P L D 1965 Supreme Court 310 (PLP)

CORNELIUS, C. J.‑This appeal by special leave is directed against a judgment and decree of a Division Bench of the High Court at Dacca in a suit brought by the respondent, Waliullah Sufyani, to recover a sum of Rs. 12,17,066 from the Central Government of Pakistan. The suit which was filed in 1949 originally impleaded the Dominion of Pakistan through the Governor‑General. This was changed in 1954 to the "Federation of Pakistan" and again in 1956, following the promulgation of the Constitution of that year to the "Islamic Republic of Pakistan.". In each case, however, the reference is to the same entity anal consequently the changes have no bearing upon the competency, of the suit. The suit was based on a contract. The plaintiff Waliullah Sufyani under the orders of competent officers had contracted to supply food‑stuffs, clothing and other supplies and services to a refugee camp set up in the year 1943 at Kantabari in the Rangpur District by the then Government of India. This was under an administrative unit known as the Burma Refugee Organisation (B. R. O.). He operated his contract from July 1943 to November 1944 when he was per‑emptorily asked to stop further supplies and to remove himself and his goods from the camp. As to part of his contract, he had a partner by the name of H. R. Singha, now an Indian national. The matter of their claim against the Government of India was the subject of correspondence and negotiations and in the meantime the Partition of the sub‑continent took place on the 15th August 1947. It was after this that the plaintiff issued a legal notice under section 80, C. P. C., to the Government of India, when he received the reply that the B. R. O. was now the concern of Pakistan, and all liabilities had devolved on the Government of Pakistan. After further efforts, he filed his suit on the 15th July 1949. His cause of action having arisen on the 14th November 1944 and limitation being three years, to which addition of the notice period of two months was admissible, the burden fell upon the plaintiff to establish that his suit fell within limitation. It will be convenient to state here that the Courts below have accepted the plaintiff's plea that time was extended in his favour by part payments on the 13th March 1945, the 20th May 194 and the 22nd March 1947, in addition to which reliance was placed upon the inclusion of his claim in an authorised list of outstanding liabilities of the B. R. O. signed by the Chief Refugee Administrator. There can be no question but that on the basis of the extension of time thus available, the plaintiff's suit in respect of a cause of action which arose on the 14th November 1944, was within time, when it was filed on the 15th July 1949. The claim was set out in five separate Schedules, in respect of which evidence was duly led. It is not necessary to state details of these Schedules. The evidence has been duly considered in the Courts below, and the final conclusions of the High Court were as follows:‑ Schedule A‑Except for a few rupees here and there, the entire claim in this schedule was admitted by the defendant, and in allowing it, the Subordinate Judge who tried the case had proceeded on the basis of bills; accordingly the plaintiff's claim was accepted in full. Schedule B‑Here, the High Court reduced the amount allowed by the Subordinate Judge on the basis of accounting, by a little over Rs. 64,000, this being money admittedly received by the plaintiff, which the Subordinate Judge had failed to deduct. Schedule C‑Here there was no dispute, the claim being admitted and it was allowed in full. Schedule D‑.Only one item Rs. 1,654, was disputed of and the High Court found that it was duly entered in a work‑book maintained by the B. R. O., and duly endorsed; accordingly the claim in this Schedule was accepted in full. Schedule E‑This included a sum of Rs. 15,250 which was said to be the value of accumulated stores which perished through the sudden cancellation of the contract; the Subordinate Judge had allowed this claim on grounds which the High Court considered to be hypothetical, and the learned Judges accordingly disallowed it. A second claim in this Schedule was of Rs. 1,96,694 being damages incurred through the plaintiff's inability to fulfil contracts which he had entered into with his own suppliers; this had been disallowed by the Subordinate Judge and the High Court agreed stating that mostly, this loss had been settled separately between the plaintiff and his partners. In respect of this item, the plaintiff had moved a cross‑objection before the High Court which was dismissed for the same reason. The last item of the claim was for interest, amounting to Rs. 4,05,688‑1‑0, which the Subordinate Judge had disallowed, but the High Court observed that although the State of Pakistan was only "notionally" liable, since it was not in existence at the time when the supplies and services were rendered by the plaintiff, nevertheless the plaintiff had laid out money, and he should be allowed interest which the learned Judges fixed at 2 %. They accepted his cross‑objection on the question of interest to that extent. The aggregate sum decreed by the Subordinate Judge was Rs.6,78,667‑0‑6 with proportionate costs. The High Court fixed the principal sum at Rs. 5,91,997‑4‑0 and added Rs. 1,40,533‑8‑0 as interest, and directed further that interest should run on the principal amount at 6 % from the date of the decree till realisation. Proportionate costs were allowed. A principal question which was decided by the Courts below in favour of the plaintiff was as to the liability of the State of Pakistan in respect of this claim. The liability having been incurred at a time prior to the Partition, it fell to be apportioned under a Constitutional Order made by the Governor‑General of India on the 14th August 1947 known as the Indian Independence (Rights, Property and Liabilities) Order, 1947 (hereinafter referred to as the R. P. L. Order). Articles 8, 9 and 10 of the R. P. L. Order purport to distribute the liabilities as between the independent Dominions of India and Pakistan which came into being as a result of the Partition, in respect of: "(1) contracts made by the Governor‑General of undivided India before the appointed day, there being provisions also for contracts on behalf of the old Provinces of Bengal, the Punjab and Assam; (2) liabilities of the said Governor‑General or a Province in respect of "loans, guarantees and other financial obligations" outstanding on the date of the Partition; and (3) liabilities of the said Governor‑General and of the old Provinces of Bengal, Punjab and Assam "in respect of an actionable wrong other than breach of contract." Of these, the Article referring to contracts is alone attracted in the present case, its relevant operative provision being that a contract "made on behalf of the Governor‑General‑in‑Council before the appointed day" was to be deemed to have been made on behalf of the Dominion of Pakistan as from that day, if it "is for purposes which as from that day are exclusively purposes of the Dominion of Pakistan," but in all other cases, it should be deemed to have been made on behalf of the Dominion of India. The consequential provision was made that "all rights and liabilities which have accrued and may accrue under any such contract" should be distributed in accordance with the above stated governing principle. The trial Judge dealt with the matter at considerable length. (I should like to add here that the whole judgment shows a quality unusually high among Subordinate Judges). He found that in 1943, the refugees who were obliged to leave their lands in Burma on account of an uprising by the locals, were either persons from Chittagong who had settled permanently in Arakan, or persons from Chittagong who had gone to Arakan to make a living by agriculture and a number were persons who had been driven out from their lands within Chittagong District, along the border with Burma, by reason of the uprising. The organization was at first described as the Chittagong Refugee Organization, as appeared from the evidence, and a Government Official connected with the organization giving evidence in the case had said there was no non‑Bengali refugee in the camp, where no distinction was made between the different types of refugees. After the 15th August 1947, the B. R. O. was administered and financed by the Pakistan Government as had been admitted by the Chief Refugee Administrator, Mr. Ghiasuddin Ahmad. In 1949, the camp had been moved from Kantabari in the Rangpur District to two places in the Chittagong District itself. When this happened, all properties and assets at Kantabari had been appropriated by the Pakistan Government. On a question of law, arising out of the application of Article 8 aforesaid, the Subordinate Judge said that it was immaterial that on the plaintiff's part he had entered upon the contract and concluded all his operations within the contract before the 15th August 1947. The question being raised before the Division Bench in appeal, it was found that in earlier cases, the Dacca High Court had expressed views which tended to exonerate the Government of Pakistan in respect of contracts which had been performed on one side prior to the establishment of Pakistan. These were the cases of Harepada Roy Chowdhury (6DLR131) and Hazi Emdad Ali (P L R 5 Dacca 91). The first case arose out of a money suit to recover sums due to Haripada Roy Chowdhury on account of arrears due for carriage of goods under a contract, between places included in the Sub‑division of Habibganj which fell within Pakistan after the partition. The contract had been entered into in 1944 and on the part of the plaintiff had been concluded in 1945 leaving arrears to pay on the part of the Government. The High Court held that the claim was not recoverable from the Province of East Bengal (at it was then called) on the short ground that the contract hid been performed before the Dominion of Pakistan came into existence. The case of Hazi Emdad Ali arose out of non‑delivery of a consignment of goods sent by rail between two railway stations, both now in East Pakistan. The conveyance of the goods had been completed long before the date of the Partition The High Court purported to follow a decision of the Calcutta High. Court in the case of Lokenath Saha (A I R 1952 Cal. 140) with respect to similar carriage of goods by Railway concluded in March 1947, between places which both fell within Pakistan later, where a learned Judge of the Calcutta High Court had observed that he was "unable to see" that after the Partition, the carriage could be for purposes which are exclusively purposes of Pakistan. He purported "to be guided practically entirely by the exact words used" in the R. P. L. Order. This view was later disapproved in the Indian jurisdiction by the Supreme Court of India in the case of Chaman Lal Loona (A I R 1957 S C 652), which was brought to the notice of the Division Bench of the Dacca High Court hearing the appeal of Waliullah Sufyani and the Division Bench noted that in this case the following views had been expressed:‑ (1) for the application of Article 8 aforesaid, an artificial test had to be applied namely, the Court should consider whether, if the contract had been entered into on the date of Partition, it would have been a contract for the purposes of Pakistan, or alternatively, it Pakistan had been in existence when the contract had been entered into, the contract would have been a contract for the exclusive purposes of Pakistan (accepting the test laid down in the case of Chinubhai A I R 1953 Bom. 13; (2) the question whether or not benefit from the contract had accrued or would accrue to Pakistan was not determinative of the question whether the contract was to be treated as one exclusively for the purpose of Pakistan; and (3) that so long as the contract remained unexecuted on one side, there were outstanding rights and liabilities which fell to be apportioned under Article 8 aforesaid, i.e., the fact that performance of the contract had been concluded by one party was not definitive qua the application of that article. Finding force in the conclusions reached upon construction of Article 8, by the Supreme Court of India, the learned Judges of the Division Bench referred the point of law to a Full Bench of the High Court, formulating it with respect to the facts of the case before them in the following words:‑ "Whether the contract entered into by the plaintiff with the Government of India before the appointed day in connection with the Burma Refugee Organisation is for exclusive purpose of Pakistan and whether the money said to have been due to the plaintiff on account of that contract is payable by the Government of Pakistan after Partition, in other words, if the contract as from the appointed day is for the exclusive purpose of Pakistan within the meaning of Article 8(1) (a) of the Indian Independence (Rights, Property and Liabilities) Order, 1947." The Full Bench of the High Court considered a large number of judgments delivered on the question of application of Article 8 aforesaid in the jurisdictions of Pakistan as well as India. They approved the test laid down by the Supreme Court of India in the case of Chaman Lal Loona (cited above). They observed that the purpose of a contract was to be judged by "its character ex facie and not by what the parties may do with the fruits of it," nor by the reasons or motives which prompted it, and that the immediate object determines the purpose of a contract and not any benefit derived therefrom. They accepted the principle laid down in the case of Chaman Lal Loona that Article 8 aforesaid contemplates both executed contracts as well as executory contracts and in order to bring a contract within the object, it is sufficient that the contract has remained unexecuted on one side. They also accepted the rule of construction suggested in the case of Chinubhai (cited above) that in determining whether a contract within the mischief of the article "is a contract for the exclusive purpose of Pakistan", it is necessary to `'consider as to what would have been the position, if either the contract had been entered into after the 15th August 1947, or Pakistan had come into existence on the date the contract was entered into". They expressed their final answer in the following words:‑ "if according to the decisions indicated by us earlier, the immediate object or subject‑matter of the contract is one which as from the appointed date, namely, the 15th of August 1947, has become an exclusive purpose of Pakistan, then the liability which may be subsisting on that day would be the liability of the Dominion of Pakistan" within the meaning of Article 8(1)(a) of R. P. L. Order. Upon receiving this answer, the Division Bench proceeded to deliver judgment in the appeal, stating their conclusions respecting the application of Article 8 in the following words:‑ (1) "because the contract of the plaintiff entered into with reference to the test laid down in the Full Bench decision . . . . it cannot be said that it is not exclusively for the Dominion of Pakistan" (sic); (2) "in view of the fact that the Burma Refugee Organization since the Partition has fallen within the territory which formed part of the Dominion of Pakistan"; and (3) "the administration of this organization had been taken over by the Government of Pakistan after the appointed day". The appeal of the State of Pakistan and the cross objections filed by Waliullah Sufyani were disposed of accordingly by altering the money part of the decree as already mentioned, holding that the liability fell under Article 8 aforesaid upon Pakistan. Special leave was given by this Court to the State of Pakistan to appeal against this decision. During the pendency of the appeal, the respondent Waliullah Sufyani filed what purported to be cross‑objections, relating to items of accounting and the rate of interest allowed. The rules of procedure of this Court do not permit of presentation of cross‑objections as i appeals under the Civil Procedure Code. If the respondent had wished to call in question any decisions taken in the judgment of the High Court adverse to his interest, his proper course was t move this Court by way of petition for special leave to appeal from that judgment. For such petitions, a specific period o limitation has been laid down, and that period had elapsed when the respondent filed his cross‑objections. However, at the hearing of the appeal, the respondent was told that his application in the form of a cross‑objection would be treated as a petition for special leave as aforesaid, and the bar of limitation would be condoned as a special case. He briefly presented his point o view and it was clear that the matters he raised were all matter of fact arising out of items in the account except the item o interest which lay within the discretion of the learned Judges, to be exercised in relation to the highly unusual circumstances of the case. There was no scope for interference by this Court and consequently his "cross‑objection" treated as a petition was liable to be dismissed. The respondent also raised two minor preliminary objections p which may be briefly dealt with. One was that the appeal was not properly presented. The State of Pakistan is represented by the Attorney‑General of Pakistan, and moreover the petition for special leave was moved by more than one counsel, among them being Syed A. B. Mahmud Hussain, who had appeared for the Central Government in the High Court throughout. There is clearly no force in this objection. The second objection was that the appellant's concise statement being out of time should not have been admitted, but it is a matter within the discretion of the Court to relax the period fixed for filing of such processes, and no ground appears for refusing extension in the present case. The submissions on behalf of the State of Pakistan may now be considered. As regards the amounts allowed under the Schedules, the learned Attorney‑General had nothing to say. The accounts and the other evidence led in support have been examined with particularity in the judgments of the Courts below and there can be no doubt that, with the exception of the amount allowed as interest, the sums held proved in the respondent's favour by the High Court are the least which on the evidence should have been allowed. On the question of limitation also, the learned Attorney‑General had no fault to find with the decision in favour of the respondent. It was on the point of the placement of the liability of the respondent's debts upon the Government of Pakistan that the argument principally centred. Reliance was placed in the first instance on the contention that the debt to the respondent was one which had been acknowledged in writing by the Government of India to be their liability. Reference was made to a document dated the 3rd/4th May 1948, issued by the Government of India in which a number of outstanding matters were dealt with, and where it was agreed that six crores of rupees which were due for the setting up of an ordnance factory and five crores of rupees out of Pakistan's share of the balances as well as all pre‑Partition liabilities would be borne by the Indian Government. On the 4th June 1948, a press communiqu was issued by the Indian Government where it was clearly stated that "liability for all financial obligations of the undivided Government of India pertaining to the period prior to the 15th August 1947 devolves on the Government of India". It was conceded however, that these undertakings were not capable of being regarded in a final sense, for later it was made clear that what would be undertaken was the initial responsibility. The Indian High Commissioner later issued a letter asking for the bills of a number of named contractors including the respondent Waliullah Sufyani, and saying that his Government had decided "to undertake the initial liability". This undertaking was never fulfilled, but the learned Attorney‑General argued that by the terms of the R. P. L. Order the undertaking should be regarded as having the effect of transferring the duty of meeting the specified liabilities in the first instance and he referred to Article 3 of the Order, of which sub‑Article (1) reads as follows:‑ "The provisions of this Order relate to the initial distribution of rights, property and liabilities consequential on the setting of the Dominions of India and Pakistan, and shall have effect subject to any agreement between the two Dominions or the Provinces concerned and to any award that may be made by the Arbitral Tribunal." The wording of his provision, so far as it goes would seem to support the argument, but clearly, neither the Article itself, nor the subsequent public acceptance of liability by the Indian Government, which was specifically in terms excluding the acceptance of absolute liability, is any consolation to a person in the position of the respondent in this case. The R. P. L. Order, while in its relevant part, it furnishes a precise mode of distribution of liabilities in the first instance as between the two Dominions, has the quality of an international agreement in the sense that it provides no assurance or sanction of any kind applicable to either of the Dominions for the purpose of enforcing such division. In that aspect, the means possessed by each Dominion to obtain such rights as were assured to it under the R. P. L. Order, were no higher than the means available out of the law governing the relations between independent nations. The same would be true of any super‑imposed agreement subsequently formed with respect to matters lying within the R. P. L. Order between the two Dominions, i.e., that no sanctions would be available other than those applicable to independent nations in the international sphere. The position was no different in respect of matters placed before the Arbitral Tribunal, whose findings would be subject to no higher sanctions. But rightly construed the R. P. L. Order must be held also as imposing an obligation upon each Dominion, in its municipal sphere, to those in whose favour liabilities had been incurred by the undivided Government of India. The Order is not to be read as if it left such persons, whether nationals of one Dominion or the other, or nationals of some other country, in the same position qua recovery of their dues as the two newly‑formed independent Governments were, of necessity, placed, in relation to each other, on account of their entry as free countries into the international community. To such persons a higher assurance covered by sanctions available in the domestic Courts would undoubtedly be required, for it is inconceivable that the intention of the Order was to leave such persons in the position that they were at the mercy of one or other of the new Dominions to pay them or not as they chose. When the debt was incurred, it was incurred to the undivided Government of India which vested in the British Crown, and I am clearly of the opinion that by the scheme of division of liabilities set out in the R. P. L. Order, the intention was that qua persons to whom the undivided Government of India had incurred liabilities, those liabilities should be recovered from one or other of the successor Governments according to the scheme provided in the Order. Therefore, the municipal Courts of each of the Dominions were under an obligation when faced with a claim against the undivided Government of India, falling within their jurisdiction, to determine, as a matter of judicial obligation, whether that sum was payable in the first instance by the Government of that Dominion. That is as I understand the expression "the initial distribution of the rights, property and liabilities consequential on the setting up of the Dominions of India and Pakistan," i.e., that the direct duty of meeting a proved liability of the Government of India would be so placed. As for the over‑riding clause relating to subsequent agreements between the Dominions and any award of the Arbitral Tribunal, I read that in the sense of a distribution of obligations, by consent or by arbitration, as between the two Dominions, and as having no effect upon the right of a person having a claim against the undivided Government of India, whose claim fell to be placed upon one of other of the Dominions, under the Order. In that view, with respect to the present case, I would hold that the respondent had a legal right to place his claim before the Courts of~ Pakistan for recovery of his dues under the proper legal sanctions, from his own Government, namely, the Government of Pakistan. To hold that the late agreement by the Indian Government, in qualified terms, has the effect of transferring that liability to the Indian Dominion, would be to throw the plaintiff upon the mercy of a foreign Government, a fact which is emphasised by that Government's failure to carry out its written undertaking, in this very respect. A firm legal obligation cannot be supposed to be transferred beyond recall from one Independent Government to another, to the detriment of the obligee, in so uncertain a manner, within the concept of municipal law. Accordingly, I am clearly of the opinion that the determination of the question whether the Government of Pakistan is bound to meet the legal claim of the respondent, presented in this suit must be placed on the basis of the scheme of distribution contained in the R. P. L. Order. The learned Attorney‑General, however, also placed reliance upon the undertaking of the Dominion of India in respect of this particular claim in another sense. He contended that the fact that the Government of the Indian Dominion accepted this obligation arising out of the B. R. O. showed that although the Pakistan Government had in fact continued the Refugee Camp under the B. R. O. from the date of Partition onwards, yet in respect of the pre‑Partition debts incurred by that Organisation, the continuing of the operation should be regarded as excluding liability for those debts. Reference was made to the words of Article 8, viz., "if the contract is for purposes which as from that date are exclusively purposes of the Dominion of Pakistan," and the argument was that while the activity was continued by the Pakistan Government as from the 15th August 1947, yet it would not be in continuation of pre‑Partition operation of the same activity, because in respect of the pre‑Partition operation, all liabilities were expressly assumed by the new Government of India. The argument is a delicate one and to accept it involves a severalization of purposes in respect of the same activity, on the basis of express acceptance of liability. In other words, that acceptance of liability determines the purpose. I see two plain objections to the validity of this proposition. Firstly, the liability is consequential upon an activity, motivated by the purpose, which gave rise to the contract. The purpose precedes the liability, and cannot be varied by acceptance or refusal of the liability. Secondly, the Article is worded so as to require, for placement of the liability upon Pakistan, that the purposes underlying the activity when it was undertaken by the undivided Government of India are, as from the date of Partition, exclusively purposes of the State of Pakistan. Continuity or at least identity of purposes as between the undivided Government of India and the State of Pakistan is clearly envisaged. The concept of assumption of purposes simpliciter, by the new Government of India is not within the contemplation of the Article. It is conceivable, of course, that after the Partition, an activity of the undivided Government of India, carried on within the territory of Pakistan, might have been continued, either exclusively by the new Indian Government, or jointly by that Government and the State of Pakistan. In that case, the liability for a pre‑Partition contract would clearly fall upon the new Government of India, since the activity would not satisfy the condition of being exclusively for the purposes of Pakistan. But that is not the case here, and I mention it only to emphasise that (1) the liability of Pakistan is specific and limited, (2) that it arises only where the purposes of the activity, commenced pre- Partition, are exclusively purposes of Pakistan, in a real and factual sense post‑Partition, and (3) acceptance of liability by one or the other Dominion does not, by itself, determine the true question on the answer to which liability may be fixed upon the State of Pakistan, which question involves specification and determination of a purpose underlying the activity in relation toy which it was incurred, which is exclusively a purpose of Pakistan, and has survived after the Partition, or conceivably, has been revived thereafter. The learned Attorney‑General appeared to argue that as from the date of Partition, it was possible for the Government of Pakistan to refuse to carry on the camp at Kantabari and the fact that they did carry it on was not attributable to a continued activity, but must be deemed to be a freshly assumed activity. I have already said enough to indicate that if not direct continuity, at least identity of purposes between the undivided Government of India, and the State of Pakistan is necessary, in relation to the activity which gave rise to the contract, for the application of Article 8, to impose the liability upon Pakistan. The present argument has a basis in the right of an independent Government to enjoy the utmost freedom in its choice of purposes to which it will address its activities. The aspect of a Government's total liberty in this respect was not examined in the course of argument in the appeal, although while considering the questions arising out of this difficult case, it seemed to me that it was a question of primary importance. In its choice of matters to which it will apply its energies and means, there are respects in which a Government, particularly a Government operating upon a written Constitution, has defined obligations. A duty of attending to the peace, order and good Government of the country falls generally upon the Government, to be exercised according to the written terms of the Constitution, and in the manner so provided. But it would be wrong to suppose that anything outside the specification of duties as appearing from the Constitution is beyond the liberty of choice of a Government as to the purposes to which it will apply its activities. Moreover, it is certain that the sanctions in this field, that is, of activities outside the express provisions of the Constitution can never be of a judicial nature. It is a case wholly different from that of bodies charged with functions in local self‑Government, the scope of whose activities is narrowly defined, and correspondingly, the matters to which they may apply the funds placed at their disposal by fixation or otherwise are similarly restricted. In the case of such bodies, the law usually provides that an official auditor finding that the councilors or members composing the body have exceeded their power in applying the funds at their disposal to objects which were not within their prescribed functions, may charge such members pro rata with the loss thus imposed upon the revenues of the local body. But in respect of a national Government, there is and can be no such provision. The sanctions lie in the political field exclusively. A variety of instances can be put forward where Governments have assumed operations and consequent expenditure in fields which are totally outside anything covered in their written Constitutions. To look for any direct benefit to the country or its people, as a condition of validity, is clearly to take too narrow a view for the ascertainment of a "purpose". An outstanding instance is that of huge expenditure by some of the world's leading Governments on the design and preparation of an expedition through space to the moon. In certain aspects that activity touches upon the necessity of defence, but apart from that, it would be difficult to justify in a Court of law, expenditure upon such an activity where the functions of the State are, as they indeed are in certain instances, stated in express terms and sharply divided as between the Central and the Provincial or State Governments, within that country. The purposes of any Government, in the judicial contemplation, are subject to no control whatsoever. Viewed from the practical angle, one would say that there are limitations in the sense that there are limitations upon the way of an eagle in the air, limitations based on wind and weather, and, of course, the eventual necessity of returning to the earth, but nothing which is capable of being controlled by any living agency existing on earth. In that sense, a Government is totally free as to its purposes, subject only to correction at the hands of its Parliament by parliamentary procedure, or by its citizenry in certain situations. I think it is possible to go so far as to say, in a judicial sense that in order to find a valid purpose behind a governmental activity, it is sufficient to find the activity, and it would follow that the purpose behind that activity is a purpose of that Government for which it is accountable to no single person or organisation within its territory. It would be acting only under the final sanctions applicable to its own continued existence. In the present case, ascertainment of purposes, to establish identity, is of course, necessary. Some observations of a valuable nature upon this aspect will be found in the Australian case cited as A. G. Victoria v. Commonwealth (71 C L R 237), in the well‑considered judgment of Latham , C. J., (I am indebted for this reference to the judgment of Harnam Singh, J. in the East Punjab case of Chaman Lal Loona referred to below). That was a case where the question before the High Court of Australia was whether a law which imposed upon the State the obligation to meet the charges for medicines supplied to citizens by dealers was not outside the scope of the legislative authority of the Commonwealth under the Constitution. In section 81 of that Constitution, it was provided that all specified revenues "shall form one consolidated fund to be appropriated for the purposes of the Commonwealth . . . . in the manner imposed by the Constitution." It was provided by Article 51 that subject to the Constitution, the Australian Parliament should have "power to make laws for the peace, order and good Government of the Commonwealth with respect to inter alia (ii) taxation, but not so as to discriminate between States or parts of States". In support of the new law it was argued that in pith and substance it related "to peace, order and good Government of the Commonwealth" and that the laying out of the Commonwealth revenues as provided by the Act, was within the power given by Article 81, i.e., that it was being "appropriated for the purposes of the Commonwealth". The learned Chief Justice expressed the opinion that there was no legal criterion enabling the Court to say that a Commonwealth law was not for the peace, order or good Government of the Commonwealth and that on such a question, if raised, the decision could only be of a purely political nature. He observed that the expression "purposes of the Government" would be too narrowly construed, if it was understood as being confined within the expression "Governmental purpose of the political organism called the Commonwealth". Nor was the meaning of the expression "purposes" to be confined to "purposes in respect of which the Parliament has power to make laws". It is unnecessary to state the further conclusions reached by the learned Chief Justice and by the other learned Judges of the High Court of Australia in this case. I have cited the observations above as I have found them of value in clearing up, in my own mind, the meaning, within the context of a case such as the present, which is to be given to the expression "which are exclusively purposes of the Pakistan Government". The relevant observations in the judgment of the learned Chief Justice of Australia in the case just cited confirm me in the view that a Court, when asked to determine whether a certain matter relates to the exclusive purposes of Pakistan under Article 8 cannot go beyond enquiring into two questions which may be formulated with respect to the present case in the following way:‑ (a) has the activity, in respect of which the question of "purpose" falls to be determined, been assumed arid carried on by Pakistan, for purposes identical with those underlying the activity when it was carried on by the undivided Government of India? and (b) has the new Government of India any concern with that activity ? In the present case, a certain purpose appears quite clearly in relation to the activity comprehensively described as the Burma Refugee Organisation. The evidence in the case has been considered by the trial Judge, whose conclusion is that the persons in the camp maintained by the Organisation were either residents of the Chittagong District itself who had been driven away from their lands on the borders of the District by reason of disturbances, or persons of Chittagong origin who had spread out into the neighbouring district of Arakan in Burma and had settled there on a more or less permanent basis. There is some evidence also to the contrary which the trial Judge had not accepted. Such are a statement to the effect that the persons in the Camp at the outset were only Burmese nationals, and a statement that by 1948, all the persons in the Camp were Muslims who had been driven from their homes in Behar, the neighbouring Indian Province on the west side., in consequence of the disturbances which followed the Partition and who were in fact Indian citizens. But indeed the question of the origin of the persons who were given relief at this refugee Camp or of their nationality is not of determinative importance in this case. The presence of refugees from a neighbouring country in the municipal area is by itself a circumstance which imposed a duty upon the Government of that area to make provision for their subsistence and relief. It is a painful fact that over a considerable number of years, the phenomenon of movement of persons from one national territory into another, as refugees is of almost annual occurrence. For the most part, such movements are engineered by forces within the national territory of these refugees and on setting foot on the soil of a neighbouring country, they in fact become stateless persons. If one were motivated to restrict the obligations of a Government within the narrowest limits permissible under written instruments, one might say that such persons, entering a country not their own, do so on their own responsibility and must perish or survive as best they may, with no claim of any kind upon the Government of the country which they enter. As it happens that is a view which is not taken and has probably never been taken by any country in the international sphere. Each country to which resort has been made by persons driven out of their own country has assumed, as a matter of national hospitality, a duty of care in respect of these human groups within their territory. It is an obligation which transcends constitutional limitations applicable to the exercise of governmental power upon citizenry. In the present case, it is possible on this basis to say that whether or not the people who were in the Camp in 1944‑45 were Chittagonions or not, provided they had been driven out from their homes into the territory of undivided India, and quite irrespective of their nationality, there was a duty upon the undivided Government of India to attend to the wants of this considerable group of human beings so that they should be assisted to survive and live in a manner worthy of human beings. It is in fact a general duty of one human being to another which was undertaken by the then Government of India, and it would be impossible to hear with complacency any argument to the effect that this was an unauthorised extension of the power of the then Government of India and consequently not within the purposes of that Government. But as I have said for the determination of .purposes, qua the undivided Government of India, it is sufficient for a Court to find that the activity was indeed undertaken. I mention the obligation arising from the comity of nations and from the general duty of humanity to al human beings for establishing that there were also good reason behind the activity. Should the question have been raised in the political sphere, no doubt these reasons would have been canvassed, and in all probability they would have prevailed in justification of the assumption of such an activity in pursuit of such a purpose. The question that next arises is whether that purpose on the 15th August 1947 was a purpose of the Pakistan Government, and it seems to me that an answer has already been furnished by what I have said, based upon the single fact of immediate assumption and continuation of the activity by the Pakistan Government in respect of the same people, at the same place, and for the like purposes. It is necessary, in order to satisfy the terms of the relevant Article that there should be a living or existing purpose of the Government of Pakistan, and as to that action, I would say that if there is in fact the activity immediately following the Partition, then it would follow that there is also a purpose and again, the requirement of the Article is that the purpose should be exclusively that of the Government of Pakistan, and for that, an answer appears from which I have said already namely, on the factual side, the purpose was assumed by the Government of Pakistan in the form of an activity, and that activity being confined to the territory of Pakistan, and its need having arisen from circumstance arising in an area bordering exclusively upon the new frontiers, the conclusion is clear that the new Government of India had no concern either with the activity or with any reason) for that activity, using the expression "activity" as distinct from the expression "purpose" as used in that Article. These questions have been the subject of discussion and decision by the Courts in both India and Pakistan over the last 12 years at least, and it is appropriate that I should include here a brief survey of a few of these judgments. The earliest in point of time is the case of Mohan Lal (A I R 1951 Pb.382) where the contract was for work done on a Water Storage Scheme at Gurgaon (now in India), which work was completed in August 1946; the High Court held that the purposes underlying the Water Storage Scheme "are exclusively purposes of the East Punjab Province". On the view I take, that decision follows from the fact that the Water Storage Scheme being operated presumably for supply of water to the population living in those areas, and being continued after the Partition, it was an activity whose purposes were exclusively those of the Province in whose territory the Scheme was situated and operated and no liability of Pakistan could possibly be attracted. In 1952, a decision was given by the Calcutta High Court in the case of Lokenath Saha (A I R 1952 Cal. 140), overlooking the plain fact of continuity of both activity and purpose that was a case of short delivery of goods transported by Railway in March 1947 between two stations both of which fell within Pakistan after the Partition. A learned Single Judge of the Calcutta High Court found himself "unable to see" that after the 15th August 1947, the carriage could be for purposes which are exclusively purposes of the Pakistan Dominion and made that the sole ground of his decision. However, in 1954, that view was rejected by a Division Bench of the Calcutta High Court in the case of Krishna Ranjan (A I R1954 Cal.623), in a similar case, viz., non‑delivery of goods entrusted to a Railway for carriage to a station now in Pakistan. The learned Judges held that where the destination was a place now in Pakistan, it was reasonable to hold that the purposes of the contract were exclusively purposes of the Pakistan Dominion. Had the destination been in India, then the purposes would have been the purposes of the Indian Dominion. In my view, the purpose in the case of a contract of carriage cannot, within the meaning of Article 8, be determined by the destination alone. The contract being for carriage from one place to another, the activity must be considered as a whole, in order to determine the purpose of the contract, and if only part of the journey fell within the territory which later was included in Pakistan, that would not suffice to establish that the carriage was exclusively for the purposes of Pakistan, and in consequence the liability would fall under the article on the Indian Dominion. In this case, however, the Division Bench enunciated a proposition which has since been generally accepted; namely, that the purpose of a contract, within the meaning of the article, is not to be determined by the aspect of profit‑earning or benefit by one or the other Dominion. In 1953, an important decision was given by a Division Bench of the Bombay High Court in the case of Chinubhai (A I R 1953 Bom.13). There the contract was for purchase of cloth belonging to the Government of undivided India which was lying at the Ordnance Factory at Lahore. It was entered into on the 10th March 1947, and payment was duly made. However, by reason o f the then prevailing disturbances, certain steps in the nature of of appropriation to the contract which were required to be taken, were never taken and the goods were never delivered. Chinubhai sued for damages for breach of the contract. It was held that because the goods were in Pakistan after the Partition, and in the ownership of the Pakistan Government, and the contract was of date before the Partition, the liability to Chinubhai was exclusively that of Pakistan. Here, also, the learned Judges repudiated the argument that the expression "purposes" should be construed as implying something "which enures for the benefit of a particular Dominion". Analysing the provision in Article 8, they observed that it was necessary for its due application that an "artificial test" should be applied, and the question to be asked should be‑supposing that the contract had been entered into after the 15th August 1947, would it have been exclusively for purposes of the existing Pakistan Dominion, or in the alternative in appropriate circumstances, supposing that Pakistan had been in existence on the 15th August 1947, would the contract at the time when it was entered into, have been exclusively for purposes of Pakistan. They purported to apply this test in the case before them. In the year 1954, a Division Bench of the Punjab High Court had before it the case of Chaman Lal Loona (A I R 1954 Pb.129), which arose out of a contract for supply of fodder to the Military Dairy Farm at Lahore. The Division Bench found that prima facie the purposes of the contract were exclusively those of the Pakistan Dominion after Partition, but nevertheless held that the initial liability to Chaman Lai Loona fell upon the Indian Government for the reason that the fodder in question was "military stores" and that on the date of Partition, under a certain order establishing a joint Defence Council, all military stores were kept joint and under the exclusive control of that Council which had power of allocation between the Dominions. Consequently, the fodder should be thought to be joint property and on the appointed day, the contract would be deemed to be for supply to the Council and the requirement of "exclusive purpose" of Pakistan would not be satisfied. The latter finding was reversed by the Supreme Court of India, when the case went up in appeal, Chaman Lal Loona (A I R 1957 S C 652). The Supreme Court of India upheld the finding that the contract on its face was one exclusively for purposes of the Government of Pakistan, and held that by the entrustment to the Joint Defence Council of powers of control, no effect had been produced upon the respective rights and liabilities of the two new Dominions in relation to the stores. At the same time the Supreme Court of India approved of the "artificial test" adumbrated in the case of Chinubhai (cited above) by the Bombay High Court, as well as the view taken in the case of Krishna Ranjan (cited above) and rejected that taken in the case of Lokenath Saha (cited above) holding that the point that the contract had been fully performed on one side was not sufficient to conclude the matter. They observed that if the contract had been fully and completely performed on both sides, no question of settlement of further rights and liabilities would be made. If, however, the contract were executed on the one side only, there would remain a right on one side and a liability on the other, and if it had remained unexecuted, in part or whole, on both sides, there would be outstanding rights and liabilities on both sides to be allocated under Article 8 aforesaid in either case. I have chosen to state the course of decision in the Indian Courts first, since in certain respects, the Courts in Pakistan have been accepting the views there formed. This may be an appropriate place at which I should state the difference ' between the view which I have formed on the interpretation and application of Article 8, and that which has been finally accepted in the Indian Courts. I construe the Article as laying down an objective test, for the application of which no hypothetical situations are to be assumed. In the Y words "the contract is for purposes", I understand the use of the present tense as implying that the contract is not exhausted on both sides, but is still alive, in law, and calls for satisfaction. In this phrase, the "purposes" for determination are the purposes of the undivided Government of India, and these must be found as a matter of fact. The validity of those purposes, being purposes of an independent Government, cannot be ascertained judicially. For the Courts, it is sufficient that there was and activity undertaken by the Government, and they are only required to find why, and for what ends, that activity was undertaken. For a water storage scheme, the activity is clearly the supply of water to the surrounding area and its people. For carriage of! goods, the purpose is to provide a system of public transport,) e.g., by Railway. In each case, the unfettered discretion of the) Government for the time being determines the activity, and it is at this point that, with respect, I decline to imagine whether,` before the Partition, if the Government of Pakistan were in existence, the contract would have been for its exclusive purposes. For to suppose such a situation, and impose a legal liability accordingly is to deny the absolute right of an Independent Government to determine whether or not it will undertake particular activity, and that includes every incidental aspect, as to time for place, or size, etc. In the case of a Water Storage Scheme.) the Pakistan Government, had it been in existence when the activity was undertaken pre‑Partition, may well have decided against such) a scheme, or have located it elsewhere, or made provision for water supply otherwise, e.g., by piping from a dam at a distance, or even by producing condensation of cloud‑moisture by artificial means. The Courts are not to suppose that the precise form of the activity undertaken pre‑Partition would have been obligatory upon the Pakistan Government, had it been in existence then. The alternative hypothesis seems to me to be objectionable on the same ground, viz., how can a Court oblige the Pakistan Government to undertake, say, a scheme for food distribution over a particular part of its territory, on the 15th August 1947 or any subsequent date, even in a hypothetical sense? If the Article can be applied without doing violence to its language, without resort to such assumptions, which are in denial of an independent country's absolute power to determine its own activities, it should be so applied, and in my view it can be so applied. The mode of application which I conceive to be implied, by the language of the Article, is one based on ascertainment of identity of purposes, as between the undivided Government of India and the Pakistan Government, with the corollary that no purpose is to be found, post‑Partition, unless there is an activity to provide concrete proof of acceptance of the purpose by the Pakistan Government. In a case where the pre‑Partition activity is carried on after the Partition, in direct continuity, I apprehend that strong circumstances would be required to establish that the purposes of the Pakistan Government were different from those of the undivided Government. If the activity came to an end with the Partition, there would be no case for ascertainment of purposes post‑Partition and Pakistan would be free of liability. A third case, where the activity had been discontinued pre -Partition, but was re‑commenced by the Pakistan Government presents greater difficulty. The undivided Government may have commenced work on a water storage scheme at a place now in Pakistan, and thereafter might have discontinued it, by reason of a change of policy, leaving debts to contractors unpaid. If the Pakistan Government were to revive the scheme, and re‑commence operations (showing concrete activity) and with the same objective viz., to supply water to the surrounding area, both conditions of Article 8 would appear to be established, namely, (a) an unexhausted or living contract for a specific purpose and (b) identity of purposes as between the Governments pre‑ and post- Partition, and, by the location of the scheme, that the purposes post‑Partition are exclusive to Pakistan. An example of radical change of purposes might be the following. The undivided Government may have carried out extensive underground operations at a place now in Pakistan, in a search for buried treasure, following clues in some ancient manuscript, and later may have abandoned the enterprise, leaving contractors' bills unpaid. The Pakistan Government continues the work, but with the objective of providing protection against aerial attack in time of war. There would be here a repudiation of the earlier purposes, and an assumption of the activity for a totally different purpose. Consequently, the Article could not be applied, for imposition upon the State of Pakistan of liability for the contractors' bills, which would be payable by the new Indian Government. The facts of this case, of course, place it in the simplest category among those outlined above. The undivided Government's ‑activity in respect of the refugee camp was continued without a break, by the Government of Pakistan, for the same purpose, viz., in execution of a duty falling upon each independent country in relation to human beings driven into its territory by the authorities of a neighbouring country, and since the latter country was a neighbour only for Pakistan after the Partition, in relation to the border that was crossed, the requirement that the post‑Partition purpose should be exclusive A to Pakistan, i.e., that it should be no concern of the new Government of India, is also clearly seen to be satisfied. The necessity for the extensive discussion of the content of the Article in the foregoing paragraphs of this judgment arose on account of my‑inability to accept the "artificial test" adumbrated in the Indian case of Chinubhai (cited above), which after endorsement by the Indian Supreme Court in the case of Chaman Lal Loona (cited above) has been followed with approval in the opinion of the Full Bench of the Dacca High Court in the present case. The cases it! the Pakistan jurisdiction have been considered in some detail in the judgment delivered by the Full Bench of the Dacca High Court in this case and may be briefly reviewed. The cases of Haripada Roy Chowdhury (6 D L R 131), Hazi Emdad Ali (P L D 1957 Dacca 267), Upendra Kumar Saha (8 D L R 348) and Jamiruddin Pradhan (9 D L R 99), appear to have proceeded upon the principle of the decision in the Indian case of Lokenath (cited above), but in the case of Panchunan Kundu (P L R 8 Dacca 725), relating to carriage by Railway, and damage through non‑delivery and delay the Court observed that it was "futile to argue that under Article 8 the liability is not that of the Dominion of Pakistan". Following upon these cases, is the opinion delivered by the Full Bench in this case where the principles enunciated in the Indian cases have after due examination been accepted. In the course of their opinion, the learned Judges of the Dacca High Court have expressed disapproval of the Lahore High Court decision in the case of T. Andrew (P L D 1953 Lah. 266). That was a case of a dismissed railway employee who had obtained an ex pane decree avoiding his removal, and it was held that his contract was not exclusively for the purposes of Pakistan, he being an employee of the old North‑Western Railway, even though his entire service had been spent at places which after the Partition were in Pakistan. With respect to the view of the learned Judges of the Full Bench on the principle which I have accepted, the liability in respect of Andrew would have fallen on the Dominion of Pakistan, only if his contract had been for service in an activity which after the Partition was confined to the Dominion of Pakistan and was carried on by the Pakistan Government exclusively on its own behalf. Even on the test laid down in the case of Chinubhai (cited above), the aspect of exclusive purpose would not be satisfied in the case of Andrew for it would be necessary to revive a condition in which the old North‑Western Railway which covered a great area now in the Indian Dominion was in existence, and it would be evident that Andrew's contract was for service over the whole of that railway, and consequently was not one which, had the old North‑Western Railway and the Pakistan .Government existed contemporaneously, would have been exclusively for the purposes of Pakistan. The Full Bench also referred to the case of All India Live‑Stock Agency (P L D 1953 Sind 6), which was a case where much cattle had been supplied to a Military Dairy Farm situated at Malir in the vicinity of Karachi and the suit had been instituted on the 2nd July 1947. The Sind Chief Court and later the High Court of West Pakistan held that the Pakistan Government was liable and observed that the point of the nationality of the personnel for whose benefit the contract was entered into was immaterial. That decision is clearly supportable on the view which I have already expressed. The Military Dairy Farm as a governmental activity was continued by the Pakistan Government after the Partition for the same purpose. A railway case was that of Mehrdil (P L D 1956 Kar. 468), where damages had been claimed for loss suffered through negligence and delay in transit between two stations both in Pakistan of a consignment belonging to Mehrdil. The Court held that the contract was plainly for exclusive purposes of the Dominion of Pakistan. The only case in any higher Court in Pakistan which is relevant to the present discussion is that of Ali Ahmad Shah (P L D 1955 F C 522). In my judgment in that case, I had occasion to make observations relevant to the provisions of the R. P. L. Order with respect to a claim by Ali Ahmad Shah for wrongful dismissal from the service of the old North‑Western Railway, as in the case of Andrew (cited above). Ali Ahmad Shah had been working at Lodhraa, a place now in Pakistan when he was suspended in 1939 and later in 1940 was dismissed by the Divisional Superintendent at Multan. He sued for a declaration that his dismissal was void because it was ordered by an authority subordinate to the Chief Mechanical Engineer, North‑Western Railway by whom he had been appointed, as well as for his salary, and obtained a decree from the first Court for a declaration of wrongful dismissal as well as for money. A Division Bench of the High Court on the 2nd January 1946 maintained the declaration in appeal, and only reduced the money decree by the amount of interest. Leave to appeal was granted to the Government by the Privy Council on the 11th June 1947, and while that appeal was pending, an order was made in Lahore by the High Court directing that both Dominions be impleaded, that is the State of Pakistan was made the appellant and the Union of India a respondent. In 1950, the appeal was transferred from the Privy Council to the Federal Court as a Pakistan appeal, because it arose in relation to an allegation of wrongful dismissal at a place in Pakistan. The contention of the Pakistan Dominion was that the decree was exclusively a liability of the Indian Dominion under Article 8 of the R. P. L. Order. In that case, the High Court had held that the cause of action lay not so much in breach of contract as in an "actionable wrong". On that view, Article 10 of the R. P. 1_. Order would have been applicable, which provides that in the case of a claim based on an allegation of actionable wrong by the undivided Government, the liability was to be distributed on the basis that the cause of action arose wholly within one Dominion or the other, and where this was doubtful the liability was to be joint. In my judgment, I pointed out that it was conceded that at least in part, the suit did lie in contract (all North‑',Western Railway employees had executed contracts of service), but here the termination was apparently attacked on the basis of section 240, Government of India Act, 1935. I added, however, that it was obvious that the suit could not "lie wholly in tort, for in that case it would be liable to dismissal on the short ground that no action in tort can lie against the Crown". Although the point is not relevant to the question for decision in the present case, I may here observe that the opinion expressed above fails to take into account that by a high constitutional instrument, wrongs of the undivided Government and two of its Provincial Governments were being expressly made actionable, not against the old Governments in India, but as against the successor Governments. The principle of the immunity of the Government of India and the Provincial Governments ink India to action in tort was based upon the British principle of the immunity of the Crown in such circumstances. The responsibility; of the Crown for the Government of the sub‑continent vas terminated by the Indian Independence Act, under which the R. P. L.. Order was issued as a constitutional instrument, and it is in my view, a tenable contention that as a result of the promulgation of Article 10, the immunity of the Crown was being withdrawn as a shield against sections for wrong by the undivided Government when instituted against the new Governments, and a further inference may well be tenable that , effectively the rule of immunity referred to above was rendered ‑obsolete by Article 10 in respect of the successor Governments. The point may conceivably arise for consideration in some future case. As to Ali Ahmad Shah's claim for wrongful dismissal, I observed:‑ "the contract was terminated, by unilateral act of the Governor‑General on a date 7 years in advance of the Partition. It is impossible to regard the contract as being exclusively for the purposes of the Dominion of Pakistan after the date of Partition, since it was not subsisting on that date." In the light of what I have said in the present judgment, that conclusion should have been placed on a different ground, namely, that Ali Ahmad Shah's contract was for service on the whole of the North‑Western Railway, up to the time when it was terminated; and even assuming that for lack of termination under law, it continued after the year 1940 and even after the date of the Partition, it could not so survive, otherwise than as a contract for service on the whole of the North‑Western Railway, and consequently it would not satisfy the requirement of Article 8 that it should be exclusively for the purposes of Pakistan, if the liability incurred to Ali Ahmad Shah was to fall upon the Pakistan Dominion. The decision in the case was that the liability fell on the Indian Dominion. I may now summarise my conclusions in the present case. Waliullah Sufyani's contract with the undivided Government was for the purposes of the Burma Refugee Organization at the refugee camp at Kantabari, a place in East Pakistan, where at the time when he was operating on his contract the refugees were all persons who had either been driven into the Chittagong District from Burma or from the border‑lands of the Chittagong district itself. The border crossed was the line now dividing Pakistan from the neighbouring country of Burma. The Chittagong District lies wholly within Pakistan. The activity underlying the maintenance of the Burma Refugee Organisation and the camp was one undertaken by the undivided Government in discharge of a function arising inherently out of its position as a separate country in the international comity of nations. It could also be related to the humanitarian function of care for the health and welfare of all persons within the territory, which every Government. carries. Upon the Partition, this activity was carried on directly, in continuation of that immediately preceding the Partition, for precisely the same purpose, by the Government of Pakistan upon whom, by geographical necessity, the same obligations both domestic as well as international which motivated the activity by the undivided Government directly fell. I conclude therefore that the governmental activity represented by the Burma Refuges: Organisation and the Kantabari camp was on the date of Partition an activity of the Government of Pakistan, not only confined wholly to the territory of Pakistan but belonging exclusively) within the international and domestic obligations of the Pakistan Government, with which the new Indian Government had no concern whatsoever. It must be held to be an activity exclusively for the purposes of the Pakistan Government. The chain of connection between this activity and the earlier activity of the undivided Government of India being established, and the governmental liability in respect of Waliullah Sufyani's contract still remaining to be satisfied the contract was one which fell clearly within Article 8 of the R. P. L. Order and liability there under fell clearly to be met by the Government of Pakistan. I have considered with some care whether the allowance of interest by the High Court is supportable. Where a person has expended money for the benefit of another, and is obliged to sue the latter to recover his money, it is appropriate that the debtor should be required to compensate the creditor for being deprived of the use of his money during the period covered by the litigation and the subsequent period preceding full recovery. Interest cannot in my view be allowed on this basis unless the debtor has derived actual benefit from the outlay. But where the liability is wholly vicarious, having to be borne exclusively in a representative capacity, to place such a burden of interest upon the debtor would in my opinion neither be just nor equitable. Once the liability is finally determined by the Courts, there would be a duty upon the debtor to meet it, and therefore to impose interest, as from the date of the final determination, until payment in full would be both just and equitable. I would accordingly allow the appeal of the State to this extent, namely, that I would confine the decretal amount to the principal sum found due by the High Court, viz., Rs. 5,91,997‑4‑0, and reduce the costs both m the High Court as well as in the trial Court so as to be proportionate to this amount. In this Court, as the respondent argued his own case in the appeal as well as the "cross‑objection", I would leave him to bear his own costs. I would fix future interest till realisation on the principal amount fixed above, at three per cent., taking into account all the circumstances of both parties in the case. I would, as already stated, dismiss the respondent's "cross objection" treated as a petition for special leave, with no order as to costs. S. A. RAHMAN, J.‑These are two appeals by special leave arising out of a suit filed by the respondent, in forma pauperis, for the recovery of a sum of Rs. 12,17,066 from the Government of Pakistan who is the appellant in the case. Cross‑objections have also been filed in this Court by the respondent and this order will deal with the appeals as well as the cross‑objections. Appeal No. 34‑D of 1962 is directed against the order of the Dacca High Court by which it stayed money execution case pending in the Court of the Subordinate Judge, First Court, Dacca on condition that the appellant deposits the whole of the decretal amount in Court within a month and with the direction that the respondent decree holder would be entitled to withdraw this amount on furnishing sufficient security to the satisfaction of the Execution Court, The condition attached to the stay order is objected to on behalf of the appellant. In Appeal No. 2‑D of 1964, the question is raised whether the appellant is at all liable for the amount decreed. The relevant facts are these. During the Second World War, in the year 1942, there was an influx of refugees from Burma, owing to the bombing of Rangoon and other places, into what is now the territory of East Pakistan. The Government of India set up an organization known as the "Burma Refugee Organization" and a camp was set up at Kantabari, Police Station Govindaganj, in the District of Rangpur, in March 1943, for accommodating those refugees. Two other camps were subsequently set up at Subirnagar and Mahimaganj. All these places are within East Pakistan. The case of the plaintiff‑respondent was that under orders of the officer‑in‑charge of the camp he had supplied various consumer articles, like food‑stuffs, clothing, etc., to the refugee camp and had also constructed some buildings therein for office accommodation under orders of the officer in question. He was, however, peremptorily stopped from making further supplies, in November 1944, thereby causing him considerable loss The claim made in the suit related not only to the price of the articles supplied and the construction and repairs work done in the camp but also included a sum on account of alleged damages suffered by the plaintiff for illegal breach of contract. He also asked for interest on the sums due to him. The suit was instituted in 1949. The suit was decreed by the trial Court for Rs. 6,78,667‑0‑6 with proportionate costs. The plaintiff's claim on account of loss and damages suffered and interest by way of damages, was disallowed. The plaintiff appealed to the High Court at Dacca and the Government of Pakistan also lodged cross‑objections to the appeal. The plaintiff asserted that his full claim should have been decreed whereas the Pakistan Government contested their liability to the claim altogether. On the law point that arose in the case there was a reference made to a Full Bench of the Dacca High Court by a Bench of two Judges. After the opinion of the Full Bench had been received, the Division Bench again took up the matter and by order dated 19‑12‑60, modified the decree of the trial Court in so far as three items totalling Rs. 86,669‑12‑6, were directed to be deducted out of the amount decreed. The decree as modified therefore stood at Rs. 5,91,997‑4‑

0. The High Court also allowed interest on the decretal amount at the rate of 2 per cent. per annum from the date of institution of the suit on 15‑7‑49, to the date of the decree, with future interest at 6 per cent. per annum, from the latter date till the date of realisation. There was thus partial success of both parties in the High Court. At the hearing of the appeals before us, the respondent who appeared in person, raised some preliminary objections. He contended firstly that the appeals on behalf of the Central Government of Pakistan had been lodged in Court by the Legal Remembrancer, East Pakistan, who had no authority to present them. It appears, however, that Mr. A. B. Mahmood Hussain, Government Pleader, had represented the Central Government in the High Court in this case and it was he who really presented the appeals which had been forwarded by the Central Government through the Legal Remembrancer, East Pakistan. The objection is, therefore, without any substance. The second objection raised by the respondent is that the appellant had failed to abide by the order of this Court which directed that the respondent should be paid the expenses of his journey to Lahore which was to be the venue of the hearing. In this regard, it is stated on behalf of the appellant that steps are being taken to obtain sanction of the Central Government for payment of the necessary amount. Now that the respondent has reached Lahore, he can draw up a statement of his account of expenses incurred by him, which he should hand over to the learned Attorney‑General, and subject to all just exceptions, it is stated that the demand will be met. This objection, therefore, should not stand in the way of the hearing of the appeals. The third objections put forward by the respondent is that the concise statement submitted on behalf of the appellant in this B case was unduly delayed. This delay is condoned and the objection, therefore, loses its force. For filing cross‑objections in this Court, the respondent did not obtain special leave. He was probably under the impression that no such leave was required, and he represents that the mere fact that an appeal had been filed on behalf of the Central Government, entitled him to lodge cross‑objections. This stand cannot be supported by reference to the rules of this Court. All that the respondent has pointed out is that in the Schedule to the old Rules, there was a provision showing that Rs. 40 are payable towards Court‑fee, on cross‑objections. The respondent concedes that he can point to no rule which entitles him to put in cross‑objections without special leave. The appeal itself was subject to such leave and we consider that the same rule applies to the cross‑objections which are in the nature of a cross appeal. We have now to consider the question whether we should grant special leave to the cross‑objector. The questions raised, however, in these cross‑objections relate to matters of fact on which he has failed in the Courts below. For instance, his claim for damages was negatived on the ground that he had failed to prove what actual loss he had incurred. This .position is not denied and reliance is only placed on the quantities of supplies made prior to the alleged date of breach of agreement, in order to establish what stores he might have had in his possession in the camp, at the relevant time. The Courts below were justified in rejecting this type of evidence as sufficient to establish the claim. Another point raised in the cross‑objections is that the breach of contract was really "engineered" by the appellant. No material exists on the record to substantiate this point which seems to have been rightly repelled by the Courts below. The claim made was reduced after considering all the material on record and no case has been made out for interference by this Court with regard to the rate of interest allowed. The High Court exercised its discretion in allowing 2 per cent. per annum on the decretal amount from the date of suit till the date of the passing of the decree and 6 per cent. per annum thereafter till realization. We find no sufficient ground for interference with the discretion thus exercised by the High Court. The cross‑objections, therefore do not merit consideration by this Court and are hereby rejected. The appeals may now be taken up for consideration. The suit had been resisted in the Courts below on behalf of the Pakistan Government on the grounds that under the provisions of the Pakistan Independence (Rights, Property and Liabilities) Order, 1947, (hereinafter referred to as the Order), the initial liability for meeting the claim was that of the Indian Government, by virtue of Article 8 of this Order, that the claim was barred by limitation and that the proper party had not been impleaded as defendant, within the time allowed by the Court. It was found in the Courts below that the plea of limitation could not be successfully raised in bar of the suit because limitation had been extended by acknowledgments of liability and payments made from time to time. In respect of alteration of the name of the defendant at various stages of the case, it was also held that this was necessitated by the requirements of adaptation to constitutional provisions and the changes being merely of a technical and formal character, did not affect the liability of the defendant. The learned Attorney‑General has found it difficult to press before us these two objections in view of the findings of the Courts below. The main question therefore which is in controversy between the parties is as to the effect of Article 8 of the Order. Clause (1) of Article 8 of the Order, which is relevant for our purpose, may be reproduced in extenso:‑ "8(1) Any cantract 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 cases, 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." This provision introduces a legal fiction in order to determine the initial liability of one country or the other between the two Dominions of India and Pakistan that were created on the 15th of August 1947. Article 3 of this Order declares that the provisions of the Order relate to the initial distribution of rights, property t and liabilities consequential on the setting up of the Dominions of India and Pakistan, and shall have effect subject to any, agreement between the two Dominions or the Provinces concerned and to any award that may be made by the Arbitral Tribunal. It appears that at the fag end of the case, an attempt was made on behalf of the appellant, to put in certain documents in the trial Court, evidencing that the Government of India had agreed to assume initial liability for all pre‑Partition claims of contractors and to have adjustments in accounts made, later, between the two Dominions. For this purpose, our attention was drawn to an inter‑Dominion agreement, Fxh. `B', appearing at page 509 et seq of Part 11, Vol. 11, of the record, and a circular letter issued by the Joint Secretary to the Government of Pakistan to all Provincial Governments in Pakistan and others, dated the 4th June 1948, along with a Press Note incorporating a Press Note of the Government of India, Exh. `C', which called upon all claimants to submit their claims to the appropriate officer of the Government of India direct, before the 1st of July 1948. When taxed with this position the respondent explained to us that he did not consider this to be in accord with the legal provisions of the Order and that his right‑3 under that order were not taken away by this Press Nor. If the matter had been raised properly in the written statement of the appellant in the trial Court and an issue had been framed covering this point, these documents might have been pressed into service to show that even if there was an initial liability resting on Pakistan under Article 8 of the Order, it had been displaced by ail. inter‑Dominion agreement. The difficulty, however, confronting the appellant in that this plea which pertained to a question of fact, was not specifically raised in the written statement and did not form the subject of a specific issue in the case. In the circumstances, it should be difficult to hold that a case had been made out for a finding that tire provisions of the Order had been superseded by an agreement between the two countries as required by Article 3 of the Order. Indeed, the respondent pointed out to us that later, the Government of India seems to have repudiated its liability under any such agreement and to reply to the notice sent by him to the Government of India! under section 80 of the Code of Civil Procedure, he was informed that the liability for meeting his claim was that of the Pakistan Government. It is, therefore, doubtful how far a plea raised on the basis of variation of liability by Inter‑Dominion agreement would have availed the appellant to resist the respondent's claim, even if it had been urged at the appropriate stage of the case. The main question is whether Article 8 of the Order fixes liability for a claim of the kind which falls for consideration in the instant case, on Pakistan or on the Indian Government. The High Court at Dacca referred the following question for opinion to a Full Bench in this context:‑ "Whether the contract entered into by the plaintiff with the Government of India, before the appointed day, in connection with the Burma Refugee Organisation, is for exclusive purpose of Pakistan and whether the money said to have been due to the plaintiff, on account of that contract, is payable by the Government of Pakistan after Partition, in other words, if the contract as from the appointed day is for the exclusive purpose of Pakistan, within the meaning of Article 8(l)(a) of the Indian Independence (Rights, Property and Liabilities) Order, 194?." The Full Bench observed that the question as framed, unfortunately raised a mixed question of law and fact. In their opinion, the answer to the question as framed must necessarily depend upon what is the purpose of a given contract and must i1ccessarily vary in each individual case. The Full Bench felt that as the whole case was not before them, they could deal only with the general aspect of the question. After reviewing the case‑law on the subject, they returned the following answer to the question referred:‑‑ "In these circumstances, our answer to the question formulated by the Division Bench is that if, according to the tests indicated by us earlier, the immediate object or subject matter of the contract is one which, as from the appointed day, namely, the 15th of August 1947, has become an exclusive purpose of Pakistan, then the liability which may be subsisting on that day would be the liability of the Dominion of Pakistan, within the meaning of Article 8(1)(a) of the Indian Independence (Rights, Property and Liabilities) Order, 1947." The "tests" to which reference exists in this answer, were apparently adopted from two decisions from the Indian Jurisdiction, reported as The Union of India v. Messrs Chaman Lnl Loona & Co. (A I R 1957 S C 652) and The Union of India v. Chinubhai Jeshingbhai (A I R 1953 Bom.13). The learned Judges opined that in order to determine the purpose of a contract, it must be judged by its character ex facie and not by what the parties may do with the fruits of it. The object of the subject‑matter of the contract had to be looked to, rather than the reasons or motives which prompted it. From this point of view they thought that the purpose of a contract must be the immediate object sought to be achieved thereby and not the benefit to be derived therefrom. In these circumstances, they felt that some kind of artificial test had to be applied, for, obviously, the Dominion of Pakistan was not in existence prior to the Partition of 1947 and all contracts dealt with under Article 8 of the Order, must have been made before the said date, with undivided India. In order to determine therefore as to whether the purpose or the subject‑matter of such a contract was one which had or had not become the exclusive purpose of Pakistan, the learned Judges thought that they must necessarily consider as to what would have been the position if either the contract had been entered into after the 15th of August 1947, or Pakistan had come into existence at the date the contract was entered into. This appears to be the test suggested in the two Indian decisions. The case came up for hearing before the Division Bench again, after the Full Bench had recorded its opinion on the legal point. Purporting to follow the test laid down by the Full Bench they held that the Dominion of Pakistan was liable for any amount due to the plaintiff on account of the contract in question, in view of the fact that the Burma Refugee Organization, since the Partition, had fallen within the territory which formed part of the Dominion of Pakistan and the administration of this organization had been taken over by the Government of Pakistan after the appointed day. The two Indian decisions on which reliance was placed in the High Court on behalf of the respondent appear to be distinguishable on the facts from the instant case. In those cases the claim was in respect of contracts made with regard to property which was located in the territory now forming part of Pakistan and which had vested in the Dominion of Pakistan. In such cases there is no difficulty in holding that the purpose visualized by Article 8 of the Order is exclusively that of Pakistan as from the day of Partition. In the instant case no such factor is available as would, on the face of it, fix the purpose in question to be exclusively one of Pakistan. When the camp was started, its purpose was to cater to the needs of refugees from the Burma, who had been driven out by pressure of war, from their hearths and homes. The mere fact that those refugees spoke Bengali or a language akin to the Chittagong dialect, as was sought to be proved in evidence led by the respondent, would not necessarily imply that catering for their needs would be the exclusive responsibility of what is now Pakistan. They were Burmese citizens for all intents and purposes. It happened that the refugee entered the territory which later formed a part of Pakistan. Burma was a separate country and the question of maintenance or rehabilitation of refugees, was more or less an international question created by the World War. The contract under consideration in the instant case is one which, in the main, concerns supplies of consumable articles for the refugees in the camp. The supplies were finished long before the Partition and they had actually been consumed. It is true that there is also an allegation that some buildings were constructed on the camp site by the contractor and there is evidence to show that whatever was left in the camp had been sold by the Pakistan authorities who ran the camp for sometime after Partition. To a certain extent, therefore, some property in the camp may have been taken over by Pakistan. But the contract, as a whole, has to be looked at, and if part of the contract related to articles of consumption which were exhausted by their user before the Partition, it could not be said that the contract, on the face of it, was one for the exclusive purpose of what came to be known as Pakistan later. Indeed some of the refugees who had consumed the supplies made, may have left the camp before the appointed day arrived and their needs had no organic nexus with the territory or Government of Pakistan. In this connection, reference may be made to the statement of Mr. Mansur Ali, D. W. 1, who had been associated with the Bengal Refugee Organization from 1‑3‑43 till August 1949. He deposed that some 18,000 to 19,00 Burma refugees were repatriated to Burma, most probably in 1945. At the time of Partition only Arakanese refugees were left therein. There could be no relationship between supplies made for the benefit of refugees who were repatriated before the Partition. That part of the purpose of the contract which concerned their repatriation was not continued till after the Partition and could not therefore before the exclusive purpose of Pakistan. The mere fact again that the Pakistan Government took over the management of the refugee camp when Partition took place, would not by itself be sufficient to saddle Pakistan with the liability for payment of the contractor in the present case. That would, more or less, be an adventitious circumstance, depending on the choice of the Pakistan Government itself. To my mind, the test should be two‑fold‑there should be continuity of the same purpose from before Partition till the appointed day and there should be something inherent in the contract itself which, by its intrinsic force, makes the purpose of the contract, the exclusive purpose of Pakistan, on its creation. To a certain extent there was continuity of the original purpose of the contract ‑'in so far as the Pakistan Government continued to run the refugee camp even after Partition, for some time. It was then apparently wound up in 1949. There was no direct benefit to be derived by Pakistan from running this camp and consequently no assistance can be derived, in determining whether the purpose of the contract was, as from the appointed day, the exclusive purpose of Pakistan, from any theory of benefit derivable by the country in which the camp happened to be located. From the very nature of the case, all supplies made did not vest in or relate to property that vested in Pakistan, as some of the supplies at least, had been consumed long before the appointed day and did not survive that day either in fact or potentially, in the shape of property benefiting from them. The question, whether, if the exodus from Burma had started at the time when Pakistan came into being, the Pakistan Government would have undertaken to set up a camp for the refugees who entered the territory of Pakistan is more or less hypothetical in nature and is one of difficulty. Even though no material benefit could result to Pakistan by such an action, yet it could be argued that in such a situation, the Pakistan Government would have responded to the human needs of refugees and would have made arrangements for their maintenance. The "purposes" of the contract mentioned in Article 8 of the Order have however to be distinguished from the "purposes" of the refugee camp and they need not coincide. The refugees were no doubt on what came to the later, Pakistan soil, and had to be looked after within it territory. The fact may import a moral obligation on the Pakistan Government to maintain the refugee camp even after the appointed day, viz., the 15th of August 1947, but qua the contract in question, was there a legal obligation resting on the Pakistan Government to meet the contractor's bills, under clause 8 of the Order? The answer could be in the affirmative only if the purpose of the contract contained an intrinsic element which had the potentiality of becoming the exclusive purpose of the Government of Pakistan after the Partition. After anxious thought I am unable to persuade myself that such is indeed the case. As explained above, there was in part at least, no continuance of the purpose of the contract, after the appointed day and that purpose had no such organic connection with Pakistan, its territory or any property that came to be vested in Pakistan as to make it wholly or solely the purpose of Pakistan as from the date of Partition. I would therefore allow the two appeals, set aside the judgments and orders of the Courts below and dismiss the plaintiff‑respondent's suit. In view of the circumstances of the case, I would leave the parties to bear their own costs throughout. FAZLE‑AKBAR, J.‑I agree. B. Z. KAIKAUS, J.‑I am in agreement with the conclusion, and generally with the reasoning, of S. A. Rahman, J., and would add my reasons in respect of the main point which arises for decision in these appeals, that is, whether the purpose of the contract in suit was one which as from the appointed day is exclusively the purpose of Pakistan. The first step in the discussion is the determination of the purpose for which the Burma Refugee Organisation (hereinafter called the B. R. O.) was established. The B. R. O. was established for relief to, or rehabilitation of, refugees who were pushed into India on account of disturbances in Burma. The activities of this Organisation were not confined to refugees who originally belonged to the area which is now East Pakistan. The Organisation was intended for refugees who originally belonged to any part of India. There is evidence on the record that some of the refugees who were in the camp at the relevant time belonged to territory which is now part of India, but the decision of the question before us does not depend upon the accident as to whether the refugees present at the relevant time belonged to one place or the other. What we are concerned with is the purpose for which the B. R. O. was set up and surely that purpose was not in any way limited to those who previously belonged to the territory which is now Pakistan. The Courts below have not found that there was any such limitation nor were there any grounds for such a limitation. I would proceed to decide the question before me on the basis that the B. R. O. was an organisation for the benefit of refugees belonging to all parts of pre‑Partition India. Having determined the purpose of the B. R. O., the next point for determination would be whether this purpose was exclusively the purpose of "the Dominion of Pakistan". But for a determination of this point it is necessary to determine the preliminary point as to what should be the criterion for deciding whether a purpose is the purpose of a particular dominion. There could be two criteria for deciding this matter. One is: what were the purposes actually being pursued by the dominion. The other is: what should, on general considerations of the purposes of States, be regarded as the purpose of the Dominion. Which of these two criteria should be adopted in the present case? A reference to the language of Article 8 leaves no room for the application of the first criterion and it is clear that the matter must be decided on the second criterion. The purpose referred to in Article 8 is one which "as from the appointed day" is exclusively the purpose of Pakistan. Pakistan came into existence on the appointed day. The assumption of Article 8 is that when at 0 hours on 15‑8‑1947 Pakistan came into existence, the purposes of Pakistan also came into existence at that hour. These purposes came into existence automatically with the birth of Pakistan. They are purposes therefore which ought to be the purposes of Pakistan on some general consideration as to what should be the purpose of a State. The purpose cannot be dependent on activities actually carried on for there were no activities carried on before 15‑8‑1947. The taking over of B. R. O., would have no relevancy just as the repudiation of the B. R. O. if in fact it was for a purpose which should be the purpose of Pakistan, would have none. The Pakistan Government could not by any subsequent conduct either repudiate a liability which in fact was its liability or assume a liability to which it was not subject. The matter has to be decided on the situation as it existed at zero hours on 15‑8‑1947. 1 will now apply this criterion. In two Indian cases, that is, The Union of India v. Messrs Chaman Lai Loona & Co. (A I R 1957 S C 652) and The Union of India v. Chinubhai Jeshingbhai (A I R 1953 Born. 13), which have been cited before us it has been held that for a determination of whether a purpose was the purpose of Pakistan we should assume either that Pakistan was in existence at the relevant time or that the events occurred after the coming into existence of Pakistan because without introducing such a fiction the question could not be answered. I will for the present discussion accept the correctness of this proposition and will assume that Pakistan was in existence at the relevant time. Can it be said that the rehabilitation of the refugees from Burma was exclusively the purpose of the Government of Pakistan? I have already stated that the B. R. O. was for the benefit of refugees who belonged not only to the territory, that is now Pakistan, but to all parts of what was India. That I have said is the basis on which I proceed. Now if the B. R. O. was for refugees who belonged to India as well as Pakistan, but they were entering at a point which was in Pakistan was their rehabilitation exclusively the purpose of Pakistan? It is proper to state that there are actually two questions to be decided. The first is whether it would be a purpose of the Pakistan Government at all to rehabilitate refugees who were nationals of India. The second, (and perhaps a more direct question for the purpose of the decision in the present case) would be whether the rehabilitation of refugees who belonged to India would not be a purpose of Indian Government, whether or not it was a purpose of the Pakistan Government. To begin with the first question, no principle has been cited before us which would make it the duty of Pakistan to rehabilitate refugees coming from Burma who do not originally belong to this country. There may have been Russian refugees, Chinese refugees, American refugees and Indian refugees. The mere fact that they enter territory which is part of Pakistan does not make their rehabilitation a purpose of the Pakistan Government. It would be a purpose of the Pakistan Government to rehabilitate refugees who were originally nationals of this country. But surely the rehabilitation of refugees belonging to all foreign countries is not a purpose of the Pakistan Government. That from the humanitarian point of view the Government may give to refugees of other countries some relief till their own Governments take charges of them is not a factor which should be taken into consideration for deciding whether it was a purpose of the Pakistan Government. The answer to the second question is even clearer. If refugees coming from Burma and belonging to India as well as Pakistan were entering Pakistan would the Indian Government not be interested in the rehabilitation of refugees who belonged to India? If an organization was not set up for the benefit of all the refugees would not this organization be serving a purpose of the Indian Government too? If it be argued that the rehabilitation of even those refugees who are not Pakistanis becomes a purpose of the Pakistan Government because they enter Pakistan is it logical to assert that their rehabilitation is not the purpose of the State whose nationals they are? The accident of entering a particular Territory is far less relevant than the basic fact of nationality. States exist for their nationals and remain interested in them even when they are not within the territory of the State. It is to be kept in mind that Article 8 will be applicable only where the Indian Government definitely has no purpose in the contract. It is not sufficient to prove that a purpose is the purpose of Pakistan. The negative too has to be established that it is not one of the purposes of India and it is only then that the liability will be that of the Government of Pakistan. It has to be an exclusive purpose. Assuming the existence of Pakistan when the refugees arrived from Burma, but assuming at the same time that the B. R. O. was intended not only for refugees who were originally residents of Pakistan, but also for those who were originally residents of India, I see no escape from the conclusion that the activities of the B. R. O. would be a purpose of the Indian Government. I find the liability to be that of India. The result is unfortunate. On the merits there is a decision in favour of the respondent, yet for no fault of his he is being non‑suited. This is due, I say with regret, to the fact that no proper provision was made either in the Independence Act or in the Adaptation orders meeting with the situation which exists when a question arises as to which country is liable on a particular contract. There should S have been a provision making it possible for a plaintiff to file a suit impleading both the Governments as defendants leaving the question as to which Government is liable to be fought as between the Governments themselves. There would be no need in that case for proof by the plaintiff' of the liability of a particular Government. But this could only happen if a special provision was made in the Independence Act or the, Adaptation Orders for a Government cannot ordinarily be sued in the Courts of another country and is not subject to the processes of the Courts of another country nor can such Courts pass decrees which it is possible for them to execute. It is a good plea for any Government in the Courts of another country that they have no jurisdiction over it. However, such a jurisdiction can be created by a statute which is binding on that country, and it could in the present case have been created by the Independence Act and the Adaptation Orders made under that Act. As matters stand at present there are a good many difficulties in the way of a plaintiff. He can file a suit against either the one Government or the other. The suit against a Government can be filed only in the country of that Government. The suit may be dismissed by Courts of one country and after its dismissal, even if there still be limitation for a suit it may be dismissed as against the other Government too, for the decision of the Courts of one country does not bind those of the other. There are other difficulties too. Assume that the cause of action arose at a place which is now in Pakistan, but that the liability is that of the Indian Government. The plaintiff cannot sue the Indian Government at the place where the cause of action arose because of the want of jurisdiction in the Pakistan Courts. If he files a suit in the Indian Courts he will be faced with the difficulty that a suit in the Indian Courts will be barred by the provisions of the Civil Procedure Code. A suit against a person can only be brought under the C. P. C. at a place where the cause of action arose or where the defendant resides or carries on business or personally works for gain. A suit would not lie in the Indian Courts because the cause of action arose at a place which is not in India and a Government neither resides anywhere nor carries on business nor works for gain. I agree that the appeal be allowed and the decree of the Courts below set aside, but would leave the parties to bear their own costs. ORDER OF THE COURTS In accordance with the view of the majority, we allow these two appeals, set aside the judgments and orders of the Courts below and dismiss the plaintiff‑respondent's suit. In view of the circumstances of the case, we leave the parties to bear their own costs throughout. A. H. Appeal allowed.