Syed Ashraf Hasnain Rizvi vs Union Of India & Ors.
2010 Latest Caselaw 1764 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
33.
+                                   W.P. (C) No. 3625 of 2008

         SYED ASHRAF HASNAIN RIZVI                    ..... Petitioner
                      Through: Mr. Anil Sapra, Senior Advocate with
                      Mr. Sumant, Advocate.

                           versus

         UNION OF INDIA & ORS.                ..... Respondents
                       Through: Mr. Madan Gera, Advocate.

          CORAM: JUSTICE S. MURALIDHAR

         1. Whether reporters of local paper may be allowed
            to see the judgment?                                     No
         2. To be referred to the reporter or not?                  Yes
         3. Whether the judgment should be referred in the digest? Yes

                                         ORDER

05.04.2010

1. The Petitioner challenges an order dated 4th April 2008 passed by the

Ministry of External Affairs („MoEA‟), Government of India refusing

him permission under Section 86(3) of the Code of Civil Procedure

(„CPC‟), 1908 to execute a decree dated 14th November 2007 in Suit No.

59 of 2004 in his favour against the Embassy of Islamic Republic of Iran.

2. Aggrieved by the termination of his services by the Embassy of

Islamic Republic of Iran, Respondent No.3 (R-3) herein, the Petitioner

approached the Respondent No.1, MoEA with an application under

Section 86 (1) CPC for permission to institute legal proceedings against

R-3 for getting his dues. This he did by a letter dated 20 th April 2003 in

which inter alia he prayed:

"It is, therefore, once again prayed that Ministry of External Affairs, Government of India be pleased to take appropriate W.P.(C) No. 3625 of 2008 page 1 of 7 action against the Embassy of the Islamic Republic of Iran and direct them to settle the matter amicably with me, which I am very keen to do. However, should the Embassy be unwilling to do so within a period of 15 days, I earnestly pray to the Ministry of External Affairs to grant me consent under Section 86 of the Code of Civil Procedure, 1908 to move the competent Court for redressal of my grievances and recovery of the compensation and other amounts due to me on account of the illegal termination of my service."

3. In response to the above letter, on 23rd January 2004, the MoEA

granted permission to the Petitioner under Section 86 CPC for initiating

legal proceedings. However, for some reasons, the permission was

worded as under:

"Now, therefore, government of India, the Ministry of External Affairs, hereby accord and certify their consent under Section 86 Code of Civil Procedure, 1908 for institution of legal suit against the Embassy of the Islamic Republic of Iran, New Delhi in a court of competent jurisdiction for getting the retirement benefits."

4. On the basis of the above permission, on 2nd April 2004 the Petitioner

filed Suit No. 59 of 2004 in the court of the learned District Judge against

R-3. The suit was contested by R-3 which was arrayed as Defendant

No.1. By judgment dated 14th November 2007, the learned Additional

District Judge („ADJ‟) decreed the suit for the sum of Rs.7,89,600/- with

10% per year increase on the wages drawn for the last seven years with

proportionate costs and pendente lite and future interest @ 9% p.a. till the

date of payment.

W.P.(C) No. 3625 of 2008 page 2 of 7

5. On the basis of the above decree, the Petitioner on 12th February 2008

applied to the MoEA under Section 86 (3) CPC for permission to execute

the said judgment and decree.

6. By the impugned order dated 4th April 2008, the permission was

refused by the MoEA on the ground that the permission to sue R-3 had

been only for "getting retirement benefits" whereas the Petitioner had

instituted the suit for "compensation for the illegal termination of his

employment."

7. The submissions of Mr. Anil Sapra, learned Senior counsel for the

Petitioner and Mr. Madan Gera, learned counsel for the Respondents

have been heard.

8. Mr. Sapra refers to the judgment of the Supreme Court in Harbhajan

Singh Dhalla v. Union of India AIR 1987 SC 9 and states that the very

object of Section 86 CPC is to ensure that the cause of justice is not

defeated and that a person who has a legitimate claim against a foreign

government is entitled to realise such claim in accordance with law.

9. Mr. Gera, on the other hand, submits that the precise wording of the

permission granted to the Petitioner by the MoEA by its letter dated 23 rd

January 2004 would have to be adhered to. That permission was only for

the Petitioner to get "retirement benefits". He also adverts to the fact that

the suit, as filed by the Petitioner was captioned as a suit for "recovery of

compensation/retirement benefits on account of the illegal and unlawful W.P.(C) No. 3625 of 2008 page 3 of 7 termination..." He accordingly submits that the decree passed by the

learned trial court cannot be permitted to be executed as it is not in

conformity with the permission granted by the MoEA under Section 86

(1) CPC.

10. Having considered the submissions of learned counsel for the parties,

this Court is of the view that the writ petition should succeed. Section 86

of the CPC reads as under:

"86. 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 a foreign State from whom he holds or claims to hold the property.

(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 foreign State may be sued, but it shall not be given, unless it appears to the Central Government that the foreign State-

(a) has instituted a suit in the Court against the person desiring to sue it, or

(b) by itself or another, trades within the local limits of 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, or

(d) has expressly or impliedly waived the privilege accorded to it by this section.

(3) Except with the consent of the Central Government, certified in writing by a Secretary to that Government, no decree shall be executed against the property of any foreign State.

W.P.(C) No. 3625 of 2008 page 4 of 7 (4) The preceding provisions of this section shall apply in relation to-

(a) any Ruler of a foreign State;

(aa) any Ambassador or Envoy of a foreign State;

(b) any High Commissioner of a Commonwealth country; and

(c) any such member of the staff of the foreign State or the staff or retinue of the Ambassador] or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf, as they apply in relation to a foreign State.

(5) The following persons shall not be arrested under this Code, namely:-

(a) any Ruler of a foreign State;

(b) any Ambassador or Envoy of a foreign State;

(c) any High Commissioner of a Commonwealth country;

(d) any such member of the staff of the foreign State or the staff of retinue of the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country, as the Central Government may, by general or special order specify in this behalf.

(6) Where a request is made to the Central Government for the grant of any consent referred to in sub-section (1), the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard."

11. As explained by the Supreme Court, the very purpose of the above

Section is to enable persons who may have a legitimate claim against a

foreign government to realise such claim in accordance with law. It was

observed by the Supreme Court in para 22 of the above judgment under

as under (AIR @ p.14):

"It is true that these provisions both of Sections 86 and 87 are intended to save the foreign states from harassment which would be caused by the institution of a suit but except in cases where the claim appears to be frivolous patently, the Central W.P.(C) No. 3625 of 2008 page 5 of 7 Government should normally accord consent or give sanction against foreign states unless there are cogent political and other reasons. Normally, however, it is not the function of the Central Government to attempt to adjudicate upon the merits of the case intended to be made by the litigants in their proposed suits. It is the function of the courts of competent jurisdiction and the Central Government cannot under Section 86 of the Code usurp that function. The power given to the Central Government must be exercised in accordance with the principles of natural justice and in consonance with the principle that reasons must appear from the order."

12. It is difficult to appreciate the objection taken by the MoEA in this

case particularly when R-3 itself appears to have accepted the judgment

and decree of the trial court in the suit which it contested on merits. The

Petitioner on his part had sought permission from the MoEA to sue R-3

"for recovery of compensation and other amounts due to him on account

of the illegal termination of his services." For some reason, in its letter

dated 23rd January 2004, the MoEA granted him permission for getting

the "retirement benefits". In fact, there is no question of the Petitioner

having retired. Consequently, his claim was essentially for the

compensation due to him on account of the illegal termination of his

services. The permission under Section 86(1) CPC has to be read

consistent with the permission that was sought by the Petitioner in his

letter dated 20th April 2003.

13. A reading of the plaint also shows that the Plaintiff was essentially

claiming compensation for the illegal termination of his services.

W.P.(C) No. 3625 of 2008 page 6 of 7 Schedule A to the plaint listed out the claims. This Court is, therefore,

unable to appreciate the refusal by the MoEA to accord permission to the

Petitioner under Section 86(3) CPC.

14. The writ petition is accordingly allowed. The impugned order dated

4th April 2008 is hereby set aside. The Respondent Union of India is

directed to issue a letter to the Petitioner within a period of four weeks

under Section 86(3) CPC permitting him to execute the decree dated 14th

November 2007 (Suit No.59 of 2004). It is made clear that if such letter

is not formally issued, then it will be deemed that the UOI has granted

such permission under Section 86(3) CPC and on the strength of the

present judgment it will be open to the Petitioner to apply to the

executing court for execution of the decree in question.

15. The writ petition is allowed with costs of Rs.5,000/- which will be

paid by the UOI to the Petitioner within four weeks.

S. MURALIDHAR, J.

APRIL 05, 2010
dn




W.P.(C) No. 3625 of 2008                                    page 7 of 7