A.P.H.C.CASE LAW - ADVOCATEMMMOHAN

Sunday, October 31, 2010

SUITS AGAINST RULERS OF FORMER INDIA STATES

87B. Applications of Sections 85 and 86 to Rulers of former Indian States.—¹[(1) In the case of any suit by or against the Ruler of any former Indian State which is based wholly or in part upon a cause of action which arose before the commencement of the Constitution or any proceeding arising out of such suit, the provisions of Section 85 and sub-sections (1) and (3) of Section 86 shall apply in relation to such Ruler as they apply in relation to the Ruler of a foreign State.]

(2) In this Section-

(a) “Former Indian State”, means any such Indian State as the Central Government may, by notification in the Official Gazette specify for the purposes of this; ²[***]

³[(b) “Commencement of the Constitution” means the 26th day of January, 1950; and

1. Substituted by Act No. 54 of 1972, for sub-section (1).

2. The word “and” omitted by Act No. 54 of 1972.

3. Substituted by Act No. 54 of 1972, for the former clause (b).

INTERPLEADER

88. Where interpleader suit may be instituted.— Where two or more persons claim adversely to one another the same debts, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can properly be decided, no suit of interpleader shall be instituted.

PART –V

SPECIAL PROCEEDINGS

case for opinion of C ARBITRATION

¹[89. Settlement of disputes outside the Court.—(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for there observations and after receiving the observation of parties, the court may reformulate the terms of a possible settlement and refer the same for—

(a) arbitration; (b) conciliation;

(d) mediation.

(2) Where a dispute had been raferred—

(a) for arbitration or conciliation, the provisions of the Arbitration Conciliation Act, 1996 shall apply asif the proceedings for arbitration or conciliation ware referred for selllment under the provisions of that act

(b) to Lok Afalat,the court shell refer the same to the Lok Adalat in accodrance With the provisions

of sub-section (1) of Sections 20 of the Legal Services Authority Act 1987 and all other provisions of that act shell apply in respect of the dispute so referred ti the Look Adalat:

(c) for judicial settlement,the court shell refer the same to a suitable institution or person and such institution or person shall be deemed to be a lok Adalat and all the provisions of the Legal Services Authority Act,1987 shall apply as if the dispute ware referred to a Lok Adalat under the provisiond of that act

(d) For mediation,the court shall effect a compromise bet ween the parties and shall follow such procedure as may be prescribed.]

1.Sec. 89 was repealed by arbitration Act,1940 and again added by Act No. 46 of 1999, Sec 7 (w.e.f. 1-7-2002).

PECIAL CASE

90. Power to stateourt.—Where any person agree in writing to state a case for the opinion if the Court, then the Court shall try and determine the same in the manner prescribed.

¹[PUBLIC NUISANCES AND OTHER WRONGFUL ACTS AFFECTING THE PUBLIC]

1. Substituted by Act No. 104 of 1976, for the former headings, w.e.f. 1st February, 1977.

91. Public nuisances and other wrongful acts affecting the public.—¹[(1) In the case of a public nuisance or other wrongful Act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted.—

(a) By the Advocate-General, or

(b) With the leave of the Court, by two or more persons, even though no special damage has been caused to such person by reason of such public nuisance or other wrongful Act.]

(2) Nothing in this Section shall be deemed to limit or otherwise affect any right of suit, which may exist independently of its provisions.

1. Substituted by Act No. 104 of 1976, for sub-section (1), w.e.f. 1st February, 1977.

¹92. Public charities.—(1) In the case of any alleged breach of any express of constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the ²[leave of the Court] may institute a suit, whether contentious or not, in the principal Civil Court of the original jurisdiction or in any other Court empowered in that behalf by the State Government.

Within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree-

(a) Removing any trustee;

(b) Appointing a new trustee;

³[(cc) Directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;

(d) Directing accounts and inquiries;

(e) Declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) Authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) Settling a scheme; or

(h) Granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), ⁴[or by any corresponding law in force in] ⁶[the territories which, immediately before the 1st November, 1956, were comprised in Part B States], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

⁵[(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely.—

(a) Where the original purposes of the trust, in whole or in part.—

(i) Have been, as far as may be, fulfilled; or

(ii) Cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or

(b) Where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) Where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

(d) Where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

(e) Where the original purposes, in whole or in part, have, since they were laid down,

(i) Been adequately provided for by other means, or

(ii) Ceased, as being useless or harmful to the community, or

(iii) Ceased to be, in law, charitable, or

(iv) Ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.]

1. Section 92 shall not apply to any religious trust in Bihar. See Bihar Act No. 1 of 1951.

2. Substituted by Act No. 104 of 1976, for the words “consent in writing of the Advocate-General”, w.e.f. 1st February, 1977.

3. Inserted by Act No. 66 of 1956.

4. Inserted by Act No. 2 of 1951.

5. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

6. Inserted by Act No. 104 of 1976, w.e.f 1st February, 1977.

93. Exercise of powers of Advocate-General outside presidency-towns.—The powers conferred by Sections 91 and 92 on the Advocate-General may, outside the presidency-towns, be, with the previous sanction of the State Government, exercised also by the Collector or by such officer as the State Government may appoint in this behalf.

PART VI

SUPPLEMENTAL PROCEEDINGS

94. Supplemental proceedings.— In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed.—

(a) Issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the prison;

(b) Direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c) Grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(d) Appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

(e) Make such other interlocutory orders as may appear to the Court to be just and convenient.

95. Compensation for obtaining arrest, attachment or injunction on insufficient grounds.—(1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last proceeding Section-

(a) It appears to the Court that such arrest, attachment or injunction was applied of on insufficient grounds, or

(b) The suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable grounds for instituting the same,

The defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, ¹[not exceedind fifty thousand rupees], as it deems a reasonable compensation to the defendant for the ²[expense or injury to reputation) caused to him];

Provided that a Court shall not award, under this Section, an amount exceeding the limits of its pecuniary jurisdiction.

(2) An order determining say such application shall bar any suit for compensation in respect of such arrest, attaching or injunction.

COMMENTS

The remedy under the Code is optional and an injured party can file a regular suit for compensation if he has not already sought relief under S.95.Thus S.95 is an alternative remedy in cases of wrongful obtainment of an injunction and it does not in any way interfere with the principles regulating suits for damages for tort of malicious legal process. (Bank of India v.Lakshmimani Dass, AIR 2000 SC 1172(1178)

1. Substituted by Act No. 46 1999, Sec 8 for "not exceeding one thousand rupees".

2. Substituted by Act No. 104 of 1976,Sec 31, for the words “expense or injury caused to him”, w.e.f. 1st February, 1977.

PART-IV

SUITS IN PARTICULAR CASES

SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICER
IN THEIR OFFICIAL CAPACITY

¹79. Suits by or against Government.— In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be-

(a) In the case of a suit by or against the Central Government, ²[the Union of India], and

(b) In the case of a suit by or against a State Government, the State.]

1. Substituted by the A.O. 1948 for the former Section.

2. Substituted by the A.O. 1950, for the words “the Dominion of India”.

80. Notice.—¹[(1)] ²[Save as otherwise provided in sub-section (2), no suits ³[shall be instituted] against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any Act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been ⁴[delivered to, or left at the office of-

(a) In the case of a suit against the Central Government, ⁵[except where it relates to a railway], a Secretary to that Government.

⁶[⁷[(b)] In the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;]⁷[***]

⁸[(bb) In the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;]

(c) In the case of a suit against ⁹[any other State Government], a Secretary to that Government or the Collector of the district; ¹⁰[***]

(d) ¹⁰[***]

And, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief, which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

¹¹[(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any Act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be , a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).

(3) No suit instituted against the Government or against a public officer in respect of any Act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-

(a) The name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

(b) The cause of action and the relief claimed by the plaintiff had been substantially indicated.]

1. Section 80 renumbered as sub-section (1) thereof by Act No. 104 of 1976, w.e.f. 1st February, 1977.80. Notice

2. Substituted by Act No. 104 of 1976, for the words “No suit shall be instituted”, w.e.f. 1st February, 1977.

3. Substituted by Act No. 26 of 1963 for the words “shall be instituted against the Government”, w.e.f. 5th June, 1964.

4. Substituted by the A.O. 1937, for the words “in the case of the Secretary of State in Council, delivered to, or left at the office of a Secretary to the L.G. or the Collector of the district”.

5. Inserted by Act No. 6 of 1948.

6. Clause (aa) Inserted by Act No. 6 of 1948.

7. Clause (aa) re-lettered as clause (b) and the former clause (b) omitted by the A.O. 1948,

8. Inserted by Act No. 26 of 1963, w.e.f. 5th June, 1964.

9. Substituted by Act No. 26 of 1963, for the words “a State Government”, w.e.f. 5th June, 1964.

10. The word “and” and clause (d) omitted by the A.O. 1948.

11. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

81. Exemption from arrest and personal appearance.— In a suit instituted against a public officer in respect of any Act purporting to be done by him in his official capacity-

(a) The defendant shall not be liable to arrest nor his property to attachment otherwise than in execution of a decree, and

(b) Where the Court is satisfied that the defendant cannot absent himself from his duty without detriment to the public service, it shall exempt him from appearing in person.

82. Execution of decree.—¹[(1) Where, in a suit by or against the Government or by or against a public officer in respect of any Act purporting to be done by him in his official capacity, a decree is passed against the Union of India or a State or, as the case may be, the public officer, such decree shall not be executed except in accordance with the provisions of sub-section (2).]

(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of ²[such decree].

³[(3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or award as they apply in relation to a decree, if the order or award-

(a) Is passed or made against ⁴[the Union of India] or a State or a public or in respect of any such Act as aforesaid, whether by a Court or by any other authority; and

(b) Is capable of being executed under the provisions of this Code or of any other law for the time being in force as if it were a decree.]

1. Substituted by Act No. 104 of 1976, for sub-section (1), w.e.f 1st February, 1977.

2. Substituted by Act No. 104 of 1976, for the words “such report”, w.e.f. 1st February, 1977.

3. Inserted by Act No. 32 of 1949.

4. Substituted by the A.O. 1950, for the words “the Dominion of India”.

¹[SUITS BY ALIENS AND BY OR AGAINST FOREIGN RULERS,
AMBASSADORS AND ENVOYS]

1. Substituted by Act No. 2 of 1951 for the former heading and Sections 83 to 87.

83. When aliens may sue.— Alien enemies residing in India with the permission of the Central Government, and alien friends, may sue in any Court otherwise competent to try the suit, as if they were citizens of India, but alien enemies residing in India without such permission, or residing in a foreign country, shall not sue in any such Court.

Explanation.— Every person residing in a foreign country, the Government of which is at war with India and carrying on business in that country without a licence in that behalf granted by the Central Government, shall, for the purpose of this Section, be deemed to be an alien enemy residing in a foreign country.

84. When foreign States may sue.— A foreign State may sue in any competent Court:

Provided that the object of the suit is to enforce a private right vested in the Ruler of such State or in any officer of such State in his public capacity.

85. Persons specially appointed by Government to prosecute or defend on behalf of foreign Rulers.—(1) The Central Government may, at the request of the Rulers of a foreign State or at the request of any person competent in the opinion of the Central Government to Act on behalf of such Ruler, by order, appoint any persons to prosecute or defend any suit on behalf of such Ruler, and any persons so appointed shall be deemed to be the recognized agents by whom appearances, acts and application under this Code may be made or done on behalf of such Ruler.

(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 such Ruler.

(3) A person appointed under Section this Section may authorise or appoint any other persons to make appearances and do acts in any such suit or suits as if he were himself a party thereto.

86. Suits against foreign Rulers, Ambassadors and Envoys.—(1) No. ¹ [***] foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government by a to that Government :

Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid ²[a foreign State] from whom he holds or claims to hold the property.

(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which ³[the foreign State] may be sued, but it shall not be given, unless it appears to the Central Government that¹¹[the foreign State].

(a) Has instituted a suit in the Court against the person desiring to sue ⁴[it], or

(b) ⁵[itself] or another, trades within the local limits of the jurisdiction of the Court, or

(c) Is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or

(d) Has expressly or impliedly waived the privilege accorded to ⁶[it] by this Section.

⁷[(3) Except with the consent of the Central Government, certified in writing by a Secretary to that Government, no decree shall be executed against the property of any foreign State.]

(4) The preceding provisions of this Section shall apply in relation to-

⁸[(a) Any Ruler of a foreign State;]

⁹[(aa)] Any ambassador or Envoy of a foreign State;

(b) Any High Commissioner of a Commonwealth country; and

(c) Any such member of the staff ¹⁰[of the foreign State or the staff or retinue of the Ambassador] or Envoy of a foreign State or of the High Commissioner of a Commonwealth counter as the Central Government may, by general or special order, specify in this behalf,

¹⁰[as they apply in relation to a foreign State.].

⁸[(5) The following persons shall not be arrested under this Code, namely.—

(a) Any Ruler of a foreign State;

(b) Any Ambassador or Envoy of a foreign State;

(d) Any such member of the staff of the foreign State or the staff or retinue of the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country, as the Central Government may, by general or special order, specify in this behalf.

(6) Where a request is made to the Central Government for the grant of any consent referred to in sub-section (1), the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard.]

1. The words “Ruler of a” omitted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

2. Substituted by Act No. 104 of 1976, for the words “a Ruler”, w.e.f. 1st February 1977.

3. Substituted by Act No. 104 of 1976, for the words “the Ruler”, w.e.f. 1st February, 1977.

4. Substituted by Act No. 104 of 1976, for the words “him”, w.e.f. 1st February, 1977.

5. Substituted by Act No. 104 of 1976, for the words “him”, w.e.f 1st February, 1977.

6. Substituted by Act No. 104 of 1976, for the words “himself”, w.e.f. 1st February, 1977.

7. Substituted by Act No. 104 of 1976, for sub-section (3), w.e.f. 1st February, 1977.

8. Inserted by Act No. 104 of 1976, w.e.f 1st February, 1977.

9. Clause (a) re-lettered as clause (aa) by Act No. 104 of 1976, w.e.f. 1st February, 1977.

10. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

11. Substituted by Act No. 35 of 1934 for the words “or naval”.

87. Style of foreign Rulers as parties to suits.— The Ruler of a foreign State may sue, and shall be sued, in the name of his State:

Provided that in giving the consent referred to in Section 86, the Central Government may direct that the Ruler may be sued in the name of an agent or in any other name.

87A. Definitions of “foreign State” and “Ruler”.—(1) In this Part.—

(a) “Foreign State” means any State outside India which has been recognised by the Central Government; and

(b) “Ruler”, in relation to a foreign State, means the person who is for the time being recognized by the Central Government to be the head of that State.

(2) Every Court shall take judicial notice of the fact-

(a) That a State has or has not been recognized by the Central Government;

(b) That a person has or has not been recognized, by the Central Government to be the head of a State.