STATE OF GONDAL Vs. GOVINDRAM SEKSARIA

JUDGEMENT

(1.) THIS is an appeal by defendant No.1 against the judgment of Mr. Justice Blagden dated January 15, 1943, whereby it was ordered that defendant No.1 should pay to the plaintiffs upwards of Rs. 77,000. There is also a cross-appeal by the plaintiffs against defendants Nos. 2 and 3, who are trustees and against whom the learned Judge dismissed the action.

(2.) AN objection as to the jurisdiction of this High Court to try this action was taken in the Court below, and has been raised by Sir Jamshedji Kanga in this Court also. It arises in this way. Defendant No.1 is His Highness the Maharaja of Gondal, and under Section 86 of the Civil Procedure Code, 1908, it is not competent to sue the Ruling Chief of an Indian State in this Court, unless the consent of the Crown Representative has been first obtained. Sub-section (1) of Section 86 is as follows : 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. Sub-section (2) provides that such consent may be given in respect to a specified suit or to several specified suits, or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which the Prince may be sued. The certificate of consent obtained in this case is in this form : Consent of the Crown Representative CERTIFICATE. This is to certify that in accordance with the provisions of Section 86 of the Code of Civil Procedure 1908 (Act V of 1908) the Crown Representative consents to a suit being instituted in the High Court of Judicature at Bombay, by Mr. Govindram Seksaria and the Director and Managing Agent of Sekaria Cotton Mills Limited of Bombay, against His Highness the Maharaja of Gondal, in respect of the matters specified in the copy of the plaint attached hereto. (SD.) C. Latimer Political Secretary. Simla, July 28, 1939. The intended plaint is attached to the certificate, being in the precise form, except for the number of the suit, in which the plaint was ultimately sworn to. As appears from it, there are in fact two plaintiffs, Govindram Seksaria and the Seksaria Cotton Mills, Limited, : but it has been submitted by Sir Jamshedji Kanga for the Maharaja that as the certificate of consent was in favour of a suit by Govindram Seksaria and the director and managing agent of the company, no valid consent to the action as constituted by the personal plaintiff and the plaintiff company has been given!, and accordingly this Court has no jurisdiction. In my judgment, there is no substance in this contention. In the first place, the certificate of consent has, as I have mentioned, a copy of the then intended plaint annexed, in which the parties are correctly described. Further, when the petition is examined on which the consent was given, it discloses who the petitioners are and also that it is the petitioners who are to be the plaintiffs, namely, Govindram Seksaria and the Seksaria Cotton Mills, Limited : see paragraph 25 of the petition which is as follows : That your petitioners desire to file a suit against inter alia the said Maharaja for recovery of the said amount in the High Court of Judicature at Bombay." From this it is clear that the Crown Representative not only had the precise nature of the intended suit before him but also the identity of the intended plaintiffs. Section 86 nowhere provides that the consent is to be given to a particular plaintiff, what Sub-section (2) provides is that consent is to be given to " a specified suit" In my judgment, the learned Judge in the Court below was right in holding that the requisite consent under the section had been given.

(3.) ON July 24, 1937, the trustees being still in possession, the solicitors to plaintiff No.1 wrote to the Maharaja a letter which commenced as follows : Our client is informed that you are the mortgagee in possession of the freehold land admeasuring about 34,856 sq. yards the buildings, machinery and plant of the Mills, known as The Currimbhoy Mill and Mahomedbhoy Mill belonging to the Currimbhoy Mills Co., Ltd., (in Liqu.) being the holder of all the first mortgage debentures issued by the said company. Our client is further informed that as such mortgagee in possession you are willing to sell the said land, buildings, machinery and plant.