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Trilock Chand Agarwalla Vs. Dominion of India (Now as the Union of India (Uoi)) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 1 of 1955
Judge
Reported inAIR1959Cal281
ActsDisplaced Persons (Institution of Suits) Act, 1948 - Section 4, 4(1), 4(2), 4(3) and 4(4); ;Code of Civil Procedure (CPC) , 1908 - Section 20; ;Railways Act, 1890 - Section 77
AppellantTrilock Chand Agarwalla
RespondentDominion of India (Now as the Union of India (Uoi))
DispositionAppeal dismissed
Cases ReferredCorporation of Calcutta v. Sub
Excerpt:
- p.b. mukharji, j.1. this appeal can be disposed of on two points of (1) jurisdiction of the court and (2) notice under section 77 of the indian railways act. the learned trial judge dismissed the plaintiff's suit and held against the plaintiff on both these points. the plaintiff is the appellant before us.2. before discussing and deciding these two points it will be useful to make a short reference to the facts.3. the plaintiff instituted the suit on the 11th november, 1948 as a commercial cause against the dominion of india describing it as the 'successor of the former central government which owned the bengal assam railway carrying on the business of carriage of articles and having its principal place of business at no. 3, koilaghat street, calcutta'. the plaintiff's case is that he is.....
Judgment:

P.B. Mukharji, J.

1. This appeal can be disposed of on two points of (1) jurisdiction of the Court and (2) notice under Section 77 of the Indian Railways Act. The learned trial Judge dismissed the plaintiff's suit and held against the plaintiff on both these points. The plaintiff is the appellant before us.

2. Before discussing and deciding these two points it will be useful to make a short reference to the facts.

3. The plaintiff instituted the suit on the 11th November, 1948 as a commercial cause against the Dominion of India describing it as the 'successor of the former Central Government which owned the Bengal Assam Railway carrying on the business of carriage of articles and having its principal place of business at No. 3, Koilaghat Street, Calcutta'. The plaintiff's case is that he is a displaced person within the meaning of the Displaced Persons (Institution of Suits) Act, 1948. His pleading in the plaint is that he left Bogra in East Bengal which is now in East Pakistan in the last week of August 1947 and since then he alleges that he has been residing at 39, Netaji Subhas Road in the town of Calcutta and has been carrying on business there within the jurisdiction of this Court. The plaintiff pleads that on the 30th July 1947 he delivered to the Bengal Assam Railway 139 bags of Zeera (cummin seed) weighing 211 mds. 39 srs. and 7 bags of dry chillies weighing 7 mds. 10 srs. and the said Railway received and accepted the same for the purpose of carrying them by railway from Bogra, to Siliguri in India. The Railway granted the plaintiff a receipt being Receipt No. 917207 dated the 30th July 1947. The plaintiff's case is that the Railway failed to deliver those goods at Siliguri. The plaintiff pleads loss or destruction of these goods by the negligence or want of due care and diligence on the part of the Railway or its staff. The plaintiff claims a sum of Rs. 22,065/- as being the value of the goods lost. He pleads having given due notice under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure. It is further pleaded in the plaint that under the provisions of Indian Independence (Rights, Properties and Liabilities) Order, 1947 and also under the general law the defendant, Dominion of India, is liable to pay the said sum.

4. The Dominion of India in its written statement denied all liability. It denied that it was a successor of the former Central Government which owned the Bengal Assam Railway. It denied the fact that the plaintiff was a displaced person within the meaning of the Displaced Persons (Institution of Suits) Act. 1948. It denied liability for the said sum of Rs. 22,065/- or any part thereof. It denied that any portion of the alleged railway line from Bogra station to Siliguri station on the Bengal Assam Railway was a Railway which devolved on the defendant. It pleads that the said portion from Bogra Railway station to Siliguri Railway station, from the appointed day the 15th August 1947, was administered and worked by the Dominion of Pakistan. Therefore, it pleads that any contract, made by the Bengal Assam Railway as it was before the appointed day on the said portion from Bogra to Siliguri Railway stations, was exclusively for the purposes of the Dominion of Pakistan and as such the contract under the Indian Independence (Rights, Properties and Liabilities) Order, 1947 must be deemed to have been made on behalf of the Dominion of Pakistan. The further defence is that the suit is incompetent and is not maintainable and that no part of the alleged cause of action the existence of which is denied arose within the jurisdiction of this Court. The defendant pleads that this Court has no jurisdiction to entertain and try the suit.

5. I shall take up first the point of jurisdiction. The learned trial Judge has found as a fact that the plaintiff is a displaced person within the meaning of the Displaced Persons (Institution of Suits) Act, 1948. I shall assume in favour of the appellant, that conclusion to be right. The question then is: Does that statute give fhe right to the plaintiff as claimed by him to file the suit in this court here against the Dominion of India? Reliance is placed on behalf of the appellant on the provisions of Section 4 of the Displaced Persons (Institution of Suits) Act, 1948. That Section provides as follows:

Notwithstanding anvthing contained in Section 20 of the Code of Civil Procedure, 1908 or in any other law relating to the local limits of the jurisdiction of Courts or in any agreement to the contrary, a displaced person may institute a suit in a court within the local limits of whose jurisdiction he or the defendant or any of the defendants, where there are more than one at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, if

(i) the defendant or where there are more than one, each of the defendants, actually and voluntarily resides or carries on business, or personally works for gain in India and is not a displaced person;

(ii) the cause of action, wholly or in part, arises or has arisen in a place now situate within the territories of Pakistan;

(iii) the court in which the suit is instituted is otherwise competent to try it; and

(iv) the suit does not relate to immovable property.'

6. This Act was passed to make special provisions for the institution of suits by the displaced persons as declared by its preamble. The displaced person within the meaning of this Act means any person who on account of the setting up of the Dominions of India and Pakistan, or on account of civil disturbances or fear of such disturbances in any area now forming part of Pakistan, has been displaced from, or has left, his place of residence in such area after the 1st day of March, 1947, and who has subsequently been residing in India. The preamble and the definition of 'displaced person' under the statute make the object and purpose of the Act clear. Section 4 of the Act gives special right of forum to a displaced person as a plaintiff, notwithstanding the provisions of Section 20 of the Code of Civil Procedure and any other law relating to the local limits of the jurisdiction of a court. It permits a displaced person to institute a suit in a court within the local limits of whose jurisdiction the plaintiff resides. It also permits a displaced person to institute a suit where any of the defendants, where there are more than one, actually and voluntarily resides or carries on business or personally works for gain. This right therefore modifies the normal right of forum in respect of the local limits of jurisdiction of the court allowing the plaintiff to institute a suit where he resides or where the defendant actually and voluntarily resides or carries on business or personally works for gain.

7. This new right is qualified by the word 'if and what follows thereafter. Four different conditions are laid down in Section 4 of the Act which must be satisfied before the plaintiff can bring a suit under this Act where he resides or where the defendant resides or carries on business or personally works for gain. Having regard to the language and the arrangement of the Section, I am of opinion that the three conditions provided in Sub-clauses 1), (2), (3) and (4) of Section 4 of the Act are conjunctive and cumulative and not alternative or distributive. I draw this conclusion for the reasons, (1) that the word 'and' is used after Clause (3) and (2) that the conditions laid down in Sub-clauses (1), (2), (3) and (4) are all punctuated as different and separate clauses and not alternatively put. The substantive right to the displaced person as a plaintiff to institute a suit where he resides or where the defendant resides or carries on business or personally works for gain is provided for in the first paragraph of Section 4. The whole of that substantive right is qualified by the three conditions which are followed by the subjunctive 'if'. The substantive right of the displaced person to institute a suit as provided in the first paragraph of Section 4 therefore has to be judged and determined by the test whether each one of the four conditions laid down in that section is satisfied.

8. The relative condition for the purpose of deciding this point is contained in Clause (1) which provides :--

'the defendant or where there are more than one, each of the defendants, actually and voluntarily resides or carries on business, or personally works for gain in India and is not a displaced person.'

The linguistic habiliment of this condition in Clause (1) is borrowed from the familiar wardrobe of Section 20(a) of the Code of Civil Procedure. From this it follows that what was intended by this condition was to modify the prevailing notion of Section 20(a) of the Code of Civil Procedure. That section of the Code of Civil Procedure has been judicially construed. It has been held in a series of decisions in this court and elsewhere in India that it does not apply to a State or a Government. Clause 12 of the Letters Patent of this High Court uses some of the words used in Clause (1) of Section 4 of the Displaced Persons (Institution of Suits) Act, 1948 in so far as it uses the words 'dwells or carries on business or personally works for gain' although significantly enough it does not use the corresponding Civil Procedure Code words in Section 20--'actually and voluntarily', but which words are used in this particular statute. Decisions of Section 20(a) of the Code of Civil Procedure and Clause 12 of the Letters Patent of this High Court holding that they do not apply to a Government or a State are to be found collected in the case which I have had occasion to decide in 1952 in Calcutta Motor Cycle Co. V. Union of India, : AIR1953Cal1 . I do not need to repeat here the cases which are all cited and collected in my judgment there. Since then I find that a similar view has been taken by a Division Bench of the Bombay High Court in Bata Shoe Co. Ltd. v. Union of India, : AIR1954Bom129 construing the expression 'carrying on business' in Section 18(b) of the Presidency Small Cause Courts Act. Gajendragadkar J. delivering the judgment in the Bombay decision comes to the concursion that the running of the Railway would be treated as a business in the hands of the Railway company but that fact would not necessarily show that it is business when it is undertaken by the Government or the State, and says that 'it is true that Ordinarily the Railways bring income to the State. But it is difficult to hold (hat the Railway has been nationalised by the State for the purpose of making income or profit; because such profits go to the Public Exchequer and that makes a material difference.'

9. The principles of these cases have been applied by the Punjab High Court also to Section 4 of the Displaced Persons (Institution of Suits) Act, 1948. A Division Bench of the Punjab High Court in Lakhmi Chand L. Nanak Chand v. Punjab State, comes to the conclusion that a displaced person can take advantage of the provisions of this Act if he satisfies the conditions mentioned in Section 4 including the condition that the defendant carries on business or personally works for gain in India and that the work carried on by a Government is governing the country cannot be regarded as business carried on by Government. I respectfully agree with that conclusion and shall add my own reasons in further support of that conclusion.

10. It is difficult in my view to include the Government as a possible defendant within the meaning of Section 4 of the Displaced Persons (Institution of Suits) Act, 1948 on the very construction of the language used in that section. The words 'actually and voluntarily resides or carries on business or personally works for gain' are to my mind inappropriate words to refer to a Government or a State as a defendant. It has been said and argued that a Government or a State can be said to reside within its own territory. Ideologically, notionally and as a concept in political philosophy, I can understand that the State or the Government resides within its own territory, but I cannot conceive how even then it is a case of 'actual and voluntary' residence. 'Actual and voluntary' residence is a notion inapplicable to a State or Government. Words 'actual' and Voluntary' are significant. Voluntary residence means a choice to reside, a choice to reside in one place and not to reside in another place. Such a choice which is inherent in the expression Voluntary' cannot be applied to the idea of the residence of a Government. The word 'actually' is also inappropriate to mean the residence of a Government or a State within its own territory. 'Actual' means that it is not notional or ideological or constructive. What can be the 'actual' residence of a Government or a State as opposed to a non-actual residence of a Government or a State? To my mind, therefore, both these expressions 'actually' and Voluntarily' are inapplicable to a defendant such as a State or a Government. It therefore follows that Section 4(i) is not intended at all to apply where the defendant is a State or a Government.

11. There ate other reasons to support this construction of Section 4 of the Displaced Persons Institution of Suits) Act, 1948. The whole concept of residence or carrying on business or personally working for gain is to my mind inapplicable to a Government. The words in a particular section may acquire either a mitigated or an excessive meaning from the context in which they appear. The context of Section 4(1) of the Act is such that I cannot extend it to include a State or a Government. Lastly, the expression at the end of Clause (1) of Section 4 of the Act is 'and is not a displaced person'. The meaning of that expression is that the defendant must not be a displaced person; in other words, even if the plainliff is a displaced person and he has a right to sue where he resides, such right cannot be invoked by Section 4 if the defendant is himself a displaced person, But the importance of this exemption lies in the fact that it relates to a displaced person. If a Government or a State is intended to be included as a defendant within the meaning of Section 4(1) of the Displaced Persons (Institution of Suits) Act, 1948, then the Government has to be included in possible cases as a displaced person. I consider the expression 'displaced person' entirely inappropriate to include a State or a Government. I do not think, therefore, that it is the intention of Clause (i) of Section 4 of the Act to include the case where the State or the Government is a defendant.

12. All these reasons are reasons of construction of the actual language of the expression used in Section 4 of the statute. They all seem to show and indicate irresistibly that it was not in the contemplation or intention of Parliament by this enactment to apply it to the case where the defendant in Clause (1) of Section 4 is a Government or a State. In addition to this interpretation I am also satisfied that there are good judicial reasons for this view.

13. So far as a State or a Government is concerned, the law on this point as I understand is that the test of residence and business is inappropriate. The residence test or the business test is inapplicable to a State or a Government. The test in the case where a State or a Government is a defendant is the test of the cause of action. That law has not been changed or modified by the Displaced Persons (Institution of Suits) Act, 1948. This was a special legislation to give special relief relating to institution of suits by displaced persons generally and that for a very limited time of about four years as provided in Section 2 of the Act. Settled laws relating to jurisdiction of courts should not be lightly interfered with unless a statute expressly or by the most necessary implication says so. It is all the more so where a statute is intended only to give special relief to a special class or classes of persons and that even for a limited period of time. Applying the cause of action test, however, in this case the suit certainly could have been filed on the facts of this appeal at Siliguri where the delivery of the goods was supposed to have been made by the Railway. The breach obviously is non-delivery and that took place at Siliguri. Siliguri Court would have, therefore, complete jurisdiction to entertain a suit against the Government on these allegations of facts.

14. The extraordinary and special rights of a displaced person as plaintilf to institute a suit where he resides is as I have said are not unqualified rights but are conditional and qualified by the four conjunctive conditions stated in Section 4 of the Displaced Persons (Institution of Suits) Act, 1948. The very first condition in Clause (i) of that section is not in my opinion satisfied in this case. Therefore, I must hold that this court had no jurisdiction to entertain the suit and the suit was rightly dismissed on the ground of jurisdiction.

15. It was contended on behalf of the Government that the Displaced Persons (Institution of Suits) Act, 1948 does not expressly or by necessary implication bind a State or a Government. Mr. G.P. Kar, learned counsel for the State relied on the Privy Council decision in Province of Bombay v. Municipal Corporation of the City of Bombay, 73 Ind Anp 271: (AIR 1947 PC 34) and a Division Bench decision of this Court in Corporation of Calcutta v. Sub-postmaster, Dharamtola Post Office, : AIR1950Cal417 for the purpose of his argument. It is unnecessary in my view to decide that point in this appeal having regard to the view that I have already taken of the construction of the actual language used in Section 4 of the Displaced Persons (Institution of Suits) Act. 1948 and having regard to the view that. I have taken that on such construction it does not apply to a State or a Government as a defendant. I, therefore, think it not necessary in this appeal to decide the point whether a State or a Government in the present context of India under the new Constitution can be bound by its own statute unless the statute expressly or by necessary implication says so.

16. The next point is the point of notice under Section 77 of the Indian Railways Act. The material portion of that section is as follows:

'A person shall not be entitled.....to compensation for the loss, destruction .....of goods delivered to be so carried, unless his claim to the... compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the goods for carriage by railway.'

The plaintiff alleges in his plaint that he gave due notice under Section 77 of the Indian Railways Act. The defendant denies it. That is an issue of fact. Loss is pleaded in the plaint in this case. Therefore, notice under Section 77 of the Indian Railways Act is necessary and indispensable. I am satisfied or, the evidence on the record of this case that the plaintiff has not proved (sic) established that a notice under Section 77 of the Indian Railways Act was in fact given. I shall state my reasons and analysis of the facts on this point very briefly.

17. The learned counsel for the plaintiff apparently made a case at the trial that a letter dated the 9th January 1948 addressed to the General Manager, Assam Railways was such a notice under Section 77 of the Indian Railways Act. Thereupon, the learned counsel for the defendant called upon him to produce that notice. The counsel for the Government stated that no such letter was available and he was unable to produce it (see the record of the deposition of the plaintiff alter question No 96). What followed thereafter was interesting. The counsel for the appellant asked in question 97 the following question:

'I am showing you copy of the letter dated 9th January, 1948 addressed by you to the General Manager, Assam Railways, 3 Koilaghat Street (shown) --who wrote the original of this letter?' The answer given by the plaintiff was that this pleader Jyotish Chandra Chaki wrote that letter. But the curious part of this question is that no letter of the 9th January 1948 was in fact produced or shown to the witness. What was shown to the witness was a letter purporting to be of. the 26th November 1947. By an equally mysterious process this letter was tendered in evidence, but was objected to. What happened was that it was tendered subject to objection and marked as Ext. C. In the record of the deposition of the plaintiff after question No. 105 what is said is 'Copy letter dated 9th January, 1948 tendered subject to objection--Ext. C'. Here again, no copy or letter dated 9th January 1948 was in fact tendered. What was tendered again was the letter Ext. C but which is not a letter dated 9th January 1948, but a letter bearing date 26th November 1947. About the identity of this letter (here is no doubt because the identity is fixed by the mark Ext C. Exhibit C at once shows mat it is not a letter dated 9th January 1948.

18. No letter in the record of this appeal has been exhibited or tendered or printed which is dated the 9th January 1948. The plaintiffs case, therefore, as made by his counsel that a notice under Section 77 of the Indian Railways Act dated the 9th January 1948 was given by the plaintiff to the defendant must fail for complete absence of the proof of that letter. In fact no letter or notice of the alleged date 9th January 1948 or a copy thereof was even disclosed in the affidavit of documents made by the plaintiff. What is worse is that no letter or notice dated 9th January 1948 was even mentioned in the heated correspondence that passed between the attorneys of the plaintiff and the defendant. The plaintiff's attorney's letter dated the 2nd June 1951 charged the defendant with having suppressed material, important and relevant documents and gave in that letter a long list of such suppression. That list curiously enough does not even by the slightest breath suggest any notice or letter elated 9th January 1948 under Section 77 of the Indian Railways Act. In reply to the plaintiff's attorney's letter the Government's attorney wrote on the 7th September 1951 saying that such documents as they had mentioned were not traceable at all in the files of the Railway Administration. That was notice enough for the plaintiff to get ready to prove the copy of the letter which he alleged the defendant suppressed. If in fact a letter or a notice under Section 77 of the Indian Railways Act dated 9th January 1948 was sent, then the plaintiff should have been ready with a copy of that letter to be proved. The plaintiff did not prove any copy of such letter dated 9th January 1948.

19. Coming now to Ext. C which is a letter bearing the date 26th November 1947 it has been argued that this may be treated as a notice under Section 77 of the Indian Railways Act. The difficulty is that Ext. C which was tendered subject to objection has not been proved at all. Before I come to the question of proof I need only say that this notice is alleged to be only to the General Manager, E. B. Railway and others but not to the General Manager of the Assam Railways of 3, Koilaghat Street which was the case made by the plaintiff's own counsel in question No. 97 of the plaintiff's deposition. The notice, therefore, even on the face of it is defective and bad. In answers to questions 292 to 294 the plaintiff had to admit in cross-examination that he did not know to his own knowledge on whom the notice under Section 77 had been served. He also admitted that he does not remember on which Railway he served the notice under Section 77 of the Indian Railways Act. His answer to question 293 was that he did not himself remember and it was in..the papers. Finally, he said that he did not remember on whom notice under Section 77 had been served. In spite of that state of the evidence the lawyer who actually drafted the notice has not been called. The date, 26th November 1947 appearing in Ext. C is a very suspicious date because first the date is not typed but is written in ink and nobody has proved who wrote that date in manuscript. The date does not appear on the usual side of a letter or a notice on which dates do appear but is pitch-forked somewhere on the extreme left corner which certainly is not the place for a date of any letter or a notice. It is not the plaintiff's case that he put the date or even the lawyer put the date. His evidence only was that his lawyer typed the letter. The date was not typed. A certificate of posting is attached to that letter but that again bears a date 15th January 1948 and is not of 9th January 1948.

20. An attempt was made in the argument by the learned counsel for the appellant to suggest that a letter dated 17th February 1948 was really an answer to the letter of notice dated 9th January 1948 or the 26th November 1947. This letter is marked Ext. D.. Unfortunately for the appellant this letter of the 17th February 1948 makes no reference whatever to any notice dated 9th January 1948 or even of 26th November 1947. All that Ext. D says is that the Railway was forwarding the appellant's letter to tbs Traffic Manager, E. B. Railway. Chittagong who was the competent authority to dispose of tie claim. No inference can be made from Ext. D that a due notice under Section 77 of the Indian Railways Act hod been given. In fact, the plaintiff in his own evidence admitted in answer to question 101 that there was no reply to the letter of the 26th November 1947 which was wrongly described as the letter dated the 9th January 1948. In fact, this confusion of dates between the 9th January 1948 and the 26th November 1947 also marks the learned trial Judge's statement about the notice. The learned trial Judge says:--

'The only notice given under this case was the one dated 9th January 1948 (Ext. C) which was addressed to the General Manager A sam Railway at 3 Koilaghabi Street, Calcutta. But it is clear on evidence that Assam Railway had no terminus at Siliguri at the material time. Thus there was no valid or proper notice given under Section 77 of the Railways Act read with Section 140 of the said Act. As the service of a proper notice is a condition precedent to the institution of suit for compensation for loss of goods this suit must fail in the absence of such notice.'

21. I have said that Ext. C is not a notice dated 9th January 1948. Ext. C is not also addressed to the General Manager, Assam Railway. Therefore, there was in fact no proof of any notice or a copy of a notice dated 9th January 1948 or even of any other date and addressed to the General Manager of the Assam Railway. As there is no proof, the further point given by the learned trial Judge that Siliguri did not form at the material time a part of the railway system of the Assam Railway is unnecessary to decide although that would be also a very good reason for holding that the notice even if there was in fact one. would be defective.

22. I am, therefore, satisfied that there was no notice under Section 77 of the Indian Railways Act in this case. The plaintiff has failed to prove or establish a copy of any due notice under Section 77 of the Indian Railways Act of any date. The suit therefore must also fail for the absence of notice under Section 77 of the Indian Railways Act and the suit was rightly dismissed on that ground also.

23. For these reasons the appeal must fail and is dismissed with costs.

24. Certified for two counsel.

B.S. Bachawat, J.

25. It was necessary for the plaintiff to give notice under Section 77 of the Indian Railways Act. The loss or destruction of the goods is admitted in paragraph 6 of the plaint. Once loss or destruction of the goods is admitted or proved, the consignor cannot maintain an action for compensation for breach of contract to deliver the goods. He can then only maintain a suit for compensation for loss or destruction of the goods upon grounds for which the railway administration can be made liable. Notice under Section 77 of the Indian Railways Act is a condition precedent to the maintainability of such suit.

26. The requisite notice under Section 77 of the Indian Railways Act is not proved. The plaintiff never attempted to prove the alleged notice dated the 26th November 1947. The copy of the notice dated the 9th January, 1948, is not strictly proved. That notice was said to have been sent to the General Manager, Assam Railways. The materials on the record plainly show that the section Haldibari to Siliguri was at the relevant time administered by the E. B. Railway Administration belonging to the Pakistan Government and not by the Assam Railways. Even assuming that the notice to the General Manager, Assam Railways dated the 9th January 1948 was sent, such notice is not sufficient notice under Section 77 read with Sections 140 and 3(6) of the Indian Railways Act.

27. I am satisfied that the High Court on the Original Side has no jurisdiction to try this suit.

28. The court has no jurisdiction to try the suit under Clause 12 of the Letters Patent. The entire cause of action did not arise within the local limits of its jurisdiction. Leave under Clause 12 of the Letters Patent to institute the suit was not obtained.

29. It is well settled that under the Code of Civil Procedure as also under the Letters Patent of the Chartered. High Court a suit not relating to immoveable property such as a suit for compensation for loss of goods could be brought against the Dominion of India in any court only if the whole or part of the cause of action arose within the local limits of the jurisdiction of that court. The Dominion of India could not be sued in India at all if no part of the cause of action arose in India.

30. In my opinion Section 4 of the Displaced Persons (Institution of Suits) Act No. XLVII of 1948 does not authorise the institution of a suit against the Dominion of India.

31. That section contemplates suits not relating to immoveable property against persons who could be sued in some court in India by reason of their residence or other personal connection with the territorial limits of its jurisdiction on the assumption that no part of the cause of action arose within India and not against the Dominion of India who I could not be sued at all in any court in India on that assumption.

32. In the context of the special Act condition (i) of Section 4 must be read as 'The defendant or where there are more than one each of the defendants, actually and voluntarily resides or carries on business or personally works for gain within the local limits of the jurisdiction of some court in India and is not a displaced person'.

33. For purposes of the special Act the Dominion of India could not be said to be a defendant who 'actually and voluntarily resides' or 'personally works for gain' or 'carries on business' within the local limits of the jurisdiction of any court in India.

34. The Dominion of India was not a defendant within the meaning of condition (i) of Section 4.

35. No suit could be Brought against the Dominion of India under Section 4 as condition (i) of that section could not be satisfied in such a suit.

36. All the four conditions enumerated in Section 4 are cumulative and are not alternative.

37. Governments and States may and sometimes do carry on business or trade. See Government Trading Taxation Act III of 1926, Constitution of India, Section 289 and Section 19(6)(2). In the special context of Section 4 of the Displaced Persons (Institution of Suits) Act XLVII of 1948 and of the Code of Civil Procedure and the Letlcrs Patent of the Chartered High Court and for jurisdictional purposes the Dominion of India could not be s-aid to carry on business in India or within the local limits of the jurisdiction of any court in India.


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