3 1 of the order and that made the respondents liable for theft claim.
the eastern steam navigation companypany had a ship called azadi.
soon after the azadi reached karachi the partition of india into the two dominions of india and pakistan took place on august 15 1947 and that led to a good deal of correspondence between the parties which shows that the appellants were sent from pillar to post from one authority to the other but ultimately their efforts to recover the amount due under the companytract failed.
the appellants companytention that the relevant clause of the order justified the claim was also.
as representing the e.s.n.
the appellants case was that the said companymunique represented agreement between the two dominions and so it fell within art.
it was alleged that the suit was barred by limitation.
8 1 a of the order.
against the respondent the union of india to recover a sum of rs.
for the trial of an issue framed by the companyrt of appeal.
subsequently the eastern steam navigation companypany went into liquidation and the bombay steam navigation companypany merged in the scindia steam navigation companypany.
in the plaint as it was originally filed freight bad been claimed on the said basis but it appears that before the learned trial judge this claim was given up and in companysequence the amount claimed was reduced from rs.
before the partition the numberth western railway though its head office was at lahore was running its trains through an area of which one part is number in india and the other part in pakistan.
8 1 a of the order the decree passed by the trialcourt was reversed and the appellants suit was dismissed with costs.
in the result the appellants claim for rs.
and the eastern steam navigation company ltd.
on the principal issue between the parties which related to the applicability of art.
the issue thus remanded was whether the goods companyered by the three sale numberes were lying in the territory companystituting the dominion of pakistan by the independence act of august 15 1947.
b. gajendragadkar j. this appeal by a certificate issued by the bombay high companyrt under art.
denied this claim.
on the merits the respondents case was that the appellants claim was number companyered by the press companymunique and that the press communique companyld number afford the appellants a valid.
8 1 b of the order the appeal companyrt differed from.
the appeal court agreed with the trial judge is rejecting the alternative basis on which the appellants had wader the claim.
appeal from the judgment and decree dated march 22 1956 of the bombay high companyrt in appeal number 60 of 1955.
by the plaintiffs therein who were residents of baroda by three sale numberes executed on march 10 1947.
the plea of limitation raised by the respondent was rejected by the learned judge an the ground that the claim made by the appellants was saved by acknumberledgment made by the respondent.
the appellants then applied for and obtained a certificate from the high companyrt and with the said certi ficate they have companye to this companyrt with the present appeal.
after the partition the said railway was divided between the two dominions.
the indian section of the railway thereafter came to be knumbern.
the appeal companyrt took the view that both these pleas were pleas of fact which companyld number be allowed to be raised for the first time in the appeal.
a.i.r.
in 1947 there was an agreement between the b.s.n.
the decree was challenged by the respondent by its appeal before the companyrt of in the said high companyrt.
42449/ was referred to the companymissioner for taking accounts in order to ascertain the amounts due to the appellants having regard to the team of the companytract.
8 1 b of the indian independence rights property and liabilities order 1947 hereafter called the order .
das j. a.i.r.
this companytention has been rejected by the learned trial judge.
a further sum of rs.
were exclusively purposes of the dominion of pakistan and so the respondent was number liable under it.
two additional grounds were sought to be raised before the appeal companyrt on behalf of the appellants in support of the decree passed by the trial court.
on july 23 1947 636 tons of timber were shipped by the steamer azadi which reached karachi on july 27 1947.
civil appellate jurisdiction civil appeal number 10 of 1959.
with the findings recorded by the learned judge on the other issues we are number companycerned in the present appeal.
certain cross objections had beenfiled by the appellants claiming additional relief against the respondent but since the appellants failed on the principal question cross objections were a so dismissed with costs.
one of the terms of the companytract was that the goods the subject matter of the companytract had to be stamped.
8 1 b of the order to the appellants claim the learned judge found that the appellants claim attracted the provisions of the said article.
on the one hand and the conservator of forests numberth kanara representing the numberth western railway on the other for the carriage of logs of teakwood timber from the forests in kanara first by rail to marmagoa and then by a steamer belonging to the e.s.n.
purshottam trikamdas s. n. andley j. b. dadachanji ravinder narain and o. c. mathur for the appellants.
in 1947 the bombay steam navigation companypany limited acting on behalf of the eastern steam navigation companypany entered into an agreement with the companyservator of forests numberth kanara acting on behalf of the numberthwestern railway for the carriage of logo of teakwood from the forests of kanara by rail and from marmagoa by steam ship belonging to the eastern steam navigation companypany to karachi.
the territory of india came to be knumbern as eastern punjab railway.
44449/ .
the 1earned judge then companysidered the alternative claim made by the appellants on the press communique in question and came to the companyclusion that the said companymunique did number afford a valid basis for the claim.
hence the present appeal.
as for that part of the numberth western railway which came to the domi nion of india and become the eastern punjab railway.
the said two companypanies filed o. s. number 232 of 1951 in the high companyrt of judicature at bombay on its ordinary original civil jurisdiction against the union of india for recovering a sum of rs.
on these pleadings eleven substantive issues were framed by the learned trial judge.
pursuant to this agreement 636 tons of timber were shipped by the steamer azadi which left marmagoa on july 23 1947.
august 31.
justice companyajee who heard the suit decreed the plaintiffs claim.
3 1 of the order.
according to the finding of the appeal companyrt the companytract was for exclusively which as from the relevant date.
445 4 0 was also claimed for storage charges of the said logs at marmagoa.
as framed was number maintainable and that the plaint did number disclose a cause of action.
it was number an agreement between the two dominions and so it could number attract the provisions of art.
the trial judge and held that the suit companytract fell within art.
it was urged that by its companyduct the respondent was estopped from disputing the validity of the appellants claim and that there was numberatio which made the respondent liable.
defendant the union of india.
on this view the learned trial judge reached the companyclusion that the suit companytract cannumber be said to be exclusively for the purposes of the dominion of pakistan an required by art.
37000/ and odd had been paid by the plaintiff firm of chinubhai jeshingbai to the.
it is with this claim that the appellant went to trial against the respondent.
their claim against the respondent is based on art.
in companying to this companyclusion the learned judge numberdoubt numbericed the fact that on august 15 1947 the numberth western railway which originally ran through the provinces which subsequently because part of pakistan as well as through some of the provinces which formed part of india was divided between the dominion of india and pakistan into two sections and the section that was allotted to the share of pakistan companytinued to be knumbern as numberth western railway while the extention of the railway in.
appeal companyrt did number think it necessary to companysider the question of limitation.
on the question about the applicability of art.
from marmagoa to karachi.
this latter claim was given up at the time of the hearing of the suit.
in that case the firm of chinubhai jeshingbai was doing business at baroda by three sale numberes executed ox march 10 1947 it had purchased from the government of india cer tain quantities of long cloth which were lying at the ordinance parachute factory at lahore under the said sale numberes rs.
8 1 b .
the plaintiff thus failed to secure the performance of the companytract or refund of the money paid by it in respect of the said contract either from the government of india or from the government of pakistan and so it filed the suit in question for recovery of the amount.
had a ship called azadi.
in the alternative the same amount is claimed on the footing of a press companymunique alleged to have been issued by the respondent on may 22 1948.
owing to the disturbances caused by serious companymunal riots in lahore in august 1947 the goods companyld number be stamped and remained unstamped even after partition.
cause of action.
according to the learned judge if the timber that was carried to karanchi was for the purposes of numberth western railway as a whole it was obviously at the appointed the 15th of august 1947 which is the appointed date for the purpose both of that part of the numberth western railway which went to the dominion of pakistan as well.
the b.s.n.
hereafter called the e.s.n.
approved by this companyrt is the judgment of the bombay high court in the union of india v. chinubhai jeshingbai 1 .
8 1 a and so it must be deemed to be a companytract falling under art.
on this view the.
on august 15 1947 there was a partition of india into two dominions india and pakistan.
as the eastern punjab railway and the pakistan section retained its original name.
140 a 3 1957 s.c.
the judgments of the companyrt were delivered.
as a result of the companyclusion that the suit companytract fell under art.
denied.
that is why the appellants had to file the present suit against the respondent.
the respondent.
c. setalvad attorney general for india nanak chand and t. m. sen for the respondent.
133 1 a of the constitution arises out of a suit initially filed on the original side of the bombay high companyrt suit number 232 of 1951 by the bombay steam navigation company limited hereafter called the b.s.n.
64699 6 0 by way of charges for carriage of logs of teakwood timber from the forests of kanara to karachi.
