Decided on July 26,1954


Cited Judgements :-



Chagla, C.J. - (1.)The plaintiff filed a suit in the Court of the Civil Judge, Junior Division, Jath, against the Raja-saheb of Jath, claiming certain reliefs. A preliminary objection was taken to the maintainability of the suit in view of the provisions of Section 87B, Civil P. C. The learned Judge in a well-considered judgment, came to the conclusion that the provisions of Section 87-B were invalid by reason of Article 13(2) of the Constitution of India. In taking that view, he referred the cage to us for our opinion under the proviso to Section 113, Civil P. C., and this reference has now come before us.
(2.)Section 87-B which was incorporated in the Civil Procedure Code alter the Constitution was passed by Act II of 1951, applies the provisions of Section 85 and Sub-sections (1) and (3) of Section 86 to Rulers of any former Indian States; and "former Indian State" is denned as "any such Indian State as the Central Government may, by notification in the Official Gazette, specify for the purposes of this section", and "Ruler", in relation to a former Indian State, means the person who, for the time being, is recognised by the President as the Ruler of that State for the purposes of the Constitution. When we turn to Sections 85 and 86, Section 85 deals with persons to be appointed by Government to prosecute or defend on behalf of foreign Rulers and Section 86, Sub-clause (1), provides that no Ruler of a foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government, and Subclause (3) exempts a Ruler from being arrested except with the consent of the Central Government and also provides that no decree shall be executed against the property of any such Ruler. In this case, the plaintiff filed the suit without obtaining, the necessary consent of the Central Government and it was oh that ground that the maintainability of the suit was questioned before the learned Judge below.
(3.)Now, the view taken by the learned Judge --and there is considerable force in that view--is that under Article 14 of the Constitution there is equality before the law and it seems rather strange that in a democratic State the former Rulers of Indian States should not be as much liable to the process of the Court as any other citizen. One would expect that the rule of law applies to all citizens and every one in India is subject to that rule of law, and if Courts exist in order to enforce that rule of law, every one in India should be equally subject to the process of the Courts. But when one considers and interprets the Constitution of a country, one cannot overlook the historical context in which that Constitution came into existence. The democratic state in India was born as a result of a unique and unprecedented revolution. However non-violent that revolution might have been and however much the Constitution has attempted to turn away from the past and to write a new chapter for the future of India, the state on which the past history was written has not been completely wiped out. Therefore, in considering the position of former Rulers of Indian States, one must consider their rights and privileges as they existed before the Constitution came into existence and how the Indian States ceased to have any independent existence and ultimately became merged with India and formed part of the Union of India".

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