1. This appeal which is from a decision of Mr. Justice G.K. Mitter arises out of a suit brought by the appellant against the Union of India for damages for non-delivery of certain goods entrusted to the then Bengal and Assam Railway on or about 15-9-1944 for carriage from Calcutta (Sealdah) to Parbatipur Station. As the goods were not delivered to the appellant at the destination station, the appellant filed a suit against the Governor-General-in-Council and the Bengal and Assam Railway in the Court of the Subordinate Judge at Dinajpore on 20-11-1945 after giving notice under Section 80 of the Civil Procedure Code on 27-8-1945. The Subordinate Judge of Dinajpore which became a part of Eastern Pakistan after the Partition of India on 14-8-1947 passed a decree in favour of the appellant for Rs. 25,000/- against the defendants after contest on 19-2-1949. While this decree remained unsatisfied, the Government of India promulgated an Ordinance known as Indian Independence Pakistan Courts (Pending Proceedings) Ordinance in October, 1951 whereby certain decrees passed by Pakistan Courts imposing liability or obligation on the Governor-General-in-Council were rendered ineffective and the Ordinance conferred on the holders of such decrees a right to institute a fresh suit or other legal proceedings in respect of the cause of action on which such decree was based within a certain time and under certain conditions mentioned in the Ordinance. This Ordinance was subsequently replaced by an Act, being Act IX of 1952, which was known as the Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952 and which came into force on 23-2-1952. On 31-1-1953 the appellant filed the present suit out of which this appeal arises in this Court under the provisions of this Act IX of 1952.
2. Two points were urged before the learned trial Judge -- (1) is the suit maintainable in view of the fact that no notice under Section 80 of the Code of Civil Procedure was served upon the Union of India? and (2) In any event, is the Union of India liable inasmuch as the goods were to be conveyed to a place in Pakistan under the Indian Independence (Rights Properties and Liabilities) Order, Article 8(1). Both these points were decided by the learned trial Judge against the appellant, and the suit filed by the appellant was, therefore, dismissed.
3. Before us the first contention that has been raised on behalf of the appellant is that the learned trial Judge is wrong in his finding that Article 8(1) of the Indian Independence (Rights, Properties andLiabilities) Order 1947 applies to the facts of this case and, therefore, the Union of India is not liable. It is argued that as the contract in this case was a contract of carriage of the goods from a station which on 14-8-1947 became part of the territories of the Dominion of India to a station in Pakistan (Parbatipur), the purpose of the contract cannot be said to be a purpose which is exclusively of the Dominion of Pakistan within the meaning of Article 8(1) of the Indian Independence (Rights, Properties and Liabilities) Order, 1947, and the mere fact that the destination station was in Pakistan and the goods were ultimately deliverable there, did not make the contract one exclusively for purposes of Pakistan. Article 8 of the Indian Independence (Rights, Properties and Liabilities) Order, 1947 may be set out hereunder :
'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 exclusive 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 to 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 would 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.'
The question is whether the mere fact that the station where the consignment was to be delivered under the contract of carriage was in Pakistan makes the purpose of the contract an exclusive purpose of the Dominion of Pakistan. It appears to us that the answer to this question should be in the affirmative. It is true that in a contract of carriage of goods over a Railway from a station in the Union of India to a station in Pakistan the goods will have to travel over a portion of the Railway which belongs to the Indian Union and a portion of the Railway which is in the territory belonging to the Dominion of Pakistan. But this circumstance by itself cannot be said in my view to make the purpose of the contract other than the exclusive purpose of the Dominion of Pakistan. The real purpose of the contract of carriage in the present case was that the goods had to be carried up to Parbatipur and delivered there. If the goods had been carried, say, half-way and delivered there while the goods were still on the portion of the Railway which is in the territory of the Union of India, the purpose of the contract could not be said to have been carried out or fulfilled. It was the delivery of the goods at the destination station which was the real purpose of the contract. So, the purpose of the contract being delivery at Parbatipur, as soon as the goods would be delivered at the destination station, it is the Dominion of Pakistan alone who would ultimately get control or custody of the goods and it is the Government of the Dominion alone which would be in a position to deal with these goods as they liked. They might make over the goods to the consignee or might not as they chose to do, and if they did not deliver the goods, the liability would be of that Dominion. The Union of India would have no control over such goods, the moment the goods passed into the territory of the Dominion of Pakistan. So, tested in this light, it can be reasonably said that the purpose of the contract of carriage in the present case was an exclusive purpose of the Dominion of Pakistan. This very question came up for consideration before a Division Bench of this Court in the case of Krishnaranjan Basu Ray v. Union of India, : AIR1954Cal623 . It was held by Das Gupta and Deba-brata Mookerjee JJ. that in case of goods booked with a railway the purpose of the contract within the meaning of Article 8 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, was the carriage of goods and where the destination was some point in Pakistan; the purpose was the purpose of Pakistan. There, on the contrary, the carriage was to a point which remained in the Indian Dominion, it would be a 'purpose' of the Dominion of India. The profit earning motive of either party to the contract is not the criterion by which 'purpose' within the meaning of Article 8 is to be judged. In that particular case, a consignment of torch lights and batteries had been booked with the Bengal and Assam Railway to be carried from Sealdah to a station which after the partition of India became part of the territory of the Dominion of Pakistan and the learned Judges came to the conclusion that the purpose of this contract of carriage was the exclusive purpose of the Dominion of Pakistan. They held that there was no cause of action against the Union of India and the suit as against the Union of India had been rightly dismissed.
4. There have been several decisions of single Judges of this Court in which the same view as that of the Division Bench has been taken.
5. The attention of this Court was drawn to a decision of the Supreme Court reported in Union of India v. Chamanlal Loona and Co., (S) : 1SCR1039 . This was not however a case of a contract of carriage of goods over a railway. In this case, the contract was for the supply of fodder to the Military Department of the then undivided India through the Manager, Military Farms, Lahore Cantonment, and the goods had been supplied to the Military Farm at Lahore. In construing the expression -- 'a contract for the exclusive purposes of the Dominion of Pakistan', S.K. Das J. quoted certain observations made by Chagla C. J. in the case of Union of India v. China Bhai Jeshingbhai, reported in : AIR1953Bom13 and proceeded to observe as follows ;
'This, we think, is the correct test to apply for determining the true scope and effect of Article 8 (1), Independence Order, 1947 and applying this test, there is no doubt that the contract in question comes under clause (a) of the said Article. The purpose of the contract was to supply fodder to the Manager, Military Farms, Lahore Cantonment, which farms were in Pakistan on the appointed day. The contract was, therefore, exclusively for the purposes of the Dominion of Pakistan as from the appointed day.'
As I have pointed out already, this was not a case in which the purpose of a contract of carriage had to be considered and, therefore, the construction, put by the Supreme Court On the contract which came up for consideration before it, is not of much assistance in the construction which we have to put on a contract of carriage of goods over a railway which is now before us.
6. There has, however, been a decision of the Punjab High Court reported in Union of India v. Rajkumar Piarelal Jain, , which is a decision of a Division Bench of that Court in which the question of the applicability of Article 8 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, in relation to a contract of carriage came up for determination. Falshaw J., indelivering the judgment of the Division Bench, made the following observations which are pertinent to the question at issue before us ;
'There can be no doubt that the contracts in this case are contracts covered by this Article and, therefore, the first question to be decided is whether the contracts could be said to be for purposes which, as from that day, (i.e., 15-8-1947) were exclusively purposes of the Dominion of Pakistan. In these cases the contracts were for carriage of goods from Gujranwalla (now in Pakistan) to Jagadhri (in India). The distance of Gujranwalla from Lahore is about 45 miles and the distance from Lahore to the border is 17 or 18 miles while the journey from the border to Jagadhri over the portion of the Railway which fell within the boundaries of India after separation is about 200 miles.
I do not think it can possibly be contended that a contract for the carriage of goods over a journey, less than one-fourth of which was over what became the Pakistan Railway system, to a place in India, was a contract exclusively for the purposes of Pakistan. In fact, I would go so far as to say that even if the contract had been for the delivery of goods at Amritsar, the nearest large city to the border, the contract would still not have been one exclusively for the purposes of Pakistan and I do not consider that the proportion of the journey to be performed over what became Pakistan Railways and what became Indian Railways is even relevant as long as the goods were to be delivered at a place which was within the boundaries of India after 15-8-1947.
It must accordingly be held that the rights and liabilities which accrued under the contracts in suit became the liabilities of the Dominion of India after 15-8-1947 to the extent to which they would have been rights or liabilities of the Governor-General-in-Council before that date and the liability for damages for non-delivery must be held to be one of these liabilities.'
This was thus a converse case in which the despatching station was in Pakistan and the destination station was in the Union of India. As is clear from the observations of the learned Judge, the proportion of the journey which the goods would take over the territories of the Indian Union or the territories of the Dominion of Pakistan was considered to be immaterial and irrelevant and stress was laid in determining the purpose on the fact that the goods would be ultimately delivered at a station which was within the boundaries of the Union of India. I have already given certain reasons why, in our judgment, the purpose of the contract of carriage, with which we are concerned, should be held to be a purpose exclusively of the Dominion of Pakistan within the meaning of Article 8 (1) of the Indian Independence (Rights, Property and Liabilities) Order, 1947. We do not feel constrained to take any view different from the decision of the Division Bench of this Court reported in 59 Cal WN 99: (AIR 1954 Cal (323). This contention of the appellant must, therefore, fail.
7. The decision on this point is sufficient to dispose of this appeal but as some argument has been addressed on both sides on the other question which was mooted before the learned trial Judge, we think that we should record our view on this point which has also been debated before us. The question, as I have pointed out already, is whether a fresh notice under Section 80 of the Code of Civil Procedure was necessary before instituting the present suit out of which this appeal arises. In order to determine this point, it is necessary to refer at thevery outset to a few sections of the Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952. Section 2, which is the definition section, provides as follows :
'In this Act, the expression, 'decree to which this Act applies', means any such judgment, decree or order as is referred to in -
(i) Clause 3 of Article 4 of the Indian Independence (Legal Proceedings) Order, 1947 or
(ii) paragraph 5 or paragraph 6 of Article 13 of the High Courts (Bengal) Order, 1947, or
(iii) paragraph 4 or paragraph 6 of the High Courts (Punjab) Order, 1947,
which has been or may hereafter be passed by a Court in Pakistan and which imposes any liability or obligation on a Government in India.
Section 3 : Certain Pakistan decrees not to be given effect to in India :
Notwithstanding anything contained in any of the orders referred to in Section 2, no decree to which this Act applies shall be given effect to by any Court or authority in India in so far as such decree imposes any liability or obligation on any Government in India. Section 4 : Eights of a holder of a decree to which this Act applies to institute fresh proceedings in India :
Notwithstanding anything contained in S. 3 of the Indian Limitation Act, 1908 (IX of 1908), any person in whose favour a decree to which this Act applies has been passed may, within one year from the commencement of this Act, or with one year from the date of the decree whichever is later, institute a fresh suit or other legal proceedings in respect of the cause of action on which such decree was based, and any such suit or other legal proceeding may, notwithstanding anything contained in S. 20 of the Code of Civil Procedure, 1908 (Act V of 1908), or in any other law or in any agreement to the contrary relating to the place of suing, be instituted in any Court otherwise competent to try it, within the local limits of whose jurisdiction the person instituting it' voluntarily resides or carries on business or personally works for gain. 5. Repeal of Ordinance VI of 1951 :
(1) The Indian Independence Pakistan Courts (Pending Proceedings) Ordinance, 1951 (VI of 1951), is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken in the exercise of any power conferred by or under the said Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or action was taken.'
8. It is, therefore, clear from the combined effect of S. 3 and S. 4 of this Act that by virtue of this enactment, certain decrees passed by Pakistan Courts or to be passed in future, were being rendered ineffective, and a right was being given to the holders of such decrees to institute fresh suits against the Government of India within one year from the commencement of this Act or within one year from the date of the decrees whichever is later in respect of the cause of action on which such decrees were passed provided certain conditions mentioned in S. 4 were fulfilled or did exist. So the only right that was being given by S. 4 was to bring a suit or a proceeding on the cause of action which was identical with the cause of action on which the former decree was based. A perusal of the plaint in this case as also the admitted facts of this case make it quite clear that a notice under Section 80 of the Codeof Civil Procedure had been served on the appropriate authority before the appellant had filed his suit in the Court of the Subordinate Judge of Dinajpur on 20-11-1945, and the notice under S. 80 was given on 27-8-1945. It is true that in this notice under S. 80 which was served in 1945, the appellant had described himself as a resident of Dinajpur but while bringing the present suit out of which this appeal has arisen, he has described himself as residing at 67, Bartalla Street in the town of Calcutta. This change of residence does not, in my view, make it incumbent on the appellant to serve any fresh notice upon the defendant Union of India specially in view of the fact that the Government of India had contested the suit before the Court at Dinajpur and as such was fully aware of the nature of the cause of action and the nature of the reliefs claimed in that suit and also knew the party who was actually putting forward such claim Section 80 of the Code of Civil Procedure requires that the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims should be stated in the plaint and the plaint shall contain a statement that such notice has been so delivered or left. As the cause of action in the suit which has been filed before this Court is for all practical purposes the same as the cause of action which formed the subject-matter of the suit filed before the Dinajpur Court and as there is a reference to the notice already given under S. 80 in the plaint which has been filed before this Court, I do not think that the present suit should be held as not maintainable for want of a fresh notice given in respect of the same cause of action under S. 80 of the Code. There has been compliance with the requirements of Section 80 and it does not appear to me that the additional facts which have been stated in the plaint filed in this Court regarding the passing of the decree by the Pakistan Court or the passing of the Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952 or the provisions thereof or the fact that the plaintiff instituting the suit voluntarily resides or carries on business or personally works for gain within the local limits of the jurisdiction of this Court make it necessary for a fresh notice to be served under Section 80 of the Code. These additional facts cannot, in my view, be regarded as forming any part of the cause of action for nondelivery of the goods or the claim as laid in the plaint. These facts are really conditions precedent the existence of which the Court has to be satisfied about, in determining the question whether the claim of the appellant is within the Act and is maintainable. It is to be noted further that Section 4 of the said Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952 does not require these additional facts to be pleaded in the plaint in order to entitle the plaintiff to maintain his suit. It is further to be pointed out that since this enactment has the effect of destroying the force of the decrees which had been passed by the Pakistan Courts and it simultaneously gives an alternative remedy to the holder of the decree for bringing a fresh suit in respect of the same cause of action for which the decree was passed, upon the fulfilment of certain conditions precedent, and it does not expressly require any fresh notice under Section 80 of the Code to be given as a condition precedent to the institution of such suit, it may very well be that the intention of the framers of the section was that the necessity of a fresh notice under Section 80 was being dispensed with. It may further be pointed out that while by this enactment the decree passed in a previous suit on a particular cause of action was being nullified Iby Section 3 of this Act and a further right of suit in respect of the same cause of action was being given by Section 4 of the Act, the subsequent suit can well be regarded as a continuation of the previous suit or proceeding for purposes of a retrial of the issues involved, and therefore, further notice under Section 80 was not contemplated. (See Hiraluxmi Pandit v. Income-tax Officer, : 27ITR643(Patna) . Reference may also be made to the case of Sultan of Johore v. Abubaker Tunku Aris Bendahar, (1952) AC 318 in which the Judicial Committee held that a proceeding instituted under the Japanese Judgments and Civil Proceedings Ordinance 1946, in the Singapore Court set up under a different regime, after the Japanese were driven out of Singapore, for reviewing or setting aside decrees or orders passed by Japanese Courts during the temporary military occupation of Singapore by the Jananese was a continuation of the same proceeding in which the Japanese decree was passed. It may further be observed that 'the real object of enacting Section 80 of the Code was to attract the provisions of this section to a case where a suit in respect of a cause of action was being instituted for the first time in a Court of Law and it has really no application to a case like the one before us, where a decree already passed by a competent Court is nullified and a right is given to institute a fresh suit on the same cause of action in a different Court. For all these reasons we hold that it was not necessary to serve a fresh notice under Section 80 of the Code before instituting the present suit.
9. A point was raised by Mr. Kar on behalf of the Union of India to the effect that the suit is not maintainable as execution of the decree which was passed on 19-2-1949 became barred under Article 182 of the Limitation Act before the present suit was filed. The short answer to, this point is that before the Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952 was passed, the Ordinance being Ordinance VI of 1951 was promulgated on 29-10-1951 and by virtue of the provisions of that Ordinance the decree which was passed in favour of the appellant had been rendered ineffective and a right had been given to file a suit in respect of the cause of action on which the decree was based within a period of one year from the date of the Ordinance. But before the life of this Ordinance expired and before this period of one year for firing the suit had expired, the Act IX of 1952 which replaced the Ordinance came into force and conferred a right on the holders of decrees to file fresh suits in respect of the same cause of action. So the decree could not be executed from 29-10-1951 till the date of the present suit and as Section 4 of the Act had given an additional period of one year to file a suit on the identical cause of action and as Section 4 also excluded the operation of Section 3 of the Indian Limitation Act by its opening words, it cannot be said that the present suit as based on the provisions of Section 4 of Act IX of 1952 is not maintainable. It is further to be noted that the decree which was passed on 19-2-1949 fixed a period of two months as the period within which the decree, was to be satisfied, under Section 82 of the Code of Civil Procedure. Article 182 of the Limitation Act which is invoked on behalf of the respondent in support of the argument that the decree was barred at the date when the suit was filed provides in Item 7 that where an application is to enforce any payment which the decree or order directs to be made at a certain date, the period of limitation will run from such date. Therefore, if the period fixed by the decree is excluded, there can be no question of the decree being barred on the datewhen the present suit was filed. Therefore, there is no substance in this point of Mr. Kar.
10. In view of our finding on the first point raised on behalf of the appellant, this appeal must fail and it is accordingly dismissed with costs.
P.B. Mukharji, J.
11. I agree. I shall add only one word on Section 80 of the Civil Procedure Code. The Statute, the Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952 which confiscates the fruits of the decree-holder and gives him in lieu thereof a right of suit on the name cause of action on which the decree was based and permits and invites him to institute a fresh suit against the Government itself, thereby waives notice under Section 80 of the Civil Procedure Code. By the very terms of that invitation and permission in the new enactment it does not require and reiterate the necessity of a further notice under Section 80 of the Civil Procedure Code. It is well settled law that notice under Section 80 of the Civil Procedure Code can be waived by the act and conduct of the Government. That was laid down by; the Privy Council in Vellayan Chettiar v. Province of Madras, 74 Ind App 223 : (AIR 1947 PC 197). The Statute itself here acts as an invitation to institute a suit against the Government and, therefore must be taken to, waive notice under Section 80 of the Civil Procedure Code. It is a case of waiver by Statute. It was then argued that Section 4 of this Act when it wanted to override any provision of the Code it expressly mentioned such provision as Section 20 of this Code. Therefore it is contended that requirement of notice under Section 80 of the Code is impliedly preserved. Such implication in my opinion is negatived by the following considerations. In the first place Section 20 of the Code is expressly mentioned because Section 4 of the Act prescribes a different court of a different place other than that under Section 20 of the Code. Secondly the notice under Section 80 of the Civil Procedure Code applies in my, view only to the first suit and the original cause of action which never merged into a decree. Where the cause of action has already been sued upon and a decree of the then competent court obtained and thereafter by special legislation, the effect of that decree is taken away, then Section 80 of the Code cannot in my opinion, in terms apply to the substituted relief unless the special legislation expressly required that such notice should be given again. Viscount Stunner's famous pronouncement in Bhag-chand Dagdusa v. Secy, of State , that Section 80 is imperative and admits of no exception or implication and imposes a statutory and unqualified obligation upon the court cannot be applied to this second suit, which is a special substitute remedy given by a special statute, when the original cause of action has already merged into a decree after giving due notice under Section 80 of the Civil Procedure Code. To hold otherwise will mean two notices under Section 80 of the Civil Procedure Code for the same cause of action, and that will be a meaningless conclusion to reach. The situation may be compared to the case where a plaintiff who gives notice under Section 80 of the Civil Procedure Code but institutes a suit before the expiry of the two months prescribed thereunder and is then permitted to withdraw the suit with liberty to institute a fresh suit on the same cause of action. It was held in Vallabhram v. Secretary of State, ILR 59 Bom 149, that the plaintiff in such a case was entitled to institute a fresh suit without a fresh notice under Section 80 of the Code. He should on a parity of reasoning and all the more so entitled when after giving a valid noticeunder Section 80 of the Code had already successfully sued the Government to a decree, and thereafter the Government by a statute deprived him of the fruits of the decree by giving him the liberty toinstitute a fresh suit, on the same cause of action which the present plaintiff has done pleading in this very plaint that he had given notice under Section 80 of the Code on the same cause of action previously. Thirdly it has been said over and over again that the object of this notice is to afford the Government an opportunity to reconsider its position with regard to the claim made and if so advised to make amends or settle the claim without recourse to the trouble and cost of litigation. That object is more than served in the situation created by the new Act, where decrees obtained after that very notice under Section 80 of the Code, are deprived of their effect, and decree-holders are required to bring a suit on the same cause of action. Purposefully therefore there is and can be no more object left of giving a second notice under Section 80 of the Code.
12. On the interpretation of Section 80 of theCivil Procedure Code and Section 4 of the Indian Independence Pakistan Courts (Pending Proceedings) Act,I hold no notice is necessary. I hold further thateven if any notice were necessary the old noticeunder Section 80 of the Code on which the plaintiffobtained the decree and which is pleaded in thepresent plaint in the suit, serves the purpose.