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Colonial Cases

The Municipal Officer of Aden v. Haji Ismail Haji Allana and others, 1905

[land law, religion]

The Municipal Officer of Aden v. Haji Ismail Haji Allana and others

Judicial Committee of the Privy Council

17 November 1905

Source: The Times. 18 November 1905

 

LAW REPORT, NOV. 17.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

(Present - Lord Macnaghten, Sir Ford North, Sir Andrew Scoble, and Sir Arthur Wilson.)

THE MUNICIPAL OFFICER OF ADEN v. HAJI ISMAIL HAJI ALLANA AND OTHERS.

This was an appeal from a judgment of the High Court of Bombay of July 7, 1903.

Mr. Arthur Cohen, K.C., and Mr. A. Phillips were counsel for the appellant; Dr. Herbert Birdwood appeared for the respondents.

The suit was brought by the respondents against the Municipal Officer of Aden to recover possession of certain land with buildings which had been dedicated for the reception of Mahomedan pilgrims to Mecca, and of which the respondents claimed to be the managers and custodians. The Municipal Officer challenged the respondents' title and stated that he had acted under the orders of the Resident in evicting them for breach of the conditions of the grant of the property. The respondents, desiring to have the suit tried in the High Court of Bombay, applied to the tribunal for the transfer of the action to the High Court on the ground that the suit ought not to be heard by the Political Resident at Aden on account of his having ordered the dispossession of the original plaintiff. The High Court granted the application for transfer of the suit for trial and determination by the High Court in its extraordinary original jurisdiction. That order was made under Clause 13 of the amended Letters Patent of the High Court, which empowered them "to remove and to try and determine, as ourt of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Presidency of Bombay, subject to its superintendence when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for the purposes of justice."

From that order the Municipal Officer appealed, alleging that the Resident's Court at Aden was not subject to the superintendence of the High Court of Bombay within the meaning of Clause 13 of the Letters Patent for the High Court or of Section 15 of the Charter Act, and that the High Court had no power to make the order under appeal.

At the close of the arguments for the appellant, the learned counsel for the respondents was not called on.

Lord Macnaghten intimated that their Lordships would humbly advise his Majesty to dismiss the appeal with costs. They would give their reason for that advice on a future occasion.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School