Judgment Case ID: 1159

Judgment:
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 section 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 articles 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 section 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 lability 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 section 87 B by section 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 section 87 B of the. Code of Civil Procedure offended the equality clause in article 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 article 132(l)of the Constitution. The suit was subsequently dismissed against all the three defendants. In regard to the ex Ruler	 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 section 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 section 87 B of the Code of Civil Procedure is ultra vires the Constitution in view of article 14	 and	 in the alternative	 that section 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 section 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 section 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 section 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 article 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 section 86 as originally enacted and on the new section 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 article 362 was included in the Constitution. It reads: "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 article 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 article 362	 but is incorporated by reference. The mention of article 291 in article 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	 sections 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 foreign State. (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 section 86	 the privilege previously enjoyed by the Rulers of Indian States was continued. In this historical background	 the question of dis crimination 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 historical facts. It is next contended that section 87 B only applies the provisions of sub sections (1) and (3) of section 86	 that tile words of the latter section are not retrospective	 that the suit was filed before the enactment of section 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 section 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 is sued 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 vs Krishnaswamy Reddiar (2) or Garikapatti Veeraya vs N. Subbiah Choudhury (3). If the language of section 86 read with section 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 vs 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) [1940] F.C.R.110 (2) (3) [1957] S.C.R.4ss. (4) Pat. 710 Prohibition	 therefore	 affects not only a suit instituted after the enactment of section 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 Military Secretary". 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. Appeal dismissed.

Summary:
The appellant filed a suit for the recovery of money as price of goods supplied against the Ex Ruler of Jaipur. Subsequently section 87 B was introduced in the Code of Civil Procedure making the provisions of section 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 section 87 B. The appellant contended: (i) that section 87 B violated article 14 Of the Constitution and was void	 (ii) that section 87 B did not apply to the continuation of a suit pending at the time when section 87 B was enacted but only to the filing of a suit after the enactment of that section. Held	 that section 87 B did not violate article 14 Of the Constitu tion 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 article 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 Ex Ruler of Jaipur. The protection of section 87 B read with section 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 section 87 B was on its terms applicable to pending suits and there was no saving in favour of pending actions. K. C. Mukherjee vs Mst. Rath Ratan Kuer	 Pat. 268	 applied.