# MOHANLAL JAIN v. HIS HIGHNESS MAHARAJ A SHRI SAW AI MAN SINGHJI •

- **Citation:** [1962] 1 S.C.R. 702
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 20 of 1960
- **Bench:** S. K. Das, J. L. Kapur, M. Hidayatullah, J. C. Shah, T. L. Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohanlal-jain-v-his-highness-maharaj-a-shri-saw-ai-man-singhji-2067
- **Pages:** 9

## Headnote

Civil Procedure-Suit against Ex-Ruler-MaintainabilityImmunity of Ex-Rulers from being sued -If discriminatory-
" Sued", Meaning of-Code of Civil Procedure, r908 (Act V of
r908), ss. 86, 87-B-Constitution of India, Art. r4.
The appellant filed a suit for the recovery of money as
price of goods supplied against the Ex-Ruler of Jaipur. Subsequently s. 87-B was introduced in the Code of Civil Procedure
making the provisions of s. 86 in respect of suits against rulers
of foreign States applicable to the rulers of former Indian States.
The Ex-Ruler raised the plea that the suit was incompetent as
the consent of the Central Government had not been obtained
as required bys. 87-B. The appellant contended: (i) thats. 87-B
violated Art. r4 of the Constitution and was void, (ii) that
s. 87-B did not apply to the continuation of a suit pending at
the time when s. 87-B was enacted but only to the filing of a
suit after the enactment of that section.
Held, thats. 87-B did not violate Art. r4 of the Constitution and was not void. Section 87-B of the Code of Civil Procedure merely continued the privilege which was formerly enjoyed by the Rulers of Indian States and in regard to which the
covenants entered into by the Ex-Rulers and the Government of
India provided for their continuance. This agreement about the
privileges was further assured by Art. 362 of the Constitution.
The Ex-Rulers thus formed a class and the special legislation
was based upon historical considerations applicable to them as a
class. The classification was based on a distinction which was
real and substantial and it bore a just relation to the object
sought to be attained.
Held, further, that the suit was incompetent against the
Ex-Ruler of Jaipur. The protection of s. 87-B read withs. 86
applied both to the filing of a suit and to its pursuit through
the courts. Section 86 provides that "No Ruler ............ may be
sued in any court ......... " A person is "sued" not only when the
plaint is filed against him, but is "sued" also when the suit
remained pending against him. The word "sued" covers the
entire proceedings in an action. Consequently, the consent of
the Central Government was necessary not only for the filing of
the suit against the Ex-Ruler but also for its continuation from
the time consent was required.
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1 S.C.R. SUPREME COURT REPORTS
703
Held, further, that s. 87-B was on its terms applicable to
pending suits and there was no saving in favour of pending
actions.
K. C. Mukherjee v. Mst. Ram Ratan Kuer, (1935) I.L.R. 15
Pat. 268, applied.
CrvIL APPELLATE JumsmcTION: Civil Appeal No.
20 of 1960.
Appeal from the judgment and decree dated
September 5, 1956, of the J udicia] Commissioner's
Court at Ajmer in Civil First Appeal No. 3 of 1956.
B. D. Sharma, for the appellant.
M. O. Setalvad, Attorney-General of India, 0. L.
Agarwala, M. K. Ramamurthy, R. K. Garg, D. P.
Singh and S. 0. Agarwal, for the respondents 1 and 3.
1961. April 3. The Judgment of the Court was
delivered by
Mohanlal Jain
v.
His Highness
Maharaja Shri
Sawai
l\1an Singhji
HIDAYATULLAH, J. -This is an appeal by the /Iidayatullah ].
plaintiff against the judgment and decree of the Judicial Commissioner, Ajmer, confirming the decree of
the trial Judge dismissing the suit. It comes before
us on a certificate under Arts. 132(1) and 133(l)(c) of
the Constitution granted by the High Court of Rajasthan after the Reorganisation of the States.
The suit was filed by the appellant for recovery of
Rs. 23,998-12-0 as price of goods supplied in the year
1947 to the Ruler of Jaipur State, (including interest)
and damages suffered by the appellant due to the
refusal of the defendants to take delivery of some
other goods similarly ordered. In addition to the
ex-Ruler of Jaipur, his Military Secretary and one
Mohabat Singh, an employee of the ex-Ruler, were
also joined as defendants, on the plea that they had
placed the orders as agents of the ex-Ruler. The suit
was filed on February 28, 1951.

## Text

rg6r
702
SUPREME COURT REPORTS
[1962]
MOHANLAL JAIN
v.
HIS HIGHNESS MAHARAJ A SHRI SAW AI
MAN SINGHJI
•
(S. K. DAS, J. L. KAPUR, M. HIDAYATULLAH,
J. C. SHAH and T. L. VENKATARAMA AYYAR, JJ.)
Civil Procedure-Suit against Ex-Ruler-MaintainabilityImmunity of Ex-Rulers from being sued -If discriminatory-
" Sued", Meaning of-Code of Civil Procedure, r908 (Act V of
r908), ss. 86, 87-B-Constitution of India, Art. r4.
The appellant filed a suit for the recovery of money as
price of goods supplied against the Ex-Ruler of Jaipur. Subsequently s. 87-B was introduced in the Code of Civil Procedure
making the provisions of s. 86 in respect of suits against rulers
of foreign States applicable to the rulers of former Indian States.
The Ex-Ruler raised the plea that the suit was incompetent as
the consent of the Central Government had not been obtained
as required bys. 87-B. The appellant contended: (i) thats. 87-B
violated Art. r4 of the Constitution and was void, (ii) that
s. 87-B did not apply to the continuation of a suit pending at
the time when s. 87-B was enacted but only to the filing of a
suit after the enactment of that section.
Held, thats. 87-B did not violate Art. r4 of the Constitution and was not void. Section 87-B of the Code of Civil Procedure merely continued the privilege which was formerly enjoyed by the Rulers of Indian States and in regard to which the
covenants entered into by the Ex-Rulers and the Government of
India provided for their continuance. This agreement about the
privileges was further assured by Art. 362 of the Constitution.
The Ex-Rulers thus formed a class and the special legislation
was based upon historical considerations applicable to them as a
class. The classification was based on a distinction which was
real and substantial and it bore a just relation to the object
sought to be attained.
Held, further, that the suit was incompetent against the
Ex-Ruler of Jaipur. The protection of s. 87-B read withs. 86
applied both to the filing of a suit and to its pursuit through
the courts. Section 86 provides that "No Ruler ............ may be
sued in any court ......... " A person is "sued" not only when the
plaint is filed against him, but is "sued" also when the suit
remained pending against him. The word "sued" covers the
entire proceedings in an action. Consequently, the consent of
the Central Government was necessary not only for the filing of
the suit against the Ex-Ruler but also for its continuation from
the time consent was required.
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1 S.C.R. SUPREME COURT REPORTS
703
Held, further, that s. 87-B was on its terms applicable to
pending suits and there was no saving in favour of pending
actions.
K. C. Mukherjee v. Mst. Ram Ratan Kuer, (1935) I.L.R. 15
Pat. 268, applied.
CrvIL APPELLATE JumsmcTION: Civil Appeal No.
20 of 1960.
Appeal from the judgment and decree dated
September 5, 1956, of the J udicia] Commissioner's
Court at Ajmer in Civil First Appeal No. 3 of 1956.
B. D. Sharma, for the appellant.
M. O. Setalvad, Attorney-General of India, 0. L.
Agarwala, M. K. Ramamurthy, R. K. Garg, D. P.
Singh and S. 0. Agarwal, for the respondents 1 and 3.
1961. April 3. The Judgment of the Court was
delivered by
Mohanlal Jain
v.
His Highness
Maharaja Shri
Sawai
l\1an Singhji
HIDAYATULLAH, J. -This is an appeal by the /Iidayatullah ].
plaintiff against the judgment and decree of the Judicial Commissioner, Ajmer, confirming the decree of
the trial Judge dismissing the suit. It comes before
us on a certificate under Arts. 132(1) and 133(l)(c) of
the Constitution granted by the High Court of Rajasthan after the Reorganisation of the States.
The suit was filed by the appellant for recovery of
Rs. 23,998-12-0 as price of goods supplied in the year
1947 to the Ruler of Jaipur State, (including interest)
and damages suffered by the appellant due to the
refusal of the defendants to take delivery of some
other goods similarly ordered. In addition to the
ex-Ruler of Jaipur, his Military Secretary and one
Mohabat Singh, an employee of the ex-Ruler, were
also joined as defendants, on the plea that they had
placed the orders as agents of the ex-Ruler. The suit
was filed on February 28, 1951.
The ex-Ruler raised
the plea that the suit was incompetent, as the consent
of the Central Government under s. 87-B of the Code
of Civil Procedure was not obtained and asked that
the suit be dismissed. The other defendants denied
the claim and also their liability on various grounds .
It may be mentioned the Military Secretary (second
704
SUPREME COURT REPORTS
(1962]
4. "
defendant) has since died, and this appeal is now
Mohanlal Jain directed against .the ex-Ruler and Mohabat Singh
only.
v.
His Highness
Maharaja Shri
Sawai
Man Singhji
The Subordinate Judge held that though the suit
was filed prior to the enactment of s. 87-B by s. 12 of
the Code of Civil Procedure (Amendment) Act, 1951
(II of 1951), it could not be continued against the exHidayatullah J. Ruler. He adjourned the hearing for four months to
enable the appellant to obtain the necessary consent.
The appellant applied to the Central Government for
its consent, but it was refused. He also applied in
revision to the Judicial Commissioner, contending that
s. 87-B of the Code of Civil Procedure offended the
equality clause in Art. 14 of the Constitution and was
thus void, but the Judicial Commissioner rejected the
contention.
He also refused a certificate on the
ground that there was no final order as required by
Art. 132(1) of the Constitution. The suit was subsequently dismissed against all the three defendants. In
regard to the ex-Ruler, it was held that no suit lay
against him without the consent of the Central
Government, and in regard to the remaining defendants, it was held that they were protected by s. 230
of the Indian Contract Act. Sub-section (3) of that
section was held inapplicable, inasmuch as a suit could
be filed against the ex-Ruler with the consent of the
Central Government. The appellant appealed to the
Judicial Commissioner, Ajmer, but the appeal was
dismissed. He obtained a certificate, as stated above,
and this appeal has been filed.
Two main questions have been raised in this appeal.
The first is that the dismissal of the suit against the
ex-Ruler was erroneous. In support of this contention,
it is urged thats. 87-B of the Code of Civil Procedure
is ultra vires the Constitution in view of Art. 14, and,
in the alternative, thats. 87-B, even if valid, cannot
apply to this suit, which was pending when the section was enacted. The right to continue the suit being
a substantive right, cannot, it is submitted, be taken
away except by a law which is made applicable to
pending actions, either expressly or by necessary
intendment. Against the other respondent, it is contended that he was liable as an agent or at least, as a
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1 S.C.R. SUPRE'.ll:E COURT REPORTS
705
sub-agent, in view of the provisions of s. 230(3) of the
r96z
Indian Contract Act. We are not concerned with the
b
.
M okatili:il Jain
merits of the claim, and they have not een mentionv.
ed at the hearing.
.
His Highness
We shall begin by considering whether s. 87-B is
Maharaja Sfiii
ultra vires and void. It is said that it discriminates
Sawai
in favour of ex-Rulers of Indian States by creating an
Man Singhji
immunity from civil actions. Prior to the present wa --;--;1 h 1
Constitution, Part IV of the Code of Civil Procedure
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contained provisions in respect of suits in particular
cases. This was divided into three parts. Sections
79 to 82 dealt with suits by or against the Crown or
Public Officers in their official capacity and s. 88 provided for suit of interpleader. We are not concerned
with them. Sections 83 to 87 dealt with snits by
aliens and by or against Foreign Rulers and Rulers of
Indian States. Sections 83 and 84 provided respectively
when aliens and foreign States may sue. Section 85
provided for the appointment by Government of persons to prosecute or defend Princes or Chiefs. Section 86 provided for suits against Princes, Chiefs,
Ambassadors and Envoys. It created partial ex-territoriality by granting them exemption from civil jurisdiction except when an action was brought with the
consent of the Central Government. The first subsection provided:-
" Any such Prince or Chief, and any ambassador
or envoy of a foreign State, may in the case of the
Ruling Chief of an Indian State with the consent of
the Crown Representative, certified by the signature
of the Political Secretary, and in any other case
with the consent of the Central Government, certified by the signature of a secretary to that
Government, but not without such consent, be sued
in any competent Court."
The remaining four sub-sections dealt with the kinds
of suits and the conditions under which they could be
brought and certain other aspects of ex-territoriality.
Section 87 laid down the style of Princes or Chiefs as
parties to suits.
After the coming into force of the Constitution,
89
M ohanlal ] ain
v.
His Highness
Maharaja Shri
Sawai
Man Singhji
Hidayatullah ].
706
SUPREME COURT REPORTS
(1962]
certain adaptations were made by the President by
the Adaptations of Laws Order, 1950, but we are not
concerned with them. Suffice it to say that the protection continued in view of Art. 372 of the Constitution (unless it was void under the Chapter on Fundamental Rights) till we come to the enactment of Act
II of 1951. The impact of the Fundamental Rights
provisions on s. 86 as originally enacted and on the
news. 87-B being the same, we need not consider the
matter separately.
When the Indian States integrated with British
India, the Rulers of States and the Government of
India entered into covenants and agreements. In
those covenants, it was agreed that the privileges,
dignities and titles of the Indian Princes would be
continued to be recognised. When the Constitution
was enacted, the assurance in the covenants was respected, and Art. 362 was included in the Constitution.
It reads:
"In the exercise of the power of Parliament or of
the Legislature of a State to make laws or in the
exercise of the executive power of the Union or of
a State, due regard shall be had to the guarantee
or assurance given under any such covenant or
agreement as is referred to in clause (i) of Article
291 with respect to the personal rights, privileges
and dignities of the Ruler of an Indian State."
The reference to Art. 291 merely indicates that those
covenants or agreements were meant which the Ruler
of any Indian State had entered into with the Central
Government before the commencement of the Constitution. This description is not repeated in Art. 362,
but is incorporated by reference. The mention of
Art. 291 in Art. 362 has no further significance, and
the generality of the assurance in the latter Article is
not lessened.
The privilege of ex-territoriality and exemption
from civil jurisdiction except with the consent of the
Central Government was one of long standing, and
when the Amendment Act of 1951 was passed, ss. 83
to 87 were re-enacted. We are not concerned with
all the changes thi;t were made, and reference to some
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1 S.C.R.
SUPREME COURT REPORTS
707
of them is unnecessary. Section 86 was amended by
deleting all references to Ruling Chiefs of Indian
States and the first sub-section was re-enacted as
follows:
"86. (1) No Ruler of a 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:" (proviso omitted).
Sub-section (3) gave protection against arrest and,
except with the consent of the Central Government,
against execution of decrees against the property of
any such Ruler. Section 87 laid down the style of
foreign Rulers as parties to suits. Section 87-A was
added to define "foreign State" and "Ruler" and to
make the exemption only available to a State and its
head, recognised as such by the Central Government.
Section 87-B, with which we are concerned, was
specially enacted in respect of suits against Rulers of
former Indian States. It provided:
"87-B. (1) The provisions of section 85 and of
sub-sections (1) and (3) of section 86 shall apply in
relation to the Rulers of any former Indian State
as they apply in relation to the Ruler of a foreign
State.
(2) In this section-
(a) 'former Indian State' means any such Indian
State as the Central Government may, by notification in the Official Gazette, specify for the purposes
of this section; and
(b) 'Ruler' in relation to a former Indian State,
means the person who, for the time being, is recognised by the President as the Ruler of that State
for the purposes of the Constitution."
By this provision, which is very much the same as
the former s. 86, the privilege previously enjoyed by
the Rulers of Indian States was continued.
In this historical background, the question of discrimination raised in the appeal must be examined.
It is easy to see that the ex-Rulers form a class and
t?e sp~cial legislation is based upon historical cons1derat10ns applicable to them as a class. The Princes
1961
!vi ohanlal Jain
v.
His Highn~ss
Maharaja Shri
Sawai
Man Singhji
Hidayatullah J .
z96x
'Mohanlal· Jain
"·
His Highnrss
Maharaja Shri
Sawai
Man 5inghji
'H idayalul lah J.
708
SUPREME COURT REPORTS
[1962]
who were, before integration, sovereign Rulers of
Indian States, handed over, after the foundation of
the Republic, their States to the Nation in return for
an annual Privy Purse and the assurance that their
personal rights, privileges and dignities would be
respected. The Constitution itself declared that these
rights, etc., would receive recognition.
A law made
as a result of these considerations must be treated as
based on a proper classification of such Rulers, who
had signed the agreement of the character described
above. It is based upon a distinction which can be
described as real and substantial, and it bears a just
relation to the object sought to be attained.
It is further contended that the Article speaks of
privileges but not of immunities, and we were referred
to certain other Articles of the Constitution where
"immunities" are specifically mentioned. It is not
necessary to refer to those Articles. Immunity from
civil action may be described also as a privilege,
because the word "privilege" is sufficiently wide to
include an immunity. The Constitution was not
limited to the choice of any particular words, so long
as the intention was clearly expressed. In our opinion, the words "personal rights and privileges" are
sufficiently comprehensive to embrace an immunity of
this character. It is, therefore, clear that the section
cannot be challenged as discriminatory, because it
arises from a classification based on historical facts.
It is next contended that s. 87-B only applies the
provisions of sub-ss. (1) and (3) of s. 86, that the words
of the latter section are not retrospective, that the suit
was filed before the enactment of s. 87-B, and that the
substantive right of the plaintiff to continue his suit
could not be taken away in the absence of express
language or clear intendment. The words of s. 86(1)
are "No Ruler of a foreign State may be sued in any
court ... ". This precludes, it is said, only the initiation
of a suit and not the continuance of a suit already
filed before the section was enacted. In our opinion,
these arguments cannot be accepted. The word "sued"
means not only the filing of a suit or a civil proceeding but also their pursuit through Courts. A person
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1 S.C.R.
SUPREME COURT REPORTS
709
is sued not only when the plaint is filed, but is sued
also when the suit remains pending against him.
The word "sued" covers the entire proceeding in
an action, and the person proceeded against is sued
throughout the duration of the action. It follows
that consent is necessary not only for the filing of
the suit against the ex-Ruler but also for its continuation from the time consent is required. In view
of the amplitude of the word "sued", it is not necessary to consider generally to what extent pending
cases are affected by subsequent legislation or refer to
the principles laid down in The United Provinces v.
Atiqa Begum('), Venugopala Reddiar v. Krishnaswamy
Reddiar (') or Garikapatti Veeraya v. N. Subbiah
0 houdhury (3). If the language of s. 86 read with
s. 87-B were applicable only to the initiation of a civil
suit, these cases might have been helpful; but since
the words "may sue" include not only the initiation of
a suit but its continuation also, it is manifest that
neither the suit could be filed nor maintained except
with the consent of the Central Government. In Atiqa
Begum's Case (1), Varadachariar, J. referred to the two
principles applicable to cases where the question of
retrospectivity of a law has to be considered. They
are that vested rights should not be presumed to be
affected, and that the rights of the parties to an action
should ordinarily be determined in accordance with
the law, as it stood at the date of the commencement
of the action. But, the learned Judge pointed out that
the language of the enactment might be sufficient to
rebut the first, and cited the case of the Privy Council
in K. O. llifukherjee v. Mst. Ram Ratan Kuer ('). Here,
the matter can be resolved on the language of the
enactment. The language employed is of sufficient
width and certainty to inclu~e even pending actions,
and the contrary rule applies, namely, that unless
pending actions are saved from the operation of the
new law, they must be taken to be affected. The word
"sued", as we have shown, denotes not only the start
but also the continuation of a civil action, and the
{I) (1940) F.C.R. I Io.
(3) (1957] S.C.R. 488.
(2) (1943] F.C.R. 39.
(4) (1935) 1.L.R. 15 Pat. 268.
M ohanlal ] ain
v.
His Highness.
A1ahataja Shri
Sawai
Man Singhji
Hidayatullah j;
1961
Mohan/al .fain
v.
His Highness
Maharaja Shri
Sawai
Man Singhji
Hidayatullah J.
710
SUPREME COURT REPORTS
[1962]
prohibition, therefore, affects not only a suit instituted
after the enactment of s. 87-B but one which, though
instituted before its enactment, is pending. In our
judgment, the present suit was incompetent against
the first defendant, the ex-Ruler of Jaipur.
It is contended that defendants 2 and 3 acted as the
agents of the ex-Ruler and placed the order with the
appellant. The position of the Military Secretary
(since dead) was on a different footing, but it is conceded that no cause of action against him survived,
because the appeal has abated against him. Mohabat
Singh, who is the third defendant, cannot be described
as an agent of the ex-Ruler, because his connection
with the orders placed was merely to sign the letters
purporting to emanate from the Military Secretary.
Those letters he signed "for the Military Secretary".
He was not acting as the agent of the ex.Ruler but
was performing the ministerial act of signing the
letters on behalf of the Military Secretary.
This
cannot be said to have constituted him an agent.
The suit against him was, therefore, misconceived,
whatever might have been said of the Military
Secretary.
In our opinion, the dismissal of the suit was justified
in the circumstances of the case.
The appeal fails, and is dismissed with costs.
The
appellant will pay court-fee on the memorandum of
appeal, as he was allowed to file this appeal as a
pauper.
Appeal dismissed.
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