1. This is an appeal from a judgment and decree dated 12th May, 1958 of Datta, J. the tacts of the case are quite simple and may be briefly set out as follows:--
2. The plaintiff Company are the owners of a tug or vessel called 'Madanmonan'. On or at-cut February 28, 1944 the plaintiff company were served with a letter issued by the Regional Controller of Priorities (River) of the then Government of India enclosing copy of an order of the said Government. The order was No. 294 of 19th February, 1944 passed under Sub-rule (2) read with Sub-rule (5) of Rule 89 of the Defence of India Rules. This order is the foundation of the plaintiff's claims and should therefore be set out in extenso:--
'In exercise of the powers conferred by Sub-rule (2) read with Sub-rule (5) of the Rule 89 of the Defence of India Rules, the Central Government is pleased to order that the Companies specified in the schedule hereto annexed snail comply with any directions given from time to time by the Deputy Director of Movement, Cal-cutta, or Dy Mr. J. Aitken and the said directions may require the said companies to use any vessel, steamer, coat, barge or other craft in their possession or under their control plying in inland waters in the Provinces of Bengal, Bihar and Assam, for the conveyance of such persons or goods at such time and by such routes as may be set forth in the directions'.
3. Thereafter, on April 11, 1944 the plaintiff received another letter from the said Deputy Regional Controller of Priorities to the following effect:--
'Your steamer Madan Mohan is required for work at Tistamukh. Please despatch her to Tistamukh where she should arrive by 18th instant at the latest.
Pilots as necessary will be provided by the Joint Steamer Companies.
The Madan Mohan's draft would not under any circumstances exceed 6'.
Rebunkering as required in route should be arranged.
The vessel should be manned for 24 hours duty per day.
The vessel should report to the Marine superintendent, B and A Railway or his representative, Asst. Marine Superintendent, Tistamukh on arrival and act on his Instructions.
The financial adjustment and other terms will be one for settlement between you and the B and A Railway but they should not interfere with the despatch of the Madan Mohan to Tistamukh'.
4. Pursuant to the above two letters the plaintiff placed the steamer 'Madan Mohan' at the disposal of the Deputy Regional Controller of Priorities. The vessel, it is alleged, reported at Tistamukh and plied between Tistamukh Ghat and Bahadurabad Ghat in Accordance with the instructions of the officers of the B and A Railway. The vessel seems to have operated between these two points for about two months after which the vessel was released by the B and A Railway officers working at Tistamukn sometime about August 6, 1944 whereupon the vessel came (under its own steam) to Calcutta where the vessel underwent various repairs between August 16 and September 14, 1944. Under a letter dated 19th September, 1944 the plaintiff company submitted a bill dated 14th September, 1944 for Rs. 81,000/- to the Marine Superintendent, B and A Railway, Amingaon. Both the letter and the bill show that the bill was for 'ture of S. L. Madan Mohan between April 13, 1944 and September 14, 1944. It is indicated on the body of the bill that the 'vessel arrived in Calcutta on 15th August, 1944 from Tistamukh Ghat and was under repairs from 16th August to 14th September 1944'. The bill is for two amounts one for Rs. 75,000/- being hire at the rate of Rs. 600/- per diem for the period April 13, 1944 to August 15, 1944 and the other forRs. 6,000/- being hire at the rate of Rs. 200/- perdlem for the period August 16, 1944 to September 14, 1944. Subsequently on November 29, 1944 another bill was submitted by the plaintiff to the Assistant marine Superintendent, B and A railway, Tistamukh Ghat, for Rs. 6519-12-0. This biil, on the face of it, relates to the repairs of the vessel. On November 20, 1946 the plaintiff instituted the present suit against the Governor-General of India in Council claiming, inter alia, a decree for Rs. 87,519-12-0 pies which is made up of the two amounts mentioned above, viz., Rs. 81,000/- and Rs. 6,519-12-0 pies respectively.
5. The plaintiff's claim is described in the plaint as one 'for hire or user of the plaintiff's steamer 'Madan Monan' by the defendant's Bengal Assam Railway and for other charges and claims. For particulars of the claim the plaintiff refer to the two bills mentioned above. AS regards the rate of Rs. 600/- per day charged in the bill dated September 14, 1944, the plaintiff state inthe plaint that this rate 'was accepted and/or agreedto by the said Railway'. The plaintiff refer to the correspondence between the plaintiff and the Railway in support of these allegations. It is stated in the plaint that no objection was taken by the Railway to the rate or Rs. 600/- per day charged in the bill of September 14, 1944 and that the steamer was retained in the service of the said Railway even after the receipt of a letter dated April 24, 1944 in which the plaintiff had indicated the daily hire to be Rs. 600/- and had also indicated that repairs were to be at tne cost of the Government or India. From this the plaintiff state that in any event the rate was 'impliedly agreed to or accepted' and that tne terms mentioned in the letter of April 24, 1944 were also acted upon. The plaintiffs have also made an alternative case in the plaint and claim the payment of the same at the said rates as 'reasonable hire or price or considaration for the hire or service or user of the said steamer by tne said railway'. The plaintiff claim that they delivered the steamer to the Railway not intending to do so gratuitously and the said Railway enjoyed the benefit thereof and the defendant is bound to make compensation to tbe plaintiff in respect of the same. The plaintiffs state that the charge of Rs. 200/- per day from August 16, 1944 to Septemoer 14, 1944 was due to ab-normal and unreasonable user and consequential damage caused to the steamer by tbe said Railway.
6. In tbe written statement filed on benalf of tne Governor-General in council the claim of the plaintiff is denied. The Governor-General in Council only admits that the steamer in question was sent and arrived at Tistamukh Ghat on April 21, 1944 under tne direction of the War Transport Department and also tnat the steamer was in service of the Bengal Assam Railway, a Government railway, from April 21, 1944 to August 6, 1944 when it was sent to the Transhipment supervisor pursuant to a letter dated August 4, 1944. The Governor-General in Council also states
'that the said railway has an along been and is still ready and willing to pay all sums due to the plaintiff as reasonable hire for tne user of the said steamer by the said Railway during the period April 13, 1944 to August 6, 1944.'
The Governor-General in Council denies, nowever, the liability of tne Government of India to pay the sums claimed by the plaintiff on the ground that the ciaims are exorbitant and unreasonable. As for the charge at the rate of Rs. 200/- daily from August 16, 1944 to September 14, 1944 there is a total denial of all utilities in regard thereto. It is not also admitted that the steamer was under repair during the period. In any event, tne Governor-General in Council disputes the liability to pay the charges for repairs. It is denied tnat there was any abnormal or unreasonable user as alleged or at all or that any damage was caused to the said steamer oy the said Railway.
7. This is how the respective allegations and contentions of the parties stood in 1947 prior to the partition of India. After the partition of India an Additional Written Statement was filed on April 15, 1950 on behalf of the Union of India. Three additional defences are taken, viz., (a) that the Union of India is not liable for the alleged claim of the plaintiff, (b) that the liability, if any, is that of the Dominion of Pakistan since the put-poses for which the alleged liability nas arisen are exclusively those of the Dominion of Pakistan and (c) that there is no valid or binding contract between the plain-tiff and the Union of India and it is denied that theUnion of India had the benefit of the tug 'Madan Mohan at all.
8. Thereafter, in or about March, 1956 the Union of India sought to raise a further plea under Section 175 ot the Government of India Act, 1935 in an attempt to resist any claim on the basis of an 'agreement to pay hire at Rs. 600/- per day'. This, however, the Union of India was not allowed to do.
9. This is how the pleadings stood when the parties came to Court for trial. On these pleadings Datta, J. settled the following issues for determination:
'1. Has any part of the cause of action arisen within the jurisdiction of this Hon'ble Court?
2. Was a valid notice under Section 80 at the C.P.C. served on the Governor-General in Council?
3. Is the liability to the plaintiff, if any, that of the Pakistan or India?
4. Did the Railway accept and/or agree to pay Rs. 600/- per day charged in the plaintiff's bill dated September 14, 1944?
5. Is the rate of Rs. 600/- per day cnarged by the plaintiff reasonable hire of price of the vessel?
6. How long was the vessel in the service of the Railway?
7. Is the plaintiff entitled to compensation as pleaded in paragraph 3 and alternatively in paragraph i of the plaint?
8. Is the plaintiff entitled to any relief? If so, what?'
10. At the trial of the suit the Union of India sought to raise two other issues to the following effect:
'1. Was there a valid and binding contract betweenthe parties having regard to the provision of Section 175of the Government of India Act, 1935?
2. Has this Court jurisdiction to entertain this suit in view of the fact that the plaintiff's steamer was requisitioned under tne provisions of the Defence of India Act and the rules made thereunder and that no part of the cause of action arose within the said jurisdiction?'
11. Datta, J. did not, however, permit these issues to be raised. The first issue was disallowed on the ground that the plea had not been taken by the Governor-General In Council and that nobody contended tnat there was any contract between the Union of India and the plaintiff and the second issue was disallowed because it had not been raised either in the written statement or in the Additional written statement.
12. At the time of hearing of the suit before Datta, J. various arguments were advanced on behalf of the defendant Union of India which were either abandoned at the hearing of the appeal or found to be of not much relevance for the disposal of the appeal. It will, there-fore, be of advantage if the grounds are cleared by indicating the points tnat were seriously raised and agitated before the trial Court by the defendant. The defence of the Union of India seems to have been based on the following contentions:
1. The plaintiff's claim as formulated in the plaint and as evidenced by the corresoondence between the parties is founded on a contract of hiring.
2. This contract was not exclusively for the purpose of India. Therefore under Article 8(1) of the Indian independence (Rights, Property and Liabilities) Order 1947, all liabilities arising out of this contract were liabilities of the Dominion of Pakistan.
3. In any event the claim is based on an agreement or contract to pay hire or compensation and the liability is, therefore, contractual.
4. The plaintiff's claim for compensation attracts Section 19 of the Defence of India Act and the plaintiff should therefore have moved under Section 8 of the Arbitration Act and the plaintiff has no remedy by way ot suit.
5. The power exercised by the then Government of India in requisitioning the vessel was a power exercised under Rule 89 of the Defence of India Rules and therefore constituted an exercise ot the sovereign power of the state. Such exercise of sovereign power was not justiciable in Courts of law.
6. The plaintiff has failed to prove the quantum of rate of compensation.
7. This Court has no jurisdiction to try the claim for hire or compensation as no part of the cause of action arose within the jurisdiction of this Court.
13. Of these contentions, the third, fourth and fifth contentions were not pressed at tne hearing of the appeal.
14. In my opinion the whole case turns round the following two cardinal issues: (1) Did the Governor-General in Council have any liability? If so, what is the nature of that liability? (2) on which Government between the Government of India and the Government of Pakistan did that liability devolve after partition? There are of course other minor points of dispute, e.g. wnat was the period of hire? was it agreed that hire would be Rs. 600/- per month? what should be the quantum of compensations etc. But these are all subsidiary questions which do not present any serious difficulty.
15. As we shall presently see, the answer to the second issue depends on the answer to the first issue. I propose to apply myself, therefore, to the consideration of the first issue.
16. The defendant argued tnat the liability was contractual in nature while the plaintiff urged that it was a statutory liability. The plaint merely states the facts and describes the claim as one of 'hire or user' of the vessel (see paragraph 2 of the plaint). Mr. Kar argued that 'hire' envisages a contractual relationship bet-ween the parties because the idea of a contract is implicit in the concept of hire. It, is, however, significant that there is neither any indication nor any attempt in the written statement to define the relationship constitutes by hire or use of vessel. In the written statement it is admitted that the defendant had the user of the vessel in question and, in fact, asserts willingness to pay rea-sonable hire for the user' (see paragraph 5 of the written statement). Mr. Kar appearing for the appellant re-ferred us to various correspondence between the parties in-support of the proposition that the dealings and Transactions between the parties as they appear from correspondence show that the parties were acting as if there was a contract.
17. The letter dated April 11, 1944 from the re-gional Deputy controller of priorities to tne plaintiff company after giving directions to the plaintiff regarding the despatch of the vessel Madan Mohan at Tistamukh states.
'The financial adjustment and other terms will or one for settlement between you and tne B and A Railway but this should not interfere with the despach of the Madan Mohan to Tistamukh.'
The letter dated 13/14th July, 1944 from the plaintiff company to the Deputy to D. D. Movements, Eastern (River), contains the following:
'We are not inclined to charter out the vessel for so much hard and strenuous work, unless we are assured or a hire of Rs. 500/- per diem and all risk and responsibility attaching to Railway.' There is also a statement to the following effect: 'Hire to commence as was arranged with you, from the date when our S. L. Chaitanya had left Calcutta to Bring the tug ot S. L. Madan Monan from the spot where they met each other.'
The reference in this letter to 'Charter' as wen as the reference to the arrangement about the date of commencement of hire are taken by Mr. Kar as references to an actual contract between the parties. In a letter dated 11th July, 1944 from the Deputy to D. D. Movements, Eastern (River) to J. N. Nagle, Chief Transportation Manager, B and A Railway, there is reference to a discussion and an agreement in the following language:
'(ii) A date suitable to both parties to be fixed for this purpose 1st August 1944 at Tistamukh, has been provisionally suggested.'
18. In a letter dated February, 1, 1945 from the Chief Transportation Manager, B and A Railway to the plain-tiff company, J. E. Nagle writing for the Chief Transportation Manager writes:
'I agree to accept the bill for hire of 'Madan Mohan' at Rs. 500/- only per day for the period from 13th of April, 1944 to the 6th of August 1944.'
There are various other letters which contain reference to an attempted agreement regarding me hiring charge which was sometimes described as 'cnarter fee'. Mr. Kal relies on all this in support of his argument that the relationship between the parties was contractual.
19. On a careful analysis of the documents, however, I find nothing there which can be treated as an evidence of contract between the parties. On the other hand, the correspondence between the parties contains ample evi-dence that the plaintiff company were obeying a mandate issued by certain officers of the Governor General in Council under the sanction of a statute which made such obedience compulsory. There is also evidence that it was intended that as for the hire, i.e. payment for user it was contemplated by and between the parties when the mandate was issued and obeyed that there would be some kind ot agreement. The question whether were was actually such an agreement ana, if so, wnat was the agreement is a separate question which is relevant only for ascertaining the quantum of liability and not for determining the nature of the liability. At the present stage it is enough to indicate that the relationship was not founded on contract but it arose out of a mandate given by the servants of the Governor-General in Council to the plaintiff company. The relationship was, therefore, based on a statutory direction. The liability, if any, arising out of such relationship is not a contractual liability but a statutory liability.'
20. This is the appropriate place to examine the statutory previsions under which the vessel in question was requisitioned by the defendant Governor-General in Council and under which the reciprocal obligations of the parties arose. Various arguments were aovanced at the trial of the suit as well as during the nearing of the appeal on the basis of these statutory provisions, it has already been noted that the two orders out of which tne transactions between the parties started are contained in two letters dated February 28, 1944 and April 11, 1944 respectively. The first letter is a kind of circular letter addressed to the plaintiff as well as to various other parties stating that the plaintiff and the other parties to whomthat letter was adressed were to comply with the directions, given from time to time by the Deputy Director of Movements, Calcutta or by Mr. J. Aitken. The nature of such direction is also indicated. That order is expressly stated to have been made 'in exercise of the powers conferred by Sub-rule (2) read with Sub-rule (5) of Rule 89 of the Defence of India Rules.' The next letter, viz., the letter ot April 11, 1944 which embodies the operative order upon the plaintiff is a consequential order and follows directly out of the earlier order which is described as the War Department Order No. 294 of February 19, 1944.
21. The provisions of Sub-rule (2) and Sub-rule (5) of Rule 89 of the Defence of India Rules under which the aforesaid War Department Order was issued are as follows:
'(2) Without prejudice to any other provision of these Rules, the Central Government or the Provincial Government may ty order-
(a) regulate, restrict or give directions with respect to, the use of any animal or vehicle for the purpose of road transport, or the sale or purchase of any animal of vehicle;
(b) require any person owning, or having in his possession or under his control, any animal or vehicle to make to any person specified in this behalf a return giving such particulars as may be specified in the order with regard to such animal or vehicle and require such return to be verified in such manner as may be specified in the order;
(c) require any person owning, or having in his possession or under his control, any animal or vehicle to give notice in such manner as may be specified in the order before disposing thereof or allowing it to pass out of his possession or control;
(d) require any person owning, (or employed in connection with), or having in his possession or under his control, any animal or vehicle to comply with any directions given by any person specified in, or duly authorised in pursuance of, the order and such directions may require-the person owning or employed in connexion with, or having in his possession or under his control, any animal or vehicle to use such animal or vehicle for the conveyance of such persons or goods at such time and by such routes as may be set forth in the directions;
(e) prescribe the conditions subject to which, and the rates at which, any animal or vehicle may be hired for the purpose of road transport and persons or goods, may be carried by road, and the conditions subject to which goods so carriea or to be carried may be discharged or loaded;
(f) provide for prohibiting or restricting the carriage of persons or goods of any class by road and for prescribing the radius or distance within which persons or-goods of any class may be carried by road;
(ff) provide for prohibiting any person or class of per-sons from travelling by any vehicle or class of vehicles;
(g) provide for the giving of directions with respect to the carriage of persons or goods on any particular vehicle, or by any particular route, or to any particular clearing house or depot;
(gg) provide for prohibiting or restricting the carriage of persons cr goods by any vehicle or class of vehicles, either generally or between any particular places or one any particular route;
(h) provide for the regulation of the priority in which persons and goods are to be carried by road and vehicles are to be used for the purpose of road transport,
(i) make such other provisions in relation to road transport as appear to that Government to be necessary ofexpedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community.
XX XX X (5) The provisions of Sub-rules (2), (3) and (4) shall also apply in relation to water transport and vessels used or capable of being used for the purpose of water transport as they apply in relation to road transport and vehicles.'
22. It is abundantly dear that the order in question was issued under Clauses (a), (d) and (e) of Sub-rule (2) read wih Sub-rule (5). It is in obedience to this statutory direction that the plaintiff had placed its vessel at the disposal of the officers of the Governor General in Council and the plaintiff's claim for hire or compensation arises out of this transaction.
23. At the time of trial of the suit Mr. Kar had argued that the plaintiff company can nave no remedy by way of suit in establishing their claim for compensation by reason of the provisions of Section 19 of the Defence of India Act. The learned trial Judge held that section is does not apply to cases of compensation for movable property and is not a bar to a suit for compensation in respect ot movable property. During the hearing of the appeal Mr. Kar did not challenge the judge's finding that Section 19 does not apply in the facts and circumstances of this case. We are not, therefore, called upon to consider that aspect of the argument. Mr. Kar, however, raised another contention. He argueo mar under Clause (e) of Sub-rule (2) of Rule 89, the Central Govern-ment could 'prescribe the commons subject to which, and the rates at which' the vessel had been hired, Mr. Kar contends that the rates of hire in this case have not been prescribed and, therefore, the plaintiff cannot claim any compensation. Mr. Kar's argument amounts really to a proposition that the failure or omission of Government to prescribe rate for hire wipes out the liability of Government for hire. I am not prepared to accept this argument of Mr. Kar. For one thing, mis is not an argument which appears to have been advanced by Mr. Kar at the trial ot the suit or does it appear to have been taken in the Grounds of Appeal. Secondly, in the written statement the defendant has admitted the plaintiff's claim for hire for the period of actual use. I am also in agree-ment with the learned trial Judge that the correspondence between the parties make it absolutely clear that bom the parties proceeded always on the basis that hire was payable by the defendant to the plaintiff. Besides, there is no merit in this contention. Mr. Kar relies on section 1/(2) of the Defence of India Act which is in the follow-ing terms:
'17(2). Save as otherwise expressly provided under this Act, no suit or legal proceedings shall lie against the Crown for any damage caused or likely to be caused by anything in good faith done or intended to be done in pursuance of this Act or any rules made thereunder'.
24. That section is clearly a provision for protecting the Government and its instruments from any tortious liability in respect of acts done in good faith in pursuance of the Act and is certainly not intended to prevent a per-son from claiming compensation for requisition of pro- perty. In fact, the Defence of India Rules contain provi-sions which show clearry and in unmistakable terms that it was always intended to protect a person's right to compensation for requisition of movable property. For example, Sub-rule (4) of Rule 75-A of the Defence of India Rulescontains the following provisions:
'75-A. (4) Whenever in pursuance of Sub-rule (1) or Sub-rule (2) the Central Government or the provincial Government requisitions or acquires any movable property the owner thereof shall be paid such compensation as that Government may determine:
Provided that, where immediately before the requisition the property was by virtue of a hire purchase agreement in the possession of a person other than the owner, the amount determined by Government as the total compensation payable in respect of the requisition or acquisition shall be apportioned between that person and the owner in such manner as they may agree upon, and in default ot agreement in such manner as an arbitrator appointee by the Government in this behalf may decide to be just.
25. Rule 96, which is the specific provision on the subject of compensation, provides:
'96. (1) Whenever in pursuance of any Rules 49, 56, 72, 78 and 80, any property is removed, destroyed, rendered useless, used, requisitioned or acquired by, or otherwise placed at the disposal or under the control of, the Central Government or a Provincial Government and the circumstances are not such as to render the provisions of Section 19 of the Defence of India Act, 1939, applicable, the owner of such property shall be paid such compensation for any loss he may have sustained as a result of such removal, destruction, rendering useless, use, requisitioning, acquisition, disposal or control as may be fixed in accordance with the provisions of this rule.
(2) In default of agreement between Government and the owner of the property, the Central Government or the Provincial Government, as the case may be, shall by general or special order specify the authority or person through which or whom any claim for compensation under Sub-rule (1) shall be submitted and the authority or per-son by which or whom any such claim shall be adjudged and awarded.
(3) The Central Government or the Provincial Government, as the case may be, may further by general or special order prescribe the conditions to which the authority or person responsible for adjudging or awarding claims for compensation shall have regard when determining the amount of compensation payable, and may give such supplementary orders as to the assessment and payment of compensation as may appear to it to be necessary or expedient.'
26. It is clear, therefore, that it is not the intention of the Defence of India Act or the Defence of India Rules that the properties of the subjects will he taken away by Government either for permanent acquisition or for use without giving compensation to the subjects. If rates had not been prescribed and if Government have failed to take steps for the fixation of rates of compensation the person whose property has been requisitioned ought to be clearly entitled to reasonable rates of compensation. There is nothing in the Defence of India Act or the Defence of India Rules which bar the right of the subjects to come to Court for the determination of such reasonable rates of compensation.
27. Besides, common law has always recognised that the right of compulsory acquisition or requisition of private property by the State is conditioned by public necessity and payment of compensation. This has been recognised in ihe jurisprudence of ail civilized countries and in India all legislation authorising such acquisition of property from Regulation 1 of 1824 of the Bengal Codedown to the Land Acquisition Act, 1894 proceeded on that footing, see the State of Bihar v. Kameshwar Singh, . An obligation to pay compensation has always been taken as a necessary concomitant of a compulsory acquisition or requisition of private property. This principle has in fact been exalted by universal recognition to the position of a rule fur the construction of statutes under which unless the words of the statute clearly so demand, a statute is not to be construed so as to permit the taking away of the property of a subject without compensation. The power to take compulsorily has always been so construed as to involve by implication a right to payment. Attorney-General v. De Keyser's Royal Hotel, 1920 AC 508.
28. In the case of London and North Western Rly. Co. v. Evans, (1893) 1 Ch 16, it was held that the legislature cannot fairly be supposed to intend, in the absence of clear words shewing such intention, that one man's property shall be confiscated for the benefit of others or of the public without any compensation being provided for him in respect of what is taken compulsorily from him. Bowen, L. J. held that this principle may be called a Canon of Construction.
29. This principle was confirmed again in the dele-brated case of Canon Brewery Co. Ltd. v. Central Control Board (Liquor Traffic), (1918) 2 Ch 101. That case wasa case of acquisition of property under a War Emergency legislation. Under the Defence of Realm (Amendment) (No. 3) Act, 1915, there was a provision that 'the prescribed Government authority' should have power to acquire 'compulsorily or by agreement' for a limited period or permanently any licensed premises in an area to be subsequently defined. The defendants were constituted 'the prescribed Government authority' by regulations issued pursuant to that Act. On December 22, 1915, the defendants gave to the plaintiffs notice that they mended to acquire the premises permanently and in January 1916 they took possession. The plaintiffs claimed compensation to be assessed under the Lands Clauses Consolidation Act, 1845. The defendants contended that they were entitled only to such compensation as might be awarded out of public monies as a matter of grace by Royal Commission appointed on August 2, 1915 to determine what ought 'in reason and fairness' to be aid in respect of 'losses incurred by reason of interference with property' through the exercise by 'the prescribed Government authority' of its powers under the Act of 1915. In that case neither in the Act nor in the regulations was there any express provision made for payment of compen-sation for any of the acts either of acquisition or inter-ference which were thereby authorised. Younger, J. who heard that case in the first instance though admitting that emergency legislation passed for the defence of the Realm, in the largest sense of those words, is not likely to have 'that scrupulous regard for individual's interests to which we are generally accustomed in time of peace, held that acquisition 'compulsorily or by agreement' in Section 1Sub-section 2 (b) of the Act of 1915 and regulation 6 involves payment for what is taken. On appeal, the Court of Appeal affirmed the decision of Younger, J. The Courtof Appeal in coming to their decision relied strongly on two cases, viz. Attorney General v. Horrer, (1884) 14 QBD 245 and Commr. of Public Works (Cape Colony) v. Logan, 1903 AC 355. In the former case Brett, M.R. had said: 'It seems to me that it is a proper rule of construction not to construe an act of Parliament as interferingwith or injuring person's rights without compensation unless one is obliged so to construe it.' In the latter case, David, L. J. said almost on the same note:
'Their Lordships are also influenced by the consideration that the effect of the appellant's construction would be to take away the respondent's property without any compensation. Such an intention should not be imputed to the legislature unless it be expressed in unequivocal terms. This principle has frequently been recognised by the Courts of this country as a canon of construction .....'
30. In my opinion, the canon of construction mentioned in the cases just referred to is also applicable to this case. Without an unequivocal statement in the clearest possible terms that there was an intention to take away a person's property either permanently or temporarily without paying any compensation to him, I am not prepared to take that view in regard to the Defence of India Act and Defence of India Rules promulgated under the Defence of India Act. In any event, in this particular case the Defence of India Rules contain provisions which manifest a clear intention that compensation was to be paid for acquisition or requisition of the property of the subjects. In this view of the matter there can be no question that the plaintiffs have a right of compensation.
31. The next question that arises is: Did the liability after the partition of India devolve on the Dominion of India or on the Dominion of Pakistan?
32. On the 18th July, 1947, an Act was passed by the British Parliament called the Indian Independence Act, 1947 (10 and 11 GEO, 6 Ch. 30). The Act was passed for the express purpose of setting up in India two independent Dominions and to provide for other matters consequential on or connected with the setting up of those Dominions. Under section 9 of that Act, the Governor General was authorised to make provisions by such order as
'appears to him to be necessary or expedient (a) for bringing the provisions of this Act into effective operation; (b) for dividing between the new Dominions, and between the new Provinces to be constituted under this Act, the powers, rights, property, duties and liabilities of the Governor-General in Council or, as the case may be, of the relevant Provinces which, under this Act are to cease to exist.'
Thereafter, in exercise of the powers conferred by section 9 of the Indian Independence Act, 1947 and of all other powers enabling him in that behalf, the Governor-General promulgated an order called the Indian Independence (Rights, Property and Liabilities) Order, 1947. That order (hereinafter referred to as the order of 1947) came into effect at once.
33. Paragraph 3 of the Order of 1947 provides that the initial distribution of rights, property and liabilities consequential on the setting up of the Dominions of India and Pakistan would be governed by the provisions of the Order subject to any agreement between the two Dominions of India and Pakistan or the Provinces concerned, and to any award of the Arbitral Tribunal.
34. Paragraphs 4, 5 and 6 of the Order of 1947 relate to the distribution of land, goods, coins, bank notes and currency notes. Paragraph 7 deals with distribution of all properties other than land, goods, coins, bank notes and currency notes.
35. Paragraphs 8, 9 and 10 of the order of 1947 are very important for the purposes of this caseand the relevant portions of those paragraphs are set out in extenso:
'8. (1) Any contract made on behalf of the Governor-General in Council before the appointed day shall, as from that day,
(a) if the contract is for purposes which as from that day are exclusively purposes of the Dominion of Pakistan, be deemed to have been made on behalf of the Dominion of Pakistan instead of the Governor-General in Council; and
(b) in any other case, be deemed to have been made on behalf of the Dominion of India instead of the Governor-General in Council;
and all rights and liabilities which have accrued or may accrue under any such contract shall, to the extent to which they wouid have been rights or liabilities of the Governor-General in Council, be rights or liabilities of the Dominion of Pakistan or the Dominion of India, as the case may be.
*** *** *** 9. All liabilities in respect of such loans, guarantees and other financial obligations of the Governor-General in Council or of a Province as are outstanding immediately before the appointed day shall, as from that day,--
(a) in the case of liabilities of the Governor-General in Council, be liabilities of the Dominion of India;
(b) in the case of liabilities of the Province ot Bengal, be liabilities of the Province of East Bengal;
(c) in the case of liabilities of the Province of the Punjab, be liabilities of the Province of West Punjab; and
(d) in the case of liabilities of any Province other than Bengal, or the Punjab continue to be liabilities of that Province.
10. (1) Where immediately before the appointed day the Governor-General in Council is subject to any liability in respect of an actionable wrong other than breach of contract, that liability shall,--
(a) where the cause of action arose wholly within the territories which, as from that day are the territories of the Dominion of India, be a liability of that Dominion;
(b) where the cause of action arose wholly within the territories which, as from that day, are the territories of the Dominion of Pakistan, be a liability of that Dominion; and
(c) in any other case, be a joint liability of the Dominions of India and Pakistan. ** ** **
36. The question of devolution of the liability of the Governor-General in Council in the present case is governed by the provisions of these three paragraphs. We have to examine the provisions of these three paragraphs in order to find out whether it was the Dominion of India or the Dominion of Pakistan which succeeded to the liability of the Governor-General in Council in this case.
37. Article 8 of the said Order deals only with contractual rights and liabilities. Clause (1) deals, in particular, with contracts made on behalf of the Governor-General in Council. Since we have already found that the liability of the Governor-General in Council in the instant case is not a contractual liability, Article 8(1) is not really attracted.
38. Article 9 of the Order of 1947 deals with liabilities in respect of such loans, guarantees and other financial obligations of the Governor-General in Council as are outstanding immediately before the appointed day. The question is whether the particular liability in the instant case can be described as a financial obligation of the Governor-General in Council. Upon that would depend whether Article 9 will be attracted in this case.
39. The expression 'other financial obligations' occurring in Article 9 has been construed ejusdem generis by this High Court, the Punjab High Court as well as by the Supreme Court. It has been held that that expression implies an obligation in the nature of an obligation in respect of loans and guarantees incurred or undertaken by the State (See, Province of West Bengal v. Midnapore Zemindary Co. Ltd., : AIR1950Cal159 ; Sree Iswar Madan Gopal Jiu v. Province of West Bengal, : AIR1950Cal463 ; State of Punjab v. Mohan Lall, AIR 1951 Punj 382 and State of West Bengal v. Shaikh Serajuddin Batley, : 1SCR378 . In the last mentioned case, S. R. Das J., as he then was, held as fellows:
'The phrase 'loans, guarantees and other financial obligations' occurred in section 178 in Part VII ot the Government of India Act, 1935, and there cannot be any doubt that those expressions used ia that section did not refer to all and sundry pecuniary obligations of the State arising out of contracts of every description. The loans and guarantees there referred to meant, it would seem, the special kinds of contracts relating to the State loans and State guarantees. In that context 'financial obligations' would mean obligations arising out of arrangements or agreements relating to State finance such as distribution of revenue, the obligation to grant financial assistance by the Union to any State of the obligation of any State to make contributions and the like.'
40. In the light of these observations of Das, J. we are clearly of the opinion that the statutory liability to pay compensation for requisition of a vessel does not certainly come within the expression 'other financial obligations'.
41. The question is whether the liability in question falls within the ambit of Article 10. Article 10 deals with liability in respect of 'an actionable wrong other than breach of contract'. The difficulty centres round the expression 'actionable wrong'. In The State of Tripura v. Province of East Bengal, : 19ITR132(SC) the Supreme Court construed the expression 'liability in respect of an actionable wrong', It was held by a majority decision that the words are not to be understood in the restricted sense of liability for damages for completed tortious acts. An act has been construed to be wrongful if it infringes the legal right of another. 'Actionable' has been construed as 'nothing else than that it affords ground for action in law'. In the present case the plaintiff had, as we have found, a legal right of compensation against the Governor-General in Council for the requisition of the plaintiff's vessel. Non-payment of that compensation is, according to the wider test laid down by the Supreme Court, a wrong and it is actionable in so far as it can be the foundation of an action in law. In view of the interpretation given by the Supreme Court, the liability of the Governor-General in Council is certainly an actionable wrong other than breach of contract. Clauses (a), (b) and (c) of Arf. 10(1) provide that liability in respect of such an actionable wrong would be the liability of the Dominion of India if the cause of action arose wholly within territories which as from the appointed day were the territories of the Dominion of India and it would be the liability of the Dominion of Pakistan if the cause of action arose wholly within the territories which as from the appointed day were the territories of the Dominion of Pakistan. But when the cause of action arose partly within the territories of the Dominion of India and partly within the territories of the Dominion ofPakistan, it would be a 'joint liability' of the Dominions of India and Pakistan. We are, therefore, called upon to find out where exactly the cause of action arose.
42. The cause of action in the present case arose partly within territories which since 'the appointed day' are the territories of the Dominion of India and partly within territories which as from that day are the territories of the Dominion of Pakistan.
43. The letter dated 11th April, 1944 from the Regional Deputy Controller of Priorities to the plaintiff company (plaintiff's document No. 2) which is the operative order resulting in the requisition of the plaintiff's vessel emanated from 8, Fairly Place, Calcutta, and was served at Calcutta. This order is in consonance with Rule 89 of the Defence of India Rules and is in fact a direct consequence of the War Department Order No. 294 of 19th February, 1944 which was sent to the plaintiff company under cover of the circular letter dated February 28, 1944. That order was also served on the plaintiff at their registered office in Calcutta. There can be no question that both these orders are a part of the cause of action. In fact, the entire chain of events which culminated in the actual transaction on which the liability of the Union of India is sought to be founded is a direct consequence of these two orders. These two orders must be considered to have been made effective only when they were communicated to the plaintiff company. Such communication admittedly took place in Calcutta which is within the Indian territories. Apart from these two orders under the Defence of India Rules there were certain other elements which constitute a part of the Cause of action and which took place within India. Talks of settlement of rates between Aitken, the Deputy Regional Controller of Priorities and Jadunath Roy who acted on behalf of the plaintiff took place at Calcutta. Under the operational order of April 11, 1944 the financial adjustment and other terms were matters for settlement between the plaintiff and the B and A Railway. Therefore these talks of settlement become very relevant and must be regarded as essential parts of the cause of action. Besides, a part of the plaintiff's cause of action relates to the journey of the vessel from Pakistan to Calcutta: a part of that journey must therefore have taken place within the territories of India. What is most important is the fact that payment of compensation was to be made at Calcutta. This is made absolutely clear by the correspondence between the parties. Some of the relevant correspondence may be referred to in this connection:
(i) Letter dated September 19, 1944 from the plaintiff company to the Marine Superintendent, B and A Railway (plaintiff's document No. 32 and defendant's document No. 8) will show that the bill was sent to Amingaon which is within Indian territory.
(ii) Letter dated 14/16th October. 1944 (plaintiff's document No. 33) from the Marine Superintendent, B and A Railway to the plaintiff company contains an instruction to the plaintiff company that bill has been sent to the Chief Transportation Manager, B and A Railway, Calcutta for disposal and that 'all further correspondence regarding this case' is to be made with Chief Transportation Manager. B and A Railway Calcutta.
(iii) Letter dated December 9, 1944 from the plaintiff company to the Chief Transportation Manager, B and A Railway (plaintiff's document No. 35 and defendant's document No. 9) is address- ed to the said Chief-Transportation Manager in his Calcutta address and is a request for settlement of the plaintiff's bills.
(iv) Letter dated January 11, 1945 from the plaintiff company (plaintiff's document No. 36) is also addressed to the Chief Transportation Manager to his Calcutta address for settlement of the bills.
(v) Letter dated February 1, 1945 from the Chief Transportation Manager, B and A Railway to the plaiintiff company (plaintiff's document No. 37 and defendant's document No. 13) is very important in this letter the Chief Transportation Manager agrees 'to accept the bill for hire of Madan Mohan at Rs. 500/- per day for the period from 13th of April, 1944 to the 6th August, 1944'.
There is a request in that letter to the plaintiff for submission of a revised bill to the Financial Adviser and Chief Accounts Officer of B and A Railway, whose office is at Calcutta as will appear from plaintiff's document No. 47 being letter dated May 21, 1945 from the Divisional Marine Superintendent to the Chief Transportation Manager, B and A Railway.
44. In fact, the entire series of correspondence between the parties were carried on through letters addressed by the plaintiff from Calcutta to various officers of the defendants in Calcutta. In these circumstances there is no doubt that a part of the cause of action took place within Calcutta.
45. Similarly, a substantial part of the cause of action took place in Pakistan for, admittedly, the hire of the vessel was for the purpose of operating between Tistamukhghat and Bahadurabad which are within the territories of the Dominion of Pakistan. (See evidence of H. A. Curade: Qq 14-17).
46. In the light of these circumstances it is clear that the cause of action arose neither within territories which arc wholly the Dominion of India nor within territories which are wholly the Dominion of Pakistan. Therefore, the liability in question will be a joint liability of the Dominions of India and Pakistan.
47. This leads to the next question as to whether in the case of a joint liability it is permissible to bring a suit against only one of the parties subject to that joint liability. Datta, J. in his judgment does not discuss the question at all. In fact, Datta, J. neither considered nor determined as to which Article of the Order of 1947 would govern the devolution of liability in this case. His Lordship discussed the provisions of Article 8 of that Order and came to a finding that had it been a contract this would have been the liability of the Government of Pakistan and also that the liability in this case is not actually a liability founded on contract. After this finding, Datta, J discussed and disposed of various other technical objections of Mr. Kar to the maintainability of the suit, but did not apply himself to the problem of finding out how the liabt-liity is to be channelled under the provisions of the Order of 1947. His Lordship, however observes in a part of his judgment that
'it was not disputed before me that if the claimwas for compensation or an actionable wrong anda part of the cause of action arose Wiithin the jurisdiction of this Hon'ble Court, the liability was thatof the Union of India'.
Mr. Kar, however, strenuously contended before usthat the suit should have been instituted jointlyagainst the Dominion of India and the Governmentof Pakistan. Since the present suit has been pursued only against the Dominion of India which laterbecame the Union of India the suit, according toMr. Kar, ought to be dismissed on that ground alone. Though the judgment of Datta, J suggests that ihere was in this matter, an admission on the part of the Union of India, it is not quite clear from the judgment that the question arose before Datta, J. in this form. On our findings, the Union of India is liable if the claim is for compensation for an actionable wrong. Up to this paint there is no inherent conflict between the admission recorded by Datta, J in his judgment and our finding. But we have also found that the liability is a joint liability and the Government of Pakistan is also liable. It does not appear that this aspect of the case was at all considered by Datta, J. We do not, in the circumstances, feel justified in shutting out this contention of Mr. Kar that in the case of joint liability the Dominion of India (and hence the Union of India) cannot be made liable in a suit when the Government of Pakistan has not been limplead-cd as a party defendant. We, therefore, propose to discuss this question.
48. The question is whether in the case of joint liability it is open to the plaintiff to proceed against any one of the joint obligees. The position seems to vary according to the nature of the liability and is also mixed up with the question of contribution among the joint obligees. In the case of contract, under the common law, when two or more persons are jointly, and not severally, liable under a contract, they should all be joined as co-defendants. And a defendant who is thus jointly liable and who has been sued without such persons being joined is entitled to have the other persons liable pleaded as co-defendants. If, however, a final judgment is obtained against one or more joint contractors, that judgment, where there is no several Liability, is a bar to any subsequent action against any of the others. The rule was laid down in the celebrated case of King v. Hoare, (1844), 13 M and W 494. In a later case, Kendall v. Hamilton, (1879) 4 A C 504, the House of Lords reiterated that principle and pointed out that this rule is based upon two fundamental principles of substantive law, viz., the principle of the merger of the cause of action in the judgment--transit in rem judicatem and the principle of public policy that there should not be a vexatious succession of suits on the same cause of action -- nemo debet bis vexari pro una et eadem causa. In India, the position has been affected by Section 43 of the Contract Act. Section 43 provides that in the case of a joint promise the promisee may in the absence of an express agreement to the contrary compel any one or more of such joint promisors to perform the whole of the promise. The effect of Section 43, is to make all joint contracts joint and several. It allows a promisee to sue such one or more of several promisors as he chooses and excludes the right of a joint promisor to be sued along with his co-promisors. See Hem-endra Coomar Mullick v. Rajendrolall Moonshee, ILR 3 Cal 353. Section 43 also provides that in the case of a joint promise each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise (unless of course a contrary intention appears from the contract). That is to say. Section 43, while making it possible to compel any one of the joint promisors to perform the contract, gives that promisor a right to compel contribution from other co-promisors. Section 43 of the Contract Act has to be read with Order 1 Rule 6 of the Code of Civil Procedure in order to find out the precise position of joint liability on a contract under the Indian law. Under Order 1 Rule 6 of the Civil Procedure Code, the plaintiff may at his option join as parties to the same suit all or any of the persons severally, or jointly and severally liable, on any one contract, including parties to bills of exchange, hundis and promissory notes. This rule, therefore, makes the legal consequences of joint and several liability on a contract practically the same as those of several liability. Strictly speaking, it does not deal with joint liability but since Section 43 of the Indian Contract Act makes all joint contracts joint and several, Section 43 of the Contract Act read with this rule makes the effect of joint liability arising on a contract the same as where the liability is several. This is, however, limited to the question of joinder of parties liable on the same contract and is a matter of procedure.
49. So far as torts are concerned, the position under common law in England seems to have been this: if several persons jointly commit a tort, the plaintiff may sue any one or more of them and cannot be obliged to join any of the others (See Suttort v. Clerke, (1815) 6 Taunton 29; The Bernina, (1887) 12 P. D. 58). That seems to be the position evert now. Formerly, judgment against one joint tort-feasor was a bar to any subsequent action against the others. This is the famous rule known as the rule of Merryweather v. Nixon. (1799) 8 TR 186. This rule was subsequently modified in various stages and ultimately came to be stated in these words by the House of Lords:
'No person who has been guilty of tort or any other form of wilful wrong doing and has been made liable for any damages, has any right of contribution or indemnity against any other person who was a joint wrong-doer with ham'.
(see Palmer v. Wick and P. S. Shipping Co. (1894) 2 AC 318).
50. The rule was however abrogated in England finally by the Law Reform (Married Women and Tortfeasors) Act, 1935 (22 and 26 Geo. 5 c. 30).
51. In India, there is no express provision of law applicable to the case of tort. In the language of Lord Phillimore delivering the judgment of the Board in the case of Maharaja of Jeypore v. Ruk-mani Pattamahdevi AIR 1919 PC 1 the Courts in India
'are directed by the several charters to proceed where the law is silent, in accordance with justice, equity and good conscience'.
And at has always been well recognised that for this purpose the Courts are entitled to refer to the common law which is actually enforced by the Courts in England. It is, therefore, safe to presume that in the case of tort a plaintiff in India will be entitled to sue any one or more of several joint tortfeasors. On the question of contribution the position would be assimilated to the position in England as under the Law Reform (Married Women and Tortfeasors) Act, 1935.
52. Though the position in the case of a contractual and tortious liability is as has been indicated above, it is not clear as to what is the position in the case of other liabilities, for example, the case of a statutory liability with which we are concerned in the instant case. In England, Order 16 Rule 4 of the Rules of the Supreme Court provides:
'All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.'
53. The corresponding provision in our Rules of the Code of Civil Procedure are to be found in Order 1 Rule 3 which is in the following terms:
'All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against sucb persons, any common question of law or fact would arise.'
54. It will be seen that this rule makes it only permissible to join all persons as defendants against whom there is a right to relief either jointly or severally. It does not say that it is mandatory to join all co-defendants where there is a right to relief jointly against such defendants.
55. In deciding the question whether in the instant case the plaintiff, can be permitted to sue the Union of India in the absence of the Government of Pakistan in spite of our finding that both the two Governments are jointly liable to the plaintiff, it has to be decided in the light of various other considerations. Firstly, there can be no question that Indian Courts cannot compel the Government of Pakistan to submit to their jurisdiction nor can they pass an executable decree against the Government of Pakistan. The same would be the position of Pakistan Courts vis-a-vis the Government of India. That being the position, a finding that in the case of a joint liability under Article 10 of the Order of 1947 both the Dominions of India and Pakistan are to be jointly sued in the same suit gives rise to an impossible situation. In effect it would leave a plaintiff without any practical and effective remedy whatsoever. In this connection some of the provisions of Article 12 as well as Article 13 of the Indian Independence Order, 1947 are significant. Article 12(1) provides:
'12(1). Where immediately before the appointed day the Governor-General in Council is a party to any legal proceedings with respect to any property, rights or liabilities transferred by this order, the Dominion which succeeds to the property, rights or liabilities in accordance with the provisions of this order shall be deemed to be substituted for the Governor-General in Council as a party to those proceedings, and the proceedings may continue accordingly.'
56. Under this provision, therefore, in respect of pending legal proceedings the responsibility for impleading any Dominion as a party defendant does not rest on the plaintiff. In a case where the Governor-General in Council is a plaintiff the Dominion which succeeds to the property or right in accordance with this Order is to be automatically substituted for the Governor-General in Council as a plaintiff and where the Governor-General in Council is being sued with respect to any liability transferred by the Order that Dominion which succeeds to the liability in accordance with the Order shall be deemed to be substituted for the Governor-General in Council as a defendant. The substitution is automatic and takes place by operation of law irrespective of any steps taken by the plaintiff or the defendant.
57. Clauses (1) and (2) of Article 13 provide as follows:
'13(1). Where by virtue of the preceding provisions of this Order either of the Dominions or any Province becomes entitled to any property or obtains any other benefits, and it is just and equitable that that property or those benefits should be transferred or shared with the other Dominion, or with any other Province, as the case may be. the said property or benefits shall be allocated in such manner as, in default of agreement, may be determined by the Arbitral Tribunal.
(2) Where by virtue of the preceding provisions of this Order either of the Dominions or any Province becomes subject to any liability, and it is just and equitable that a contribution towards that liability should be made by the other Dominion, or by another Province, as the case may be, the other Dominion or Province shall make to the Dominion or Province primarily subject to the liability such contribution in respect thereof as, in default of an agreement, may be determined by the Arbitral Tribunal.'
58. It is obvious that if either of the Dominions become subject to any liability the Order provides for contribution by the other Dominion if it is just and equitable that such a contribution should be made. There can be no question that in a case where under the provisions of this Order a formal liability of the Governor-General in Council becomes a joint liability of the two Dominions and a decree is passed against one Dominion it will be just and equitable that the other Dominion will make a contribution towards that liability and such contribution is to be made to the Dominion which is 'pri-marily subject to the liability'. That is to say, the Independence Order itself makes provision for contribution in the case of a joint liability where that joint liability is enforced against one Dominion alone. Taking all these factors into consideration, the conclusion is in my opinion inescapable that the joint liability imposed under Article 10 of the Order of 1947 can be enforced against any one of the Dominions. It will depend on the location of the forum where the liability is in force. In Pakistan Courts, the liability must necessarily be enforced against the Government of Pakistan. Similarly, in Indian Courts the liability must necessarily be enforced against the Government of India. Otherwise, as we have already seen, persons who have a right against both the Dominions jointly would be left without any remedy. This is a construction which cannot in consonance with equity, justice and good conscience be imposed upon the Indian Independence Order, 1947.
59. To my mind the Order of 1947 not only makes substantive provisions of law as regarding the devolution of pre-partition rights and liabilities but it also provides for procedure. In fact, Articles 12 and 13 of the Order are plainly procedural and since the procedure indicated contemplates that the liability would be imposed against a 'primary' party in the first instance which party would have a right of contribution against the other, the conclusion is irresistible that in the case of a joint liability created under this Order, it was intended that proceedings would be maintainable against one party alone.
60. Even if it be presumed -- and in my opinion such presumption is wholly unnecessary --that the Indian Independence Order, 1947 does not; provide for any procedure, one would be compelled to conclude that the expression 'joint liability' in Article 10 of the Order of 1947 is to be construed as 'joint and several' as otherwise the provisions of Articles 10(1)(c), 10(2)(c) and 10(3)(c) of that order will be rendered completely senseless and nugatory.
61. There is yet another ground why I consider that the plaintiffs' suit is maintainable against the Union of India in the absence of the Government of Pakistan even though the liability is joint. The rule as to joinder of defendants contained in Order 1 Rule 3 of the Code of Civil Procedure assumes the existence of a suit in a proper forum. If in a suit brought against two defendants, the Court has jurisdiction against one, but none against the other, this rule cannot be construed to confer jurisdictionupon the Court to try the suit against the other defendant also, merely because the conditions of Order 1 Rule 3 are satisfied. (See Bengal and North Western Rly. Co. v. Sadaram, ILR 49 Cal 895: (AIR 1922 Cal 500)). Order 1, Rule 9 provides that
'no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court mayin every suit deal with the matter in controversy sofar as regards the rights and interests of the partiesactually before it.'
As regards non-joinder it is recognised that the Civil Procedure Code makes a distinction between two classes of non-joinder, viz., non-joinder of persons who ought to have been joined as parties under the substantive law and non-joinder of parties whose joinder is a matter of convenience orexpediency. If under the substantive law a decree cannot be effective without the absent party, the suit is liable to be dismissed because the matter in such cases does not lie within the realm of procedure and the omision to join the parties is not a technicaldefect but goes to the substance of the action. In the other class of cases, viz., those where the joinderof a person is a matter of convenience, the suit may be tried without him or the party may be added as a defendant. It has been said that
'if the Court can pass a decree which is capable of execution and which cannot be rendered nugatory at the instance of persons not joined, the court may proceed with the trial.
Under Order 1 Rule 10 Clause (2) of the Civil Procedure Code, the Court has been given the power at any stage of the proceedings to order that the name of any person who ought to have been joined,whether as plaintiff or as defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. In the instant case the sameOrder which makes the liability in question a joint liability provides that the liability may be realised against a 'primary' party who may seek contribution against the other party. Therefore, it cannot be said that it is a matter of substantive law that both the parties should be present. Nor can it be said that it is a matter of convenience for it is impossible for the Court of one Dominion to extend its jurisdiction over the other Dominion. Therefore, it is not possible to argue that the suit should bedismissed for non-joinder of the absent party, viz., the Government of Pakistan; or that the Court should order the adding of the Government of Pakistan as the party under Order 1 Rule 10 Clause (2) of the Civil Procedure Code.
62. In Wilson, Sons and Co. Ltd. v. BalcarresBrook Steamship Co. Ltd., (1893) 1 QB 422 wherean action was brought against only one of two jointcontractors, the other being a foreigner residentout of the jurisdiction, it was held by the Court of Appeal that the defendant who was present before the Court was not entitled as of right under Order XVI Rule 11 of the Rules of the Supreme Court tohave the other joint contractor added as a defendant. In that case the defendants were owners of a Steamship which had been chartered by them to one Benier, a foreigner resident at Antwerp for a voyage from that place to Santos. The plaintiffs who carried on business both in England and atSantos were employed to act as ship's agents as well as the charterer's agents at Santos. The plaintiffs had to make certain disbursements and the defendants and Benier jointly guaranteed repayment of these to the plaintiffs in England. Upon the plaintiff bringing an action against the defendants, the defendants made an application under Order 16 Rule 11 for an order that Benier should be added as a defendant. When the application was heard at chambers, Wright, J. though unwilling as a matter of discretion to make the order applied for, in fact passed the order because he thought that he was bound to do so by the case of Pilley v. Robinson, (1887) 20 QBD 155. On appeal to the Divisional Court, the order was set aside. The matter then came up before the Court of Appeal. It was argued on behalf of the defendants that they had an absolute right to have an order compelling the plaintiffs to join Benier as a defendant. The defendants' case was developed in this way. At common law a defendant had an absolute right to compel joinder of a joint contractor as defendant by a plea in abatement. But by the statute 3 and 4 Wm. 4, c42, s 8, it was provided that no such plea was to be allowed unless the persons whose non-joinder was pleaded were stated in the plea to be resident within the jurisdiction of the Court. Therefore, after the Statute of William, if both the joint contractors were within the jurisdiction, there was a right to have the joint contractor joined and a plea in abatement was a good plea; but if the joint contractor who had not been sued was not resident within the jurisdiction, then a plea in abatement could not be validly pleaded. Thereafter, the Common Law Procedure Act was enacted and there was provision for service upon defendants outside the jurisdiction. The provisions of the Statute of William still remained. At this stage the Judicature Act was passed. The Judicature Act abolished pleas in abatement. It was, therefore, contended by the defendants that the provisions of the Act of William can no longer have any direct application. Lord Esher, M. R. held:
'But it was not intended by the Judicature Act to alter people's substantive rights. A larger power was given to the Court by the new procedure as to joinder of parties; but that procedure ought, as it seems to me, to be administered with regard to the principles of the old law on the subject. Therefore, where there are two joint contractors, both resident within the jurisdiction, I think that prima facie if one of them is sued on the joint contract, he would have a right to have the other made co-defendant. Order 16 Rule 11, so far as its terms are concerned, gives a discretion. It is not necessary to say that even where all the joint contractors are within the jurisdiction, there might not be circumstances under which the Court could refuse to insist on their all being joined as defendants ..... inthe case of one of two joint contractors being resident without the jurisdiction, before the Judicature Act, the defendant could not plead in abatement, and the plaintiff therefore could not be forced to join such joint contractor as a defendant, but might proceed against the other joint contractor alone. In this case, too, carrying out the discretionary procedure given by the Judicature Act in the same manner as before, I should say that, though there might in such a case be a discretion to order the joint contractor to be joined, the discretion ought to be exercised as nearly as possible in accordance with the previously existing law as applicable to the rights of the parties.'
63. On these grounds the Court of Appeal came to a decision that the matter was entirely one of discretion for the Court and upheld the order of the Divisional Court.
64. The same point arose again in the case of Robinson v. Geisel, (1894) 2 QB 685. That wasa case where the plaintiff brought an action on a guarantee against Geisel, one of three co-guarantors. Aa order was obtained that the other two joint guarantors should be joined as defendants and in the meantime the action should be stayed. The other two defendants were accordingly added and one of the absent co-guarantors was served but not the other. An amended statement of claim was then delivered to Geisel who took out a summons to have the action stayed until the other co-guarantor could be served. This application was dismissed. On appeal to the Divisional Court, the order dismissing the application was confirmed. The matter then came up to the Court of Appeal. Lord Esher, M. B. held:
'By Order 16 Rule 11, no cause or matter shall be defeated by reasons of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy 60 far as regards the rights and interests of the parties actually before it; and by Order 21 Rule 20 no plea or defence shall be pleaded in abatement. If, therefore, in any case the Court finds that in any cause or matter an order to join other parties will prevent the Court dealing with the rights and interests of the parties actually before it, it would be in direct contravention of the rule to make such an order.'
65. A. L. Smith, L. J. while agreeing with the Master of Rolls, said:
'It seems to me that if there are two joint contractors resident within the jurisdiction, the rule is that both should be brought in to defend unless there is good reason to the contrary. In the present case there is ample reason why the plaintiff, who has done all that he can to find the other co-contractor, should not have his action stayed because he cannot serve him.'
This case, therefore, goes further than the earlier case and lays down the proposition that a suit should not be defeated where for circumstances beyond the control of the plaintiff one of the co-contractors could not be served with a writ.
66. Order 16 Rule 11 of the Rules of the Supreme Court in England is in terms practically the same as Order 1 Rule 9 of the Code of Civil Procedure and I am of the opinion that Order 1 Rule 9 will apply to the facts of this case on the same reasoning on which Lord Esher applied Order 16 Rule 11 of the Rules of the Supreme Court to the second case just cited above. In the present case it is obvious that an Indian Court cannot compel the Government of Pakistan to submit to its jurisdiction nor can it make a decree executable against that Government. Therefore, to say that the suit is defeated because the Government of Pakistan does not appear as a defendant amounts, in my opinion to acting against the rufes of justice, equity and good sense and also to a complete contravention of the provisions of Order 1 Rule 9 of the Civil Procedure Code.
67. In this view of the matter I hold that in the present case it was permissible for the plaintiff to press its claims only against the Union of India.
68. It is now necessary for me to consider as to what should be the rate of compensation and what are the periods for which the compensation is to be allowed. Datta, J. found firstly that Rs. 500/- per day was a reasonable hire or compensation of the vessel and secondly that the plaintiff was entitled to compensation for the period from April 13 to August 6. 1944. Datta, J. held that the plaintiff was not entitled to a claim for hire for the period from August 7, 1944 to August 15, 1944. Datta, J. also held that the plaintiff had not been able to establish his case for damages for abnormal or unreasonable user and was, therefore, disentitled from charging any hire for the period between August 16, 1944 and September 14, 1945 when it was in dry dock for repairs. The plaintiff has not filed any cross-objection against Datta, J.'s findings rejecting the plaintiff's claim for the period from August 7, 1944 to August 15, 1944 and from August 17, 1944 to September 14, 1945. We need not, therefore, consider these claims at all. At the time of trial it was argued on behalf of the defendants that the vessel was very defective at the time when it was made over to the railway authorities. Datta, J. did not accept this case of the defendant and no attempt was made at the time of appeal to establish this case before us. In any event, since this defence was urged as a sort of counterblast to the plaintiff's claim for repair and since that claim has been rejected by the learned Judge, we need not concern ourselves with this part of the defendant's case either. As to the question regarding the rate of compensation, Datta, J. has discussed the evidence of Aitken and held that Rs. 500/- was a reasonable hire per day. There was no attempt made on either side before us to challenge this finding of Datia, J. We find ourselves in complete agreement with Datta, J. regarding his findings that the plaintiff has failed to prove that Rs. 600/- was either an agreed rate of compensation or a reasonable hire or compensation for the user of the vessel. We are also in agreement with Datta, J. that on the materials before him it was safe to hold that Rs. 500/- per day was the reasonable hire or compensation for the vessel.
69. In the result, therefore, we support the decree awarded by Dutta, J. against the defendant though our reasoning and arguments on the various issues raised in this case as well as our approach to these issues have been a little different. We, therefore, order that the appeal be dismissed with costs.
70. Certified for two Counsel.
71. I agree.