Mohanlal Jain Vs. His Highness
Maharaja Shri Sawai Man Singhji  INSC 76 (3 March 1961)
AIYYAR, T.L. VENKATARAMA DAS, S.K.
CITATION: 1962 AIR 73 1961 SCR (3) 702
CITATOR INFO :
F 1964 SC1590 (5,10) R 1964 SC1663 (5) F 1989
SC1247 (24) RF 1991 SC1654 (44)
Civil Procedure-Suit against
Ex-Ruler-MaintainabilityImmunity of Ex-Rulers from being sued -If
discriminatory"Sued", Meaning of-Code of Civil Procedure, 1908 (Act V
of 1908), ss. 86, 87-B-Constitution of India, Art. 14.
The appellant filed a suit for the recovery
of money as price of goods supplied against the Ex-Ruler of Jaipur.
Subsequently s. 87-B was introduced in the
Code of Civil Procedure making the provisions of s. 86 in respect of suits
against rulers of foreign States applicable to the rulers of former Indian
States. The Ex-Ruler raised the plea that the suit was incompetent as the
consent of the Central Government had not been obtained as required by s. 87-B.
The appellant contended: (i) that s. 87-B
violated Art. 14 Of the Constitution and was void, (ii) that s. 87-B did not
apply to the continuation of a suit pending at the time when s. 87-B was
enacted but only to the filing of a suit after the enactment of that section.
Held, that s. 87-B did not violate Art. 14 Of
the Constitution and was not void. Section 87-B of the Code of Civil Procedure
merely continued the privilege which was formerly enjoyed by the Rulers of
Indian States and in regard to which the covenants entered into by the
Ex-Rulers and the Government of India provided for their continuance. This
agreement about the privileges was further assured by Art.
362 Of the Constitution. The Ex-Rulers thus
formed a class and the special legislation was based upon historical
considerations applicable to them as a class. The classification was based on a
distinction which was real and substantial and it bore a just relation to the
object sought to be attained.
Held, further, that the suit was incompetent
against the ExRuler of Jaipur. The protection of s. 87-B read with s. 86
applied both to the filing of a suit and to its, pursuit through the courts.
Section 86 provides that "No Ruler............ may be sued in any
court........... A person is "sued" not only when the plaint is filed
against him, but is "sued" also when the suit remained pending
against him. The word "sued" covers the entire proceedings in an
action. Consequently, the consent of the Central Government was necessary not only
for the filing of the suit against the Ex-Ruler but also for its continuation
from the time consent was required.
703 Held, further, that s. 87-B was on its
terms applicable to pending suits and there was no saving in favour of pending
K. C. Mukherjee v. Mst. Rath Ratan Kuer,
(1935) I.L.R. 15 Pat. 268, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 20 of 1960.
Appeal from the judgment and decree dated
September 5, 1956, of the Judicial Commissioner's Court at Ajmer in Civil First
Appeal No. 3 of 1956.
B. D. Sharma, for the appellant.
M. C. Setalvad, Attorney-General of India, C.
L. Agarwala, M. K. Ramamurthy, R. K. Garg, D. P. Singh and S. C. Agarwal, for
the respondents I and 3.
1961. April 3. The Judgment of the Court was
delivered by HIDAYATULLAH, J. This is an appeal by the,, plaintiff against the
judgment and decree of the Judicial Commissioner, Ajmer, confirming the decree
of the trail Judge dismissing the suit. it comes before us on a certificate
under Arts. 132(1) and 133(1)(c) of the Constitution granted by the High Court
of Rajasthan after the Reorganisatiion of the States.
The suit was filed by the appellant for
recovery of Rs. 23,998-12-0 as price of goods supplied in the year 1947 to the
Ruler of Jaipur State, (including interest) and damages suffered by the
appellant due to the refusal of the defendants to take delivery of some other
goods similarly ordered. In addition to the ex-Ruler of Jaipur, his Military
Secretary and one Mohabat Singh, an employee of the ex-Ruler, were also joined
as defendants, on the plea that they had placed the orders as agents of, the
ex-Ruler. The suit was filed on February 28, 1951. The ex-Ruler raised the plea
that the suit was incompetent, as the consent of the Central Government under
s. 87-B of the Code of Civil Procedure was not obtained and asked that the suit
be dismissed. The other defendants denied the claim and also their liability on
various grounds. It may be mentioned the Military Secretary (second 704
defendant) has since died, and this appeal is now directed against the ex-Ruler
and Mohabat Singh only.
The Subordinate Judge held that though the
suit was filed prior to the enactment of s. 87-B by s. 12 of the Code of Civil
Procedure (Amendment) Act, 1951 (11 of 1951), it could not be continued against
the ex-Ruler. He adjourned the hearing for four months to enable the appellant
to obtain the necessary consent. The appellant applied to the Central
Government for its consent, but it was refused. He also applied in revision to
the Judicial Commissioner, contending that s. 87-B of the. Code of Civil
Procedure offended the equality clause in Art. 14 of the Constitution and was
thus void, but the Judicial Commissioner rejected the contention. He also
refused a certificate on the ground that there was no final order as required
by Art. 132(l)of the Constitution. The suit was subsequently dismissed against
all the three defendants. In regard to the exRuler, it was held that no suit
lay against him without the consent of the Central Government, and in regard to
the remaining defendants, it was held that they were protected by s. 230 of the
Indian Contract Act. Sub-section (3) of that section was held inapplicable,
inasmuch as a suit could be filed against the ex-Ruler with the consent of the
Central Government. The appellant appealed to the Judicial Commissioner, Ajmer,
but the appeal was dismissed. He obtained a certificate, as stated above, and
this appeal has been filed.
Two main questions have been raised in this
appeal. The first is that the dismissal of the suit against the ex-Ruler was
erroneous. In support of this contention, it is urged that s. 87-B of the Code
of Civil Procedure is ultra vires the Constitution in view of Art. 14, and, in
the alternative, that s. 87-B, even if valid, cannot apply to this suit, which
was pending when the section was enacted.
The right to continue the suit being a
substantive right, cannot, it is submitted, be taken away except by a law which
is made applicable to pending actions, either expressly or by necessary
intendment. Against the other respondent, it is contended that he was liable as
an agent or at least, as a 705 sub-agent, in view of the provisions of s.
230(3) of the Indian Contract Act. We are not concerned with the merits of the claim,
and they have not been mentioned at the bearing.
We shall begin by considering whether s. 87-B
is ultra vires and void. It is said that it discriminates in favour of ex-rulers
of Indian States by creating an immunity from civil actions. Prior to the
present Constitution, Part IV of the Code of Civil Procedure contained
provisions in respect of suits in particular cases. This was divided into three
parts. Sections 79 to 82 dealt with suits by or against the Crown or Public
Officers in their official capacity and s.
88 provided for suit of interpleader. We are
not concerned with them. Sections 83 to 87 dealt with suits by aliens and by or
against Foreign Rulers and Rulers of Indian States.
Sections 83 and 84 provided respectively when
aliens and foreign States may sue. Section 85 provided for the appointment by
Government of persons to prosecute or defend Princes or Chiefs. Section 86
provided for suits against Princes, Chiefs, Ambassadors and Envoys. It created
partial ex-territoriality by granting them exemption from civil jurisdiction
except when an action was brought with the consent of the Central Government.
The first sub-section provided:"Any such Prince or Chief, and any
ambassador or envoy of a foreign State, may in the case of the Ruling Chief of
an Indian State with the consent of the Crown Representative, certified by the
signature of the Political Secretary, and in any other case with the consent of
the Central Government, certified by the signature of a secretary to that
Government, but not without such consent, be sued in any competent Court."
The remaining four sub-sections dealt with the kinds of suits and the
conditions under which they could be brought and certain other aspects Of
ex-territoriality. Section 87 laid down the style of Princes or Chiefs as
parties to suits.
After the coming into force of the
Constitution, 89 706 certain adaptations were made by the President by the
Adaptations of Laws Order 1950, but we are not concerned with them. Suffice it
to say that the protection continued in view of Art. 372 of the constitution
(unless it was void under the Chapter on Fundamental Rights) till we come to
the enactment of Act 11 of 1951. The impact of the Fundamental Rights
provisions on s. 86 as originally enacted and on the new s. 87-B being the
same, we need not consider the matter separately.
When the Indian States integrated with
British India, the Rulers of States and the Government of India entered 'Into
covenants and agreements. In those covenants, it was agreed that the privileges,
dignities and titles of the Indian Princes would be continued to be recognised.
When the Constitution was enacted, the assurance in the covenants was
respected, and Art. 362 was included in the Constitution.
"In the exercise of the power of
Parliament or of the Legislature of a State to make laws or in the exercise of
the executive power of the Union or of a State, due regard shall be had to the
guarantee or assurance given under any such covenant or agreement as is
referred to in clause (i) of Article 291 with respect to the personal rights,
privileges and dignities of the Ruler of an Indian State." The reference
to Art. 291 merely indicates that those covenants or agreements were meant
which the Ruler of any Indian State had entered into with the Central
Government before the commencement of the Constitution. This description is not
repeated in Art. 362, but is incorporated by reference. The mention of Art. 291
in Art. 362 has no further significance, and the generality of the assurance in
the latter Article is not lessened.
The privilege of ex-territoriality -and
exemption from civil jurisdiction except with the consent of the Central
Government was one of long standing, and when the Amendment Act of 1951 was
passed, ss. 83 to 87 were reenacted. We are not concerned with all the changes
that were made, and reference to some 707 of them is unnecessary. Section 86
was amended by deleting all references to Ruling Chiefs of Indian States and
the first sub-section was reenacted as follows:
"86. (1) No Ruler of a foreign State may
be sued in any court otherwise competent to try the suit except with the
consent of the Central Government certified in writing by a Secretary to that
Government:" (proviso omitted).
Sub-section (3) gave protection against
arrest and, except with the consent of the Central Government, against
execution of decrees against the property of any such Ruler.
Section 87 laid down the style of foreign
Rulers as parties to suits. Section 87-A was added to define "foreign State"
and "Ruler" and to make the exemption only available to a State and
its head, recognised as such by the Central Government.
Section 87-B, with which we are concerned,
was specially enacted in respect of suits against Rulers of former Indian
States. It provided:
"87-B. (1) The provisions of section 85
and of sub-sections (1) and (3) of section 86 shall apply in relation to the
Rulers of any former Indian State as they apply in relation to the Ruler of a
(2) In this section(a)former Indian State' means
any such Indian State as the Central Government may, by notification in the
Official Gazette, specify for the purposes of this section; and (b) 'Ruler' in
relation to a former Indian State, means the person who, for the time being, is
recognised by the President as the Ruler of that State for the purposes of the
Constitution." By this provision, which is very much the same as the
former s. 86, the privilege previously enjoyed by the Rulers of Indian States
In this historical background, the question
of discrimination raised in the appeal must be examined. It is easy to see that
the ex-Rulers form a class and the special legislation is based upon historical
considerations applicable to them as a class. The Princes 708 who were, before
integration, sovereign Rulers of Indian States, handed over, after the
foundation of the Republic, their States to the Nation in return for an annual
Privy Purse and the assurance that their personal rights, privileges and
dignities would be respected. The Constitution itself declared that these
rights, etc., would receive recognition. A law made as a result of these
considerations must be treated as based on a proper classification of such
Rulers, who had signed the agreement of the character described above it is
based upon a distinction which can be described as real and substantial, and it
bears a just relation to the object sought to, be attained.
It is further contended that the Article
speaks of privileges but not of immunities, and we were referred to certain
other Articles of the Constitution where "immunities" are
specifically mentioned. It is not necessary to refer to those Articles.
Immunity from civil action may be described also as a privilege, because the
word "Privilege" is sufficiently wide to' include an immunity. The
Constitution was not limited to the choice of any particular words, so long as
the intention was clearly expressed. In our opinion, the words "personal
rights and privileges" are sufficiently comprehensive to embrace an
immunity of this character. It is, therefore, clear that the section cannot be
challenged as discriminatory, because it arises from a classification based on
It is next contended that s. 87-B only
applies the provisions of sub-ss. (1) and (3) of s. 86, that tile words of the
latter section are not retrospective, that the suit was filed before the
enactment of s. 87-B, and that the substantive right of the plaintiff to
continue his suit could not be taken away in the absence of express language or
clear intendment. The words of s. 86(l) are "No Ruler of a foreign State
may be sued in any court...... This precludes, it is said, only the initiation
of a suit and not the continuance of a suit already filed before the section
was enacted. In our opinion, these arguments cannot be accepted. The word
"sued" means not only the filing of a suit or a civil proceeding but
also their pursuit through Courts. A person 709 is sued not only when the
plaint is filed, but is sued also when the suit remains pending against him.
The word "sued" covers the entire proceeding in an action, and the
person proceeded against issued throughout the duration of the action. It
follows that consent is necessary not only for the filing of the suit against
the ex-Ruler but also for its continuation from the time consent is required.
In view of the amplitude of the word "sued", it is not necessary to
consider generally to what extent pending cases are affected by subsequent
legislation or refer to the principles laid down in The United Provinces V.,,
Atiqa Begum (1), Venugopala Reddiar v. Krishnaswamy Reddiar (2) or Garikapatti
Veeraya v. N. Subbiah Choudhury (3). If the language of s. 86 read with s. 87-B
were applicable only to the initiation of a civil suit, these cases might have
been helpful; but since the words "may sue" include not only the
initiation of a suit but its continuation also, it is manifest that neither the
suit could be filed nor maintained except with the consent of the Central
Government. In Atiqa Begum's Case (1), Varadachariar, J. referred to the two
principles applicable to cases where the question of retrospectivity of a law
has to be considered. They are that vested rights should not be presumed to be
affected, and that the rights of the parties to an action should ordinarily be
determined in accordance with the law, as it stood at the date of the
commencement of the action. But, the learned Judge pointed out that the
language of the enactment might be sufficient to rebut the first, and cited the
case of the Privy Council in K. C. Mukherjee v. Mst. Ram Ratan Kuer (4). Here,
the matter can be resolved on the language of the enactment. The language
employed is of sufficient width and certainty to include even pending actions,
and the contrary rule applies, namely, that unless pending actions are saved
from the operation of the new law, they must be taken to be affected. The word
"sued ", as we have shown, denotes not only the start but also the
continuation of a civil action, and the (1)  F.C.R.110 (2)  F.C.R.
(3)  S.C.R.4ss. (4) (1935) I.L.R. 15
710 Prohibition, therefore, affects not only
a suit instituted after the enactment of s. 87-B but one which, though
instituted before its enactment, is pending. In our judgment, the present suit
was incompetent against the first defendant, the ex-Ruler of Jaipur.
It is contended that defendants 2 and 3 acted
as the agents of the ex-Ruler and placed the order with the appellant.
The position of the Military Secretary since
dead) was on a different footing, but it is conceded that no cause of action
against him survived, because the appeal has abated against him. Mohabat Singh,
who is the third defendant, cannot be described as an agent of the ex-Ruler,
because his connection with the orders placed was merely to sign the letters
purporting to emanate from the Military Secretary.
Those letters he signed "for the
He was not acting as the agent of the
ex-Ruler but was performing the ministerial act of signing the letters on
behalf of the Military Secretary. This cannot be said to have constituted him
an agent. The suit against him was, therefore, misconceived, whatever might
have been said of the Military Secretary.
In our opinion, the dismissal of the suit was
justified in the circumstances of the case.
The appeal fails, and is dismissed with
costs. The appellant will pay court-fee on the memorandum of appeal, as he was
allowed to file this appeal as a pauper.