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Suit No. 116 of 1961, decided on 12th February 1962.

--‑"Legal right"‑Means right recognized by law and capable of being enforced by power of Staff, not necessarily in Court of law‑Conditions to be conformed for ousting jurisdiction of Courts other than Supreme Court‑Government of India Act, 1935, S. 204‑Civil Procedure Code (V of 1908), O. VII, r. 10.

United Provinces v. Governor‑General A I R 1939 F C 58 rel.

Iqbal Ahmad for Plaintiff.

Tufail Ali Abdur Rehman, Attorney‑General for Defendant No. 1.

Asif Zahidie for Defendant No. 2.

This is an application under Order VII, rules 10 and 11, read with section 151, C. P. C. with a prayer that this Court may either reject the plaint or return it to be presented to the proper Court.

The necessary facts for the disposal of this application are very simple. Government of East Pakistan has filed a suit against the Federation of Pakistan through the Secretary, Ministry of Communications and the General Manager Port (Railway) Chittagong, for the recovery of Rs. 25,081‑11‑0, as damages. The plaintiff's case, as disclosed in the plaint is that certain bags of rice were sent from Karachi to Chittagong. The consignee of the bags was the plaintiff. There was short delivery of the bags, on account of which the plaintiff suffered s loss of Rs. 25,081‑11‑0.

Mr. Tufail, the learned Attorney‑General for the Federation of Pakistan contended that under Art. 156 of the late Constitution, the Supreme Court will, to the exclusion of this Court, have jurisdiction to try this suit. In order to appreciate the contention of the learned Attorney‑General, it would be useful to reproduce Art. 156 of the late Constitution, which runs as under:

"(1) Subject to the provisions of the Constitution, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between‑--

(a) the Federal Government and the Government of one or both Provinces ; or

(b) the Federal Government and the Government of a Province on the one side and the Government of the other Province on the other ; or

(c) the Governments of the Provinces,

if and in so far as the dispute involves‑----

(i) any question, whether of law or of fact, on which the existence or extent of a legal right depends ; or

(ii) any question as to the interpretation of the Constitution.

(2) The Supreme Court in the exercise of its original jurisdiction shall not pronounce any judgment other than a declaratory judgment."

An analysis of this provision would show that in order to bar the jurisdiction of this Court, two conditions must co‑exist. In the first place, the suit must be between parties as disclosed under clauses (a), (b) and (c) of Art. 156 (1). In the second place, if the suit is between parties as disclosed in clauses (a), (b) and (c), the dispute must involve any question, whether of law or of fact, on which the existence or extent of a legal right depends; or any question as to the interpretation of the Constitution. So far as the first condition is concerned, it has been conceded by the learned counsel for the plaintiff that it does exist. Mr. Iqbal, learned counsel for the plaintiff, however, contended that there is no question of any legal right to be deter mined in this case. The learned Attorney‑General contended before me that the Federation disputes the right of the plaintiff to claim any damage from the Federation. He contended that even if it be conceded that there is shortage of supply of the bags to the consignee, the Federation of Pakistan is not legally liable for the loss so incurred by the plaintiff. As to what is a legal right, the learned Attorney‑General relied upon United Provinces v. Governor‑General (AIR 1939 F C 58.). In that case, their Lordships of the Federal Court of India were interpreting section 204 of the Government of India Act, the relevant portion of which is in the same language as Art. 156 of our late Constitution. It was held in that case that the term legal right' obviously meant a right recognized by law and capable of being enforced by the power of the State, but not necessarily in a Court of law. It is a right of a party recognised and protected by a rule of law, the violation of which would be a legal wrong done to his interest and respect for which is a legal duty, even though no action may actually lie. Keeping in view this explanation of legal right, Mr. Tufail Ali, the learned Attorney‑General contended that there is no right in the plaintiff to recover damages from the Federation of Pakistan. I am of the view that the question as raised by Mr. Tufail Ali is covered by Art. 156 of the late Constitution.

Mr. Iqbal Ahmad, the learned Advocate for the plaintiff, very strenuously contended that as the: Supreme Court in the exercise of its original jurisdiction cannot pronounce any judgment other than a declaratory judgment, the present suit cannot lie before the Supreme Court. In my opinion, a distinction must be made between the conditions which have to be considered in order to oust the jurisdiction of this Court and the power of the Supreme Court in respect of the form of the judgment. I have already, mentioned that there are only two conditions which must be conformed before the jurisdiction of this Court can be barred, namely:

(i) that the suit must be between the Federation of Pakistan and the Government of one or both the Provinces ; and

(ii) the dispute must involve any question, whether of law or of fact, on which the existence or extent of a legal right depends; or any question as to the interpretation of the Constitution.

I am of the opinion that these two conditions do exist in the present case. Mr. Asif Zahidie, learned counsel for defendant No. 2, supports the contention of the learned Attorney‑General.

For the reasons given above, let the plaint be returned to the plaintiff to be presented to the proper Court.

K. B. A

Case remanded.

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