1. Regular Second Appeals Nos. 136, 137 and 138 of 1951 will all be disposed of by this judgment as common question of fact and law arises in these three cases. On 23rd of July, 1946, Mustafa Khan, Sub-Inspector, recovered on search a large quantity of gram from the kothas of Kura Mal and Ram Sarup xmder R. 81(4) of the Defence of India Rules, read with Section 7 of the Essential Supplies (Temporary Powers) Act and they were sentenced to pay a fine of Rs. 300/- each. The trial Court also directed forfeiture of the gram to the Crown as the accused did not possess the requisite license under the Food Grains Control Order.
2. On appeal the convictions and sentences of Ram Sarup and Kura Mal were maintained but the order about the forfeiture of gram was modified to the extent that out of the gram recovered from the Kothas of Kura Mal and Ram Sarup one hundred maunds were ordered to be restored to each of them subject to their producing the requisite license.
3. The plaintiffs in the three cases which are now the subject-matter of the above mentioned appeals Messrs Rati Ram Banwari Lal in case out of which appeal No. 136 has arisen, Ruldu Mal Sheo Karan Das out of which appeal No. 137 has arisen and Messrs Balu Mal Basant Lal in case out of which appeal No. 138 has arisen) brought the present three suits for the return of the gram weighing 300 maunds, 300 maunds and 592 maunds 17 seers respectively or in the alternative for the recovery of Rs. 2,362/8/-, Rs. 2362/8/- and Rs. 4,517/4/- respectively on account of their price alleging that the gram in question belonged to the plaintiff firms 1 and the Sub-Inspector of Police had no right or authority to seize the same and that the Orders for forfeiture of the same were illegal, ultra vires, null and void and not binding on the plaintiffs.
4. Ram Sarup was impleaded as defendant No. 2 in suits out of which appeals Nos. 136 and 137 have arisen and Kura Mal was impleaded as defendant No. 2 in suit out of which appeal No. 138 has arisen on the ground that the Sub Inspector of Police had seized the gram from the kothas of the said defendants but that the gram really belonged to the plaintiffs and not the said defendants. Kura Mal and Ram Sarup did not appear and the proceedings were taken ex parte against them. The suits were contested only by the East Punjab Province, now Punjab State, chiefly on the ground that Section 17 of the Defence of India Act bars the suits in question.
5. Originally the Punjab State denied that the gram belonged to the plaintiffs in each of the cases but the dispute on the said question was later on given up by the Punjab State and the learned District Judge has observed in his judgment that “the question of fact that the gram belonged to the plaintiffs has not been seriously disputed before me.” It was also denied that the plaintiff-firm in each of the cases was a joint Hindu family firm and the price of the gram was also disputed. The trial Court framed the following five issues:—
1. Whether the plaintiff firm is a joint Hindu family firm, and if not then what is its effect?
2. Whether the plaintiff has no locus standi to bring this suit and this suit is not competent?
3. Whether the plaintiff is the owner of the grams in dispute?
4. What is the price of the grams in dispute?
5. Relief.
6. After recording the evidence of the parties the trial Court found all the issues in favour of the plaintiffs and in each of the cases passed decree for the return of the gram sued for or in the alternative the price thereof at the rate of Rs. 7/10/- per maund. The Punjab State feeling aggrieved against the three decrees filed appeals in all these cases in the. Court of the District Judge, Karnal.
7. Before the District Judge two points were urged, namely, (1) that the suits in question were not maintainable in view of the provisions of Section 17 of the Defence of India Act and (2) that the suits were barred by limitation. The other findings of the trial Court were not contested. The learned District Judge did not agree with the aforesaid contentions of the Punjab State and dismissed all the three appeals. The Punjab State has now come up to this Court in second appeal.
8. Mr. Chetan Das, Assistant Advocate General, raises precisely the same two contentions before us as were raised before the learned District Judge. On the first point he has drawn our attention to the provisions of sub-section (2) of Section 17 of the Defence of India Act which is in the following terms:—
“Save as otherwise expressly provided under this Act, no suit or other legal proceedings shall lie against the Crown for any damage caused or likely to be caused by anything in good faith done or intended to be done in pursuance of this Act or any rules made thereunder, or any order issued under any such rules.”
9. He urges that the suits filed by the plaintiffs in each case are really suits for the recovery of damages caused in good faith to the present plaintiffs by an action of the Government done in pursuance of the Rules under the Defence of India Act and that the plaintiffs cannot maintain the suits in view of the immunity given to the Crown by sub-s. (2) of S. 17 of the Act. We regret we cannot agree with this contention. According to the allegations of the plaintiffs, their goods were wrongfully or illegally seized. If they had brought a suit for damages for the wrongful seizure of the goods there may have been some force in the argument that sub-s. (2) of S. 17 bars such a suit. The present suits, however, are of entirely different type. The plaintiffs did not claim any damages against the Government for wrongful seizure and merely claimed to get back the gram which actually belonged to them.
10. The provisions of S. 17 cannot possibly be interpreted to mean that on proof of their title the plaintiffs cannot claim return of their property. As observed above the Punjab State is not seriously disputing that the grams in question actually belonged to the plaintiffs and there could be no bar to a suit for the return of the grams which were actually taken possession of by the Government.
11. The object of S. 17 seems to be to provide immunity both to the officers and to the Crown with regard to certain actions which they may take in good faith under the provisions of the Defence of India Act or the rules made thereunder or the orders issued under the rules. This immunity cannot possibly extend to the limits of denying the rightful owner the right of claiming back his property. The immunity, in our opinion, can only extend to the incurring of a liability for damages on account, of the actions done in good faith in pursuance of the Act and the Rules.
12. Mr. Chetan Das drew our attention to Purnendu Bh. Deb Burman v. Union of India, AIR 1956 Cal 66, where a learned Single Judge dismissed the suit in that particular case on the ground that the same was not maintainable in view of the provisions of Sections 17 and 19 of the Defence of India Act. The suit in that case, however, related to price of goods which had been commandeered or requisitioned by the military authorities and used by them for war purposes. It was observed in that case as under—
“It is the plaintiffs' case in the plaint as I read it, and as appears from his correspondence that his goods were commandeered or requisitioned by the military authorities and used by them for war purposes.”
13. It was on the basis of the aforesaid observations that the said suit was dismissed. As a matter of fact it was conceded by the plaintiffs' counsel that at suit for compensation for goods taken over by military for war purposes was not maintainable in view of Sections 17 and 19 of the Defence of India Act. The same learned Judge, who decided that case, had occasion to deal with the matter in another case Karnaphuli Jute Mills Ltd. v. Union of India, AIR 1956 Cal 71, and held therein that neither Section 17 of the Defence of India Act nor the provisions of the Requisition of Land Act prohibit the filing of a suit in respect of compensation due for requisition of a claimant's, premises. He distinguished his first judgment in paragraph 14 of the subsequent judgment and in doing so observed as under—
“Mr. Kar referred me to my judgment in the case of AIR 1956 Cal 66.
In that case some timber, claimed by the plaintiffs to be theirs, was taken possession of by military authorities following the requisition of a tea estate where the timber lay. There was some dispute as to the ownership of this timber and the military authorities called upon the plaintiffs to establish their claim in a Court of law. The plaint in that case proceeded on the basis that the timber had been commandeered by military authorities for war purposes and it was conceded by learned counsel appearing for the plaintiffs that Section 17 of the Defence of India Act was a bar to such a suit.
The point about the maintainability of the suit even on the face of Section 17 of the Defence of India Act was not argued at all.”
14. It is, therefore, clear that AIR 1956 Calcutta 66 is not an authority for the proposition contended for by the learned Assistant Advocate Generali. We, therefore, find, that the three suits now before us were clearly maintainable and the provisions of sub-section (2) of S. 17 did not bar the suits.
15. On the point of limitation the learned Assistant Advocate-General relies on Article 2 of the First Schedule of the Indian Limitation Act and urges that the present suits filed after ninety days, of the seizure of the goods must be held to be barred by time. The suits out of which Regular Second Appeals Nos. 136 and 137 have arisen were; filed on 1st July, 1948, and the suit out of which Regular Second Appeal No. 138 has arisen was filed on 26th February, 1948, while the goods in all the three cases were actually seized on 23rd July, 1946. Article 2 of the First Schedule of the Indian Limitation Act reads as follows:—
Description of suit
Period of limitation
Time from which begins period to run.
For compensation for doing or omitting to do an act alleged to be in pursuance of any enactment in force for the time being in India.
Ninety days.
When the act or omission takes place.”
16. Even a cursory reading of the Article shows that the present suits are not covered by this Article. Firstly, they are not suits for compensation but for return of the goods in species. The plaintiffs in this case do not claim any compensation for doing or omitting to do an act alleged to be in pursuance of any enactment in force for the time being in India but claim the return of the goods on the basis of their title.
17. Secondly, the object of Article 2 is the protection of public officials, who, while bona fide purporting to act in the exercise of a statutory power, have exceeded that power and have committed a tortious act. The very language of the Article shows that it can be made applicable only when the pause of action is based on a tort. Rulings reported, as Rajputana Malwa Railway Co-operative Stores Ltd. v. Ajmere Municipal Board, ILR 32 All 491, and State of West Bengal v. Brindaban Chandra Pramanik, AIR 1957 Cal 44, also support the aforesaid view.
18. In our opinion the appropriate Article applicable to this case is Article 49 of the Second Schedule which expressly provides for suits for specific movable property or for compensation for wrongfully taking or injuring or wrongfully detaining the same and prescribes for such suit a period of three years from the time when the property is wrongfully taken or injured or when the detainer's possession becomes unlawful. In the result we hold that the suits in question were not barred by time and dismiss all the three second appeals and confirm the decrees of the Courts below in each of those cases. The plaintiffs in each case will have their costs throughout.
V.B.B
19. Appeals dismissed.