TRILOCK CHAND AGARWALLA Vs. DOMINION OF INDIA

JUDGEMENT

(1.) THIS appeal can be disposed of on two points of (1) jurisdiction of the court and (2) notice under section 77 of the Indian Railways Act. The learned trial Judge dismissed the plaintiff's suit and held against the plaintiff on both these points. The plaintiff is the appellant before us. Before discussing and deciding these two points it will be useful to make a short reference to the facts. The plaintiff instituted the suit on the 11th November, 1948 as a commercial cause against the Dominion of India describing it as the successor of the former Central Government which owned the Bengal Assam Railway carrying on the business of carriage of articles and having its principal place of business at No. 3, Koilaghat Street, Calcutta. The plaintiff's case is that he is a displaced person within the meaning of the Displaced Persons (Institution of Suits) Act, 1948. His pleading in the plaint is that he left Bogra in East Bengal which is now in East Pakistan in the last week of August, 1947 and since then he alleges that he has been residing at 39, Netaji Subhas Road in the town of Calcutta and has been carrying on business there within the jurisdiction of this court. The plaintiff pleads that on the 30th July, 1947 he delivered to the Bengal Assam Railway 139 bags of Zeera (cummin seed) weighing 211 mds. 39 srs. and 7 bags of dry chilies weighing 7 mds. 10 srs. and the said Railway received and accepted the same for the purpose of carrying them by railway from Bogra, to Siliguri in India. The Railway granted the plaintiff a receipt being Receipt No. 917207 dated the 30th July, 1947. The plaintiff's case is that the Railway failed to deliver those goods at Siliguri. The plaintiff pleads loss or destruction of these goods by the negligence or want of due care and diligence on the part of the Railway or its staff. The plaintiff claims a sum of Rs. 22,065/- as being the value of the goods lost. He pleads having given due notice under section 77 of the Indian Railways Act and section 80 of the Code of Civil Procedure. It is further pleaded in the plaint that under the provisions of Indian Independence (Rights, Properties and Liabilities) Order, 1947 and also under. the general law the defendant, Dominion of India, is liable to pay the said sum.

(2.) THE Dominion of India in its written statement denied all liability. It denied that it was a successor of the former Central Government which owned the Bengal Assam Railway. It denied the fact that the plaintiff was a displaced person within the meaning of the Displaced Persons (Institution of Suits) Act, 1948. It denied liability for the said sum of Rs. 22,065/-or any part thereof. It denied that any portion of the alleged railway line from Bogra station to Siliguri station on the Bengal Assam Railway was a railway which devolved on the defendant. It pleads that the said portion from Bogra Railway station to Siliguri Railway station, from the appointed day, the 15th August, 1947, was administered and worked by the Dominion of Pakistan. Therefore, it pleads that any contract, made by the Bengal Assam Railway as it was before the appointed day, on the said portion from Bogra to Siliguri Railway station, was exclusively for the purposes of the Dominion of Pakistan and as such the contract under the Indian Independence (Rights, Properties and Liabilities) Order, 1947 must be deemed to have been made on behalf of the Dominion of Pakistan. The further defence is that the suit is incompetent and is not maintainable and that no part of the alleged cause of action the existence of which is denied arose within the jurisdiction of this court. The defendant pleads that this court has no jurisdiction to entertain and try the suit.

(3.) I shall take up first the point of jurisdiction. The learned trial Judge has found as a fact that the plaintiff is a displaced person within the meaning of the Displaced Persons (Institution of Suits) Act, 1948. I shall assume in favour of the Appellant, that conclusion to be right. The question then is: Does that statute give the right to the plaintiff as claimed by him to file the suit in this court here against the Dominion of India ? Reliance is placed on behalf of the appellant on the provisions of section 4 of the Displaced Persons (Institution of Suits) Act, 1948. That section provides as follows :