IN THE HIGH COURT OF DELHI AT NEW DELHI

 

SUBJECT: SUIT FOR POSSESSION

 

Date of  decision :  December 9, 2004

 

R.F.A.(OS) No.30/2003

 

 

Syriyan Arab Republic                                                 ......... Appellant

                                          Through :       Mr.M. Wadhwani, Advocate.

 

Versus

 

Sh. A.K. Jajodia S/o Sh. K K Jajodia                          ......   Respondent

                                          Through :       Mr.Sandeep Sethi, Sr. Advocate

with Mr. Kamal Mehta and

Mr. Pawan Bindra, Advocates.

 

CORAM :-

 

HON'BLE  MR.JUSTICE VIJENDER JAIN

HON'BLE  MR.JUSTICE ANIL KUMAR

 

VIJENDER JAIN, J. (ORAL)

 

1.                  This appeal has been filed by Syrian Arab Republic aggrieved by the judgment and decree of possession passed against them by the learned single Judge.  The suit for possession and recovery of damages for use and occupations of the premises No.15, Palam Marg, Vasant Vihar, New Delhi was filed by Rani Pushpa Kumari Devi, wife of late Dr. Nagendra Singh claiming herself as owner landlady of the aforesaid premises.  The suit property was let out to the appellant under separate lease agreements.    From the pleadings of the parties, the following issues were framed on 29th January, 1996 :-

 

1.Whether the plaintiff has no locus standi to file the present suit? OPD

 

2.Whether the tenancy of the defendant has not been terminated in accordance with Law? OPD

 

3.Is the notice dated 27th November, 1990 not valid? OPD

 

4.Whether the plaintiffs has obtained valid permission under section 86 of Code of Civil Procedure to file the present suit? OPP

 

5.Whether the plaintiff is entitled to damages/mesne profits?  If so, from which date and what rate?  OPD

 

6.Relief."

 

2.                  On all the issues, findings were recorded in the impugned judgment against the appellant.

 

3.                  On issue no.1, the Court held that the present respondent Mr.A.K. Jajodia, stepped into the shoes of Rani Pushpa Kumari Devi by virtue of the will in his favour executed by Rani Pushpa Kumari Devi. On the basis of the will a Letters of Administration was granted in his favour. The plea that after the demise of Dr. Nagendra Singh, the property was not owned solely by his widow Rani Pushpa Kumari Devi and half portion was owned by Jagat Mata Datri Mata was also not accepted by the learned single Judge and the issue no.1 was decided in favour of the respondent.

 

4.                  With regard to issue Nos.2 and 3, the plea of the appellant that Rani Pushpa Kumari Devi had no authority to terminate the tenancy in relation to the suit premises, was not accepted by the learned single Judge. The plea of the appellant against the validity of the notice to quit was also not accepted and both the issues were decided in favour of the respondent and against the appellant. 

 

5.                  Regarding issue no.4, with regard to whether the plaintiff has obtained valid permission under section 86 of Code of Civil Procedure to file the present suit, this is how the learned single Judge has dealt in his judgment:- 

 

"The defendant failed to vacate the suit  premises on or before 1st January, 1990 (1991) as requested by the Ministry of External Affairs vide their letter dated 19.11.1990 (Ex. PW-2/2).  Ultimately requisite consent under Section 86(1) of the code to sue the defendant for recovery of possession of suit premises was accorded in favour of Rani Pushpa Kumari Devi vide letter dated 1st January, 1991 (Ex.PW-2/4).  Rani Pushpa Kumari Devi thereafter filed the present suit." 

 

6.                  As a matter of fact, the appellant in the suit questioned the validity of the consent so granted under Section 86 of the Code of Civil Procedure on the plea that the same was illegal and arbitrary and the same was granted without application of mind. 

 

7.                  The appellant also raised a plea on the maintainability of the  suit on the ground that the appellant being a body of diplomatic representative, headed by an Ambassador, could not be sued in its own name and since the Government of Syrian Arab Republic has not been made a party, the suit is bad for non joinder of necessary parties. This plea was not concerned with validity part of the consent granted under Section 86(1) of the Code of Civil Procedure. Though no issue was framed on this plea of the appellant, however, the Learned Single Judge also dealt with the said plea.

 

8.                    While dealing with the consent under Section 86(1) of the Code and the plea relating to the alleged immunity available to a foreign State under Diplomatic Relations (Vienna Convention) Act, 1972.  Section 86(1) of the Code, it was held that consent of the Central Government in relation to a suit to be brought against a foreign State or in respect of any Ruler of a foreign State.  Consent under Section 86(1) of the Code was pre-requisite.  As a matter of fact, while arguing the appeal, Mr. Wadhwani, learned counsel appearing for the appellant, has contended that the effect of cumulative reading of the provisions of The Diplomatic Relations (Vienna Convention) Act, 1972 particularly of Article 1, Article 22, Article 30 and Article 31, no suit could have been filed and only forum available with the respondent is to approach the Ministry of External Affairs.  The argument is fallacious as that is not the intention of providing immunity under The Diplomatic Relations (Vienna Convention) Act, 1972. 

 

9.                  The learned single Judge relying on Mirza Ali Akbar Kashani Vs. United Arab Republic & Anorther, AIR 1966 SC 230;  came to the conclusion that sanction under Section 86  of the Code of Civil Procedure (Ex.PW-2/4) accorded by the Central Government which was for institution of a suit against the Embassy of Syria Arab Republic, New Delhi instead in the name of Syrian Arab Republic does not make suit bad for non joinder of parties.  Reliance was also placed by the learned single judge on the decision Harbhajan Singh Dhalla Vs. Union of India, 1986(4) SCC 678 and Shanti Prashad Aggarwal & others Vs. Union of India & others, AIR 1991 SC 814.  It was observed that Ex.PW-2/4 consent was accorded in pursuance of original landlord's application. The original landlord had approached the Central Government on the subject by her letter dated 20th August, 1990. The learned single Judge inferred that all material relevant for consideration while granting consent under Section 86(1) of the Code of Civil Procedure appeared to have been made available with the Central Government and the same was taken into consideration before granting  sanction under section 86(1) of the Code of Civil Procedure.

 

10.                It has to be noted that while writing to the appellant, the Central Government vide its letter dated 9th November, 1990 (Ex.PW-2/2) clearly indicated that in the event of appellant's failure to vacate the premises, it would not be possible for it to deny grant of permission to sue the appellant to enable the landlady to get her house vacated.  The appellant on receipt of the said letter only conveyed the Ministry of External Affairs vide its letter dated 7th December, 1990 (Ex.PW-2/3) that efforts were on to arrange an alternative accommodation and sought to have assured the Ministry that the premises would be vacated as soon as a suitable accommodation was available.   This happened in the year 1990.  Now we are at the fag end of 2004.   The appellant has no respect for his own words nor have acted on his  representations to the Ministry of External Affairs.   

 

11.                The learned single Judge has dealt with this aspect of the matter in the impugned order at page 36 of the paper book as under:-

 

"Beyond this, the defendant did not think of contesting the original plaintiffs application seeking consent of the Central Government under Section 86(1) of the Code.  Though no reason as such for grant of sanction to sue the defendant is to be noticed in the consent       Ex.PW-2/4 but the same would appear to have been accorded in the light of material that there were made available to the Central Government.  There would thus be no basis to justify the defendant plea that the consent was given arbitrarily and without application of mind." 

 

12.                The plea of the appellant for enquiry into facts leading to issue of certificate has also been rejected on the ground that no special circumstances has been made out by the appellant to go behind the certificate (Ex.PW 2/4).

 

13.                The learned single Judge had also rightly rejected the plea of the appellant that in view of the immunity available under Diplomatic Relation (Vienna Convention) Act, 1972, the suit against the appellant was not maintainable as the appellant is a head of the mission of Syrian Arab Republic and enjoy immunity from civil administrative jurisdiction in terms of Article 31 of the Schedule.  No such plea was raised in the pleadings and was raised by the appellant during the course of final arguments before the learned single Judge.

 

14.                The argument regarding the Diplomatic immunity will not come to the aid of the appellant in the present case as was canvassed by Mr.Wadhwani.  By no stretch of imagination, it can be said that a  representative of Sovereign State who has taken on rent an accommodation from a private individual or a citizen of this country cannot take back his premises so let out either in case of termination of tenancy or in case of bona fide need of such private individual/person.  No immunity, much less Diplomatic immunity, is available to the Chief of the Mission or any other person working in the Mission in the matter which are purely in domain of landlord-tenant relationship. In the instant case especially after their categorical representation to the Ministry that they will vacate the premises.  Inviolability of the premises, of which reference has been made by Mr.Wadhwani, is in relation to the act of the receiving State.  Under the Diplomatic Relations (Vienna Convention) Act,1972 there is a sanctity of the premises of that State. Inviolability is in relation to search and seizure and arrest and not in relation to such act by a  foreign mission or its head in relation to matters pertaining to this kind of dispute where sanction has also been granted to sue by the Central Government.  In Mirza Ali Akbar Kashani Vs.United Arab Republic & Anorther, (Supra), the Supreme Court laid down as under :-

 

"The effort of the provision of Section 86(1) appears to be that it makes a statutory provision covering a field which would otherwise be covered by the doctrine of immunity under International Law.  It is not disputed that every sovereign State is competent to make its own laws in relation to the right and liabilities of foreign State to be sued within its own municipal courts.  Just as an independent sovereign State may statutorily provide for its own rights and liabilities to sue and be sued, so can it provide for the right and liabilities of foreign States to sue and be sued in its municipal courts. That being so, it would be legitimate to hold that the effect S.86(1) is to be modify to a certain extent the doctrine of immunity recognised by international Law. The section provides that foreign states can be sued within the municipal Courts of India with the consent of Central Government and when such consent is granted as required by S.86(1), it would not be open to a foreign State to rely on doctrine of immunity under international Law, because the municipal Courts in India would be bound by the statutory provisions, such as those contained in the Code of Civil Procedure.  In substance, S.86(1) is not merely procedural; it is the sense a counter-part S.84 Whereas S.84 confers a right on a foreign State to sue, S.86(1) in substance imposes a liability on foreign state to be sued."

 

15.                Therefore, the argument raised by learned counsel for the appellant that Article 31 and/or other Articles of the Schedule of The Diplomatic Relations (Vienna Convention) Act,1972 have application in the facts of this case, has no force taking all these aspects into consideration. The tenancy of the appellant was validly terminated and appellant's continuance in occupation of the suit premises after 31st December, 1990 has been unauthorized as the appellant was not entitled to hold possession of the suit premises beyond 31st December, 1990.  Section 9  of the said act postulates that a certificate issued by or under the authority or Secretary to the Government of India in the Ministry of External Affairs stating any fact relating to question of any privilege or immunity under the Act shall be conclusive evidence of that fact. Consequently all the arguments raised by the appellant regarding the certificate issued in favor respondent will negate the pleas of the appellant. 

 

16.                The similar question arose in another case pertaining to the Lebanon Embassy in R.F.A.No.692/1999 which was decided by a Division Bench of this Court on 31st January, 2001 where the Court also considered similar arguments on Article 31 of the schedule of the Diplomatic Relations (Vienna Conventions) Act, 1972. Against the order passed by the Division Bench of this Court in the aforesaid case, the Embassy of Lebanon preferred a Special Leave Petition in the Supreme Court which was also dismissed.

 

17.                The Central Government satisfied itself before granting permission/sanction under Section 86 of the Code of Civil Procedure. The appellant on receipt of this permission in favor of the landlord vide his letter dated 7th December, 1990 (Ex.PW-2/3) represented that the efforts are being made to arrange an alternative accommodation and assured the Ministry that the premises will be vacated. Syrian Arab Republic has been sued in the name of its embassy for recovery of possession of the suit premises and therefore, Article 31 of the schedule of the Act will not have any relevance.  Every sovereign State is competent to make its own laws in relations to the right and liabilities of foreign states to be sued within its own municipal courts. The effect of Section 86 is to modify to certain extent doctrine of immunity. When consent has been granted by the Central Government, it would not be open to appellant to rely on doctrine of immunity.

 

18.                Therefore, the appellant must vacate and hand over vacant and peaceful possession of the suit premises to the respondent and can not claim immunity under any provisions of the Diplomatic Relations (Vienna Convention) Act, 1972 in the facts and circumstances of the case. Almost 15 years have passed when the tenancy was terminated. After the appellant failed to hand over the possession of the premises, the suit for recovery of possession was filed and the suit was decreed with costs.  Thirty days time was granted to the appellant to hand over the vacant possession of the premises to the respondent from the date of the judgment.  That judgment by the learned single Judge was rendered on 31st March, 2003 giving thirty days time to the appellant to vacate the premises. Time as given by the learned single Judge has also expired. The decree for possession passed in favor of the respondent and against the appellant was not stayed during the appeal.  But we are told that possession is still with the appellant.

 

19.                The appeal was filed by the appellant under Section 96 of the code of civil procedure.  The appellant was duty bound to file the certified copy of the judgment and decree.  The appellant had filed a true copy of the judgment.  Copy of the decree was not filed nor exemption from filing the copy and considering operative part of the judgment for the purposes of appeal was sought.  Exemption was sought to file the certified copy of the judgment which have also not been filed.  The appeal is liable to be dismissed on this ground also.

 

20.                We, therefore, dismiss this appeal and uphold the judgment and decree passed by the learned single Judge. The appellant shall be liable to vacate the premises within fifteen days and hand over the vacant possession of the premises to the respondent.  In case the premises is not vacated within fifteen days, the respondent shall be entitled to execute the decree for possession in accordance with law by obtaining warrants of possession of Executing Court.  It was contended by Mr.Wadhwani that for that purpose the respondent should seek consent of the Ministry of External Affairs.  We are of considered opinion that once consent has been given under Section 86 of the Code for institution of proceedings for eviction, there is no further necessity or requirement of law to again go back to Ministry of External Affairs for this purpose under Section 86 of the Code as the consent under Section 86 of the Code of Civil Procedure has already been granted by the Central Government.

 

21.                Consequent the appeal stands dismissed and the parties are left  to bear their own costs.

 

22.                A copy of this order be given dasti to counsel for the parties under the signatures of the Court Master of this Court.

 

 

                                                                                           Vijender Jain, J.

 

 

December 9, 2004                                                                     Anil Kumar, J.