LexMIRZA ALI AKBAR KASHANI versus UNITED ARAB REPUBLIC AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A B • D E , F G • H r MIRZA ALI AKBAR KASHANI v. UNITED ARAB REPUBLIC AND ANR. August 5, 1965 [P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH AND S. M. SIKRI, JJ.] Code of Civil Procedure, 1908, s. 86(1 )-Suit against foreign State-- Consent of Central Government whether necessary-'Ruler of a foreign State' whether distinguishable from foreign State for the purpose of the sec don. , The appellant filed a suit for breach of contract against the respondents on the Original Side of the Calcutta High Court. The first respondent was the Lnited Arab Republic while the second respondent was one of its depart- ment.:;. The suit was filed without obtaining the consent of the Central Government under s. 86( I) of the Code of Civil Procedure, but the High Coun granted leave to the appellant under cl. 12 of the Letters Patent. The respondents entered appearance but claimed that leave under cl. 12 of the Letters Patent be cancelled and the plaint be rejected. Their conten- tion was that the suit was incompetent inasmuch as the suit \Vas in sub- stance against the Ruler of the United Arab Republic and consent of the Central Government under s. 86( l) was necessary before it was filed. They also urged that respondent no. 1 was a sovereign State and as such it enjoyed absolute immunity from being sued under the Rules of International Law adopted and applied by the municipal law of India. The trial court did not accept either of these contentions and passed a decree in favour of the appellant. The respondents appealed under the Letters Patent to the Division Bench of the High Court. The Division Bench agreed with the trial court that s. 86(1) wa• not applicable to the appellant's suit because the said section referr.zd to the Ruler of a foreign State and not to a foreign State as such. In tllis connection the High Court observed that only in the case of a monarchical State could the Ruler be taken to be identical with the State. However, on the alternative plea of the respondent based on immunity under International Law, the Division Bench differed from the trial court and decided in favour of the respondents. Consequenily ttie appdlant's plaint stood rejected. With certificate from the High Court the appellant came to this Court. HELD : (i) As a matter of procedure it would not be permissible to draw a sharp distinction between the Ruler of a foreign State and a foreign State of which he is the Ruler. This is apparent from the fact that s. 87 provides that even when a Ruler of a State sues or is sued, the suit must be in the name of the State. It is also remarkable that though the heading of ss. 84-87B does not in terms refer to foreign States at all, s. 84 in terms empowers a foreign Stale to bring a suit in a competent court; obviously the Legislature did not think that the case of a foreign State would not be included under 'he heading of this group of sections. [328 A-Dl (ii) Section 86 is a counterpart to s. 84. Whereas s. 84 Cllnfers a right on a foreign State to sue, s. 86( 1) in substance imposes a liabilitv on foreien States to be sued. The forei.lm State can sue) a<; laid down •n the proviso to s. 84 to enforce a private i'ight vested in the Ruler of such State 320 SUPllEME COURT llEPORTS (1966] l S.C.R. or in any officer of such Stale in his public capacity. By 'private right' in A this context is meant rights which can be enforced in the municipal courts of a foreign State as distinguished from a political or territorial rights which must be settled under International Law by agreement between States. ~ a counterpart, s. 86(1) proceeds to prescribe a limited liability agaimt foreign States. The first limitation is that such a suit cannot be instituted except with the consent of the Central Government. The second limitation is that the Central Government shall not give consent unless it appears that the case falls under one or the other els. (a) to (d) of s. 86(2). Having B provided for this limited liability to be sued the Legislature has taken care to save Ruler of a foreign Stale from arr"'t, except with the consent of the Central Government and has directed that no decree shall be executed against the property of any such Ruler; that is the effect of s. 86(3). What is exempted here is the separate property of the Ruler himself and not the properly of the Ruler as head of the State. (332 B-H] Hajon Ma11ick v. Bur
Excerpt shown. Read the full judgment & AI analysis in Lexace.