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1. This appeal No. 156 of 1964 is from an order of Mallick, J. dated the 26th May 1964 refusing an application for trial of certain issues arising in the suit as preliminary issues and for examination of certain witnesses de bene esse in respect of such preliminary issues.

2. The suit out of which the application for trial of issues as preliminary issues arises was instituted by the plaintiffs-respondents on or about the 30th October 1961 for recovery of a sum of Rs. 8,42,500 for damages, interest and costs against the appellant Royal Nepal Airline Corporation. The cause of action as stated in the plaint is in substance as follows:-

6. On 24th February 1962 on the application of the plaintiffs the defendant was directed to file its affidavit of documents and on the 24th March 1962 the defendant filed its affidavit of documents. On the 30th March 1962 on the application of the defendant the plaintiffs were directed to file their affidavit of documents. On the 14th December 1962 notice was given by the solicitors for the plaintiffs to the solicitors for the defendant informing that the suit would be mentioned on the 17th December 1962 for early hearing. On the 17th December 1962 the solicitors for the defendant requested the plaintiffs' solicitors not to mention the suit as their clients belonged to Nepal. On the 4th January 1963 the suit was mentioned by the plaintiffs and was directed to appear in the list on the 7th January 1963 marked to be mentioned. On the last mentioned date upon the representation made by the defendant's solicitors that inspection of documents was not yet complete, the suit was directed to go out of the list. Thereafter between 12th February 1963 and 2nd January 1.904 the suit was mentioned from time to time and on the last mentioned date it was directed to appear in the list on the 16th January 1964. On the 20th Feb, 1964 a notice of motion was taken out by the Solicitors for the defendant returnable on the 24th February 1964 for an order that (a) the issues as to whether this Court has jurisdiction to entertain and try the suit and whether the suit is maintainable be tried and determined as preliminary issues, (b) directions be given for trial of the said preliminary issues and a special date be fixed for hearing of the said issues and (c) if necessary, the petitioners' witness on the said preliminary issues be examined de bene esse.

40. This decision of the Supreme Court makes it clear that Sections 86 and 87 of the Code provide additional protection or privilege to Rules of foreign States in respect of suits proposed to be instituted against them in the Courts in this country, but this is quite apart from the principles of International Law relating to sovereign immunity based on the absolute independence of a foreign sovereign.

41. The next point which may be taken up for consideration is whether there has been any submission to jurisdiction of this Court or waiver of the immunity which precludes the defendant or the Ambassador from claiming this sovereign immunity. The facts on which reliance is placed on behalf of the plaintiff as indicating that there has been submission to jurisdiction or waiver of the immunity are that after the plaint was filed on the 8th October 1961 the solicitors of the defendant wrote a letter dated the 2nd February 1961 to the solicitors of the plaintiffs intimating that they entered appearance on behalf of the defendant Corporation. Then on the 19th February, 1962 the written statement was filed on behalf of the defendant and there is elaborate pleading in the written statement on the merits of the case. Then on the 24th February, 1962 upon the application ot the plaintiffs an order was made directing the defendant to file its affidavit of documents and on the 24th March 1962 the affidavit of documents was filed on behalf of the defendant. On the 30th March, 1962 upon the application of the defendant the plaintiffs were directed to file affidavit of documents. Then between 14th December 1962 and 2nd January 1964 the suit was mentioned before the learned Judge taking such suit from time to time for adjournment for the purpose of inspection and directions were given for the suit to appear in the list for the purpose of fixing a date and ultimately on the 20th February 1964 notice of motion was taken out by the solicitors of the defendant for trial of certain issues arising on the pleading as preliminary issues and for curtain witnesses on the said preliminary issues being examined de bene esse, It was also suggested that on the 5th February 1964 an application for commission for examination of witnesses in Nepal was taken out on behalf of the defendant but this is disputed by the learned counsel for the defendant and no material has been placed before us to show that any such application for commission had actually been made. But it appears that at the time Mallick, J. had passed the order refusing the application for trial of certain issues as preliminary issues, the parties agreed that an early date should be fixed for the hearing of the suit and so the suit was directed to be placed at the top of the list subject to part-heard on the 16th June 1964 for hearing. It is also submitted on behalf of the plaintiffs that there is no pleading of Section 86 of the Code of Civil Procedure claiming protection under that section and so the presumption is that there has been waiver of the sovereign immunity. But as pointed out already Section 86 of the Code is not to be mixed up with the principle of International Law relating to immunity from the processes of the Courts based on the Independence of the foreign sovereign and absence of pleading of Section 86 does not lead to the conclusion that the immunity available under the principle of International Law has been waived by reason of omission of such pleading. The further question which however arises is whether the other facts already referred to constituted waiver of immunity or submission to jurisdiction.

(b) Directions be given for the trial of the said preliminary issues, and a special date be fixed for the hearing of the said issues:
(c) If necessary, the petitioner's witnesses on the preliminary issues from Nepal be examined de bene esse. The prayers in the application of the ambassador are:
(a) The said suit be dismissed having regard to the facts stated and the sovereign immunity claimed.
(b) If necessary, leave be given to the petitioner on behalf of His Majesty King of Nepal to intervene in this suit for the purpose of claiming Sovereign Immunity.