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Civil Suit No. 115 of 1966, decided on 22nd January, 1968.
‑Bound to be part of Municipal Law to enable Courts of the country to administer it.
Meaning and function‑Munici pal Law paramount‑Municipal Law providing adequate solution -Investigation of relevant principles of international law unneces sary.
Cheshire's Private International Law, 1961 pp. 5 & 6 ref.
, Ss. 84 to 87‑Bar con tained in S. 86 applies not only to foreign Rulers, ambassadors and envoys but to foreign State itself ‑ Provisions of Ss. 34 :0 87 supersede rules of International Law‑Suit against foreign State not maintainable without consent of Central Government‑[Gammon‑Layton v. Secretary of State, U. S. A. P L U 1965 Kar. 425 dissented from].
Where the question was whether section 86 of the Civil Procedure Code, 1908 in terms applied only to "any Ruler of a foreign State and any ambassador or envoy of a foreign State" but not to a foreign State itself, the High Court after examining at length the case‑law on the question reached the conclusion that "no anomaly has been created by the expression "foreign State" used in section 84 and the expression "Ruler of foreign State" used in section 86, C. P. C. A foreign State may sue by virtue of section 84 but cannot be sued as such apart from .its Ruler in terms of section 86. A suit filed against the Union of Soviet Socialist Republics and another defendant vie. Trade Representative of Soviet Socialist Republics (an integral part of the Soviet State and its Embassy in Pakistan) was held to be not maintainable. It was held that "only the Ruler of a foreign State can be ‑tied, in the name of his State with the consent of the Central Government". Since ‑the Central Government had given no sanction, the suit was dismissed by the, High Court a3 not maintainable.
Gammon‑Layton v. Secretary of State, U. S. A. P L D 1965 Kar. 425 d.ssented from.
Friedman: International Law, page‑352; Oppenheim: Inter national Law, pp. 272 to 275; Cheshire: Introduction to Inter national. Law, pp. 96‑97; S. Sucharitkul: State Immunity in Trading Activities in International Law, pp. 19 fit 358; Lauterpacht : The Problems of Jurisdictional Immunity of Foreign States, pp. 8, 11 and 36; Sultan of Johore v; Abubakar Tunku Aris Benhahab 1952 A C 318; Rahimtoola v. Nizam of Hyderabad 1958 A C 379; Compania Naviera Vascongado v. 5. S. Christina 1938 'A C 485 at pp. 494,' 498 and 521‑‑23; (1813) 4 A E 59 at p. 99; Gaekwar Ry, v. Hafiz Babibul‑Haq A I R 1938 P ‑C 165; Imverial Tobacco Co. v. Commissioner of Income‑tax P L D 1953 S C (Pak.) 125; Hanover Fire Insurance. Co. v. Muraliahar P L D 1958 S C 138; Narayana Moothad v. The Cochin Sircar I L R 38 Mad. 635; Ali Akbar v. United Arab Republic A I R 1966 S C 230; Gilmore v. Stater of Tavancore 17 1 C 444; Beer Chunder Manikhya v. Raj Coomar; Nobodeep Chunder. Deb Burmono I L R 9 Cal. 535; Mirza Akbar v. United Arab Republic A I R 1964 Cal. 768; United Arab Republic v. Mirza Ali A I R 1962 Cal. 387; R. N. Airline Corporation v. Monorama A I R 1966 Cal. 319; United States of America v. Wagner L R (1866‑67) 2 Ch. App. 582; Colombian Government v. Rothschild 1 Sim. 94 and United States of Anwrica v. Drummond 33 Beav. 449 ref.
Ruler ‑ Ruler does not necessarily mean a "Monarch"‑Ruler means one who or that which, exercises rule, command or authority especially of a Supreme or Sovereign kind.
The New English Dictionary of Oxford (1914 Edn.) ref.
Iqbal Ahmad and Z. H. Chishtl for Plaintiff.
Dingomal Narain Singh Ramchandani and P. D. Ramchandani for Defendants.
Dates of hearings 19th, 20th, 21st, 25th and 26th October, 9th, 10th, 11th,15th, 16th and 17th November 1967.
The plaintiff has fled this suit against the Union of Soviet Socialist Republics and the Trade Representation in Pakistan of that Union for the recovery of Rs. 45,19,333. Out of this amount, Rs. 33,17,333 have been claimed by way of commission for arranging the sale of one thousand trucks and two thousand jeeps of the defendants, and Rs. 12,02,000 by way of damages for breach of contract. The breach is said to consist of the failure of the defendants to give to the plaintiff the agency for selling similar vehicles:
The Assistant Registrar of this Court objected to the main tainability of the suit in view of the provisions of section 86, C. P. C., but a Single Judge of this Court overruled that objection, vide his order‑of the 23rd of May 1966, in view of the judgment in Gammon‑Dayton v. Secretary of State, U.S.A. (P L D 1965 Kar. 425). The order was made tentatively subject to final decision after hearing the parties. Summonses were, therefore, issued to both the defendants at a common address given in the‑ plaint and were presented by a bailiff of this Court to a woman clerk of the defendants. She signed them, then went to consult some officer, and after returning from him, scored off her signature and handed the papers back to the bailiff. She declined to disclose hers name Thereafter, defendant No. 2 engaged Messrs Dingomal Naraindas Ramchandani and P. D. Ramchandani, Advocates, on the 28th of May 1965 to appear before this Court under protest simply to apply for a copy of the plaint and to receive the original summonses which had been returned by the defendants. The required papers were supplied to Mr. Dingomal. Two days after it he made another application on behalf of defendant No. 2 to explain that defendant No. 1 was a "foreign Sovereign State having absolute immunity from being sued in the courts of Pakistan". On the 8th of September 1966, an applic ation duly supported by an affidavit was submitted by Mr. Dingomal N. Ramehandani. The application contains an averment that respondent No. 1 "is a foreign Sovereign State, While respondent No. 2 is its organ and an integral part of its Embassy in Pakistan", and that both of them enjoy "immunity from being sued in the courts of Pakistan under the General International Law, as well as, under Order VII, rule 11(d) and sections 86 and 87 of the Civil Procedure Code of Pakistan". A certificate from the Ministry of Foreign Affairs, Government of Pakistan, dated the 17th of August 1966, accompanied it. The material part of the certificate is as follows :‑
"that the Government of Pakistan recognises the Government of the Union of the Soviet Socialist Republics de jure and de facto as .a foreign, sovereign independent State . . . . . that the Trade Representation of the Soviet Union in Pakistan, by virtue of an agreement dated June 27, 1956 . . . . . is an integral part of the Embassy of the Soviet Union in Pakistan . . . and that in the understanding of Pakistan Government ha enjoys such immunities and privileges as are accorded to Diplomatic Agents, by virtue of Principles of .Customary International Law and the relevant Conventions to which Pakistan is a party."
Copies of the agreement of the 27th of June 1956 with Pakistan and of the Vienna Convention were attached to the certificate.
3. The affidavit which accompanied the application of defendant No. 2 contains a statement of law relating to immunity of foreign Sovereign States as in force in the U. S. S. R. It is as follows :‑
"That Article 61, Part VI of Civil Jurisdiction of the U. S. S. R. (Court Proceedings) relates to suits against foreign States and provides that a suit against a foreign State or an application for recovery of property of a foreign State with its residence in the Union of Soviet Socialist Republics, can be commenced or maintained only with the approval of the competent authorities of the appropriate state. It further pro vides that diplomatic representatives of foreign States accredit ed to the Union of Soviet Socialist Republics and other persons mentioned in the appropriate laws and International Agreements are under the jurisdiction of the Soviet Courts in respect of civil cases only within the limits determined by the standards of International Law and according to agreement with appropriate states. It further provides that in cases where a foreign State does not provide such diplomatic immunity to the Soviet Union, to its property and to its representatives, as is provided to foreign States their property and their representatives to the Union of Soviet Socialist Republics in accordance with this Article, the Supreme Soviet or its authorised organ can order retaliatory measures to be taken against the stated and its property, or representative of that state."
4. The last sentence of the above quotation is of immense interest in the study of comparative law; but as a Judge of this Court I must leave diplomatic considerations, including reciprocity and retaliatory measures, to the wisdom of‑the Legislature, and proceed to decide the issues which have arisen in these proceedings from the legal point of view. I am privileged in this regarding note in the certificate granted by the Ministry of Foreign Affairs of Pakistan that the U.S.S.R. and Pakistan "enjoy friendly relations on a basis of equality and mutual respect".
5. I have heard counsel for the parties at length. The substance of their arguments is, that the relevant provisions of the Code of Civil Procedure of Pakistan be examined in order to find .out whether they provide an answer to the questions that arise in this case or not. If they do not provide an adequate answer then relevant foreign law should be discovered in accord ance with the Private International Law of this country and by applied to this case. This sequence for investigating and applying the proper law is substantially correct. I would only add that the Private International Law of this country is bound to be a part of the law of this country for otherwise the courts of this country would be unable to administer it. As explained' by Cheshire at pages 5 and 6 of his book on Private International Law (1961 Edn.) :‑
"Private International Law, then is that part of law which comes into play when the issue before the court affects some fact, event or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system It has, accordingly been described as meaning the rules voluntarily chosen by a given State for the decision of cases which have a foreign complexion'. The legal systems of the word consist of a variety of territorial systems, each dealing with the same phenomena of life‑birth, marriage, death, divorce, bankruptcy, contracts, wills and so on but in most cases dealing with them differently. The moment that a case is seen to be affected by a foreign element, the Court must look beyond its own internal law, lest the relevant rule of the internal system to which the case most appropriately belongs should happen to be In conflict with that of the forum."
At page 9 the author has remarked that :‑---
"the function of Private International Law is complete when it has chosen the appropriate system of law. Its rules do not furnish a direct solution of the dispute, add it has been said by a French writer that this department of law resembles the inquiry office at a railway station where a passenger may learn the platform at which his train starts."
At page 10 he has pointed out that :‑----
"Private International Law is not the same in all countries" because, as illustrated by him, the rules of this branch of law an molt Uniform in all countries of the world.
6. Here I may, for the sake of clarification, digress a little and acknowledge that since the territories that form Pakistan were a part of the British Empire for more than a century and thus not in a position to establish independent relationship with foreign States, we hive as yet for our guidance the same rules of Private International Law that guide the English Courts. Moreover, my personal handicap is that owing to my ignorance of any international language, excepting English, the literature on this subject in English language only is accessible to me. This limitation has the unfortunate result of creating an impression that other systems are disregarded.
7. Reverting to the main subject, let me say that the above quotations bring out the paramountcy of Municipal law and leave no ambiguity about the principle that if the Code of Civil Procedure of this country provides an adequate solution of the questions that are involved in these proceeding, then investigation of the relevant principles of International Law is unnecessary.
8. I, therefore, proceed, as suggested by counsel for the parties, firstly, to examine tie relevant provisions of our Code of Civil Procedure. They are as follows :‑---
"84.‑(1) A foreign State may sue in any Court in the Provinces:
Provided that such State has been recognised by the Central Government:
Provided, also, that the object of the suit is to enforce a private right vested in the head of such State or in any officer of such State in his public capacity. ,
(2) Every Court shall take judicial notice of the fact that a foreign.' State has or has not been recognised by the Central Government.
85.‑‑(1) Persons specially appointed by order of the Central Government at the request of the Ruler of any foreign State, or at the request of any person competent, in the opinion of the Central Government, to act on behalf of such Ruler, to prosecute or defend any suit on his behalf, shall be deemed to be the recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of such Ruler.
(2) An appointment under this section may be made for the purpose of a specified suit or of several specified suits, or for the purpose of all such suits as it may from time to time be necessary to prosecute for defend on behalf of the Ruler.
(3) A person appointed under this section may authorise or appoint persons to make appearances and applications and do acts in any such suit or suits as if he were himself a party thereto.
86.‑(1) Any Ruler of a foreign State; and any ambassador or envoy of a foreign State, may, with the consent of the Central Government; certified by 'the signature of a Secretary to that Government, but not without such consent, be sued to any competent Court.
(2) Such consent may be given with respect to a specified suit or to several specified suits, or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which the Ruler, ambassador or envoy may be sued; but it shall not be given 'unless it appears to the consenting authority that the Ruler, ambassador or envoy :‑
(a) has instituted a suit in the Court against the person desiring to sue him, or
(b) by himself or another trades within the local limits o: the jurisdiction of the Court, or
(c) is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon.
(3) No such Ruler, ambassador or envoy shall be arrested under this Code, and, except with the consent of the Central Government, certified as aforesaid, no decree shall be executed against the property of any such Ruler, ambassador or envoy.
(4) The Central Government may by notification in the official Gazette authorise a Provincial Government and any Secretary to that Government to exercise with respect to any Ruler, ambassador or envoy named in the notification the functions assigned by the foregoing subsections to the consent ing authority and a certifying officer respectively.
(5) A person may, as a tenant of immovable property, sue, without such consent as is mentioned in the section, a Ruler, from whom he holds or claims to hold the property.
(6) A person may, as a tenant of private immovable property belonging to an ambassador or envoy, or in respect of any immovable property belonging to such person and held by an ambassador or envoy in his private capacity; sue, without such consent as is mentioned in this section, the ambassador or envoy from whom he holds or claims to hold the property or by whom the property is so held.
87. The Ruler of a foreign State may sue, and shall be sued in the name of his State Provided in giving the consent referred to in the foregoing section the Central Government, or the Provincial Government, as the case be, may direct that any such Ruler shah be sued in the name of an agent or in any other name.
87‑A‑‑(1) In this section ‑
(a) Merged state means a State which being immediately before the‑fourteenth day of October 1955, an Acceding State, was on that day incorporated into the Province of West Pakistan ; and
(b) Ruler of an Acceding State or of a Merged State' means the person who for the time being is recognized by the Presi dent as the Ruler of an Acceding State, or who, immediately before the fourteenth day of October 1955, was the duly recognised Ruler of an Amending State.
(2) The provisions of sections 85 and 88 shall apply in relation to the Ruler of an Acceding State, or of a Merged State as they apply in relation to the Ruler of a foreign State."
9. Section 86 bars the Institution and maintainability of all suits against every Ruler of a foreign State and against any ambassador or envoy of a foreign State excepting those to respect of which consent of the Central Government has been obtained. No conditions are laid down for withholding such consent but accord of consent is prohibited unless one or more of the three conditions specified fn subsection (2) of the section are satisfied.
10. Clause (b) of subsection (2) of the section conditionally grants immunity against suits arising from business relations. This should be noted because counsel for the plaintiff has emphasised that (i) the majority of the States of the present world do not concede, within their territories, Immunity to foreign States in respect of suits arising from their trade relations, and (ii) has urged the adoption of this practice by Pakistan. He said that, according to Prof. Lauterpacht, who has surveyed 17 countries, 13 do not grant immunity to such circumstances and that such immunity :
"is productive of inconvenience, injustice and resentment which may be more inimical to friendly international intercourse than assumption of jurisdiction."
He has supported the first contention by referring to the changing structure of International Law by Friedman. page 352; International Law by Oppenheim, pages 272 to 275; Introduction to International Law by Cheshire, pages 96‑97; State Immunity in Trading Activities In International taw by S. Sucharitkul. pages 19 and 358; The Problems of Jurisdictional Immunity of Foreign States by Lauterpacht, pages 8, 11 and 36; Lord Denning's views 1n Sultan of Johore v. Abubakar Tunku Aris Bendahab (1952 A C 318 at p. 343) as well as in Rahlrntoola v. Nizam of Hyderabad (1958 A C 379 at p. 422); Lord Thankerton's views in Companta Naviera Vascongado v. S. S. Christina (1938 A C 485 at p. 494); the views of Lord Macmillan and Lord Maugham in the Christina at p. 498 and pp. 521‑23 respectively and the views of Sir Robert Phillimore in the Chekieh (1873‑4 A E 59 at p. 99). But the utility of the learning which counsel has employed is, on his own premises, dependent on the conclusion of the inquiry being that the Municipal Law of this country affords no adequate answer to the question of immunity In this case. I must, therefore, to begin with concentrate my attention on the provisions of the Code of Civil Procedure of this country reproduced above, to find such guidance as may be contained in them.
11. If section 86 applies to this case, then, to view of the trade which the defendants are carrying on within the local limits of the jurisdiction of this Court there is a conditional bar to the, institution and maintainability of this suit against them. The condition is that the consent of the Central Government, certified by the signature of a Secretary to that Government, be obtained for suing them otherwise such suits can neither be filed nor maintained in this Court. Private International Law, as applied by a large number of countries, is different in this respect because, owing to the welfare and totalitarian states unreservedly taking part in trade at Govern mental level, immunity for suits arising from such trade has been withdrawn by many of them, but section 86/2 (b), C. P. C. expressly grants immunity to commercial transactions subject only to the consent of the Central Government. According to the general practice of the States of the world, a sovereign can waive his (or its) immunity; but the courts of Pakistan cannot entertain suits in spite of such waiver, in contravention of section 86 of C. P. C. This was held by the Privy Council‑See Garkwar Ry. v. Hafiz Habibul‑Haq (A I R 1938 P C 165 at p. 169) and the view is still binding on this Court because the Supreme Court of Pakistan has not yet overruled it. Thus the differences in the practices of the State: of the world create no problem in these proceedings, provided, of course, that section 86 is applicable to this case.
12. Mr. Chishti has, on behalf of the plaintiff, argued with confidence and ability that the section is not applicable. His contentions were, firstly, that section 86, C. P. C. in terms applies to "any Ruler of a foreign Sate and any ambassador or envoy of a foreign State", but not to a foreign State. Secondly, according to him, the distinction drawn between a Ruler, ambassador and envoy on the one hand and the State on the other hand is well founded because one class consists of natural persons and the other of an artificial person. The classification has logic in it. Section 84, which deals with the right to sue, mentions foreign States only; whereas section 86, which deals with the liability to be sued, drops them out and focuses attention on Rulers, ambassadors and envoys of foreign States, who are all natural persons. Thirdly, Rulers of foreign States have been enabled by virtue of section 87 to sue and be sued in the names of their States. This section thus expressly recognises the distinction between Rulers and their States although it does artificially provide, in spite of that distinction, that Rulers of foreign States "may sue and shall be sued" in the names of their States. The object is to provide uniformity as well as to show respect to the personal dignity of Rulers, This provision has no effect on section 84 because the plaintiff contemplated in that section are foreign States themselves. This aspect, which comes to light by comparing sections 87 and 84, fourthly stresses the distinction in the treatment given by our Code of Civil Procedure to foreign States and their Rulers, ambassadors and envoys. It follows, according to Mr. Chishti, from this marked distinction that, as the defendants in this suit are not Rulers, ambassadors or envoys but, on the contrary, a foreign State and one of its business orgnizations, the provisions of section 86, which do 'not apply to foreign States, cant be pleaded by them as a bar to this suit. This Court has, therefore, according to counsel, to ascertain the relevant rules of Private International Law of this country and to apply them to this case. Fifthly, this course, according to him, is free from complications because it implies that in the Municipal Law of this country there is no provision which applies to the institution and maintainability of suits against foreign States, which further means that there cannot be any inconsistency between the Municipal Law and International Law. The courts of this country, according to counsel, are under no obligation to follow the practice of the English judiciary and should not do so particularly because that practice is objectionable even according to some of the English Judges and jurists, as indicated above in paragraph 10. The following passage taken from pages 96‑100 of Cheshire's Private International Law (1961 Edition), is revealing:---
"That Sovereign States which engage in the sea‑carrying trade should be relieved of the obligations to which private ship -owners are subject is unjust, if indeed not preposterous. Moreover, the injustice has been increased by the emergency of welfare and totalitarian States, for the activities of sovereign governments, originally mainly political, have now expanded immeasurably both in extent and scope. States tend more and more to enter the field of commerce, even to the extent of carrying on the business of buying and selling goods. It is, indeed, often said to be incompatible with the dignity of a sovereign that he should be subjected to the jurisdiction of a foreign court, but the obvious riposte to this is that if he deigns to descend into the market‑place and to compete with private traders he should not stand upon his dignity when threatened with legal proceedings. In the words of Lord Denning :‑
'It is more in keeping with the dignity of a foreign sovereign to submit himself to the rule of law than to claim to be above it.' The present English doctrine is in fact so out of tune with the times that the failure of the Legislature to restrict its field of application is a little surprising. Many legal systems have retreated from the principle of absolute immunity by distinguish ing between acta imperii in respect of which immunity can be demanded and acta gestionis which are freely subject to the jurisdiction of foreign courts; and the State Departmental Washington has announced that it will no longer favour claims to immunity with regard to business transactions"
Sixthly, according to counsel, defendant No. 2 cannot claim immunity under section 86 as a part of the Soviet Embassy because it is not a part of it, but in reality only a business organisation of the Soviet States.
13. A study of the six contentions set out above will show that the underlying idea of the whole argument is that the bar 'of section 86, C. P. C. applies only to foreign Rulers, ambassadors and envoys, and not to foreign States. If this view is correct, then our Code of Civil Procedure has no application to this came and other laws should be investigated for application; but if this view is wrong and our Code of Civil Procedure bars suits against foreign States, then the foundation of the plaintiff's case collapses and this suit is to be dismissed as barred by our law.
14. It is not in dispute in these proceedings that sections 84 to 87‑A, C. P. C. do supersede the rules of International Law. This has teen mentioned before; but it is proper to explain that this view neither amounts to being disrespectful to International Law; nor to violating the principle enunciated by the Supreme Court‑See Imperial Tobacco Co. v. Commissioner of Income‑tax (P L D 1958 S C (Pak.) 125), and Hanover Fire Insurance Co. v. Muralidhar Banechand (P L D 1958 S C (Pak.) 138) that statutes should not be construed as abrogating International Law unless their language clearly leads to that result. It is no disrespect because the relevant part of International Law called the Private International Law of a country is that part s foreign law which such country adopts for solving, within it territories, those problems in which existence of foreign elements makes it just and fair that foreign practice, concepts legal rights or interests be recognised. The rules according to which a country accomplishes this are thus a part of its own law. Sections 84 to 87‑A, C. P. C. are statutorily adopted rules of Private International Law to suit the needs of the country. They cast be described as legitimate adaptation or exemptions to that law‑See Narayna Moothad v. The Cochin Sircar (I L R 38 Mad. 635). The principle of construction too is not violated if the purport of the sections is found, on careful examination, to be inconsistent with International Law.
15. Sections 84 to 87‑A, being a part of C. P. C. and having been enacted to deal with' suits for and against foreign States their Rulers, ambassadors and envoys, it is necessary to keep in g mind that a suit which is not permitted, and not even conceived by them, cannot be maintainable. No International Law, as we understand it today, can save it. This recognition is necessary t avoid undue regard for the rules of International Law that are applied in England and to induce due attention to the, language of these sections themselves. It is proper that I should refer to weighty judicial pronouncements in which this or allied proposi tions have been emphasized. The observations made in them will throw light on the scope of the principle.
16. The Supreme Court of India has observed in 1966 in the case of Ali Akbar v. United Ara4 Republic (AIR 1966 S C 230) that :‑---
" . It would not be open to a foreign State to rely on the doctrine of immunity under International Law, because the Municipal Courts of India would be bound by the statutory provisions, such as those contained in the Code of Civil* Procedure."
Mr. Justice Awan of this Court has laid down in 1965 in Gammon‑Layton v. Secretary of State, U. S. A. that it would be wrong to‑‑‑
"engraft upon the provisions of C. P. C. general principles of International Law which our Legislature did not think it proper to do so."
As mentioned earlier, the Privy Council has held in 1938 that, contrary to the principles of International Law, a Sovereign Prince could not waive his privilege conferred on him by sections 86 and 87, C. P. C. Its observations are as follows :‑
"The sections relate to an important matter of public policy in India and the express provisions contained in them must be observed."
Further:----.
"They (the provisions) are contained in sections 86 and 87, C. P. C., they are imperative, and having regard to the public purposes, which they serve, they cannot, in their Lordships' opinion, be waived in the manner suggested by the High Court."
The same (view was expressed earlier in 1915 by a Division Bench of the Madras High Court in Narayana Moothad v. The Cochin Sircar (I L R 39 Mad. 661) as follows:-
" . . . . the recognition of cases of waiver, as expected from the ordinary provisions of International Law as under stood in England, cannot be imported into the clear language of Indian Code."
In 1910, a Division Bench of the Madras High Court dismissed a suit which was instituted against the Travancore State, or its Dewan as representing the State, for damages‑See Gilmore v. State of Travancore (17 I C 444). The plaintiffs contention was that the suit was not instituted against the Ruler of the State, but the Court held that such a suit was not maintainable because the relevant provisions, that is, sections 85 to 87 of C. P. C. have
"made no provision for suits against a State apart from its Prince or Chief."
13. The last‑mentioned is an important Judgment which has, Plot received due attention. If the law governing suits by and against foreign States and their Rulers is contained in sections 84 to 87‑A, C. P. C., then it follows that any suit which Is not in accordance with these provisions is contrary to law and cannot succeed. It is circumventing the law to contend that a suit against a foreign State alone, apart from its Ruler, though not contemplated by these sections, is maintainable for the very reason that the law does not contemplate it. A Division Bench of the Calcutta High Court has made this point in 1883 in Beer Chunder Manikkya v. Raj Coomar, Notodeep Chunder Deb Burmono (I L R 9 Cal. 535) as follows :‑‑
"The learned Advocate‑General's proposition is that, the defen dant Maharajah being a foreign sovereign Prince recognised by the Government of British India, he cannot be sued personally fn our Courts, except under the provisions of Chapter XXVIII of the Code of Civil Procedure. He cited numerous authorities to show that the principles of International Law protected sovereigns recognised by any State from the jurisdiction of the Courts of such State. We understood Mr. Phillips to contend on the contrary that such immunity does not attach to a Sovereign Prince unless it be expressly conferred upon him.
In the present case, however, we think that we need not look further than to the Code of civil procedure 'sections 431, 432 and 433 contain the provisions enacted in regard to suits by or against foreign princes. If the Maharajah defendant is such a, Prince or Chief as to come within the purview of these sections, then a suit can be entertained against him in our Courts only on the conditions contained in section 433 (of the C. P. C. of 1882 which was the equivalent of tine present section 86, C. P. C.)"
The contrary view is that whatever is not contained in sections 84 to 87‑A is to be borrowed from International Law and enforced. In other words, C. P. C. is not exhaustive in respect of the institution of suits by and against foreign Rulers and their States. Five cases have come to my notice in which this aspect has been directly examined. They are:‑
(1) Mirza Akbar v. United Arab Republic A I R 1960 Cal.
(2) United Arab Republic v. Mirza Ali A I R 1962 Cal. 387, .
(3) Ali Akbar v. United Arab Republic A I R 1965 S C 230.
(4) R N. Airline Corporation v. Monorama A I R 1966 Cal. 319, and
(5) Gammon‑Layton v. Secretary of State, U. S. A. P L D 1965 Kar. 425.
19. The first decision is by a Single Judge who decided the case on the Original Side of the High Court of Calcutta. It was a suit by an individual against the United Arab Republic. The suit was decreed. It was held that section 86, C. P. C., bars the institution of suits without the consent of the Central Government against Rulers of foreign States, and not against foreign States themselves. The learned Judge observed that section 87, C. P. C. does state that the Ruler of a foreign State may sue and be sued in the name of his State, but in India, section 87‑A defines "Foreign State" and "Ruler" separately, which means that they are different entities; therefore, a suit against a Ruler does not become a suit against his State merely because it is instituted in the name of the State. Section 87 A of India runs as follows:
"87. A Sovereign Prince or Ruling Chief may sue, and shall be sued, in the name of his State:
Provided that in giving the consent referred to‑in the foregoing section the Central Government, or the State Government, as the case may be, may direct that any such Prince or Chief shall be sued in the name of an agent or in any other name."
The learned Judge, therefore, applied International Law and held that‑---
"there is no principle of absolute immunity" in it. He further held that the subject‑matter of the suit being of commercial natures, it did not attract the rule of immunity.
Moreover, he found that the defendant" had submitted to the jurisdiction of that Court. He decreed the suit.
20. The defendant went in appeal, which was decided by a Division Bench of the High Court. That judgment is mentioned at No. (2) above. The Division Bench agreed with the inter pretation of the provisions of C. P. C., but accepted the appeal and dismissed the suit on the ground that the High Court of Calcutta had adopted the relevant rule of English law as the rule of private International Law applicable to India and that accord ing to that rule, the immunity of a foreign State was absolute.
21. The plaintiff preferred ad appeal to the Supreme Court of India which has dismissed it but has held, overruling the view of the lower courts, that C. P. C. barred the suit. Its judgment is mentioned above at No. (3). The Court has stated that two main questions were before it for decision :‑‑
"the first is in relation to the application of section 86 of the Code; and the second in regard to the scope and effect of the doctrine of immunity under International Law."
It has taken the view that section 86, C. P. C., conditionally bars a suit against a foreign State, and that the section being a statutory provision, prevails in competition with International Law; there fore, concluded that it was unnecessary to deal with the question of immunity under International Law.
The Court has set out five reasons for coming to the conclusion that section 86, C. P. C. bars a suit which is instituted without the consent of the Central Government against a foreign State, as follows :‑
(i) It is not permissible to draw a sharp distinction between the Ruler of a foreign State and his State. This is inferable from the fact that sections 83 to 87‑A are grouped under the heading "Suits by Aliens and by or against Foreign Rulers, Ambassadors and Envoys"; yet section 84 empowers a foreign State to sue and section 86 makes the Ruler of a foreign State liable to be sued with the consent of the Central Government. This context diffuses the distinction. The effect of section 87 is also the same. It makes it necessary that, when a Ruler is to be sued under section 86, or when he himself sues, the suit has to be in the name of his State.
(ii) The proviso to section 84 requires that the object of every suit under that section must be "to enforce a private right vested in the Ruler of such (foreign) State or in any officer of such (foreign) State in his public capacity"; that is to say, it must be a private right as distinguished from a political right, but not a personal right as distinguished from the right of the State; in other words, the private rights mentioned in this section do not mean individual rights as opposed to those of the body politic. Moreover, they must be such rights of the State as are enforceable in a Municipal Court of Justice as distingu ished from political or territorial rights which are beyond the jurisdiction of such courts. This proviso obliterates the distinc tion between a foreign State and the Ruler of that State because the subject‑matter of the suit can be the rights of the State, whether, vested in the Ruler or in an officer, and not the personal rights of the Ruler,
(iii) Section 87‑A of the Indian Code defines a foreign State and a Ruler separately. The Ruler under It means :‑
"the person who is for the time being recognised by the Central Government to be the head of that (foreign) State."
'The effect is that the expression 'Ruler' means tae head of a foreign State whether he happens to be a monarch or a President or any body else. This definition clarifies a possible doubt that the expression 'Ruler of a foreign State' used in section 86 refers to a monarch. It refers to the head of a foreign State however designated and however constituted. In other words, according to this definition, there is no essential difference between the Ruler of a foreign State and his State for purposes of this group of sections.
(iv) Even the Division Bench of the Calcutta High Court interpreted the words "Ruler of a foreign State", in contra distinction to "foreign State", had to concede that there can be no distinction between these two expressions when they are applied to monarchical foreign States, because in such States the Rulers are themselves the States. In other words, the Division Bench found it necessary to draw a distinction between monarchical and republican foreign States to justify the distinction, but such a distinction has no basis because the procedural law is meant to apply to all types of States and the definition of the word "Ruler" given in section 87‑A positively makes it applicable to all heads of foreign States irrespective of their constitution. It is, therefore, in harmony with this pattern of law that the expression "Ruler of a foreign State", which occurs in section 86, should be interpreted to apply to all heads of foreign States without the distinction of monarchical and republican constitutions.
(v) It is no anomaly that section 86 confers immunity which is different from that which is recognised by International Law. The explanation is as follows :‑
"Just as an independent sovereign State may statutory provide for its own rights and liabilities to sue and be sued (within its own territory) so can it provide for the rights and liabilities of foreign States to sue and be sued in its Municipal courts. That being so, it would be legitimate to hold that the effect of section 86(L) is to modify to a certain extent the doctrine of immunity recognised by International Law. This section provides that foreign States can be sued within the Municipal Courts of India with the consent of the Central Government and when such consent is granted as required by section 86(1), it would not be open to a foreign State to rely on the doctrine of immunity under International Law, because the Municipal Courts in India would be bound by the statutory provisions such as those contained in the Code of Civil Procedure."
23. The fourth case to which reference has been made above is also an Indian decision of the Calcutta High Court. In that case the defendant was "The Royal Nepal Airline Corporation" and another. The Ambassador of the King of Nepal, though not a party to the suit: made an application stud claimed immunity.
It was held that he could do so because the Airline Corporation was a department of the Government of Nepal and as such entitled to claim immunity from the processes of Indian courts.
24. The law in India is thus settled by the pronouncement of the Supreme Court of that country. According to it, a suit against a foreign State cannot be instituted without the consent of the Central Government in term: of section 86, C. P. C.
25. But the contrary view has been taken in the judgment, which is mentioned at No. (5) above. It has been expressed by a learned Single Judge of this Court in a suit instituted by Messrs Gammon‑Layton v. Secretary of State for the United States of America in 1965. The view which has prevailed in those proceedings is again that section 86, C. P. C.. confers partial immunity on Rulers of foreign States, but not on foreign States themselves. Foreign States have been held to be juristic persons and capable of being sued, and therefore, incapable of being identified with their Rulers as one and the same entity. The learned Judge has observed as follows:
"It (a foreign State) is a juristic entity and it may sue and be sued in its own name. Thus a Ruler of a foreign State cannot be identified with the foreign State of which he is the Ruler. (They are two separate entities). It may be argued that a suit against a foreign State is really a suit against its Ruler. Section 87, C. P. C., lays down that a Ruler of a foreign State should be sued in the name of his State. This (however) does not mean that the suit, which is in the form of a suit against a State, is necessarily a suit against its Ruler. It (section 87, C. P. C.) only prescribes the form of a suit against the Ruler, i.e., he must be sued in the name of his State or of an agent or in any other name. It does not necessarily mean that this suit is against the State."
The learned Judge has found support in the law of India, as it was before the judgment of its Supreme Court, to his view that section 86, C. P. C. does not bar suits against foreign State. He has stated the Indian law to be that :‑--
"Indian Courts have held that section 86, C. P. C., does not allow immunity to foreign States though they are allowed to, or are exempted from the Civil Process of Courts under the general principles of International Law which has been adopted as part of Municipal Law in that country."
Now the Indian interpretation is different from the view taken by the learned Judge. Proceeding further he has held that International Law confers immunity on foreign States, but has found it to be ineffective because C. P. C. excludes the applica tion of that law. He has explained this point of view as follows :‑
"By International Law a State cannot be sued in the Courts of another State but the Municipal Law of different States differs considerably in giving effect to this broad rule. If the rule of International Law laid down in the case : Duff Development Co. Ltd. v. Kelantan Government and another (1924) All E R 1 were held applicable to the facts of the' present matter, I would have been constrained to hold then present proceedings bad. But this attempt on my part would not be justified, i e., to engraft upon the propositions of Civil Procedure Code general principles of International Law which our Legislature did not think it proper to do so. No judgment of any Court in this country has been brought to my notice in support of the defendant's case." .
He has then pointed out that the tendency of even the States of the modern world is to abandon the rule of absolute immunity in respect of foreign States, and has held the suit against the Secretary of State for the U. S. A. to be maintainable.
26. The gist of the above reasoning is that a foreign State is not immune from being sued in this country because :‑
(a) Section 86, C. P. C. does not bar a suit against a foreign State. It conditionally bars suits against foreign Rulers only. A foreign State and its Ruler are two separate persons, and cannot be treated one entity. A foreign State is, therefore, a different entity which should not be confused with its Ruler.
(b) Section 87 merely prescribes a form and does not obliterate the separate existence of a Ruler as distinguished from his State.
(c) C. P. C. is the paramount law of the land which cannot be modified by International Law. Moreover, the Private International Law of various countries of the world is not uniform on the question of immunity to foreign States and the general tendency is to abandon the principle of immunity in respect of business transactions.
I have no quarrel with either part of the third proposition in these proceedings. The second proposition is not of decisive importance because if the Ruler of a foreign State and his State are separate persons, then the "style", to use the language employed in the marginal note to section 87 C. P. C., by virtue of which Rulers are required to institute suits n the names of their States will not necessarily affect their separate existence.
27. The first is its only important proposition for the present purposes. Let me analyse it. It is true that the Ruler of s foreign State should be a "person" because he is ordinarily expected to be a natural person, but why has a "foreign State" been presumed to be a "person" To appreciate this, let us have another look at the second proviso to subsection (1) of section 84 of our C. P. C. and compare it with subsection (1) of section 85, C. P. C., section 84 (1) is as under :‑---
"A foreign State may sue in any Court, in the Provinces:
Provided that such State has been recognised by the Central Government Provided also, that the object of, the suit is to enforce a, private right vested in the head of such State or in any officer of such State in his public capacity."
The only provision in C P. C. which authorises a foreign State to sue is the above one and the words underlined by me show that the object of the suit cannot be a right vested in the plaintiff State, but must be one that is vested in the head, or an officer, of such State in his public capacity. This proves that the plaintiff State and the head or other officer of such State arc not different entities. Moreover, it is significant that the right which is the object of the suit cannot be one that vests in the State. It must vest in the head or an officer of such State. The above subsection, read with subsection (1) of section 85, further indicates that a foreign State that is authorised to sue does not and cannot act by itself. It is the Ruler of that State who is expected to act for the State. This is why the Central Government appoints an agent to prosecute the suit at the request of the Ruler, and not at the request of the plaintiff ‑State. See below subsection (1) of section 85, C. P. C. :‑---
"Persons specially appointed by order of the Central Government at the request of the Ruler of any foreign State . . . . . to act on behalf of such Ruler to prosecute . . . . . any suit on his behalf shall be deemed to be the recognised agents . . . , .".
The words underlined by me may be noticed. They make it clear that the foreign State which sues is not different from its Ruler. On the contrary, it is reasonable to conclude that the Ruler or the head of the State, and not the State, are treated‑ as the active or living parts of the body politic.
28. What is the significance of this legal treatment of the subject Why has the "foreign State" that sues under section 84(1) been substituted in section 85(1) by the Ruler of such State for making a request to the Central Government Why cannot any right vested in the State be the object of a suit that a foreign State is authorised to institute under section 81(1) The answer is that the underlying principle of these provisions is that a "foreign State" as such is not a legal person ; therefore, it is not supposed to have any right vested in it nor to be capable of making a request. This is curiously the orthodox view of English jurisprudence. The English mind feels uneasy and even refuses to conceive of a government which is not monarchical. Lt is so, not only when an Englishman thinks of his own country, but also when he thinks of other countries. This sounds strange to a jurist whose temperament is not imbued with English traditional feelings. This is why Indian and Pakistan Judges have not considered sections 84 to 87‑A, in the above‑mentioned five cases, from this point of view. But to a Division Bench consisting of English Judges they presented no problem for arriving at the conclusion that a foreign State cannot be sued at all‑See Gibnore v. State of Travancore. Let me explain the English point of view with the help of an old English judgment and the observations contained in a recent edition of a well‑known English treatise on jurisprudence.
29. The status of a Republican Government was analysed to an interesting case in United States of America v. Wagner (L R (1866/67) 2 C H A 585). In that case, the United States of America filed a suit against the defendant for rendition of account and recovery of whatever may be found due in consequence. The suit was resisted by the defendant on the ground that the United States of America could not institute the suit, though the President of the United States, or some other officer could do so.
The objection was upheld and the suit was dismissed. The United States of America went in appeal. In the appeal the defendant‑respondent relied on two previous English decisions given in Colombian Government v. Rothschild (1 Sim. 94) and the President of the United States of America v. Drummond (34 Beav. 449) The points of view which were discussed in those judgments are Interesting because they reveal the English treed of thought. But I omit to refer to them because the observations which arc contained in the appellate judgment in which reliance was placed on them are themselves revealing.
30. Three Judges heard the appeal and wrote separate judgments. They unanimously accepted the appeal. Their observations show how the lawyers were thinking and how they had to resist those trends in the interest of international amity. Lord Chelmsford, L. C. has observed that:
"The argument before us in support of the demurrer (defendant‑respondent) has been chiefly rested upon the case of the Colombian Government v. Rothschild, and it has gone to the length of maintaining that, by the rules of procedure in Chancery, a foreign republic is unable to institute a suit for the recovery of its own property in its own name. And being pressed to state in what manner the United States of America are to sue in. our Courts, the counsel for the defendants said the only proper mode was in the name of their President"
The answer that the President could sue was not consistent with the trend of the argument, because one of the arguments was that the President and the Government of the United States were not one entity. It was in the words of Lord Chancellor :‑--
"expressly stated that the selection of the President as a defendant in the cross bill was open to the objection that the Court could not take judicial notice, nor did he suppose it to be a matter of fact, that the United States Government have control over their President, or can compel 'him to produce papers, or the like . . . ." .
The underlying idea appears to be that public rights and interests could vest in a natural person only, and not in a Republic. Lord Chelmsford had to resist that trend as follows :‑
"But if the President is not the proper person to sue on behalf of the United States, what other mode of prosecuting their rights in a foreign country than by suing in their own name, can be resorted to I confess I have been unable to appreciate the distinction which ran through the whole of the defendant's argument, between a suit ice equity by the head of a monarchy, and a similar suit by a republican State. In a monarchy all the public rights and interests of the nation are vested in, and represented by, the monarch. In a republic they are the property of the state . . . . Why should a republic be ‑ precluded front asserting in its own name, similar rights vested in it "
Sir G. J. Turner, L. J., has observed as follows:‑---
"In my opinion, also, this demurrer ought to have been overruled. The, right of a foreign state which has been recognised by Her Majesty, whether it be a monarchy or a republic, to sue in the Courts of this country for public property belonging to the State, has not been, and cannot be, denied.
The emphasis is on the recognition of a republican State by her Majesty. With that weapon he cuts the Gordian knot.
31. Lord Cairns, L. J., has also reviewed the argument of the defendant‑respondent. Referring to the case of the Colombian Government he has restated the argument of Sir John Leach, who had decided that case, as follows:‑----
"Dealing with the words before him, Sir John Leach appears to me to have held, and to have most properly held, that an unknown and undefined body, such as the government of a state, could not sue by that quasi‑corporate name, and the expressions to his judgment seem to me to intimate no more than that if the persons so described could sue at all they must come forward as individuals, and show that they were entitled to represent their State:"
He has dealt with the argument which was placed before him by pointing out, firstly, that it was contended that the United States of America;
"being a republic, cannot sue in its own name, and must either associate with it as plaintiff, or proceed in the name of, the President of the Republic, or some other officer of State."
and found fault with it by pointing out that ‑it amounted to disregarding the status of the real owner of the subject‑matter of the suit, to which the reply as given at the bar was that :‑
"When a monarch sues in our Courts, he sues as the represen tative of the state of which he is the sovereign";
therefore, if the property in dispute .
"belongs to a republic, the head of the executive, or in other words the President. ought to sue for it."
He has repelled the last argument as follows :‑ --.
"This argument, in my opinion, is found on a fallacy. The sovereign, in a monarchical form of government, may, as between himself and his subjects, be a trustee for the latter, more or less limited in his powers over the property which he seeks to recover. But in the Courts of Her Majesty, as in diplomatic intercourse with the government of Her Majesty, it is the sovereign, and not the State, or the subjects of the sovereign, that is recognised".
32. The above discussion of the problem is enlightening. It shows in what difficulties the English legal thought found itself when confronted with the claim of the United States of America to institute a suit in an English Court. It was a practical problem before the Courts and was solved as such. But the deeper problem is psychological. We find a reliable and learned exposition A it at pages 321-24 in the latest edition (1966) of Salmond's book on Jurisprudence. He says:
"Of all forms of human society the greatest is the state . . . . Is it, then, recognised by the law as a person Is the commonwealth a body politic and corporate, endowed with legal personality, and having as its members all those who owe allegiance to it and are entitled to its protection This is the conclusion to which a developed' system of law might‑be expected to attain. But the law of England has chosen another way. The community of the realm is an organised society, but it is no person or body corporate. It owns no property, is capable of no acts, and has no rights nor any liabilities imputed to it by the law. Whatever is said to the contrary is figure of speech, and not the literal language of our law.
How, then, are we to account for this failure of the law to make so obvious and useful an application of the conception of incorporation and legal personality Why has it failed to recognise and express in this way the unity and permanence of the State The explanation is to be found in the existence of monarchical Government . . . . . It is true that modern times have seen the growth of many exceptions to these principles. Local authorities are public bodies, (But) In so far as the English lawyer thinks of the state as a whole, he expresses his thought by speaking of the King."
33. In my humble opinion, the above understanding of the psychology of English jurisprudence is the key to the correct appreciation of sections 84 to 87‑A of the Code of Civil Procedure, 1908. There was no equivalent to sections 84, 86 and 87 in the Codes of 1859, 1861 and 1877. In 1882, for the first time, clause (b) of section 431 and sections 433 and 434 were introduced. They corresponded to sections. 84, 86 and 87 respectively of the current Code. At that tune the English juristic thought had advanced to the point of recognizing as a practical proposition, the right of a foreign State to institute suits in England, but it dial not amount to attributing legal personality to the State. The stage has not arrived as yet. As against this, there are, and have been, provisions in the C: P. C. from 1877 onwards making it a condition that only legal persons can sue and be sued. Ste Order 1, rules 1 and 3 of the C. P: C. of 1908 and sections 26 and 28 of the C. P. C. of 1877 and 1882. To meet this situation, it was provided in clause (b) of section 431 of 'the C. P. C. of 1882 and section 84 of the current C. P. C. that a foreign State could sue provided it had been recognised by the Central Government and the object of the suit was to enforce a right vested in the head or an officer of such State in his public capacity and as private,, as distinguished from political. This was a practical solution of a problem that confronted the Municipal Courts by reason of comity of nations. It did not mars any chance in the juristic thought. The device solved the problem from the point of view of Institution of suits by foreign States. No corresponding provision was made in section 433 of the Code of 1882, and id section 86 of the current Code of 1908, because there was no such problem with respect to the institution of suits against foreign States its Municipal Courts. A suit, therefore, cannot be filed against a foreign State; and must be filed against the Ruler of such State with the consent of the Central Government.
34. Let me, m. a digression here in order to remove a doom which is often created by taking the word "Ruler" to mean "monarch". This is not correct. The New English Dictionary of Oxford, which is in 10 Volumes (1914 Eda.) give the meaning of the word to be:‑--
"(1) One who, or that which, exercises rule, command, of authority especially of a supreme or sovereign kind ;
(2) One who has control, management, or headship within some limited sphere. 1511‑2 Act 3 Hen. VIII. C. 3‑1 ; The father, governors and rulers of such as he of tender age. 1526 Tindale Mark v. 22 There cam vnto hvm won of the rulers of the sinagogge. 1555 Act 2 and 3 Phil. and Mary c. 7‑2 the said Ruler or Keeper of, the said Fair or Market.
1766 Ann. Reg. 134 The Rulers of the watermens company attended.
1864 Reader 21 May 652/1 The rulers of the British Museum are an irresponsible corporation."
35. The Legislature of India has simplified the problem by defining the word "Ruler" in relation to a foreign State to mean:
"the person who is for the time being recognised by the Central Government to be the head of that State."
This definition has been emphasised by the Supreme Court of India in its judgment of 1965, to which reference has been made above. The appearance of a contrast owing to the expressions "foreign 'State" and its "Ruler", used in sections 84 and 86, C. P. C., is minimised by the uniformity of terminology introduced by section 434 of the C. P. C. of 1882 and section 87 of the C. P. C. of 1908.
36. Reverting to the main discussion let me hope that the foregoing explanations are enough to expose the hollowness of the argument that an anomaly has been created by the expression "foreign State" used in section 84 and the expression "Ruler of a foreign State" used in section 86, C. P. C. The law correctly expresses the English juristic thought that a State is not a juristic person nor capable' of suing or being sued, but that a "foreign State" should be allowed to sue in order to meet a practical exigency arising from comity of nations.
37. The overall conclusion, in my humble opinion, therefore, cannot be that a foreign State can sue or be sued as a juristic "person" in terms of rules 1 and 3 of Order I, C. P. C.; but that ft may sue by virtue of section 84 but cannot be sued 2s such apart from its Ruler in terms of section 86, C. P. C. This suit is, therefore, not maintainable against defendant No. 1, which is a foreign State, nor against defendant No. 2, which is an integral part of defendant No, 1 and of its Embassy in Pakistan. Only the Ruler of a foreign State can be sued, in the name of his State, with the consent of the Central Government. In this case, the Central Government has admittedly given no such consent.
38. The suit is, therefore, dismissed with cost.
A. E./K. B. A. Suit dismissed.
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