DOMINION OF INDIA Vs. MATOLI RAM

JUDGEMENT

(1.) THESE are two appeals by the Dominion of India representing B. B. & C. I. and E. I. Railways against one Matoliram described as Manager and Karta of the firm Messrs. Ramnarain Matoliram, situated in Bharatpur. They arise out of two suits filed by the plaintiff, Matoli-ram, against the Dominion of India representing B. B. & C. I. , E. I. and B. A. Railways.

(2.) IN one of the suits, that is suit No. 15 of 1948, the plaintiff's case was that a consignment of 175 bags of rape seed weighing 398 maunds and 5 seers belonging to the plaintiff was despatched from Bharatpur to Bangaon in Bengal under invoice No. 2 R/r 50885 of 26th March, 1947. This consignment was not at all delivered to the consignee, although in the usual course it ought to have been delivered to the consignee at destination within two or three weeks at the most. It was alleged that in spite of repeated requests, demands and notices, the plaintiff was not delivered the consignment. It was also alleged that the non-delivery of the consignment was due to the gross negligence, carelessness and misconduct of the railway servants, and that the defendant was guilty of wrongful withholding or wrongful conversion of the plaintiff's goods and was bound to compensate the plaintiff. It was prayed that a decree, be given to the plaintiff for the recovery of Rs. 12,500/- consisting of Rs. 11,943/12/-, the cost of the goods at Rs. 30/- per maund as per market rate at destination, Rs. 546/4/- for loss of interest, and Rs. 10/- on account of cost of notices.

(3.) TO what relief, if any, is the plaintiff entitled?" Issue No. 5 differs in suit No. 16 only to this extent that the sum claimed is Rs 6,688/8/- on account of the price of the goods, and Rs. 301/8/- on account of interest, in place of the sum of Rs. 11,943/12/- on account of the price of the goods and Rs. 564/4/- on account of interest, and issue No. 7 differs only to this extent that the name Phulbari is given in place of Bangaon. 6. The learned District Judge has given his findings on all the issues in favour of the plaintiff in both the suits, and has consequently decreed them in full. " Against the decree of the lower court in each of these suits, the defendant filed an app2al in the Matsya High Court at Bharatpur, and after the integration of Matsya with Rajasthan, and the establishment of this Court, both the appeals have been sent to it for hearing and disposal. 7. We have heard the learned counsel for both the parties. Same arguments were advanced on behalf of both the parties in both the appeals, and it would be convenient to dispose both of them by a single judgment. Although the grounds of appeal taken in each appeal are formidable in their number inasmuch as in one appeal their number is 61 and in the other it is 62, for which counsel drafting the memorandum of appeal can hardly be congratulated, yet the points of controversy between the parties were not many, and the purpose could have been better served by shortening the number of grounds of appeal as far as possible, and putting them in clear and concise language. However, Mr. Beri, the learned counsel who argued the appeals on behalf of the appellant, was careful enough to separate the grain from the chaff, and raised only the following points in his arguments : - (1) Bharatpur court had no jurisdiction to hear the case. (2) The plaintiff failed to prove that he was the owner of the two consignments. (3) The plaintiff did not demand delivery either at Bangaon or at Phulbari. (4) Risk notes 'a' and 'c' absolved the defendant from liability. (5) The plaintiff failed to prove what price he could get for the goods for the two consignments at Bangaon and Phulbari respectively at the time when they ought to have been delivered. (6) Notices required by sec. 77 of the Railways Act and by sec. 80 of the Code of Civil Procedure were not served on the defendant. 8. Taking up the first point raised by the learned counsel for the appellant, which, in fact, appears to be the most ticklish point in the case, it was argued by the learned counsel for the appellant that according to the principles of international law, the sovereign of one independent State cannot be sued in the courts of another independent State. The Dominion of India vis-a-vis Bharatpur was an independent sovereign State, and no suit could be brought in the courts of Bharatpur State against the Dominion of India, as Bharatpur State was another sovereign State. Reliance was placed on the cases of the Parlement Belge reported in (1879-80, 5 Probate Division 197), the Porto Alexandre reported in (1920 Probate Division 30), Duff Development Company Limited vs. Government of Kelantan and another reported in (1924 A. C. 797), and Compania Naviera Vascongado vs. Steamship "cristina" and persons claiming an interest therein reported in (1938 A. C. 485 ). 9. In the case of Parlement Beige, the following well-known principle of international law was laid down: - "as a consequence of the absolute independence of every sovereign authority and of the international comity which induces every sovereign State to respect the independence of every other sovereign State, each State declines to exercise by means of any of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador, or over the public property of any State which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory. " In that case an unarmed frigate belonging to the State of Belgians, which was in the hands of officers commissioned by the said State, and employed in carrying mails was held not liable to be seized in a suit in relm to recover redress for a collision, and it was observed that this immunity was not lost by reason of the frigate's also carrying merchandize and passengers for hire. 10. In the case of Porto Alexandre, it was held that - "a vessel owned or requisitioned by a sovereign independent State and earning freight for the State, is not deprived of the privilege, decreed by international comity, of immunity from the process of arrest, by reason of the fact that she is being employed in ordinary trading, voyages carrying cargoes for private individuals. " The case of the Parlement Beige (1880, 5 P. D. 197) was considered and the principles laid down therein were applied. 11. In Duff Development Company, Limited vs. Government of Kelantan and another, it was held that - "a Government recognized as sovereign by His Majesty's Government is not the less exempt from the jurisdiction of our Courts because it has agreed to restrictions on the exercise of its sovereign rights. " 12. In the case of Compania Naviera Vascongado vs. Steamship "cristina" and persons claiming an interest therein, it was held that - "the Courts in England will not allow the arrest of a ship, including a trading ship, which is in the possession of, and which has been requisitioned for public purposes by, a foreign sovereign State, inasmuch as to do so would be an infraction of the rule well established in international law that a sovereign State cannot, directly or indirectly, be impleaded without its consent, and, therefore, that the writ and all subsequent proceedings must be set aside. " 13. From these authorities it is established that a sovereign of an independent State cannot be sued in the courts of another independent and sovereign State. There is, however, a rider to this general principle. It is that where the sovereign of an independent State submits to the jurisdiction of the courts of another sovereign and independent State, the courts will have jurisdiction to decide the case. In Halsbury's Laws of England, Volume 6, 1909 Edition, Part V, Article 662, it is given that - "the privilege (of exemption from adverse suit and legal process) may be waived, as by appearing and pleading otherwise than to the jurisdiction, or by bringing an action, in which case the court may order the plaintiff to give security for costs " In Mighell vs. Sultan of Johore (1894, 1 Q. B. 149), which is referred to in the case of Duff Development Co. vs. Kelantan Government (1924 A. C. 797), it was held that the submission by a sovereign to be effective must take place when the jurisdiction was invoked and not earlier, and that when a question of jurisdiction was raised by him, there could be no enquiry by the court into his conduct or actions prior to that date. This principle seems to have been approved by their Lordships who decided the case just quoted. Thus, the principle, which emerges on the authority of English courts is that a sovereign of an independent State is not amenable to the jurisdiction of the courts of another independent and sovereign State, but this privilege can be waived, if the sovereign submits to the jurisdiction, when it is invoked and not earlier. It has, therefore, got to be found whether, for the purposes of this suit, the Dominion of India could be said to be an independent foreign State vis-a-vis Bharatpur State, and if so, whether the said Dominion waived the privilege of not being amenable to courts in the Bharatpur State. 14. It was argued by the learned counsel for the appellant that Bharatpur State was an Indian State prior to the coming into force of the Constitution of India, and was a foreign State vis-a-vis British India. The suits could not, therefore, be brought against the Dominion of India in Bharatpur State courts on the dates on which they were filed. On behalf of the respondent, it was argued that in the first instance Bharatpur State could not be said to be an independent sovereign State, and whatever might be said of the status of the State before it acceded to the Dominion of India a little before the independence of India on the 15th of August, 1947, on its accession it became a part of India having accepted certain matters in respect of which the federal authority of India was invested with the powers of legislating. By the Instrument of Accession signed by His Highness the Maharaja of Bharatpur like the rulers of many other States, Bharatpur State acceded to Indian Dominion a little before the independence of India. A form of this Instrument of Accession is given in Appendix VII to the White Paper on Indian States issued by the Government of India, Ministry of States, pages 165 to 168. According to this Instrument of Accession, Bharatpur State acceded to the Dominion of India, and authorised the Dominion to make laws for Bharatpur State in respect of defence, external affairs, communications and other ancillary matters given under headings A, B, C and D respectively on pages 171-172. After this accession Bharatpur State could not be said to be a foreign State vis-a-vis the Dominion of India, nor could the- Dominion of India be said to be a foreign State vis-a-vis Bharatpur State. It was further argued that the principle on which the sovereign of a foreign State is considered to be exempt from the jurisdiction of the courts of another State is due to the fact that even if a judgment is obtained, it would be ineffective, as it could not be executed against such foreign State. After the extinction of Bharatpur State on its merger with Matsya Union, and thereafter with the present Rajasthan State, the decrees of Bharatpur courts could be executed anywhere in India, and, therefore, the principle on which the sovereign of a foreign State was given this exemption no longer existed, and so in the changed circumstances, the decree of the lower court was perfectly valid even assuming that the Dominion of India was a foreign State in relation to Bharatpur State on the date when the actions were brought. Further, it was argued that in any case the Dominion of India waived the privilege of exemption from action when it submitted to the jurisdiction of Bharatpur court by filing a written statement not only questioning its jurisdiction, but also raising all pleas affecting the merits of the case, and by making appearance in the case throughout the suit. After having got a judgment against itself on merits it cannot now say that the lower court had no jurisdiction to hear and decide the suits.