KUTHALEDATH NARAYANA MOOTHOD Vs. COCHIN SIRCAR REPRESENTED BY MRARBANERJI, DEWAN OF COCHIN, NOW BY MRJWBHOSE, DEWAN OF COCHIN

JUDGEMENT

(1.) The question in these appeals is whether His Highness the Rajah of Cochin was legitimately impleaded as a defendant in the connected suits in the absence of consent by the Local Government under Section 86, Code of Civil Procedure.

(2.) It is urged, firstly, that the absence of such consent is immaterial, because His Highness had waived his privilege by proceeding, after pleading it, to plead also on the merits. I do not consider whether the course of his pleading did in fact amount to a waiver, because, in ray opinion, the recognition of cases of waiver, as excepted from the ordinary provisions of international law as understood in England, cannot be imported into the clear language of the Indian Code. The contrary view was, no doubt, taken in Chandulal Khushalji v. Awad bin Umar Sultan Nawaz Jung Bahadur 21 B. 351. But with all respect I find the reasoning therein inconclusive and doubt whether the reference to the supposed intention of the Legislature is permissible or, if permissible, whether it is sufficiently comprehensive.

(3.) Secondly, it is argued that the suits are really against the deity of the suit temple, represented, by the Rajah, and that, as they are not against the Rajah himself, the section is inapplicable. Reference to the plaints shows that the suits are for relief against the Rajah and others, on the ground that the first mentioned has usurped the position of trustee and has used the power thus obtained to plaintiffs prejudice. The suits are, therefore, not against the deity, as represented by the Rajah.