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Darbar Saheb Surangwala of Jetpur Vs. New India Assurance Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 10 of 1955
Judge
Reported inAIR1955Bom275; (1955)57BOMLR286; ILR1955Bom581
ActsCode of Civil Procedure (CPC), 1908 - Sections 87B and 133 - Order 26, Rule 1
AppellantDarbar Saheb Surangwala of Jetpur
RespondentNew India Assurance Co. Ltd.
Appellant AdvocateG.N. Joshi, Adv. and ;M.P. Amin, Adv. General
Respondent AdvocateM.M. Jhaveri, Adv.
Excerpt:
.....is sought on the ground that the plaintiff being an ex-ruler of an indian state he and his wife enjoy the privilege of not appearing in court and that privilege has been guaranteed by the covenant entered into by the government of india with the plaintiff when his state merged with india. the rulers of each covenanting state, as also the members of his family shall be entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the state, immediately before 15-8-1947.'now, before the plaintiff can rely on this clause he must satisfy us that this personal privilege was enjoyed by him prior to 15-8-1947. perhaps mr. joshi is right when he contends that it is not necessary that the privilege must have been actually..........long as he had the right to enjoy that privilege. as far as the civil p. c. is concerned, the only privilege of exemption that has been conferred upon a person is to be found in section 133 and that enables the state government to exempt from personal appearance in court any person whose rank in the opinion of such government entitles him to the privilege of exemption. no notification has been issued exempting the plaintiff or his wife, and therefore obviously they cannot claim exemption under section 133.indeed, mr. joshi contends that section 133 has no application and that the privilege claimed by the plaintiff is independently of this section and by virtue of clause 12 of the covenant. now, mr. joshi has failed to satisfy us that a privilege such as claimed by the plaintiff was ever.....
Judgment:

Chagla, C.J.

1. The plaintiff is the ex-Ruler of the State of Jetpur in the Saurashtra State and he filed a suit in this Court against the defendants claiming a sum of Rs. 25,000 paid in respect of a policy effected by the defendants on the ground that the policy had been effected by misrepresentation and that the plaintiff was entitled to avoid that policy. After the suit was filed he took out a chamber summons for examination on commission of himself and his wife. On that summons the learned Judge made no order, and it is against that decision that this appeal is preferred.

2. Mr. Jhaveri has taken two preliminary objections to the maintainability of this appeal. The first is that the decision of the learned Judge does not constitute a judgment within the meaning of Clause 15, Letters Patent and therefore the appeal does not lie, and the second objection is that the appeal is barred by limitation. As in our opinion the question that has been raised on merits is of considerable importance, we will proceed to deal with that question without deciding these two preliminary points.

3. Now, this is not a case where the plaintiff seeks to have himself and his wife examined on commission on any ground which is usually urged when an application for commission is made. It is not the case of the plaintiff that he or his wife are incapacitated from being present in Court and giving evidence in the suit. Commission is sought on the ground that the plaintiff being an ex-Ruler of an Indian State he and his wife enjoy the privilege of not appearing in Court and that privilege has been guaranteed by the covenant entered into by the Government of India with the plaintiff when his State merged with India. Now, what is relied upon is Clause 12 of the Covenant and that is in the following terms:

'The Rulers of each Covenanting State, as also the members of his family shall be entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before 15-8-1947.'

Now, before the plaintiff can rely on this clause he must satisfy us that this personal privilege was enjoyed by him prior to 15-8-1947. Perhaps Mr. Joshi is right when he contends that it is not necessary that the privilege must have been actually enjoyed by the plaintiff so long as he had the right to enjoy that privilege. As far as the Civil P. C. is concerned, the only privilege of exemption that has been conferred upon a person is to be found in Section 133 and that enables the State Government to exempt from personal appearance in Court any person whose rank in the opinion of such Government entitles him to the privilege of exemption. No notification has been issued exempting the plaintiff or his wife, and therefore obviously they cannot claim exemption under Section 133.

Indeed, Mr. Joshi contends that Section 133 has no application and that the privilege claimed by the plaintiff is independently of this section and by virtue of Clause 12 of the Covenant. Now, Mr. Joshi has failed to satisfy us that a privilege such as claimed by the plaintiff was ever enjoyed by him or that he had any right to enjoy such a privilege. Mr. Joshi says that before 15-8-1947, Rulers in India did not file suits and therefore the question of claiming such a privilege did not arise. In our opinion the matter is really very simple. Under Section 87-B, Civil P. C., Rulers of former Indian States have been given an exemption against being sued except on the satisfaction of certain conditions, but the Civil P. C. makes no provision with regard to any rights of privileges of an ex-Ruler who files a suit in a Court in any State in India, and no such provision is made for very obvious reasons.

If the Ruler files a suit in a Municipal Court, he submits to the jurisdiction of that Court and he must be governed by the ordinary procedure regulating the proceedings in that Court. When a Ruler is sued, he has not sought the jurisdiction of the Court; he is dragged to that Court by the plaintiff; and clearly therefore some protection may be afforded to him. But no protection can be afforded to a Ruler who voluntarily invokes the jurisdiction of a Municipal Court, files a suit in that Court, and then contends that he would not be bound by the procedure regulating that Court but will claim certain personal privileges.

As soon as the plaintiff filed a suit in the High Court, he permitted himself to be governed in all respects by the Civil P. C, which regulates the procedure of the Court, and the only exemption he can claim under the Civil P. C. is the exemption which is to be found in Section 133. It would be open to the Government, if they can legally do so, to issue a - notification exempting the plaintiff by reason of his rank from appearing in Court, but so long as such a notification is not issued, the plaintiff cannot in law claim exemption. Mr. Joshi rather faintly urged that the ex-Rulers in India understood that they would never have to appear in the Courts of this country and that was an understanding which should be respected and they should not be dragged to Court.

We find it very difficult to appreciate that argument. It is an argument of prestige which argument we should have thought should no longer have any force in our country which is governed by a Constitution which sets up a democratic -and egalitarian State. But even if prestige were to he respected, we do not understand why there is no loss of prestige in filing a suit in this Court and there is loss of prestige in appearing in this Court as a witness. In our opinion the learned Judge was right in refusing commission to examine the plaintiff and his wife on the grounds set out by them.

4. The result is that the appeal fails and must be dismissed with costs.

5. Suit to be not heard till Tuesday, 8-2-1955.

6. The Advocate General says that he wantsto apply for leave to appeal to the Supreme Courtand he undertakes to file a formal petition. Werefuse leave and dismiss the petition.

7. Appeal dismissed.


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