P L D 1956 Dacca 283 (PLP)

AKBAR, J.‑This Rule was issued at the instance of Messrs. Bengal Stores whose suit for recovery of Rs. 736‑14‑0 as compensation for short delivery of certain goods sent by post from Calcutta to Barisal has been dismissed by the Subordinate Judge, 1st Court, Barisal. The goods in question, namely, 18 silk saris were delivered ou 24th June, 1948, in a sealed packet by Messrs. Ii. C. M. M. Saba to the Postal autho rities of Barabazar Post Office in Calcutta to be despatched to the plaintiffs in Barisal, The said parcel arrived in Barisal in a damaged condition, and when the plaintiff took open delivery in the presence of Post‑Master of Barisal it was found that 17 pieces of silk saris had been replaced by 9 pieces of ordinary saris. This fact of shore delivery was also brought to the notice of the Post‑Master‑General, East Bengal Circle. As inspite of repeated demands the Postal authorities failed to make good the loss, the plaintiffs firm served notices under section 80 of the Civil P. C. on the Post‑Master‑General, on the Province of East Bengal and on the Post‑Master of Barisal Post Office and thereafter filed this suit on 23rd July, 1949, against defendant No. 1, the Dominion of Pakistan, defendant No. 2, the Province of East Bengal and defendant No. 3, Post‑Master of Barisal Post Office. Defendants Nos. 1 and 2 have filed written statements denying their liability in toto and asserting that they delivered the parcel to the plaintiffs in the condition in which it was received from India. In other words, their contention was that they had received the said parcel in a damaged condition and as such they were not liable for the loss of the articles. The only question is: Is the plaintiff entitled to maintain this action against these defendants ? In my opinion, the plaintiff in order to succeed in this case must establish a contractual relation between them and the defendants. There is nothing either in the plaint or in the evidence to show that these defendants were contracting parties. Therefore the next question is : Can these defendants be treated as an agent of the other Dominion ? No such case has also been made out in the plaint. A similar question arose in the case of Union of India v. Brajen Saha (57 C W N 164) and at page 166 Chunder, J. observed as follows: "It is clear (law) that one independent Sovereign power is not the agent of another independent Sovereign power as far as Municipal Courts are concerned unless specifically such a state of agency is for a particular purpose assumed and the Courts given jurisdiction. This has to be pointed out, because, it is said that the Government of India may be sued here as an agent of the Pakistan Government. This is not good law as the two countries are independent Sovereign powers." I respectfully agree with the above observations. Lastly it has been suggested there must be some sort of arrangement for despatch of articles from one Dominion to the other for their mutual convenience, but we do not know to what extent one Dominion has agreed to carry on the liability of the other Dominion. No such case he has also been made out in the plaint. Further, if there is such arrangement between two Sovereign powers, plaintiffs not being a party to it cannot take advantage of such arrangement. In these circumstances, this Dominion or its officers cannot be held liable for the short delivery in this case. In my opinion, in a case of this nature, the lex loci contractus will apply, and therefore the remedy of the plaintiffs was to sue the Union of India for breach of contract, if any. In this view of the matter, I hold that the learned Subordinate judge has rightly dismissed the plaintiffs' suit as against these defendants. The Rule is accordingly discharged, but having regard to the circumstances of this case I make no order as to costs. K. B. A. Rule discharged.