P L D 1969 Supreme Court 37 (PLP)

Date of hearing: 10th May 1968. SAJJAD AHMAD, J.‑.Are we still at war with India? This delicate political question has arisen for an answer in the course of a judicial proceeding in the following circumstances. A Certificate Case No. 595‑R/C of 1948‑49 was started for the recovery of arrears of education cess amounting to Rs. 8,797.60 against respondents Nos. 1 and 2, namely Arodhendu Shekhar Chattarjee and Amalendu Shekhar Chattarjee, their younger brother Arunendhu Shekhar and their mother Sarat Kumari Devi (hereinafter described as the certificate‑debtors). who are admittedly Indian nationals residing in Calcutta. In consequence thereof a certificate sale was held in which a building in Holding No. 6 of Lower Jessore Road, Ward No. 3 in Khulna Municipality belonging to Sarat Kumari Devi, as a gift from her late husband Srimanta Chatterjee, was sold on the 28th of July 1960 and confirmed on 7‑11‑1960 in favour of the purchaser M. M. Mansur Ali appellant. The certificate‑debtors moved an application to the Certificate Officer under section 23 of the Public Demands Recovery Act to set aside the sale which was dismissed. On appeal the Additional Deputy Commissioner set aside the sale but subsequently in a revision filed by the appellant the sale was upheld by the Commissioner and finally in a further revision by the certificate‑debtors, it was affirmed by the Board of Revenue on the 22nd of September 1964. On the 2nd of February 1966 a title suit was instituted by the certificate‑debtors through their duly constituted attorney Bejoy Kumar Chattarjee who was residing at Khulna, for a declaration that the sale was void and fraudulent and as such liable to be set aside. On an objection taken by the appellant who was impleaded as one of the defendants, that the suit was not maintainable by the plaintiff respondents who were alien enemies the learned Subordinate Judge, Khulna directed the plaintiff‑respondents to obtain per mission of the Central Government for prosecuting the suit under section 83 of the Civil Procedure Code. The appellant challenged this order in a revision before the High Court under section 115, Civil Procedure Code praying for the outright rejection of the suit, which was dismissed. The trial Court held that section 83 barred the institution of suits by alien enemies but observed that "the head of the State who issued the proclamation of Emergency‑formally and physically ended the war by Tashkent Declaration. He considered that the point whether plaintiffs being Indian nationals can sue, was not free from doubt and directed the plaintiffs to apply for necessary permission from the Central Government and file the same in Court. In the revision proceedings the learned Judges of the High Court have reached certain findings which may be reproduced in their own words :‑ "Petitioner has moved this application, on the ground that the suit is incompetent under section 83 of the Code of Civil Procedure. We do not think that this argument is tenable. The question that has to be decided first is whether the plain tiffs are "alien enemies" simply because they are Indian nationals. The question is, whether Pakistan is still at war with India even after cessation of hostilities. Prima facie there has been a cessation of war. It is also correct to say that a state of war may continue even after cessation of armed conflict. This is a political question which should be decided upon reference to the Central Government. We do not propose to decide this question at this stage. In any event, the impugned order would cause no harm because plaintiffs have been asked to obtain permission from the relevant authority in order to prosecute the suit. The question which has been mooted before us will necessarily be agitated before such authority. The parties would not be without any remedy if an adverse order is passed." Leave was granted by this Court for clarification of the correct procedure to be followed in such cases, as a question of law of public importance was raised whether in the existing circumstances when the declaration made on the 6th of September, 1965, that Pakistan was at war with India has not been withdrawn, although hostilities have ceased after the 23rd September 1965, the state of war can be considered to have terminated so as to avoid the effect of section 83(2), Civil Procedure Code. It must at once be stated that the Courts below have mis construed section 83 of C. P. C. which has led them to pursue the case from a wrong angle. Section 83 on its plain reading does not envisage the permission of the Central Government or of any other authority by an alien enemy for the prosecution of his case in the Courts in Pakistan. This section reads :‑ "(1) Alien enemies residing in Pakistan with the permission of the Central Government, and alien friends, may sue in the Courts in the Provinces, as if they were citizens of Pakistan. (2) No alien enemy risiding in Pakistan without such permission, or residing in a foreign country, shall sue in any of such Courts." It will be seen that subsection (2) is a complete bar for an alien enemy residing in a foreign country to bring an action in the Courts in Pakistan but where such an enemy is residing in Pakistan with the permission of the Central Government, he B like an alien friend, can sue in the Courts of Pakistan as if he were a citizen of Pakistan. As the respondents are living in a foreign country (Bharat) if they are treated as alien enemies they are entirely out of Court in Pakistan. But are they alien enemies 'I The meaning of alien enemy is explained in Halsbury's Laws of England, Third Edition (Volume 39) at page 30 as follows :‑ " The primary meaning of alien enemy is one whose sovereign or state is at war with the Sovereign of England. In reference to civil rights, however, alien enemy is used by the Courts of the United Kingdom in a different sense and means one who is voluntarily resident or who carries on business in an enemy or enemy‑subjugated country, even though he is a natural born British subject or a naturalized British subject, or the subject of a neutral state. A subject of an enemy state, who is neither residing nor carrying on business in an enemy or enemy subjugated country, is not an alien enemy with reference to civil rights; and so may maintain an action fn this country. A subject of an enemy state may, by residing and trading in an allied or neutral state, acquire a friendly or neutral com mercial domicile, which will protect his goods if captured at Sea from condemnation. A British born wife of an alien enemy separated from her husband and residing in a neutral or friendly country is not an alien enemy. To prove that a person is an alien enemy at the time of the commencement of an action, it is not enough to show that he was sometime before domiciled in territory which has become hostile." In the present case the question whether the plaintiff‑respon dents who are admittedly nationals and residents of Bharat are alien enemies or not depends on the answer to the question whether we are at war with India and whether India is an enemy country. This, however, is a delicate political question, which, as a matter of State policy lies in the domain of the Executive Government and the Courts need not answer it. One can take notice of the physical facts bearing on the point which are that soon after the attack by India on Pakistan on the 6th of September 1965, the President of Pakistan declared that we were at war with India and a state of Emergency was proclaimed. There has since been no revocation of that declaration but there is also the fact that hostilities came to an end by the announcement of the cease‑fire declaration in the Security Council and later the warring parties were brought to the conference‑table at Tashkent by the good C offices of the Russian Government where once again a declaration was made acknowledging the end of belligerency between Pakistan and Bharat and an announcement was made that efforts would be made to bring about a peaceful Settlement of all outstanding disputes. But whether normalization of relations between the two countries has, in fact, been effected or not, is a matter of which the Government is the best Judge and it alone can say as to how we stand against India in terms of belligerency i.e., whether we are at war with it conventionally or otherwise. In our view this is a purely political question, of which the answer must be supplied by the Government concerned. In Halsbury's Laws of England, Third Edition, Volume 39 under the head "Common Law and Convention", the following passage relevant to this point appears which may be usefully quoted "

18. Existence of a State of war.‑At common law no State of war exists between this country and a foreign State until there has been a formal declaration of war by the Crown or hostilities have been commenced by the authority of the Crown. (a) Similarly a war may be terminated only by the authority of the Crown, and this is usually effected by a treaty of peace and announced to the nation by proclamation or Order in Council. (b) A certificate of the Secretary of State for Foreign Affairs to the effect that the Crown is still at war with a foreign State is conclusive evidence that the state of war is not at an end. (c) During the course of a war with a foreign State all commerce and intercourse between British subjects resident in British territory and the subjects of that state, or with persons residing there, is prohibited except under licence. (d) Judicial notice will be taken of the existence of a state of war between this country and any other, when that is the fact, even after the termination of hostilities." The correct procedure therefore, for the Courts to follow, whenever a question of this nature crops up is to obtain the views, of the Government on the question and to follow them. In the circumstances as stated above we reverse the decision of the Courts below and remand the case to the learned Subordinate Judge with the direction that he shall issue a notice to the Government Pleader, who will convey to the Court the Government's viewpoint on the question raised, after getting the necessary instructions from the relevant quarters. We direct accordingly, adding that the case may be disposed of as expeditiously as possible. K. B. A. Case remanded. Order accordingly.