conduct in accepting costs is estopped from raising the objection. I may state here that if there is any reduction in the claim of they plaintiff, a fresh notice under section 80 is not required. In this connection the case of Badya Nath Roy Chondhury and others v. Ramry Chandra Baneiji and others reported in 41 C. W. N. at p. 92 may be referred to. So, I hold that there is no substance in the first contention of Mr. Asir and that no fresh notice under section 80 bf the Code of Civil Procedure need be served after the amendment of the plaint for maintaining the present suit. As regards the second contention of Mr. Asir, I am of opinion, that it is also without any substance. The law on the subject con version or trover is well‑settled. Addison in his law of Trots, 8th edition, has stated, that; "When a man takes the chattel, either for the use of himself or of another, it is conversion. So the destruc tion of a chattel is an act of conversion, for its effect is to deprive one of it altogether" and the learned author in support of the latter proposition cites, amongst others, the case of Fouldes v. Willoughby, 8 M and W. 544 at p.

548. If a man takes the properties of another without his consent, by abuse of the process of the law, this is an act of conversion, Grainto v. Hill 7 L. J. C. p

85. It must be remembered that the liability for conversion is not deter mined by the defendant's belief, however reasonable, concerning the title to the goods. Union Credit Bank v. Marsey Docks, (1899) 2 Q. B. 205 Clerk and Lindsell on the Law of Torts, 10th edition at page 37 have stated the law as to conversion in the following terms; "And even more stringent example of strict lia bility, perhaps, is that of conversion. Provided that the defendant intended an act constituting the denial of the plaintiff's title, he will be liable though he acted in the utmost good faith. Hollins v. Fouler, (1875) L. R. 7 H. L 757 at p.

766. But an act not constitu ting a denial of title will not be a conversion. So far as chattle's personals are concerned, a man acts towards them very nearly at his peril if he is a gratuatious bailee. He may not be liable if he is not guilty for "negligence". The learned authors go on to say: "Mistake of law will not excuse, nor, speaking generally, will mistake of fact. So, to deal with the goods of one person under the honest and even reasonable mistakes that they have belonged to some one else is still a conversion". See Consolidated Co. v. Curtis. (1892) I. Q. B. 495 and the case of Hollins v. Fouler already referred to. It may be stated here that motive, generally speaking, is irrelevant in the law of tort, whether it is laudable or improper. As has been stated by Lord Watson in Allen v. Flood (1898) A. C. at page 92 that `An invasion of the civil rights of an other is in itself a legal wrong carrying with it liability to repair its necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive permit ting it be good, had or indifferent. But the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due". It is equally well‑settled that in an action in tort, this Court will be slow in interfering with a finding of fact by the lower Appellate Court. See Alarkland v. Manchester Corporation, (1936) A. C.

360. I am making those observations in order to meet the conten tions raised by Mr. Asir, in his second point before me. It has been found by the learned Additional District judge in appeal that the jute, in question was seized by the defendant No. 1, the Investigating Police Officer, from the godown which the plaintiff alone had hired from the defendant No. 5 and that the plaintiff was the owner of the jute and that he was in possession of it at the time of the seizure. The defendant No. 1 undoubtedly seized the jute under section 50 of the Code of Criminal Procedure and that seizure was perfectly legal, but what the Courts below had held was that under the law the defendant No. 1 had no legal right to leave the goods in the custody of a local man on the basis of Jimmanma. The law in this regard is to be found if one reads section 516 A along with section 523 of the Code of Criminal Procedure. The law is that as soon as an Investigating Officer seized any article, he should "forthwith" inform the Magistrate and on his orders, he may leave these goods in the locality with a man taking a surety bond under the orders of the Magistrate. Mr. Asir's client justified his action on the basis of a practice prevalent in the police department but in the absence of any statutory provision to that effect and in the face of the provisions in section 523 of the Criminal Procedure Code itself, the plainest duty of the defendant No. 1 was to report the seizure of the properties under section 550 of the Code of Criminal Procedure to the Magistrate and to await the Magistrate's order regarding the custody or disposal of the seized articles. Instead of doing so, the defendant No. 1 shirked in his duty and responsibility by thrusting the seized jute in the custody of the defendant No. 2 against his wishes and thereby he acted rashly and negligently. If is a clear finding of the Courts below that the defendant No. 1's act was rash, negligent and illegal and that he induced the defendant No. 2 to keep in his custody the seized jute in spite of the latter's repeated endeavors to be relived of the burden, which was thrust upon him and this action of defendant No. 1 is not warranted by law. If a public servant deals in a way which is not warranted by law and thus loss occurs to the owner thereof, he does so at his own risk." As the Sovereign cannot authorise wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown." Per Cockburn, C. J., in Peather v. The Queen (1865) 6 B. S. 257 at page 294,

296. The statutory authorisation will constitute a defence to any alleged tort, provided that the act complained of relay was authorised and not merely permitted. It has been found in this case that there is no authority for taking any bond by the Police Officer while investigating any offence. It has been argued that the subsequent order of the Criminal Court upon the action of the defendant No. 1 in keeping the jute in question in custody of the defendant No. 2 was ratified but there is no such order of the Criminal Court to show, that the Jimmanama executed by the defendant No. 2 was accepted by the Court and therefore the act of the defendant No. 2 was illegal and wrongful. I have already observed that the action which the defendant No. 1 has taken in this particular case of leaving the seized jute with the defendant No. 2 was done at his own risk or peril. .Both the defendants of this case allege that they had no intention to cause loss or injury to the plaintiff and therefore they are not guilty of any negligence. As I under stand the law; it is unnecessary to prove‑negligence and it is unnecessary to prove an intent to deprive one in an action for conversion. It has been stated by high authority that goods unlike, lands are easily transferred from hand to hand and capable of being obstructed or lost for ever and the law as between these two evils has chosen that of throwing the loss on the innocent owner.. In this case the plaintiff having been deprived of the jute due to no fault of his, I hold that the plaintiff is entitled to recover damages for the loss of the jute due to the inter‑meddling of the jute without any legal authority. It has also been found and I concur with the finding of the Courts below that the defen dant No. 1 exceeded his power in leaving the seized jute in the custody f the defendant No. 2 without any order from the Criminal Court and in that he acted wrongfully and as such is liable for the damages because there is a clear breach of statutory duty on the part of the defendant No.

1. I have already stated that the law is that motive or want of negligence is not an excuse in an action in conversion or trover. So the second contention of Mr. Asir is of no substance and his client is liable for damages for the loss of the plaintiff's jute. As regards the third contention of Mr. Asir that the suit is barred by limitation under Article 2 of the Limitation Act, I may only state that it has been rightly held by both the Courts below that it is not so in the facts and circumstances of the case. In order to bring a suit within the provisions of Article 2 of the Limitation Act, it is necessary that the Public Officer should have done what he did with the honest intention of acting as the statute or law authorised. There is no question of good faith of the defendant. What is complained of in the present case is not the seizure or omission to report the seizure to the Magistrate but the unauthoris ed and illegal action of the defendant No. 1 in handing over the custody of seized jute to defendant No.

2. This cannot be an act of omission but is one of commission. So, in my opinion, Article 2 of the Limitation Act does not apply to the facts of the present case and this suit having been instituted within the period of limitation prescribed for in Article 48 as well as in Article 49, is not barred by limitation. As all the contentions raised by Mr. Asir fail, Second Appeal No. 1421 of 1944‑ is dismissed with costs. Leave under section 15 of 'the Letters Patent is prayed for but refused. As regards the Second Appeal No. 1422 of 1944 by the defen dant No. 2, the case stands on a different footing. The Courts below have proceeded on the basis that the defendant No. 2 was a joint tort‑feasor and therefore he was equally liable with the defendant No. 1. . The facts of this case as found by the Courts below are these: That the defendant No. 1 after seizure of the plaintiff's jute without following the procedure laid down in the statute, thrust them in the custody of the defendant No. 2 against his wishes and in spite of the defendant No. 2's repeated endeavours to be relieved of the burden, it was kept with him. The Court of appeal below has come to this finding that both the defendants Nos. 1 and 2 were joint tort‑feasors so far as the plaintiff was deprived of the jute and they can jointly be sued for his loss in an action of detinues as well whether their fault consisted in a wilful act of wrongful disposition or mere negligence leading to the loss of the goods by theft. It has further been found that the defendant No. 2 was guilty of negli ence. The law certainly is that if the two defendants are joint tort‑feasors, they are equally liable to the plaintiff for the loss of his goods. When several persons join in committing a tort, "each is responsible for the injury sustained by their common act." See Smith v. Streatfeild (1913) 3 K. B.

764. If one of several tort reasors be sued alone, he is liable for the whole damage though he did a small part of it and that person is entitled to contribution from the others. This particular case as against the defendant No. 2, will have to be decided on determination of the question whether defendant No. l and defendant No. 2 were joint tort feasors. One way of answering this question is: Is the cause of action against them the same?" If the same evidence would support an action against each, they are joint tort‑feasors. They will be jointly liable for tort which they have committed or for the commission of which they are both responsible but not for a tort where each is responsible for the different injuries and the two injuries happen to produce the damnum. The general rule is that where there is a joint cause of action against two or more persons, a discharge against one of them operates as a discharge against all. If accord is made with one joint tort‑feasor or to one joint‑debtor, it operates as a discharge to the other joint tort feasor or the other joint‑debtor, the reason being that the cause of, action, which is one and indivisible having been released, all persons otherwise liable thereto, are consequently released. As for example, if one takes a chattel from one and another afterwards has wrongfully detained that chattel, then the first and second men are not the joint tort‑feasors because there is a perfectly independent right of action against each. The leading case on the point is the case of Winter Bancks, (1901) 84 L. T.

504. Here in this case Mr. Abinash Chandra Bhattacharyya appearing for the plaintiff respondent has been unable to show that the plaintiff has, in his plaint, maintained after the amendment of the plaint that the cause of action as against the defendant No.1 and the defendant No. 2 was the same. If one analyses the facts in this case, he finds the cause of action as against the defendant No. 2 arose at a different time and under different circumstances. This fact that the cause of action is different in the case of the defendant No. 2 from that in the case against the defendant No. 1 is conceded by the learned Advocate for the plaintiff‑respondent and in that view Mr. Bhatta charyya very candidly did not press his client's case against the defendant No.

2. The plaint in this case is a very curious one. It does not state, as has to be found in a plaint in Mofassil Court, when the cause of action arose as against the defendant No. 1 or as against the defendant No. 2 or against both of them jointly and at when. The facts clearly brim out in prominence that the cause of action of the plaintiff against the defendant No.1 is something diffe rent from that against the defendant No.

2. That being the position in fact, legitimate conclusion in law is that the defendant No. 1 and the defendant No. 2 cannot be joint tort‑feasors. Therefore, in my opinion, the plaintiff is not entitled to get any relief so far as the defendant No. 2 is concerned. The result, therefore, is that Second Appeal No. 1422 of 1944 is allowed, and the judgments and decrees of the Courts below are set aside so far as it affects defendant No. 2 and the plaintiff's claim as against the defendant No. 2 is dismissed. In the circumstances of this case, I make no order as to costs in favour of the defendant No. 2 and against the plaintiff in any of the Courts. A. H. Orders accordingly.