1. The short point for decision in the present case is whether the civil Courts at Jullundur have jurisdiction to entertain a suit brought by a displaced person from Pakistan against the Government of the Punjab (India) in respect of a cause of action which arose wholly within the territories of Pakistan.
2. The appellant in this case is a displaced person from Pakistan. He was convicted for haying contravened the provisions of a certain Ordinance in a part of the United Punjab which is now a part of Pakistan and certain articles belonging to him were confiscated to the Crown. He was acquitted on appeal on 9-8-1947 and the goods which were confiscated to the Crown were ordered to be restored to him. When the country was partitioned on 15-8-1947 the appellant migrated to India and took up his residence in Jullundur. On 7-5-1951 he brought an action against the Punjab (India) Government in the Court of a Subordinate Judge at Jullundur for the recovery of a sum of Rs. 900/- on account of the price of those goods.
The Punjab Government raised a preliminary objection that the Courts in Jullundur had no jurisdiction to deal with this case and this objection was upheld both by the trial Court and the Senior Subordinate Judge. When the second appeal came up for hearing before this Court, a learned Single Judge expressed the view that it is inequitable that although a person displaced from Pakistan may have a perfectly legitimate claim against the Government of this country, we should not be able to enforce that claim because the cause of action had arisen in a part of the country which is now a part of Pakistan. As this appears to be an unsatisfactory state of affairs, he has referred this case to a Division Bench for decision.
3. The suit out of which this appeal has arisen was instituted under Section 4, Displaced Persons (Institution of Suits) Act, 1948. The relevant portion of this section runs as follows:
'A displaced person may institute a suit in Court within the local limits of whose jurisdiction he or the defendant or any of the defendants, where there are more than one at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, if --
(i) 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;
(ii) the cause of action, wholly or in part, arises or has arisen in a place now situate within the territories of Pakistan;
(iii) the Court in which the suit is instituted is otherwise competent to try it; and
(iv) the suit does not relate to immovable property.'
4. A displaced person can take advantage of the provisions of this Act if he satisfies the conditions mentioned in Section 4 Including the condition that the defendant carries on business or personally works for gain in India. It has been held repeatedly that the work carried on by a Government in governing the country cannot be regarded as business carried on by Government, vide -- 'Subbaraya Mudali v. The Govt. 1 Mad H. C. B. 286 (A); -- Doya Narain v. Secy. of State', 14 Cal 256 (B); -- 'Rodricks v. Secy. of State', 40 Cal 308 (C); -- 'Wyllie R. J. & Co. v. Secy. of state', AIR 1930 Lah 818 (D) and -- 'Dominion of India v. Nath & Co., Khulna', AIR 1950 Cal 207 (B). As the present suit has been brought against the Punjab Government and as one of the conditions mentioned in Section 4 has not been satisfied, the help of the Act of 1948 cannot be invoked.
5. Assuming for the sake of argument that the Courts in Jullundur had Jurisdiction to deal with the ease, the question arises whether the plaintiff has a good legal claim against the Punjab Government. When the Indian Independence Act was enacted by the British Parliament on the advice of the principal political parties in India, Parliament conferred power on the Governor-General to make certain Orders, and in exercise of the power so conferred the Governor-General promulgated the Indian Independence (Rights, Property and Liabilities) Order, 1947, for the initial distribution of rights, property and liabilities consequential on the setting up of the Dominions of India and Pakistan.
Paragraph 10 of the said Order declares that where immediately before 15-8-1947 the Governor-General in Council is subject to any liability in respect of an actionable wrong other than breach of contract, that liability shall, where the cause of action arose wholly within the territories which, as from the said 15-8-1947, are the territories of the Dominion of Pakistan, be a liability of that Dominion.
As Government in the present case omitted to restore the goods to the plaintiff in pursuance of the order of 9-8-1947, the original liability must be deemed to be that of the Governor-General in Council and as the cause of action arose wholly within the limits of the Sheikhupura district which now forms part of the Dominion of Pakistan, the plaintiff's action can lie only against the Government of Pakistan and not against the Government of India or the Government of Punjab (India). The Government of Pakistan has not been impleaded as a defendant. Even if it had been impleaded and even if a decree had been passed against it, the decree would have been of no consequence for the Courts of this country have no power to enforce decrees against Governments of foreign countries.
6. For these reasons, I would uphold the order of the Courts below and dismiss the appeal. There will be no order as to costs.
7. I agree.