DOMINION OF INDIA Vs. MATOLI RAM
LAWS(RAJ)-1952-4-16
HIGH COURT OF RAJASTHAN
Decided on April 21,1952

DOMINION OF INDIA Appellant
VERSUS
MATOLI RAM Respondents

JUDGEMENT

Sharma, J. - (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.
In the other suit, that is, suit No. 16 of 1948,the plaintiff's case was that a consignment of 200 bags of mustard seed belonging to the plaintiff was despatched from Bharatpur to Phulbari in Bengal under invoice No. 1 R/r 50887 dated the 23rd of March, 1947. Out of the consignment only 102 bags were delivered to the consignee at destination, and the remaining 98 bags were not delivered at all in spite of repeated demands and notices. It was alleged that the non-delivery of 98 bags 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. A sum of Rs. 6,688/8/- for the cost of 98 bags of mustard seed weighing 222 maunds and 38 seers at Rs. 30/- per maund as per market rate at destination, plus Rs. 301/8/- for loss of interest, and Rs. 10/- on account of cost of notices, totalling Rs. 7,000/- was claimed.

In both the suits the Dominion of India representing the B. B. & C. I. and E. I. Railways entered appearance. As regards B. A. Railway, it was alleged that the said railway no longer existed, and the defendant could not, therefore, represent the said railway. Written statements, which were filed in both the suits, raised the same questions of law and fact An objection was taken in both the suits that there was no averment regarding service of notices under sec. 80 of the Code of Civil Procedure, and the plaints be, therefore, rejected. The learned District Judge, Bharatpur, who was seized of both the suits, however, overruled the objection, and applications in revision were filed in both the suits before the Matsya High Court at Bharatpur. During the pendency of the applications for revision the plaintiff sought leave to amend the plaints clearly alleging that notices under sec. 80 of the Code of Civil Procedure had been served on the defendant. This amendment was allowed, and the applications for revision were dismissed.

As has been said above, in both the cases questions of law and fact were the same. Only the amount claimed in the two suits was different. The learned District Judge framed 14 issues in each of the two cases. Some of them are exactly the same, while others are substantially the same with only a little difference in language. The issue relating to the sum claimed certainly differs inasmuch as it relates to the amount. It is, therefore, unnecessary to give all the issues in both the suits separately. The issues struck in suit No. 15 alone are given below, and they show the points in controversy in both the suits : - "1. Whether the consignment mentioned in para 1 of the plaint belongs to the plaintiff or not? 2. Whether the consignment mentioned in para 1 of the plaint is still undelivered to the plaintiff? 3. Whether the non-delivery of the above-mentioned consignment is due to the negligence, carelessness, and misconduct of the railway? 4. Whether the railway is guilty of wrongful withholding or wrongful conversion of the goods? 5. Whether the plaintiff is entitled to recover Rs. 11943/12/- price of the goods and Rs, 564/4/- on account of interest and Rs 10/- cost of notices?

Whether the plaintiff has served the defendant with notices required by law? If not, what is its effect on the suit?

Whether Bangaon is under Pakistan Government, and if so, what is its effect on the suit?

Whether the B. A. Railway has ceased to exist ? If so, its effect on the suit?

Whether the plaintiff's representatives have demanded the delivery of the goods at Bangaon?

Whether the suit is not maintainable?

Whether the plaintiff is the Manager and Karta of joint Hindu family?

Whether the consignment mentioned in para 1 of the plaint was booked at owner's risk under risk note form 'a' and 'c, and what is its effect on the suit?

Whether the suit is cognizable by this Court?

(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.
As regards the first contention of the learned counsel for the respondent, it can certainly be said that even before the date of accession the relations between British India and Bharatpur State were not exactly such as are found between two independent and sovereign States. I need not, however, examine the status of Bharatpur State vis-a-vis British India before the date of accession, because before the two suits were filed Bharatpur State had acceded to the Indian Dominion. According to the terms of the Instrument of Accession, a form of which finds place at pages 165 to 168 in Appendix VII to the White Paper on Indian States issued by the Government of India, Ministry of States, the State which acceded to the Dominion of India gave the Dominion authority to legislate on the following subjects : - A-Defence, B-External Affairs, C-Communications, and D-Ancillary matters. Under the last heading, No. 4 is as follows : - "jurisdiction and powers of all courts with respect to any of the aforesaid matters but, except with the consent of the Ruler of the acceding State, not so as to confer any jurisdiction or powers upon any courts other than courts ordinarily exercising jurisdiction in or in relation to that State. " Thus, by the Instrument of Accession power was assumed by the Dominion of India to make laws for Bharatpur State inter alia regarding jurisdiction and powers of all courts with respect to any of the matters on which by the Instrument of Accession the Dominion Legislature was given power to make laws for Bharatpur State. Of course, in matters other than those given in the Schedule on page 171 of the White Paper, Bharatpur State retained its autonomy, but all the same it cannot be said that Bharatpur State after the accession remained an independent foreign State. In matters given in the Schedule Bharatpur State became just as much a part of India as any other territory within the former British India excepting that in matters not coming under the Schedule, greater autonomy was allowed to it than to the provinces of British India. After the accession, therefore, the Dominion of India could not be said to be an independent foreign State vis-a-vis Bharatpur State or vice versa. Moreover, in the language of item No. 4, under the heading D, of the Schedule, referred to above, it is implicit that the Dominion Government had no objection to Bharatpur State court's ordinarily, exercising jurisdiction in or in relation to that State in matters coming under the Schedule. Of course, if the Dominion Legislature intended to confer jurisdiction and powers in those matters on any other courts, the consent of the Ruler of the State bad to be obtained. A little before the independence of the 15th of August, 1947, the railway lands belonging to the Indian Government lying within the territories of the State were ceded back to the State, and the State got jurisdiction over suits relating to causes of action arising within the railway lands. The District Judge, Bharatpur, was empowered by the Bharatpur State to hear such cases. The notification was published in the Bharatpur State Gazette dated October 1, 1947 as No. 23, Vol. 38, page 293. The court of the District Judge was also the court ordinarily exercising jurisdiction in or in relation to Bharatpur State in regard to the cases of the valuation of the present suit. Of course, before the railway lands within Bharatpur State were ceded back to Bharatpur, there were special courts created by the Indian Government to entertain and hear such suits, but after the cession back of the territory, those courts no longer had jurisdiction to hear such suits and the District Judge, Bharatpur, had the power both ordinarily and also in view of the above notification of Bharatpur Government. The present suits are the suits in respect of the responsibility of administration of B. B. & C. I. &e. I. Rlys. as carriers of goods, & after the cession of rly. lands to Bharatpur State & the accession of Bharatpur State to India, the court of the District Judge had perfect jurisdiction to entertain the suit of the present nature, & the Dominion Government could not object to the jurisdiction of that court on the ground that the Dominion of India was a foreign sovereign State vis-a-vis Bharatpur State. I am strengthened in this view also by the provisions of the Indian Railways (Amendment) Act (No. XXI of 1948) (hereinafter to be referred to as the Amendment Act ). The necessity for this legislation arose from the fact that most of the Indian States acceded to the Dominion of India, and communications, which included federal railways, was one of the subjects, in relation to which the Dominion of India was to exercise powers in the acceding States. By sec. 2 of the Amendment Act, the Railways Act was extended to the whole of India, which meant that the acceding States were also brought under its operation. In sec. 8-A a provision, similar to that relating to Central Government and the provinces, was added in relation to acceding States as well. In sec. 79, the words "an acceding State" were added. Similarly sec. 134, as it then stood, was substituted by another sec. 144, by which it was provided that in the application of Railways Act to any Acceding State references to the provincial Government in clause (18) of sec. 3, and in secs. 11, 12, 51 and 83, shall be considered as reference to the Government of the Acceding State, and references to an enactment in force in the provinces of India but not in force in the Acceding State shall be construed as references to the corresponding law, if any, of that State. It is thus clear that the Dominion Legislature considered the Acceding States on par with the provinces in the application of the Railways Act after the accession of the States to the Dominion of India.

Even assuming that Bharatpur State was a foreign independent State vis-a-vis Dominion of India even after the accession, the Dominion of India submitted itself to the jurisdiction of the court of the District Judge, when it filed a written statement not only raising the question of jurisdiction, but also raising all possible pleas relating to merits. Not only this, the Dominion of India also contested the suit on all the issues, produced evidence, and cross-examined the witnesses for the plaintiff on all possible points. In some eases, it has been held that even if a foreign State or a foreigner makes appearance and contests only the question of jurisdiction, he would be considered to have submitted to the jurisdiction of the foreign court. It was so held in the case of Harris vs. Taylor [ (1915) 2 K. B. 580 (C. A.) ]. In that case a suit was brought in the High Court of the Isle of Man against a defendant, who was a resident of England. The defendant appeared "conditionally", and applied to the court to set aside the order for service out of the jurisdiction and the writ on the ground, inter alia, that the defendant was domiciled in England. The application was dismissed. The defendant took no further part in the proceedings, and the plaintiff eventually recovered judgment in the action for damages and costs. The plaintiff then brought an action against the defendant to enforce the judgment. It was held that the defendant by reason of his application to the Isle of Man Court, had voluntarily submitted to the jurisdiction of that Court and that the judgment was, therefore, enforceable against him in England. In the case of V. Subramania Aiyar vs. S. C. Annasami Iyer and others (A. I. R. 1948 Madras 203), the plaintiff filed a suit in Trivandrum Court. The defendant did not appear. The plaintiff got a commission issued to the Court at Sri-vaikuntam to have the defendant summoned and examined as a witness. He, however, engaged a counsel, objected to the questions put to him in his examination and finally got himself cross-examined and raised a plea in the course of cross-examination which, if it had been accepted by the Court would have ended in the dismissal of the suit. It was held that - "the commission evidence was part of the record of the case in the Trivandrum court and when the defendant voluntarily gave materials which formed the record of the case his act amounted to submission to the jurisdiction of Trivandrum court. " In the present case it is not necessary for me to go so far, as the Dominion of India has not appeard simply to question the jurisdiction of the lower court. It has taken all possible pleas on merits and fought out the case on merits also. Having obtained a judgment against it on merits, the Dominion of India cannot now say that the lower court had no jurisdiction in the case. From the judgment of the learned District Judge, it appears that no such question as has been raised before this Court with regard to jurisdiction was pressed at the time of arguments, and the only ground on which jurisdiction was questioned was that no cause of action had arisen against any of the railways within the jurisdiction of the lower court. The Dominion of India, therefore, will be held to have submitted to the jurisdiction of the lower court, and cannot question it now in this appeal on the ground that the Dominion of India was a foreign State vis-a-vis Bharatpur State, and could not, therefore, be sued in Bharatpur State courts by virtue of the principles of international law. For this I am supported by a ruling of the Calcutta High Court in the case of Chormal Balcnand Firm, Chowrahat vs. Kasturi Chand Seraoji and another [a. I. R. 1938 Calcutta 511]. It was held in that case that - "if a non-resident defendant appears in a foreign Court, pleads that that Court has no jurisdiction and also pleads to the merits, he submits to the jurisdiction of that Court voluntarily. Having taken the chance in that Court, he cannot be allowed to turn round and impeach the judgment on the ground of incompetency of the Court passing it when it is sought to be enforced in another country. "

Again, in the case of Rama Aiyer and another vs. Krishna Patter [a. I. R. 1917 Madras 780], it was decided by a Full Bench that- ''where a defendant submits himself to the jurisdiction of a foreign Court and takes the chance of a judgment in his favour, there is a duty cast on him to obey that judgment if it goes against him; but where his appearance is not voluntary but brought about under duress, the case is treated as though he had not appeared. "

In that case the defendant appeared in a foreign court under protest because he did not want to be arrested when he went there on business, and the decree having been passed against him, the decree-holder applied in British India under sec. 44 of the Code of Civil Procedure for execution thereof. It was held that - "the mere intention of avoiding an inconvenience that might happen in the future did not make the defendant's appearance involuntary and the decree was binding upon him. "

In the case of Harchand Panaji vs. Gulabchand Kanji [a. I. R. 1914 Bombay 111 (2)], it was held that - "a decree passed against a person who voluntarily submits to the jurisdiction of a foreign Court can, on transfer, be executed in the Court within whose jurisdiction he resides. "



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