DULERAI Vs. POKERDAS MENGRAJ

JUDGEMENT

(1.) THE plaintiffs filed a suit against the firm of Dulerai and Co. Appearance for the firm was filed under protest and the protest was directed to this that one of the partners of the defendant firm was the Maharaja of prchha who could not be sued in the City Civil Court. The plaintiffs took out a summons for striking out the protest. The learned Principal Judge first held following 'gaekwar BARODA STATE RAILWAY v. HABIB ULLAH', AIR 1934 All 740, that a suit against a firm in, which a Maharaja is a partner is not a suit against the Maharaja under Section 86 of the Civil P. C. Then the attention of the learned Principal Judge was drawn to the decision of the Privy Council in 'gaekwar BARODA STATE RAILWAY v. HAFIZ HABIB-UL-HAQ', 65 Ind App 182 (P C ). Thereupon the learned Principal Judge took the view that if the suit was against a firm in the name of the firm and not against the partners in their individual names, Section 86 would not apply.

(2.) NOW, Section 86 of the Civil P. C. has been amended after our Constitution came into force, and Section 86 runs at present thus: "no Ruler of a foreign State may be sued in any Court otherwise competent to try a suit, except with the consent of the Central Government certified in writing by a Secretary to that Government. " we are not concerned with the proviso to that, section. Therefore, judging by the language used by the Legislature, the immunity conferred upon the Ruler is absolute and it is not limited to any particular class of suits or in respect of his public dealings. That view was taken by the Privy Council in 'gaekwar BARODA STATE RAILWAY v. HAFIZ HABIB-UL-HAQ', 65 Ind App 182 (P C), where the Privy Council pointed out that Section 86 represented an important matter of public policy in India and the express provisions contained therein are imperative and must be observed. The first contention urged by Mr. Khambata is that inasmuch as he has sued the firm under Order XXX and not the Maharaja, no question, of the application of Section 86 arises. It is well known that a firm is not a legal entity. The word "firm" is merely a compendious way of describing the various persons who carry on a business in partnership, and Order XXX, Rule 1, confers a special convenience upon litigants to sue persons carrying on a business in partnership in the name of the partnership business. Therefore, when a suit is filed under Order XXX, it is a suit filed against the persons who constitute the partnership, but it is permitted to be filed in the name of the firm. In bringing a firm before the Court the plaintiff is bringing or attempting to bring every partner of the defendant firm. Order XXX affords him the facility of using the partnership name in order to sue all the partners of that firm. Therefore, if the Maharaja of Orchha is a partner in the defendant firm, by bringing the defendant firm before the Court and suing the defendant firm the plaintiffs are undoubtedly suing the Maharaja, and in suing the Maharaja they are contravening the mandatory provisions of Section 86. Mr. Khambata draws my attention to Order XXI, Rule 47 and Rule 50. Those rules deal with execution of decrees passed against a firm against partners, and the provisions (Contained in those rules prevent execution being taken out against the personal property of a partner who has not been served or who has not entered his appearance. But we are not concerned with those provisions in this application. We have not reached the stage when the plaintiffs are attempting to execute the decree against the property of the Maharaja. We are now at a stage when a suit is instituted against the defendant firm, one of the partners of which is alleged to be the Maharaja of Orchha. Therefore, in my opinion, the learned Principal Judge was not right when he took the view that merely because the Maharaja of Orchha was not sued by name but because the suit was against the partnership firm in which he was a partner, Section 86 had no application.

(3.) THE other contention urged by Mr. Khambata is that this is a case where the Maharaja of Orchha is being sued in respect of a private transaction. He has joined a partnership, he is doing business, and he should not be allowed to claim any personal privilege as far as the liability to be sued is concerned. I entirely sympathise with Mr. Khambata. It does seem rather strange that in these democratic republican days Maharajas should still continue to have privileges which were given to them in those palmy days of old under the Civil P. C. , when Maharajas had States to govern. But how unstateable Mr. Khambata's contention is is clear from the fact that even after our Constitution came into force, even after Rulers ceased to have any public duties or public functions the privilege conferred upon them under the old Civil P. C. has still continued. As a matter of fact, Section 87b, which is a new section, provides that the provisions of Section 85 and Sub-sections (1) and (3) of Section 86 shall apply in relation to the Rulers of any former Indian Stale as they apply to the Rulers of a foreign State. So that the amended Civil Procedure Code contemplates Rulers of former Indian States--Rulers who can only have a private life and engage in private activities, and even with regard to them the privilege continues. Therefore, it is clear that Section 86 confers a personal privilege upon the Rulers of foreign States or Rulers of any former Indian States. Strictly it is not Section 86 which applies to the Maharaja of Orchha who is not a Ruler of a foreign State. It is Section 87b which deals with Rulers of a former Indian State which makes Section 86 applicable to him. And a Ruler in relation to a former Indian State under Section 87b (b) is defined as a person who for the time being is recognised by the President as the Ruler of that State for the purpose of the Constitution, and it is not disputed that the Maharaja of Orchha is recognized by the President.