Suits by Aliens and by or Against Foreign Rulers, Ambassadors and Envoys (Section 83 – 87-B)

Section 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.


Section 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.


Section 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 Ruler 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 recognised agents by whom appearances, acts and applications 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 this section may authorise or appoint any other persons to make appearances and applications and do acts in any such suit or suits as if he were himself a party thereto.


Section 86: Suits against foreign Rulers, Ambassadors and Envoys.—

(1) No foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government:

Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid 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 the foreign State may be sued, but it shall not be given, unless it appears to the Central Government that the foreign State—

(a) has instituted a suit in the Court against the person desiring to sue it, or

(b) by 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 it by this section.

(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—

(a) any Ruler of a foreign State;

(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 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 country as the Central Government may, by general or special order, specify in this behalf, as they apply in relation to a foreign State.

(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;

(c) any High Commissioner of a Commonwealth country;

(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


Section 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.


Section 87-A: 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 recognised 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 recognised by the Central Government;

(b) that a person has or has not been recognised by the Central Government to be the head of a State.


Section 87-B:Application of Sections 85 and 86 to Rulers of former Indian States.—

(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 section;

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

(c) “Ruler”, in relation to a former Indian State, has the same meaning as in Article 363 of the Constitution.


IMPORTANT CASE LAWS

1. A brief interpretation of the sections under this heading

Mirza Ali Akbar Kashani v. United Arab Republic, AIR 1966 SC 230:

16. It is plain that Section 84 empowers a foreign State to sue. In other words, it confers a right on the foreign State to bring a suit, whereas Section 86 imposes a liability or obligation on the Ruler of a foreign State to be sued with the consent of the Central Government. It is remarkable that though the heading of these sections does not in terms refer to foreign States at all, Section 84 in terms empowers a foreign State to bring a suit in a competent court. It is true that too mach emphasis cannot be placed on the significance of the heading of the sections; but, on the other hand, its relevance cannot be disputed; and so, it seems to us that the legislature did not think that the case of a foreign State would not be included under the heading of this group of sections.

17. In this connection, it is necessary to bear in mind that even when the Ruler of a State sues or is sued, the suit has to be in the name of the State; that is the effect of the provision of Section 87, so that it may be legitimate to infer that the effect of reading Sections 84, 86 and 87 together is that a suit would be in the name of the State, whether it is a suit filed by a foreign State under Section 84, or is a suit against the Ruler of a foreign State under Section 86. As a matter of procedure, it would not be permissible to draw a sharp distinction between the Ruler of a foreign State and a foreign State of which he is the Ruler. For the purpose of procedure, in every case the suit has to be in the name of a State. That is another factor which cannot be ignored.


2. Meaning of the phrase ‘private right’ used in Section 84

Mirza Ali Akbar Kashani v. United Arab Republic, AIR 1966 SC 230:

18. ….in regard to the scope of the suit which may be filed by a foreign State under Section 84, the proviso makes it clear that the suit which can be filed by a foreign State must be to enforce a private right vested in the Ruler of such State or in any officer of such State in his public capacity. It will be recalled that Section 431(b) of the Code of 1882 had provided that the object of the suit which could be filed under Section 431 should be to enforce the private rights of the head or of the subjects of the foreign State. It appears that this clause gave rise to some doubt as to whether a suit could be brought by a foreign State in respect of the private rights of the subjects of that State; and in order to remove the said doubt, the Code of 1908 inserted the second proviso to Section 84(1) which took the place of Section 431 of the Code of 1882. This proviso made it clear that the object of litigation by a foreign State cannot be to enforce the right vesting in a subject as such as a private subject; it must be the enforcement of a private right vested in the head of a State or in any officer of such State in his public capacity. In other words, the suit which can be filed under Section 84 and which could have been filed under Section 431 of the Code of 1882, must relate to a private right vested in the head of the State or of the subjects meaning some public officers of the said State. The private right properly so-called of an individual as distinguished from the private right of the State, was never intended to be the subject-matter of a suit by a foreign State under the Code of Civil Procedure at any stage.

19. That takes us to the question as to what is the true meaning of the words “private rights”. In interpreting the words “private rights”, it is necessary to bear in mind the fact that the suit is by a foreign State; and the private rights of the State must, in the context, be distinguished from political rights. The contrast is not between private rights or individual rights as opposed to those of the body politic; the contrast is between private rights of the State as distinguished from its political or territorial rights. It is plain that all rights claimed by a foreign State which are political and territorial in character can be settled under Intenational Law by agreement between one State and another. They cannot be the subject-matter of a suit in the municipal courts of a foreign State. Thus, the private right to which the proviso refers is, on the ultimate analysis, the right vesting in the State; it may vest in the Ruler of a State or in any officer of such State in his public capacity; but it is a right which really and in substance vests in the State. It is in respect of such a right that a foreign State is authorised to bring a suit under Section 84.


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