http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: MOHANLAL JAIN

       Vs.

RESPONDENT: HIS HIGHNESS MAHARAJA SHRI SAWAI MAN SINGHJI

DATE OF JUDGMENT: 03/03/1961

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. AIYYAR, T.L. VENKATARAMA DAS, S.K. KAPUR, J.L. SHAH, J.C.

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)

ACT: Civil   Procedure-Suit   against   Ex-Ruler-Maintainability- Immunity  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.

HEADNOTE: 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  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  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 Ex-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

Ruler 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 actions. K.   C. Mukherjee v. Mst.  Rath Ratan Kuer, (1935) I.L.R. 15 Pat. 268, applied.

JUDGMENT: 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 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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

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  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  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

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. 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  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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

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 s.  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  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

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   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) [1940] F.C.R.110             (2) [1943] F.C.R. 39. (3)  [1957] S.C.R.4ss.            (4) (1935) I.L.R. 15  Pat. 268. 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 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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

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. 711