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Petition No. 169 of 1952, decided on 19th February 1953, under section 44 of Punjab Courts Act (VI of 1918), for revision of the order of Tufail Ahmad, Civil Judge, 1st Class, Lahore, dated the 9th July 1952.

O. 1, r. 10 and O. VI, r. 17‑‑Substitution of defendant‑-To be effected under O. I, r. 10 and not under O. VI, r. 17‑-Amendment of plaint-- Jurisdiction of Court after passing decree‑Indian Indepen dence (Rights, Property and Liabilities) Order, 1947, S. 12 --Federation of Pakistan sought to be substituted for Indian Dominion.

Order 6, rule 17, relates to a matter in controversy between the parties, and unless a party is already on the record, the question of a matter being in controversy between that party and the plaintiff does not arise. Although a plaint is amended when a party is added, the appropriate provision for an addition tar substitution of a party would be, apart from any special enactment O. 1, r. 10 of the Code of Civil Procedure. Therefore, the mere necessity of the, addition of the party could not be brought within the words "matters in controversy between the parties".

A Court has jurisdiction to allow amendment only as long as a suit is pending between the parties. When a suit is terminated by a decree the jurisdiction of the Court to deal further with the matters in issue terminates, unless and until that decree is, in the first instance, got rid of, or unless it could be said that by passing of the decree the whole of the matters in issue have not been adjudicated upon or at least not adjudi cated upon against a particular party.

Where the decree had been obtained against the Indian Dominion after substitution of the latter for Governor‑General -in‑Council in terms of section 12 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, and, after passing of the decree, the plaintiff having, in the first instance, failed to get the Federation of Pakistan substituted as the judgment‑debtor for the Indian Dominion through amendment of the decree‑sheet, applied for amendment of the plaint itself by substitution of the Federation of Pakistan as defendant in place of the Indian Dominion;

Held that the plaintiff could not do so.

Orders passed by a Court at one stage of the proceedings are binding in all subsequent proceedings till they are, in a legal manner, set aside. The lower Court was, therefore, really bound by its own previous order and could not, except by means of review, have avoided the effect of that order and impleaded the Federation of Pakistan as prayed for.

(b) Indian Independence (Rights, Property and Liabilities Order, 1947, S. 8 (1) (a)‑Purposes must he exclusively those of Pakistan for liability of contract to he fixed on Pakistan-- Mixed purposes‑Liability on contract to be that of Indian Dominion.

The condition in section 8 (1) (a) is that the purposes should be exclusively those of Pakistan. The effect of the clause is that even if there was the slightest intermingling of purposes, if the slightest benefit of the contract was going to that territory, which is now India, the liability would be that of the Indian Dominion. The benefit of the service of any servant of the N. W. R. before the partition was going to the whole of the N. W. R. and it is the Indian Dominion which is to pay the arrears of salary of a N. W. R. employee.

Muhammad Yaqub Ali Khan for Petitioner.

Syed Ali Shah for Respondent.

This application foe revision arises under the following circumstances. The petitioner was a Senior Charge man in the N. W, R. and was removed on the 10th July 1940. On the 11th January 1945 he filed a suit against the Governor-General‑in‑Council for a declaration that the order of his removal was void and that he still continued in service as a Senior Chargeman. By an amendment of the plaint a relief for the recovery of Rs. 23,351/8/‑ as arrears of pay was also included. On the 28th July 1948 the suit was pending and still proceeding against the Governor‑General‑in‑Council. An application had been put in by the plaintiff on the 21st June 1948, which came up for hearing on the 28th July 1948, that the Indian Dominion be substituted in place of the Governor‑General as the defendant. This application purported to be in accordance with section 12 of the Indian Independence (Rights, Property and liabilities Order, 1947. The learned Subordinate Judge, who seas trying the suit, passed an order substituting the Indian Dominion as prayed for. The suit then proceeded ex pane against the Indian Dominion and a decree was passed on the 4th February 1949. The petitioner, it seems, tried to execute the decree but failed. He then applied, on the 10th January 1950, for an amendment of the decree‑sheet by substitution of the Federation of Pakistan in place of the Indian Dominion, This application was dismissed on the 24th May 1950. A revision filed against this order was also dismissed by my Lord the Chief Justice who directed, at the same time, that the petitioner could, if he was so advised, apple for an amendment of the plaint.

The petitioner then put in an application for an amend ment of the plaint praying that the Federation of Pakistan be allowed to be substituted for the Indian Dominion. The learned Subordinate Judge, who tried this application, framed the following issues:‑

(1) Can the applicant be allowed to sue the Federation of Pakistan

(2) Can a decree against Republic of India be passed by this Court If not, is this application in order

(3) Is the application for amendment in time

(4) Is the Federation of Pakistan liable for any claim of the applicant, to which he may have been entitled against the Government of India

On issues Nos. I and 2 the learned Subordinate Judge came to the conclusion that so far as the relief for a declaration was concerned that had become infructuous because the petitioner had passed the age of superannuation, anal so far as the relief for arrears of pay was concerned, the liability according to the Indian Independence (Rights, Property and Liabilities) Order, 1947, was that of the Indian Dominion and not of the Federation of Pakistan. He found that the only remedy available to the petitioner was that he should execute his decree against the Indian Dominion. On these findings, the learned Subordinate Judge dismissed the application for an amendment, and the pre sent application for revision under section 115 of the Code of Civil Procedure relates to this order ref dismissal.

Learned counsel for the petitioner has urged two grounds. He argues, in the first place, that under Order 5, rule 17 of the Code of Civil Procedure, it is the duty of the Court to allow every amendment which is necessary for the purpose of deciding a matter in controversy and, as the question, whether it was the Federation of Pakistan or the Indian Dominion that is liable, was a matter in controversy, the Court acted illegally and with material irregularity in disallowing the amendment. Order G, rule 17 however, relates to a matter in the parties, and unless a party is already on the record, the question of a matter being in con troversy between that party and the plaintiff does not arise. Although a plaint is amended when a party is added, the appro priate provision for an addition or substitution of a party would be, a party from any special enactment, Order 1, rule 10 of the Code of Civil Procedure. Therefore, the mere necessity of the addition of the party could Lot be brought within the words "matters in controversy between the parties". There is another difficulty in the way of the petitioner. A Court has jurisdiction to allow amendment only as long as a suit is pending between the parties. When suit is terminated by a decree the jurisdiction of the Court tee deal further with the matters in issue terminates, unless and until that decree is, in the first instance, got rid of, or unless it could be said that by passing of the decree the whole of the matters in issue have riot been adjudicated upon or at least not adjudicated upon against a particular party. Before the petitioner succeeds, therefore, lie must either show that the decree against the Indian Dominion can be legally set aside or there is yet between the parties to the suit something which is not decided.

Learned counsel argues on this point and this in fact is else his second and independent point that by virtue of section 12 of the Indian Independence (Rights, Property and Liabilities) Order, 1947 the Federation of Pakistan became automatically substituted in place of the Governor‑General-in‑Council and, therefore, the suit not having yet been decided as against the Federation of Pakistan, the Federation of Pakistan was a party already and the application for amend went should have been regarded as an application to the Court to proceed against a defendant with respect to whom as yet no final judgment had been delivered. He relies on the wordy "shall be deemed to be substituted occurring in section 12 of the said order. There is an apparent flaw in the argument. There is already an order passed by the trial Court substituting the Indian Dominion in place of the Governor‑General -in‑Council, and as long as that order stood, the trial Court could not regard the Federation of Pakistan a party to the suit. In this case the order is a short one merely substituting the Indian Dominion. Suppose the learned Subordinate Judge had, after hearing the parties, passed a considered order holding that it was the Indian Dominion and not the Federation of Pakistan which was to be substituted. could the plaintiff even then come forward with an application that, as the Federation of Pakistan was deemed substituted, the suit be proceeded with against it In regard the order dated 28th July 1948 as having by implication decided that out of the two Dominions it was the Indian Dominion which was to be substituted. In this view the question as to who was to be substituted has become res judicata. Orders passed by a Court at one stage of the proceedings are binding in all subsequent proceedings till they are, in a legal mariner, set aside. The lower Court was, therefore, really bound by its own previous order and could not, except by means of a review, have avoided the effect of that order and impleaded the Federation of Pakistan as prayed for.

It will be apparent that from thin point of view no fault can be found with the order which is the subject of this revision r petition. However, I would be prepared to regard this appli cation even as an application for revision directed against the order dated 28th July 1948 if that could really help the petitioner. Of course, the petitioner can say, (if that order be really wrong), that in substituting the Indian Dominion, while it was the Federation of Pakistan that should have been impleaded, the lower Court acted illegally in the exercise of jurisdiction. But for that I will have to go into the merits of that order to find out as to whether the liability in fact was that of the Federation of Pakistan. So far as the declaration as to the ultra vires and void nature of the order of removal is concerned, it is conceded that that relief really has become infructuous. I have only to consider whether for the arrears of salary the liability is that of the Federation of Pakistan. Learned counsel relies on sec tion 8 of the Indian Independence (Right, Property and Liabilities) Order 1947, and says that the present case is covered by sub section (1) (a). Sub‑section (1) reads as follows:‑

"8 (1) Any contract made on behalf of the Governor‑General- in‑Council before the appointed day shall, as from that day,‑

(a) If the contract is for purposes which as from that day are exclusively purposes of the Dominion of Pakistan be deemed to have been made on behalf of the Dominion of Pakistan, instead of the Governor‑General‑in‑Council; and

(b) in any other case, be deemed to have been made on 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, by rights or liabilities of the Dominion of Pakistan or the Dominion of India, as the case may be."

Learned counsel argues that the purposes for which the contract with petitioner had been entered into are now exclusively the purposes of Pakistan, and, therefore, the liability is that of the Federation of Pakistan. The only reason he advanced for the purposes being of the Federation of Pakistan is that throughout the period of his service the petitioner was serving at the places which are now in Pakistan. I cannot accede to this argument. The purpose for which the servants of the N. W. R. of the pre‑Partition period had been engaged was for the benefit of not a part but the whole of the N. W. R. which covered not only the area which is now in Pakistan but the area which is now a part of the Indian Dominion. The condi tion in section 8 (1) (a) is that the purposes should be exclusively those of Pakistan. The effect of the clause is that even if there was the slightest intermingling of purposes, if the slightest benefit of the contract was going to that territory, which is now India, the liability would be that of the Indian Dominion. The benefit of the service of any servant of the N. W. R. before the Partition was going to the whole of the N. W. R. and it is the Indian Dominion which is to pay the arrears of salary. If I were to accept the argument of the learned counsel for the petitioner that merely because the peti tioner having been throughout in territories which are now in Pakistan it is the Federation of Pakistan which is liable, the mere accident of a person of being posted at a particular place would create liability for the Federation of Pakistan although the purpose of his service was one which affected the whole of the pre‑Partition India. The whole of the income from the N. W. R. was going to the Central Indian Govern ment in pre‑partition period and it would be a strange situation that while they should realise the whole of the income the expenses which remained unpaid should be a burden on the Federation of Pakistan. Suppose all persons, who ha l been serving on the N. W. R, during the pre‑Partition period in territories which are now in Pakistan, had not been paid their salary for, say, ten years before the partition, would the Federation of Pakistan be liable for the whole of the arrears of salary, while the benefit of their service was going to the Central Government which was receiving the whole of the income. If we analyse the purposes for which servants during pre‑Partition India were engaged in the N. W. R. that would be (1) maintenance of a railway over the whole of the area which constituted the N. W. R. and (2) revenues for the Central Govern ment. Neither of these purposes is obviously exclusively for the purposes of the Pakistan Dominion.

The order dated the 28th July 1948 being itself a valid order, the application for amendment was really without force. This revision petition is dismissed but without any orders as to costs.

A. H. Petition dismissed.

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