P L D 1953 Sind 6 (PLP)

VELLANI, J.‑‑The plaintiff filed this suit on 2nd July 1947 against the Governor‑General‑in‑Council to recover the sum of Rs.53,083‑11‑0 under an agreement made on behalf of the Governor‑General‑in Council by the Assistant Director, Military Dairy Farms, Northern Circle, for supplies of milch and in‑calf cows made to the Military Farm and Malir. At the question arose in the case whether the Dominion of India or the Federation of Pakistan would be liable, the Dominion of India and the Federation of Pakistan were joined respectively as defendants 2 and

3. The Dominion of India has remained ex parte. Under the contract the plaintiff made a deposit of Rs. 5,000, return of which was claimed in the suit. The written Statement did not clearly set up the ground on which the return was resisted. The main dispute relate to the provision of clause (5) of the term relating to in‑calf animals to the price of milch cows and to the question whether the liability is that the Federation of Pakistan. Consent issues were filed on 12th November 1951, but on 13th February 1952 I re‑settled the issues as follows ;‑

1. What sum of money is the plaintiff entitled to be paid in respect of the cattle supplied to the defendant? (It is agreed that this Court has jurisdiction to try this suit).

2. Whether the plaintiff is entitled to the return of his deposit of R‑s. 5,000.

3. Whether the liability, if any, in suit is that of defendants 2 and 3, or of either of them.

4. To what relief is the plaintiff entitled? It was agreed for the plaintiff and the Federation of Pakistan that these were the only issues which required adjudication. There was no oral evidence led by the parties, but documents Exhs. 7/1 to 7/12 were put in by consent. Issues 1 and 2.‑It has been agreed that altogether 610 in‑calf cows and 50 milch cows were supplied and that the Governor‑General‑in‑Council had paid Rs. 2 35 900 to the plaintiff, Clause (5), relating to in‑calf animals reads as follows :‑ "

5. The price of these animals is fixed at Rs. 345 each F. O. R. Military Farms, Malir, subject to a revision of prices by negotiation after 400 animals have been supplied. The decision of the Director of Farms will be final and binding on the All‑India Live Stock Supply Agency". The decision of the Director of Farms, Exh. 7/7 has been that the clause applies to animals supplied over and above 400 and for such animals the price of Rs. 425 recommended at the instance of plaintiff has been agreed to. The value is as follows: 400 in‑calf cows at Rs. 345 per head Rs. 1,38,000 210 Rs.425 89,250 Total 2,27,250 For milch cows there were other terms fixed which appear under heading "Terms for animals in milk". The latter terms do no contain any clause for revision of price, and the Assistant Director of Military Farms has declined by Exh. 7/10 to revise the price of milch cows. The value of 50 milch cows at Rs. 20 a pound of milk yielded in 24 hours has been agreed to as Rs. 21,

050. The total cost of the cattle supplied is therefore Rs. 2,53,

300. It is agreed that Government has paid Rs. 2,35,900 leaving the balance of Rs. 17,

400. Issue No. 3.‑By section 9 of the Indian Independence Act, 1947 the Governor‑General was required to make by an order such provision as appeared to him to be necessary or expedient for dividing between the new Dominions "the powers, rights, property, duties and liabilities of the Governor‑General‑in- Council". On 14th August 1947 the Governor‑General promulgated the Indian Independence (Rights, Property and Liabilities) Order, 1947, section 8, subsection (1) of which reads as follows : ‑ "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 be half 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, be rights or liabilities of the Dominion of Pakistan or the Dominion of India, as the case may be". It is said for the plaintiff that the liability is that of the Dominion of Pakistan because the contract liability suit, being one for the supply of cattle to the Military Farm Malir, (which supplied milk and dairy produce to the military in and around Malir) is a contract which as from the appointed day, namely, 15th August 1947, would be for the exclusive purposes of the Dominion of Pakistan, and therefore in terms of clause (a) must be deemed to have been made on behalf of the Dominion of Pakistan instead of the Governor‑General‑in‑Council. For the defendant it is said that the contract was 'spent' which term means, I take it, that the contract has been per formed by the plaintiff and supplies made, before 15th August 1947, and that the present tense used in the words "as from that day, are exclusively the purposes of the Dominion of Pakistan" renders clause (a) inapplicable to such a 'spent' contract. Upon reading as a whole the words "if the contract is for purposes which as from that day are exclusively purposes of the Dominion of Pakistan", it becomes manifest that the tense of the word "are" follows the tense of the word "is". These words enjoin the consideration of the question whether the contract is for purposes which from 15th August 1947 are exclusively the purposes of Pakistan, and that explains the present tense used. The contention that clause (a) supplies only to spent contracts appears to me to introduce a limitation unwarranted by the object of the order. Upon the Partition, division between the new Dominions of the powers, rights, property, duties and liabilities of the Governor‑General‑in‑Council became necessary, and power was given by section 9 of the Indian Independence Act, 1947 to provide for their division by an order of the Governor‑General. Now a liability may exist or arise or become known in various circumstances either before or after a contract be comes 'spent', and therefore it is unlikely that the question whether the contract is spent or not on 15th August 1947 would be a convenient test for the ascertainment of the liability of one Dominion or the other. On the other hand, provision was required for the division of all rights and liabilities which had accrued or may accrue under any contract whether spent or not, which had been made on behalf of the Governor‑General‑in‑Council. The test prescribed is, whether the contract is for purposes which as from 15th August 1947 are exclusively purposes of Pakistan. To apply that test it is necessary to consider the pur poses as from the appointed day, i.e., 15th August 1947, because no such purposes could exist in relation to Pakistan before that date, It therefore seems to me that the limitation contended for by the defendant does not exist. It is then said for the defendant that the contract is for the purposes which from the appointed day are exclusively purposes of the Dominion of Pakistan because at the time the supplies were made the military of the whole of India as well as foreign troops were stationed in or around Malir. There is no evidence of any foreign troops being so stationed ; but it is a fact of which judicial notice may be taken, that military personnel of the Government of undivided India was there stationed. The position in regard to the India Military is not different from that with regard to any other department of the Government of India as for instance the department of supplies. The purposes of supplying military personnel with milk and dairy produced as from 15th August 1947 at or around are obviously purposes of the Dominion of Pakistan. But it is argued that they are not so exclusively, that is to say, the supplies were made for purposes of military personnel of un divided India and therefore the purposes are joint. This argument overlooks the words "as from that day", namely 15th August 1947. The conclusion therefore is that the liability is that of the Federation of Pakistan. As illustrative cases tending to like conclusion, my attention has been helpfully and rightly drawn by Mr. Choithram, who represents the Federation of Pakistan in Railway cases, to A I R 1950 Cal. 159 and A I R 1951 Pb.

382. This happened after I had reached my own independent conclusion, in a railway case in which a like question arose. Issue No. 4.‑The result is that the plaintiff is entitled to a decree against defendant 3, the Federation of Pakistan for Rs. 17,400 interest thereon at 6% per annum from date of suit till judgment and costs of the suit on that amount. The decretal amount will carry interest at 6% per annum. A. H. Suit decreed.