1. The plaintiff filed this suit against the defendants to recover a sum of Rs. 2,000, alleging that he was employed as a salesman by the Continental Garage to sell their Diesel Tracks. The defendants were stated to be the owners of the said garage. The suit was filed on January 21, 1939. On behalf of defendant No. 2 a written statement and counter-claim was filed on February 15, 1939, in which the claim was disputed and it was contended that the plaintiff had wrongfully appropriated to himself the sale proceeds of a 10 H.P. new Adler Car. The counter-claim was to recover the sale proceeds of that car.
2. The parties thereafter made their affidavits of documents. That was the position when the war broke out in September, 1939. Defendant No. 2 being an alien enemy has been put in an internment camp since then. The plaintiff thereafter settled the suit with defendant No. 1 and the suit has now to proceed against defendant No. 2 only.
3. In January this year the suit came on the board of Blackwell J. when an adjournment was asked for on behalf of defendant No. 2. The attorneys had prepared no grounds for. the application. The learned Judge thereupon made an order adjourning the suit till March and made the attorneys personally pay the costs of the adjournment. The matter has now come before me and an affidavit of Ramkrishna T. Pandit dated February 27, 1941, is filed in support of the application for further adjournment. That puts on record the correspondence which took place between defendant No. 2 and his attorney in respect of the prosecution of the suit. The application is on the ground that the presence of defendant No. 2 is necessary to prosecute his defence and counter-claim and in his absence it is not possible to do so. It is pointed out that instructions from defendant No. 2 are required for the plaintiff's cross-examination. The counter-claim is a part of the suit and is not a substantially different transaction.
4. On behalf of the plaintiff it is urged that because defendant No. 2 is an alien enemy he has absolutely no right to maintain the litigation. It is urged that under Government of India Notification, Political Department, dated April 4, 1940, rules and procedure are prescribed for the production of an internee in Courts. According to those rules, in a civil litigation, an internee cannot be removed from the internment camp for the purpose of appearing in civil Courts. Under Sub-rule. (3); of Rule 12A in any case where the evidence of an internee is required for any proceeding in a civil Court, the provisions of Section 44 of the Prisoners Act apply. That section deals with the taking of evidence of a prisoner on commission. From this it is argued that the only procedure open to defendant No. 2 is to apply for a commission for his examination and the adjournment of the suit will defeat the plaintiff's claim. In this connection my attention has been drawn to Robinson & Co. v. Continental Insurance Company of Mannheim  1 K.B. 155. There the question arose during the last world war of 1914. In that case the claim was based on a policy of insurance. The policy was effected before the war and the loss was before the war. Pleadings were also closed before the war. On behalf of the defendant company it was argued that on the breaking out of hostilities all litigation). to which an alien enemy was a party should be suspended. That wide proposition, Bailhache J. refused to accept. His judgment is in, two parts. In the first part the learned Judge considered the abstract question whether on the outbreak of hostilities every litigation pending in British Courts to which an alien enemy was a party should be suspended. He held that it was not suspended. He observed that according to British jurisprudence and civilisation a foreign enemy subject could defend an action filed against him before the war and as stated in Bacon's Abridgement, Vol. I, p. 183, an alien enemy can also take steps to compel the appearance of his witnesses and may have the benefit of discovery. The argument that to allow an enemy to defend would be helping the enemy was rejected. The second part of the judgment runs as follows (p. 161):--
In this case I understand that the presence of the alien enemy in this country at the trial is not necessary and is not contemplated, and no difficulty arises such as might otherwise be created by the impossibility of his getting here. . . . It may be that in this case the war has so hampered the defendants in the preparation of their case, in their witnesses, or in other ways, that it would be right to grant them a postponement on those grounds. If any application is made to postpone the trial on grounds of that character it will be dealt with on its merits.
5. These observations clearly show that on the grounds mentioned therein an application for adjournment may be entertained.
6. In my opinion under the circumstances of the present case defendant No. 2 is entitled to the adjournment. The notification in the Government of India Gazette prevents defendant No. 2 from being brought into Court in a civil litigation. Sub-rule (3), which permits his evidence being recorded on commission, is framed so as to enable an internee to be examined as a witness. That may be in a case where he is not himself a party. If in this case his evidence alone was required and the case could have proceeded on that evidence, there would have been no necessity for an adjournment and I should have refused the application for adjournment. If the evidence of defendant No. 2 was taken on commission, he could only deny the alleged agreement mentioned in the plaint generally. His presence in Court appears to be essential in order to give instructions to his attorneys and counsel to cross-examine the plaintiff when he gives evidence. The agreement mentioned in the plaint to appropriate the sale proceeds of the Adler Car for commission earned by the plaintiff is oral and therefore the details of the alleged agreement are only known to the parties personally. If it is conceded that an alien enemy is entitled to defend an action brought against him, as observed by Bailhache J., in a proper case, where his presence is found essential and necessary for his defence, to refuse an adjournment will be denying him the right to defend. If under any conditions his presence in Court could have been procured, it would be his duty to take steps in that direction. The Government notification, as framed, in terms, is absolute and it appears that as matters stand now it is not possible for him to come out under any conditions and give instructions for cross-examination of the plaintiff and his witnesses when they give evidence. To refuse the application of defendant No. 2, under the circumstances, would be to refuse him the right to defend, which according to the British jurisprudence and civilization has always been recognised. I therefore can-not accept the plaintiff's contention that the adjournment should he refused.
7. It was argued that the custodian of enemy property was disposing of defendant No. 2's property and the result of the adjournment will be that when a decree is passed in favour of the plaintiff he will be unable to recover anything. I have no evidence in respect of the alleged attitude of the custodian of enemy property. Even if it were so, I consider that it would hardly be a ground to deny defendant No. 2 a right to defend. The plaintiff may take necessary action to prevent the distribution of the assets of the alien enemy while an adjudication of his claim is pending in Court, and he is unable to prosecute it because of circumstances over which he has no control.
8. The suit is therefore adjourned either till defendant No. 2 is permitted according to the law of the land to appear and give instructions to his solicitors to defend the action or sine die till the termination of the hostilities. Defendant No. 2 must pay the costs of this adjournment in any event as the adjournment is not occasioned by any fault of the plaintiff. Blackwell J. fixed those costs at Rs. 60 and I consider that figure as fair costs of this application. The custodian of enemy property will under this order be authorised to pay this sum out of the assets, if any, in his hands of defendant No. 2 or of the Continental Garage which is claimed by defendant No. 2 as his property if he is satisfied that the same belonged to defendant No. 2.