1. The question in this case is whether the Subordinate Judge was right in ordering the name of the 1st defendant as respresenting the Rajah of Cochin to be struck off from the record. He made this order because he was of opinion that Section 86 of the CPC applied and that the Rajah of Cochin could not accordingly be sued. It is admitted that the consent of the Governor-General-in-Council for suing the Rajah of Cochin has not been obtained and that if the section applies, the Subordinate Judge's order is correct.
2. It was argued before me, however, that in this case the Rajah of Cochin was sued not as such Rajah, but as Trustee of the temples referred to in the plaint and that S. 86 applies only in cases where a prince or chief is sued in his capacity as such prince or chief. I am unable to accede to this argument. I see nothing in S. 86 to warrant a prince or chief being brought on the record except on the terms referred to in S. 86. The section seems to me to be exhaustive with reference to the question when such a chief or prince can be brought on the record against his wish. I see nothing to support the contention that the question whether or not a chief or prince can be brought on the record depends upon the relief sought or upon the question whether the acts alleged to constitute the cause of action are of a sovereign or a private character.
3. It seems to me that S. 86 definitely lays down in what cases Municipal Courts have the power to adjudicate upon any matters whatsoever as against such princes or chiefs as are referred to in the section. It was held in Maharajah of Jaipur v. Lalji Sahai(1) that the Governor-General-in-Council has no power to give his consent to a suit except in the three instances specifically referred to in clauses (a), (b) and (c) of the section and that if leave is granted in cases not falling within any of the three clauses, Courts of Law are required to dismiss the suit as against the prince or chief.
4. As the question is of importance, I think it is necessary to refer to the authorities, in order to explain rather than to support the view that I have taken of the construction of S. 86, for the section seems to me to be clear in itself. The general rule of International Law is thus stated in Westlake on Private International Law:—“Foreign States, and those persons in them who are called sovereigns, whether their title be Emperor, King, Grand Duke, or any other, and whether their power in their States be absolute or limited, cannot be sued in England on their obligations whether ex contractu, quasi ex contractu, ex delicto;” 5th Edition (1912) page 271. The apparent exceptions to that general rule, so far as the English Courts are concerned, are stated in the same book, and in Mighell v. Sultan of Johore(3). It seems to me that Section 86 of the CPC lays down the same general rule with certain exceptions specified and clearly defined in the section itself, which exceptions are of a legislative extension of the jurisdiction ordinarily exercised by Municipal Courts and are made to depend upon the consent of the Governor-General-in-Council being previously obtained. The general rule of International Law just referred to by me was lately re-stated in Statham v. Statham & His Highness the Gaekwar of Baroda. In that case the question was whether His Highness the Maharaja, Gaekwar of Baroda could be made a party to proceedings in the Court of England against his will; and it was laid down in the clearest terms that course could not be adopted. In was not alleged that the question whether or not the Gaekwar could be sued in England depended upon the nature of the cause of action, or upon whether he was purported to be sued in his private or in his sovereign capacity and yet these contentions could have been raised on the facts in that case if they could have furnished any answer to the objection.
5. The cases, relied upon by the learned Pleader who appeared for the petitioner, seems to me to furnish very little assistance for the decision of the point with which I have now to deal. The first case relied upon by him was that of Ghandu Lal v. Awad bin Umar Sultan(4), in which Mr. Justice Strachey expressed the view that it is in the power of the prince or chief to waive the provisions of S. 86 and submit himself to the jurisdiction of the Courts of British India.
6. It is not alleged that there was any waiver in the present case. But it is argued that if waiver can give jurisdiction to the Court, then it is implied that the exceptions contained in the clauses (a), (b) and (c) to the general rule in S. 86 are not exhaustive—in other words that the sole exceptions to the general rule are not those specifically mentioned in S. 86 itself; and that just as waiver may be added to the exceptional cases in which the Courts have jurisdiction over independent sovereigns, so also another exception may be made and that one such other exception is the case when the sovereign is sued in his private capacity and not as sovereign. As I understand, however, Mr. Justice Strachey's decision, it is to the effect that, though S. 86 provides certain exceptions to the general law that sovereigns may not be sued, that general law is in itself subject to the proviso that the sovereign may himself waive his right of questioning the jurisdiction of Municipal Courts. Therefore, assuming that this argument for the petitioner can have any force in the construction of the section, it can certainly have no force unless it is shown that the alleged exception is recognised in International Law as restricting the scope of the general rule just in the same way as the exception about waiver is recognised. But in the first place, I do not think that the ruling of Chandu Lal v. Awad bin Umar Sultan establishes another exception to S. 86 so as to derogate from the section being construed as exhaustive in itself. Secondly, the alleged exception is not recognised by general International Law. It was contended before me that certain dicta in the case of Duke of Brunswick v. The King of Honover(5) show that sovereigns may be sued in their private capacity. But the actual decision in that case was that the Court had no jurisdiction, and I do not think that the cautious dicta on which reliance was placed can be of any assistance in view of the law as laid down in such cases as Mighell v. Sultan of Johore(2) and Statham v. Statham & the Gaekwar of Baroda. The point was expressly considered by Willis, J., in the Sultan of Lahore's case, where the effect of the Duke of Brunswick's case is explained. For these reasons, I think that this petition must be dismissed.
7. The judgments in Civil Revision Petitions Nos. 511 and 512 of 1912 will follow. I do not wish to interfere with the order of the lower Court as to costs; but here the petitioner in each case will pay one-third of the respondent's costs.
S.N/R.K
8. Petition dismissed.