Kapur, J. - (1.) THIS is a rule directed against an order of Mr. Bindra, Small Cause Court Judge Delhi, holding that the Courts in Delhi had no jurisdiction to entertain the suit. The rule was issued by my learned brother Khosla, J., on 21 -3 -1950.
(2.) AS the question has now assumed some importance I took some time to decide the case. The Plaintiff Petitioner booked some goods from Lahore to Baroda, but the goods were never delivered and he brought a suit in Delhi for recovery of Rs. 321 as damages against the Dominion of India through the Ministry of Railways. The Plaintiff who is a displaced person, relied on Section 4, Displaced Persons (Institution of Suits) Act, (Act XLVII [47] of 1948), which gives the displaced persons the right to institute suits in Courts within the local limits of whose jurisdiction they reside provided the Defendant or where there are more than one, each of the Defendants actually and voluntarily resides or carries on business, or personally works for gain in India and is not a displaced person. There is no doubt that the Defendant, the Dominion of India, is not a displaced person. But can it be said that it actually and voluntarily resides or carries on business or personally works for gain in India? With the State starting commercial and industrial enterprises this question does assume a degree of importance which it did not have before, but from the reported cases which are contained in our Law Reports it appears that the Dominion of India and now the Union of India cannot be brought within the definition of the phrase "carry on business or personally work for gain in India". As long ago as the year 1887 it was held by a Division Bench of the Calcutta High Court that the Govt. of India could not be said to be carrying on business within the meaning of these words of the There the interpretation was of 12, Letters Patent - "carry on business or personally work for gain". In Subbaraya Mudali v. The Government 1 Mad. H.C. 286, Scotland, C.J., had held that by 12, Letters Patent, a personal attendance to business was intended, although the learned Chief Justice did apply these words to the Govt. But in a later judgment of the Calcutta High Court, Doya Narain Tewary v. Secy of State, a Division Bench of that Court disagreed with this judgment and held that these words were inapplicable to the Secretary of State for India in Council. The argument was addressed that although the business of governing the country was not business within the meaning of 12, Letters Patent, still as the Govt. was carrying on various trades such as the trades in opium and salt the Secretary of State would come within the words of that Section. Mitter, J., with whom Trevelyan, J., concurred, said at p. 274. But these trades are not carried on by the Defendant in this case. As already observed the words carrying on of a business or trade are inapplicable to this case. These trades, if they can be properly called trades, are carried on in one sense by the Govt. officers in charge of them, but they are so carried on for the benefit of the Indian Exchequer.
(3.) IN a later judgment of the Calcutta High Court, Rodrick v. Secy. of State 40 Cal. 308, this judgment was followed by another Division Bench. The principle there enunciated was: The Court has no jurisdiction to entertain a suit brought against the Secretary of State for India in Council, where the cause of action has arisen wholly outside the ordinary original civil jurisdiction of this Court, on the sole ground that the Secretary of State for India in Council dwelt or carried on business or personally worked for gain within the local limits of Calcutta, the capital of India at the time of the institution of this suit.;