TMI Blog2011 (11) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... aharashtra Rent Control Act, 1999 and for consequential relief of mandatory and permanent injunction. The Trial Court by its Judgment and Order dated 18.12.2007, rejected the Plaint by exercising powers under Order VII Rule 11 of the Code of Civil Procedure, 1908 by relying on the provisions of Section 86 of the Code. Appeal No. 24 of 2008 filed by the Respondent/ Plaintiff has been allowed by the impugned Judgment and Order dated 6.5.2009. The Petitioner had initially filed W.P. No. 6129/2009 in which written submissions were filed by the Respondent. By order dated 1.4.2010, the Writ Petition No. 6129 of 2009 has been allowed to be converted in a Civil Revision Application. 4. Thereafter on 25th October, 2010, learned single Judge has passed the following order in CRA No. 262 of 2010: 1 By this revision application under Section 115 of the Code of Civil Procedure, 1908 the revision applicants who are defendants in a suit filed by the 1st respondent have challenged the order dated 18th December, 2007 passed by the learned Judge of the Court of Small Causes. By the impugned order, the application made by the revision applicants for rejection of the plaint under Rule 11(d) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of the Code of Civil Procedure 1906 relates to immovable property held otherwise than for the purposes of the Diplomatic Mission of the Czech Republic as is made clear by the Diplomatic Relations (Vienna Convention) Act, 1972. This certificate is issued under Section 9 of the Diplomatic Relations (Vienna Convention) Act, 1972. (H.R. Singh) Deputy Chief of Protocol (F). 7. It is clear that this certificate has been issued after passing of the impugned Judgment. Section 9 of the said Act reads thus : 9. Evidence.--If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act, a certificate issued by or under the authority of the Secretary to the Government of India in the Ministry of External Affairs stating any fact relating to that question shall be conclusive evidence of that fact. 8. Article 1, Article 22, Article 30 and Article 31 of the Vienna Convention and Diplomatic Relations, 1961 which have the force of law being part of the Schedule of the Diplomatic Relations (Vienna Convention) Act, 1972 (Act No. 43 of 1972 ) read thus : Article 1 For the purpose of the present Convention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of : (a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. 2. A diplomatic agent is not obliged to give evidence as a witness. 3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. 4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. 9. Written su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Order 7 Rule 11 of the Code. 12. Mr. S.K. Sen advanced the following submissions. (a) The Defendant Nos. 1 and 2 are impleaded in their official capacity whereas the Defendant No. 3 is a Consulate. In plaint paragraph-16, the Plaintiffs have claimed tenancy right as against the Defendant No. 3 Consulate and paragraphs 15 and 16 of the plaint claim wrongful ouster/dispossession. (b) Relying on Article 1(e) of the Vienna Convention it was submitted that the term of diplomatic agent includes head of mission or a member of diplomatic staff. Article 31(1)(c) is an exception. Therefore Suit can be filed only against a diplomatic agent i.e. head of a mission or any one who carries out business or profession outside their official capacity. Since this was not the case in hand, the Suit against the Defendant Nos. 1 and 2 was not maintainable. (c) In so far as the Defendant No. 3 is concerned, the Suit was not tenable since there is no legal entity like Defendant No. 3 which is shown as the Consulate General of the Czech Republic. (d) There was no pleading in the plaint against the Defendant Nos. 1 and 2 as to their commercial activities and hence the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is solely in the hands of the executive. Examples of facts of state are : (1) whether a state of war exists between Her Majesty and another state, and if so, when it began; (2) whether a state of war exists between other states; (3) whether a particular territory is hostile, or foreign, or within the boundaries of a particular state; (4) whether the Crown claims that a place is within its dominions; (5) whether British jurisdiction exists in any particular foreign place; (6) whether and when a particular government is recognised as the government of an independent sovereign state; (7) the status of property which is the subject of claims by a foreign state to immunity; (8) the status of a person claiming immunity from the jurisdiction on the ground of his diplomatic status; and (9) the status of British and allied armed forces. The court will take notice of such facts of state, for this purpose, in any case of uncertainty, will seek information from the executive, and the information received is conclusive, except in cases where what is involved is the construction of some term in a commercial document, or an Act of Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sive proof. Statutes may use the expression 'conclusive proof' where the object is to make a fact non-justiciable. But the legislature may use some other expression such as 'conclusive evidence' for achieving the same result. There is thus no difference between the effect of the expression conclusive evidence' from that of 'conclusive proof', the aim of both being to give finality to the establishment of the existence of a fact from the proof of another. Mr. Sen therefore submitted that the Certificate issued by the Union of India is non-justiciable and no Court can question the validity of the said certificate and no further enquiry is permissible at all. He submitted that in view of the aforesaid Judgment of the Constitution Bench even the Supreme Court of India will not have any jurisdiction to look into the correctness or otherwise of the said Certificate or go into the question whether the certificate is validly issued or not and in short the entire certificate is completely beyond the purview of any judicial enquiry from any Court. (j) It was further submitted that section 86 of the Code deals with a foreign State whereas 1972 Act deals o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it must be dismissed. It was urged that the wrongful dispossession/ouster is an integral part of the cause of action which is not pleaded to be a commercial activity and hence applying the test laid down by Halsbury as to what constitute Fact of State ; this matter must be considered to be a matter between 2 sovereigns namely Czech Republic and Union of India and this relationship is not at all justiciable, since the legislative intent to make it non-justiciable is clear from the section 9 of the 1972 Act. (n) Mr. Sen ultimately relied upon the Judgment of the Supreme Court in the case of Ms. Kanta Udharam Jagasia v/s. C.K.S. Rao AIR 1998 SC 569 and by relying on paragraph-18 Mr. Sen submitted that section 9 of 1972 Act in fact stands on a higher footing than section 13(a)(1) of the Bombay Rent Act, 1947 and it is impermissible to go beyond the certificate issued by the Central Government under section 9. 13. Mr. Khambata, learned Additional Solicitor General appearing for the Union of India as an Intervenor advanced following submissions : (a) Though the certificate under Section 9 of the 1972 Act has been issued on 16/9/2009 and has been produced in the present proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port Corporation Anr. vs. Bal Mukund Bairwa (2009) 4 SC 299, it was submitted that under section 9 every civil action can be instituted in Civil Court and the ouster of the jurisdiction of the Civil Court has to be either an express ouster or an implied bar. The 1972 Act which is sought to be relied upon as an express bar to the jurisdiction of the Civil Court nowhere contains any such express bar. (b) Relying on Judgment of the Supreme Court in Krishna Ram Mahale v/s. Mrs. Shobha Venkat Rao AIR 1989 SC 2097 it was submitted that in India dispossession of any person without following the process prescribed by law is a serious action and no immunity of whatsoever nature can be pleaded as a defence against an action of unlawful dispossession. (c) Relying on the judgment of the Supreme Court in the case of Kamala and others v/s. K.T. Eshwarya Sa ors. 2008 (12) SCC 661 it was submitted that Order 7 Rule 11(d) of the Code has limited application and for its applicability it must be shown that the Suit is barred under any law and such a conclusion can be drawn only from the averments made in the plaint. For the purpose of applicability of Order 7 Rule 11(d) only the avermen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns carved out under Article 31. The certificate issued under section 9 is only an evidence and does not create a bar in any manner. (h) Relying on the Judgment of the learned Single Judge dealing with a situation prior to enactment of 1972 Act in M/s Earth Builders Bombay v/s. State of Maharashtra ors. AIR 1997 Bom 148 (Coram : A.P. Shah, J) it was submitted that immunity contemplated by Article 31 is an absolute immunity. The same view is also taken by learned Single Judge of the Delhi High Court in the case of Rani Pushpa Kumari Devi(supra) and the Division Bench Judgment of the Delhi High Court in the case of Syrian Arab Republic vs. A.K. Jajodia, which has upheld the Judgment of the learned Single Judge. It was submitted that the immunity is only for certain specific purposes. (i) Relying upon the judgment of the Division Bench of the Calcutta High Court in Union of India and Anr. v/s. Bilas Chand Jain The Socialist Republic of Romania (2001) 3 CAL 352 (HC) , it was submitted that there was no need to challenge the certificate under section 9 as the same was never produced either before the Trial Court or the Appellate Court and in fact did not exist as the same has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellate Court on that ground and his submissions essentially centered around the certificate issued by the Central Government under Section 9 of the 1972 Act which is admittedly issued after filing of the present Petition. In such situation, the moot question arises as to whether this Court should consider the legal effect of such certificate produced for the first time in this court and set aside the order of the Appellate Bench and dismiss the Suit as suggested by Mr. Sen or whether this Court should ignore the said certificate at this stage and leave it open to the parties to agitate their respective contentions before the Trial Court. 19. Accepting the submissions of Mr. Sen that the certificate can be looked into for the first time in this Court is fraught with risk. If the further submission of Mr. Sen to the effect that the certificate is conclusive, final and binding in all respects and hence, the Suit cannot proceed further and must be dismissed is to be accepted or rejected at this stage, that would deprive either the Plaintiff or the Defendant of an important right of an Appeal. On the other hand, in case the Defendant is granted liberty to produce the certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be used by outsider and such outsider may be paying certain rent/licence fee/compensation to the Foreign Mission. In such situation, the activity of permitting such outsider to use the premises would qualify to be an incidental activity in aid of and for the benefit of the principal activity of the Foreign Mission. In such a situation, the agent of the Foreign Mission will certainly enjoy the immunity. However, there may be another case where an outsider may have been inducted for monetary consideration by permitting such outsider to use the premises of the Foreign Mission for conducting an activity completely unconnected with the Sovereign functions of a Foreign Nation. In such a situation, no immunity would be available and such a case will be governed by Sub-Article C of Article 31(1) of the Schedule to the 1972 Act. It is therefore unsafe to lay down any straight jacket formula for arriving at a conclusion that any activity of a Foreign Mission invariably enjoys immunity. Reliance placed by Mr. Thorat on the Judgment of the learned Single Judge of this Court (A.P. Shah, J), as also the Judgment of the learned Single Judge and Division Bench of the Delhi High Court is apt a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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