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Appeal from Original Decree No. 62 of 1949, decided on 24th April 1953 against the decree of Mr. N. Ahmed, Subordinate Judge, 1st Court, Sylhet, dated the 28th February 1949, in Money Suit No. 35 of 1947.

Article 8, Clause 4‑Interpretation.

Under Article 8, clause 4 of the Indian Independence (Rights, Properties and Liabilities) Order 1947, the mere proof of the existence of the liabilities on the appointed day will not satisfy the requirement of clause 4, but in order to bring a case within the purview of that clause the plaintiff will have to go a step further and prove that the contract was for the purposes which as from the appointed day i.e., 15th August 1947, were exclusively for the purposes of a territory, now forming part of the new dominion in whose territory the suit is filed.

Union of India v. Lokenath Saha 55 C W N 195, Pro vince of West Bengal v. Midnapur Zamindari Co., Ltd., 54 C W N 677 and Siri Iswar Madan Gopal Jieu v. Province of West Bengal 54 C W N 807 ref.

S. 66 Proviso 1‑Application.

Proviso 1 to section 66 of the Evidence Act runs to the effect that notice to produce the original document shall not be required in order to render secondary evi dence admissible when the document to be proved is itself a notice.

Basant Kumar Das and Jnanabrata Roy for Appellants.

M. Asir, Government Pleader and Sayed A. B. Mahmud Hussain, Assistant Government Pleader for Respondent No. 2.

‑This appeal arises out of Money Suit No. 35 of 1947 of the Court of the Subordinate Judge, lst Court, Sylhet. The suit was by one Haripada Roy Choudhury and another, two businessmen of Habiganj against the Province of Assam and Province of East Bengal, defendants Nos. 1 and 2, respectively, for recovery of Rs. 7,000, Rs. 6,325 as rebate on account of costs of carriage Rs. 675 as damage. Facts relevant for the purpose of this appeal may briefly be put thus:

In 1944 the S. D. O. of Habiganj, then in‑charge of supply, on behalf of Government of Assam appointed the plaintiffs wholesale agents and directed them to take delivery of goods from Surma Valley Supply Agency Ltd., procuring agent of the Government after depositing the requisite price for each consignment in the Sub‑Treasury at Habiganj. The agreement was that the plaintiff would carry goods from the procuring agents' godowns at Habiganj and Azmiriganj to Madhabpur for distribution among the retailers of that locality and would get rebate at the rate of Rs. 1‑11‑0 per maund on account of carrying costs. Pursuant to the agreement the plaintiffs carried 7,572 maunds 4 chataks of goods during the period from April to November 1944. Subsequently the Government by a letter, dated the 4th October 1944, reduced the rate of rebate from Rs.1‑11‑0 to 8 annas and directed the plaintiffs to submit a fresh bill for the said period, i.e., from April to November 1944. As directed a fresh bill was submitted, but it was done under protest. Though aggrieved by the reduction of rate, the plaintiffs did not resale from the contract but went on carrying goods as before and in fact carried 2,581 maunds 30 seers from the aforesaid godowns during the period from December, 1944 to February 1945, at the reduced rate of 8 annas per maund under protest. Subsequently on the representations made by the plaintiffs and other wholesale agents of the Government the rate was revised and fixed at 12 annas per maund with retrospective effect.

On calculation of the rebate at the revised rate the total due came up to Rs. 6,325 and the plaintiffs were entitled to this amount besides sum of Rs. 675 on account of damage. There was demand for the amount but this was not complied with, whereupon the present action was brought after giving notice to the Province of Assam under section 80 of the Code of Civil Procedure.

After the service of notice under section 80 of the Civil Procedure Code, Sylhet came to form part of the Province of East Bengal, but the plaintiffs were not aware if any agreement had been arrived at between the two Dominions about the prepartition liabilities. Accordingly they impleaded the Province of East Bengal too. Only defen dant No. 2 contested the suit. The other defendant did not enter appearance though duly summoned.

The Province of East Bengal denied the liabilities and further contended that no notice under section 80 of the Code of Civil Procedure having been served on her, the suit must fail against her.

The learned Subordinate judge found that plaintiffs were entitled to Rs. 6,325 as rebate with damage at 6 per cent. per maund but at the same time dismissed the suit on the finding that the plaintiffs failed to prove service of notice under section 80 upon the defendants.

Against the order of dismissal this appeal has been preferred, the appellants being the plaintiffs. Only point urged is that the learned trial judge was not justified in holding that there was no service of notice under section 80 upon the Province of Assam.

The trial Court's finding that the plaintiffs were entitled to Rs. 6,325 with damages at 6 per cent. per maund not assailed before us. But that was not the solitary point that came up before the learned Subordinate judge decision. He as appears from the record was also invited to give his decision on the question whether by virtue of clause 4 of Article 8 of Indian Independence (Right, Properties and Liabilities) Order, 1947, liabilities of the Province of Assam have shifted on the Province of East Bengal; but the learned judge side‑tracked this vital point and dismissed the suit on the finding that there was no proof of the service of notice under section 80 of the Code of Civil Procedure. At the opening of the appeal it was made clear by the learned Advocate for the appellants that the appellants were entitled to relief against the Province of East Bengal under Article 4 of the Indian Independence (Rights, Properties and Liabilities) Order, 1947, but this stand was not seriously taken notice of by the learned Advocate appearing for the Province of East Bengal till my learned brother drew the attention of the learned Advocates for both the parties to the decision in the cases of Union of India v. Lokenath Shah (55 C W N 195), and Province of West Bengal v. Midnapore Zamindari Company, Limited (54 C W N 677), and Sree Iswar Madan Gopal Jieu v. Province of West Bengal (54 C W N 807) and invited an argument on the scope of Article 8, clause 4. Following the track indicated by my learned brother the learned Advocates for both the parties after getting them selves prepared came up with two views, one antagonistic to the other. Mr. Das, the learned Advocate for the appellant contends that the contract having been entered into on behalf of the Province of Assam exclusively for the purpose of supplying ration to a territory, now forming part of the Province of East Bengal as a result of refe rendum, the liabilities which the Province of Assam incurred under the contract though entered into prior to partition shall be deemed to the liabilities of the Province of East Bengal by virtue of clause 4 of Article 8. Mr. Asir, the learned Advocate for the respondent contends that the contract having had no existence on the appointed day, the liabilities arising out of such contract could not be said to have shifted on the Province of East Bengal, by virtue of operation of the Article relied on by Mr. Das Besides ‑the two cases referred to above he relies on one other case, namely, the case of Province of East Bengal v. Banamali Sen and others (54 C W N 322). In deciding the point, it is necessary that we should first turn to clause 4 of Article 8 of the Order which runs as follows:

" Any contract made before the appointed day on behalf of the Province of Assam, being a contract for purpose which, as from that day, are exclusively purposes of the Province of East Bengal, shall, as from that day, be deemed to have been made on behalf of the Province of East Bengal instead of the Province of Assam, and all rights and liabilities which have accrued or may accrue under the contract shall, to the extent to which they would have been rights and liabilities of the Pro vince of Assam, be rights or liabilities of the Province of East Bengal".

As the clause stands, the main question that calls for consideration is whether, under the Order, the Province of East Bengal or the Province of Assam is to be held liable for the alleged supply of ration. The question is intricate and its intricacy again has been increased by the skilful braiding of words and phrases of the Article. Strictly speaking, the Article has in it depth of expressiveness which cannot be fathomed without repeated read ings with deep application. Such readings, if carried out with reference to the facts of the case, will give the following. result : The Province of East Bengal will be liable under the provisions of Article 8 (4) if the contract entered into before the appointed day on behalf of Province of Assam, was exclusively for the purpose of the Province of East Bengal from that day, i.e., from the appointed day. But we are unable to see how it can be said that the contract for carriage of ration entered into in 1944 and performed before the Dominion of Pakistan came into existence, can be held as from the " appointed day " to be one that is for purposes which from that day are exclusively the purposes of East Bengal, a Province forming a part of the Dominion of Pakistan. Mr. Das is not prepared to accept this interpretation. He seeks to maintain that according to clause 4 of the Article, a person is entitled to proceed against the Province of East Bengal for the liabilities arising out of a contract entered into on behalf of the Province of Assam before the appointed day, provided that they were not time barred but were subsisting on the appointed day. The argument apparently has the look of soundness but if one goes deep into the matter, he will find little force in it. Mere proof of the existence of the liabilities on the appointed day will not satisfy the requirement of the clause 4, but in order to bring a case within the purview of that clause the plaintiffs will have to go a step further and prove that the contract was for the purposes which as from the appointed day were exclusively for the purposes of a territory, now forming part of the Province of East Bengal. This view will find support in the decision of the two cases referred to above, namely, (1) Union of India v. Loknath Saha and (2) Province of West Bengal v. Midnapur Zamindari Co., Ltd. In the case of Union of India, one Loknath Saha as plaintiff brought a suit against the Union of India claiming compensation for short delivery of goods despatched in March 1947, i.e., before the appointed day' from one station for delivery at another on the then Bengal Assam Railway. The stations admittedly are now both within Pakistan. The question that came up for decision in that case was whether under the Indian Independence (Rights, Properties and Liabilities) Order, 1947 the Dominion of Pakistan or the Dominion of India would be held liable for the alleged short delivery and it was held as follows:

"Article 8 (a) of the Indian Independence (Rights, Properties and Liabilities) Order, 1947, does not cover the particular contract in question in this suit. The liability on the contract must be as provided in the residual provisions of Article 8 (1) (b), namely, the liability of the Dominion of India.

" The Dominion of Pakistan will be liable under the provisions of Article (8) (1) (a) if (as from they appointed day) the contract is for purposes which as from that day are exclusively the purposes of the Dominion of Pakistan".

The same view was taken in the two Civil Revision cases, namely, (1) Province of West Bengal v. Midnapur Zamindari Company and (2) Sree Iswar Madan Gopal Jieu v. Province of West Bengal, the former arising out of S. C. C. Suit No. 24 of 1948 of the Court of the Subordinate judge, Berhampur, and the latter arising out of a land acquisition proceeding. The S. C. C. Suit was brought by the opposite party Midnapur Zamindari Company against the petitioner (Province of West Bengal) for re covery of rent of a certain house for the period, April 1946 to August, 1946, at the rate of Rs. 55 per month and also for the period, April and May, 1948, at the same rate together with damages amounting to Rs. 34‑6‑0. The Pro vince of West Bengal admitted liability for the rent failing due in April and May 1948, and the whole contest between the parties was confined to the liability for rent for the period from April to August 1946. The learned Small Cause Court judge held that the petitioner was liable for rent for the period from April 1946 to August 1946; with damage. The matter then came up before a Division Bench of the Calcutta High Court before which on behalf of the petitioner it was contended that the house which was let out for ‑the purpose of a Hospital having served not only persons resident in the Murshidaoad District but also persons resident in adjoining Districts which fell to the Eastern Pakistan on Partition, the East Bengal should be held liable for rent for the prepartition period. The Division Bench, however, overruled the contention with the following observations

" The words 'any other financial obligation of a Province' in Article 9 of the Indian Independence (Rights, Properties and Liabilities) Order, 1947, must be considered as ejusdem generis with the words 'loans and guarantees' in the aforesaid Article. What this clause covers are loan, guarantees and other obligations of a like nature and it was not intended to cover purely contractual obligations ; otherwise Article 8 of the Indian Independence (Rights, Properties and Liabilities) Order, 1947, becomes wholly worthless.

" Accordingly, an obligation to payment in respect of house let out for a Hospital which did not serve any area now failing within Eastern Pakistan on Partition, is a purely, contractual obligation which is covered by Article 8 of the Indian Independence (Rights, Properties and Liabilities) Order, 1947, and as the contract was for the purpose which as from the Independence day was exclusively the purpose of West Bengal the Province of West Bengal was liable for rent which accrued due under the contract before Partition

In that case the territory, namely, the District of Murshidabad which the Hospital served formed part of West Bengal before Partition and even after the Partition it remained part of the same Province. The lease was taken before the Partition and it was subsisting on the appointed day. In the present case, however, as already pointed out, the territory to which the ration was supplied, formerly appertained to the Province of Assam but on Partition it was allotted to Province of East Bengal. Though the facts of the two cases slightly differ, the principle laid down in the aforesaid case will govern this case too, both the cases being of contractual obligation. To be more precise, in order to fix 'the liabilities on the Province of East Bengal the following factum will have to be looked into: (1) whether the contract was entered into before 15th August 1947 ; (2) whether it was made on behalf of Province of Assam ; (3) whether it was made for purposes which as from the appointed day, i.e., from the 15th August 1947, was exclu sively for the purpose of the Province of East Bengal. If a case satisfies these conditions, the liabilities which have accrued or will accrue under such contract will rest on the Province to which the territory in question has been allotted, namely, the Province of East Bengal. In such a case it will be immaterial whether the liabilities accrued before or after the Partition. The same view was taken in the case of Sree Iswar Madan Gopal Jieu. As the present case does not satisfy the 3rd test referred to above, the Province of East Bengal cannot be saddled with the liabilities in question on the strength of Article 8 (4) of the Indian Independence (Rights, Properties and Liabilities) Order, 1947. The case relied on by‑ Mr. Asir, namely, The Province of East Bengal v. Banamali Sen and others, was a case under Article 7 (2) of the Indian Independence (Rights, Properties and Liabilities) Order, 1947, but that Article having nothing in common with the Article 8 (4), the principle laid down in that case cannot be made foundation for the decision of this case.

Next comes the question of notice. The claim against the Province of East Bengal having failed on merits it will be needless to go into the question of service of notice upon her specially when it is admitted that she was not given any notice under section 80, Civil P. C. The same thing, however, cannot be said of the Province of Assam. Though it has been established that the Province of Assam is liable for the debt involved in the case, still there can be any decree against her without proof of service of notice under section 80, Civil P. C. upon her. An examination of the records discloses that a notice of the institution of the suit was given to her and it was accepted by one of her lawyer agents. By such acceptance she submitted to the jurisdic tion of the Subordinate judge but still she did not come forward to oppose the plaintiffs claim or deny the service of notice under section 80, Civil P. C. though in the plaint there was averment of service of notice upon her The Province of East Bengal too did not make any attempt to traverse the averment in the plaint regarding service of notice upon defendant No. 1 either in the written statement or at the trial. The plaintiffs nevertheless led evidence both oral and documentary. The oral evidence consisted of the evidence of one Ramesh Chandra Choudhury, an Officer of the plaintiffs and the documentary evidence consisted of postal acknowledgment receipt, Exhibit 4. Ramesh deposed to the effect that notice under section 80, Civil P. C had been served on the Province of Assam but on this point there was no cross‑examination at all. The cross‑examina tion was directed only against service of notice upon defendant No. 2 but such cross‑examination was meaningless when plaintiffs did never make any attempt at any stage of the suit to establish that they had given notice to defendant No. 2. The postal acknowledgment receipt shows, that notice was addressed to the Deputy Commissioner, Sylhet, and received by the latter on the 5th of July 1947. It is true that receipt did not indicate that it related to a notice under section 80, Civil P. C. but this vacuum was replenished by oral testimony of the P. W. 1. Ramesh Chandra Choudhury. The learned trial judge refused to accept the plaintiff's theory of service of notice on the ground that copy of the notice alleged to have been served was not put in. In the plaint date of service of notice under section 80 was given as 5th July 1947, as noted in the acknowledgment receipt. Ramesh's evidence also was to the same effect. His evidence on the point under review went unchallenged, yet the learned Subordinate judge im properly refused to accept the theory of service. The learned Advocate for the respondent contends that oral evidence of contents of a document not being admissible in evidence, the learned Subordinate judge rightly com mented that the plaintiffs ought to have proved the contents of the notice by producing a copy after calling for the original from the party in possession thereof. It is true that secondary evidence of contents of a written document cannot be given unless it is shown that the original is in possession or power of the person against whom the document is sought to be proved or any person out of reach of, or not subject to the process of the Court, or of any person legally bound to produce it and when, after the notice mentioned in section 66 such person does not produce it, but the learned Advocate while advancing the argument lost sight of the fact that this case falls within the excep tion provided in the. Proviso 1 to section 66 of the Evidence Act. The proviso runs to the effect that notice to produce the original document shall not be required in order to render secondary evidence admissible when the document to be proved is itself a notice. The phrase is itself a notice " expresses with sufficient accuracy the true intent and meaning of the proviso and in our opinion, is of wide import and permits a liberal interpretation including a notice of suit. So the contention that secondary evidence could not be led without calling for the original does not hold good so far as the notice is concerned. The factum of delivery of notice irrespective of its terms can be proved without accounting for the written notice and this was proved by P. W. Ramesh. The defendants by their conduct, lulled the plaintiffs into the belief that the fact of service of notice upon the Province of Assam would not be disputed, and in fact, as already pointed out, it was not disputed at any stage of the suit. Whatever evidence was led by the plaintiffs could not therefore be held to be insufficient for the purpose of maintaining an action against the defendant No. 1. If the trial Court required proof as to the contents of notice to satisfy itself on the question whether the requirements of section 80 regarding cause of action, the name, description and the place of residence of the plaintiff and the relief sought for were complied with, it ought to have given an opportunity to the plaintiff to furnish a copy of the notice instead of dismissing the suit outright on that ground. Yet there is another aspect. The primary docu ment, i.e., the original notice having been delivered to the Deputy Commissioner it should be presumed that after the major portion of Sylhet including Habiganj, Ajmiriganj and Madhabpur and headquarters of the District had been transferred to the Province of East Bengal; all the pre partition papers relating to transferred portion of the District passed to the custody of East Pakistan Government, specially when there is no proof or suggestion that though the Province of East Pakistan took over the headquarters station of the Sylhet District and other important stations of the same District including Habiganj, Ajmiriganj and Madhabpur it did not get all the relevant papers inspite of best search. In the absence of any such proof we must hold that the original notice, if produced, would have proved that it satisfied the requirements of section 80. On a review of the above facts and circumstances we are of opinion that the learned Subordinate judge was not justified in holding that the evidence adduced did not justify the inference that there was proper service of notice under section 80, Civil P. C. upon the Province of Assam. The net result of the above finding, therefore, is that the appeal succeeds against respondent No. 1 but fails against the respondent No. 2 and is accordingly allowed against the former and dismissed against the latter with costs and order of dismissal so far as defendant No. 1, Province of Assam is concerned, is set aside and the suit decreed against her with costs.

As prayed for certificate under section 205 of Govern ment of India Act as adapted in Pakistan is granted as it involves substantial question of law as to interpretation of the. Indian Independence (Rights,' Properties and Liabilities) Order, 1947.

‑I agree.

K. B. A. Appeal allowed in part.

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