Document Fragment View

Matching Fragments

The operative part of the Order makes it clear that what is dismissed is the entire Notice of Motion, which would include both prayers (a) and (b). It is true, as pointed out by Mr. Nariman, that if the said four issues were to be tried either as issues in the suit itself or even as preliminary issues, a regular hearing would have to take place and it would have been open to the parties to lead such evidence as they wanted to. But so far as the first two of the said four issues are concerned, both prayers, prayer (b) as well as prayer (a), concern the same (relief) (sic). Prayer (b) was merely for a direction that the first two issues be tried as preliminary issues and for fixing a date of hearing for that purpose. But, as seen earlier, prayer (a) is in a sense, totally different. Prayer (a) does not seek the decision of the first two issues as preliminary issues, but invites the Court in limine to dismiss the suit at the stage of the hearing of the Notice of Motion itself without the raising of any issues or trying any of them as a preliminary issue. Now the first ground stated by the learned Judge in support of his order is that the Notice of Motion was barred by the principles of res judicata in view of the orders made on the Chamber Summons and in the appeal against that Order. An analysis of these two orders on the Chamber Summons shows that the second defendant's application for trial of the four issues as preliminary issues was rejected. Prayer (b) sought to re-agitate for the same relief and it was held to be barred by res judicata. Prayer (a), however, was different. The earlier decision on the Chamber Summons was a refusal to try these issues as preliminary issues. It did not deal with the point as to whether the suit should be dismissed in limine. As a matter of fact no such application had been made. That being the position, it would be erroneous to say that prayer (a) was barred by the principles of res judicata. Prayer (a) had therefore to be disposed of on its own merits. The result, however, of the dismissal of prayer (a) of the Notice of Motion now is that the application has been heard on the Notice of Motion and disposed of. Even if the hearing of the suit proceeds, the said issues Nos. 1 and 2 will be deemed to have been disposed of on the Notice of Motion itself and will not be allowed to be re-agitated at the hearing. The effect of the order dismissing prayer (a) is therefore, that so far as the suit is concerned, the claim of the second defendant to immunity as a foreign Sovereign State has been finally disposed of and the only way the second defendant can agitate the same is by way of an appeal and certainly not in the suit itself.