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5. On the pleadings of the parties a number of issues were framed in the case. The parties closed their evidence on 8-9-1972. During the course of arguments on 4th February, 1973 the defendants filed the applications in question under Order 6 Rule 17 read with Section 151 Cpc for amendment of the written statement.

I. As. Nos. 846 & 847 of 1973.

6. The defendants in the applications titled above have stated that Haji Mohd. Yousuf was on the date of institution of the suit an alien enemy and was therefore under a legal disability to sue under Section 83 of the Code of Civil Procedure. The defendants prayed that they might be permitted to insert the following paragraph as preliminary objection No. 5 in the written statement: "(V) That the suit on behalf of plaintiff No. 3 is incompetent in law. The plaintiff No. 3 was not possessed of right to sue. The said plaintiff was at the time of the institution of the suit, and all along thereafter, a citizen and national of Pakistan and an alien enemy. The said 'Plaintiff was debarred from suing under Section 83 of C. P. C. In any event, assuming though denying that a suit by him was competent the plaintiff lost his right to sue as soon as Pakistan committed aggression against India on 3rd December 1971 and when both the countries were at war with each other. The said plaintiff acquired the status of an enemy alien on account of the said Indo Pakistan war and. Declaration of Emergency by the President of India on 3rd December 1971. Further all the legal representatives of the plaintiff No. 3 who have been brought on the record being citizens and nationals of Pakistan suffer from the same disability and incompetence as plaintiff No. 3. The suit on behalf of plaintiff No. 3 or his legal representatives is liable to be dismissed."

8. Section 83 of the Code of Civil Procedure is in the following terms:-

"Alien enemies residing in India with the permission of the Central Government, and alien friends, may sue in any Court otherwise competent to try the suit, as if they were citizens of India but alien enemies residing in India -without such permission or residing in a foreign country, shall not sue in any such court.
Explanation: Every person residing in a foreign country, the Government of which is at war with India and carrying on business in that country without a license in that behalf granted, by the Central Government shall for the purpose of this section, be deemed to be an alien enemy residing in a foreign country."

9. The expression "alien enemy " is not defined in the Code. But the explanation to Section 83 suggests that subject of a country which is at war with India would be an alien enemy within the meaning of Section 83. A judicial notice can be taken of the fact that Pakistan had committed aggression against India in August 1965. There was a ceasefire within about a month of the outbreak of the hostilities and both the countries had entered into an agreement known as "Tashkent" agreement. Under that agreement both the sides had agreed to withdraw to the positions held prior to August 5, 1965. The suit was instituted by Haji Mohd. Yousuf on 20th October, 1967. Admittedly, at that time Pakistan Government was not at war with India.

10. Mr. Malik, learned counsel for the defendants contended that after Pakistan had committed aggression against India in 1965, the status of Plaintiff No. 3 continued to be one of an alien enemy and, therefore. plaintiff No. 3 was not competent to sue in an Indian Court for the recovery of the property. Mr. Malik further contended that in any case there was a war between Pakistan and India in December 1971 and all the legal representatives of Haji Mohd Yousuf who are nationals of Pakistan, had become alien enemy and they are debarred from prosecuting the suit under Section 83 of the Code. According to the counsel the word "sue" in Section 83 should be construed to mean not only the commencement of the proceedings but also the follow up to its proper termination.