- (1.) THIS matter termed a civil revision has come before us from an order of Mr. Justice Kapur made on the 22nd of November, 1950. The learned Judge considered that the question arising before him should be determined by a Division Bench. The question is Thus: "whether the Rana of Koti, who by a notification of the Punjab Government made on the 1st of january, 1909, under Section 133 of Civil P. C. , was exempted from personal appearance in court is still so exempted after the coming into force of the Constitution. " The circumstances giving rise to this question are that an interpleader suit was filed against the rana and against his grandmother by a tenant. This tenant, who was a Muslim, afterwards went to Pakistan and the Rana at his own request was substituted as plaintiff against his grandmother defendant, the question in dispute being of course title to the property. After issues it appears the defendant applied that the plaintiff Rana be summoned to admit or deny certain documents and the privilege then was claimed on behalf of the Rana.
(2.) FOLLOWING the coming into force of the Constitution there has been no withdrawal of the notification issued under Section 133 of the Code of Civil Procedure. The Koti State acceeded to the Dominion - sometime in 1948 as we understand. There was a general form of instrument of accession signed by the Rulers of States in the Himachal Pradesh. This form appears at page 219 of the White Paper on Indian States issued by the Government of India, Revised Edition, in march 1950. Article 4 of the form of instrument reads as follows: "article 4. The Raja, the Rani, the Rajmata, the Yuvraj and the Yuvrani shall be entitled to all personal privileges enjoyed by them whether within or outside the territories of the State immediately before the 15th Day of August, 1947. " From a memorandum titled "memorandum on the personal Privileges of the Rulers of the merged and integrated States", issued by the Government of India apparently in August 1949, it is clear that the exemption from appearance in Court granted under Section 133 of the Code of civil Procedure was regarded as a substantial privilege coming under the guarantee of Article 4 of the instrument of accession. The reason for the issue of the memorandum appears to have been that during the discussions preceding the execution of the agreements of merger it had been urged on behalf of the Rulers that the privileges guaranteed to them by those agreements should be more clearly defined, and the memorandum set out 34 separate privileges. No. 21 in this list is styled "immunity from the process of Courts of law". In respect of this the Government of India stated that they did not consider that any statutory provision for the continuance of this privilege was necessary. They said: "the Government of India have no doubt that such immunity as the Rulers enjoyed before the 15th of August, 1947 in British Indian Courts would be regarded as a personal privilege of the rulers and in view of the ex press provision in the merger Agreements and Covenants, it will continue to be granted to them by all Courts in India. " The Government, however, presumably in view of the fact that the matter must be one for the Courts to consider whether under the constitution a privilege of this nature could exist added: "it would be for the Courts to decide whether a Ruler is immune from Civil and Criminal process and if so to what extent and under what circumstances. "
(3.) WHEN the application for exemption from appearance was made in the present matter the subordinate Judge to whom it was made considered that by reason of the memorandum of the government of India mentioned above any immunity formerly existing by reason of order made under Section 133 of the Code became a matter entirely in the discretion of the Court to allow or to disallow according to the circum-stances of the particular case. In the circumstances of this case the learned Judge thought that the immunity should not be allowed and it is from this order that the revision application has arisen.;