STATE OF GUJARAT Vs. RAMJI MANDIR TRUST BARODA

JUDGEMENT

(1.) TO grant or not to grant leave to urge this new plea of Act of State is the question we must resolve at the threshold. In our opinion whether or not the Municipal Court has jurisdiction to try the suit from the standpoint of the plea of Art of State is a mixed question of law and facts. Such a plea must in the first place be raises in the written statement. An issue must be framed on this question and parties must have an opportunity to adduce evidence in regard to this plea. It is possible that in a given case a pointed issue may not be raised and yet the parties may have understood that defence of Act of State was sought to be urged and parties may adduce evidence on the point. So far as the present case is concerned apart from the fact that there was no such plea in the written statement and no such issue was raised the parties never realised that the defence of Act of State Was sought to be relied upon by the State in order to defeat the present suit. This position is incapable of being disputed having regard to the fact that even the learned Govt. Pleader who appeared in the trial Court did not raise any such contention and did not urge any argument in the context of this plea. Under the circumstances we are faced with the question whether we should permit the learned Assistant Govt. Pleader to urge this plea at this juncture. At the cost of repetition it may be stated that even now the State has not come forward with an application for leave to amend the written statement. If the State had applied for the amendment of the written statement and if the Court had granted it the matter would have had to be remanded to the trial Court in order to enable the plaintiff to lead evidence in order to establish that There was sufficient recognition of his rights either in express terms or by implication or by conduct. As per the law laid down in Secretary of State for India v. Kamachee Boye Sahaba 7 Moorel Indian Appeals 476 which has been quoted with approval by the Supreme Court in State of Gujarat v. Vora Fidiali A.I.R. 1964 Supreme Court 1043 at page 1954 a citizen seeking to enforce rights against the new sovereign may show that the rights which were conferred or recognised by the old sovereign were recognised by the new sovereign after the taking over of the sovereign power from the old ruler and that this can be shown by an express agreement of resection or an implied agreement which may be proved by circumstantial evidence or by the mode of dealing with them which the new sovereign adopted from which an inference regarding implied election to respect them can be drawn. Such a question can arise only when the State seeks shelter under the doctrine of Act of State and in terms pleads it in the written statement in order to resist the suit and to challenge the jurisdiction of the municipal Court or the Civil Court. When no such plea is raised there is no occasion for the plaintiffs to lead evidence in order to show by producing oral or documentary evidence or evidence pertaining to the relevant circumstances or the mode of dealing with them that their right had been expressly or impliedly recognised by the new sovereign. In the absence of such a plea the plaintiffs are not obliged to anticipate the plea and to lead evidence on the point. It would be casting an unbearable burden on the plaintiffs to require them to lead positive evidence on the point though no such plea is raised by the State in anticipation of such a plea. It is not obligatory on the State to raise such a plea. If the State itself does not realise that such a plea is open to it and if even the Government Pleader does not realise this position would it be right to throw the burden on the plaintiffs and their learned advocate to anticipate that such a plea may be raised at a future date and to lead evidence in order to establish that the light had been recognised ? TO pose the question is to answer it. In the absence of a plea in this behalf the suit of the plaintiffs cannot be thrown out on the ground that they should have anticipated the plea not only at the stage of the trial but at the stag of a future appeal and should have adduced evidence. Learned Assistant Govt. Pleader called our attention to the ten propositions which are adumbrated in para (52) of Vora Fiddalis Case (supra). Reliance is placed on propositions Nos. (9) and (10) which read as under :