Province of East Bengal v. State of Tripura — 1948 DIGILAW 243 (CAL)

JUDGMENT Chakravartti, J. - This Rule involves an intriguing question of law arising under certain orders made under the Indian Independence Act. The facts are as follows:-- In 1944, the Bengal Legislature passed an Act called the Bengal Agricultural Income Tax Act and thereby imposed a tax on agricultural income. Sec. 3 of the Act made the tax chargeable on the agricultural income of various classes of "persons" including "every Ruler of an Indian State." The Act was published in the Calcutta Gazette on the 30th December, 1944, but under sec. 3(3) it was to be deemed to have come into force on the 1st day of April, The Ruler of Tripura holds a zemindary, called Chakla Rosanabad Estate, situated partly in the Districts of Noakhali and Tipperah which at that time, appertained to the province of Bengal, as it then was and partly in Sylhet which appertained to the Province of Assam. Whether he holds it as his personal property or on behalf of the State of Tripura is a further question to which it is not necessary to refer here. On the 28th February, 1945, the Agricultural income tax Officer, Dacca Range, issued a notice under sec. 24 (2) of the Act to the Manager of the Chakla Rosanabad Estate, calling upon him to furnish a return of the Maharaja's total agricultural income for the previous year, derived from lands situated within the Province of Bengal. There-upon on the 12th June, 1945, the State of Tripura, suing by its Ruler, brought a suit in the Court of the First Subordinate Judge of Dacca against the Province of Bengal and the Agricultural income tax Officer, Dacca Range, praying for certain declarations and an order of injunction. The declarations asked for were (i) "that the provisions of the Bengal Agricultural income tax Act, 1944, so far as it imposes a liability to pay agricultural income tax on the Plaintiff, is ultra vires and void and that the Plaintiff is not bound by them." and (ii) "that in any case the notice served by the Agricultural income tax Officer. Dacca Range.... is void and of no effect and no assessment can be made on the basis of such notice. 2. The injunction asked for was one restraining the Defendants from taking any steps to assess the Plaintiff to agricultural income tax. 3. Dacca Range.... is void and of no effect and no assessment can be made on the basis of such notice. 2. The injunction asked for was one restraining the Defendants from taking any steps to assess the Plaintiff to agricultural income tax. 3. The Defendants entered appearance in the suit at Dacca, but before they had filed their written statements, the suit was, on an application made by the Plaintiff, transferred by this Court to the Court of the District Judge, 24-Parganas. The order of transfer was made on the 17th July, 1945. A further application made by the Advocate-General of Bengal under sec. 225 of the Government of India Act for transfer of the suit to the Original Side of this Court was rejected and the suit is now pending in the Court of the 2nd Subordinate Judge, 24-Parganas. 4. Upon the partition of Bengal effected by the Indian Independence Act, the old Province of Bengal ceased to exist and in lieu thereof, two new Provinces, viz., East Bengal and West Bengal came into existence, East Bengal becoming a part of the territories of the Dominion of Pakistan. Under the actual partition made visions of sec. 3 (3) of the Act, the whole of Chakla Rosanabad so far as it lay in the Districts of Noakhali and Tipperah, and the major part of the portion lying in Sylhet were allotted to the Province of East Bengal. West Bengal obtained part of Chakla Rosanabad at all, nor any other agricultural land belonging to the Plaintiff. 5. On the 15th August 1947, the "appointed day" under the Indian Independence Act, the suit was pending in the Court of the 2nd Subordinate Judge, 24-Parganas. Although two years had elapsed since the suit was transferred there, no written statement had been filed by either the Province of Bengal or the then Agricultural income tax Officer, Dacca Range. After the 15th August, 1947 the position was that the Province of West Bengal had no practical interest in the suit and although on one occasion it obtained further time to file a written statement none was filed within the time allowed. On the 9th December. 1947 two written statements were filed, one by the Province of East Bengal and another by the present Agricultural income tax Officer, Dacca Range. On the 9th December. 1947 two written statements were filed, one by the Province of East Bengal and another by the present Agricultural income tax Officer, Dacca Range. Each was accompanied by an application praying that the delay in filing the written statement might be condoned, inasmuch as the Petitioner had been unable to prepare and present it in time on account of the administrative changes. The application made by the Province of East Bengal stated that the Province of West Bengal was taking no interest in the suit, but it was necessary in the interest of the Province of East Bengal that the suit should be contested. The applications were considered by the Court on the 13th December, 1947 when it made an order for substitution of the Province of East Bengal for the Province of Bengal and directed the written statement filed by the Province to be accepted. The question of accepting the written statement filed by the Agricultural income tax Officer was left to be decided after the decision of an application which the Plaintiff had filed in the meantime for striking out his name. Eventually on the 7th February, 1948, the name of Defendant No. 2, "the Agricultural income tax Officer, Dacca Range" was struck out on the ground that he was only a subordinate officer and that in any event, the Plaintiff's assessment was no longer in his hands but had been transferred to the officer of the Comilla Range. 6. By its written statement the Province of East Bengal pleaded a single defence. It stated that it was appearing only to contest the jurisdiction of the Court and submitted that the Province of East Bengal being a Province of the Dominion of Pakistan, an Independent Sovereign State, the Court of the Subordinate Judge, 24-Parganas, had no jurisdiction to try any suit or grant any injunction against it. 7. The learned Subordinate Judge tried the question raised by the written statement by Way of a preliminary issue and by an order dated the 5th April, 1948, ruled against the Defendant. He held that he still had jurisdiction to try the suit by virtue of the provisions of Article 4 (1) of the Indian Independence (Legal Proceedings) Order, 1947, read with sec, 9 of the Indian Independence Act. 8. Thereafter the Province of East Bengal moved this Court and obtained the present Rule. He held that he still had jurisdiction to try the suit by virtue of the provisions of Article 4 (1) of the Indian Independence (Legal Proceedings) Order, 1947, read with sec, 9 of the Indian Independence Act. 8. Thereafter the Province of East Bengal moved this Court and obtained the present Rule. When the Rule first came up before us, we held that since the Petitioner was asserting its status of an independent foreign State and claiming not to be subject to the jurisdiction of the Courts of this Dominion it could not be heard on the Rule unless it gave sufficient security for the costs of the Opposite Party. We accordingly directed that a sum of Rs. 200 should be deposited with the Registrar of the Appellate Side as a condition precedent to the Rule being heard (52 C. W. N., Notes portion p. clxii). That order has been complied with and the Rule has now come up for hearing. 9. The question raised by the Petitioner is one of some difficulty, but having considered the relevant provisions of law, I have readied the conclusion that the view taken by the learned Subordinate Judge is not correct. 10. In the absence of any special provisions of law, the answer to the question would be plain. Although Pakistan is only a Dominion in the British Commonwealth of Nations, just as the Dominion of India is, there can be no doubt that for all practical purposes it is a sovereign State and for the purposes of the jurisdiction of Indian Courts, it is a foreign sovereign State. It cannot, therefore, be disputed that under the rule and principle of the comity of nations, a Court in India could claim no jurisdiction to try a suit against a Province of Pakistan against its will. The first question in the present case, however, is whether the general rule of international comity is excluded by certain special provisions of law on which the learned Subordinate Judge has relied and which are equally binding on both the Dominions. The first question in the present case, however, is whether the general rule of international comity is excluded by certain special provisions of law on which the learned Subordinate Judge has relied and which are equally binding on both the Dominions. It might be useful to remember that the question is not whether a Court in India would have jurisdiction to try a suit now brought against the Dominion or a Province of Pakistan, but whether on and from the 15th of August, 1947, the Court lost the jurisdiction which it undoubtedly had before that date to try the suit or whether it continues to have jurisdiction although the suit may now be one against the Province of East Bengal. 11. The provisions of law which, it is contended, confer jurisdiction on the Alipore Court are sec. 9 of the Indian Independence Act, Art. 4 of the Indian Independence (Legal Proceedings) Order and Art. 12 (2) of the Indian Independence (Rights, Property and Liabilities) Order. Their nature may first be indicated. 12. It appears that when partition of India was decided on and the Indian Independence Act enacted, it was foreseen that for some considerable time, difficulty was bound to be experienced in adjusting the rights and liabilities of the two new Dominions that were being brought into existence out of an undivided India. Some machinery for dealing with and removing these difficulties had, therefore, to be provided. Accordingly sec. 9 (1) of the Indian Independence Act, while making it the duty of the Governor-General to make suitable provision for bringing the Act into operation and dividing between the two Dominions the rights and liabilities, also made it his duty to make certain provisions of a transitional character. Accordingly sec. 9 (1) of the Indian Independence Act, while making it the duty of the Governor-General to make suitable provision for bringing the Act into operation and dividing between the two Dominions the rights and liabilities, also made it his duty to make certain provisions of a transitional character. It enjoined him to make provision (d) for removing difficulties arising in connection with the transition to the provisions of this Act * * * * (g) for authorising the continued carrying on for the time being on behalf of the two Dominions or on behalf of any two or more of the said new Provinces of services and activities previously carried on, on behalf of British India as a whole or on behalf of the former Provinces which those new Provinces represent; and * * * * (i) so far as it appears necessary or expedient in connection with any of the matters aforesaid, for varying the constitution, powers or jurisdiction of any legislature, Court or other authority in the new Dominions and creating new legislatures, Courts or other authorities therein. 13. It will he seen that the Governor-General was empowered generally to make provision for removing difficulties that might arise in the course of transition to the new constitutional order and he was authorised in particular to provide, if he thought necessary, for a temporary continuance of activities previously carried on, on behalf of a Province that had ceased to exist and to that end, to vary the powers and the jurisdiction of any Court. One of the matters which obviously required to be provided for was pending litigation concerning properties or parties which might fall in the Dominion other than the one where the Court concerned was situated. Accordingly, on the 14th August, 1947, the Governor-General promulgated an order, called the Indian Independence (Legal Proceedings) Order which, by Article 4, provided as follows:-- Notwithstanding the creation of new provinces and the transfer of certain territories from the province of Assam to the Province of East Bengal by the Indian Independence Act, 1947. Accordingly, on the 14th August, 1947, the Governor-General promulgated an order, called the Indian Independence (Legal Proceedings) Order which, by Article 4, provided as follows:-- Notwithstanding the creation of new provinces and the transfer of certain territories from the province of Assam to the Province of East Bengal by the Indian Independence Act, 1947. (1) all proceedings pending immediately before the appointed day in any Civil or Criminal Court (other than a High Court) in the Province of Bengal the Punjab or Assam shall be continued in that Court as if the said Act had not been passed, and that Court shall continue to have for the purposes of the said proceedings all the jurisdiction and powers which it had immediately before the appointed day. * * * * (3) effect shall be given within the territories of either of the two dominions, to any judgment, decree, order or sentence of any such court in the said proceedings, as if it had been passed by a court of competent jurisdiction within that Dominion. 14. Cl. (1) of this Article retains all proceedings where they were before the appointed day and makes no distinction between cases where the parties are private persons and cases where the Defendant or one of the Defendants may be the other Dominion itself or a Province thereof. Indeed, no such distinction could have been made, because the clause provides that the proceedings shall be continued as if the Indian Independence Act had not been passed which means, as if the partition of the country had not taken place. If Article 4 of the Legal Proceedings Order had been the only provision, the Plaintiff in the present case could not ask to be allowed to continue his suit against the Province of East Bengal at all, for under the provisions of cl. (1) the Province of Bengal would continue to be the Defendant. It is true that by reason of the provisions of sec. 3 (1) (a) of the Indian Independence Act, the Province of Bengal ceased to exist as from the appointed day but Article 4 (1) of the Legal Proceedings Order, taken by itself, would stem to suggest that for the purposes of pending causes where the undivided Province was a party, it would be deemed to be continuing to exist. 3 (1) (a) of the Indian Independence Act, the Province of Bengal ceased to exist as from the appointed day but Article 4 (1) of the Legal Proceedings Order, taken by itself, would stem to suggest that for the purposes of pending causes where the undivided Province was a party, it would be deemed to be continuing to exist. Whether on that basis, the provision would be workable at all, is a matter which will be discussed later. There is, however, another order, called the Indian Independence (Rights. Property and Liabilities) Order, promulgated by the Governor-General, on the same day. Art. 12 (2) of that Order is in the following terms:-- (2) where any Provinces from which property, rights, or liabilities are transferred by this Order is, immediately before the transfer, a party to legal proceedings with respect to that property, or those rights or liabilities, the province which succeeds to that property, rights or liabilities in accordance with the provisions of this order shall be deemed to be substituted for the other province as a party to those proceedings and the proceedings may continue accordingly. 15. If this provision, applies to the present case, there can be no doubt that the Province of East Bengal was substituted in the suit for the Province of Bengal by operation of law and by reason of the Legal Proceedings Order the suit shall continue in the Court of the Second Subordinate Judge, 24-Parganas, as a suit against the substituted defendant. 16. The contention advanced before us by the learned Advocate fur the petitioner, was of a two-fold character. He argued broadly that his client, being a foreign sovereign State, was not subject to the jurisdiction of the Indian Courts at all and that the immunity was absolute. With regard to the special provisions of law relied on, he submitted that assuming they applied, the position was not clear and his client wished to have a ruling on the true state of the law. With regard to the special provisions of law relied on, he submitted that assuming they applied, the position was not clear and his client wished to have a ruling on the true state of the law. For himself, he contended that Article 12 (2) of the Indian Independence (Rights, Property and Liabilities) Order did not apply to the case, because the rights and liabilities involved had not been transferred to the Province of East Bengal by that Order and if it did not, there was no other provision of law under which his client could be brought on the record of the suit and proceeded against in the Alipore Court. As has been seen, Article 12 (2) of the Order provides that when any property, rights or liabilities are transferred from a Province "by this Order,"the Province which succeeds to them "under this Order" shall be substituted in legal proceedings with respect to such properties, rights or liabilities to which the predecessor province was a party. The learned Advocate for the petitioner stated this point generally, but did not elaborate it. 17. On behalf of the Plaintiff Opposite Party, Dr. Sen Gupta contended that the rights and liabilities concerned had indeed been transferred by the Rights, Property and Liabilities Order, either directly or through the provisions of the Indian Independence (Partition Council) Order or of the Arbitral Tribunal Order which were parts of the Rights, Property and Liabilities Order. As regards the principal Order, he relied successively on Articles 5 (1) (a), 5 (1) (b), 7 and 10 (2). 18. Even if the special provisions of law relied on might prima facie seem to apply to cases like the present, a question may well be asked as to whether they should not be so construed as to make them consistent with the rule of international law that a court can not and will not assume jurisdiction over a foreign sovereign or State, unless the immunity is waived. There is a particularly strong reason for following the rule in the present case, because a Court in the Dominion of India is being asked to pronounce on the rights of a Province of Pakistan in respect of a revenue law of its own territory, whereas that Province could not, as a Plaintiff, sue the present Plaintiff in that court in respect of any liability under that law. No court has jurisdiction to entertain an action for the enforcement of a revenue law of a foreign state (see Dicey's Conflict of Laws, 1932 Edition, p. 132 and the cases there cited). If the Province of East Bengal brought a suit in the court at Alipore or any other court in the Dominion of India to enforce its right to assess the plaintiff to agricultural income tax the suit would not be entertained, but if the Plaintiff's contention is right, he is nevertheless entitled to have a declaration against the Province of East Bengal from the Alipore Court in the present suit that he is not assessable to the tax claimed. A distinction of that kind would seem prima facie to offend against the principle of "equal treatment" on which a great part of the international law on this subject is founded. But all such considerations must give way if it appear, that provisions were deliberately made by a competent authority with regard to pending actions so as to derogate, for the sake of convenience, from the absolute sovereignty of both the Dominions for a limited time. Even as regards the apparent difference in the position of the parties, it might perhaps be said that there was really no difference, because if the Province of East Bengal found itself in the position of a substituted plaintiff in a suit pending in a court in West Bengal, concerning a revenue right which had become exclusively its own after the partition, it would be entitled to proceed with the suit inspite of the rule of international law to the contrary, just as the plaintiff is entitled to proceed with the present suit. 19. In view of the wide language of Article 4 of the Indian Independence (Legal Proceedings) Order and the provisions of certain other Orders promulgated at the same time, I am unable to hold that in making these laws, the Governor-General did not at all intend to depart from the rule of international comity that one sovereign State could not be subject to the jurisdiction of the courts of another. The High Courts (Bengal) Order and the High Courts (Punjab) Order are other examples of temporary laws of the same character. The High Courts (Bengal) Order and the High Courts (Punjab) Order are other examples of temporary laws of the same character. Article 13 (2) (a) of the former Order provides that any proceedings which, immediately before the appointed day, were pending in the High Court in Calcutta on its Original Side, including any proceedings in the said High Court as a court of reference, shall be heard and determined by that court. This provision is made, although it is enacted by the same Article, what indeed follows from the creation of two Dominions and the partition of the province, that the High Court in Calcutta shall have no jurisdiction in respect of the territories for the time being included in the Province of East Bengal. It must have been known that there might be pending in the Calcutta High Court references under the Indian income tax Act or the Bengal Finance (Sales tax) Act, which, after the appointed day, would involve only the interest of the Province of East Bengal and to which, after the said date, only that Province or one of its officials would be a party. In fact, such references under the Sales Tax Act, were actually pending in this Court on the appointed day and some of them, in which the Province of Bengal appeared as the opposite party without protest have since been disposed of. There might also be pending suits of appeals on the Original Side of the Court in which the interests of the Province of East Bengal, as the owner of railways situated in and transferred to that Province, were involved. At least one appeal of that character was actually pending and has since been heard and decided. There can not therefore be any possible doubt that in enacting Article 13 (2) (a)of the High Courts (Bengal) Order, it was intended to subject the Province of East Bengal to the jurisdiction of this Court on its Original Side in all pending actions in which it might find itself a party interested. The Legal Proceedings Order deals with pending actions in sub-ordinate courts but in this regard, there is no distinction between the High Court and those courts. All are court of the Indian Dominion. The Legal Proceedings Order deals with pending actions in sub-ordinate courts but in this regard, there is no distinction between the High Court and those courts. All are court of the Indian Dominion. It in the High Courts Order, the intention to place the Province of East Bengal under the jurisdiction of a Court in West Bengal he clear, there is no reason to exclude such intention from the Legal Proceedings Order in so far as it deals with pending proceedings. Indeed, it would be inconsistent to hold that the Governor-General followed the comity of nations so far as the subordinate courts were concerned but modified it in the case of the High Court. Nor is there anything in the language of the Legal Proceedings Order which, suggests a more limited intention. Article 4 speaks of "all proceedings pending immediately before the appointed day in any civil or criminal court (other than a High Court) in the Province of Bengal the Punjab or Assam." Indeed, the inclusion of criminal proceedings must remove the last vestige of doubt, for to such proceedings the Crown or the State is almost always a party. It must therefore be held that the authority which at the relevant date had jurisdiction over the affair of both the Dominions intended to depart from the principle of the comity of nations in respect of pending proceedings and expressly enacted that in such cases one Dominion would be amenable to the jurisdiction of the Courts of the other. It may be added that several Orders are equally the laws of India and Pakistan. If therefore, one Dominion is subject to the jurisdiction of the courts of the other, it is so by its own laws. 20. There can not thus be any presumption that Article 4 of the Legal Proceedings Order does not intend to detract from the International comity which requires every State to decline to exercise, by means of its courts, jurisdiction over another Sovereign or State. It can not possibly be said that the Article was intended only to cover cases where the parties might be private persons or where the proceeding might be pending in the very Province which would be substituted under the Rights, Property and Liabilities Order. It is true that the last-mentioned case is also included and in such a case no difficulty of any kind would arise. It is true that the last-mentioned case is also included and in such a case no difficulty of any kind would arise. For example, if the present suit remained pending at Dacca instead of being transferred to Alipore, the Province of East Bengal would be substituted in a proceeding before one of its own courts and there would be no difficulty at all in the way of the court proceeding to determine the suit. But Article 4 is obviously not limited to such cases. Apart from the considerations already pointed out. Article 12 of the Rights, Property and Liabilities Order makes it clear beyond dispute that either of the two Dominions or a province thereof may find itself brought before a court situated in the other Dominion, for where property, rights or liabilities involved in pending proceedings have been transferred to a Dominion or to one of the new Provinces, that Article substitutes the successor Dominion or Province, irrespective of where the proceedings may be pending, and directs the proceedings to be continued. This provision is clearly complementary to Article 4 of the Legal Proceedings Order and the effect of the two provisions, read together, is that in cases where they apply, a Dominion or a Province, succeeding to the rights, liabilities or property to which a proceeding, pending before a court, in the other Dominion relates, must submit to the jurisdiction of that Court. 21. That however, is not the end of the matter. Although so far as pending proceedings are concerned, an intention to subject one Dominion or a Province thereof to the jurisdiction of Courts of the other, may be clearly discernible, it has still to be ascertained how far the provisions made actually go and whether all pending actions in which courts of one Dominion may have to adjudicate on the rights of the other are included. The petitioner before us in effect contends that the provisions made do not cover all pending proceedings, for, according to him, the present suit is not covered. The petitioner before us in effect contends that the provisions made do not cover all pending proceedings, for, according to him, the present suit is not covered. His argument, as already noticed, is that the Province of East Bengal could be substituted in the present suit only if the rights and liabilities involved were transferred to that Province by the Rights, Property and Liabilities Order, but since, as he contends, they were not so transferred, there is no legal authority for bringing the Province of East Bengal on the record before the court at Alipore and proceeding against it there. If this contention be correct, it must be held that there are certain rights and liabilities to which the two Dominions and the new Provinces respectively succeeded otherwise than under the Rights, Property and Liabilities Order and that pending proceedings relating to such rights and liabilities are outside the purview of the special provisions made. In the case of such proceedings, therefore the ordinary rule of international comity must prevail. 22. In view of the contention of the petitioner it is necessary to ascertain first what is the exact ground which the two Order, between themselves, cover. Article 4 (1) of the Legal Proceedings Order speaks of "all proceedings." Can it, be said that whether or not the rights, property or liabilities concerned were transferred by the Rights, Property and Liabilities Order, all proceedings pending in courts of what is now West Bengal or Assam or East Punjab, in which rights or liabilities of East Bengal or West Punjab are involved, will nevertheless continue under the provisions of that Article? In my opinion, the answer must be in the negative. It is true that Article 4 (1) does not except any proceeding. It is also true that under the provisions of the Article, all pending proceedings shall continue as if the said Act i.e., the Indian Independence Act, had not been passed. It is further true that, the rights or liabilities involved in a pending proceeding may have been rights or liabilities of one of the old provinces of Bengal or Punjab or Assam or of the Governor-General of India. It is further true that, the rights or liabilities involved in a pending proceeding may have been rights or liabilities of one of the old provinces of Bengal or Punjab or Assam or of the Governor-General of India. But if after the division of India and the partition of the provinces the rights and liabilities have become those of a Province of the other Dominion or of that Dominion itself the proceeding can not continue to any purpose, unless the successor Province or Dominion can be substituted. It can not be substituted unless there be some special provisions in that behalf, for the general rule of international comity forbids such course except, of course, where there is consent. The phrase "as if the said Act had not been passed" implying that the division and partition must be deemed to have not taken place, can be of no practical effect, because if the proceeding were to continue as against the old defendant, there would be no one to represent the fiction of an undivided Bengal or an undivided Punjab or the Governor-General of an undivided India. I am accordingly of opinion that in spite of the vide language of Article 4 (1) of the legal Proceedings Order, a proceeding pending in a court of that part of the old provinces named which has fallen to one Dominion but involving rights or liabilities which are now the rights or liabilities of the other Dominion or a Province thereof, can continue only if such rights or liabilities were transferred under clause (1) or clause (2) of the Rights, Property and Liabilities Order as the case might be, so that the successor Dominion or Province could be legally substituted. If there are any rights or liabilities which in fact now belong to the other Dominion or a Province thereof but were not transferred by the Rights, Property and Liabilities Order, in whatever other ways they might have been transferred, and the rights or liabilities involved in a pending proceeding are such rights or liabilities, then the proceeding can not continue. 23. I may observe here that in one respect Article 12 of the Rights, Property and Liabilities Order is wider than Article 4 (1) of the Legal Proceedings Order, though in one respect it is narrower. The former deals with all pending proceedings, wherever they may be pending. 23. I may observe here that in one respect Article 12 of the Rights, Property and Liabilities Order is wider than Article 4 (1) of the Legal Proceedings Order, though in one respect it is narrower. The former deals with all pending proceedings, wherever they may be pending. The 1atter deals only with proceedings pending in the courts of Bengal, the Punjab or Assam, In this respect. Article 12 is wider. But the Article provides for substitution of the successor Dominion or Province and provides that the proceedings may be continued by or against the substituted party. Article 4 (1) of the Legal Proceedings Order, on the other hand, does not provide for substitution, but provides that the proceedings shall continue as if the Indian Independence Act had not been passed. In this respect, Article 12 of the other Order is narrower. It may therefore be said that Article 4 (1) of the Legal Proceedings Order is a special provision, relating to proceedings pending in the three provinces named and with regard to such proceedings, the direction is that they shall continue without any substitution. For the reasons I have already given, I do not think that that view of the Article would be correct. To continue a proceeding against the undivided Province or the old Government of India would not be practicable. But, in any event, that view of the Article can be of no assistance to the plaintiff who is seeking to continue the suit not against Bengal but against the Province of East Bengal. 24. It is thus indisputable that the suit can not continue against the Province of East Bengal unless the rights and liabilities involved were transferred to that Province by the Rights. Property and Liabilities Order. What then are the things with the transfer of which we are concerned in the present case. The right involved in the suit is a right to tax and the alleged liability is a liability for exceeding or threatening to exceed that right. But that is not all. It is true that agricultural income tax is not a tax on land, but if is a tax on rent or revenue derived front land and according to section 4 of the Act, the land must be situated within the Province. But that is not all. It is true that agricultural income tax is not a tax on land, but if is a tax on rent or revenue derived front land and according to section 4 of the Act, the land must be situated within the Province. The Province of East Bengal has, therefore, no right to tax the plaintiff in respect of his agricultural income from Chakla Rosanabad, unless the land of that Chakla was transferred to the Province and belongs to it. The enquiry must, accordingly be how the land, the right to impose a tax on the income derived from it and the liability, if any, for exceeding that right were transferred to the Province of East Bengal. 25. So far as the land is concerned, it appears to me that the territories of Chakla Rosanabad, which are now a part of East Bengal, did not pass (1) that province by or under any Order, but passed under sections 2 (2) (a) and 3 (3) of the Indian Independence Act itself. The first named provision makes the territories of East Bengal territories of Pakistan; section 3 creates the province of East Bengal: and Section 3 (3) lays down the procedure for partitioning the Province of Bengal and determining the boundaries of the two Provinces. It was u/s 3 of the Act, read with the First Schedule, that the portion of Chakla Rosanabad which lay in Bengal went to East Bengal, and the allocation was confirmed by the award of the Boundary Commission. Dr. Sen Gupta, who appeared for the plaintiff opposite party, contended that the lands of the Province of Bengal were divided between the two new Provinces under Article 5 (1) (a) and (b) of the Rights, Property and Liabilities Order and he referred to the provisions of sections 172 and 173 of the Government of India Act for the meaning of the expressions "land vested in His Majesty for the purposes of the Governor-General in Council" and "land vested in His Majesty for the purposes of a province." He seemed to think that the word "land' in those expressions which were also to be found in Articles 4 and 5 of the Rights, Property and Liabilities Order meant the territories of India or a Province. The expressions however, have obviously quite a different meaning which will be found explained in the decision of the Federal Court in the Reference u/s 213 of the Government of India Act, 1935 47 C.W.N. (F.R.) 84 (1943). They mean land belonging to the Government as such or used for governmental purposes and the reason for the enactment of those sections in the Government of India Act, 1935 was that upon the setting up of a number of autonomous provinces and the separation of powers connected with the exercise of the functions of the Crown in relation to the Indian States, it became necessary to allocate between the Central Government, the provincial Governments and the Crown Representative the land and buildings which had formerly been vested in His Majesty for the purposes of the Government of India alone. The expression "land vested in His Majesty for the purposes of the Province of Bengal" in Article 5 of the Rights, Property and Liabilities Order which, as Dr. Sen Gupta himself contended, must bear the same meaning as in the Government of India Act, 1985, does not, therefore, mean the territories of Bengal and the Article has no concern with the division of such territories. The expression means land held by the Government as owner or proprietor. This, I think, is clear from the provisions of Articles 4 and 5 of the Order itself which provides for the joint control of certain lands by two Dominions or two Provinces. 26. As regards 'rights' Dr. Sen Gupta relied on Article 7. That Article applies to property other than land, goods, coins, bank notes and currency notes and provides inter alia that such property, held before the appointed day for the purposes of the Province of Bengal, shall, after that day vest in His Majesty for the joint purposes of the two Provinces. The structure of the Article is rather complicated but it will appear from a close examination that sub-clause (b) of clause (2) is connected with the second alternative in the opening words of the clause and the meaning of the portion relevant to the present east is a- above stated. Clearly, this Article does not transfer any rights, for apart from the fact that it is concerned with tangible property, the provision made by it is not one of partition but of joint ownership. 27. Nor was Dr. Clearly, this Article does not transfer any rights, for apart from the fact that it is concerned with tangible property, the provision made by it is not one of partition but of joint ownership. 27. Nor was Dr. Sen Gupta right in relying on Article 10 (2) for the transfer of liabilities. That Article is concerned with liability for an actionable wrong other than breach of contract and it is impossible to say that by serving a notice on the Plaintiff under the Bengal Agricultural income tax Act through one of its officers, the Province of Bengal had committed an actionable wrong. Assuming it exceeded its powers or acted under an invalid provision of law, the plaintiff may have a declaration to that effect, but the act complained of can not be said to have been a tortious act. But even assuming it was, it is to be remembered that the issue of the notice was in exercise of powers conferred by the Act in relation to the sovereign rights of the Crown and it is elementary that the Crown or the State is not answerable for even negligent or tortious acts of its officers done in the course of their official duties imposed by a statute, except where the particular act was specifically directed and the Crown profited by its performance. There is no such allegation in the plaint in the present case. The plaintiff could not therefore have sued the Province of Bengal for an actionable wrong and the suit actually brought is not a suit of that character. It is a suit for certain declarations and an injunction and does not seek to make the province liable for any actionable wrong in any way. No liability for an action-able wrong is thus involved in the suit and Dr. Sen Gupta can not establish a right to proceed against the Province of East Bengal on the basis that the liability was transferred to that province under Article 10 (2) of the Order. 28. It was lastly contended by Dr. Sen Gupta that the rights and liabilities involved in the suit were transferred by Article 3 of the Order. The argument was that the only provision relating to the distribution of rights, property and liabilities between the two Dominions or between the new Provinces in Bengal and the Punjab was to be found in Article 3. Sen Gupta that the rights and liabilities involved in the suit were transferred by Article 3 of the Order. The argument was that the only provision relating to the distribution of rights, property and liabilities between the two Dominions or between the new Provinces in Bengal and the Punjab was to be found in Article 3. That Article contained the main provision and left, the details to be worked out under the Indian Independence (Partition Councils) Order or, if necessary, under the Arbitral Tribunal Order. The three Orders, between themselves, constituted the whole machinery for the distribution of rights, property and liabilities. Dr. Sen Gupta contended that it was not known whether the right of taxation belonging to the Province of Bengal in respect of territories now allotted to East Bengal was transferred by Agreement under the Partition Councils Order or by decision under the Arbitral Tribunal Order but whichever the case might have been, the right must still have been transferred by this Order', that is to say, the Rights, Property and Liabilities Order, within the meaning of Article 12 (2) thereof, because the machinery set up under the other two Orders was only derivative and was created by Article 3 (1). 29. In my opinion, this contention is not correct. As I read the three Orders they are only concerned with the actual division of the physical assets and specific liabilities and have no reference to the sovereign rights arising out of the very creation of two independent Dominions with specified territories assigned to them. The territories are divided by the Independence Act itself; and since the Act creates two States with the status of Dominions, the sovereign rights in respect of the territories assigned to each of them or to the new Provinces created, vest in them at once. No further partition or allocation is necessary. The territories are divided by the Independence Act itself; and since the Act creates two States with the status of Dominions, the sovereign rights in respect of the territories assigned to each of them or to the new Provinces created, vest in them at once. No further partition or allocation is necessary. The three Orders only implement the provision contained in section 9 of the Act, sub-section (1) of which enjoins the Governor-General to make suitable provision for bringing the Act into effective operation and sub-section (2) of which enjoins him to make provision "for dividing between the new Dominions and between the new Provinces to be constituted under this Act the powers, rights, property, duties and liabilities of the Governor-General in Council or, as the case may be, of the relevant Provinces which, under this Act, are to cease to exist." The latter provision, in my view, contemplates properties owned by the Governments as such as specific rights, duties and liabilities which were owned by or had accrued to or lay on or had been incurred by the Central or the Provincial Governments in their administrative capacity. The section does not contemplate such a right as the right of a province to tax its own subjects with respect to income earned from properties within its own territories. This, it seems to me, is clear from Article 4 (1) (e) of the Arbitral Tribunal Order which speaks of "the division between the new Provinces of East Bengal and West Bengal of the assets and liabilities of the existing Province of Bengal." "Assets" it seems to me, can not include territories or rights and powers going with the sovereign status. 30. Reading Article 12 of the Rights, Property and Liabilities Order with Article 4 (1) of the Legal Proceeding-; Order the true position seems to me to be that while the rule of international comity has been departed from to a certain extent and each Dominion or the Provinces thereof have been made subject to the jurisdiction of the Courts of the other with respect to certain pending proceedings, yet the departure is of a limited character and is confined to cases where the rights and liabilities involved are not incidental to the sovereign status and are included among those transferred specifically by the Rights. Property and Liabilities Order. Property and Liabilities Order. This view accords with good sense, for it would be extraordinary if one sovereign State had been made answerable to the Courts of another in respect of the ownership or exercise of its sovereign rights. If the rights or liabilities involved are outside those transferred by the Rights, Property and Liabilities Order, then, it seems to me there can be no question of substituting the successor Dominion or Province under either Order or continuing the proceeding as against it. 31. Coming now to the facts of the present case, I have already held generally that the rights or liabilities involved cannot be said to have been transferred by the Rights, Property and Liabilities Order. If the facts are examined more closely, the position would appear to be even worse for the Plaintiff. The first declaration asked for is that the provisions of Bengal Agricultural income tax Act, so far as it imposes a liability on the Plaintiff, are ultra vires. The right which is challenged is a right to tax the Plaintiff under a particular Act. That right was undoubtedly claimed and asserted by the Province of Bengal when it passed the Act and embodied in it a provision affecting Indian Rulers, but how did that right pass to the Province of East Bengal so far as persons coming within its territorial jurisdiction are concerned? Strictly speaking, on the Plaintiff's own case, no rights passed at all, for according to him the Province of Bengal itself had no right to tax him or any other Ruler. If the Province of Bengal had no such right, as the Plaintiff contends then there was nothing to be transferred from it by the Rights. Property and Liabilities Order or otherwise and if the Province of East Bengal has been trying to assert the supposed right, it is doing so, no: as the successor to the Province of Bengal but on its own account. The cause of action against East Bengal is, therefore, a fresh cause of action. But assuming that what passed was the right to apply the Bengal Agricultural income tax Act that right passed under the provisions of sec. The cause of action against East Bengal is, therefore, a fresh cause of action. But assuming that what passed was the right to apply the Bengal Agricultural income tax Act that right passed under the provisions of sec. 18 (3) of the Indian Independence Act itself which provides as follows :- Save as otherwise expressly provided in this Act, the law of British India and of the several parts thereof, immediately before the appointed day shall, so for as applicable and with the necessary, adaptations continue as the law of each of the new Dominions and the several parts thereof until other provision is made by the laws of the Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf. 32. I am overlooking the amendment which the Plaintiff will have to make in his first prayer, for any declaration to be useful to him, must be a declaration not with respect to the Bengal Agricultural income tax Act, 1944, but the Act as adapted in East Bengal. Apart from that, it seems to me that the right which is challenged by the first prayer is not a right which passed by or under the Rights, Property and Liabilities Order but one which passed under the Independence Act itself. If so, so far as the first prayer is concerned, the suit cannot proceed against the Province of East Bengal. 33. As regards the second prayer, the position is no better. It asks for a declaration that the notice served by the Agricultural income tax Officer in 1945 was a bad notice and no assessment can be made on its basis. Now, there is no provision anywhere by which pending proceedings under the Bengal Agricultural income tax Act, initiated by the Province of Bengal, were, transferred to the corresponding tax authority of East Bengal and directed to be continued by him. Such provision has been made by the Indian Independence (income tax) Order, 1947, with respect to proceedings under the Indian income tax Act and the Excess Profits Tax Act but no similar provision has been made with respect to proceedings under the Bengal Agricultural income tax Act. So far as I can see, proceedings under that Act have not been transferred at all, nor expressly saved or validated in the hands of any successor authorities. So far as I can see, proceedings under that Act have not been transferred at all, nor expressly saved or validated in the hands of any successor authorities. It is true that on the materials on record in the present case, it appears that the East Bengal authorities did in fact purport to continue the proceedings and have now completed the Plaintiff's assessment, but that they have done without any legal right and not under any powers transferred to them by any provision of law. If any cause of action exists against the Province of East Bengal for their having proceeded to take over and complete the assessment proceedings, it is a fresh cause of action for an act done by the Province of East Bengal in the first instance and not a cause of action for having continued, under a transferred right, the proceedings initiated by the notice of 1945. The proceedings in which the Province of East Bengal has acted were not in law the proceedings initiated by the notice of which the Plaintiff complains. If the latter proceedings lapsed with the partition, as in my view they did, there can be no meaning in asking for a declaration against the Province of East Bengal that the notice on which those proceedings were started was bad, nor can that Province be brought on the record as having succeeded to the right of continuing the proceedings. If that Province in fact purported to continue them in stead of starting a fresh proceeding, there is a fresh cause of action against it on which it is not liable to be sued in the Indian Courts and there cannot be any question of substituting it in the present suit as responsible for the notice of 1945, issued by the old Province of Bengal. Even if I be wrung in this view and even if the right to continue the proceedings (sic)ted in the Province of East Bengal under some provision which I have not been a(sic) trace, it did not vest under the (sic) operty and Liabilities Order. Even if I be wrung in this view and even if the right to continue the proceedings (sic)ted in the Province of East Bengal under some provision which I have not been a(sic) trace, it did not vest under the (sic) operty and Liabilities Order. (sic) there can be no substitution (sic) of East Bengal in the pro(sic) it did not, (sic) of the Province (sic) injunction need not;(sic) idered inasmuch as it The prayer for (sic) independent right or be separately (sic) I have had to consider is by no means free from difficulty but giving it the best consideration I can. I have reached the conclusion that the present proceeding is not one which can be continued against the Province of East Bengal in the Alipore Court under Article 4 (1) of the Legal Proceedings Order. 34. Dr. Sen Gupta contended in the second place that, in any event, the Province of East Bengal had submitted to the jurisdiction of the Alipore Court and it was no longer open to it to set up its sovereign status. The Petitioner addressed no argument on that question but merely stated that there was no submission to jurisdiction, although certain applications were unfortunate. 35. The facts are as follows. The two new Provinces of East and West Bengal came into existence on the 15th August, 1947, and so much of Chakla Rosanabad as appertained to the old Province of Bengal went to East Bengal on that very day under sec. 3 (3) of the Independence Act, read with the First Schedule, though provisionally. The first order in the order-sheet after the 15th August, 1947, is dated the 1st October and it appears that on that date an application was made on behalf of the Province of West Bengal for time to file a written statement. The application is signed by "Saudatullah A.G.P." which means Assistant Government Pleader. Time was granted till the 28th November 1947, but as no steps were taken to file (sic) defence, the Court, on the 29th November passed an order, fixing the 9th D(sic) 1947, for an ex parte hearing.(sic) plication made by the Plaint (sic) was, on the 6th December.(sic)ember to the 13th. On the (sic)On an ap (sic)Province of East Bengal (sic) ance through Mr. (sic) ullah who filed a (sic) the same date and a written statements. On the (sic)On an ap (sic)Province of East Bengal (sic) ance through Mr. (sic) ullah who filed a (sic) the same date and a written statements. The latter was accompanied by an application praying for acceptance of the written statement and condonation of the delay. In the body of the application it was stated that the Province of West Bengal was taking no interest in the suit, but it was "necessary in the interest of East Bengal that the present suit should be contested and that a written statement.... should be put in for such contest." Mr. Saudatulla, who had not previously filed any vakalatnama on behalf of the Province of Bengal or West Bengal but had apparently acted on occasions in his capacity as Assistant Government Pleader (see the application filed on the 26th February, 1947), was obviously changing sides. 36. In the written statement filed, the Province of East Bengal pleaded its independent and sovereign status and suited that it was appearing only to contest the jurisdiction of the Court. On the 13th December, 1947, the Court made an order accepting the written statement and at the same time directed the substitution of the Province of East Bengal. The learned Judge stated that he agreed with the lawyers for the Plaintiff that the Province of East Bengal should be substituted for the Province of Bengal and that such substitution seemed to him to be "automatic" in view of the provisions of Article 12 (2) of the Rights, Property and Liabilities Order. The Province of East Bengal did not take any steps against the order for its substitution. Thereafter, there were certain applications before the Court, relating to steps that were being taken to complete the assessment and recover the tax, and at the hearing of those applications the Province of East Bengal appeared. On the 7th February, 1948, the Court made an order, striking off the name of the Defendant No. 2 and on the 14th, the Province of East Bengal made an application asking for leave to file an additional written statement in view of the amendment of the plaint. By an order passed on the same day, the Court granted six weeks' time and directed the Province to file a "complete and additional written statement." Issues were also settled and the 22nd March, 1948, was fixed for the hearing of the preliminary issue as to jurisdiction. By an order passed on the same day, the Court granted six weeks' time and directed the Province to file a "complete and additional written statement." Issues were also settled and the 22nd March, 1948, was fixed for the hearing of the preliminary issue as to jurisdiction. On the 28th February, two applications were made by the Province of East Bengal. By one it asked for an extension of the time to file its documents for which 15 days had been allowed on the 14th February and by the other, it asked for leave to inspect the documents, lying in the Court's safe custody in view of the coming hearing on the question of jurisdiction. Both the prayers were granted. On the 17th March, 1948, the date of hearing of the preliminary issue was shifted to the 2nd April on a joint application of the parties. On the 22nd March, 1948, the Province of East Bengal made an application, asking for leave to file the additional written statement within two weeks from the hearing of the preliminary issue and the Court made an order, directing the written statement to be filed after final orders had been passed on the question of jurisdiction. The mention of "six weeks" in the order recorded at the time prayed for is a mistake. The preliminary issue was heard on the 2nd and the 3rd April and decided in favour of the Plaintiff by an order passed on the 5th. 37. On these facts, I do not think that there has been any submission, to jurisdiction which disentitled the Petitioner from relying on its immunity under the rule of international law. It is true that objection to jurisdiction can be waived and that when the Defendant Sovereign has submitted to 01 invited jurisdiction he has waived it. The root authority on that question is the old case of Taylor v. Best (1854) 14 C.B. 467 tried in the Court of Common Pleas, and though that decision has often come in for criticism, the fundamental principle laid down in it, viz., objection to jurisdiction can be waived and if once waived, will not again be available, has never been seriously doubted. "The exemption from process accorded by the law of nations to Sovereigns and to Ambassadors and Foreign Ministers, being for their benefit, may be waived by or with the permission of the sovereign, in accordance with the maxim quilibet potest renunciare juri pro se intro(sic) ducto," Suaraz in re Snarez v. Snarez (1918) 1 Ch. 176. The doubt expressed by Astbury, J., In re Republic of Bolivia Exploration Syndicate, Ltd. (1914) 1 Ch., 189 has not been, so far as I have been able to investigate shared by anyone else. But what constitutes waiver and how far its effect extends is a different and a more difficult question. The English Courts seem to agree that even when the privilege has been waived so far as a suit is concerned, it can still be set up against execution and though this view, in the case of Ambassadors and Foreign Ministers, has often been based on sec. 3 of the Diplomatic Privileges Act (7 Anne C. 12), it has at the same time been said that the statute of Anne is only declaratory of the common law of nations. However, with the question of execution we are not here concerned. The question is, did the Province of East Bengal, by entering appearance in the suit and pleading against the jurisdiction of the Court, submit to it? It is true that it was substituted in the proceedings, but as far as I can see from the order passed on the 13th December, 1947, the Court made the order on the insistence of the Plaintiff and on its own view of the law. No application for substitution appears to have been made by either party. The Province of East Bengal had already filed a written statement on the 9th December, setting up its sovereign status and denying the jurisdiction of the Court. I do not, therefore, think that the order for substitution implies any submission to jurisdiction, nor the fact that no steps were taken against the order, for the issue as to jurisdiction remained to be decided. It is again true that the Province entered appearance, but under the procedure of the Court it could not be heard unless it did so and in the written statement it was made perfectly clear that appearance was being entered only for the purpose of contesting jurisdiction. It is again true that the Province entered appearance, but under the procedure of the Court it could not be heard unless it did so and in the written statement it was made perfectly clear that appearance was being entered only for the purpose of contesting jurisdiction. I am unable to say that in those circumstances the Province of East Bengal submitted to jurisdiction by entering appearance. Nor can it be said that there was submission to jurisdiction when the various applications were made. The applications for time to file the written statement have no importance at all, that for time to file documents contained the statement that no further documents would be relied on for the purposes of the question of jurisdiction, which implies that the Province wished to have its plea in bar tried out first; and lastly, the applications for time to file the additional written statement, which apparently would contain the plea on the merits, led up to a final prayer that the written statement might be allowed to be filed after the decision of the preliminary issue. Quite clearly, the Province was always keeping its objection to jurisdiction in the forefront. 38. Did the filing of the written statement itself constitute submission to jurisdiction? In my opinion it clearly did not. Taylor v Best (1854) 14 C.B. 467 was a very exceptional case. There, the Defendant had obtained orders giving him time to plead, had pleaded, had applied for a rule for a special jury and had not raised the question of privilege on any of those occasions. It was only after notice of trial had been served that he set up his privilege and in those circumstances it was held that the plea was far too belated and he had already submitted lo the jurisdiction of the Court. The present case is far different on the facts, for here, the Defendant set up the plea at the earliest opportunity, along with entering appearance. Dr. Sen Gupta referred lo the well-known case of Mighell v. Sultan of Johore (1894) 1 Q.B. 149 and relied on the observation of Esher, M.R. that the Defendant had to set up his sovereign status when the matter came before the Court and that if he did so and proved his plea, the Court would have no jurisdiction. Dr. Sen Gupta referred lo the well-known case of Mighell v. Sultan of Johore (1894) 1 Q.B. 149 and relied on the observation of Esher, M.R. that the Defendant had to set up his sovereign status when the matter came before the Court and that if he did so and proved his plea, the Court would have no jurisdiction. But that was exactly what was done in the present case and it can by no means be said that when the matter came before the Court, the Defendant elected to submit to its jurisdiction. In the case cited it was observed by Kay, L.J., that a "foreign sovereign is entitled to immunity from civil proceedings in the Courts of any other country, unless upon being sued, he actively elects to waive his privilege and submit to the jurisdiction." I cannot see any active waiver here. In The Sultan of Johore's case (1894) 1 Q.B. 149, the matter came up on a motion by the Defendant to set aside an order for substituted service of a writ, but in Magdalena Steam Navigation Company v. Martin (1859) 2 E & E 94, the Defendant, on being summoned, appeared in person to plead against jurisdiction and the plea was upheld. It was not held that by appearing to plead, he had submitted to jurisdiction, but, on the other hand, it was observed by Lord Campbell in the judgment of the Court that he had "done nothing to forfeit or waive his privilege." The matter is made even clearer by certain observations made in the course of the argument which will appear from the following extract from the report:-- Sir Fitnroy Kelly: Attorney General. It can not be contended that the defendant has, by appearing to the court, precluded himself from saying that the suit it improperly brought. Lord Campbell C.J: His plea denies that the Court, has jurisdiction. Erle J.; Supposing that he had made an affidavit in Court, and had moved to stay proceedings, it could not have been said that he thereby admitted jurisdiction. Lord Campbell C.J.: The plea is only another mode of doing that. 39. Lord Campbell C.J: His plea denies that the Court, has jurisdiction. Erle J.; Supposing that he had made an affidavit in Court, and had moved to stay proceedings, it could not have been said that he thereby admitted jurisdiction. Lord Campbell C.J.: The plea is only another mode of doing that. 39. It would thus appear that it is not necessary for the Defendant to move against the issue or service of a writ as was done in The Sultan of Johore's case (1894) 1 Q.B. 149, but the plea of jurisdiction can safely be taken on appearing to the writ and such appearance is not waiver of the privilege. In the case of Dickinson v. Del Soler (1980 1 K.B. 876, it was observed by Lord Hewart, C.J., that in a previous case, on the decree passed in which the action before him was founded, "the privilege was waived and jurisdiction was submitted to by the entry of appearance." But it will appear from the facts that the Defendant who was entitled to the diplomatic privilege was expressly directed by his State not to set it up and it was appearance in those circumstances which was held to have constituted waiver. On the other hand, in Duff Development Company, Ltd. v. Government of Kalantan (1924) A.C. 797 it was held by the House of Lords that the Government of Kalantan had not waived its privilege or submitted to the jurisdiction of the British Court for the purposes of a proceeding to enforce an award against it, by either asserting to an arbitration clause which incorporated the Arbitration Act, 1889, and thus contemplated a reference to the Court or by applying to the Court, as it had done, for setting aside the award. On these authorities, it seems to be not even arguable that the Province of East Bengal submitted to the jurisdiction of the Alipore Court in the present case by either appearing to plead against jurisdiction or obtaining time for certain incidental matters. I am further of opinion that the fact that the position under the Independence Act and the Orders made thereunder was by no means clear must also be taken into account. 40. Dr. Sen Gupta relied on the case of Harries v. Taylor (1915) 2 K.B. 580 but I cannot see how that case is of any assistance to him. I am further of opinion that the fact that the position under the Independence Act and the Orders made thereunder was by no means clear must also be taken into account. 40. Dr. Sen Gupta relied on the case of Harries v. Taylor (1915) 2 K.B. 580 but I cannot see how that case is of any assistance to him. There, an action was brought against the Defendant in the High Court of the Isle of Man, claiming damages for criminal conversation with the Plaintiff's wife. The Defendant was a resident of England, not subject to the jurisdiction of the Manx Courts. The Plaintiff, however, obtained leave to serve the Defendant with a writ of summons out of the jurisdiction and a writ was duly served on him in England. Thereafter, the Defendant appeared before the Manx Court "conditionally" and applied for setting aside the order for service of the writ. His application was dismissed. He took no further steps in the proceedings and the Plaintiff recovered first an interlocutory judgment "in default of defence" for a certain sum according to the Manx procedure and then a final judgment. When next the Plaintiff brought a suit in England to enforce the judgment, it was contended that the foreign Court, i.e., the Manx Court had no jurisdiction to pass the decree, but it was held that by reason of his application to the Manx Court, the Defendant had voluntarily submitted to its jurisdiction and, therefore, the judgment was the judgment of a competent Court, enforceable in England. 41. It will be seen that the case was one of a private individual and not of a Foreign Sovereign or a Foreign Minister. Secondly, the proceeding in which the decision relied on was given was a suit to enforce a foreign judgment and the question was whether the Court which had passed that judgment was competent to do so. Thirdly, the reason given for the decision that the judgment was a valid judgment was that since the Defendant, who might have ignored the writ, had appeared before the Court and asked for an order in his favour and having failed, had done nothing further and since the procedure of the Court allowed it to treat a conditional appearance as appearance for all purposes, the Defendant could not question the final judgment as passed without jurisdiction. All, therefore, that the case decides is that if alter pleading against jurisdiction before a foreign Court and having failed, a party takes no further steps and a judgment is thereafter passed against him in accordance with the law of the Court, the judgment is a valid judgment. The case is not one where it was held, on the very application for setting aside the order for service or in an appeal from an order passed thereon, that by making that very application the Defendant had submitted to jurisdiction and that, therefore, there was no further question to be considered. If, in the present case, the Province of East Bengal had taken no steps against the order of the learned Subordinate Judge and a judgment was passed against it in due course, the case of Harries v. Taylor (sic) 14 C.B. 427 might nave been in point and it might have been said with some plausibility that the judgment was that of a competent Court and valid. But the Province having come up against the order deciding the question of jurisdiction against it, the case cited has no application and it cannot be held, on the authority of that case or otherwise, that because the Province appeared before the Alipore Court to plead against jurisdiction, therefore, that Court will have jurisdiction to proceed with the suit against it although in law it may have no jurisdiction. 42. For the reasons given above, I am of opinion that the Alipore Court has no jurisdiction in law to try the suit and that the Petitioner has done nothing to confer jurisdiction by submitting to it. The order of the learned Subordinate Judge must, therefore, be set aside. 43. The form of the order that should be made is a matter of some difficulty. This is not a case where at the rime the suit was filed, it should have been filed in same Court other than the Court at Dacca, no. a case where the Court to which it was transferred, had at that time no jurisdiction to try it. Nor is it a case where the plaint discloses no cause of action against the original or the substituted Defendant. It only appears now, by reason of the events which have supervened, that the suit has become infructuous. There is thus no question of rejecting or returning the plaint. Nor is it a case where the plaint discloses no cause of action against the original or the substituted Defendant. It only appears now, by reason of the events which have supervened, that the suit has become infructuous. There is thus no question of rejecting or returning the plaint. On the finding I have arrived at, even the order for substitution was wrong and the true position, it seems to me, is that the suit has abated. The original Defendant has ceased to exist and there is no one against whom the right to sue has survived. 44. In the result, the Rule is made absolute. The order of the learned Judge, dated the 5th April, 1948, is set aside and the issue of jurisdiction being decided against the Plaintiff, it is declared that the Court has no jurisdiction to proceed with the suit against the Petitioner and that the suit has abated. In view of the difficulty of the questions involved, I think each party should bear its own costs throughout. The amount deposited by the Petitioner with the Registrar will be refunded. Harries, C.J. I agree. The 30th November, 1948. By the Court:--It is certified under sec. 205 (1) of the Government of India Act, 1935, as recently adapted, that the case involves substantial questions of law as to the interpretation of the Indian Independence Act and several Orders made there under, namely, the Legal Proceedings Order, the Rights, Property and Liabilities Order, the Partition Councils Order, the Arbitral Tribunal Order and the High Courts (Bengal) Order.