Bombay High Court
Ms. Eva Drdakova vs M/S. Khemka Exports Private Ltd on 30 November, 2011
Bench: G. S. Godbole
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ast
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
CIVIL REVISION APPLICATION NO. 262 OF 2010
1. Ms. Eva Drdakova, Consul General
of the Czech Republic having her office
at Marcopia, 5, Dr. G. Deshmukh Marg,
Mumbai - 400 026.
2. The Consulate General of the Czech
Republic having its Consulate offices
at Marcopia, 5, Dr. G. Deshmukh Marg,
Mumbai - 400 026. ...Petitioners.
(Ori. Def/Res.
Nos. 1 and 3)
V/s.
1. M/s. Khemka Exports Private Ltd.
A Company incorporated under the provisions
of the Companies Act, 1956 having its
Registered office at 1011 - 15, Raheja
Complex 231 Free Press Journal Marg,
Nariman Point, Mumbai - 400 021. ...Respondent.
(Ori. Pltf/-
Appellant.)
---
Mr. S.K. Sen with Mr. D. Vyas i/by Mr. R.A.K. Nijam Es Sani for
the Applicants.
Mr. V.A. Thorat, Senior Counsel with Mr. Niranjan Lalshiya & Mr.
R. Kadam and Ms. Leena J. Shah i/by M/s. Niranjan & Co. for
Respondent.
Mr. D.J. Khambatta, ASG with Mr. Rajguru and Vikramaditya
Deshmukh for Union of India, Intervenor.
::: Downloaded on - 09/06/2013 17:58:05 :::
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CORAM: GIRISH GODBOLE, J
RESERVED ON : OCTOBER 13, 2011
PRONOUNCED ON : NOVEMBER 30, 2011
JUDGMENT :
1. Rule. Rule made returnable forthwith and heard by consent of
the learned Counsel for the Applicants and Respondent and the
Intervenor.
2. The learned Advocate for the Respondent and Intervenor
waives service of Rule.
3. The original Defendants in R.A.D. Suit No. 1913 of 2007
have filed this Revision Application under section 115 of the Code
of Civil Procedure, 1908. The Respondent has filed the said Suit
in the Court of Small Causes Court for a declaration of alleged
tenancy, alleged to have been protected under the provisions of
Maharashtra Rent Control Act, 1999 and for consequential relief of
mandatory and permanent injunction. The Trial Court by its
Judgment and Order dated 18.12.2007, rejected the Plaint by
exercising powers under Order VII Rule 11 of the Code of Civil
Procedure, 1908 by relying on the provisions of Section 86 of the
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Code. Appeal No. 24 of 2008 filed by the Respondent/ Plaintiff has
been allowed by the impugned Judgment and Order dated
6.5.2009. The Petitioner had initially filed W.P. No. 6129/2009 in
which written submissions were filed by the Respondent. By order
dated 1.4.2010, the Writ Petition No. 6129 of 2009 has been allowed
to be converted in a Civil Revision Application.
Thereafter on 25th October, 2010, learned single Judge has
passed the following order in CRA No. 262 of 2010:
1 By this revision application under Section 115 of the
Code of Civil Procedure, 1908 the revision applicants who ar
e defendants in a suit filed by the 1st respondent have
challenged the order dated 18th December, 2007 passed
by the learned Judge of the Court of Small Causes.
By the impugned order, the application made by the
revision applicants for rejection of the plaint under Rule 11
(d) of Order VII of the Code of Civil Procedure, 1908
has been rejected. The second and the third
respondents to this Revision are the Union of India and the
State of Maharasthra. The said respondents are not parties
to the suit. The only challenge in this
revision application is to the impugned order by which the
application for rejection of the plaint has been rejected.
As the 2nd and 3rd respondents are not parties to
the suit, the said respondents cannot be impleaded
as parties. The revision applicants are directed to
delete their names. The amendment to be carried out
within two weeks from today. Civil Revision
Application shall be placed on board for admission
on 26th November, 2010.
2 Ad interim relief granted earlier will continue to operate till
the next date.
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3. Subsequently, the Union of India has filed C.A. No. 577 of
2010 which has been allowed by the learned single Judge (D.G.
Karnik, J) on 24th January, 2011 and the Union of India has been
allowed to intervene without being added as party to the Revision
Application essentially for assisting the Court only in relation to the
interpretation of Vienna Convention and Extent of Diplomatic
Immunity Enjoyed by the Diplomatic Agents of the Foreign States.
4. It is not in dispute that on 19th June, 2009, the Union of India
through its Ministry of Foreign Affairs has issued a Certificate
under section 9 of the Diplomatic Relations (Vienna Convention
Act), 1972 which reads thus :
"MINISTRY OF EXTERNAL AFFIARSS
NEW DELHI.
CERTIFICATE
No.D111/455/112/2006 19th June, 2009
1 The entire building known as 'Marcopia' situated
at 5, G. Deshmukh Marg is recognised as the Consulate of
the Czech Republic for the purposes of the Vienna
Convention on Consular Relations and the Diplomatic
Relations (Vienna Convention) Act, 1972.
2 This is to further certify that the Consul General,
Mrs. Eva Drdakova, holds the said premises on behalf of
the Diplomatic Mission of the Czech Republic.
3 This is to further certify that the Consul General,
Mrs.Eva Drdakova is immune from the civil, criminal and
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administrative jurisdiction of the Union of India under Art.
31 of the Schedule to the Diplomatic Relations (Vienna
Convention) Act, 1972 by herself and/or in respect of any
portion of the building `Marcopia' described above.
4 This is further to clarify that the proviso to S.86 (1)
of the Code of Civil Procedure 1906 relates to immovable
property held otherwise than for the purposes of the
Diplomatic Mission of the Czech Republic as is made
clear by the Diplomatic Relations (Vienna Convention)
Act, 1972.
This certificate is issued under Section 9 of the Diplomatic
Relations (Vienna Convention) Act, 1972.
(H.R. Singh)
ig Deputy Chief of Protocol (F)."
5. It is clear that this certificate has been issued after passing of
the impugned Judgment. Section 9 of the said Act reads thus :
"9. Evidence.-- If in any proceedings any question arises
whether or not any person is entitled to any privilege or
immunity under this Act, a certificate issued by or under the
authority of the Secretary to the Government of India in the
Ministry of External Affairs stating any fact relating to that
question shall be conclusive evidence of that fact."
6. Article 1, Article 22, Article 30 and Article 31 of the Vienna
Convention and Diplomatic Relations, 1961 which have the force of
law being part of the Schedule of the Diplomatic Relations (Vienna
Convention) Act, 1972 (Act No. 43 of 1972 ) read thus :
"Article 1
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For the purpose of the present Convention, the following
expressions shall have the meanings hereunder assigned to
them :
(a) the "head of the mission" is the person charged by
the sending State with the duty of acting in that capacity;
(b) the "members of the mission" are the head of the
mission and the members of the staff of the mission;
(c) the "members of the staff of the mission" are the
members of the diplomatic staff, of the administrative and
technical staff and of the service staff of the mission;
(d) the "members of the diplomatic staff" are the
members of the staff of the mission having diplomatic rank;
(e) a "diplomatic agent" is the head of the mission or
a member of the diplomatic staff of the mission;
(f) the "members of the administrative and technical
staff" are the members of the staff of the mission employed in
the administrative and technical service of the mission;
(g) the "members of the service staff" are the members
of the staff of the mission in the domestic service of the
mission;
(h) a "private servant" is a person who is in the
domestic service of a member of the mission and who is not
an employee of the sending State;
(i) the "premises of the mission" are the buildings or
parts of buildings and the land ancillary thereto, irrespective
of ownership, used for the purposes of the mission including
the residence of the head of the mission.
Article 22
1. The premises of the mission shall be inviolable. The
agents of the receiving State may not enter them, except with
the consent of the head of the mission.
2. The receiving State is under a special duty to take all
appropriate steps to protect the premises of the mission
against any intrusion or damage and to prevent any
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disturbance of the peace of the mission or impairment of its
dignity.
3. The premises of the mission, their furnishings and other
property thereon and the means of transport of the mission
shall be immune from search, requisition, attachment or
execution.
Article 30
1. The private residence of a diplomatic agent shall enjoy
the same inviolability and protection as the premises of the
mission.
2. His papers, correspondence and, except as provided in
paragraph 3 of Article 31, his property, shall likewise enjoy
inviolability.
ig Article 31
1. A diplomatic agent shall enjoy immunity from the
criminal jurisdiction of the receiving State. He shall also
enjoy immunity from its civil and administrative jurisdiction,
except in the case of :
(a) a real action relating to private immovable property
situated in the territory of the receiving State, unless he holds
it on behalf of the sending State for the purposes of the
mission;
(b) an action relating to succession in which the
diplomatic agent is involved as executor, administrator, heir
or legatee as a private person and not on behalf of the
sending State;
(c) an action relating to any professional or commercial
activity exercised by the diplomatic agent in the receiving
State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a
witness.
3. No measures of execution may be taken in respect of a
diplomatic agent except in the cases coming under sub-
paragraphs (a), (b) and (c) of paragraph 1 of this Article, and
provided that the measures concerned can be taken without
infringing the inviolability of his person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction
of the receiving State does not exempt him from the
jurisdiction of the sending State. "
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7. Written submissions have been filed by Mr. Khambatta,
learned Additional Solicitor General which are restricted to the
interpretation of the aforesaid provisions and the same are taken on
record. Mr. Thorat, learned Senior Counsel for the Respondent has
also filed written submissions and the same are also taken on record.
Mr. Sen has also filed written submissions which are taken on
record.
8. Relevant portions of section 86(1) and 87-A of the Code of
Civil Procedure, 1908 read thus :
"86. Suits against foreign Rulers, Ambassadors and Envoys-
(1) No.****[59] foreign State may be sued in any Court
otherwise competent to try the suit except with consent of the
Central Government certified in writing by a Secretary to that
Government :
Provided that a person may, as a tenant of immovable
property, sue without such consent as aforesaid [60][a
foreign State] from whom he holds or claims to hold the
property."
"87A. Definitions of "foreign State" and "Ruler" - (1) In this
Part,?
(a) "foreign State" means any State outside India which has
been recognised by the Central Government; and
(b) "Ruler", in relation to a foreign State, means the person
who is for the time being recognized by the Central
Government to be the head of that State.
(2) Every Court shall take judicial notice of the fact ?
(a) that a state has or has not been recognized by the Central
9 cra262.10
Government;
(b) that a person has or has not been recognized by the
Central Government to be the head of a State".
9. By my Order dated 4th October, 2011 I had framed following 3
points in which submissions were required to be advanced :
(a) whether the words "shall be conclusive evidence of that fact"
used in section 9 of the 1972 Act raise a rebuttable presumption or
foreclose any evidence to the contrary;
(b) whether the activity of letting out the ground floor of the
premises on a sub-tenancy basis for running a showroom where the
Diplomatic Agent was a tenant would be covered within the ambit
of clause (c) of Article 31 of the Schedule to 1972 Act, though the
petitioner do not admit the factum of creation of such sub-tenancy
which is a disputed question of fact which would be decided in case
the suit is required to be tried;
(c) whether the Bar, if any, contained in section 86 of the Code of
Civil Procedure, 1908 can be a ground for exercising power to reject
Plaint under Order 7 Rule 11 of the Code.
10. Mr. S.K. Sen advanced the following submissions.
(a) The Defendant Nos. 1 and 2 are impleaded in their official
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capacity whereas the Defendant No. 3 is a Consulate. In plaint
paragraph-16, the Plaintiffs have claimed tenancy right as against the
Defendant No.3 Consulate and paragraphs 15 and 16 of the plaint
claim wrongful ouster/dispossession.
(b) Relying on Article 1(e) of the Vienna Convention it was
submitted that the term of "diplomatic agent" includes head of
mission or a member of diplomatic staff. Article 31 (1)(c) is an
exception. Therefore Suit can be filed only against a diplomatic
agent i.e. head of a mission or any one who carries out business or
profession outside their official capacity. Since this was not the case
in hand, the Suit against the Defendant Nos. 1 and 2 was not
maintainable.
(c) In so far as the Defendant No. 3 is concerned, the Suit was not
tenable since there is no legal entity like Defendant No. 3 which is
shown as the Consulate General of the Czech Republic.
(d) There was no pleading in the plaint against the Defendant
Nos. 1 and 2 as to their commercial activities and hence the entire
Suit was liable to be dismissed.
(e) On the second point it was submitted that the cause of action
which was pleaded arose from the ouster/dispossession of the
Plaintiffs and hence this activity of alleged unlawful dispossession is
not a commercial activity so as to fall under the exception carved out
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by the Article 31. Since the Defendant Nos. 1 and 2 are not the
persons who have alleged to have created sub-tenancy or who are
alleged to have accepted the rent, the said diplomatic agents namely,
Defendant Nos. 1 and 2 could have never done the alleged
commercial activity in the year 1972 as they were not in India. In so
far as Defendant No. 3 is concerned, it is not a juridical person and
it has no capacity other than the official capacity.
(f)
Relying on Article 31(1)(a) of Vienna Convention it was
submitted that the Suit was not a real action relating to private
immovable property since the entire building was given on rent to
the Consulate General which is certified as Foreign Mission.
(g) Regarding the point relating to Certificate issued under
Section 9, Mr. Sen submitted that even prior to Section 9 being
placed on the Statute Book, the Supreme Court Court had an
occasion to consider the similar issue in the case of M/s. Hardeodas
Jagannath v/s. State of Assam AIR 1970 SC 7241. Mr. Sen relied
upon the following passage of the said Judgment.
"6. When the appeals were originally heard we
considered that the material on the record was not sufficient
to enable us to determine the disputed question, namely
whether the Dominion of India was entitled to
exercise extra provincial .jurisdiction over the Shillong
Administered Areas on April 15, 1948 which was the material
date. The question at issue is not purely a question of fact
but a question relating to a "fact of State" which is
1 AIR 1970 SC 724
12 cra262.10
peculiarly within the cognizance of the Central
Government (For expression "Fact of State" see Halsbury--
Laws of England, 3rd edn. Vol. 7, p. 285). In view of the
insufficiency of material we thought it proper to avail
ourselves of the procedure indicated by s. 6 of the Act of
1947 which enacts:"
(h) He also relied upon the commentary from Halsbury's Laws of
England and particularly on paragraph 1420 which reads thus :
"1420. Facts of state. There is a class of facts, which may be
termed "facts of state", which consists in matters the
determination of which is solely in the hands of the executive.
Examples of "facts of state" are :
(1) whether a state of war exists between Her Majesty and
another state, and if so, when it began;
(2) whether a state of war exists between other states;
(3) whether a particular territory is hostile, or foreign, or
within the boundaries of a particular state;
(4) whether the Crown claims that a place is within its
dominions;
(5) whether British jurisdiction exists in any particular
foreign place;
(6) whether and when a particular government is
recognised as the government of an independent
sovereign state;
(7) the status of property which is the subject of claims by
a foreign state to immunity;
(8) the status of a person claiming immunity from the
jurisdiction on the ground of his diplomatic status; and
(9) the status of British and allied armed forces.
The court will take notice of such facts of state, for this
purpose, in any case of uncertainty, will seek information
from the executive, and the information received is
conclusive, except in cases where what is involved is the
construction of some term in a commercial document, or an
Act of Parliament."
Relying on this paragraph, he submitted that if there is any doubt
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about interpretation of section 9 of the 1972 Act or of Article 31 of
the Vienna Convention, Court must ask for advise of the executives
i.e. Union of India and must accept the interpretation of Union of
India as it is.
(i) Mr. Sen further relied upon the Judgment of a Constitution
Bench of the Supreme Court of India in the case of Smt. Somawanti
and Ors. v/s. The State of Punjab and Ors. AIR 1963 SC 1512 and
he laid down great emphasis on paragraph-19 of the said Judgment
which reads thus :
The object of adducing evidence is to prove a fact. The
Indian Evidence Act deals with the question as to what kind
of evidence is permissible to be adduced for that purpose
and states in s. 3 when a fact is said to be proved. That
section reads thus :
"'Evidence' means and includes-
(1) all statements which the court permits or
requires to be made before it by witnesses, in relation to
matters of fact under inquiry; such statements are called oral
evidence ;
(2) all documents produced for the inspection of
the court ; such documents are called documentary evidence.
A fact is said to be proved when, after
considering the matters before it, the Court either believes
it to exist, or considers its existence so probable
that a prudent man ought, under the circumstances
of the particular case, to act upon the supposition that it
exists."
Since evidence means and includes all statement which the
court permits or requires to be made when the law says
that a particular kind of evidence would be conclusive as to
the existence of a particular fact it implies that that
2 AIR 1963 SC 151
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fact can be proved either by evidence or by some other
evidence which the Court permits or requires to be advanced.
Where such other evidence is adduced it would be open to the
Court to consider whether, upon that evidence, the fact
exist or not. Where on the other hand, evidence which is
made conclusive is adduced, the Court has no option but to
hold that the fact exists. If that were not so, it would be
meaningless to call a particular piece of evidence
as conclusive evidence. Once the law says that certain
evidence is conclusive it shuts out any other evidence which
would detract from the conclusiveness of that evidence. In
substance, therefore, there is no difference between
conclusive evidence and conclusive proof. Statutes may
use the ig expression 'conclusive proof' where the object
is to make a fact non-justiciable. But the legislature may
use some other expression such as 'conclusive evidence'
for achieving the same result. There is thus no
difference between the effect of the expression conclusive
evidence' from that of 'conclusive proof', the aim of
both being to give finality to the establishment of the
existence of a fact from the proof of another."
Mr. Sen therefore submitted that the Certificate issued by the Union
of India is non-justiciable and no Court can question the validity of
the said certificate and no further enquiry is permissible at all. He
submitted that in view of the aforesaid Judgment of the Constitution
Bench even the Supreme Court of India will not have any
jurisdiction to look into the correctness or otherwise of the said
Certificate or go into the question whether the certificate is validly
issued or not and in short the entire certificate is completely beyond
the purview of any judicial enquiry from any Court.
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(j) It was further submitted that section 86 of the Code deals with
a foreign State whereas 1972 Act deals only with diplomatic agents
and, hence, the immunity given to diplomatic agent is greater than
the immunity given to a foreign State. It was submitted that section
86 provides for suits against foreign Ruler, Ambassador and Envoys
and the proviso to the said section carves out an exception.
According to Mr. Sen on the other hand section 2 of the 1972 Act
begins with a non-obstantee clause and hence, immunity granted by
section 3 of the said Act is a complete immunity which is non-
justiciable.
(k) Referring to Section 87 of the Code it was submitted that
while Section 86 empowers the Central Government to grant
permission to file the suit against a Foreign Ruler, the Legislature
has consciously not provided any such permission in 1972 Act.
Hence, by necessary implication section 86 has been ousted by
operation of 1972 Act as it does not apply to the diplomatic agent
but applies only to a Foreign State. Relying on provisions of Section
87-A of the Code, it is submitted that Court must take judicial notice
of the said section and since Union of India has recognised Czech
Republic as a Foreign State, the Court must take judicial notice of
that fact; more so when the Central Government has issued a
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certificate.
(l) Mr. Sen sought to distinguish the Judgment of the Delhi High
Court in Rani Pushpa Kumari Devi vs. The Embassy of Syrian
Arab Republic 104 (2003) DLT 6823 by contending that in that case
a permission under section 86 had been given and therefore the case
was distinguishable since in that case plea of diplomatic immunity
under 1972 Act was never raised. It was submitted that the Division
Bench of the Delhi High Court in fact held in paragraph-15 that
Certificate under section 86 was referable to section 9 of the 1972
Act.
(m) While summerising his submission Mr. Sen submitted that the
oral application for rejection of the plaint was essentially done
under Order 7 Rule 11 but on account of the 1972 Act there is a
jurisdictional bar which has to be decided at the threshold and for
deciding this, apart from the averments in the plaint, something more
than the averments in the plaint can also be looked into and
considered since no commercial activity of Defendant Nos. 1 and 2
is even pleaded and since Defendant No.3 does not exists and does
not have any independent entity and since as on today even the
Consulate in Mumbai does not exist; the Suit must be dismissed. It
3 104 (2003) DLT 682
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was urged that the wrongful dispossession/ouster is an integral part
of the cause of action which is not pleaded to be a commercial
activity and hence applying the test laid down by Halsbury as to
what constitute "Fact of State"; this matter must be considered to be
a matter between 2 sovereigns namely Czech Republic and Union of
India and this relationship is not at all justiciable, since the
legislative intent to make it non-justiciable is clear from the section 9
of the 1972 Act.
(n) Mr. Sen ultimately relied upon the Judgment of the Supreme
Court in the case of Ms. Kanta Udharam Jagasia v/s. C.K.S. Rao
AIR 1998 SC 5694 and by relying on paragraph-18 Mr. Sen
submitted that section 9 of 1972 Act in fact stands on a higher
footing than section 13 (a) (1) of the Bombay Rent Act, 1947 and it
is impermissible to go beyond the certificate issued by the Central
Government under section 9.
11. Mr. Khambata, learned Additional Solicitor General appearing
for the Union of India as an Intervenor advanced following
submissions :
(a) Though the certificate under Section 9 of the 1972 Act has
4 AIR 1998 SC 569
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been issued on 16/9/2009 and has been produced in the present
proceedings, this is curious case where the Respondent has chosen
not even to challenge the certificate which is concluded decision by
the Union of India.
(b) Very limited judicial review is available once such a
certificate is issued. Validity or the conclusivity of the certificate
cannot be gone into by the Court and no argument is available to the
Respondent as the Respondent has not challenged the certificate for
more than 2 years.
(c) There are 3 aspects or areas in which questions of immunity
or right to file Suit arises.
1. Section 86 of the Code applies only where the property is
enjoyed by a foreign State. There is fundamental difference
between a Foreign State and Diplomatic Agent. Paragraph-9
of the plaint contains pleadings only about diplomatic agents
and there are no pleadings in respect of a Foreign State.
2. The second aspect/area is about inviolability of a diplomatic
mission. Consulate and Embassy of Foreign State are in fact
parts of a Foreign State and are deemed to be forming part of
the geographical area of a Foreign State. When a property is
held by a Foreign State, then it becomes a part of diplomatic
mission.
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3. The third aspect/area is regarding Article 22 and 31 of the
Schedule of 1972 Act. A Foreign State actually acquires
property either by itself or a diplomatic agent of a foreign
State acquires the property. Article 31 has to be read in the
context of the Statement of the Objects and Reasons of the
1972 Act. No exception has been carved out for Article 22
whereas an exception has been carved out for Article 31.
Article 22 deals with the immovable property of a diplomatic
mission whereas Article 31 deals with individuals who may be
occupying respective posts in a diplomatic mission which is
clear from Articles (d) and (e) of the Schedule. Article 30
gives an absolute immunity and except the limited exception
under clause 3 of the Article 31 the property of a diplomatic
agent enjoys inviolability. Thus the premises enjoy absolute
immunity under Article 22 r/w Article 30 and Article 31
which deals with individuals has no application to the facts of
the present case.
12. Mr. Thorat, learned Senior Advocate appearing for the
Respondent advanced following submissions.
(a) Relying on the Judgment of the Supreme Court in Dhulabhai
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vs. State of Madhya Pradesh and Anr. AIR 1969 SC 785 and
Rajasthan State Transport Corporation & Anr. vs. Bal Mukund
Bairwa (2009) 4 SC 2996, it was submitted that under section 9
every civil action can be instituted in Civil Court and the ouster of
the jurisdiction of the Civil Court has to be either an express ouster
or an implied bar. The 1972 Act which is sought to be relied upon as
an express bar to the jurisdiction of the Civil Court nowhere contains
any such express bar.
(b) Relying on Judgment of the Supreme Court in Krishna Ram
Mahale v/s. Mrs. Shobha Venkat Rao AIR 1989 SC 20977 it was
submitted that in India dispossession of any person without
following the process prescribed by law is a serious action and no
immunity of whatsoever nature can be pleaded as a defence against
an action of unlawful dispossession.
(c) Relying on the judgment of the Supreme Court in the case of
Kamala and others v/s. K.T. Eshwarya Sa & ors. 2008(12) SCC
6618 it was submitted that Order 7 Rule 11(d) of the Code has
limited application and for its applicability it must be shown that the
Suit is barred under any law and such a conclusion can be drawn
only from the averments made in the plaint. For the purpose of
5 AIR 1969 SC 78
6 (2009) 4 SC 299
7 AIR 1989 SC 2097
8 2008(12) SCC 661
21 cra262.10
applicability of Order 7 Rule 11(d) only the averments made in the
plaint are relevant and there cannot be any addition or subtraction,
no other material or evidence can be looked into and the issues on
merit of the matter which may arise between the parties would not
be within the realm of the Court at that stage. A question involving
mixed question of law and fact which may require not only the
examination of the plaint but also other evidence cannot be
determined at the stage of proceedings under Order 7 Rule 11(d) of
the Code. The Trial Court has precisely committed this mistake
which has been corrected by the Appellate Court and hence, no
interference is warranted.
(d) The concept of international immunity is meant only for
certain purposes and there is no blanket immunity. Section 86 of the
Code contains exceptions in relation to the suits against foreign
rulers, ambassadors and envoys and in the present case the Plaintiff
has invoked the exception carved out by the proviso to sub-section 1
of section 86. Sub-section 2 of section 86 provides for another class
of exceptions. In paragraph-9 of the plaint there are clear averments
about the commercial activity being carried out by the Defendants
and in such a case, Order 7 Rule 11(d) had no application and for
attracting the said provisions there has to be an absolute bar to the
maintainability of the Suit. The question involved is mixed question
22 cra262.10
of law and fact and hence cannot be gone into even under section
9A or under Order 14 Rule 2 of the Code.
(e) Section 9 of the 1972 Act is in the realm of evidence.
Section 5 of the said Act provides for waiver and a diplomatic
immunity is capable of being waived. Entire Act does not provide
for either an express or implied bar of jurisdiction of Civil Court.
Only an immunity is given vis a vis certain proceedings in Court and
this
immunity cannot be equated with an express bar of the
jurisdiction. Even this immunity is not permanent and can always
be withdrawn if reciprocal immunity is not given and in such a case
Central Government is empowered to decline to grant immunity and
also empowered under section 4 of the 1972 Act to withdraw
privileges or immunity.
(f) Immunity can never be equated with a bar of jurisdiction and
the 1972 Act does not create a bar.
(g) In the plaint there is specific relief claimed about the
immovable property by pleading that the case is one governed by the
exceptions carved out under Article 31. The certificate issued under
section 9 is only an evidence and does not create a bar in any
manner.
(h) Relying on the Judgment of the learned Single Judge dealing
with a situation prior to enactment of 1972 Act in M/s Earth
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Builders Bombay v/s. State of Maharashtra & ors. AIR 1997
Bombay page 148 (Coram : A.P. Shah, J)9 it was submitted that
immunity contemplated by Article 31 is an absolute immunity. The
same view is also taken by learned Single Judge of the Delhi High
Court in the case of Rani Pushpa Kumari Devi(supra) and the
Division Bench Judgment of the Delhi High Court in the case of
Syrian Arab Republic vs. A.K. Jajodia, which has upheld the
Judgment of the learned Single Judge. It was submitted that the
immunity is only for certain specific purposes.
(i) Relying upon the judgment of the Division Bench of the
Calcutta High Court in Union of India and Anr. v/s. Bilas Chand
Jain The Socialist Republic of Romania (2001) 3 CALL 352
(HC)10, it was submitted that there was no need to challenge the
certificate under section 9 as the same was never produced either
before the Trial Court or the Appellate Court and in fact did not
exist as the same has been issued after the delivery of the impugned
Judgment. Hence, the said certificate cannot be looked into for the
first time in this C.R.A. Hence, C.R.A. should not be entertained.
13. During the course of hearing it has been brought to my notice
that Application has been filed in the Suit below Exh. 6 of 2007 to
which reply has been filed and the same is not yet decided.
9 AIR 1997 Bombay page 148
10 (2001) 3 CALL 352 (HC)
24 cra262.10
14. I have carefully considered the respective submissions. In the
present case without any formal Application having been filed by the
Defendants the learned Judge of the Trial Court summarily rejected
the plaint. Neither a preliminary issue was framed nor any issue as
to any bar under Order VII Rule 11 of the Code was framed. Perusal
of the Judgment and Order of the Trial Court clearly shows that the
Order is completely unsatisfactory and does not show judicious
application of mind. Apart from the fact that the Order is very
cryptic, the same does not contain even satisfactory reasons.
15. In so far as the power of rejection of plaint under Order VII
Rule 11 is concerned, it is settled law that the Court can look only
into the averments made in the plaint and cannot have recourse to
any extraneous material. This proposition of law is well settled by
catena of Judgments and Mr. Thorat is justified in relying upon the
Judgment of the Supreme Court of India in Kamala(supra) and
particularly paragraphs 21 and 22 of the said Judgment. Similar
principles have been laid down in the following Judgments of the
Supreme Court :-
(i) (2005) 7 SCC 510 Popat and Kotecha Property v/s.
25 cra262.10
State Bank of India Staff Association11.
(ii) (2004) 3 SCC 137 Sopan Sukhdeo Sable & ors. v/s.
Assistant Charity Commissioner and ors.12
(iii) (2005) 10 SCC 760 Church of North India v/s.
Lavajibhai Ratanjibhai & ors.13
16. The Appellate Court was therefore justified in entertaining the
Appeal and setting aside the cryptic order passed by the learned
Judge of the Trial Court. Section 86 of the Code does not contain
any bar of jurisdiction. In the present case the Plaintiff is claiming
to be a protected sub-tenant. Proviso to Sub-Section (1) of Section
86 clearly excludes claims relating to tenancy rights and thus the
present case is squarely covered by the said proviso. In fact,
understanding this difficulty, Mr. Sen did not try to support the
Judgment of the Trial Court or assail the Judgment of the Appellate
Court on that ground and his submissions essentially centered
around the certificate issued by the Central Government under
Section 9 of the 1972 Act which is admittedly issued after filing of
the present Petition. In such situation, the moot question arises as to
whether this Court should consider the legal effect of such certificate
produced for the first time in this court and set aside the order of the
11 (2005) 7 SCC 510
12 (2004) 3 SCC 137
13 (2005) 10 SCC 760
26 cra262.10
Appellate Bench and dismiss the Suit as suggested by Mr. Sen or
whether this Court should ignore the said certificate at this stage and
leave it open to the parties to agitate their respective contentions
before the Trial Court.
17. Accepting the submissions of Mr. Sen that the certificate can
be looked into for the first time in this Court is fraught with risk. If
the further submission of Mr. Sen to the effect that the certificate is
conclusive, final and binding in all respects and hence, the Suit
cannot proceed further and must be dismissed is to be accepted or
rejected at this stage, that would deprive either the Plaintiff or the
Defendant of an important right of an Appeal. On the other hand, in
case the Defendant is granted liberty to produce the certificate in the
Suit before the Trial Court and advance all available factual and
legal submissions in that regard, the Trial Court would be in a
position to appreciate the rival contentions and decide the question
on the basis of applicable provisions of law. I am therefore of the
view that it would be imprudent and unsafe to rely on such
certificate at this stage of the proceedings unless the parties are
given a liberty to lead their respective evidence about validity or
otherwise of such certificate. In my opinion, the subsequent event
of issuing of certificate under Section 9 of the 1972 Act should not
27 cra262.10
and cannot influence the decision of this Petition and present
Petition must be decided only on the basis of the material which was
available before the Trial Court and Appellate Court.
18. However, before relegating the Petitioners to adopt such
proceedings as may be available to them in law, it is necessary to
consider whether even prima facie the submission of Mr. Sen has
any merit or otherwise. Section 9 of the 1972 Act is a rule of
evidence and a certificate issued by the Government of India is
stated to be conclusive evidence of any fact relating to the question
whether or not any person is entitled to any privilege or immunity
under that Act. Prima facie such certificate therefore merely raises a
rebuttable presumption and does not raise an absolute presumption
as contended by Mr. Sen. I am inclined to take this view for more
than one reason. Firstly, issuance of such a certificate is not a quasi
judicial function and, hence, the decision of the Government of
India to issue such certificate is purely an administrative decision.
Whether a particular activity of a diplomatic agent falls within the
excepted category or not is a matter which has to be decided on a
case to case basis depending upon the facts of each case and the oral
and documentary evidence on record.
28 cra262.10
19. According to the Plaintiff and the averments in the plaint, the
activity of the Defendant was a commercial activity. I am of the
view that no general rule or proposition of law can be laid down as
to what would be commercial activity as contemplated by Article 31
and even this aspect will certainly depend on the facts of each case.
In a given case, for the purpose of benefit of the persons employed
in an Embassy or Consulate (Foreign Mission), some portion of the
premises may be permitted to be used by outsider and such outsider
may be paying certain rent/licence fee/compensation to the Foreign
Mission. In such situation, the activity of permitting such outsider to
use the premises would qualify to be an incidental activity in aid of
and for the benefit of the principal activity of the Foreign Mission.
In such a situation, the agent of the Foreign Mission will certainly
enjoy the immunity. However, there may be another case where an
outsider may have been inducted for monetary consideration by
permitting such outsider to use the premises of the Foreign Mission
for conducting an activity completely unconnected with the
Sovereign functions of a Foreign Nation. In such a situation, no
immunity would be available and such a case will be governed by
Sub-Article C of Article 31(1) of the Schedule to the 1972 Act. It is
therefore unsafe to lay down any straight jacket formula for arriving
at a conclusion that any activity of a Foreign Mission invariably
29 cra262.10
enjoys immunity. Reliance placed by Mr. Thorat on the Judgment of
the learned Single Judge of this Court (A.P. Shah, J), as also the
Judgment of the learned Single Judge and Division Bench of the
Delhi High Court is apt and since it is risky to adopt any straight
jacket formula, in my opinion, this is a fit case where the certificate
will have to be ignored at this stage by reserving liberty to the
Petitioners to produce such certificate in the Trial Court and leaving
it open to the Trial Court to consider legal effect of such a certificate
on the maintainability or otherwise of the Suit after permitting the
parties to lead appropriate evidence.
20. Mr. Khambata submits that since Union of India has been
allowed to intervene in the present proceedings, I should direct the
Trial Court to permit the Union of India to intervene. Mr. Thorat
opposes such request. In my opinion, whether a party should be
permitted to intervene or not is a prerogative of the Trial Court. No
such application had ever been made before the Trial Court, and,
hence, it will be open for the Union of India to make such
application before the Trial Court which shall also be considered on
its own merits and in accordance with law.
21. Subject to the aforesaid clarifications the Civil Revision
30 cra262.10
Application is dismissed. Rule is discharged with no order as to
costs.
GIRISH GODBOLE, J
31 cra262.10
2. The Union of India (deleted as per
Court's order dated 25/10/2010)
3. The State of Maharashtra (deleted as per
Court's order dated 25/10/2010)
