P C MAHANTI Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal which is from a decision of Mr. Justice G.K. Mitter arises out of a suit brought by the appellant against the Union of India for damages for non-delivery of certain goods entrusted to the then Bengal and Assam Railway on or about 15-9-1944 for carriage from Calcutta (Sealdah) to Parbatipur Station. As the goods were not delivered to the appellant at the destination station, the appellant filed a suit against the Governor-General-in-Council and the Bengal and Assam Railway in the Court of the Subordinate Judge at Dinajpore on 20-11-1945 after giving notice under Section 50 of the Civil Procedure Code on 27-8-1945. The Subordinate Judge of Dinajpore which became a part of Eastern Pakistan after the Partition of India on 14-8-1947 passed a decree in favour of the appellant for Rs. 25,000/- against the defendants after contest on 19-2-1949. While this decree remained unsatisfied, the Government of India promulgated an Ordinance known as Indian Independence Pakistan Courts (Pending Proceedings) Ordinance in October, 1951 whereby certain decrees passed by Pakistan Courts imposing liability or obligation on the Governor-General-in-Council were rendered ineffective and the Ordinance conferred on the holders of such decrees a right to institute a fresh suit or other legal proceedings in respect of the cause of action on which such decree was based within a certain time and under certain conditions mentioned in the Ordinance. This Ordinance was subsequently replaced by an Act, being Act IX of 1952, which was known as the Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952 and which came into force on 23-2-1952. On 31-1-1953 the appellant filed the present suit out of which this appeal arises in this Court under the provisions of this Act IX of 1952.

(2.) Two points were urged before the learned trial Judge --

(3.) Before us the first contention that has been raised on behalf of the appellant is that the learned trial Judge is wrong in his finding that Article 8(1) of the Indian Independence (Rights, Properties and Liabilities) Order 1947 applies to the facts of this case and, therefore, the Union of India is not liable. It is argued that as the contract in this case was a contract of carriage of the goods from a station which on 14-8-1947 became part of the territories of the Dominion of India to a station in Pakistan (Parbatipur), the purpose of the contract cannot be said to be a purpose which is exclusively of the Dominion of Pakistan within the meaning of Article 8(1) of the Indian Independence (Rights, Properties and Liabilities) Order, 1947, and the mere fact that the destination station was in Pakistan and the goods were ultimately deliverable there, did not make the contract one exclusively for purposes of Pakistan. Article 8 of the Indian Independence (Rights, Properties and Liabilities) Order, 1947 may be set out hereunder :