Delhi District Court
Sh. Om Prakash Baldev Kishan vs Sh. P. Thandon on 16 December, 2010
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IN THE COURT OF SH. RAJENDER KUMAR SHASTRI
ADJ06(CENTRAL) DELHI.
CS : 117/2010
SH. OM PRAKASH BALDEV KISHAN
VERSUS
SH. P. THANDON
Present: None for plaintiff.
Sh. Bhaskar Tiwari, advocate for defendants.
ORDER
By this order, I dispose of two applications filed on behalf of defendants no. 2 and 3, one u/o. 7 Rule 11 (b) & (c) and other u/o. 7 Rule 11 (d) r/w Section 151 CPC.
Present is a suit seeking a decree of possession of property bearing no. 10, Ring Road, Lajpat Nagar, New Delhi (hereinafter referred as suit property) and damages for use and occupation.
As per its case, the plaintiff is a partnership firm, registered under The Indian Partnership Act, being represented by Sh. Baldev Kishan Abbi, one of its partners. Same is exclusive owner of suit property, having obtained on lease from the President of India. In year 1973, Mr. P. Thandon (defendant no. 1) a representative of His Holiness Dalai Lama (defendant no. 2) approached the plaintiff for purchase of suit property. The plaintiff agreed to sell it for a total consideration of Rs. 6,00,000/. An agreement in this regard was executed between the parties on 9.11.1973. A sum of Rs. 4,00,000/ was paid to the plaintiff as part payment. The possession of suit property was handed over to the defendants at the time of agreement.
Contending that necessary permission to sell property in India to a foreigner could not be received and hence, agreement between the parties got frustrated, the plaintiff has sought a decree of possession as well as damages for use and occupation from the defendants, as described above.
During proceedings of this case, applications in hands were filed on behalf of defendants no. 2 and 3, seeking rejection of plaint.
It is submitted by Ld. counsel for applicants / defendants that His Holiness Dalai Lama has been accorded status of the Head of State of Tibet (in exile) and hence, being a foreign ruler, same could not have been sued, without CS : 117/2010 1 2 consent of Central Government in writing, in view of Section 86 of CPC. Citing said provision, Ld. counsel requests to reject the plaint.
Section 86 (1) of The Code of Civil Procedure prescribes as follow "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".
As per ld. counsel for applicants, His Holiness Dalai Lama has got a status of Head of State, a letter issued by Ministry of External Affairs, New Delhi, in this regard was put on file of this case but said original letter got misplaced, when this case was pending for trial before The High Court of Delhi. A photocopy of same has been put on record.
True, there is a document on file appearing to be a copy of letter no. EV/327/2/85 issued from the office of Ministry of External Affairs, New Delhi dated October 12, 1988. If same is belived, His Holiness Dalai Lama has seen accorded the status of a Head of State.
If para no. 28 of the plaint is taken as true, the plaintiff requested the Ministry of External Affairs, Government of India, New Delhi, by writing a letter dated 18.2.1984, for permission to institute the suit against the defendants. It is not the case of plaintiff even that the latter actually received any such permission from the government rather the plaintiff claims it a deemed permission, when no reply is received after sending said letter.
From the very wording of Section 86 (1) CPC, as discussed above, it is clear that there should be a consent in writing. Simply because no reply is received from the government, it can not be presumed that the Central Government had consented for such suit.
In the absence of written consent as required u/s 86 CPC, the defendants i.e. His Holiness Dalai Lama, representative of same Mr. P. Thandon and the Bureau of His Holiness Dalai Lama could have been sued. Plaint is thus rejected.
File be consigned to record room.
Announced in open court. (Rajender Kumar Shastri)
on 16.12.2010 ADJ06(Central) / Delhi
CS : 117/2010 2
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SH. OM PRAKASH BALDEV KISHAN VERSUS SH. P. THANDON 16.12.2010 Present: None for plaintiff.
Sh. Bhaskar Tiwari, advocate for defendants.
Vide separate order, two applications filed on behalf of defendants no. 2 and 3, one u/o. 7 Rule 11 (b) & (c) and other u/o. 7 Rule 11 (d) r/w Section 151 CPC are disposed.
File be consigned to record room.
(Rajender Kumar Shastri) ADJ06(Central) / Delhi CS : 117/2010 3