Full Judgment Text
* HIGH COURT OF DELHI : NEW DELHI
+ RFA (OS) No. 20/2002
st
Reserved on : 31 July, 2008
th
% Decided on : 8 August, 2008
MANSOOR MUMTAZ & ORS. ...Appellants
Through : Mr. S.D. Ansari, Adv.
Versus
SAUDI ARABIAN AIRLINES CORPORATION
DCM BUILDING, BARAKHAMBA ROAD,
NEW DELHI-1100 01 ....Respondents
Through : Mr. Mudit Sharma, Adv.
with Mr. Moazzam Khan,
Adv.
Coram:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
rd
This Appeal has been filed against the impugned order dated 23 July
1.
2001 passed by the learned Single Judge of this Court in I.A. No. 2467
and 2468 of 2000 in Suit No. 2480/98 whereby the application of the
Defendant under Order 7 Rule 11 read with Section 151 CPC was
allowed and the plaint as such was rejected mainly on the ground that the
RFA (OS) No. 20/2002 Page 1 of 12
suit is barred by strict provisions and rigours of sub-section (1) of
Section 86 of the Code of Civil Procedure and the suit is not
maintainable under Order 7 Rule 11 (d) of Code of Civil Procedure.
th
2. In the nutshell, brief facts for deciding the appeal are that on 12
November, 1996, there was a mid air collision of Saudi Arabian Airlines
Boeing 747 ( flight SV 763) with Kazakistan Airlines near Charkhi
Dadri, Haryana. One Ms. Farah Mumtaz was a passenger on board of
Saudi Arabian Airlines. She died as a result of the said collision. The
plaintiffs are the legal heirs of deceased Farah Mumtaz and claim
compensation and damages from the Defendant Saudi Arabian Airlines
Corporation. This suit is filed claiming a decree for 2,60,000 Francs
equivalent to 17,030 gms of gold of millesimal fineness nine hundred
converted into Indian rupees according to the price of gold in Indian
rupees on the date of the judgment (less an amount of Rs. 7,40,896/-
already paid by the Defendant to the plaintiff). The said amount claimed
is tentatively valued at Rs. 5,10,000/-.
th
3. The Defendant filed the written statement dated 26 July 1999. However,
it is a matter of fact that the Defendant did not take the plea of non-
compliance of Section 86 of the Code of Civil Procedure. After filing of
the replication by the plaintiff the Defendant filed a separate application
th
dated 14 March 2000 under Order 7 Rule 11 CPC wherein the
Defendant specifically raised the plea that “the Defendant is a
Corporation which is wholly owned by the Kingdom of Saudi Arabia and
is, therefore, a foreign State within the meaning of Section 86 of Code of
Civil Procedure, 1908 and enjoys immunities and privileges and no suit
RFA (OS) No. 20/2002 Page 2 of 12
is maintainable under Section 86 CPC as against a foreign State unless
the consent of the Central Government is obtained.” In support of the
application the Defendant has also placed copy of the bye-laws.
4. The argument of the learned counsel for the Plaintiff are mainly on two
grounds, namely, that the Defendant has not taken the defence in the
written statement, therefore, the Defendant cannot raise this plea in the
application filed by the Defendant as the Defendant has waived its right
to plead the same. Secondly, by virtue of Section 7 of the Carriage by
Air Act, 1972 the provisions of Section 86 of CPC are impliedly
superseded. As regards the first argument of the learned counsel for the
Plaintiff is concerned, we may state that no doubt the Defendant had not
taken the defence of Section 86 CPC in the written statement, however,
the averment has been made in the application under Order 7 Rule 11
CPC and the permission required under Section 86 CPC was mandatory
before filing of the suit as per law and, therefore, the question of
abandonment and waiver under the said circumstances does not arise.
Even otherwise, it is well settled law that while deciding the application
under Order 7 Rule 11 CPC the court has to see the allegations made in
the plaint and documents attached therewith.
5. We have gone through the impugned order, pleadings and documents in
the matter. The short point involved in the present case is as to whether
the suit is barred by the provisions of sub-section(1) of Section 86 of the
Code of Civil Procedure or not and/or the plaint is liable to be rejected
under Order 7 Rule 11 (d) of the Code of Civil Procedure.
6. Section 86 of the Code of Civil Procedure provides:-
RFA (OS) No. 20/2002 Page 3 of 12
“ 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.
7. In order to invoke the provisions of Section 86 CPC it would be
advantageous to look at the laws of Saudi Arabia Airlines. The bylaws
was a decision of the Council of Ministers. The Council of Ministers
had decided and decreed the bylaws and relevant bylaws for the purposes
st nd
of the present order would be the 1 and 2 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 Defence and
Aviation shall implement this Decree of ours.
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
organization having legal capacity and attached to the Ministry of
Defence and Aviation. Its Head Office shall be in Jeddah and the
Counsel of Ministers may determine the transfer of its Head Office to
another town within the Kingdom.
RFA (OS) No. 20/2002 Page 4 of 12
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 Defence 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 Defence and aviation from among those
persons who have suitable qualifications, and shall include:
(1) The Assistant Minister of Defence 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 Defence 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.
The By-laws show that the Deputy Prime Minister and the Minister of
Defence and Aviation have to implement the decree of the Council of
Ministers. The Saudi Arabian Airlines Corporation is a public and
independent organization. It is attached to the Ministry of Defence and
Aviation. It is managed by a board which is presided by the Minister of
Defence and Aviation and comprises of 9 members appointed by the
resolution of Council of Ministers on nomination by Minister of Defence
and Aviation.
RFA (OS) No. 20/2002 Page 5 of 12
8. 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 bylaws 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.
9. The Hon‟ble Supreme Court in the decision rendered in the case of V. D.
S Rostock (D.S.P. Lines, Deptt. of G.D.R. vs. N.C. Jute Mills Co. Ltd.
AIR 1994 SC 516 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 Section 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 and be
sued in its Courts. It can be said that effect of
Section 86 then is to modify the extent of doctrine
of immunity recognized by the International Law.
If a suit is filed in Indian Courts with the consent
of the Central Government as required by Section
86, it shall not be open to any foreign State to rely
on the doctrine of immunity.”
The Court also took into consideration various other
judgments and considered their implication, some of which are as
RFA (OS) No. 20/2002 Page 6 of 12
follows :-
(i) Mirza Ali Akbar Kashani v. The United Arab
Republic & Anr AIR 1996 SC 230
(ii) M/s. B.L. Gupta Constrn. Co. v. Sri Lanka High
Commission in India & Anr., (Arb. P. No.295/2004
decided on 29.9.2005).
(iii) Uttam Singh Duggal & Co. P. Ltd. v. United States
of America, Agency of International Development,
ILR (1982) II Del 273.
10. It was of the view that two conditions precedent for entertaining of a suit
under Section 86 of the Code are: (a) the competence of the Court to try
such suits; and (b) certificate issued by the Central Government. The
certificate of the Central Government was necessary only if the
body/person sued satisfies the conditions of being a „foreign state‟. The
Court noted that the expression „foreign state‟ is explained in Section 87-
A of the Code. It also took into consideration provisions of Article
367(3) of the Constitution of India, which is not necessary to be
discussed herein.
11. This Hon‟ble court in the case of Deepak Wadhwa vs. Aeroflot, 1983
DLT Page No.1 referred to the same principle in almost identical terms
and in Para 5 recognised the said principle and gave its findings in Para
13 of the said decision which is reproduced as under:-
“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
RFA (OS) No. 20/2002 Page 7 of 12
amends the statutory provisions.”
12. In yet another recent case decided by this Hon‟ble Court and reported in
Vol. 149 (2008) DLT 505 (DB) Royal Nepal Airlines Corporation vs.
Arun Jain it was held as under:-
“Section 86 of the Code is a part of the Municipal
Law of India. Therefore, the question is not to be
answered by relying upon the doctrine of immunity
under the International Law. If immunity is
granted under Section 86 of the Code, consent of
the Central Government will be required.
Immunity under Section 86 of the Code is not
absolute. A plaintiff is required to seek permission
and obtain consent from the Central Government.
Reference may also be made to the decision of the
Bombay High Court in the case of Kenya Airways
vs. Jinibhai, reported in AIR 1998 Bom 287(DB).
The High Court approved of the views expressed in
the cases of Baccus S.R.L. v. Servicio Nacional Del
Trigo, reported in (1956) 2 All ER 715 and Krajina
v. The tass Agency, reported in (1949) 2 All ER
274, 280. In both cases observation of the Court
was that, before arriving at a conclusion and
decision, one must look at the relevant legislation
and related facts to decide whether the foreign
State has intended to give up its immunity
generally or only for limited and defined purposes.
However, it may be noted that doctrine of
Immunity has undergone a change in England since
1975.”
13. In view of the well settled law, it is clear that Section 86 of the Code is
applicable to the facts of the present case as the said provision is directly
applicable to the facts of the present case. It appears from the pleadings
and documents that Constitution of the 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
RFA (OS) No. 20/2002 Page 8 of 12
international territorial waters in the land or maritime domain is the
property of the State. The Bye-laws filed by the Defendant clearly gives
the indication that the Saudi Arabian Airlines Corporation although is a
public and independent organization but it is attached to the Ministry of
Defence and Aviation which is managed by the Board and is presided by
the Minister of Defence and Aviation and the said Airlines Corporation
is duly controlled by the Government.
14. Reverting to the second argument of the learned counsel for the Plaintiff
the counsel has placed reliance on Section 7 of the Carriage by Air Act,
1972. The same reads as under:-
“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 authorize any
Court to attach or sell any property of a High
Contracting Party to the Convention or to the
amended Convention.”
15. Learned counsel for the Plaintiff has urged that every High Contracting
Party to the Convention would be deemed to have been submitted to the
jurisdiction of that court subject to the other conditions which are not
relevant for the purpose in this matter. It was further argued that Section
RFA (OS) No. 20/2002 Page 9 of 12
7 has been incorporated with the purpose of holding that High
Contracting Parties shall be person for purposes of Civil Procedure Code
and they would be taken as a person so that the civil suit in this regard do
not fail. This question has been considered by this Hon‟ble court in the
case of Deepak Wadhwa (supra). Para 14 of the said decision reads 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.”
16. From the above said discussion it is clear that the said contentions of the
learned counsel for the plaintiff have also no force. Learned counsel for
the Plaintiff has also made another submission that the appeal is also
liable to be allowed as after passing of the impugned order the
permission has been granted by the Central Government on
26thNovember 2001 in order to comply with the provisions of Section
RFA (OS) No. 20/2002 Page 10 of 12
86 of the Code of Civil Procedure. In reply to the argument, the learned
counsel for the Defendant has made the submission that the present suit
th
was filed on 10 November, 1998. The application under Order 7 Rule
th
11 CPC was dated 14 March 2000, the impugned order was passed on
rd
23 July 2001 and the permission was sought by the plaintiff after
passing of the impugned order and even the present appeal was filed,
th
after grant of permission to the plaintiff on 26 November 2001, in
second week of July 2002. On the date of institution of the suit i.e.
10thNovember 1998 the suit was not maintainable, therefore, the present
appeal is also liable to be dismissed. We agree with the submission of the
learned counsel for the Defendant as it is clear from the record that on
the date of filing of the suit there was no compliance of Section 86 of
CPC and the permission was sought after passing of the impugned order
th
which was ultimately granted on 26 November 2001.
17. Learned counsel for the plaintiff has informed that after obtaining
permission under Section 86, no fresh suit was filed by the plaintiff
against the Defendant and he argued that the present appeal may be
allowed due to the fact that since the permission has now been granted,
this court should consider the said change of circumstances. We are
afraid we cannot accept the submission of the learned counsel for the
Plaintiff as we feel that the suit itself was not maintainable on the date of
its institution.
18. The real object of Order 7 Rule 11 of the Code is to keep out of courts
irresponsible law suits. Rule 11 of Order 7 lays down an independent
remedy made available to the Defendant to challenge the maintainability
RFA (OS) No. 20/2002 Page 11 of 12
of the suit itself, irrespective of his right to contest the same on merits.
The law ostensibly does not contemplate at any stage when the objections
can be raised, and also does not say in express terms about the filing of
written statement. Instead, the word „shall‟ is used clearly implying
thereby that it casts a duty on the Court to perform its obligations in
rejecting the plaint when the same is hit by any of the infirmities provided
in the four clauses of Rule 11, even without intervention of the
Defendant.
19. In view of the above said circumstances we find no infirmity in the
observations made by the learned single Judge and the appeal is hereby
dismissed. There will be no order as to costs.
MANMOHAN SINGH, J
August 8, 2008 A.K. SIKRI, J
sa/sd
RFA (OS) No. 20/2002 Page 12 of 12
+ RFA (OS) No. 20/2002
st
Reserved on : 31 July, 2008
th
% Decided on : 8 August, 2008
MANSOOR MUMTAZ & ORS. ...Appellants
Through : Mr. S.D. Ansari, Adv.
Versus
SAUDI ARABIAN AIRLINES CORPORATION
DCM BUILDING, BARAKHAMBA ROAD,
NEW DELHI-1100 01 ....Respondents
Through : Mr. Mudit Sharma, Adv.
with Mr. Moazzam Khan,
Adv.
Coram:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
rd
This Appeal has been filed against the impugned order dated 23 July
1.
2001 passed by the learned Single Judge of this Court in I.A. No. 2467
and 2468 of 2000 in Suit No. 2480/98 whereby the application of the
Defendant under Order 7 Rule 11 read with Section 151 CPC was
allowed and the plaint as such was rejected mainly on the ground that the
RFA (OS) No. 20/2002 Page 1 of 12
suit is barred by strict provisions and rigours of sub-section (1) of
Section 86 of the Code of Civil Procedure and the suit is not
maintainable under Order 7 Rule 11 (d) of Code of Civil Procedure.
th
2. In the nutshell, brief facts for deciding the appeal are that on 12
November, 1996, there was a mid air collision of Saudi Arabian Airlines
Boeing 747 ( flight SV 763) with Kazakistan Airlines near Charkhi
Dadri, Haryana. One Ms. Farah Mumtaz was a passenger on board of
Saudi Arabian Airlines. She died as a result of the said collision. The
plaintiffs are the legal heirs of deceased Farah Mumtaz and claim
compensation and damages from the Defendant Saudi Arabian Airlines
Corporation. This suit is filed claiming a decree for 2,60,000 Francs
equivalent to 17,030 gms of gold of millesimal fineness nine hundred
converted into Indian rupees according to the price of gold in Indian
rupees on the date of the judgment (less an amount of Rs. 7,40,896/-
already paid by the Defendant to the plaintiff). The said amount claimed
is tentatively valued at Rs. 5,10,000/-.
th
3. The Defendant filed the written statement dated 26 July 1999. However,
it is a matter of fact that the Defendant did not take the plea of non-
compliance of Section 86 of the Code of Civil Procedure. After filing of
the replication by the plaintiff the Defendant filed a separate application
th
dated 14 March 2000 under Order 7 Rule 11 CPC wherein the
Defendant specifically raised the plea that “the Defendant is a
Corporation which is wholly owned by the Kingdom of Saudi Arabia and
is, therefore, a foreign State within the meaning of Section 86 of Code of
Civil Procedure, 1908 and enjoys immunities and privileges and no suit
RFA (OS) No. 20/2002 Page 2 of 12
is maintainable under Section 86 CPC as against a foreign State unless
the consent of the Central Government is obtained.” In support of the
application the Defendant has also placed copy of the bye-laws.
4. The argument of the learned counsel for the Plaintiff are mainly on two
grounds, namely, that the Defendant has not taken the defence in the
written statement, therefore, the Defendant cannot raise this plea in the
application filed by the Defendant as the Defendant has waived its right
to plead the same. Secondly, by virtue of Section 7 of the Carriage by
Air Act, 1972 the provisions of Section 86 of CPC are impliedly
superseded. As regards the first argument of the learned counsel for the
Plaintiff is concerned, we may state that no doubt the Defendant had not
taken the defence of Section 86 CPC in the written statement, however,
the averment has been made in the application under Order 7 Rule 11
CPC and the permission required under Section 86 CPC was mandatory
before filing of the suit as per law and, therefore, the question of
abandonment and waiver under the said circumstances does not arise.
Even otherwise, it is well settled law that while deciding the application
under Order 7 Rule 11 CPC the court has to see the allegations made in
the plaint and documents attached therewith.
5. We have gone through the impugned order, pleadings and documents in
the matter. The short point involved in the present case is as to whether
the suit is barred by the provisions of sub-section(1) of Section 86 of the
Code of Civil Procedure or not and/or the plaint is liable to be rejected
under Order 7 Rule 11 (d) of the Code of Civil Procedure.
6. Section 86 of the Code of Civil Procedure provides:-
RFA (OS) No. 20/2002 Page 3 of 12
“ 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.
7. In order to invoke the provisions of Section 86 CPC it would be
advantageous to look at the laws of Saudi Arabia Airlines. The bylaws
was a decision of the Council of Ministers. The Council of Ministers
had decided and decreed the bylaws and relevant bylaws for the purposes
st nd
of the present order would be the 1 and 2 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 Defence and
Aviation shall implement this Decree of ours.
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
organization having legal capacity and attached to the Ministry of
Defence and Aviation. Its Head Office shall be in Jeddah and the
Counsel of Ministers may determine the transfer of its Head Office to
another town within the Kingdom.
RFA (OS) No. 20/2002 Page 4 of 12
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 Defence 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 Defence and aviation from among those
persons who have suitable qualifications, and shall include:
(1) The Assistant Minister of Defence 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 Defence 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.
The By-laws show that the Deputy Prime Minister and the Minister of
Defence and Aviation have to implement the decree of the Council of
Ministers. The Saudi Arabian Airlines Corporation is a public and
independent organization. It is attached to the Ministry of Defence and
Aviation. It is managed by a board which is presided by the Minister of
Defence and Aviation and comprises of 9 members appointed by the
resolution of Council of Ministers on nomination by Minister of Defence
and Aviation.
RFA (OS) No. 20/2002 Page 5 of 12
8. 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 bylaws 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.
9. The Hon‟ble Supreme Court in the decision rendered in the case of V. D.
S Rostock (D.S.P. Lines, Deptt. of G.D.R. vs. N.C. Jute Mills Co. Ltd.
AIR 1994 SC 516 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 Section 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 and be
sued in its Courts. It can be said that effect of
Section 86 then is to modify the extent of doctrine
of immunity recognized by the International Law.
If a suit is filed in Indian Courts with the consent
of the Central Government as required by Section
86, it shall not be open to any foreign State to rely
on the doctrine of immunity.”
The Court also took into consideration various other
judgments and considered their implication, some of which are as
RFA (OS) No. 20/2002 Page 6 of 12
follows :-
(i) Mirza Ali Akbar Kashani v. The United Arab
Republic & Anr AIR 1996 SC 230
(ii) M/s. B.L. Gupta Constrn. Co. v. Sri Lanka High
Commission in India & Anr., (Arb. P. No.295/2004
decided on 29.9.2005).
(iii) Uttam Singh Duggal & Co. P. Ltd. v. United States
of America, Agency of International Development,
ILR (1982) II Del 273.
10. It was of the view that two conditions precedent for entertaining of a suit
under Section 86 of the Code are: (a) the competence of the Court to try
such suits; and (b) certificate issued by the Central Government. The
certificate of the Central Government was necessary only if the
body/person sued satisfies the conditions of being a „foreign state‟. The
Court noted that the expression „foreign state‟ is explained in Section 87-
A of the Code. It also took into consideration provisions of Article
367(3) of the Constitution of India, which is not necessary to be
discussed herein.
11. This Hon‟ble court in the case of Deepak Wadhwa vs. Aeroflot, 1983
DLT Page No.1 referred to the same principle in almost identical terms
and in Para 5 recognised the said principle and gave its findings in Para
13 of the said decision which is reproduced as under:-
“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
RFA (OS) No. 20/2002 Page 7 of 12
amends the statutory provisions.”
12. In yet another recent case decided by this Hon‟ble Court and reported in
Vol. 149 (2008) DLT 505 (DB) Royal Nepal Airlines Corporation vs.
Arun Jain it was held as under:-
“Section 86 of the Code is a part of the Municipal
Law of India. Therefore, the question is not to be
answered by relying upon the doctrine of immunity
under the International Law. If immunity is
granted under Section 86 of the Code, consent of
the Central Government will be required.
Immunity under Section 86 of the Code is not
absolute. A plaintiff is required to seek permission
and obtain consent from the Central Government.
Reference may also be made to the decision of the
Bombay High Court in the case of Kenya Airways
vs. Jinibhai, reported in AIR 1998 Bom 287(DB).
The High Court approved of the views expressed in
the cases of Baccus S.R.L. v. Servicio Nacional Del
Trigo, reported in (1956) 2 All ER 715 and Krajina
v. The tass Agency, reported in (1949) 2 All ER
274, 280. In both cases observation of the Court
was that, before arriving at a conclusion and
decision, one must look at the relevant legislation
and related facts to decide whether the foreign
State has intended to give up its immunity
generally or only for limited and defined purposes.
However, it may be noted that doctrine of
Immunity has undergone a change in England since
1975.”
13. In view of the well settled law, it is clear that Section 86 of the Code is
applicable to the facts of the present case as the said provision is directly
applicable to the facts of the present case. It appears from the pleadings
and documents that Constitution of the 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
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international territorial waters in the land or maritime domain is the
property of the State. The Bye-laws filed by the Defendant clearly gives
the indication that the Saudi Arabian Airlines Corporation although is a
public and independent organization but it is attached to the Ministry of
Defence and Aviation which is managed by the Board and is presided by
the Minister of Defence and Aviation and the said Airlines Corporation
is duly controlled by the Government.
14. Reverting to the second argument of the learned counsel for the Plaintiff
the counsel has placed reliance on Section 7 of the Carriage by Air Act,
1972. The same reads as under:-
“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 authorize any
Court to attach or sell any property of a High
Contracting Party to the Convention or to the
amended Convention.”
15. Learned counsel for the Plaintiff has urged that every High Contracting
Party to the Convention would be deemed to have been submitted to the
jurisdiction of that court subject to the other conditions which are not
relevant for the purpose in this matter. It was further argued that Section
RFA (OS) No. 20/2002 Page 9 of 12
7 has been incorporated with the purpose of holding that High
Contracting Parties shall be person for purposes of Civil Procedure Code
and they would be taken as a person so that the civil suit in this regard do
not fail. This question has been considered by this Hon‟ble court in the
case of Deepak Wadhwa (supra). Para 14 of the said decision reads 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.”
16. From the above said discussion it is clear that the said contentions of the
learned counsel for the plaintiff have also no force. Learned counsel for
the Plaintiff has also made another submission that the appeal is also
liable to be allowed as after passing of the impugned order the
permission has been granted by the Central Government on
26thNovember 2001 in order to comply with the provisions of Section
RFA (OS) No. 20/2002 Page 10 of 12
86 of the Code of Civil Procedure. In reply to the argument, the learned
counsel for the Defendant has made the submission that the present suit
th
was filed on 10 November, 1998. The application under Order 7 Rule
th
11 CPC was dated 14 March 2000, the impugned order was passed on
rd
23 July 2001 and the permission was sought by the plaintiff after
passing of the impugned order and even the present appeal was filed,
th
after grant of permission to the plaintiff on 26 November 2001, in
second week of July 2002. On the date of institution of the suit i.e.
10thNovember 1998 the suit was not maintainable, therefore, the present
appeal is also liable to be dismissed. We agree with the submission of the
learned counsel for the Defendant as it is clear from the record that on
the date of filing of the suit there was no compliance of Section 86 of
CPC and the permission was sought after passing of the impugned order
th
which was ultimately granted on 26 November 2001.
17. Learned counsel for the plaintiff has informed that after obtaining
permission under Section 86, no fresh suit was filed by the plaintiff
against the Defendant and he argued that the present appeal may be
allowed due to the fact that since the permission has now been granted,
this court should consider the said change of circumstances. We are
afraid we cannot accept the submission of the learned counsel for the
Plaintiff as we feel that the suit itself was not maintainable on the date of
its institution.
18. The real object of Order 7 Rule 11 of the Code is to keep out of courts
irresponsible law suits. Rule 11 of Order 7 lays down an independent
remedy made available to the Defendant to challenge the maintainability
RFA (OS) No. 20/2002 Page 11 of 12
of the suit itself, irrespective of his right to contest the same on merits.
The law ostensibly does not contemplate at any stage when the objections
can be raised, and also does not say in express terms about the filing of
written statement. Instead, the word „shall‟ is used clearly implying
thereby that it casts a duty on the Court to perform its obligations in
rejecting the plaint when the same is hit by any of the infirmities provided
in the four clauses of Rule 11, even without intervention of the
Defendant.
19. In view of the above said circumstances we find no infirmity in the
observations made by the learned single Judge and the appeal is hereby
dismissed. There will be no order as to costs.
MANMOHAN SINGH, J
August 8, 2008 A.K. SIKRI, J
sa/sd
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