MUSAMMAT KASTURI Vs. PANNA LAL

JUDGEMENT

(1.) This is an appeal against the order of the First Additional District Judge of Aligarh, passed in an appeal which was brought by the plaintiff-respondent Panna Lal against a decree of the Munsif of Bulandshar. The order which is complained of is one purporting to be under Order XLI, Rule 23, of the Code of Civil Procedure. The learned Additional District Judge has ordered the case to be remanded for trial, as he says, de novo to the Court of first instance, The defendant, Musammat Kasturi, has appealed against this order and the memorandum of appeal raises two questions, one relating to the form of the order passed by the Court below and the other, a more important one, relating to the competence of the plaintiff Panna Lal to maintain this suit. We will deal first with the second question and in order to understand the matter at issue we may state the following facts: There were three brothers, Raghunandan Lal, Madho Prasad and Ram Jiwan Lal. Of these Raghunandan Lal died in the year 1910 leaving a widow, Musammat Ram Peari, who died after him in the month of June 1914. Raghunandan Lal also left a daughter, Musammat Chandrakala, with whose affairs we are concerned in the present case. Madho Prasad, another of the brothers, died in the year 1912 and his widow Musammat Kasturi is the appellant before us. The 3rd brother Jiwan Lal was alive at the time this suit was brought; he died during the pendency of the suit and is now, it is said, represented by his son Lalta Prasad. It appears that after the death of her father the girl Chandrakala, whose age is now about 13 or 14 years, lived with her aunt, the appellant, Musammat Kasturi. It is also said that Ram Jiwan Lal, the brother of the girl s father, lived in the same house. In the month of January 1915 a complaint was made in the Criminal Court by one Rameshwar, who had been married to an elder sister of the girl Musammat Chandrakala. The application was under Section 552 of the Code of Criminal Procedure and was directed against Musammat Kasturi, Ram Jiwan Lal and the latter s son Lalta Prasad. The allegation made in the Criminal Court was to the effect that these three persons were detaining the girl Chandrakala in their house against her will and were preventing her from going to live with her maternal uncle Panna Lal, who is the respondent in the present appeal. This dispute was put an end to in the month of January 1915. A petition was filed before the Criminal Court in which it was stated that by reason of the intervention of certain friends of the family the parties had composed their dispute and the three accused persons had agreed that the girl was to go and take up her residence with her maternal uncle Panna Lal and that she was to be allowed to take her property with her. After the girl went to live with Panna Lal, it appears that Panna Lal entered into a contract of marriage on her behalf with Rameshwar who was the husband of the girl s deceased sister. Panna Lal, it is said, made all the arrangements for her marriage with Rameshwar and the 17th of June 1915 was fixed as the date of the marriage. A few-days before this date Musammat Kasturi, the appellant, went to the District Judge of Aligarh and put in a petition asking that she might be appointed guardian of the person of this girl Chandrakala, Simultaneously with this petition Musammat Kasturi filed another petition in which she asked the Court to issue an injunction restraining Panna Lal from having the marriage of the girl with Rameshwar performed on the 17th of June. A temporary injunction was issued by the District Judge and the result was that Panna Lal was obliged to put off the marriage. The consequence of this is that the present suit has been brought by Panna Lal, in which he claims Rs. 1,000 as damages on the allegation that the injunction which was sought against him by Musammat Kasturi was improperly sought and obtained and that by reason of postponement of the marriage he suffered damages, having made a number of costly arrangements for the marriage ceremony. We may mention at this stage that since the 17th of June 1915 the girl has, as a matter of fact, been married to Rameshwar, the man with whom the marriage contract had been made.

(2.) The defence of Musammat Kasturi to this suit was to the effect that Panna Lal had no right whatever to enter into any contract of marriage on behalf of the girl and that consequently it could not be said that she had applied for the injunction without reasonable and probable cause In short, her case was that Panna Lal had no cause of action for the suit.

(3.) The Munsif before whom the case was tried framed six issues. The first of these was--whether or not the plaintiff had got any cause of action for the suit and was he entitled to maintain it. On this point the Munsif s finding was that the temporary injunction which was issued had given rise to a cause of action upon which the suit could be maintained, provided the plaintiff could show that he had suffered damage. The second issue was whether or not the plaintiff had any power to arrange the marriage of Musammat Chandrakala. On this point after referring to certain authorities on Hindu Law the Munsif was of opinion that the plaintiff had no right to make a contract of marriage in the presence of paternal relations. On the 3rd issue the Munsif held that assuming the plaintiff had authority to settle the marriage, it was not an unsuitable or improper one, although, as he said, the man Rameshwar, with whom he contracted the marriage, was of no better status than one Peary Lal with whom, it is said, a previous arrangement for marriage had been made. The 4th issue was whether the defendant obtained the injunction on wrong allegations and with a view to cause loss to the plaintiff. On this point the Munsif s finding was in favour of the defendant. He was not satisfied that the defendant obtained the interlocutory injunction in bad faith. Having decided these four issues the Munsif dismissed the case. He left undetermined two issues relating really to the amount of damages suffered by the plaintiff. The fifth issue reads: "Has the plaintiff suffered any loss owing to the injunction?" and the sixth issue reads: "if yes; how much?"