1. This is an application for revision of an order passed by the City Munsif of Azamgarh on 12th March 1930 directing that the name of Babu Janki Nath Sahai be struck off the plaint under Order 1, Rule 10, Clause (2), Civil P.C.

2. The applicant had instituted a suit for damages for malicious prosecution against two defendants viz., Jagmohan Earn, the complainant, and Babu Janki Nath Sahai, the trying Magistrate, upon allegations which appear to us to be somewhat curious.

3. Jagmohan Ram, defendant 1, and Shair Ali, plaintiff, are residents of Baragaon, a village within the jurisdiction of the Subdivisional Magistrate of Ghosi. On 12th October 1928, Jagmohan Ram lodged a complaint against Shair Ali, the plaintiff, Ziauddin, his father, Alim Uddin, and Barhu Bhar, in the Court of Babu Janki Nath Sahai who was the Subdivisional Magistrate of Ghosi under Sections 447 and 323, I. P.C. During the pendency of the complaint, Babu Janki Nath Sahai was transferred from Tahsil Goshi and was put in charge of Tahsil Sagri in the same district. On the application of the complainant, the District Magistrate transferred the case to Babu Janki Nath Sahai presumably upon the ground that he had heard the case in part. Upon a consideration of the evidence, Babu Janki Nath Sahai discharged Barhu and Alim Uddin. It is not known if the case proceeded against Ziaud-din at all or what orders were passed about him. It is not improbable that Ziauddin might not have appeared before the Pargana Officer because of his alleged illness. The Magistrate convicted the plaintiff Shair Ali on 15th January 1929 and sentenced him to six weeks' rigorous imprisonment and a fine of Rs. 50, and further ordered that, in default of payment of fine, Shair Ali was to be imprisoned for a further period of six weeks. The Magistrate also ordered that Shair Ali should pay to Jagmohan Ram, complainant, and to Barhu and Alimuddin the sums of Rs. 20, Rs. 10 and Rs. 10 as court-fee, process fee and compensation respectively.

4. On appeal by Shair Ali, the learned Sessions Judge reversed the conviction and sentence on 28th February 1929 and directed his acquittal on the ground that the charge under Section 451, I. P. C, had not been proved.

5. The present suit for malicious prosecution was commenced by the plaintiff on 12th February 1930 against the two defendants and the relief claimed was in the following terms:

That a decree may be passed in favour of the plaintiff and against the defendants for the recovery of Rs. 1,009 as detailed on. account of the expenses incurred by the plaintiff in the criminal case, for loss in business and for physical find mental suffering.

6. Plaintiff describes defendant 1 as a highly litigious person and a great mischief monger who bears a bitter animus against the Mussalmans in general and against the plaintiff in particular. Defendant 2 is also a hater of Mussalmans, whose tenure of office as Sub-divisional Officer of Ghosi was characterized by a, policy which was distinctly anti-Muslim. The plaintiff avers that the complaint dated 12th October 1928 was instigated and inspired by defendant 2 who during the progress of the trial harassed and persecuted the plaintiff in a variety of ways, the details of which are set out in the plaint; that on 17th November 1928, while recording the statement of the wife of Barhu accused, defendant 2 made her to say that the plaintiff had concealed her husband; that acting upon this statement the Magistrate took the plaintiff under custody "on account of the abscondance of Barnu accused" and that the plaintiff remained in the lock up till 28th November 1928 when he was released by the order of the learned Sessions Judge.

7. The allegations in the plaint were supplemented and developed by further statements recorded under Order 10, Rule 2, Civil P.C. The plaintiff added that 20 days before the institution of the complaint defendant 2 had told the plaintiff in the presence of defendant 1 that he would have his head crushed. He also stated that he had overheard defendant 2 asking defendant 1 to institute criminal cases against two or three Mahomedans and to add one or two Hindus as co-accused, presumably as a matter of policy.

8. It is not within our province to go into the merits of these allegations.

9. It is clear from the plaint that the suit instituted by Shair Ali is not under Section 79, Civil P. C, against the Government or against the Secretary of State for India in Council. It is not clear whether defendant 2 was being sued as a public officer in respect of any act purporting to be done by him in his official capacity and as to whether the provision of Section 80, Civil P. C, was complied with. We are inclined to think that the suit was not intended to be filed against the defendant for acts purporting to be done in his official capacity.

10. The Local Government undertook to defend the suit on behalf of defendant 2. It is curious however that no written statement was filed by defendant 2 personally or on his behalf by a duly constituted agent. A written statement on behalf of defendant 2 was filed by Mr. V. Mehta, Collector of Azamgarh. The document was verified by " V. Mehta, Collector, Azamgarh" on 11th March 1930. We are of opinion that this procedure was not regular. It is not sanctioned by the Code of Civil Procedure. No rule having the force of law has been brought to our notice to justify this procedure and we are aware of none. As however the learned Judge took no exception to this irregularity nor did the plaintiff we think that we should not remit the case for the irregularity to be cured but should decide the case on the record as it has come to us.

11. One of the pleas taken in the written statement was to the following effect:

The acts of the defendants on which the plaintiff has based this claim were done or ordered to be done by him as a Magistrate acting judicially in discharge of his judicial duty within the limits of his jurisdiction; and the defendant at the time in good faith believed himself to have jurisdiction to do and order the acts complained of. The defendant is therefore protected from any liability to the plaintiff by the Judicial Officer's Protection Act of 1850.

12. The Government Pleader appears to have pleaded in demurrer that on the facts alleged, no cause of action had accrued against defendant 2 and that the latter was protected by Act 18 of 1850.

13. On 12th March 1930 the learned Munsif took up this preliminary issue. He held in view of he pleadings (written and verbal) that the complaint had not been filed at the instigation or with the connivance of defendant 2 and that the plaint did not disclose any cause of action against him. He therefore ordered as follows:

I therefore order under Order 1, Rule 10, Clause (2), that the name of defendant 2 be struck off the plaint and that the register be amended accordingly. Defendant 2 is to get his costs if he has; incurred any.

14. A formal order was drawn up which; directed that the plaintiff do pay to defendant 2 the sum of Rs. 51 the amount of costs incurred by him on account of this application.

15. Shair Ali has filed a revision to this Court from the aforesaid order. We do not propose going into the question whether the order in question on the merits fulfils the requirements of Section 115, Civil P.C.

16. The right to file a civil revision under] Section 115 is dependent upon the fulfilment of the condition that no other remedy by suit, by application or by appeal is available to the applicant. It is a recognized rule of procedure that the especial and extraordinary remedy by invoking the revisional powers of this Court should not be exercised unless as a last resource for an aggrieved litigant : Sunder Das v. Mansa Ram [1885] 7 All. 407; Siva Nathaji v. Joma Kasinath [1883] 7 Bom. 341; Sheo Prasad Singh v. Kastura Kuer [1888] 10 All. 119, Gopal Das v. Alaf Khan [1889] 11 All. 383 and J. J. Guise v. Jaisraj [1893] 15 All. 405.

17. If the order dated 12th March 1930 was in effect and substance a decree in favour of defendant 2, and against the plaintiff, the remedy of the plaintiff was by an appeal to the District Judge of Azamgarh within the time provided by law. The application for revision appears to have been presented to this Court on 26th May 1930, when the period for filing an appeal to the District Judge had already expired.

18. Order 1, Rule 10, Clause [1883] 7 Bom. 341, Civil P. C, provides that the Court may at any stage of the proceeding order that the name of any party improperly joined whether as plaintiff or defendant be struck out. An order striking out the name of a party is not necessarily a decree. Where the plaintiff had impleaded a person merely upon the ground of convenience and the plaint discloses no cause of action against him and the plaintiff has claimed no relief against him, the order of the Court directing the removal of the name of such a defendant does not operate as a decree, for it has not the effect of an adjudication, and the integrity of the original claim remains unbroken. Where however a cause of action against a defendant has been specifically pleaded and a distinct relief has been claimed against him the order directing the removal of his name from the array of parties is in substance, although not in form, a decree because the effect of the order is the refusal to grant the relief to the plaintiff which he had prayed for against him. Defendant 2 was not impleaded only for the sake of convenience. The plaintiff had sued him Because of an alleged cause of action against him and the plaintiff had prayed for a decree against him for Rs. 1,000 as damages. The effect of the order passed by the Munsif is the virtual dismissal of the suit against him and the latter has been awarded his costs from the plaintiff. We are clearly of opinion that the order sought to be revised was in substance a decree and was open to appeal as such.

19. In Rama Rao v. Raja of Pittapur [1919] 42 Mad. 219 it was held that an order in a suit striking out from the array of parties a defendant as an unnecessary party under O.1, Rule 10, Clause (2), Civil P.C., and thus dismissing the suit against him was in effect a decree and was appealable as such, Seshagiri Ayyar, J., is reported to have said as follows (p. 225):

In a way, the conclusion of the Subordinate Judge may be said to come within Order 1, Rule 10. But what we have to see is the substance of the order and not the form of it. In his order, the Subordinate Judge examines the right of the plaintiff to bring a suit like the present one and concludes, having regard to certain authorities which he has quoted that such a suit would not lie. In my opinion this is an adjudication determining the rights of the plaintiff to bring a suit of this nature; and his order is a "decree" as defined in Section 2, Clause (2). Civil P.C. I am disposed to agree with Mr. C. P. Rama-swami Ayyar who appealed for the appellant that unless the removal of the plaintiff or defendant leaves the suit intact, Order 1, Rule 10, Clause (2), cannot apply.

20. It may be conceded that technically speaking the proper form of the order in the present case ought to have been the dismissal of the claim against defendant 2 and not merely the striking off of his name. It is patent however that the effect of the order is the dismissal of the claim and that fact is emphasized by the order that the plaintiff is to bear the costs of defendant 2. The decision of Rama Rao v. Raja of Pittapur followed by Das and Ross, JJ., in in re Ramji Pandey v. Alaf Khan A.I.R. 1925 Pat. 121 who held that where in a suit for partition on the application of the plaintiff an order was passed dismissing two persons viz. Bichan and Ritubhajan from the suit and striking out their names under Order 1, Rule 10, Civil P. C, that order must be looked upon as a decree, as it amounted to a refusal to adjudicate upon the claim of these two persons.

21. In Ayyamudali Velan v. Veerayee [1920] 43 Mad. 812 it was held that a refusal to implead a person as a legal representative of a deceased plaintiff on the ground that the cause of action did not survive was a decree, because it had the effect of finally depriving the person refused of all his rights in the suit and practically putting an end to the litigation altogether. The principle underlying this decision is clearly in accord with the cases already referred to.

22. The following three eases have been cited on behalf of the applicant in support of his contention that the order in question was not a decree and therefore not appealable as such: (1) Shanmuka Nadan v. Arunachalam Chetty A.I.R. 1922 Mad. 332, Linga Aiyar v. Lakshumana A.I.R. 1926 Mad. 687 and Ratnachalam v. Siva Chidambaram A.I.R. 1923 Mad. 690. The first and the third cases are distinguishable; the second is irrelevant.

23. In the first-mentioned case the suit was one for partition brought by four minor sons against their father. Defendants 7 to 18 were persons who held money decrees, some of them against defendant 1 alone, others against defendant 1 and the plaintiffs, all obtained on debts incurred by defendant 1. On the objections of the defendants the names of defendants 7 to 18 were struck out as being improperly joined.

The lower Court does not say that it removes them from the record; it does not say that the suit is dismissed as against them . . . . It is objected that no appeal lies against such decision and, certainly none is provided directly in the Code, and as the lower Court's decision, understood in the manner in which we understand it, is not a decree and is not a conclusive determination of the rights of the parties with regard to any of the matters in controversy and does not come within the definition of "decree" in Section 2 (2), there can be no appeal against it directly.

24. It does not appear from the report that any relief had been claimed against defendants 7 to 18. If the plaintiffs had asked for no relief against them and the defendants were impleaded simply for the sake of convenience, the view taken in this case was justified. It is in this sense that the case was understood in Ratnachalam's case and we also understand it in that sense. . In Linga Aiyar's case the plaintiff had sued to recover certain money due from the widow of Subbaraya Aiyar and his brother. The District Munsif directed that the name of the brother be struck off:

By consent I strike off defendant 2's name. Plaintiff will pay by consent half of his costs.

25. The only point which was in issue in second appeal was whether defendant 2 was t6 be considered to be still a party to the suit under Section 47, Civil P.C., in spite of his name having been struck off. It was held that in spite of his name being struck off, the brother continued to be party to the suit within the meaning of Section 47, Expln. There was no issue nor any decision on the point whether the order operated as a decree under Section 2 (2) of the Code.

26. The third case was an application for revision under Section 115, Civil P. C, and Section 107, Government of India Act, and arose out of a suit for possession, partition and mesne profits. There was a large array of defendants. Defendants 43 to 99 were tenants-at-will, who with the consent of the heads of the Chetties were joined as parties in order that possession may be given to the plaintiff. The plaintiff had asked for no relief against them and they were impleaded only for convenience. No substantial right had been determined between the plaintiff on one side and these defendants on the other and the effect of deleting their names did not operate to terminate the litigation altogether. Upon these grounds, it was held that the matter did not fall within the principle of the cases reported in Rama Rao v. Raja of Pittapur and Ayyamudali Velan v. Veerayee. We Ere in complete accord with the view expressed at pp. 704 and 705 (of 45 M. L. J.) and with the reasons set out there.

27. Both upon principle and authorities, we have no doubt that the order in controversy was in substance a decree as defined in the Code of Civil Procedure and was appealable as such.

28. As the applicant did not pursue the right remedy, he cannot be permitted to come up to this Court in revision and challenge the order under Section 115, Civil P.C. We dismiss this application with costs.