Mansoor Mumtaz And Ors. vs Saudi Arabian Airlines ...
2001 Latest Caselaw 945 Del

ORDER

V.S. Aggarwal, J.

1. In its stark brevity sub-section (1) Section 86 of the Code of Civil procedure unfolds itself in the following words:

"Suits against foreign Rulers, Ambassadors and Envoys (1) No foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government:

Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid from whom he holds or claims to hold the property.

2. Of sub-section (1) to Section 86 of the Code of Civil Procedure prescribes the procedure for suits against foreign rulers, ambassadors and envoys. It makes a little departure from the known forms of international law. The Supreme Court in the decision rendered in the case V.D.S. Rostock (D.S.P. Lines, Deppt. of G.D.R. vs. N.C. Jute Mills Co. Ltd. referred to the said principle in paragraph 5 in the following words:

One of the principles of International Law is that every sovereign State respects the independence of every other foreign State. This absolute independence and the international comity underlines, the relationship between sovereign States. The object of S.86 of the Code is to give effect to the Principles of International Law. But, in India it is only a qualified privilege because a suit can be brought with the consent of the Central Government in certain circumstances. Just as an independent sovereign State may statutorily provide for its own rights and liabilities to sue and be sued so can it provide rights and liabilities of foreign States to sue and be used in its Courts. It can be said that effect of S.86 then is to modify the extent of doctrine of immunity recognised by the International Law. If a suit is filed in Indian Courts with the consent of the Central Government as required by S.86, it shall not be open to any foreign State to rely on the doctrine of immunity.

3. This court also in the decision in the case of Deepak Wadhwa vs. Aeroflot 1983 DLT 1 had referred to the same principles in almost identical terms and in paragraph 5 recognised the said principle. The court went on to hold in paragraph 13:

"A statute ought to be construed in a manner that, if it can be prevented, no clause, sentence or word shall be superfluous or insignificant. This can only be if the relevant provisions of the Code are only looked into for consideration of the claims of sovereign immunity. The transformed principles of International Law after the enactment of the Code, have no application in India, unless the legislature amends the statutory provisions."

4. The principle thus is clear and is unambiguous that so far as sub-section (1) to Section 86 is concerned, it gives effect to the well known principles of international law with qualifications that no suit can be brought against a foreign State except with the consent of the Central Government. This is thus a qualified privilege and to this extent the doctrine of international law so far as India is concerned stands modified. If the consent of the Central Government has not been obtained before filing the suit necessarily it will not be maintainable.

5. With this backdrop one can conveniently refer to the facts of the present suit.

6. On 12th November, 1996 there was a mid-air collusion of Saudi Arabian Airlines with Kazakistan Airlines near Charkhi Dadri, Haryana. Farah Mumtaz was a passenger on board of Saudi Arabian Airlines.

One such Airlines belonged to Saudi Arabian Airlines Corporation. The plaintiffs are the heirs of the deceased Farah Mumtaz and claim compensation and damages from the defendants Saudi Arabian Airlines Corporation.

7. In the written statement that had been filed, the suit has been contested but no plea has been taken that the suit is barred under sub-section (1) to Section 86 of the Code of Civil procedure because there is no permission/consent of the central Government. An application (IA 2467/200) has been filed on behalf of the defendant for rejecting the plaint because the permission of the Central Government is stated to have not been obtained before filing the petition.

8. Admittedly, such a permission from the Central Government has not been taken before filing of the present suit. But the contentions of the plaintiffs' learned counsel were; (a) no such defense has been taken in the written statement and therefore, the defendant cannot raise this plea which must be deemed to have been waived and (b) by virtue of the provisions of the Carriage By Air Act, 1972, the provisions of Section 86 of the Code of Civil Procedure are impliedly superseded.

9. Taking the first contention of the plaintiffs in this regard, as noted above, provisions of sub-section (1) to Section 86 are mandatory in nature. The short question that still can be considered is as to whether if such a defense is not taken it would tantamount to waiver to plea that was available to the defendant. It must be stated at the outset that waiver is a conscious abandonment of a right. It has to be seen in the facts and circumstances of each case as to whether that right has been waived or not. It was in the case of Gaekwar Baroda State Railway vs. Hafis Habib-ul-Haq & Ors. that their lordships had the occasion to consider the scope of Section 86 of the Code of Civil Procedure as it stood at the relevant time. It was held that the provisions are mandatory and imperative and there cannot be any waiver regarding the said privilege. The findings at page 169 are reproduced below:-

Further, as already pointed out, the provisions relating to this matter are statutory. They are contained in Ss. 86 and 87, Civil 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. Their Lordships therefore are of opinion that the suit was not maintainable.

10. Same view prevailed with the Calcutta High Court. In the case of R N Airlines Corporation vs. Monorama and the Division Bench of that court in paragraph 41 held in identical terms.

But as pointed out already section 86 of the Code is not to be mixed up with the principle of International Law relating to immunity from the processes of the Courts based on the Independence of the foreign sovereign and absence of pleading of section 86 does not lead to the conclusion that the immunity available under the principle of International Law has been waived by reason of omission of such pleading. The further question which, however arises is whether the other facts already referred to constituted waiver of immunity or submission to jurisdiction.

11. One finds in respectful agreement of the decision by the Calcutta High Court in this regard. Not only that, in the peculiar facts of the present case also the said plea must take a hindseat. Reason being that there is no conscious abandonment of the right. The written statement had been filed and it was immediately followed by the present application referred to above for rejecting the plaint. There is nothing more on the record to indicate that the defendants thus had abandoned or waived the right which may prompt this court to conclude that they cannot now raise this plea. Trial had hardly started, therefore, this particular contention must fail.

12. As regards the second argument of the plaintiffs learned counsel pertaining to the Carriage by Air Act, 1972 reliance was strongly placed Section 7 of the Act. The same is being reproduced for the sake of facility.

Provisions regarding suits against High Contracting Parties who undertake carriage by air (1) Every High Contracting Party to the Convention or the amended Convention, as the case may be, who has not availed himself of the provisions of the Additional Protocol thereto shall, for the purposes of any suit brought in a Court in India in accordance with the provisions, of Rule 28 of the First Schedule, or of the Second Schedule, as the case may be, to enforce claim in respect of carriage undertaken by him, be deemed to have submitted to the jurisdiction of that Court and to be a person for the purposes of the Code of Civil Procedure, 1908 (5 of 1908)

(2) The High Court may make rules of procedure providing for all matters which may be expedient to enable such suits to be instituted and carried on.

(3) Nothing in this section shall authorise any Court to attach or sell any property of a High Contracting Party to the Convention or to the amended Convention.

13. Learned counsel for the plaintiff wanted to read the provisions so as to indicate and urge that every high contracting party to the convention would be deemed to have submitted to the jurisdiction of that court subject to other conditions which are not relevant for the purpose in this matter in hand. Section 7 has been incorporated solely with the purpose to hold that high contracting parties shall be persons for purposes of Civil Procedure Code. They would be taken as a person so that the civil suits in this regard do not fail. It deals with procedural matter only. In fact this question has been considered by this court in the case of Deepak Wadhwa (supra), namely the Carriage by Air Act, 1972. The answer was as has been noted above, and this court concluded in paragraph 14 as under:--

The objection that the special form of procedure prescribed by the Carriage by Air Act, 1972 would prevail over the one prescribed by Section 86 of the Code is not seriously pressed by the counsel for the decree holder. There is no provision in the matter of sovereign immunity contained in the Act. The Code deals with procedural matters that is the matters relating to the machinery for the enforcement of substantive rights. Those substantive rights may be contractual or flowing from the statutory provisions, including the Act. The Act allows suits to be filed in a civil Court relating to the matters under it, but the procedure to be followed in such suits will be governed by the provisions of the Code. The Act does not confer jurisdiction on the Civil Court or provide a special procedure in dealing with the claims arising out of or under the statutory provisions. The suit had to be determined according to the law of procedure laid down in the Code. No foreign State could be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government.

14. Taking stock of these facts the said contentions so raised by the plaintiffs must fail.

15. In that event it had been argued that it is not shown that defendant Airlines can be taken to be a foreign State for purpose of Section 86(1) of the Code of Civil Procedure. On the other hand, the defendants learned counsel referred to the Constitution of the Kingdom of Saudi Arabia and also the Bye-laws of Saudi Arabia Airlines Corporation to bring home the fact that it would be a matter which would be covered by sub-section (1) of Section 86 and defendant must be taken to be a foreign State.

16. We know from the decision of the Supreme Court in V.D.S. Rostock (supra) that if the airlines or any such corporation is basically owned by the State it would be a matter which would be covered by the provisions of Section 86 of the Code, of Civil Procedure. The Supreme Court had referred to with advantage the decision in the case of Krajina vs. The Tass Agency (1949) 2 All E R 274 so as to hold that one must look in every case at the facts to reach a conclusion whether necessary immunity claimed can be granted or not. In the matter before the Supreme Court the Constitution of German Democratic Republic had been considered. It provided that larger industrial enterprises, banks, insurance companies, ocean shipping and civil aviation etc. shall be deemed to be departments of the Government that prompted the court to come to the conclusion that the same would be a matter where permission was required under sub-section (1) to Section 86 of the Civil Procedure Code.

17. In the present case in hand the Constitution of Kingdom of Saudi Arabia indicates that it is a sovereign Islamic State. Article 5 reveals that system of Government is that of monarchy. Under Article 14 of the said constitution all the wealth under the ground or on the surface or in the national territorial waters in the land or maritime domain is the property of the State. At this stage, therefore, it would be advantageous to look at the By-laws of the Saudi Arabia Airlines. The bylaws was a decision of the Council of Ministers. The Council of Ministers had decided and decreed the laws and relevant bylaws for the purposes of the present order would be the 1st and 2nd and are reproduced herein below:-

First: Approval of the By-laws of the Saudi Arabian Airlines Corporation in the text attached hereto.

Second: The Deputy Prime Minister and the Minister of defense and Aviation shall implement this Decree of ours.

18. Article 1 further reads as under:-

ARTICLE 1 : Name, Head Office and Legal Capacity of the Corporation.

The Saudi Arabian Airlines Corporation is a public and independent organisation having legal capacity and attached to the Ministry of defense and Aviation. Its Head Office shall be in Jeddah and the Council of Ministers may determine the transfer of its Head Office to another town within the Kingdom.

19. Article 4 describes about the management of the said corporation and is being reproduced again for the sake of facility.

Management of the Corporation.

The Corporation shall be managed by a Board presided over by H.R.H. Minister of defense and Aviation, or his nominee, and composed of nine members appointed by a resolution of the Council of Ministers on nomination by the Minister of defense and aviation from among those persons who have suitable qualifications, and shall include:

(1) The Assistant Minister of defense and Aviation for Civil Aviation Affairs, the Director General of the Corporation and the President of Civil Aviation.

(2) Representatives of related Government units.

(3) Nominees of the Minister of defense and Aviation other than those mentioned above.

The council of Ministers resolution shall determine the tenure of office of the members appointed by it, and the remuneration granted to them in consideration of such membership.

20. The By-laws show that the Deputy Prime Minister and the Minister of defense and Aviation have to implement and the decree of the Council of Ministers. The Saudi Arabian Airlines Corporation is a public and independent organisation. It is attached to the Ministry of defense and Aviation. It is managed by a board which is presided by the Minister of defense and Aviation and comprises of 9 members appointed by the resolution of Council of Ministers on nomination by Minister of defense and Aviation. It clearly shows that the control over the defendant Airlines Corporation is with the State. Merely because it is carrying on an independent work will not take it away from the purview of sub-section 1 to Section 86. It will still be a foreign State because of the nature of the by laws and the control which is almost complete with the State and its functionaries. Consequently before the suit could be filed the consent of the Central Government certified in writing by the Secretary to the Government was necessary.

21. Taking note of the aforesaid, the conclusion is inescapable that Order 7 Rule 11(d) of the Civil Procedure Code would come into play. The suit is barred by the strict provisions and rigours of sub-Section (1) to Section 86 of the Civil Procedure Code. Consequently the petition filed by the defendant is allowed and the plaint as such is rejected.