Sinha, J. - (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: "That this suit be placed on the peremptory list of suits after one month from the date hereof, for trial of the following preliminary issue, viz.,"As to whether or not the liability, if any, of the Governor-General of India in Council, in respect of the cause of action alleged in this suit has devolved upon the Dominion of Indian or its successor the Union of India'."
(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: "8(1) 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 exclusively purposes of the Dominion of Pakistan, be deemed to have been made on behalf of the Dominion of Pakistan instead of the Governor-General-to-Council, and (b) in any other case, 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, be rights or liabilities of the Dominion of Pakistan or the Dominion of' India as the case may be." The "appointed day" was 15-8-1947.
(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.;