JUDGMENT

1. This second appeal is by Sudhendu Nath Banerjee, the defendant no. 1 and several others who are the heirs and legal representatives of Snehalata Devi, the original defendant no. 2 who died at the appellate stage. Bhupati Charan Chakraborty, the plaintiff is the respondent. The original suit was dismissed, but in the appeal before the appellate court below, the plaintiff was successful and the suit was decreed.

2. The plaintiff's case, to be very brief, is that he is the owner of the land and the building as described in the plaint schedule. The original defendants entered into the suit premises with leave and licence of the plaintiff. The plaintiff revoked the licence and asked the defendants to vacate the suit premises, but as the defendants failed to comply with the request, the suit was started for their eviction. The defendant no. 1 Sudhendu Nath, the husband of the defendant no. 2 entered appearance and filed written statement denying the material allegations made in the plaint. His defence case is that the land in suit was purchased with his money and the house in suit was erected by him. It is alleged that the defendant no. 1 has been living in the suit property in his own right and that the plaintiff has no right, title and interest therein. The story of leave and licence is false. By filing an additional written statement, the defendant raised the plea that as the plaintiff was a citizen of East Pakistan, the property in suit as claimed by him vested in the Custodian of enemy property for India and therefore, the suit was not maintainable. The trial court decided the issues in favour of the plaintiff except the issue no. 8 which relates to the question of vesting of suit property in the Custodian of enemy property. According to the learned Munsif, as the plaintiff was a Pakistani national, he could not proceed with the suit and the suit was ultimately dismissed. The learned Additional District Judge who heard the appeal below decided on issue no. 8 that the suit was maintainable and he concurred with the trial court that the suit property belonged to the plaintiff and that the defendants were in permissive occupation of the house. The trial court's decision was set aside and the suit was decreed.

3. Mr. Banerjee, the learned Advocate appearing on behalf of the appellants before me has urged two points of law to challenge the legality of the decision of the first appellate court below. It has been first contended that in view of the Enemy Property Act, 1968 and connected laws and regulations prior to it as the plaintiff was a Pakistani national when Pakistan was declared an enemy of India, the suit started by him should have been dismissed. Secondly, it has been urged that in view of S. 83 of the Code of Civil Procedure again, the plaintiff's suit should have been dismissed. Mr. Ghosh, the learned Advocate appearing on behalf of the plaintiff-respondent has submitted that the plaintiff's suit cannot be dismissed and the decree passed by the appellate court below cannot be disturbed as the suit was filed by the plaintiff before he could be described as an alien enemy. It has been further urged that there is no provision in the Enemy Property Act of 1968 or in any connected Enactment or Orders which may suggest that the present suit should be dismissed.

4. I shall, at the outset, take up the first point canvassed by Mr. Banerjee as indicated above. The suit was filed by the plaintiff on 30.11.64 During the pendency of this suit, the Central Government by a Notification dated 10.9.65 issued under Sub-Rule (1) of Rule 133-V of the Defence of India Rules, 1962 declared that all immovable properties in India belonging to or held by or managed on behalf of all Pakistani nationals would vest in the Custodian of enemy property for India with immediate effect. As submitted by the learned lawyers of both the parties, the date of Emergency period in India started from 10.9.65 and it was lifted in 1968. The trial court dismissed the suit on 23.2.67 and the decision of the lower appellate court was on 31.1.72 As the Proclamation of Emergency was revoked with effect from 10th January, 1968 and the powers under the Defence of India Act, 1962 and the Rules thereunder were to remain in force only for six months thereafter i.e upto the 10th of July, 1968, the Enemy Property Ordinance, 1968 was promulgated by the President of India on 6.7.68 which was to take effect on and from 10th of July, 1968. This was done for the administration of the enemy properties which had already vested in the Custodian of enemy property for India under the Defence of India Rules made under the Defence of India Act, 1962. Subsequently, however, the Enemy Property Act, 1968 was enacted and it is deemed to have come into force on the 10th day of July, 1968 with the expiry of the ordinance. These are the relevant provisions and facts on which the learned Advocates of both the parties concentrated to substantiate their contentions.

5. Mr. Banerjee started his argument with the submission that as soon as Pakistani nationals were declared to be enemies during the Emergency period, the suit should have been deemed as abated, as the enemy had no right to claim any property in India. There is of course no dispute that when the suit was filed, the plaintiff was in East Pakistan and that at that time he was a Pakistani national. These is no dispute, and there cannot be any, that when the suit was filed, the plaintiff had his right to start the legal action. Mr. Banerjee referred to several foreign decisions and treatises on International Law and Jurisprudence to show that during war, the enemy can have no right to bring any action or continue any legal prosecution so long as the hostility continues. Mr. Banerjee also relied upon the provisions of Enemy Property Act, 1968 and the defence of India Rules, 1962. When Mr. Banerjee relies on the law of our country, it would be no useful purpose to deal with the problems of abstract law. Mr. Banerjee, however, ultimately agrees that he wants to rely upon the provisions of the Enemy Property Act, 1968 and the Orders of the Central Government declaring that the properties of the citizens of the enemy country should vest in the Custodian of enemy properties. When there is an enactment in the country, there is no necessity to rely on foreign decision based upon foreign laws or on abstract theories of law. The simple and clear argument of Mr. Banerjee is that when the suit property of the plaintiff who is a man of East Pakistan had already vested in the Custodian of enemy properties with the declaration of Emergency in India, the suit abated along with the vesting. Mr. Banerjee wants to say that with the vesting of the suit property in the Custodian, the plaintiff had no right to prosecute the suit and the suit abated automatically and in any case, the appellate court below ought to have found that the suit was not maintainable and that it came to an end. I am afraid, I cannot accept the contention of Mr. Banerjee. Admittedly, when the suit was filed, the plaintiff had every right to start the action. During the pendency of the suit, the Emergency was declared and according to the order of the Central Government, the property of a Pak national must vest in the Custodian of the enemy properties appointed by the Central Government. The simple question, therefore, is whether due to this vesting of the suit property in the Custodian, the suit automatically abated or whether the trial court was right to hold that the suit was liable to be dismissed as not maintainable. From the argument advanced by Mr. Banerjee it appears to me that he wants to say that by virtue of the vesting of the suit property in the Custodian, the plaintiff lost all his interest and right in the suit property and that the Custodian became the owner of the suit property. This proposition is clearly unacceptable. First of all, I wanted Mr. Banerjee to show any provision either in any Order of the Government or in the Enemy Property Ordinance or in the Enemy Property Act, 1968 which may suggest even that all the right, title and interest would devolve upon the Custodian or that the enemy owner of the property becomes divested of all his right, title and interest therein. Mr. Banerjee could not show any such provision. I have gone through the relevant Notification as mentioned earlier as also the Ordinance and the Act of 1968. First of all, I must say that there is no provision not even any indication that the enemy owner of the property shall be stripped of all his rights, and interests and that he would lose all his interest or right therein. Next, I find no indication or provision which may even tend to say that if any enemy or citizen of an enemy territory continues any suit in respect of his property in India after the date of vesting as declared by the Central Government during the pendency of the suit, the continuance of such suit by such person would be illegal and that the proceeding will be nullity if it is not continued by the Custodian. On the contrary, from the provisions appearing both in the Ordinance and in the Act of 1968, I find that the enemy-owner of the property is not divested of all his interest and title to the property, but the Custodian for a limited purpose gets the property vested in him particularly relating to possession, management and control of the property. Virtually speaking, the Enemy Property Act is repetition of the Enemy Property Ordinance, 1968. Section 5 of the Act says that notwithstanding the expiration of the Defence of India Act, 1962 and the Defence of India Rules, 1962, all enemy properties vested before such expiration in the Custodian of enemy property for India appointed under the said Rules and continuing to vest in them immediately before the commencement of the Ordinance shall from such commencement vests in the Custodian.

6. Section 6 of the Enemy Property Act, 1968 is to be noted. According to this section, if any property vested in the Custodian has been transferred either before or after the commencement of the Act by an enemy or an enemy subject and where it appears to the Central Government that such transfer is injurious to the public interest or was made with a view to evading or defeating the vesting of the property in the Custodian, then the Central Government may, after giving a reasonable opportunity to the transferee to be heard, declare such transfer to be void and on making such declaration or order, the property shall continue to vest or to be deemed to vest in the Custodian. This provision indicates that after the vesting of the enemy property in the Custodian, an enemy may have the right to transfer the said property, but it is the Central Government which is to consider whether it will declare such transfer to be void or not. It is therefore, clear that with the vesting of the property in the Custodian, the enemy does not lose all his interest or title to the property vested in the Custodian. Nowhere in the Act has it been stated that after the vesting, the transfer made by the enemy-owner of the property, already vested, becomes void.

7. In connexion with S. 6 mentioned above, we may consider the provisions of S. 8 of the Act. This relates to the powers of Custodian relating to the enemy property vested in him. Sub-s. (1) of S. 8 says that if the property belongs to an individual enemy subject, the Custodian may incur such expenses out of the property as he considers expedient for the maintenance of that individual or of his family in India. Clause (iii) of sub-s. (2) of S. 8 authorises the Custodian to make any contract and execute any document in the name and on behalf of the enemy, the owner of the property. Clause (x) of the same sub-section also authorises the Custodian to make payments on behalf of the enemy to persons other than those who are enemies. The provisions in S. 8 without any ambiguity indicates that after the vesting of the property in the Custodian, the enemy whose property has vested still remains the owner of the property and not only does he get benefit out of the property in certain circumstances, but the Custodian acts on behalf of the enemy in the matter of contract and relating to documents in connexion with the property. There can be no doubt, therefore, that the enemy, due to this vesting in the Custodian, is not divested of all his right, title and interest in the suit property, but the vesting in the Custodian is limited to the extent of possession, management and control over the suit property and it is also temporary because S. 18 of the Act says that the Central Government may by general and special order divest the Custodian and the property be returned to the owner thereof. In view of my discussions, I, therefore, hold that due to the vesting of the suit property in the Custodian of enemy property for India, the plaintiff did not lose his right, title and interest in the suit property and that it cannot be said that the suit automatically abated or that the title of the suit property was lost to the plaintiff.

8. The next branch of argument in connexion with the first contention of Mr. Banerjee is that when during the pendency of the suit there was the vesting of the suit property in the Custodian under the order of the Central Government due to the Emergency, the suit was rightly dismissed because the Custodian did not continue the suit. Mr. Banerjee has submitted that the plaintiff had no right to continue the suit, because it was only the Custodian according to the provision of law who had interest in the suit. On this point again, I cannot agree. Clause (iv) of Sub-section (2) of S. 8 says that the Custodian or a person duly authorised by him in this behalf may institute, defend or continue any suit or other legal proceedings. In the present case, admittedly, the Custodian or anybody else duly authorised by him did not come forward to continue the suit either being added as a party or otherwise. There is no provision in this Act, as I find, that the enemy who started the original suit, on his property being vested according to the provision of the Act or any Rule or any order of the Central Government during the pendency of the suit, cannot proceed with the suit or continue the same in the absence of the Custodian. I find no provision which says that with the vesting of the enemy property in the Custodian the pending suit of an enemy shall abate or be dismissed. Mr. Banerjee has not been able to draw my attention to any provision in the Act or Order or Notification which may even indicate that the continuance of a suit by an enemy lawfully started would be nullity in the absence of any Custodian. In the facts and circumstances, in my view, mere vesting of the property under the Defence of India Rules or the Ordinance or the Enemy Property Act, 1968 in the Custodian will not prevent the enemy from continuing the suit if the Custodian does not take any step or choose to continue the suit. Mr. Ghosh in this connexion referred me to two decisions of this Court appearing in 79 CWN 153 and 80 CWN 193. Going through those decisions, I find that the facts of those cases are quite different and the causes of action arose in different circumstances. The questions now raised before me in the present appeal were not considered there. I do not think that those decisions are relevant. I, therefore, find that the first contention of Mr. Banerjee is of no avail.

9. I now take up the second and last branch of attack against the decision of the appellate court below. Mr. Banerjee has submitted that in view of S. 83 of the Code of Civil Procedure, the suit of the plaintiff ought to have been dismissed as soon as the Emergency of India started on 10th of September, 1965. There is no doubt that the plaintiff, the owner of the suit property was at the relevant time residing in East Pakistan now Bangladesh and that the Government of India was at war with the Pakistan Government. The plaintiff is to be held an alien enemy in the facts and circumstances of this case. According to S. 83 of the Code of Civil Procedure, an alien enemy cannot use. Mr. Ghosh tried to advance a faint argument to suggest that inasmuch as when the plaintiff started the suit without any legal impediment, the declaration of Emergency during the pendency of this suit could not prevent the plaintiff from continuing the suit. According to him, to continue to sue is not “to sue”. I am unable to accept this contention. In my view to “sue” means to seek justice or a right by legal proceedings or to continue or follow up a legal action or proceedings till termination. Of course, I cannot accept the submission of Mr. Banerjee that the plaintiff's suit should have been dismissed for his being debarred from prosecuting the suit already started by him in view of S. 83 of the Code of Civil Procedure. The plaintiff started the suit according to law and there was no bar to the institution of the suit. But, during the progress of the suit after the Emergency was declared by India, the plaintiff was disqualified from prosecuting the present suit on and from 10.9.65 till the declaration of Emergency was lifted. This disablement on the part of the plaintiff was due to the effect of law. The suit should have been suspended by the trial court for the period so long as the plaintiff was unable to prosecute the suit or until it could be otherwise prosecuted according to law. There cannot be any question of dismissing the suit. The law does not provide for dismissal of the suit. In the present case, however, it appears that during the period of Emergency when the plaintiff was debarred from continuing the suit, the suit was disposed of by the trial court. That disposal or the decree passed by the trial court was certainly illegal and without jurisdiction and consequently all proceedings taken in the first appeal were likewise invalid. The decrees passed by both the courts below being without legal effect are liable to be set aside. All the proceedings taken from 10.9.65 were clearly illegal and without jurisdiction. The trial court ought to have stayed further proceedings in this suit on and from 10.9.65 until the ban on the plaintiff was lifted. Of course, in the present case, the trial court cannot be blamed because the attention of the court was not drawn to the relevant facts as stated. I find some substantial force in the argument of Mr. Banerjee with regard to the second contention challenging the validity of the decree of the appellate court below.

10. In the result, the appeal succeeds. The judgments and the decrees of both the courts below are hereby set aside and the case is sent back to the trial court to proceed with the suit from the stage as it was on 8.9.65 It appears that on 10.9.65 a payment order was passed by the learned Munsif relating to some matters of previous dates. That order has got nothing to do with the merits of the suit or the action of the parties. It was an order passed by the learned Munsif which he could pass even if the plaintiff was disabled to proceed with the suit. That order will not, however, be affected. The subsequent orders passed and the proceedings that had taken place shall stand void being illegal and without jurisdiction. The learned Munsif, on receipt of the records, shall proceed with the suit according to law as indicated above giving notice to the parties. The suit is an old one and the same should be disposed of as early as possible. In the facts and circumstances I pass no order of costs in this appeal.

11. The records of the courts below should be sent down immediately.

Appeal allowed. Case sent back to trial court.