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The Code of Civil Procedure allows the institution of suits for infringement of any legal right or rights even by and against aliens, foreign rulers and ambassadors. This article shall analyse the concept of suits filed by aliens, by or against foreign rulers and ambassadors and the procedure to be followed under the Code.
Introduction
The Code of Civil Procedure, 1908 regulates human activities within the territory of India. It means that if the cause of action arises in India, the CPC shall regulate it. The code nowhere mentions that the plaintiff or defendant has to be an Indian Citizen for the Code to apply. The only requirement is that the cause of action must arise in India.
Now, imagine a situation where X is a rice trader in Chennai who is extremely popular for his quality of rice in Southern India and some parts of Sri Lanka. Y, who has retail business in rice enters into an agreement with X for sale of rice. After the payment of advance money, X denied the contract. Here, Y can sue X in Indian courts since the cause of action arose in India even if Y is an alien to India.
These procedures for the suit by aliens and foreign government, etc. are dealt with under Part IV of the Code. Part IV can be divided into three parts for the purpose of brevity:
- Suit by Aliens
- Suit by and against Foreign States
- Suits by and against Foreign Rules and Ambassadors.
The article is accordingly divided into three parts, each part dealing with one aspect of suit.
I. Suit by Aliens
Section 83 of the CPC deals with the aspects and procedures for suits filed by aliens. The term alien is not defined either under the Section or anywhere under the code. However, in general, a person is alien to a country if s/he is not a citizen of that country and is residing in that country either for a certain purpose or as a refugee. It means any foreign citizen who has taken shelter in any place in India is called an alien.
Under Section 83, an alien has been classified into alien friends and alien enemies residing in India and alien enemies residing outside India. Section 83 goes to explain what is an alien enemy residing outside India but the other two are left for interpretation.
According to the explanation to Section 83, if a person resides and carries on business in a foreign country which is at war or in a situation of conflict that may result in war, such persons are called alien enemies residing in foreign countries. Further, it is vital that the person carries on business in the enemy country without license and permission from the Central government.
Now, from this explanation, it is lenient to define the other two. Alien enemy residing in India is a person who resides and carries on business in India either with the license or without the license from the central government but is a citizen of a foreign country with which India is at war or in a situation of war.
Similarly, an alien friend is a person residing and carrying on business in India and is a citizen of a foreign country with which India is an ally or in friendly relations.
According to Section 83, an alien friend and an alien enemy residing and carrying on business in India with the license from the authorities shall have the right to sue in Indian courts for any infringement of rights.
Notwithstanding any infringement of rights, an alien enemy residing and carrying on business in India without permission and an alien enemy residing and carrying on business outside India shall not have the right to sue in Indian courts. The sine qua non for exercising the right to sue by aliens is that the court must be competent to try the case. It must have the requisite territorial and pecuniary jurisdiction.
II. Suits By and Against Foreign States
To understand this concept, let us take the case of LICRA v. Yahoo Inc.[1] In this case, Yahoo Inc. was selling Nazi memorabilia on its online shopping website. The products were banned to be sold in France and Yahoo France had already removed all such products from its website.
However, orders were placed and memorabilia were purchased from the Yahoo Inc. (Yahoo in US) by people of France. Against this action, France filed a suit in the US circuit court for an order of permanent injunction against Yahoo selling memorabilia in France and for damages.
This is an example of a suit by a foreign State which is filed for any act done against the State as a whole or any of its people.
In India, Section 84 of the CPC allows a foreign State to sue in Indian courts and Section 86 allows any entity to sue a foreign State in Indian courts.
Similar to the provisions related to suit by aliens, a suit by or against the foreign state can only be filed before a court of competent jurisdiction territorially and pecuniary. A suit by a foreign State can be filed for the following purposes:
- Enforce the Rights of Ruler: A suit can be filed by a foreign State to enforce the private rights of a ruler of the foreign State which are bestowed upon him by the virtue of his post. It means that if the ruler of the foreign State has created any right in his favour by any agreement or by law, and such right is infringed by the act of an Indian citizen or the State, a suit can be filed to restore the right of the ruler.
- Enforce the Rights of Public Officers: The doctrine of parens patriae holds the State in the position of a parent of subjects under it. Thus, it is the responsibility of the State to ensure that the rights of its officers are not violated or infringed by actions of any other State or its citizens. Hence, Section 84 vests power in the hands of the foreign State to sue in Indian courts to enforce the rights vested in their officers.
III. Suits By and Against Foreign Rulers
Sections 85 and 86 of the Code deal with the procedure for the institution of suits by foreign rulers, ambassadors, envoys, etc. Section 85 explains the process of representation of foreign rulers and foreign States while Section 86 deals with procedure and requirements to sue a foreign ruler, ambassador, etc.
It is significant to note that when the question is about a suit filed by or against a foreign ruler, it cannot be expected that the ruler himself/herself will file the suit or be present before the court at all the hearings. Therefore, there is a need for a provision to deal with these aspects and to ensure that there is a fair and reasonable trial.
- Representation of Foreign Rulers
Section 86 empowers the Central government to appoint any person (having sufficient legal knowledge) to represent the foreign ruler in a case where the suit is filed by the foreign ruler. The government is not required to act voluntarily but the suing party, i.e. the foreign State or the foreign ruler shall request the central government to appoint a lawyer for his/her representation in the court. The request may be made by a foreign ruler himself or any person authorized by him for that purpose.
Any person who is appointed as a lawyer for such foreign ruler must be deemed to be a recognized agent of that person and he shall be entitled to take all the decisions beneficial for the ruler with his consent and all such decisions shall be valid. The person shall have the right to appear and sign applications on behalf of the foreign ruler under the CPC and such acts shall be deemed to be legal and valid.
The government may appoint the person to represent the foreign ruler for one particular suit or several suits or all the suits filed by such ruler or public officer within a specified period of time. the request should be promptly made by the ruler and it should be mentioned whether the representation is required for one suit or several suits.
Section 85(3) also allows the appointed representative to authorize or appoint someone else to act on his behalf and exercise all these powers if the person appointed by the Central Government is himself a party to the suit filed by the foreign ruler.
- Procedure to Sue
The first vital requirement under Section 86 which is required under all suits filed by anyone is that the suit must be filed before a competent authority, i.e. a civil court having requisite territorial, pecuniary and subject-matter jurisdiction. The procedure enshrined under Section 86 applies to any suit filed against a Foreign State, foreign rulers, ambassadors of different countries and envoys.
The procedure can be explained in the following points:
- The central government must give written consent under the hands of the Secretary to the government to sue the foreign State, ruler, etc.
- If the suit is filed by a tenant who is in possession of an immovable property owned by a foreign State, the consent by the Central Government is not required.
- The central government can provide its consent for one suit or several suits as the case may be.
- The central government must ensure that either of the four circumstances exists before instituting any suit against the foreign ruler. (a) That the foreign ruler has already instituted a suit against the plaintiff, or (b) That such State or ruler carries on trade within the local jurisdiction of the court, or (c) the immovable property must be the subject matter of the suit and not the charge on it and such property should be situated within the local limits of the jurisdiction of the court, or (d) That the foreign ruler, etc. has deliberately waived the privileges of non-arrest under Section 86 (5).
- If a decree has been pronounced by the court in favour of the plaintiff and against the foreign State or its ruler, it cannot be executed without the explicit consent of the Centre certified by the Secretary to the central government.
The above provisions apply equally to the Foreign rulers, ambassadors and envoys or any other public officer who belongs to a foreign country and has a cause of action either in favour or against him India.
References
- Suits by Aliens and by or Against Rulers, Ambassadors, Envoys, etc., Chapter 7, Civil Procedure Code by Delhi High Court available at Here.
- Justice M.L. Singhal et al, Civil Procedure Code, Vol. 3.
- K. Takwani, Civil Procedure, (8th ed. 2018).
[1] LICRA v. Yahoo Inc., 433 F.3d 1199 (9th Cir. 2006).
