P L D 1956 Karachi 468 (PLP)

VELLANI, J.‑

The plaintiff filed this suit against the Governor‑General‑in‑Council to recover Rs. 5,135‑10‑0, interest and costs for damages relating to 249 crates containing 2,470 dozen eggs carried from Pabbi in North‑West Frontier Pro vince to Karachi Cantonment under a Parcel Way Bill dated 1st May 1944. It is claimed, that goods should have been carried, by parcel train, whereas in fact they were so carried only a part of the way, and that the breach resulted in 50% of the eggs going bad. As the question arose in the case whether the Dominion of India or the Federation of Pakistan would be liable, they were joined as defendants. The Dominion of India has remained ex‑parte. The defenses raised are contained in the following issues as I re‑settled them at the final hearing :‑ (1) Whether the notice under section 80, Civil P. C., is bad for having been addressed to the Secretary, Railway Board ? (2) Whether the eggs in suit were carried by the defen dant on terms contained in Parcel Way Bill No. 624490, dated 1st May 1944 ? (3) Whether the eggs in suit were carried under risk note "Z" ? (4) Whether the liability if any under the contract in suit is that of the Federation of Pakistan under clause (a) of subsection (1) of section 8 of the Indian Independence (Rights, Properties, Liabilities) Order, 1947 ? (5) To what relief, if any, is the plaintiff entitled ? Neither party sought any other issue. Documents Exhs. 6/1 to 6/13 were admitted in evidence by consent of parties. The plaintiff has examined Fakir Muhammad, Secretary, Frontier Egg Grading and Sales Syndicate, Peshawar to show that the eggs has been despatched in good condition, and his evidence has been admitted as Exh.

7. The plaintiff examined himself Exh. 8, and closed his case. For the defendant were examined Hussein Abbas Exh. 9, Station Master, Pabbi, and Henry Mathews Exh. 10, Tally Clerk, Karachi Cantonment, Railway Station. Issue 1.‑The notice under section 80 is dated 9th April 1945 Exh. 6/6. It is common ground that under section 80, Civil P. C., as it then stood, the notice was required to be delivered to or left at the office of a Secretary to the Central Government. The notice Exh. 6/6 is addressed to the Secre tary, Railway Board, New Delhi, and the acknowledgment Exh. 6/7 shows that it was received by the Secretary, Railway Board at New Delhi on 19th April 1945. The onus is upon the plaintiff to show that the Secretary, Railway Board, was a Secretary to the Central Government within the meaning of section

80. Several cases have been cited for the plaintiff. In Messrs Janeshwar Lal Rajeshwarlal v. Dominion of India (A I R 1951 Pb. 383); the notice was addressed to the Secretary. Central Govern ment, Railway Board Office. Government of India, New Delhi. In A. Sankunni Memon v. South Indian Railway (A I R 1952 Mad. 502), the notice was addressed to the Secretary for Railway, Central Govern ment, New Delhi. In Union of India v. Murlidhar Aggarwalla and others (A I R 1952 Assam 141) the notice was addressed and delivered to the President, Railway Board, New Delhi, and it was held that the Secretary to the Government to India in the Railway Depart ment was, at the relevant time, the President of that Railway Board. With due respect, the evidence upon which the Court came to that conclusion does not appear cogent, and it appears assumed that a notice delivered to or left with a person in one capacity is a sufficient compliance with the statutory require ments which relates to another post which he holds and not necessarily in the same capacity. In any case, the case is no evidence or authority for the proposition that at the relevant time in this case, the Secretary of the Railway Board was a Secretary to the Central Government. The statutory requirements of section 80, Civil P. C., must be strictly complied with as the Privy Council required them .4 to be complied with in Government of the Province of Bombay v. Pestonjee Ardeshire Wadia and others (A I R 1949 P C 143 at 146). In Sandhya Trading Co. v. Governor‑General, Dominion of India (A I R 1950 Ca1. 426), Harries, C. J., held that a notice under section 80, Civil P. C. which should have been delivered or left at the office of the General Manager of the Railway concerned, was not valid when left at the office of the Secretary, Railway Board, Delhi, and observed that it could not be presumed that a wrong addressee would immediately forward the communica tion to the person with whom it was required by statute ‑to be left. The question whether the Secretary, Railway Board, was a Secretary to the Central Government was not considered. A reference was sought to be made to section 139 of 'the Railways Act, but that section was omitted by the Government of India (Adaptation of Indian Laws) Order, 1937, which was before the notice issued in this case. The answer to issue 1 therefore is in the affirmative. Issues 2 and 3.‑The breach on the part of the railway was admitted at the stage of argument. It was agreed that the eggs in suit were ‑to be carried under the terms of carriage all the way by parcel train, but that they were actually carried by parcel train only up to Rohri, thereafter by a goods train. It was agreed that it was not necessary to consider issues 2 and 3 any further having regard to this admission of the breach, Issue 4.‑It has been said for the defendant upon the authority of Union of India v. Loke Nath Saha (A I R 1952 Cal. 140), that the liability in suit is that of the Dominion of India under Article 8 (1) (b) of the Indian Independence (Rights, Property and Liabilities), Order, 1947. Roxburghs, J., in that case said that Pakistan would be liable under Article 8 (1) (a), if from the appointed day the contract is for purposes which are exclu sively the purposes of akistan, but he was unable to see how it could be said that the contract of carriage of goods in March 1947 before the Dominion of Pakistan was ever thought of, could be held as from the appointed day (15th August 1947) to be one that is for purposes which from that day are exclu sively the purposes of the Dominion of Pakistan. In that case, as in this, the contract was for the carriage of goods between two places both of which are now in Pakistan. In my judgment in Civil Suit No. 402 of 1947 while dealing with Article 8 (1) (a) I observed:‑ "The test prescribed in whether the contract is for purposes such as from 15th August 1947 are exclusively the purposes of Pakistan. To apply that test it is necessary to consider the purposes as from the appointed day, that is, 15th August 1947, because no such purposes could exist in relation to Pakistan before that date." The test is not difficult to apply. A contract by the State for carriage of goods between two places which are within the territories of Pakistan is plainly a contract the purposes of which as from 15th August 1947 are exclusively the purposes of Pakistan, because it is the State's undertaking and purpose to provide for the means of communication and carriage between all places on its own railway. Then it has been said that the case correctly falls under Article 9 (a) and that the words "and other financial obliga tions" cover the claim in suit, rendering it the liability of the Dominion of India. Article 8 provides for division of "all rights and liabilities which have accrued or may accrue", from any contract made on behalf of the Governor‑General in Council" before 15th August 1947, and under clause (6), its general terms are to have effect subject to the provisions of Article 9 which prescribe different bases of division of liabili ties in respect of "loans, guarantees and other obligations", and bank balances and securities are to be treated as property to which Article‑7 applies. The effect of clause (6) is to create two exceptions. It is true that they are not expressed to be exceptions in that the word exception has not been used, but as Jessel, M. R. said in Taylor v. Corporation of Oldham ((1876‑77) L R 4 Ch. D. 395 at 410). "In all these Acts of Parliament the first thing you have to consider is, that where you have general provisions whether contained in the same Act or in another Act of Parliament, and where you have special provisions as to a particular property in the ownership of one individual, you must read the special provisions as excepted out of the general. That is the only way of reconciling these Acts of Parliament." A comparison between the provisions of Article 8 and those of Articles 9. and 7 shows that the bases of division in each are different, necessitating the exceptions created by clause (6) of Article

8. The words "and other financial obliga tions" which appear in Article 9 must therefore be interpreted as appearing in an exception. The exception is expressed to be in respect of "loans, guarantees and other financial obliga tions" which form the species of a genus which may conveni ently be termed Government Securities, arising as they do out of contract and yet requiring bases of division different from those relating to contracts generally tinder Article

8. The question therefore is whether the words Wand other financial obligations" enlarge the scope of the exception to cover liabilities arising out of obligations of a kind other than "loans" and "guarantees". If these words were to be so interpreted, the provisions of Article 9 would undoubtedly come into con flict with the general provisions of Article 8 which relate to "any contract made on behalf of the Governor‑General", and destroy the meaning of the exception. Such an inconvenient result could not have been intended. The general words "and other financial obligations" follow (and not precede) the particular words "loans" and "guarantees", and to avoid an inconvenient result and to make good sense, the interpretation of the general words needs to be l ejusdem generis the particular words. In Province of West Bengal v. The Midnapur Zamindary Coy., (A I R 1950 Cal. 159) Harries, C. J., interpreted these general words, egusdem generis. I therefore hold that the liability is that of the Federation of Pakistan. Issue 5.‑The evidence on this issue is that of Fakir Muhammad Exh. 7 who states that the eggs were in good con dition, and that of the plaintiff who states that he found 800/0 of the eggs bad, but confined his claim to 50010. His sale to the military and his purchases from Budharam to meet his commit ments are irrelevant, unless the purchases from Budharam are relied upon as being evidence of the market rate. Budharam has not been examined because he has migrated to India. Nevertheless the plaintiff admitted that he had a clerk and maintained books of account, but he has not produced his books. The plaintiff said that the wholesale price of eggs at the time was about one anna less than the retail contract price which stood at Rs. 1‑6‑0 a dozen. All this evidence is in the nature of ipse dixit, and is not supported when it could have been supported. The quantum of damage has not been proved. Exh. 8/1 is the record of a test held by the Station Master, Karachi Cantonment who is now in England, upon 'the plain tiff's complaint that 80010 of the eggs were bad. He held a token test, taking out of one of the crates 60 eggs and immers ing them into a bucket of water. 15 eggs out of the 60 floated He accepted the test to be evidence of the proportion of bad eggs to the good ones. The defendant did not accept the token test as covering the 249 crates of the consignment, but I think it may fairly be said that the proceedings at the test and the report Exh. 8/1 indicate that the object was to ascertain by a test which was convenient and practicable, what on the whole was the pro portion of bad eggs to the good eggs. The result is that section 80, Civil P. C. was not complied with, and the suit was bad. I therefore dismiss the suit with costs to the Federation of Pakistan. K.B.A Suit dismissed.