ABDUL LATIF GULAM NABI PATIL Vs. JAWHAR STATE

JUDGEMENT

(1.) THIS is a Letters Patent Appeal from a decision of Mr. Justice Sen in second appeal No.133 of 1935. The material facts can be shortly stated. The suit was instituted on behalf of the Jawhar State to recover a sum of Rs. 1,950 as the balance due for the price of certain jungle sold by the State to the defendant. The plaint was presented1 in Court signed by a Daftardar of the State. The defendant contended that the Daftardar had no authority to sue on behalf of the State and that contention was upheld by the trial Court which dismissed the suit on October 5, 1933. It seems that subsequent to that date at the request of the person appointed to carry on the administration of the State, which was communicated to the Governor-General in Council through the Political Agent and Resident at Baroda, the Central Government in the exercise of their power under Section 85 of the Civil Procedure Code appointed the Administrator of the Jawhar State to prosecute or defend on behalf of the State the civil suit filed against the defendant. That authority is dated January 29, 1934. In the meantime upon the dismissal of the suit the Daftardar had presented an appeal to the District Judge on November 14, 1933, and while that appeal was pending the authority from the Central Government was produced before the Appeal Court on February 17, 1934, and the Court was asked to treat the proceedings taken prior thereto as having been validated by the subsequent authority. The Appeal Court thought that the authority obtained after the dismissal could, not have that effect as the claim was already barred by then. It accordingly dismissed the appeal. In second appeal Mr. Justice Sen, relying upon Maharaja of Rewah v. Swami Saran (1903) I. L. R. 25 All. 635, thought that the production of the sanction or certificate of appointment validated the previous proceedings, inasmuch as in his view the claim when the authority was presented in Court had not been barred by time. With regard to the further question whether the Daftardar was properly appointed to institute the proceedings, Sen J. held that as the appointment made by the Government of India, though subsequent to the date of the suit, validated the prior proceedings, the appointment by the Administrator of the Daftardar to file the suit on behalf of the State would also be validated although it was made prior to the Administrator's own appointment. He further held that Sub-section (3) of Section 85 of the Civil Procedure Code did not require the authority or appointment to be made in writing, and could be implied or presumed from the Administrator's allowing the litigation on behalf of the State to be continued by the Daftardar. The appeal was accordingly allowed and the plaintiff given a decree for the claim made.

(2.) THE question that has been presented to us in this appeal is whether a suit instituted on behalf of a Ruling Prince or an Indian State by a person who is not an authorised agent under Order Ill, Rule 2, and without the authority required by Section 85 of the Civil Procedure Code, is a defective suit and must be dismissed, and whether a subsequent authority obtained under Section 85 for the first time after the presentation of the appeal upon dismissal of the suit could cure that defect. Section 85 provides as follows : (1) Persons specially appointed by order of the Government at the request of any Sovereign Prince or Ruling Chief, whether in subordinate alliance with the British Government or otherwise, and whether residing within or without British India, or at the request of any person competent, in the opinion of the Government, to act on behalf of such Prince or Chief, to prosecute or defend any suit on his behalf, shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of such Prince or Chief, (2) An appointment under this Section may be made for the purpose of a specified suit or of several specified suits, or for the purpose of all such suits as it may from time to time be necessary to prosecute or defend on behalf of the Prince or Chief. (3) A person appointed under this Section may authorize or appoint persons to make appearances and applications and do acts in any such suit or suits as if he were himself a party thereto.

(3.) IN dealing with similar provisions in Section s 86 and 87 of the Civil Procedure Code, our Courts have observed that the consent of the Government of INdia to institute an action or a proceeding against the Sovereign Prince or a Ruling Chief must be obtained before the institution of the suit, and that the consent given after the institution of the suit is not sufficient consent under Section 86. Those provisions, it may be remembered, provide for analogous circumstances. Consequently, on the principle of interpretation of statutes in pan materia, where as here words in the different Section s of the same statute, enacted for a similar purpose, are susceptible of a possibly different construction, one which is approved by considerations derived from the policy of the law has to be adopted. The rule of strict construction was applied in dealing with the provisions of Section 433 (corresponding to Section 86) by Mr. Justice Strachey in Chandulal v. Awad bin, Umax Sultan (1896) I. L. R. 21 Bom. 351, where the consent was given by the Governor-General in Council after the commencement of the suit against a Ruling Prince. It was said that the proper course for the Court to adopt, if the consent had not been obtained before the commencement of the suit, was to dismiss the suit or allow the plaintiff to withdraw it with liberty to bring a fresh suit under Section 373 of the Civil Procedure Code (Act XIV of 1882 ). IN that case the question also arose whether the defendant might not by his conduct waive the defect in the consent and the Court thought that he could. That view was not accepted in another case by the Judicial Committee of the Privy Council in Gaekwar Baroda State Railway v. Hafiz Habib-ul-Hag (1938) 40 Bom. L. R. 811, P. C. , where it was stated that the provisions of Section s 86 and 87 could not be waived, for the provisions " were imperative and having regard to the public purpose which they serve they cannot be waived in the manner suggested by the High Court. " The provisions of Section 85, as I have stated, serve equally a public purpose and in my opinion must be rigidly followed.