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Kumar Kant Narain Singh Pltf. Appct. v. Chandrabhal Singh Deft. Opposite Party.

Allahabad High Court
Dec 21, 1950
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

Civil Revn. No. 226 of 1949

JUDGES

Sankar Saran

Bind Basni Prasad, JJ.

ACTS

SECTION 5 PROVINCIAL INSOLVENCY ACT

SECTION 311 GOVERNMENT OF INDIA ACT 1935

Section 141 of the CPC the provisions of O. 33 of the Code

SECTION 187 COMPANIES ACT

Sections 184, 186 & 187 of the Companies Act.

GOVERNMENT OF INDIA ACT 1935

Sections 186 & 187 of the Companies Act,

Indian State.25. Section 86 of the CPC

ARTICLE 363 A CONSTITUTION OF INDIA

S. 186 or 187, Companies Act,

provisions of Article 143

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Smart Summary (Beta)

Factual and Procedural Background

This revision arises from an order of the Civil Judge, Banaras, refusing the applicant permission to sue in forma pauperis. The substantive dispute relates to the Banaras State. The opposite party (Maharaja Vibhuti Narain Singh) is alleged by the applicant (who called him Babu Chandrabhal Singh) to have been improperly adopted into the ruling family in or about 1934; the applicant claims to be the true heir and seeks possession of properties now vesting in the opposite party and Rs. 30,00,000 as mesne profits. The applicant alleged inability to pay court-fees and applied for leave to sue as a pauper. The opposite party contested the pauper application inter alia on the ground that Section 86 of the Civil Procedure Code (CPC) requires prior permission of the prescribed authority (the President/Governor-General in Council) before proceeding against a Ruling Chief, and that Order 33, Rule 5(d) (O.33 R.5(d)) of the CPC permits rejection of a pauper application where the allegations do not show a cause of action. The Civil Judge rejected the pauper application; the applicant challenged that rejection by way of revision.

Legal Issues Presented

  1. Whether Section 86 of the CPC (special privilege requiring prior permission before suits against Sovereign Princes/Ruling Chiefs) applies to an application for leave to sue in forma pauperis (pauper proceedings), or whether it applies only to suits.
  2. Whether Order 33 of the CPC (pauper proceedings) including R.5(d) is applicable to pauper proceedings and permits rejection of an application where the allegations do not show a cause of action.
  3. Whether the question of a bar under Section 86 (a plea in bar) can be considered at the pauper-application stage.
  4. Whether the opposite party is a "Sovereign Prince" or "Ruling Chief" within the meaning of Section 86 of the CPC, and whether any merger of the State with Uttar Pradesh removed that status.
  5. Whether the Civil Judge correctly exercised the power under O.33 R.5(d) in rejecting the pauper application.

Arguments of the Parties

Applicant's Arguments

  • The applicant challenges the adoption of Maharaja Vibhuti Narain Singh and asserts that he is the true heir to the Banaras State, seeking possession and Rs. 30 lacs as mesne profits.
  • The applicant alleged insufficient means to pay court-fees and applied for leave to sue as a pauper.
  • He contended that Section 86 of the CPC applies only to suits and not to an application for leave to sue in forma pauperis; he argued that by virtue of Section 141 of the CPC, the provisions of Order 33 do not apply to pauper proceedings.
  • He relied on Madan Lal v. Beza Ali (A.I.R. 1940 Cal. 244) to contend that Section 86 could not be applied to certain proceedings (the case dealt with insolvency proceedings), and relied on Kambhai Ajubhai v. Himatsangji to argue that the opposite party was not a Sovereign Prince or Ruling Chief or that such status might have been lost after merger.
  • He argued that the Court should itself determine whether the opposite party enjoys the status protected by Section 86.

Opposite Party's Arguments

  • The opposite party asserted that he is the recognized Ruling Chief of Banaras, and that without the prior permission of the prescribed authority as contemplated by Section 86 of the CPC, neither the pauper application nor the proposed suit was maintainable.
  • He relied on Order 33, Rule 5(d) of the CPC, arguing that the pauper application should be rejected because the allegations (absent the required permission under Section 86) did not disclose a cause of action.
  • He contested the applicant's claim to inheritance and maintained that the adoption was recognised (including Government of India confirmation in 1934) and that his status was recognised by Government authorities and protected by the merger agreement and later constitutional provisions.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dehra Dun Mussorie Electric Tramway Co. Ltd. v. President, Council of Regency, Nabha State, 58 ALL. 742 : A.I.R. 1936 ALL. 826 (F.B.) Considered the conjoint effect of Sections 86 & 141 CPC and held Section 86 applies to proceedings under Sections 186 & 187 Companies Act; that Section 86 confers special privilege on Sovereign Princes/Ruling Chiefs and cannot be overridden by civil court proceedings under Companies Act. The court applied parity of reasoning from this case to hold that Order 33 is applicable to pauper proceedings: if Section 86 applies to non-suit proceedings under Companies Act, then O.33 must apply with at least equal force to pauper proceedings which are preliminary to a contemplated suit.
Madan Lal v. Beza Ali, A.I.R. 1940 Cal. 244 : I.L.R. (1940) 1 Cal. 344 Held that by combined operation of Section 141 CPC & Section 5 Provincial Insolvency Act, Section 86 cannot be applied to insolvency proceedings (as a matter of that case's facts). The court distinguished this case: it involved insolvency proceedings and its principles were not applicable to the present pauper/suit context; therefore Madan Lal did not assist the applicant.
Bhajja…(Applicant) v. Muhammad Said Khan…(Opposite Party), 54 ALL. 525 : A.I.R. 1932 ALL. 543 Held that Order 33 R.5(d) requires rejection where allegations do not show a cause of action; held that limitation is not part of "cause of action" and that a suit barred by time still discloses a cause of action. The court distinguished Bhajja's case because no question of limitation arose here; instead, the court held that the absence of permission under S.86 is an essential fact that defeats the existence of a right of suit and therefore negates a cause of action for purposes of O.33 R.5(d).
Read v. Brown (1889) 22 Q.B.D 128 : 53 L.J.Q.B 120 (quoted Cooke v. Gill) Quoted the definition of "cause of action" as "every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court." The court used this definition to reason that a permission under Section 86 may constitute an essential fact forming part of the cause of action in cases where the law requires such prior permission for suitability before civil courts.
Cooke v. Gill (1873) L.R. 8 C.P. 107 : 42 L.J.C.P 98 Provided a definition of "cause of action" (quoted with approval in Read v. Brown). Relied upon (via Read v. Brown) to support the proposition about what constitutes a "cause of action" for the purposes of Order 33 R.5(d).
Nawab Bahadur of Murshidabad v. Harish Chandra, 11 I.C. 55 : 13 C.L.J. 593 Held that before granting leave to sue in forma pauperis the court must satisfy itself that the allegations show a cause of action, considering plaint allegations and the applicant's examination; the High Court may determine at the preliminary stage whether the plaintiff is entitled to succeed on the alleged cause of action. The court cited this authority to support its power and duty to examine the pauper application at a preliminary stage and to reject it where no cause of action appears from the application and the applicant's examination.
Jogendra Narayan v. Durga Charan, 46 Cal. 651 : A.I.R. 1919 Cal. 385 Observed that the court should not take evidence on the merits in pauper proceedings but is justified in examining the applicant and considering whether any cause of action is disclosed on the basis of the applicant's statement and the plaint. The court relied on this to justify examining the applicant and the pleadings in deciding whether a cause of action is disclosed for purposes of O.33.
Mt. Hira Dei v. Gokul Chand, A.I.R. 1942 Oudh 361 : 199 I.C. 364 Held that the court in pauper proceedings can consider the merits of the claim for determining existence of cause of action based on plaint allegations and applicant's examination, though no elaborate evidence should be taken. The court cited this authority to support its approach that limited consideration of merits and applicant's statements is permissible at the pauper stage to determine whether a cause of action exists.
Kambhai Ajubhai v. Himatsangji, 8 Bom. 415 Authority relied upon by the applicant in contesting the opposite party's status. The court held that this ruling "no longer holds the field" with respect to the Banaras State facts and declined the applicant's invitation to rely on it to challenge the opposite party's status.
Duff Development Co. Ltd. v. Government of Kelantan, (1924) A.C. 797 : 93 L.J. Ch. 343 Held that courts take judicial notice of the status of foreign governments and may seek information from a Secretary of State; information received is conclusive as to recognition of sovereignty/status. The court invoked this principle (as followed by the local authority in Bishwanath) to treat the Government of India's recognition and certifying information regarding the Maharaja's status as conclusive and not for courts to relitigate.
Bishwanath (Bishwamth Singh) v. Commissioner of Income-tax, 1942 A.L.J. 543 : A.I.R. 1942 ALL. 295 This Court inquired of the Political Department and received a certificate recognising the Maharaja of Banaras as Ruler; held that the Maharaja was covered by Sections 85 & 86 CPC for civil court proceedings. The court treated that certificate and the earlier decision as conclusive that the Maharaja of Banaras (and successors) are covered by Sections 85 & 86, thereby precluding the applicant from maintaining suit without the prescribed permission.

Court's Reasoning and Analysis

The court proceeded step by step, applying statutory text and precedent (as set out in the record) strictly to the facts of this pauper application:

  1. Scope of Section 86 and applicability to pauper proceedings:
    • The court accepted the reasoning in Dehra Dun Mussorie Electric Tramway Co. Ltd. that Section 86 is a special privilege afforded to Sovereign Princes and Ruling Chiefs and that Section 86 applies to civil proceedings even when the proceedings are not conventional suits (e.g., proceedings under Sections 186 & 187 Companies Act).
    • By parity of reasoning the court held Order 33 (pauper proceedings), which is preliminary to institution of a suit by a pauper, is applicable to pauper proceedings; specifically, the requirements and prohibitions in O.33 (including R.5(d)) apply at the pauper-application stage.
  2. Meaning of "cause of action" and relation to statutory permission:
    • Relying on Read v. Brown (quoting Cooke v. Gill), the court cited the established meaning of "cause of action" as comprising all facts necessary for the plaintiff to prove his right.
    • The court concluded that where law requires prior permission (Section 86) as an essential step before suit lies, the absence of that permission is an essential fact going to the existence of a right to sue — and therefore to the existence of a cause of action for purposes of O.33 R.5(d).
  3. Power to examine pauper application and consider pleas in bar:
    • The court relied upon authorities (Nawab Bahadur of Murshidabad; Jogendra Narayan; Mt. Hira Dei) to confirm that the court must satisfy itself at the preliminary stage that the allegations and the applicant's examination disclose a cause of action, and that the court may consider limited merits for this purpose without taking elaborate evidence.
    • On that basis, the court held it was appropriate to consider whether the bar under S.86 (a plea in bar) prevented maintenance of the suit even at the pauper stage.
  4. Status of the opposite party as Ruling Chief and effect of merger/constitutional provisions:
    • The court reviewed documentary and historical material in the record: Government of India recognition of the adoption in 1934, an instrument of accession dated 15-8-1947 (preserving the Maharaja's sovereignty subject to the instrument), and the 1949 merger agreement granting personal privileges and guaranteeing succession and personal rights (Articles 4 & 5 of the merger agreement).
    • The court noted that Article 363 Constitution of India gives statutory effect to guarantees in such merger agreements and that Section 86 of the CPC remained on the statute book after the Constitution's commencement (not repealed under Article 372).
    • Relying upon the Duff Development principle and the local authority in Bishwanath (where the Political Department certified the Maharaja's status), the court held that the Maharaja of Banaras and his successors retain the status of Ruling Chief for purposes of Sections 85 & 86 CPC and that such recognition/conferment by Government is conclusive for the courts; therefore the court is not the forum to relitigate that status.
  5. Conclusion on the pauper application:
    • Because the applicant admitted he had not obtained the permission contemplated by Section 86, the court found that, on the face of the application and the applicant's statements, there was no right of suit and therefore no cause of action; O.33 R.5(d) mandated rejection of the pauper application.
    • The Civil Judge had applied Order 33 R.7(2) appropriately by hearing arguments and examining the applicant; accordingly the Civil Judge's rejection was correct.

Holding and Implications

Holding: Revision dismissed.

Implications (direct effects on the parties):

  • The applicant's application for leave to sue in forma pauperis was properly rejected by the Civil Judge under Order 33, Rule 5(d) of the CPC because the allegations and the applicant's examination did not disclose a cause of action in the absence of the prior permission required by Section 86 of the CPC.
  • The opposite party (Maharaja Vibhuti Narain Singh) was treated as a Ruling Chief within the meaning of Sections 85 & 86 CPC, with the privilege under Section 86 available to him; the court regarded government recognition and the merger agreement (and their constitutional backing) as conclusive on that status.
  • The applicant cannot proceed against the opposite party in the civil courts without first obtaining the permission contemplated by Section 86 of the CPC.
  • The revision was dismissed with costs (the Civil Judge's order was affirmed). The concurring judge (Sankar Saran, J.) agreed with the result.

Broader precedent-setting comment: The opinion applies established principles and prior authorities to the facts and does not indicate that it is establishing any novel or wider precedent beyond applying those authorities to pauper proceedings; its direct effect is to uphold the rejection of the pauper application for want of the statutory permission under Section 86.

Show all summary ...

Bind Basni Prasad, J.:— This is a revision from an order passed by the learned Civil Judge of Banaras refusing permission to the appct. to sue in forma pauperis.

2. The dispute relates to the Banaras State. His Highness Captain Maharaja Sir Aditya Narain Singh was the last ruler of that State. The present ruler of the State is Maharaja Vibhuti Narain Singh. According to the opposite party, Maharaja Sir Aditya Narain Singh adopted him sometime in 1934. On 14 12-1934, this adoption was recognised & confirmed by the Govt. of India. Prior to his adoption, Maharaja Vibhuti Narain Singh's name was Babu Chandrabhal Singh & it is by that name that the appct. has arrayed him as a party in the pauper proceedings as well as in the suit. He assails the adoption & contends that he is the true heir to the Banaras State & as such entitled to all the; properties which at present vest in the opposite party as the alleged ruler of that State. He proposes to sue the opposite party for the possession of those properties & for rupees thirty lacs as mesne profits. He alleges that he is not possessed of sufficient means to enable him to pay the requisite court-fees for the plaint & so he applied for permission to sue in forma pauperis.

3. The opposite party contested this appln., inter alia, on the ground that without the permission of the President, as contemplated by Section 86 of the CPC neither the appln. for permission to sue as a pauper nor the suit was maintainable against him. Clause (d) of R. 5 of O. 33, O.P.C, provides that the Ct. shall reject an appln. for permission to sue as a pauper where the allegations do not show a cause of action. This provision is relied upon by the opposite party & he contends that the appln. should be rejected on this ground.

4. Learned Civil Judge accepted the opposite party's contention & has dismissed the appln. for permission to sue as a pauper.

5. The first contention on behalf of the appct. is that S. 86 applied only to suits & that it does not apply to an appln. for permission to sue in forma pauperis. It is argued also that by virtue of Section 141 of the CPC the provisions of O. 33 of the Code do not apply to pauper proceedings. In the P.B case of Dehra Dun Mussorie Electric Tramway Co. Ltd. v. President, Council of Regency, Nabha State, 58 ALL. 742 : (A.I.R(23) 1936 ALL. 826 F.B), the conjoint effect of Sections 86 & 141 of the CPC, was considered. The Question in that case was whether Section 86 of the CPC applies to proceedings under Sections 184, 186 & 187 of the Companies Act. It was held:

“Section 86 of the CPC, confers a special privilege on Sovereign Princes & Ruling Chiefs which entitles them to defend a suit on the mere ground that the previous consent of the Governor-General in Council has not been obtained. The Ct., therefore, under Sections 186 & 187 of the Companies Act, cannot have jurisdiction to override the provisions of Section 86 of the CPC & make an order for payment against a Sovereign Prince or Ruling Chief in the absence of the previous consent of the Governor-General in Council. No jurisdiction, exists in a British Indian Ct. to enforce any personal liability against a Sovereign Prince or Ruling Chief, unless the case can be brought within the scope of Section 86 of the CPC……Therefore, no order under S. 186 or 187, Companies Act, could be passed at all.

Proceedings under S. 186 or Section 187 of the Companies Act, are proceedings in a Ct. of Civil jurisdiction to which Section 141 of the CPC is applicable, & therefore, S. 86 is also, applicable.”

6. On a parity of reasoning, O. 33 would be applicable even to pauper proceedings. In suits by paupers proceedings under O. 33 are preliminary to the institution of the suit by him. It is the first step of his contemplated suit, the object of which is to impose a personal liability upon the deft. I have no doubt in my minds that the provisions of O. 33 are applicable to pauper proceedings just in the same manner as to a suit itself. When these provisions have been applied even to proceedings under Sections 186 & 187 of the Companies Act, which are not suits, there can be no doubt that they would apply with greater force to pauper proceedings which-are a step towards the institution of a suit by a pauper.

7. Learned counsel for the appct. relies upon Madan Lal v. Beza Ali, A.I.R(27) 1940 Cal. 244 : (I.L.R (1940) 1 Cal. 344) in which it was held that by the combined operation of Section 141 of the CPC & Section 5 of the Provincial Insolvency Act, S. 86 cannot be applied to insolvency proceedings. The facts of that case are distinguishable. It was a case under the Insolvency Act & the principles enunciated in it are not applicable to the present case.

8. The second ground is that the question whether or not the suit is barred by S. 86 of the Code is one which should not be considered in the pauper proceedings because it is a plea in bar & in this connection reliance is placed upon certain decided cases:

9. The first case relied upon is Bhajja…(Applicant); v. Muhammad Said Khan…(Opposite Party).*, 54 ALL. 525 : (A.I.R(19) 1932 ALL. 543). In that case an appln. for permission to sue as a pauper was rejected, by the trial Ct. on the ground that the claim, if entertained, would be barred by time. It was held:

“Order 33, R. 5(d), directs the Ct. to reject an appln. for permission to sue as a pauper where the allegations do not show a cause of action. But the-question whether the prescribed period of limitation from the date of the cause of action has or has not expired is obviously not a part of the cause of action of a pltf. When a suit is barred by time it cannot be said that the plaint does not disclose a cause of notion, but rather that it appears that the claim based on the cause of action disclosed by the plaint is barred by the law of limitation. A pltf. whose right has been infringed may well have a cause of action against the deft., & yet his right to sue in a Ct. of law may have become barred by time after a fixed period. ‘Cause of action,’ therefore, does not mean or require a claim which is still enforceable under the law of limitation,”

10. The case is distinguishable. There is no question of limitation here. The expression “cause of action” has nowhere been defined in the Code. In Read v. Brown (1889) 22 Q.B.D 128 : (53 L.J.Q.B 120) Lord Esher, M.R, quoted the definition of “cause of action” as given in Cooke v. Gill, (1873) L.R 8 C.P 107 : (42 L.J.C.P 98), with approval & laid down that “cause of action” means

“every fact which it would be necessary for the pltf. to prove, if traversed, in order to support his light to the judgment of the Ct. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to prove.”

11. Literally, of course, “cause of action” means a cause which gives rise to an action. A right to sue accrues when a right has been infringed & there is a remedy recognised by law. In the present case, assuming that the appct's right was infringed by the opposite party, he cannot have a justiciable remedy in a Ct. of law unless he obtains the permission of the prescribed authority under Section 86 of the CPC. Such a permission is one of the essential facts constituting the cause of action or the right of suit in the present case. Bhajja's case, (54 ALL. 525 : A.I.R(19) 1932 ALL. 543), therefore, far from supporting the appct.'s contention goes against him.

12. In Nawab Bahadur of Murshidabad v. Harish Chandra, 11 I.C 55 : (13 C.L.J 593) it was held:

“Before an appln. for leave to sue in forma pauperis is granted, it is the duty of the Ct. to satisfy itself that the allegations of the petnr. do show a cause of action; & the allegations are not only those made in the plaint, but also include those made in the examination of the appct. before the Ct.

It is open to the H.C to determine at the preliminary stage whether the pltf. is or is not entitled to succeed on the basis of the alleged cause of action.”

13. In Jogendra Narayan v. Durga Charan, 46 Cal. 651 : (A.I.R(6) 1919 Cal. 385) while it was observed that it is not open to a Ct. to take evidence on the merits of the claim it is fully justified in examining the appct. & in considering on the basis of his statement & the allegations in the plaint whether or not any cause of action is disclosed.

14. Reference may also be made to Mt. Hira Dei v. Gokul Chand, A.I.R(29) 1942 Oudh 361 : (199 I.C 364) in which it was held that the Ct. in pauper proceedings can consider the merits of the claim also for determining the existence of the cause of action on the basis of the allegations in the plaint & the examination of the appct. though no elaborate evidence should be taken on the point.

15. If on the allegations in the plaint & the statement of the appct., if any, it is plain that the appct. has no right of suit the appln. for permission to sue as a pauper must be rejected under R. 5(d) of O. 33 of the CPC. It is admitted by the appct. that he has not obtained any permission as contemplated by S. 86 of the Code. In the absence of such a permission he has no right of suit & so no cause of action. Order 33, R. 7(2) provides:

“The Court shall also hear any arguments which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the Court as herein provided, the applicant is or is not subject to any of the prohibitions specified in R. 5.”

16. In the present case learned Civil Judge has acted according to this provision.

17. The third point taken is that the opposite party is not a Sovereign Prince or a Ruling Chief within the meaning of S. 86 of the Code. A further argument is that, at any rate, after the merger of the State with Uttar Pradesh the opposite party, even if he possessed any such status, has lost it. Reliance is placed upon Kambhai Ajubhai v. Himatsangji, 8 Bom. 415. It is contended that it is for this Ct. to decide whether or not the opposite party is a Sovereign Prince or a Ruling Chief. I am unable to agree with this contention.

18. So far as the Banaras State is concerned it may be stated that on 14-1911, the powers of a Ruling Chief were conferred upon the late Maharaja Sir Prabhu Narain Singh & since then he & his successors have enjoyed that Status. The ruling in Kambhai Ajubhai v. Himatsangji, 8 Bom. 415 no longer holds the field. In Duff Development Co. Ltd. v. Govt. of Kelantan, (1924) A.C 797 : (93 L.J Ch. 343) the House of Lords held:

“It is the settled practice of the Ct. to take the judicial notice of the status of any foreign Govt., & for that purpose, in any case of uncertainty, to seek information from a Secretary of State; & the information so received is conclusive.

A Govt. recognized as sovereign by His Majesty's Govt. is not the less exempt from the jurisdiction of our Cts. because it has agreed to restrictions on the exercise of its sovereign rights.”

19. This case was followed by this Ct. in Bishwanath v. Commr. of Income-tax, 1942 A.L.J 543 : (A.I.R(29) 1942 ALL. 295) in which this Ct. inquired from the Political Department of the Govt. of India whether His Highness the Maharaja of Banaras was recognised by the Govt. of India as the Ruler of a sovereign State. The Secretary to His Excellency the Crown Representative sent the following certificate as regards the status of the Maharaja:

“Captain His late Highness Maharaja Sir Aditya Narain Singh Bahadur, K.C.S.I, Maharaja of Banaras, has been recognised by His Majesty as the Ruler of the Indian State of Banaras. His Majesty's Govt. did not regard or treat His Highness ‘or his subjects as subjects of His Majesty & they did not regard or treat Banaras State as being part of British India or of His Majesty's dominions. Banaras is an Indian State & the late Maharaja was a Ruler as defined in Sub-s. (1) of Section 311 of the Government of India Act, 1935.”

20. Their Lordships held in Bishwamth Singh's case, (1942 A.L.J 543 : A.I.R(29) 1942 ALL. 295) that the Maharaja of Banaras was, in regard to proceedings in the civil Cts. in India, covered by the provisions of Sections 85 & 86 of the CPC. In face of this authority, it is not open to the appct. to contend that the predecessors of the opposite party never held the status of a Ruling Chief. Nor is it for the Cts. to determine this point. The status conferred upon him by the Govt. of India is conclusive.

21. It appears that on 15-8-1947, an instrument of accession was executed under the provision of the Govt. of India Act, 1935, as adapted under the Independence of India Act. Paragraph 8 of that instrument runs as follows:

“Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or save as provided by or under this Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State……”

22. It is clear from the above that even after the accession, the opposite party continues to have the status of the Ruling Chief.

23. On 5-9-1949, the merger agreement was executed by the opposite party. Articles 4 & 5 of the agreement are important. They are as follows:

“4. The Maharaja & his family shall be entitled to all personal privileges enjoyed by them whether within or outside the territories of the State, immediately before 15 8-1947.

5. The Dominion Govt. guarantees the succession, according to law & custom to the gaddi of the State & to the Maharaja's personal rights, privileges, dignities & titles.”

24. These guarantees have been given a statutory effect in Article 363, Constitution of India, which runs as follows:

“363(1) Notwithstanding anything in this Constitution but subject to the provisions of Article 143 neither the Supreme Court nor any other Court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Government of the Dominion of India or any of its predecessor Governments was a party and which has or has been continued in operation after such commencement or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, covenant, engagement, sanad or other similar instrument.

(2) In this Article:

(a) ‘Indian State’ Means any territory recognised before the commencement of this Constitution by His Majesty or the Government of the Dominion of India as being such a State; and

(b) ‘Ruler’ includes the Prince, Chief, or other person recognised before such commencement by His Majesty or the Government of the Dominion of India as the Ruler of any Indian State.”

25. Section 86 of the CPC is still on the Statute book. With the introduction of the New Constitution this section has not been repealed under Article 372.

26. The position thus is that the opposite, party has the status of a Ruling Chief & the; privilege under S. 86 of the Code is still available to him. His succession to the gaddi of the, State has been guaranteed by the Constitution.

27. The net result is that the appct. has no right of suit as against the opposite party in the absence of permission under S. 86 of the Code & in the face of the guarantee by cl. 5 of the Merger Agreement.

28. The learned civil Judge was quite right in rejecting the appln. under r. 5(d) of O. 33.

29. The revision fails & I would dismiss it with costs.

Sankar Saran, J.:— I agree.

D.H

30. Revision dismissed.

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