Mohanlal Jain vs His Highness Maharaja Shri Sawai Man... on 3 April, 1961

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 3 April, 1961

Coram: J.C. Shah, J.L. Kapur, M. Hidayatullah, S.K. Das

In this case the plaintiff, Mohanlal Jain, appealed against the judgment and decree of the Judicial Commissioner of Ajmer, which had confirmed the decree of the trial judge that dismissed his suit. The appeal reached the Supreme Court of India on a certificate issued under Articles 132(1) and 133(1)(c) of the Constitution, a certificate that had been granted by the High Court of Rajasthan after the reorganisation of the states. The bench of the Supreme Court comprised Justices J. C. Shah, J. L. Kapur, M. Hidayatullah and S. K. Das, and the judgment was authored by Justice Hidayatullah.

The plaintiff had originally instituted the suit on 28 February 1951 to recover a sum of Rs 23,998‑12‑0, which represented the price of goods he claimed to have supplied in 1947 to the former ruler of Jaipur State, together with interest. In addition to seeking the monetary recovery, he claimed damages that he alleged arose because the defendants had refused to accept delivery of other goods that had been ordered in a similar manner. The plaintiff named as defendants the ex‑ruler of Jaipur, the ex‑ruler’s military secretary, and an individual named Mohabat Singh, who was employed by the ex‑ruler; the plaintiff contended that the military secretary and Mohabat Singh had acted as agents of the ex‑ruler in placing the orders. The ex‑ruler challenged the competence of the suit on the ground that the plaintiff had not obtained the consent of the Central Government required under section 87‑B of the Code of Civil Procedure, and he moved that the suit be dismissed. The other two defendants denied the plaintiff’s claim and also denied any liability on various other grounds. It was noted that the military secretary, who was the second defendant, had since died, and consequently the present appeal was directed only against the ex‑ruler and Mohabat Singh.

The Subordinate Judge observed that, although the suit had been filed before the enactment of section 87‑B by section 12 of the Code of Civil Procedure (Amendment) Act, 1951 (Act II of 1951), the suit could not be proceeded against the ex‑ruler without the required government consent. The judge therefore adjourned the hearing for four months so that the plaintiff could seek the necessary consent. The plaintiff applied to the Central Government for that consent, but the application was refused. The plaintiff also filed a revision before the Judicial Commissioner, arguing that section 87‑B was violative of the equality clause of Article 14 of the Constitution and therefore void. The Judicial Commissioner rejected this contention and also refused to grant a certificate on the basis that there was no final order as required by Article 132(1) of the Constitution. Consequently, the suit was dismissed against all three defendants. Regarding the ex‑ruler, the Commissioner held that no suit could lie against him without the Central Government’s consent. Concerning the remaining defendants, the Commissioner held that they were protected by section 230 of the Indian Contract Act, and that sub‑section (3) of that section was inapplicable because a suit could be maintained against the ex‑ruler only with the Government’s consent. The plaintiff then appealed to the Judicial Commissioner of Ajmer, but that appeal was also dismissed.

The appellant had secured the required certificate, as previously noted, and on that basis lodged the present appeal. Two principal questions were framed for determination in this appeal. The first question concerned whether the dismissal of the suit against the ex‑Ruler had been erroneous. The appellant urged that section 87‑B of the Code of Civil Procedure was ultra vires the Constitution because it contravened Article 14, and, in the alternative, that even if section 87‑B were constitutionally valid, it could not be applied to the suit because the suit was already pending when the provision was enacted. It was submitted that the right to continue a suit was a substantive right and that such a right could be taken away only by a law that was expressly made applicable to pending actions or that was intended to apply to them by necessary implication. The second question related to the other respondent. It was contended that the respondent was liable either as an agent or at least as a sub‑agent on the basis of section 230(3) of the Indian Contract Act. The Court noted that it was not required to consider the merits of that claim, and that the claim had not been addressed during the hearing.

The Court then proceeded to examine the first question, namely whether section 87‑B was ultra vires and void. It was submitted that the provision discriminated in favour of ex‑Rulers of Indian States by granting them immunity from civil actions. The Court observed that, before the Constitution came into force, Part IV of the Code of Civil Procedure contained special provisions for suits arising in particular circumstances and that this part was divided into three divisions. Sections 79 to 82 dealt with suits by or against the Crown or public officers in their official capacity, and section 88 dealt with interpleader suits; the Court clarified that these sections were not relevant to the present matter. Sections 83 to 87 governed suits involving aliens and suits by or against foreign rulers and rulers of Indian States. Sections 83 and 84 specified when aliens and foreign states might institute suits. Section 85 authorised the Government to appoint persons to prosecute or defend princes or chiefs. Section 86 dealt with suits against princes, chiefs, ambassadors and envoys. This section created a limited form of extraterritoriality by exempting such persons from civil jurisdiction unless a suit was brought with the consent of the Central Government. The first sub‑section of section 86 provided that “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 Court explained that the remaining four sub‑sections of section 86 dealt with the categories of suits that could be brought, the conditions required for such suits, and other aspects of the limited extraterritorial protection. Section 87, on the other hand, prescribed the style in which princes or chiefs were to be named as parties to suits. After the Constitution became operative, the President, by means of the Adaptations of Laws Order 1950, made certain modifications to these provisions. The Court noted that the subsequent analysis would consider the effect of those adaptations, but that matter was not pursued further in the present discussion.

In this part of the judgment the Court observed that the protection afforded to the princes continued under Article 372 of the Constitution, unless it was invalidated by the Chapter on Fundamental Rights, until the enactment of Act II of 1951. The Court noted that because the effect of the Fundamental Rights provisions on section 86 as originally enacted and on the newly created section 87‑B was identical, there was no need to examine that issue separately. When the Indian States were integrated with British India, the rulers of those states and the Government of India executed covenants and agreements. Those covenants stipulated that the privileges, dignities and titles of the Indian princes would continue to be recognised. Upon the adoption of the Constitution, the guarantee contained in those covenants was honoured, and Article 362 was incorporated into the Constitution. Article 362 states that in exercising legislative or executive power, due regard must be given to the guarantee or assurance referred to in clause (i) of Article 291 concerning the personal rights, privileges and dignities of the ruler of an Indian state. The Court explained that the reference to Article 291 merely indicates that the covenants or agreements concerned were those entered into by the ruler of any Indian state with the Central Government before the Constitution commenced. Although Article 362 does not repeat this description, it incorporates it by reference, and the mention of Article 291 in Article 362 adds no further significance; the general assurance in Article 362 remains unchanged. The privilege of extraterritoriality and exemption from civil jurisdiction unless the Central Government gave its consent had long existed, and when the Amendment Act of 1951 re‑enacted sections 83 to 87, the Court was not concerned with every amendment. Section 86 was amended by removing all references to ruling chiefs of Indian states, and its first sub‑section was re‑enacted to provide that no ruler of a foreign state may be sued in any competent court except with the Central Government’s written consent, certified by a secretary. Sub‑section 3 protected such rulers from arrest and, without the Government’s consent, from execution of decrees against their property. Section 87 prescribed the style of foreign rulers as parties to suits, while section 87‑A defined “foreign state” and “ruler” and limited the exemption to a state and its recognised head. Finally, section 87‑B, the provision directly before the Court, was specially enacted for suits against rulers of former Indian states and provided the text set out in the judgment.

The Court observed that the rules set out in section 85 together with sub‑sections (1) and (3) of section 86 were to be applied to the rulers of any former Indian State in exactly the same manner as they applied to the ruler of a foreign State. It further explained that, for the purposes of this provision, the term “former Indian State” denoted any Indian State that the Central Government might specify by publishing a notification in the Official Gazette, and that the term “Ruler” in relation to a former Indian State meant the individual who was, at that particular time, recognised by the President as the Ruler of that State for constitutional purposes. By adopting this provision, which closely mirrored the earlier section 86, the legislation continued the privilege that had previously been enjoyed by the rulers of Indian States before their integration into the Republic.

In considering the historical background, the Court turned to the allegation of discrimination raised in the appeal. It noted that the former rulers constituted a distinct class and that the special legislation addressed them on the basis of historical considerations that applied uniformly to that class. Prior to the formation of the Republic, the princes who had been sovereign rulers of Indian States transferred their territories to the nation in exchange for an annual privy purse and a guarantee that their personal rights, privileges and dignities would be respected. The Constitution itself affirmed that these rights would receive recognition. Consequently, any law enacted on the basis of those considerations was to be regarded as founded upon a proper classification of the rulers who had entered into the aforementioned agreement. The Court described this classification as real, substantial and directly related to the purpose sought to be achieved by the legislation.

The Court also addressed the contention that the constitutional article referred only to “privileges” and not to “immunities,” and that other constitutional provisions specifically used the term “immunities.” It held that it was unnecessary to examine those other articles because an immunity from civil action could be understood as a form of privilege; the term “privilege” was sufficiently broad to encompass such an immunity. The Constitution was not confined to any particular vocabulary provided the intended meaning was clear. In the Court’s view, the expression “personal rights and privileges” was comprehensive enough to include an immunity of the character claimed. Accordingly, the provision could not be attacked as discriminatory, since it stemmed from a classification based on historical facts.

Finally, the Court considered the argument that section 87‑B merely incorporated sub‑sections (1) and (3) of section 86, that the language of section 86 was not prospective, that the suit had been instituted before the enactment of section 87‑B, and that the plaintiff’s substantive right to pursue the suit could not be withdrawn without explicit language or a clear intention to do so. The Court focused on the wording of section 86(1), which states, “No Ruler of a foreign State may be sued in any court ….” It concluded that this language prohibited not only the initiation of a suit but also the continuation of any proceedings already pending, thereby requiring the consent of the Central Government for both filing and maintaining such actions.

In this case, the Court observed that the argument that the statute applied only to the commencement of a suit and not to the continuation of a suit already pending could not be accepted. The Court explained that the term “sued” encompassed not merely the filing of a pleading or the initiation of civil proceedings but also the entire conduct of those proceedings in the courts. Accordingly, a person was considered to be sued not only at the moment the plaint was presented but also for as long as the suit remained pending against that person. The expression “sued” therefore covered the whole proceeding in an action, and the individual against whom the action was brought was regarded as being sued throughout the duration of the case. From this interpretation, the Court inferred that the requirement of consent applied not merely to the filing of a suit against the former ruler but also to the continuation of any such suit from the point at which consent was required. Because the word “sued” had such a wide meaning, the Court found it unnecessary to refer generally to the extent to which pending cases were affected by later legislation or to invoke the principles laid down in earlier authorities such as The United Provinces v. Atiqa Begum, Venugopala Reddiar v. Krishnaswamy Reddiar, or Garikapatti Veeraya v. N. Subbiah Choudhury. The Court noted that if the language of section 86 read in conjunction with section 87‑B were limited only to the initiation of a civil suit, those precedents might have been relevant; however, since the words “may sue” included both the start and the continuation of a suit, it was evident that neither the filing nor the maintenance of a suit against the ex‑Ruler could proceed without the consent of the Central Government. The Court recalled that in the Atiqa Begum case, two principles were cited for questions of retrospectivity: vested rights should not be presumed to be affected, and the rights of the parties to an action should ordinarily be determined according to the law in force at the date the action commenced. Nevertheless, the learned judge observed that the language of the enactment itself could override the first principle, citing the Privy Council decision in K. C. Mukherjee v. Mst. Ram Ratan Kuer. Applying that reasoning, the Court held that the wording of the present enactment was sufficiently broad and certain to encompass pending actions, and the opposite rule applied – namely, that unless a statute expressly saved pending actions, those actions were to be taken as affected by the new law. Consequently, the Court concluded that the word “sued,” as interpreted, applied to both the initiation and the continuation of a civil action, and therefore the prohibition extended not only to suits instituted after the enactment of section 87‑B but also to suits that, although instituted before that enactment, remained pending. Accordingly, the Court found the present suit to be incompetent against the first defendant, the ex‑Ruler of Jaipur.

In regard to the position of the Military Secretary, who had died before the hearing, the Court observed that his status was different from that of the other parties. Nevertheless, the Court accepted that no cause of action against the deceased Military Secretary could continue, because the appeal against him had become ineffective and therefore had abated. The Court then turned to the third defendant, Mohabat Singh, and examined whether he could be characterized as an agent of the former ruler. The Court found that Mohabat Singh’s involvement with the alleged orders was limited solely to the act of affixing his signature to letters that were presented as if they had originated from the Military Secretary. Those letters were signed by him “for the Military Secretary.” Accordingly, the Court held that Mohabat Singh was not acting as an agent of the ex‑Ruler; rather, he was performing a purely ministerial function by signing the correspondence on behalf of the Military Secretary. The Court concluded that such a ministerial act did not create the legal relationship of agency. Consequently, the suit brought against Mohabat Singh was deemed misguided, irrespective of any arguments that might have been made concerning the Military Secretary. In the Court’s view, the dismissal of the suit was proper given the surrounding facts. The Court further held that the appeal was without merit, and therefore it was dismissed together with an order that costs be awarded. Since the appellant had been permitted to file the appeal as a pauper, the Court ordered the appellant to pay the court‑fee required for the memorandum of appeal. The appeal was ultimately dismissed.