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12. It would be noticed, therefore, that the (requisition in this case on the ground of the property remaining undelivered for a period of over 15 days due to absence of any claimant was not under Rule 75A(1) of the Defence of India Rules and therefore there was no question of paying any compensation under Sub-rule (4) of that rule.

13. Then again a question arises as to whether notification (Ext. A/2) was legal and whether the requisition was validly made by virtue of the powers conferred in accordance with that notification. Mr. Caldeo Sahay contended that the notification was a legal one and the requisition was legal; therefore, it was not a wrong done by the Province of Assam. This, therefore, not being a wrongful act was not an actionable wrong. Mr. Government Advocate submitted that it is not necessary to decide as to whether the seizure or the requisition was legal or illegal and/ or whether the compensation which ought to have been paid to the plaintiff was a statutory compensation for wrongful or rightful seizure because, in his submission, in all events it was an actionable wrong and the matter was covered by Article 10 of the 1947 Order and not by the phrase 'other financial obligations' occurring in Article 9.

In my opinion, the contention of the learned I Government Advocate is sound, and on the date of partition namely. 15-8-1947 the claim of the plaintiff was an actionable wrong irrespective of the question whether the notification (Ext. A/2) was legal or illegal and/or whether the seizure was legal or illegal. So far as the payment of statutory compensation is concerned I have already held that Sub-rule (4) of Rule 75A is not attracted. But I am also inclined to accept the view that, even if it be held that the payment was a payment of statutory compensation, yet it was an actionable wrong because failure to pay compensation entitled the plaintiff to bring an action and to claim compensation. Therefore, in my opinion, looked at from any point of view, the claim of the plaintiff was an actionable wrong and was covered by Article 10 (4) of the Indian Independence (Rights, Property and Liabilities) Order, 1947 and not by phrase 'other financial obligations' in Article 9.

17. Article 8 of the Order deals with contracts and all rights and liabilities arising therefrom. Article 9 deals with loans, guarantees and other financial obligations of the like nature. They may arise out of contracts but they are special kinds of obligations provided in Article 9 of the Order. Article 10 of the Order provides for distribution of "any liability in respect of an actionable wrong other than breach of contract."

It will be noticed, therefore, that any liability in respect of all kinds of actionable wrong other than breach of contract is provided in Article 10. Claim for damages for breach of contract is also actionable wrong. So is claim for damages for tortious acts. Over and above, there are other kinds of actionable wrongs which are envisaged under Article 10. In my opinion, immediately before the date of partition, that is, 15th August, 1947 when the plaintiff did not get his compensation, statutory or otherwise, for legal or illegal requisition or seizure of his grains by the Province of Assam, it was a liability outstanding in respect of an actionable wrong, against the Province of Assam and by virtue of Clause (4) of Article 10 of the said Order the liability as from the date of partition was a liability of the Province of East Bengal (Pakistan), In that view of the matter, the plaintiff's suit must fail.

"In my opinion, there can be an actionable wrong which does not arise out of a breach of contract and at the same time does not answer to the description of a 'tort' as it is under-stood in English Law ......."

Further on.

"In the English law 'tort' is a species of civil injury and so is a breach of contract; but it is not quite correct to say that the two together exhaust all forms of actionable wrongs known to English law......."

Fazl All, J., who delivered a dissentient judgment, however, held that the expression "actionable wrong" was understood ia English Law as interchangeable with the term "tort". In that view of the matter, it was held by the learned Judge that the Act impugned by the plaintiff in that case would not amount to a tortious act and as such was not an actionable wrong. As a necessary corollary, the liability for that act could not be fastened upon the Government of East Bengal and the High Court of Calcutta had decided the point correctly in holding that the Court at Ali-pore was not competent to try the suit against the Province of East Bengal. Mr. Baldeva Sahay has relied upon the narrow meaning of the expression "actionable wrong" which would give a cause of action to the plaintiff and Mr. Lal Narain Sinha has contended that the expression "actionable wrong" should be wide enough to cover every case where there is a failure to fulfil any obligation laid upon the defendant.