ELAHI BUX Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a suit which was filed by the plaintiff against the Governor-General-in-Council, in or about 11-8-1947, for a decree for Rs. 62,562/- and other reliefs. The plaintiff is a military contractor and entered into a contract with the military authorities on or, about 12-11-1943, for the construction of various works at Comilla, including latrines for the use of the military forces. The plaintiff executed the said contract. It is stated in the plaint that the bill was duly submitted to the Commander Royal Engineers at Ghittagong on 15-12-1945. This bill has not been paid. The suit was originally filed against the Governor-General-in-Council. On 15-3-1950, the plaintiff made an application for amending the cause-title & body of the plaint by substituting the "Union of India" in the place & stead of the Governor-General-in-Council. On 27-4-1950, an order was made by Bachawat, J. ordering substitution & further directing as follows:

(2.) This preliminary issue has now come up before me to be tried. The plaintiff has gone to the box and tried to give evidence of what happened to the constructions at Comilla. He, however,, could only say about it from what he heard from others, who were not called. This is no evidence & I cannot accept it. The defendant has called no evidence. The point has therefore to be decided as a point of law. Both parties agree that the decision of the issue rests on the construction of Article 8(1) of the Indian Independence (Rights, Property and Liabilities) Order 1947, which runs as follows:

(3.) Mr. Masud appearing on behalf of the plaintiff, argues that on the appointed day, the contract had already been executed and as such, there could not be a 'purpose' on that day. According to him, the purpose of an executed contract is the original purpose, which existed when the contract was actually being implemented. As this contract was for military purposes which, at the time of entering into the contract and during the, period, it was being carried out, was not exclusively for the purposes of the Dominion of Pakistan it came under the residuary liability under Article 8(1) (b) and the Union of India was liable.