Banerjee, J.
1. For the Bengali year 1350 (corresponding to the assessment year 1944-45), the plaintiff-appellant was assessed to agricultural income-tax amounting to Rs. 5642-8-0, by the Agricultural Income-tax Officer of district Dinajpur, then in the province of undivided Bengal.
2. By a chalan (Ext 1), dated November 28, 1945, the appellant deposited the tax, as assessed, in the sub-treasury at Balurghat. He, however, preferred an appeal against the order of assessment.
3. The Assistant Commissioner of Agricultural Income-tax, Bengal, having his office, at the material time, at Anderson House in the town of Calcutta, by his order dated June 15, 1946 (Ext. 2) allowed the appeal and found that a sum of Rs. 3317-9-0 only was payable by the appellant as agricultural income-tax for the year of assessment. As a result of the appellate order, the appellant became entitled to get a refund of Rs. 2324-15-0, out of the tax already deposited by him at Balurghat sub-treasury, under chalan Ext. 1.
4. With effect from August 15, 1947 there was the partition of India and two dominions, India and Pakistan, came into existence.
5. The plaintiff-appellant alleges that after the partition as aforesaid he made an application for refund of tax, paid in excess of assessment, to the Agricultural Income-tax Officer, Malda and West Dinajpur (in the State of West Bengal) and also filed another application before the Agricultural Income-tax Officer, Dinajpur (now in East Pakistan). The plaintiff further alleges that he did not get any refund as claimed.
6. Thereafter, the plaintiff-appellant filed the suit, out of which this second appeal arises, in the Court of the Subordinate Judge, West Dinajpur both against the State of West Bengal and the Province of East Pakistan, claiming a sum of Rs. 2349-15-0 said to be refundable to him as tax paid in excess of assessment together with certain costs incurred by him.
7. In paragraph 2 of the plaint the plaintiff-appellant claimed that both the State of West Bengal and the Province of East Pakistan were jointly and severally liable to pay back the amount of the plaintiff-appellant. In making such a claim the plaintiff-appellant was apparently basing his case under Article 10 (2) (c) of the Indian Independence (Rights, Property and Liabilities) Order, 1947.
8. In paragraph 3 of the plaint the plaintiff-appellant alleged that his place of residence as well as his properties liable for agricultural income-tax were all situate within the jurisdiction of the Subordinate Judge, West Dinajpur.
9. Summons in the suit could not be served on the Province of East Pakistan. The State of West Bengal alone contested the suit. The material defence of the State of West Bengal is to be found in paragiaph 2 of the written statement which I quote below :
'The plaintiff was entitled to refund of Rs. 2324-15-0 from the Province of (undivided) Bengal as per order of the Assistant Commissioner dated 15th June, 1946, under Section 47(2) of the Bengal Agricultural Income-tax Act, 1944, and that under Article 9 (b) of the Indian Independence (Rights, Property and Liabilities) Order, 1947 made under the Indian Independence Act, 1947, it is a liability of the East Bengal Government; that the defendant No. 1 is not liable for the claim of refund.'
10. The suit was dismissed by the trial court and the decree was affirmed in appeal. Hence this second appeal by the plaintiff-appellant.
11. In dismissing the appeal the court of appeal below observed that neither Article 8 nor Article 9 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, had application in the case. So far as Article 10 of the said Order is concerned, the learned Subordinate Judge observed as follows :
'In my opinion, it is doubtful whether it is a case of actionable wrong at all, though these words have been given a wide interpretation in the case reported in State of Tripura v. Province of East Bengal, : [1951]19ITR132(SC) . Even if it be held that it is a liability in respect of an actionable wrong, there appears another hurdle which the plaintiff has got to cross. The facts of the case were that the deposit was made at Balurghat which was a sub-treasury at that time, under the order of the Agricultural Income-tax Officer at Dinajpur, and the money was ultimately deposited in the Dinajpur Treasury, which is now within Pakistan. That being so, it may at best be a joint liability of the Province of East and West Bengal. It should be remembered that it is a joint liability and not a joint and s-sveral liability of the respective Province. That being so, in the absence of the Province of East Bengal, as in this case, there cannot be any decree.'
12. Mr. Nani Coornar Chakravarty, learned Advocate for the appellant, contended that the learned District Judge was wrong in his statement of the law and the claim of the plaintiff, according to Mr. Chakravarty, was governed by Article 10 (2)(b)of the Indian Independence (Rights, Property and Liabilities) Order, 1947.
13. Mr. Nirmal Chandra Chakravarty, the learned Government Pleader, made a half-hearted attempt to stick to the stand taken in the written statement, viz. Article 9 of the aforesaid order applied and the liability was that of the Province of East Bengal. He argued further that even if Article 10 (2) (b) applied, there was no evidence in the instant case to show that the cause of action arose wholly within the State of West Bengal. Mr. Chakravaity submitted that in such circumstances the plaintiff's claim against the State of West Bengal must fail.
14. After the decision of the Supreme Court in the case of the State of West Bengal v. Serajuddin Batley, : [1954]1SCR378 , it is too late now to contend that Article 9 of the Indian (Independence (Rights, Property and Liabilities) Order, 1947, has any application to the facts of the instant case. The claim of the plaintiff is not for recovery of any contractual liability of the nature of loan or guarantee. The words 'other financial obligation' used in Article 9 must be construed ejusdem generis with the words 'loans, guarantees' as was decided in the Supreme Court judgment above referred to. I, therefore, repel the first contention made by the learned Government Pleader.
15. In the present case, the claim for refund of tax paid in excess of assessment is based on the wrongful refusal on the part of the authorities to refund the excess payment. This is at best claim based on infringement of a non-contractual right or, in other words, an actionable wrong. In the case of the State of West Bengal v. Brindaban Chandra Pramanik, : AIR1957Cal44 , Lahiri, J., hearing a reference to a third Judge on a difference between P. N. Mookerjee, J. and Sen, J., observed :
'Articles 8, 9 and 10 of the Indian Independence (Rights, Properly and Liabilities) Order, 1947, distribute between themselves all the pre-partition liabilities of the undivided Province of Bengal. As Articles 8 and 9 distribute contractual liabilities, the expression 'liability in respect of an actionable wrong other than breach of contract' occurring in Article 10 must include all non-contractual liabilities. The expression 'actionable wrong' is not used in any technical sense but means all infringements of rights which are actionable and the only condition required to bring them under Article 10 is that they must be infringement of non-contractual rights. If they are infringement of contractual rights they fall either under Article 8 or Article 9.'
16. That being the position in law, I hold that, provided the plaintiff succeeds in proving that the cause of action in the instant claim arose wholly in the State of West Bengal, his claim would be governed by Article 10 (2) (b) of the Indian Independence (Rights, Property and Liabilities) Order, 1947 and by no other Article.
17. Turning now to the cause of action in the claim, I find that the plaintiff has proved nothing. The plaintiff appears to have pleaded that he became entitled to a refund because of a reduction in assessment of tax made by the Assistant Commissioner. The aforesaid order was no doubt made by an Officer having, at the material time, his office in Calcutta now in West Bengal. But before the plaintiff becomes entitled to refund he must make an application under Rule 17 of the Bengal Agricultural Income-tax Rules, 1944, the relevant portion of which I quote below :
'17 (1) An application for refund of tax under the Act shall be made as follows :-- (a) if the applicant ordinarily resides in West Bengal, to the Agricultural Income-tax Officer of the district or area in which the applicant is chargeable directly to tax, or if he is not chargeable directly to tax, to the Agricultural Income-tax Officer of the district or area in which he ordinarily resides.'
Thereupon, if in spite of a proper application made before the proper authority, that is to say, the Agricultural Income-tax Officer, having jurisdiction to deal with applications for refund under Rule 17(1) (a), there is a refusal on the part of that officer to deal with that application for refund or to comply with a demand for refund, as the appellant alleges was done in the instant case, then only the appellant will have a cause of action to enforce his remedy by way of a suit in an Indian Court, provided, however, the cause of action for such suit arose wholly in the State of West Bengal.
18. It has not been proved in this case where the appellant ordinarily resides. It has also been not proved whether any application for refund was filed before the Agricultural Income-tax Officer of the district or area in which the plaintiff-appellant is chargeable directly to tax. It was alleged in paragraph I. of the plaint that the applications for refund were filed before the Agricultural Income-tax Officer, Malda and West Dinajpur (in the State of West Bengal) and also before the Agricultural Income-tax Officer of the district of Dinajpur (in the Province of East Pakistan). I do not find anything on the record from which I may arrive at the conclusion which of the two officers satisfied the provisions of Rule 17 (1) (a) of the Bengal Agricultural Income-tax Rules. I do not also find the order, if any at all, made on the aforesaid applications. In the absence of necessary evidence I am unable to come to the conclusion that the cause of action for the plaintiff's claim arose wholly within the State of West Bengal within the meaning of Article 10 (2) (b) of the Indian Independence (Rights, Property and Liabilities) Order, 1947.
19. I, therefore, hold that the plaintiffs case shall be governed by Article 10 (2) (b) if only he succeeds in proving that his cause of action arose within the State of West Bengal, otherwise Article 10(2) (a) will apply, and the claim against the Province of East Pakistan would not be maintainable in a Court in India.
20. In the circumstances aforesaid, the case must be sent back to the trial court with opportunity to the plaintiff-appellant to adduce evidence on the point that the cause of action for the claim arose wholly within the State of West Bengal. If he succeeds in doing so, he may be entitled to a decree.
21. This appeal is, accordingly, allowed and the case is remanded to the trial court now to be decided in the light of my observations contained in this judgment.
22. There will be no order as to costs in this appeal.
Lahiri, J.
23. I agree.