Bose, CJ. - (1.) This appeal No. 156 of 1964 is from an order of Mallick, J. dated the 26th May 1964 refusing an application for trial of certain issues arising in the suit as preliminary issues and for examination of certain witnesses de bene esse in respect of such preliminary issues.
(2.) The suit out of which the application for trial of issues as preliminary issues arises was instituted by the plaintiffs-respondents on or about the 30th October 1961 for recovery of a sum of Rs. 8,42,500 for damages, interest and costs against the appellant Royal Nepal Airline Corporation. The cause of action as stated in the plaint is in substance as follows:- The defendant is a Corporation incorporated under the laws of Nepal having its Head-Office al Kathmandu, Nepal and it carries on business inter alia at No. 42 Chowringhee Road, Calcutta, within the jurisdiction of this Court. One Meher Singh Legha was at all material times employed as an Aircraft Pilot by and under the defendant on a basic salary of Rs. 1,800 per month. Efficiency Allowance Rs. 200 per month and Nepal Allowance Rs. 500 per month aggregating to Rs. 2,500 per month besides Overtime Allowance at rates mentioned in the letter of appointment. On the 5th November 1960 the said Meher Singh Legha was in course of his employment under the defendant acting as the Captain and/ or was in charge of plying a Dakota Aircraft belonging to the defendant which took off from Bhairwa Aerodrome in Nepal for Pokhra at about 2 p.m. Within three or four minutes after such taking off the aircraft instead of proceeding towards Pokhra was returning to Bhairwa and was attempting to land at the Bhairwa Aerodrome. During such attempted landing the air-craft crashed near the Bhairwa Aerodrome and the said Meher Singh died shortly after as a result of the said crash. The said air crash of accident and the death of the said Meher Singh was due to negligence and/or breach of duty on the part of the defendant. The particulars of such negligence are set out in paragraph 7 of the plaint. In paragraph 8 of the plaint it is stated that the said air craft was at all material times owned, looked after, maintained and/or managed by the defendant. In paragraph 12 of the plaint it is stated that Mener Singh Legha died intestate leaving plaintiff No. 1 his sole widow, plaintiffs Nos. 2 and 4, his minor sons and the plaintiff No. 3 his minor daughter as his sole heirs and legal representatives and the plaintiffs have by reason of the death of Meher Singh suffered loss and damages which the plaintiffs assess at Rs. 8,42,500. The particulars of such loss and damage are set out in paragraph 15 of the plaint.
(3.) The defendant entered appearance on or about the 2nd February 1962 and filed its written statement on or about the 19th February 1962. In the written statement it is denied that the defendant carried on business at premises No. 42 Chowringhee Road or any other place in Calcutta either within the jurisdiction of this Court or otherwise and the Company known as Jamair Co. (Private) Ltd. acts as an agent of the defendant in Calcutta for the limited purpose of handling ground services and general sales as mentioned in the agreement entered into between the defendant and the said Company on the 9th December 1959. The said Jamair Co. is an independent Contractor and has its business in Calcutta and other places. It is further denied in the written statement that the defendant Royal Airline Corporation is a body corporate or that it is incorporated under the Royal Nepal Airline Corporation Act, 2014 S. Y. It is alleged that the defendant is functioning under the direct supervision and control of the Government of Nepal through a Governing Body and an Administrator and in the premises the suit in its present form is not maintainable. These allegations are contained in paragraph 2 of the written statement and without prejudice to these contentions the merits of the case are dealt with in the subsequent paragraphs of the written statement being paragraphs 4 to 24 thereof and in paragraph 25 it is stated that the plaintiffs were without prejudice offered a sum of Rs. 35,000 on account of compensation for the death of Meher Singh in course of employment but the plaintiffs refused to accept the same. In paragraph 26 of the written statement it is alleged that this Court has no jurisdiction to entertain and try this suit. In paragraph 27 it is stated that the suit is not maintainable and in paragraph 28 it is stated that there is no cause of action and the suit should be dismissed with costs.;