R.P. Mookerjee, J.
1. The plaintiff respondent brought the suit out of which the present appeal arises for recovery of Rs. 5,570/-, being the price of a motor vehicle which had belonged to his father and which had been delivered to defendant No. 2 Messrs. W. Leslie (Motors) under the directions of the Provin-cial Transport Authority purporting to be under the provisions of Civil Motor Transport Vehicles Control Order, 1944. There was a further claim for damages against the defendants.
2. The plaintiff had impleaded the State (then the Province) of West Bengal as defendant No. 1 and Leslie (Motors) as defendant No. 2. Although notices of the filing of the suit were duty served on the province of West Bengal neither did the Province appear nor file any written statement in the trial Court.
The defendant No. 2 filed a written statement admitting that the motor vehicle in question had been received in their workshop for submitting an estimate for repairs to the Government.
No sanction of the estimate submitted was received and the Vehicle has been lying with them, at the risk and responsibility of the person entitled to the same, Leslie (Motors) denied all liability for the price of the Vehicle or for compensation.
3. The learned Subordinate Judge dismiss-ed the claim as against Defendant No. 2 and decreed the suit ex parte against the Province of West Bengal.
4. Although no steps had been taken on be-half of the Government in the trial Court the present appeal has been filed on behalf of the State of West Bengal. It has been argued on behalf of the appellant that even on the materials in the record the State was not liable in any way. If there be any liability, that is of Defendant No. 2.
5. Alternatively it is contended that if the Court is not in a position to decide the dispute on the materials in the record the case may be remitted to the trial Court for re-hearing on such terms and conditions as to this Court may seem fit and proper.
6. The real dispute, therefore in this appeal is as between the appellant defendant No. 1 and Respondent Defendant No. 2.
7. The principal question that falls to be decided depends on the interpretation of certain provisions of the Civil Motor Transport Vehicles Control Order, 1944. For a proper appreciation of the terms of the Control Order, reference will have to be made to the circumstances under which this Control Order was promulgated as well as to some of We relevant provisions,
8. During the last world war, various control orders were Issued under Sub-Rule (2) of Rule 31 of the Defence of India Rules. On 12-1-1944, the Central Government promulgated the Civil Motor Transport Vehicles Control Order 1944 repealing the Lease/Lend Vehicles Control Order 1943, subject to the continuing effect of orders passed under the latter Order. This Control Order of 1944 applied :
'To all motor vehicles of the description giv-en in the First Schedule to this Order which have been or may hereafter be released for civil use under orders of the Central Government including all vehicles to which the Lease/Lend Vehicles Control Order 1943 applied immediately, before the commencement of the Order'.
9. It is the admitted case of the partial that the motor bus in dispute comes within the description given in the First Schedule.
10. The Second Schedule of this Order given the list of dealers; one of those is Messrs. W. Leslie (Motors) Calcutta 30, Chittaranjan Avenue --Defendant No. 2 in these proceedings.
11. Clause (5) of this order provided : '5. (1) Save as provided in Sub-clauses (2) and (3) no distributor, dealer or sub-dealer shall sell onotherwise dispose of or offer to sell or otherwise dispose of, any controlled motor vehicles.
'(2) The Central Government may by special order require any distributor, dealer or sub-dealer to sell or otherwise dispose of any controlled motor vehicle In his possession in such manner as may be specified in the Order; and the distributor, dealer or sub-dealer, as the case may be, shall comply with such requirement.
'(3) Subject to any order made under Sub-clause (2) and to such general or special instructions, as the Central Government may from time to time issue for securing a proper distribution, a controlled motor vehicle may be sold or otherwise disposed of -
(a) by a distributor to a dealer; or
(b) by a dealer, to a sub-dealer within the dealer's area of supply
(c) by a dealer or sub-dealer in accordance With a sale order.
(4) No dealer or; sub-dealer shall without good and sufficient cause fail to comply with any sale order issued upon him and presented by the person named therein.
'(5) No dealer or sub-dealer shall, as a consideration for the sale or disposal by him of a controlled motor vehicle -
(a) take, or make allowance for, any other motor vehicles save in accordance with the written orders of the Provincial Motor Transport Controller;
(b) demand or receive any amount or other consideration in excess of the price specified in the sale order'.
12. Clauses 8 and 11 are as follows: '8. The figure and letters of the registration mark of a controlled motor vehicle shall be in yellow upon a black ground, and there shall follow, or be placed below, the mark, in letters and figures of two-thirds the size of those in the registration mark, the letter C followed by the serial number of the sale order relating to the Vehicle.
'11. Any person having in his possession or custody or under his control any controlled motor vehicle, shall, on being required so to do by an order in writing of the Central Government or the Provincial Motor Transport Controller, deliver it in accordance with the order'.
13. Bearing these provisions in view we proceed to state the relevant facts and the basis of the claim of the plaintiff. Bus No. BLU 252 was being plied by the plaintiff for motor transport business in the town of Howrah. The plaintiff was using the said bus on the strength of a transfer which was recorded in the Blue Book in his name by the Registering Authority on 9-11-1945 (Ex. 2).
The bus had originally belonged to his father and had come to the plaintiff on the death of the former.
14. On 23-2-1946 the following memorandum was issued in favour of the plaintiff on behalf of the Provincial Transport Commissioner & Secretary to the Government of West Bengal. As the effect of this Order is the subject-matter of the dispute between the parties it may be quoted in extenso.
'Government of Bengal,
No. 1423 -- T,
Dated, Calcutta, the 23rd February '46
Prom: Provincial Transport Commissioner & Secretary to the Government of Bengal (Ex-Offi-cio).
To Lakshmi Narayan Singh,
36/1, Kantapukur Road, Kadamtola, How-rah.
In continuation of paragraph of this Depart-, ment Memorandum No. 8354--T dated 17th December, 1945 the undersigned is directed to state that according to Clause 8 of the Civil Motor Transport Vehicles Control Order 1944, the controlled Ford Bus BLU 252 which was released to Babu Ramtahal Singh, Howrah under Sale order No. Ben. 1893, dated the 28th November, 1945, cannot automatically be your property and that transfer order from the Provincial Transport Commissioner, Bengal is necessary before you can take possession of ttie vehicle.
The transfer of the vehicle cannot, however, be made to you in the usual way as the said, Babu Ramtahal Singh is dead. You are, therefore, directed under cl. 11 of the Civil Motor Transport Vehicles Control Order 1944, to make -over the vehicle to Messrs. W. Leslie (Motors), 30, Chittaranjan Avenue Calcutta, immediately in good and serviceable condition, together with all equipment and fittings.
Further communication in regard to the re-allotment of the vehicle to you and the cost of the vehicle together with other charges to be ad-justed between you and Messrs. W. Leslie (Motors) will be intimated to you later. In the meanwhile Government may be informed of the cost of building a body 'on the vehicle and of fitting a Gas plant, if any to the vehicle'.
15. It will be noticed that a direction was contained in this memorandum to deliver the vehicle to Messrs. Leslie (Motors) 30, Chittaranjan Avenue.
16. The attention of Leslie (Motors) had also been drawn to this order as is evident from a letter which was addressed by Leslie (Motors) to the plaintiff on the 27-3-1946 (Ex. 7). Series of correspondence followed and it appears that the plaintiff had not delivered the bus as directed until serious steps were proposed to be taken against the plaintiff. (See Ex. 5 and 3(a).)
On 19-7-1946 the tax token was surrendered to the District Magistrate. The estimate of costs supplied by Leslie (Motors) not having been approved by the Transport Authorities reminders were being sent. Requests made to reduce the estimated amount were not accepted by Leslie (Motors).
Further correspondence followed. In the meantime the following letter Ex. 6 was addressed by the Transport Authorities to the plaintiff on 17-6-1947 that was presumably in reply to the demands made by the plaintiff for the value of the bus.
L. Dias, Esqr.
Assistant Provincial Transport Commis
sioner and Assistant Secretary to the
Government of Bengal
Babu Lakshminarayan Singh,
37/1 Kantapukur Road, Howrah.
Subject:-- BLU 252 -- Assessment of its costs
Reference:-- Your letter dated the 22nd May, 1947.
The undersigned is directed to state that the cost of the controlled Bus No. BLU 252 which was resumed and made over by you to Messrs. W. Leslie Motors, Calcutta has been assessed at Rs. 5,570/- (Rupees five thousand five hundred and seventy only) according to Government of India's instructions in respect of the fixation of the cost of the second-hand controlled vehicles.
Messrs. W. Leslie Motors, have been directed to pay you the amount within 7 days of the receipt of this order. You are how advised to contact them in the matter.
Assistant Provincial Transport Commissioner &
Assistant Secretary to the Govt. of Bengal'.
17. The plaintiff thereupon demanded from Leslie (Motors) Rs. 5,570/- as per the order referred to above on 30-8-1947. Leslie (Motors) denied their liability to make any payment making reference in the letter to the fact that Government had not yet allotted the particular motor bus to any buyer and no amount has been received by defendant No. 2.
18. The plaintiff continued to remind Leslie (Motors) intimating the Transport Authorities as well. For some time the Provincial Transport Authority kept the matter hanging stating that the matter was receiving attention, until 3-4-1948 by Ex. 6B the plaintiff . was informed that he might take action against Leslie (Motors) 'for realising the cost.
The plaintiff immediately served a notice under Section 80 of the Code of Civil Procedure on the Province of West Bengal demanding Rs. 5,570/-as assessed by the Provincial Transport Commissioner for the value of the bus BLU 252 stating that defendant No. 2 Leslie (Motors) had refused to pay the same. This notice was duly served but no action appears to have been taken by the Government.
The suit was accordingly filed, Both the Province and Leslie Motors were impleaded as defendants,
19. The Province of West Bengal did not enter appearance and no steps had been taken by them in the lower Court.
20. The defence of Leslie (Motors) was in substance that they were the custodians of the bus in question and after having submitted the estimate of repairs Government had not taken any steps -- either approving the estimate or directing the firm to transfer the vehicle to some other person or to take it back.
It was not competent for the dealer to deal with the vehicle in any manner until orders were issued by the Government. This defendant was not, therefore, liable in any way and the vehicle could be taken back or be delivered to such person as may be found legally entitled to.
21. We have first to consider the nature of the relationship between the Government, the dealers and the owner of motor vehicles as under the Control Order. Under the provisions of the Control Order already quoted the plaintiff was on requisition from Government bound to deliver the motor vehicle to the dealer in question.
Once the vehicle was in the custody of the dealer it was not competent for the said dealer to sell the vehicle to any other party without an order by the Government (Vide Clauses 8 and 11 of the Control Order). Unless there was a sale order as in the Third Schedule of the Control Order the dealer defendant No. 2 was bound to retain the same and not to deliver it back to the plaintiff.
22. What was then the right in which the dealer had the custody of the motor vehicle?
23.. The State of West Bengal did not take any step's in the lower court. All the relevant orders as had been passed as also the Agreement that might have been entered into between the Government and Leslie (Motors) were all in thecustody of the Government but they were not produced in the trial Court.
24. The alternative argument in support of remitting the case back to the trial Court which had been advanced on behalf of the State may be considered at this stage. It has been frankly conceded by the Government Pleader that no Justifying reasons can be assigned explaining why no appearance had been entered on behalf of the Government in the trial Court and why no steps had been taken to produce the relevant docu-ments.
Under no provision of the law is the State of West Bengal to get an order for remand to cover up deficiencies due completely to the lach-es on the part of the Government. Government cannot be allowed to fill in the gaps in the evid-ence which are due entirely to omissions by the Government.
There is no scope for passing an order for remand at this stage only to afford fresh opportunities to adduce fresh evidence and to have a new trial. Government as a party to a suit can-not claim any special privilege but must be treat-ed as an ordinary litigant.
25. Further, only questions of law may be urged on behalf of Defendant No. 1 on facts as have been elicited in course of the evidence already produced.
26. We proceed accordingly to consider the legal position as is disclosed from the materials already in the record.
27. In the Lower Court, Leslie (Motors) did not during the trial dispute the plaintiff's claim for the value of the vehicle resumed by Government. There was also no dispute as regards the-amount of compensation as the same had been assessed by the Government In Ex. 6. The only question which came up for consideration was whether both the defendants, or which of them would be liable, After proceeding so far the learned Subordinate Judge observed:
'As regards the defendant No. 1 it does not contest the claim of the plaintiff. It is the authority primarily responsible for the resumption. There cannot therefore be any question as to its-liability to pay to the plaintiff. So it is necessary only to see whether defendant No. 2 is also liable'.
The learned Subordinate Judge was not correct in this approach to the case.
28. Even if the defendant does not choose to appear in a case that by itself is not sufficient to entitle the court to jump to the conclusion that the plaintiff is entitled to the claim made. The plaintiff is required to prove his case. If there be no sufficient evidence or if the plaintiff's claim is found to be barred under any provision of the law the claim is liable to be dismissed either in whole or in part as the case may be though the defendant has not chosen to appear.
29. We have therefore to consider whether the decree as made by the trial court against defendant No. 1 can be resisted by the State on the materials in the record.
30. It is argued on behalf of the State that the Government acts under the Civil Motor-Transport Vehicle Control Order 1944 only as a controlling authority and merely limits the owner to sell through an appointed dealer only. It is contended that there is a 'sale' under the Control Order to the appointed dealer since a vehicle is directed to be made over to such a dealer. Accordingly the dealer is bound to pay the price as fixed and assessed by Government.
31. This argument is wholly a misconceived one. Under Clause (a) of Sub-rule (2) of Rule 81 of the Defence of India Rules the Government may 'issue control order for regulating or prohibiting ..... keeping, storage, movement,transport, distribution, disposal, acquisition, useor consumption of articles or things of any description whatsoever and in particular for prohibiting the withholding from sale, either generallyor to specified persons or classes of persons ofarticles or things kept for sale and for requiring articles or things kept for sale to be sold either generally or to specified persons or classes of persons or in specified circumstances.'
32. Clause (b) of Sub-rule 2 of Rule 81 of the Defence of India Rules authorises the controlling of prices at which articles or things of any description may be sold or hired and for relaxing any maximum or minimum limits otherwise imposed on such prices or rates.
33. Rule 81 of the Defence of India Rulesclearly authorises the provisions made under the Motor Control Order 1944 referred to above.
34. Government has under the Control Order directed the plaintiff to make over themotor bus to Leslie Motors and has fixed the price at which the said vehicle could be sold. The sale of the vehicle cannot take place until the Government nominates the particular buyer.
Leslie (Motors) being a licensed dealer was bound under the Control Order to receive the motor vehicle when the same was delivered by the plaintiff.
35. The effect of the order by the Government as under the Control Order was for restricting the use of the property of a citizen.
36. Section 299(1), Government of India Act, provided that
'no person shall be deprived of his property in British India save by authority of Law.'
37. Government has clearly deprived the plaintiff, by its order, of the property for an indefinite period. The present suit is one for thevalue of the motor bus. The amount claimed is as assessed by the Government under the provisions contained in the Control Order.
The order for delivery or the bus was an order made by the Government as the same wassigned by the Secretary to the Government of Bengal who was also the Provincial TransportCommissioner (see Ex. 6 (2). This was not atortuous act of an officer, who is being made liable in his personal capacity for such act. TheState is not being made liable for the act of anofficial who is alleged to have acted in a tortuous manner.
38. Both under Rule 75A and Rule 81 of theDefence of India Rules Government had plenarypowers to resume. Government is liable to payfor such resumption. This is a case of depriva-tion of a property of a person and Section 299, Govern-ment of India Act, entitles the owner so deprivedto compensation.
39. Reference may be made to Cl, (XXIV) of Sub-section 2 of Section 2 of the Defence of India Act whichdefines 'the requisitioning of any property move-able or immoveable including the taking possession thereof and the issue of any orders in respectthereof'. Requisition therefore covers a case of resumption.
40. Requisition under Rule 75 (A) merelymeans taking control of a property, the ownerstill retaining limited rights. The liability to paycompensation by Government arises whether itbe a case of acquisition or requisition or resumption. As I have indicated already the effect of the order for delivery as served on the plaintiff cannot but be interpreted as being deprivation of possession of the plaintiff, giving rise to a claim by the latter to compensation.
41. Was the act one under the Defence of India Rules or under Eminent Domain of the Sovereign Authority? Was any contractual right created by the plaintiff-owner accepting the resumption and the amount of compensation offered by Government
42. In the plaint Leslie (Motors) had been described as being an Agent of Government. The learned Advocate appearing on behalf of the plaintiff did not attempt to support that case. The Control Order does not make Leslie (Motors) an Agent ol Government. The firm becomes under the Order a dealer who is bound to act in terms of the Control Order.
A dealer has to hold the property and must await further directions to be issued under the Control Order.
43. A dealer alone cannot effect a sale. The provisions contained in Sub-paras 3 and 6 of Paragraph 5 of the Control Order are specific.
44. The definition of 'Sale Order' under sub-paragraph (g) of Paragraph 3 or of 'Transfer Order' under sub-paragraph (i) of Para 3 of the Control Order read with the corresponding Schedules bring out the differences between these two kinds of transactions. Leslie (Motors) never became the owners of the Vehicle either by operation of the Control Order or in any other manner.
45. An attempt was made on behalf of the plaintiff to draw a distinction between the case of Police Power and Eminent Domain. It is not however necessary to enter into that question as on an interpretation of the provisions of the Control Order, we hold that the Government is liable for the order issued depriving the plaintiff of the possession of the Motor Vehicle.
The objections raised on behalf of the State fail and this appeal is dismissed with costs; hearing fee 8 Gold Mohurs to each two sets.
46. A Cross-objection was filed on behalf of the plaintiff claiming a larger amount. This was not seriously pressed.
47. Our attention however was drawn to the fact that under the decree no interest has been allowed from the date of the decree until payment. The attitude taken up by the Government would justify the court allowing 6,1/4 p. c. interest on the amount decreed from the date of the decree of the trial Court to the date of payment.
We further direct that the total amount decreed be paid by the State to the plaintiff with in two months from the date of the arrival of the records in the Court below.
48. No order as to costs in the Cross-objection.
Renupada Mukherjee, J.