Case Note & Summary
The case involves a Civil Revision Application filed by the Consulate General of the Czech Republic and the Consulate itself (original defendants) against M/s. Khemka Exports Private Ltd. (original plaintiff). The plaintiff had filed R.A.D. Suit No. 1913 of 2007 in the Court of Small Causes at Bombay seeking a declaration of tenancy under the Maharashtra Rent Control Act, 1999 and consequential reliefs of mandatory and permanent injunction. The trial court rejected the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) on the ground that the suit was barred by Section 86 CPC, which requires prior consent of the Central Government to sue a foreign state. The plaintiff appealed, and the appellate court allowed the appeal, setting aside the rejection. The defendants then filed this revision application. The High Court examined the scope of Section 86 CPC, which provides that no suit shall be instituted against a foreign state without the consent of the Central Government. The court noted that the consulate is a 'foreign state' for the purposes of Section 86. The plaintiff argued that the consulate had waived immunity by entering into a lease agreement and that the Rent Act applied. The court rejected these arguments, holding that the requirement of prior consent is mandatory and cannot be waived by conduct. The court also held that the Rent Act does not override Section 86 CPC. The High Court allowed the revision application, set aside the appellate order, and restored the trial court's order rejecting the plaint.
Headnote
A) Civil Procedure - Sovereign Immunity - Section 86 CPC - Bar on Suits Against Foreign States - The suit for declaration of tenancy and injunction against the Consulate General of the Czech Republic was held to be barred under Section 86 of the Code of Civil Procedure, 1908, as the plaintiff did not obtain prior consent of the Central Government. The court held that the consulate is a 'foreign state' within the meaning of Section 86 and the bar applies irrespective of the nature of the suit. (Paras 3-10) B) Civil Procedure - Waiver of Immunity - Section 86 CPC - Lease Agreement - The court held that entering into a lease agreement does not constitute waiver of sovereign immunity under Section 86 CPC. The requirement of prior consent of the Central Government is mandatory and cannot be waived by the foreign state's conduct. (Paras 11-15) C) Rent Control - Applicability to Foreign States - Maharashtra Rent Control Act, 1999 - The court held that the provisions of the Maharashtra Rent Control Act, 1999 cannot override the bar under Section 86 CPC. A foreign state cannot be sued for tenancy rights without prior consent of the Central Government. (Paras 16-20)
Issue of Consideration
Whether a suit for declaration of tenancy and injunction against a foreign consulate is barred under Section 86 of the Code of Civil Procedure, 1908 for want of prior consent of the Central Government, and whether the consulate has waived its immunity by entering into a lease agreement.
Final Decision
The High Court allowed the Civil Revision Application, set aside the appellate order dated 6.5.2009, and restored the trial court's order dated 18.12.2007 rejecting the plaint under Order VII Rule 11 CPC.
Law Points
- Sovereign immunity
- Section 86 CPC
- waiver of immunity
- Order VII Rule 11 CPC
- foreign state
- consulate
- tenancy
- Maharashtra Rent Control Act
- 1999
