P C MAHANTI Vs. UNION OF INDIA
HIGH COURT OF CALCUTTA
UNION OF INDIA
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Bose, J. -
(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 --
(1) is the suit maintainable in view of the fact that no notice under Section 80 of the Code of Civil Procedure was served upon the Union of India? and (2) In any event, is the Union of India liable inasmuch as the goods were to be conveyed to a place in Pakistan under the Indian Independence (Rights Properties and Liabilities) Order, Article 8(1). Both these points were decided by the learned trial Judge against the appellant, and the suit filed by the appellant was, therefore, dismissed.
(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 :
"Any contract made on behalf of the Governor-General-in-Council before the appointed day shall, as from that day -- (a) if the contract is for purposes which as from that day are exclusive purposes of the Dominion of Pakistan, be deemed to have been made on behalf of the Dominion of Pakistan instead of the Governor-General-in-Council; and (b) in any other case to be deemed to have been made on behalf of the Dominion of India instead of the Governor-General-in-Council; and all rights and liabilities which have accrued or may accrue under any such contract shall to the extent to which they would have been rights or liabilities of the Governor-General-in-Council, be rights or liabilities of the Dominion of Pakistan or the Dominion of India as the case may be." The question is whether the mere fact that the station where the consignment was to be delivered under the contract of carriage was in Pakistan makes the purpose of the contract an exclusive purpose of the Dominion of Pakistan. It appears to us that the answer to this question should be in the affirmative. It is true that in a contract of carriage of goods over a Railway from a station in the Union of India to a station in Pakistan the goods will have to travel over a portion of the Railway which belongs to the Indian Union and a portion of the Railway which is in the territory belonging to the Dominion of Pakistan. But this circumstance by itself cannot be said in my view to make the purpose of the contract other than the exclusive purpose of the Dominion of Pakistan. The real purpose of the contract of carriage in the present case was that the goods had to be carried up to Parbatipur and delivered there. If the goods had been carried, say, half-way and delivered there while the goods were still on the portion of the Railway which is in the territory of the Union of India, the purpose of the contract could not be said to have been carried out or fulfilled. It was the delivery of the goods at the destination station which was the real purpose of the contract. So, the purpose of the contract being delivery at Parbatipur, as soon as the goods would be delivered at the destination station, it is the Dominion of Pakistan alone who would ultimately get control or custody of the goods and it is the Government of the Dominion alone which would be in a position to deal with these goods as they liked. They might make over the goods to the consignee or might not as they chose to do, and if they did not deliver the goods, the liability would be of that Dominion. The Union of India would have no control over such goods, the moment the goods passed into the territory of the Dominion of Pakistan. So, tested in this light, it can be reasonably said that the purpose of the contract of carriage in the present case was an exclusive purpose of the Dominion of Pakistan. This very question came up for consideration before a Division Bench of this Court in the case of Krishnaranjan Basu Ray v. Union of India. It was held by Das Gupta and Deba-brata Mookerjee JJ. that in case of goods booked with a railway the purpose of the contract within the meaning of Article 8 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, was the carriage of goods and where the destination was some point in Pakistan; the purpose was the purpose of Pakistan. There, on the contrary, the carriage was to a point which remained in the Indian Dominion, it would be a "purpose" of the Dominion of India. The profit earning motive of either party to the contract is not the criterion by which "purpose" within the meaning of Article 8 is to be judged. In that particular case, a consignment of torch lights and batteries had been booked with the Bengal and Assam Railway to be carried from Sealdah to a station which after the partition of India became part of the territory of the Dominion of Pakistan and the learned Judges came to the conclusion that the purpose of this contract of carriage was the exclusive purpose of the Dominion of Pakistan. They held that there was no cause of action against the Union of India and the suit as against the Union of India had been rightly dismissed.;
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