1 CA No.577/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.577 of 2010 IN CIVIL REVISION APPLICATION No.262 of 2010 (i) Ms.Eva Dradakova, Consul General (ii)The Consulate General of the Czech Republic ... Applicants Versus (i) M/s.Khemka Exports Pvt.Ltd. .... Respondent And (i) Union of India ... Intervener ... Mr. S.K.Sen with Mr.D.Vyas i/b R.A.K.Najam-ES-Sani for the applicants. Mr.D.J.Khambatta A.S.G with Mr.Vikramaditya Deshmukh and Shri Vinod Joshi for the applicant (intervenor) in C.A 577/10. Mr.V.A.Thorat, Sr. Counsel with Ms.Prachi Tatke i/b Shri Niranjan Lapasiya for respondent in CRA. CORAM : D.G. KARNIK, J DATED : 24th January 2011. 2 CA No.577/10 P.C. 1. By this application, the Union of India seeks leave to intervene and to be heard as an intervenor at the hearing of Civil Revision Application No.262 of 2010. 2. The basic facts in so far as they are relevant for the purpose of consideration of the intervention application are given below. The respondent filed a suit (RAE Suit No.1913/07) against the Consul General, Consul and Trade Commissioner and Consulate General of the Czech Republic (revision applicants) in the Small Causes Court, Mumbai for a declaration that he was their sub-tenant of the suit premises and for an injunction restraining the revision applicants from dispossessing him. The revision applicants appeared in the suit and claimed Diplomatic Immunity; they said that a civil proceedings could not be filed against them in a court of law in view of the Diplomatic Relations (Vienna Convention) Act, 1972 (for short “the Vienna Convention”) which has been adopted by the Parliament under Article 253 of the Constitution of India. After hearing the parties on the question whether a plaint was required to be rejected in view of the Diplomatic Immunity claimed by the revision applicants. By an order dated 18 December 2007, the learned Judge of the Small Causes Court rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure. However on appeal, the 3 CA No.577/10 appellate Bench of the Small Causes Court, by its order dated 6 May 2009, set aside the order of the trial Judge. Being aggrieved by the order of the appellate Bench, the revision applicants have filed the revision application. In the revision application, the Union of India has made an application for intervention. 3. Learned Addl. Solicitor General representing the Union of India submitted that the question of interpretation of the Vienna Convention arises in this revision application. Whether a consulate general and the diplomatic officers of a foreign state can be sued in a civil proceedings without the permission of the Central Government in view of the Vienna Convention is an issue which would be required to be decided in the revision application. Union of India claims reciprocal immunity for its consulate officers in suits instituted against them in foreign countries. Hence, the Union of India be allowed to intervene in the proceedings. Mr.Thorat, the learned Sr. Advocate appearing on behalf of the respondents opposed the application and submitted that the immunity claimed by a foreign consulate does not extend to the immunity from a civil proceeding especially when the foreign consulate enters into a commercial activity within India. Hence the Union of India cannot be heard in the matter. 4. It may be noted that the respondent in its plaint has stated as follows: 4 CA No.577/10 “The Plaintiff states that as the diplomatic agent the Defendants enjoyed the immunity from the Civil, Criminal and administrative jurisdiction of receiving state i.e. India. However under Article 31 of the Protocol hand-book issued under The Diplomatic relation (Vienna Convention) Act 1972, the following exceptions are craved out in enjoyment of such immunity.” After this respondents have given three exceptions to the diplomatic immunity. It is thus clear that respondent was aware that foreign diplomats and consulars are entitled to a certain diplomatic immunity even in respect of a civil proceeding. It however claims that in the facts and circumstances of the present case, diplomatic immunity does not extend to the suit filed by it against the revision applicants. 5. Even according to the plain averments in the plaint the question of extent of diplomatic immunity enjoyed by the revision applicants under the Vienna Convention would be required to be decided by the court. If so the views of the Union of India, which is party to the Vienna Convention and who would be affected by any interpretation thereof (because it also claims similar immunity for its diplomatic officers on reciprocal basis) must be considered regarding interpretation of the Vienna Convention. The presence 5 CA No.577/10 of Union of India for the purpose of interpretation of the said convention would in any event aid and assist the court in interpretation of the Vienna Convention. 6. Mr.Thorat then submitted that previously Union of India was joined as a party to the revision application. However, by an order dated 25 October 2010, this Court had directed the deletion of Union of India as party respondent. In view of the said order, Union of India cannot be allowed to intervene in the matter. The argument of Mr.Thorat overlooks the essential distinction between a party to a proceeding and an intervener. The order holding that the Union of India is not a necessary party to the proceeding does not prevent the Union of India from intervening in the matter and assisting the Court only in relation to the interpretation of the Vienna Convention and extent of diplomatic immunity enjoyed by the diplomatic agents of the foreign states. Consequently, impugned application is allowed. Union of India is allowed to intervene in the matter without being joined as a party to the revision application. The Union of India would be heard at the hearing of the revision application. (D.G.KARNIK, J)