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CALCUTTA HIGH COURT
D. Chatterjee, J., Beachcroft, J.
Abdul Qader Khalifa - Appellant
Versus
Fritz Kapp - Respondent
Decided On : 11-04-1916
Civil Procedure - Code of Civil Procedure - Sections 9, 83 - The court held that a suit against an alien enemy residing in British India can be tried during the pendency of war, as there is no provision in the Code barring such suits, and the object of internment is to prevent the defendant from doing mischief, not to cut down their liabilities.
Fact of the Case:
The plaintiff, a British Indian subject and tailor, did some tailoring work for the defendant, a German subject and photographer, in Dacca after the declaration of war with Germany. The plaintiff filed a suit for recovery of wages due, and the question referred was whether such a suit would lie during the pendency of the war.
Finding of the Court:
The court held that the suit would lie, and there is nothing in law to prevent its being tried before the restoration of peace.
Issues: Whether a suit against an alien enemy residing in British India can be tried during the pendency of war.
Ratio Decidendi: Sections 9 and 83 of the Code of Civil Procedure do not bar suits against alien enemies residing in British India, and the object of internment is to prevent the defendant from doing mischief, not to cut down their liabilities.
Final Decision: The case must be tried in due course of law.
JUDGMENT
1. The plaintiff is a British Indian subject, a tailor in the town of Dacca. The defendant, a subject of the German Emperor, was a photographer in that town, [n November 1914, i.e., after the declaration of war with Germany, the plaintiff did some tailoring work for the defendant, and the present suit was brought for the recovery of wages, etc., due on that account. The question referred is whether such a suit would lie during the pendency of the war. We think the suit would lie, and there is nothing in law to prevent its being tried before the restoration of peace.
2. Section 9 of the CPC provides that the Courts shall have jurisdiction to try all suits of a civil, nature, excepting suits the cognizance of which is expressly or impliedly barred. Section 83 provides that alien enemies residing in British India with the permission of the Governor-General in Council may sue in the Courts of British India, but an alien enemy residing in British India without such permission shall not sue in such Courts There is no provision in the Code barring suits against alien enemies, and we see no reason why such suits should not be heard and decided during the continuance of the war. No matter whether the cause of action arose before the war or after the war, an alien enemy can be sued in our Courts and would have every right to present his case before the Courts in accordance with the laws of procedure. The latest case in England is that of Halsey v. Lowenfeld (1916) 1 K.B. 143 : 85 L.J.K.B. 323. In that case Mr. Justice Ridley held after discussing previous cases that a, suit for rent accrued due after the declaration of the war was maintainable in the British Courts against an alien enemy. We see nothing in our own Code of Procedure to prevent us from taking the same view. The fact that the defendant has been interned does not make any difference, as the object of internment is to prevent him from doing mischief and not to cut down his liabilities. The case, therefore, must be tried in due course of law.
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