1. The facts of this case are very simple. Plaintiffs are the firm of K.E.P.T.V. Draviyam Pillai and Venkatachellam Pillai. They are registered in the voting register of the Tuticorin Municipality as 'K.E.P.T.V. Draviyam Pillai and another.' Note (1) to Rule 4 of the rules promulgated by Government under Section 250(1)(a) of the District Municipalities Act provides that a firm desirous of voting, 'when entitled to be registered, must cause the nams of a partner, member, agent or secretary to be entered in the register maintained under Rule 3 supra, as their representative, and he alone shall be entitled to vote on behalf of the Company or family.' This rule has been interpreted in G.O. No. 2020 M, dated 27th September 1905, as follows: 'it is the duty of the Chairman to see that proper representatives for purposes of voting arc registered by the Companies, Associations and undivided families entitled to such privileges and brought on the register of voters at the time of its preparation:
2. There is, however, no objection to the registration of the representatives of these bodies or to modifications of such registration under the note 1 to Rule 4 at any time during the year. The nomination of a representative does not necessarily constitute an amendment of the register of voters, but is merely by way of subsidiary instruction which is essential to make the accepted list effective.
2. A Municipal election was held in Tuticorin on 6th October 1910. On the previous day the following petition was presented to the Chairman (1st defendant)(Exhibit N):
The petition written by K.E.P.T.V. Draviyam Pillai and Venkatachellam Pillai of the said place is as follows:
We request that Venkatachellam Pillai of us would be accepted as a representative of us two and that his name be registered in the voters' register of the 5th ward.
3. The following order was passed on this by the 1st defendant apparently early on the following day (6th October 1910):
Rejected.... The names of both the persons mentioned in this, do not appear in the voter's list.
4. When Venkatachellam Pillai presented himself on that day at the polling booth, 2nd defendant who was the identifying officer referred him to this order and refused to allow him to vote. He, therefore, did not vote. The firm now sue for Rs. 1,000 damages.
5. That the order of the 1st defendant on Exhibit N was not justifiable is admitted by the District Judge. He says:
There can, T think, be no doubt that under the rules, 1st defendant had power to allow Venkatachellam Pillai to vote as the firm's representative. The description in the list, however ambiguous, could have been modified by him and no reason is shown why he did not modify it and allow Venkatachellam Pillai's vote. I must, therefore, hold that he exercised his discretion wrongly in disallowing the vote.' He has, however, dismissed the suit, holding on the supposed authority of Chunilal Maneklal v. Kirpashankar 8 Bom. L.R. 838, that malice, meaning presumably 'express malice', is necessary to sustain the action and that such malice is not proved.
6. In our opinion the word 'malice' which occurs in the penultimate sentence of the reported judgment in that case, means nothing more than a lack of bona fides. The learned, Judges merely lay down that an officer in a position of this kind 'is not liable to a suit because he made a mistake in good faith in determining questions that arose for his decision.' Vide also Sabhapat Singh v. Abdul Gaffur 24 C. k 107. The real test is whether 1st defendant when he passed his order was acting 'in good faith', which, implies 'due care and diligence.'
7. Viewed from this standpoint, we find it impossible to exonerate the 1st defendant. The grounds on which he seeks to justify his action are these, as set out in paragraph 6 of his written statement: 'Under these circumstances, as in the suit petition which was received by defendant on 6th October 1910, it was requested that the name of Venkatachellam Pillai, an individual not found in the said list, may, be newly entered therein as the representative of two persons named in the petition, and as in the said petition the name of the particular firm of which that individual was required to be registered as the representative was not clearly described, and' as it was not clear that the voter numbered as 1.36 was the said identical firm under the name K.E.P.T.V. or if it referred to the two individuals named in the suit petition and as an objection petition had been received in connection with vote No. 136, the defendant reasonably surmised that he had no authority to grant an order in compliance with the petition and in accordance with law and mamonl, and to the best of his discretion rightly and with bona fide intentions, the defendant came to be of opinion that it could not be registered as requested in the petition and in pursuance of this opinion, the endorsement on the suit petition was made.' Now as regards this, it may be observed (1) that the 1st defendant, as Chairman, was himself responsible for the ambiguous entry of Draviyam Pillai and another' in the voting register, (2) that if he entertained any doubt of the identity of Venkatachellam Pillai with the person entered as another' it was easy and his plain duty to hold an enquiry, (3) that in a precisely similar case a firm was allowed to record a vote by a representative, although the names of all the partners were not specified in the voting register (vide paragraph 16 of the District Munsif's judgment), and (4) that the mere presentation of an objection petition by someone else could not possibly be an excuse for denying to plaintiffs their right of voting or, at any rate, for refusing to enquire into whether they did possess such a right. His learned Vakil has suggested that the G.O. above referred to has no legal effect and that it is doubtful if the Chairman has power to enter the name of the representative in the register except at the time of its preparation or revision. We see no reason to put a different interpretation on the rule than that set forth in the G.O. But, however this may be, the 1st defendant never pleaded that his action was in any way influenced by doubts on this score, and this argument cannot be considered in judging of his good faith. In our opinion, the 1st defendant was not acting in good faith in rejecting the petition, Exhibit N', and he is liable for damages. We see no reason to call for a finding from the lower Appellate Court as to the amount, as there is no basis for assessment; and we agree with the District Munsif that the plaintiffs are only entitled to nominal damages.
8. The decrees of the lower Courts will be set aside and the plaintiffs will be given a decree for Rs. 50 damages and full costs throughout against the 1st defendant only. Plaintiffs seek for no remedy in this Court against the 2nd defendant, who is exonerated; but we make no order as to his costs.