P (PLP)

TYABJI, C. J.

We have before us two applications under O. XI, r. 12 Civil P. C., in each of which the plaintiff seeks an order `or discovery on oath against the defendant, one in Suit , No. 210 of 1946sagainst the Governor‑General‑in‑Council, in respect of a claim against the North Western Railway, and the other in Snit No. 486 of 1946 against the Province of find, in respect of a claim against the Provincial Government. These applications were rejected by the Registrar (O. S.) on fire 'ground that no such order as was prayed could be made against the Crown and the decision of O'Sullivan, J, in Sundar Das Vishendas v. Governor General‑in Council was relied upon. The plaintiffs being dissatisfied with the orders, had the matters brought before the judge, Constantine, J., and questioned the correctness of the decision of O'Sullevan, J. Having regard to the very great impor tance of the matter, Constantine, J., made a reference under r. 10 of the Rules pf this Court, and the matter is now before us. In Sundar Das Vishendas v. Governor General‑in‑Council I L R (1946 Kar, 416 O'Sullivan, J., had three applications against the Crown before him, two under Q. XI, r. 12, Civil P. C, for discovery on oath, and the third under O. XI, r. 19 (2) for inspection, after discovery had been made. He considered that the same broad question was involved in all the three applications, viz., whether the Crown in India had the, same prerogative as, regards the procedure applicable to discovery and inspection as it had in England. O'Sullivan, J., decided 'that it had. He rejected the' contention that the statutory law in India had by necessary implication deprived the Crown of; the prerogative claimed. He therefore held, first, that no order could be made compelling the Crown to make discovery and that it was not, within the, province of the Court to require the Crown to state any special ground of objection or to enquire into the reasons why the Crown objected, Secondly with regard to the third application before him, which raised question of the procedure to be followed under O. XI, r. 19 (2) on the Crown objecting to produce certain documents for inspection, O'Sullivan, J, considered that there was a conflict between the decision of the 'Privy Council in Robinson v.. State of South Australia, (No. 2) 1931 a C 704 arid the decision of the House of Lords .in Duncan v Cammell Laird & Co' 1942 1 All. E R. 587 as to whether the privilege claimed included the right to refuse to produce the documents for the inspection of the Court. With regard to this, O'Sullivan, J., said: " With very great respect to ‑ these most eminent tribunals, it appears to me that the decision of the House of Lords is to be, preferred on the question under consideration The Privy Council has itself laid down in Robinson v. National Trust Co., Ltd. 1927 A C 515 that a decision of the House of Lords is the highest, authority binding on the Courts and Dominions, and may, therefore a be preferred on a question of common law to air earlier decision of the judicial Committee itself. This case has been referred to in Bentwich's Privy Council Practice at p.

238. The point, however, is as to whether section 212, Government of India Act, binds me to follow the decision of the Privy Council in the Australian case; and t6 my opinion it does not. I am of the view that section 212 must be construed as referring only to judgments of the Privy Council in Indian appeals. The Sovereign has retained the prerogative of being the supreme tribunal or justice in, the Empire and the ultimate right of appeal from all parts of he Empire is therefore to the King in Council. The Judicial Committee of the Privy Council is an Imperial body representing the Empire and the right of appeal to it has been defined and regulated in the case of the Dominions colonies "dependancies and possessions by various statutes, Letters Patent and Orders in Council. Laws are not uniform throughout the Empire and the Privy Council decides appeals in accordance with the laws in force at the places from which they come. It seems to follow that the decision of this supreme tribunal, on an the appeal from one part of the Empire regulates' as such. Appeal a would be by a particular statute, charter or order in Council, and decided in accordance‑with a particular set: of: laves, is not and cannot be binding on the Courts in another part of the Empire." It was contended before us that O'Sullivan, J. was in error on both these matters, and that the Privy Council decision, is appli cable, and therefore binding upon the Courts in India on all the matters it deals s With. We are, however, only concerned with the first matter dealt with by O'Sulivan, J. as the two applications before us are both applications under O..XI, r. 12, and not with any questions that might arise on an application under O. XI, r. 19 (2). The broad question before us is whether, in the matter of the procedure relating to discovery and 'inspection the, law applicable to the Crown, when a party to a suit in India, is' the same as that applicable to any other party, or whether the Crown in India still retains the prerogative, which it has in England, by virtue of which no order can be made against it compelling it to make discovery or give inspection, There is no question herd about the applicability of the Privy Council decision referred to above as that was a decision in a case from Australia where admittedly the prerogative, here in' question, did not exist and the state was bound like any, subject to make discovery and give inspection. I .am unable however to agree with the view of O'Sullivan J., cited above, that section

212. Government of India Act, makes a decision of the Privy Council binding on the Indian Courts only when the decision was made on an. appeal from India. There is no such limitation in the section, and all tribunals from which appeals lie to the Privy Council must. I think necessarily be bound as subordinate Courts by all decisions of the Privy Council as the decisions of a Superior Court. In Mata Prasad v. Nageshar Sahai 52 I A 398 their Lordships stated: " their Lordships think it desirable to point out that it is pot open to Courts in India to question any principle enunciated by this Board, although they have a right of examining the facts of any case before them to see. whether and how far the principle on which stress is laid applies to the facts of the particular cases." In Kariadan Kumar v. British India Steam Navigation Co., Ltd: 3 Mad. 941 Sadasiva Ayyar, J. said " It seems to me that this decision of the Privy Council pronounced on March 31, 1909 (about 31 months after the pronouncement of the Full Bench decision in Mahomad Ravuther v. British India Steam Navigation Co. Ltd, 32 Mad: 95 on 15th December 1908) clearly overrules the decision in the latter case, unless we are to accede to the ingenious argument of Mr. Sheshagiri. Ayyar that we are not bound by the decision of Privy Council unless it was given in a case which went up on appeal from an Indian tribunal. (The appeal case of 1909 was an appeal from the decision of the Supreme Court of the Straits Settlements). I am wholly unable to hold that the binding nature of a decision of the Privy Council depends on the locality of the tribunal which pronounced the decision from which the appeal was preferred to the Privy Council, any more than. the binding nature of a decision of this Madras High Court upon a Madras District Court. depends on the question whether the High Court's decision was pronounced in an appeal preferred in a case which arose in that particular district" and Tyabji. also expressed the same view. In the Lahore Full Bench case, Firm Karam Narain Daulat Ram v. Volkart Bros. A I R (33), 1946 Lah. 116 Harries, C. J. field that in a case of conflict, a decision of the Privy. Council was binding whereas a decision of the House of Lords was not (of, p. 123). Strictly speaking, a decision of the House of Lords cannot be said to be binding " on any Indian Court, though there can be no question about the House of Lords being " the supreme tribunal to settle English Law " and about all Courts, which are bound to follow the English Law, being bound by the decisions of the Horse of Lords as was pointed out by the Privy 'Council in Robinson v. National Trust Co. Ltd. at p.

519. The question, `to what extent the Privy Council decision was applicable, is another matter. It is necessary first to turn for a moment to the law in England. As Viscount Simon, L. C. stated in Duncan v; Cammell Laird and Co. " When the Crown (which for this purpose must be taken to include a Government department, or a minister of the Crown in his official capacity) is a party to a suit, it cannot be required to give discovery of documents at all. No special ground of objection is needed." Viscount Simon then referred to the well known observation made by Rigby, L. J. in Attorney‑General v. New Castle upon‑Tyne Corporation 1897 2 Q.B. 384 the truth of which has never been open to question: " ....the law is that the Crown is entitled to full discovery and that the subject as against the Crown is not. That is a prerogative of the Crown, part of the Law of England, and we must administer it as we find it, Now I know that there has always been the utmost care to give to a defendant that discovery which the Crown would: have been compelled to give if in a position of a subject, unless there be some plain overruling principle of public interest concerned which cannot be disre garded. I wish particularly to emphasise here that this particular prerogative, with which we are concerned, can only be claimed when the Crown is a party to a suit. A gelance at the history of the law will show that this prerogative has been carefully preserved and kept intact by legislation in England There was a time when no suit could be instituted against the Crown at all. Even after the Crown could be sued by a petition of right, suits by and against the Crown (information and petitions of rights) had to be instituted in special forms which were essentially different from those of other suits (actions) between subject and subject, and the procedure and practice applicable to Crown suits (Crown practice) has always been different. In a suit by the Crown, (information or information and bill) the informant acting on behalf of the Crown gives the Court to understand and be informed of the facts alleged and prays for such relief as the Crown desires. Under the Petitions of Rights Act of 1860 the suit had to be in the form of a petition made by a suppliant addressed to Her Majesty The Queen which had to be. "left with the Secretary of State for tire Home Department, it order that the same may be submitted to Her Majesty for Her Majesty's gracious consideration and in order that Her Majesty, if she shall think fit, may grant her fiat that right be done". Her Majesty could grant or refuse her fiat at her pleasure. It was not the absolute duty of the Attorney. General to advise the grant of the fiat in every case, although, where the petition disclosed a reasonable and probable ground of claim and a real cause of action, he fiat in., practice was invariably granted. The fiat could be granted to the whole or part of the petition and the petition could not be set down ?or trial until the fiat was granted. (Halsbury's Law's of England, Vol. IX, para. 1180, p. 694). The rules of the Supreme Court framed under the judicature Acts only apply to Crown suits, in so far as the rules have been specifically ' made applicable to such suits and apart from such specific appli cation, the procedure applicable is governed by the Crown Suits Act, the Exchequer Rules, and the traditional procedure of the King's Remembrancer Department. (Halsbury's Laws of England, Vol. IX, paras. 1162 and 1181). All the prerogative rights of the Crown have to be regarded as existing except in so far as they have been specifically taken away by statutes. The only Orders of the rules of the Supreme Court made applicable to Crown suits under the Supreme Court of judicature (Consolidation) Act, 1925. are those mentioned in O. LXVIII, r. 2 of the R. S. C., which do not include O. XXXI, which deals with discovery and inspection. Section 7, Petition of Rights. Act of 1850 provided "So far as the same may be applicable ...the laws and statutes in force as to pleading. and the practice and course of procedure of the said Courts of law and equity respectively for the time being in reference to such suits and personal actions, shall... be applicable and apply and extend to such petition of right " and it was urged in Thomas v. The Queen (18.74) 10 Q B 44 that this section extended to petitions of right all the statutes relating to pleadings, evidence, hearing and trial and the means. of procuring and taking evidence and. as discovery was included in this, it was argued that a suppliant could obtain discovery in a petition of right. Section 50, Common Law Procedure Act of 1854 was as follows:- "Upon the application of either party to any, cause of civil proceeding‑in any of the superior Courts upon, an affidavit by such party of his belief that any document, to the production of which he is entitled for the purpose of discovery or otherwise, is in the possession of power of the opposite party, it shall be lawful for the Court or judge to order, that the party against whom such application is made, or if such party is a body cor porate, shall answer an affidavit, stating what documents he or they has or have in his or their possession or power relating to the matters in dispute or what he knows as to the custody they or any of them are in, and whether he or they objects or object (and if so, on what grounds) to the production of such as are in his or their possession or power and upon such affidavit being made the Court or judge may make such further order thereon as shall be just." Cokburn, C. J. discharging the rule stated: "If it had been intended to extend Section 50; Common Law Procedure Act 1854, as to‑discovery of documents, to the case of petitions or right, there would have been inserted some enact ment saying officer should answer, as in the case of bodies corporate." Technically the Queen could not be sued in her own Court, and having regard to the nature of a petition of right, it was legally and technically impossible to order Her Majesty the Queen to make an answer on affidavit. No one else could in law be com pelled to make such an answer. Discovery could only be ordered against a party, and not against the Queen or anyone who was a stranger to the cause of, Halsbury's Law of England, Vol. X, para. 420, p.

347. Before leaving the subject of the law in England, the relevant law with regard to corporation requires to be noticed. A corporation can sue and be sued, like any subject, and the procedure applicable to corporations when parties, to a suit is the same as that applicable to other parties (with of course the modification necessitated by the fact of 'a corporation being a corporation). A, corporation can obtain discovery and inspection from the other party, and can be compelled to make discovery and give inspection. Unlike the Crown, corporation can be sued in contracts and in tort, and can even be indicted and fined for criminal offences : cf. Halsbury's Laws of England, Vol, VIII, sections 4, 5 and 6, paras. 159‑

179. Even where a corporation is incorporated for public purposes, by a public Act it cannot claim to be in the same position as the Crown. In In re Wood's Estate ; Ex parte Works and Public Buildings Commissioners (1886) 31 Ch. D 607 Lindley, L J. stated: "...no authority has been cited to show that this particular corporation, incorporated by the Act of 1555 for certain public purposes, is to be treated as the Crown, and there is no ground for holding that a corporation specially incorporated in this war is in,‑the same position as regards costs as the Crown." and the corporation was ordered to pay the costs. In Graham Sorts v. Commissioner Public Works & Buildings (1901) 2 KB 781 Phillimore, J. pointed out that even when a public corporation could probably be described as "a nominal defendant sued as representing one of the departments of the State." using his description as Lindley, L. J., did in Dixon v. Farrer (1886) 17 Q B D 658 the mere fart of its incorporation conferred upon it "the privilege of suing and the liability to be sued," like subjects. No case has been cited before us, except one of the E. I. Coy. Which will be referred to later, in which any corporation has even put forward the claim that it was entitled to the prerogative, which the Crown could claim, of being exempt from the liability to make discovery and give inspection, and it appears to me to be beyond question that the fact that corporations, unlike the Crown, can sue and be sued in the same manner as other subjects, to suits to which the ordinary procedure applies, necessarily subjects them to the ordinary rules of procedure, and makes it impossible for then to put forward any such claim. It is of course true that apart from matters relating to the ordinary rules of procedure applicable to all parties to a suit, it is open to a corporation to show that it was suing or being sued as the representative or agent of the Crown, and to ask the Court to take into consideration and give effect to such prerogative rights as it could claim as an agent of the Crown. As Phillimore, J , said to Graham & Sons v. Commissioners of Public Works & Build ings (12) in such a case. "The procedure amounts to obtaining a decision in the nature of a decision upon a hypothesis, namely if the person sued were a subject, what would the decision of the Court on the case brought against him ? The principle which is found in the Merchant Shipping Act is a useful one to consider it shows that the Crown is the real entity pursued, although through the medium of a subject, and the privileges which the Crown has as to the mode of trial apply to such cases. In Dixon v. Farrer (1886) 17 Q B D 658, the Secretary of the Board of Trade was rued for the act of his sub ordinate in detaining a ship supposed to be unseaworthy. The Attorney‑General of the day claimed, and successfully maintained his claim, to treat the action as a suit against the Crown, and to exercise the prerogative right of the Crown to lay the venue in whatever country pleased." In Commissioners of Public Works and Buildings v. Portyprid Masonic Hall Co. Ltd. (1920) 2 K B 233 Banks, L. J., stated "The defendants plead the Statute of Limitations. To that the plaintiffs answer that they are suing as the representatives of the Crown to recover this money, and that the Statute of Limitations does not apply as against the Crown. Two cases have been referred to Graham &. Sons v Commissioners of Public Works & Buildings and Roper v. Public Works Commissioners both of which make it clear that if a body, whether incorporated or not, is in fact acting in any particular matter as agents of the Crown, they are to be treated in law as such agents, and from that it follows that the Statute of Limitations does not apply to them. In this case I have no hesitation in coming to the conclusion that the plaintiffs are merely acting in their capacity as agents of the Crown in endeavouring to recover this money, although they possess a statutory right to bring the action in their own name. In Dixon v. Fairer (1886) 18 Q B D 43,Lindley, L. J., dealing with a case where the Secretary of the Board of Trade was being sued, said that the defendant was a nominal defendant sued as representing one of the departments of the State. Here the position is transposed: the plaintiffs are nominal plaintiffs suing as representing one of the departments of the State". It must be noted that the prerogative rights which may be so claimed do not in any manner affect the fact that in any suit to which the corporation is a party, the procedure applicable, as regards discovery and inspection and other matters, is the same as in any suit (action) between subject and subject. In In re Societe Les Affreteurs Reunis and Sipping Controller (1921) 3 K B 1 Greer, J., stated " I want to add one word about Kain v. Farrer (1878) 37 L T 469 upon which great reliance was placed by counsel for the claimants, in order to point out that that was not from any point of view a preceding between the Crown and the subject. It was a preceding between a party and the Secretary to the Board of Trade as representing the Board of Trade. It was not contended and could not have been contended that the liability of the Secretary or of the Board was a liability of the Crown. It was an action for the purpose of determining the liability of the Secretary of, the Board for wrongful acts. And trespasses committed by inspectors acting on behalf of the Board, and in no circumstances could a claim of that kind be made against the Crown. Therefore in the case, so far as the Court deals with discovery at all, it deal with the matter on the assumption that it is deciding a case between parties who are both subjects of the Crown, and not a case in which one of the parties is the Crown itself": Order XXXI, R. C. S, applies in all suits by or against corpora tions. It is only in Crown suits, information and petitions of right; to which O. XXXI, does not apply, that the Crown's prerogative in the matter of discovery and inspection way still be claimed. I will next turn to the position in India. The East India Company was incorporated by its Charter in 1600. For a long time thereafter, and even after the battle of Plassey, it remained a purely trading corporation, without any sovereign rights. In Mayor of Lyone v. East India Co. I M I A 175 at p. 272, Lord Brougham speaking of the situation of Calcutta stated. The district on which Calcutta is built was obtained by purchase from the Nawab of Bengal, the Emperor of Hindostan's Lieutenant, at tire very end of the seventeenth century. The Company had been struggling for nearly a hundred years to "obtain a footing in Bengal, and till 1696, they never had more than a Factory here and there, as the French Danes and Dutch also had. Till 1678, their whole object was to obtain the power of trading, and it was only then that they secured it by a Firman from the Emperor, from that year till 1696, they in vain applied to the native Government for leave to fortify their Factory on the Hooghly, and it was only then that they made a or fortification acting upon a kind of half consent, given in an equivocal answer of the Nabobb. Encouraged by the protection which they were thus enabled to afford the natives, many of them built houses, as well as the English subject and when the Nabob, on this account, was about to send a Kazi, or judge. to administer justice to those natives, the Company's servants bribed him to abstain from this proceeding. Some years afterwards, the Com pany obtained a grant of more land and villages from the Emperor, with renewed permission to fortify their Factories during all this period tribute was paid to the Emperor, or his Officer, the Nabobb ; first, for leave to trade, afterwards as zamindars, under the Emperor ; and in 1757, the year memorable for the battle of Plassey, the treaty. with Jaffer Ally, indemnifying them for their losses, ceding the French possessions, and securing their rights, and binding them to pay their revenues like other zamindar. Eight years later, they likewise received from the native Govt. a grant of the Dewany or receivership of Bengal, Behar, and Orissa and of their subsequent progress in power it is unneces sary to speak ; enough has been said to show, that the settlement of the Company in Bengal was effected by leave of a regularly established Govt. in possession of the country, invested with the rights of sovereignty, and exercising its powers ; that by permis sion of that Govt Calcutta was founded and the Factory fortified, in a district purchased from the owners of the soil by permis sion of that Govt., and held under it by the Company as subjects owing obedience, as tenants rendering rent, and even as officers exercising by delegation, a part of its administrative authority. At what precise time, and by what steps, they exchanged the character of subjects for that of sovereign, or rather, acquired by themselves, or with the help of the Crown, and for the Crown, the rights of sovereignty, cannot be ascertained. The sovereignty has long since been vested in the Crown, and though it was at first recognized in terms by the Legislature in 1813; the Statute 53, Geo. III. c. 155, S. 95 is declaratory and refers to the sovereignty as 'undoubted', and as residing in the Crown ; but it is equally certain, that for a long period of time after the first acquisition, no such rights were claimed, nor any acts of sovereignty exercised ; and that during all that time no English authority existed there, which could affect the land or bind any but English subjects. The Company and its servants were then in the situation of the Smyrna or the Lisbon Factories at the present time. The Courts established by the Company by virtue of the powers conferred by the Charter of 1726 were Courts established in factories in foreign territory where all except the English servants of the Company were foreign subjects : Advocate‑General of Bengal v. Surnomoye Dossee 9 M I A

387. Even after it was recognized, in 1813, that the Company exercised sovereign powers within its territories, subject to the suzerainty of the Crown of England, it continued to sue and be sued as a subject, as a corpora tion. No prerogative could be claimed by it, in suits to which it was a party, and it was subject to the same liabilities as individuals in. contracts as well as in torts. In the Indian Courts, trials were field in accordance with the Muhammadan Law of procedure up to Regulation VI of 1832. Sir Barnes Peacock C. J. stated in P. & O S. N. Co. v. Secretor of State for India 5 Bom HCR App. 1. "In determining the question whether the East India Company. would, under the circumstances, have been liable to an action, the general principles applicable to Sovereigns and States, and the reasoning deduced from the maxim of the English Law that the King can do no wrong, would have no force.. We concur entirely in the opinion expressed by the Chief justice Grey in Bank of Bengal v. East India Co., Brignett Rep. p. 120, which was cited, in the argument, that the fact of the Company's having been invested with powers usually called sovereign powers did not constitute them sovereigns." We are further of opinion that the East India Company were not sovereigns and, therefore, could not claim all the exemp tions of a sovereign ; and that they were not the public servants of Govt: and, therefore, did net fall under the principle of the cases with regard to the liabilities of such persons ; but they were a company to Whom sovereign powers were delegated, and who traded on their own account and for their own benefit, and were engaged in transactions partly for the purposes of Govt., and partly on their own account, which, without any delegation of sovereign rights, might be carried on by private individuals. There is a great and clear distinction between acts done in the exercise of what are usually termed sovereign power, and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them." At pages 13 and 14 of the same case, Sir Barnes Peacock refers to a case, which is of particular interest here, in which an order of discovery was made against the East India Company. The plaintiff, in that case intended to make a claim against the Company in respect of an alleged breach of a contract of lease for 10 years of the right to supply the inhabitants of Madras with tobacco and filed a bill for a commission and discovery While overruling the demurrer by the company, Lord Kenyon, the Master of the Rolls, said : "I admit that no suit will lie in this Court against a sovereign power for anything done in that capacity, but I do not think the East India Company is within the rule. They have rights as a sovereign power they have also duties as individuals. If they enter into bonds in India, the sums secured may be recovered here so in this case as a private company they have entered into a private contract, to which they must be liable. Here is a prima facie ground of action; the Company has put other persons in the way of doing the plaintiffs injury. It is therefore clear that the East India Company could not claim to be exempt from the liability of being ordered to make discovery and give inspection, by virtue of its character as a Com pany possessing rights. The question then is, has the prerogative in question been assumed and exercised by the Crown in India, after it took over the Govt. of India in 1858, or has the prerogative been taken away by the Statutory Law applicable to India ? The two enactments which we have specially to consider are the Govt. of India Act of 1858, and the Civil P. C. Act VIII of 1859. With regard to the effect of the Act of 1858, Sic Barnes Peacock stated in P. arid O. S. N. Co . v. Secretary of State for India (22). " The question as to the liability of the Secretary of State in Council to be sued depends upon the Act 21st and 22nd Vict. c. 106, for the better Government of India, and turns principally upon the construction of the 65th section. The main object of that section was to transfer to Her Majesty the possession and Government of the British territories in India, which were then vested in the East India Company in trust for the Crown 'brut it does not appear to have been the intention of the Legislature to alter the nature or extent of liabilities with which the revenue of India should be chargeable and accordingly We find it expressly enacted by the 42nd section that the dividends on the capital stock of the said Company secured by the Act of the 3rd and 4th William IV, c. 85, until the redemption thereof, and all the bond. debenture, and other debt, of the said Company in Great Britain, and all the territorial‑debt, and all other debts of the paid Company, and Act sums of money, costs, charges and expenses, which, if this Act had not been passed, would after the time appointed for the commencement thereof, have been payable by the said Company out of the revenues of India, in respect or by any reason of any "treaties, covenants, contract grants or liabilities then existing, and all expenses, debts and abilities which after the com mencement of this Act shall be lawfully contracted and incurred on account of the Government of India and all payments under this Act, shall be charged and chargeable upon the revenues of India alone, as the same would have been if this Act had not been passed. and such expenses, debts, liabilities and payments as last aforesaid had been expenses, debts and liabilities lawfully contracted and incurred by the said Company ; and such revenues shall not be applied to any other purpose whatsoever ; and all there monies vested in, or arising or accruing from, property or sights vested in her Majesty under this Act, or to be received or disposed of by the Council under this Act, shall he applied in aid of such revenues. But as the Queen could not‑ be sued, as the East India Company could have been, in her over Court, it was necessary to provide for the made of enforcing such liabilities ; and therefore, after providing by section 64, that all Acts and provisions then in force, by charter or otherwise, concerning India, should, subject to the provisions of the Act continue in force, and be constructed as referring to the Secretary of State in Council in the place of the said Company, and the Court of Directors and Court of Proprietors thereof, it was enacted by section 65 that 'the Secretary of State in Council should and might sue and be sued as a Body corporate, and that all persons might have and take the same remedies and proceedings, legal and equitable against the Secretary of State in Council as they could have done against the East India Company, and that the property and effects thereby vested in Her Majesty for the purposes of the Government of India, or acquired for the said purposes, should be subject and liable to the same judgments and executions as they would, while vested in the Company, have been liable to, in respect of debts and liabilities lawfully contracted and incurred by the said Company'." The following sections of the Code of 1859 require to be particularly noticed.

17. The recognised agents of parties by whom such applica tions and appearances may be made are * * * * * * * ** * * 3rdly Persons being ex‑officio or otherwise authorised to act for Govt. in respect of any suit or judicial proceeding. * * * * * * *

26. The plaint shall be distinctly written in the language in ordinary use in proceedings before the Court, and shall contain the following particulars

1. The name, description, and place of abode of the plaintiff.

2. The name, description, and place of abode of the defendant, so far as they can be ascertained.

6. In all suits by or against the Govt., or one of its officers in his official capacity, or any corporation, or any Company authorized to sue and be sued in the name of an officer or trustees the words, `the Govt.', or `the Collector of or otherwise, as. the case may be, or the name of Corporation, or the or names of the officer or trustees of the Company, shall be inserted in Nosy 1 and 2, instead of the name and description of the plaintiff or defendant, but in all other cases it shall be necessary to specify the names of all ‑the parties. Of suits against Govt. and Public Officers.

67. If the suits be against the Govt., the summons shall be served on the Govt. Pleader. The Court, .in fixing the day for the Govt. to answer the plaint, shall allow a reasonable time for the necessary communication with the Govt through the proper channels, and for the issue of instructions to the Govt. Pleader to appear and answer on behalf of the Govt., and may extend the time at its discretion on the application of the Govt. Pleader. The Court may also, if it thinks proper, dir ct the attendance of a person who may be able to answer all material questions relating to the suit.

68. If the suit be against an Officer of the Govt. for an act which the plaintiff alleges to have been done by such officer in his official capacity, the summons shall be served upon such officer in the manner hereinbefore provided.

69. If the officer, on receiving the summons, shall consider it proper to make a reference to Govt: before answering to the plaint, he may move the Court to grant such extension of the tine fixed in the summons as may be necessary to enable him to make such reference and to recieved orders thereon through the proper channels; and the Court upon such motion may extend the time for so long as shall appear to it to be requisite.

70. If the Govt. shall undertake the defence of the suit, the Govt. Pleader shall be furnished with authority to appear and answer to the plaint ; and upon motion made by him, the Court shall order a note, to, that effect to be entered in the register.

71. If such motion shall not be made by the Govt. Pleader on or , before the day fixed in the notice for the defendant to appear and answer to the plaint, the case shall proceed as in a suit between private parties, except that the defendant shall not be liable to arrest before judgment.

72. If in any such suit the Court shall require the personal appearance of the defendant, and the defendant shall satisfy the Court that he cannot absent himself from his duty without injury to the public service, the Court shall exempt him from such appearance ; but he shall he liable to be examined in any way in which an absent witness may be examined. Of the production o f Documents.

128. The parties or their pleaders shall bring with them, and have in readiness at the first hearing of the suit, to be produced when called upon by the Court all their documentary evidence of every description which may not already have been filed in Court, and all documents, writings, or other things which may have been specified in any notice which may have ‑been served on them respectively within a reasonable time before the hearing of the suit, and no documentary evidence of any kind, which the parties or any of them may desire to produce, shall be received by the Court at any subsequent stage of the proceedings unless good cause be shown to its satisfaction for the non production thereof at the first hearing.

129. All exhibits produce by the parties shall be received and inspected by the Court ; but it shall be competent to the Court, after inspection to reject any exhibit which it may consider irrelevant or otherwise inadmissible, recording the grounds of such rejection." The words in S. 71, "the case shall proceed as in a suit bet ween private parties" deserve particularly to be noticed. In Secy. of State v. Moment, J., 40 I A

48. Lord Haldane speaks of "the substantial right of the subject to sue the Govt. in the Civil Courts like any other defendant" conferred by the Act of 1858, and of "the fundamental principle that the Secretary of State, even as representing the Crown, is to be in no position different from that of the old East India Company." In P. & O. S. N. Co. v. Secy. of State for India, Sir Barnes Peacock pointed out that by the Act of 1858 the revenues of India were constituted a fund, entirely apart from the English Exchequer, and that an action against the Secre tary of State in Council, sued as a Body Corporate, was the proper mode of getting at that fund. It is beyond question now that a Govt. department in India cannot claim the prerogative by virtue of which the Crown in England could not be sued either in concract or in tort. That is because the Secretary of State was made liable where the East India Company would have been liable. It seems to me to be equally clear that the Crown's prerogative, of exemption from the liability to make discovery and, give inspection was also taken away. It is impossible to contend that the provi sions of the Civil P. C. of 1859, did not apply to the Secretary of State, who was sued like any other defendant, or that the position of the Crown in India was similar to that in England, where O. XXXI of the R. S. C is still not applicable to Crown suits. The provisions enacting that the Secretary of State can sue and be sued as a Body Corporate and like any other subject, necessarily subject him to all the provisions of the Civil P. C, including O. XI, and thereby make it impossible for the Crown in India to contend that the position of the Secretary of State was not "like any other defend ant,', or "different from that of the old East India Company." In my view Lord Haldane's words are conclusive on the matter before us. The position has not been materially altered by the successive amendments and alterations since made in the Civil P. C. After the Government of India Act of 1938, suits which still then were described. as "suits by or against the Government or Public Officers in their official capacity," are described as "suits by or against the Crown or Public Officers in their official capacity," and section 79 has been altered by tire Government of India (Adaptation of Indian Laws) Order, 1937, so that the authority to be named has now to be the Governor‑General in Council, or the province, or the Secretary of State, a ,cording to the department concerned. The procedure in such suits by or against the Crown continues to be governed by the Code, and is the same as in a suit between subject and subject. The position in India is therefore the same as in Au3tralia, where after the Commonwealth judiciary Act, 1930-1940, the procedure applicable to the State when a party to a suit is the same "as in a suit between subject and subject" and "the State is not only sued as defendant under the authority of statute but is in the suit bound to give discovery." Robinson v. State of South Australia (No. 2). The statute thus gives to the subject in India what in England is denied in law but in practice the Crown takes the utmost care to give. It is of course beyond question that tile Crown's prerogative remain in force except such of them as have been taken away by statute expressly or by necessary implication, and that there are several prerogative rights which the Crown still possesses in India. For instance, it is a prerogative of the Crown that no statute can be said to bind the Crown, unless the statute is made applicable to the Crown in express terms or by necessary implication : Province of Bombay v. Municipal Corporation of the City of Bombay A I R 1947 P. C

34. Another instance is that of Crown debts having precedence over other debts Two cases were practically relied upon before us as showing that although the Civil P. C. was generally applicable to suits in which the Crown was a party, the provisions of the Code were to be regarded as inapplicable to the Crown, as, soon as a prerogative of the Crown was shown to be affected. But, in my view, it is impossible to accept this contention. In Ganpat Putaya v. Collector of Kanara 1, Bom. 7, the question was whether the Crown could claim that Court‑fees payable to the Crown in a pauper suit had precedence over the claims of the judgment creditor. West, J. in deciding the point stated "The decision of this case turns upon the construction of section 309, Civil P. C. Its direction that the amount of fees, which would have been pair by the pauper plaintiff, shall on decision of the suit, be recoverable by Government from any party ordered by the decree to pay the same in the same manner costs of suit are, recoverable does not preclude the Crown or its representative from urging its prerogative arid insisting upon its right to precedence. The circumstances of its being placed in the position of, judgment‑creditor does not reduce its rights of necessity to those of a private judgment‑creditor in case of a con test as to prior satisfaction out of moneys realized in execution;" In Gaya noda Bala Dassee v. Butto Kristo Bairagee 33 Cal. 1040, the plaintiff instituted a suit in forma pauperis against the defendant and obtained a decree. "The decree directed that the property in suit should be conveyed to the plaintiff, and the taxing officer was to certify the amount of Court‑fees, that would have been payable by the plaintiff, had she not sued forma pasiperis and to tax the plaintiff's other costs of suit. It was also ordered arid decreed that the defendants should pay the amount of Court‑fees to be certified by the Government Solicitor, which should form a first charge on the property conveyed. Thereafter, the plaintiff applied for attachment of other premises belonging to the defendants and obtained an order for sale. The sale proceeds were ordered to be paid into Court, which amounted to R9. 999‑1-8. The plain tiffs attorney then without notice to the Government Solicitor or defendants made an application for payment to him of the amounts realized in execution from the defendants. The Government Solicitor then presented a petition asking that the amount of Court‑fees certified as due and payable by the defendant to the Government Solicitor in terms of the decree be paid in the fist instance and in Decedent to all claims. 'It was held that Court‑fees form a Crown debt and under ordinary circumstances the principle would apply that the Crown would be entitled to precedence in payment of this debt over all creditors ; and that section 411, Civil P. C.' was an enabling section and though it indicated the manner in which Crown may proceed to realise the‑debt, it did not preclude the Crown or, its representatives from urging its prerogative and insisting on its rights to precedence over all other creditors. The comment on this case in Mulla s Civil P. C. (1941 Edn. p. 1051) is as follows:

"It is to be observed that in the Calcutta case cited above, C was a creditor of A in as much as he was entitled to be paid his costs by A. But he was merely an ordinary creditor as distin guished from a secured‑creditor. It is also to be observed that Court‑fees form a Crown debt, and the Crown wag to that extent a creditor of A. It has to be borne in mind that it is only when claims of the Crown and claims of ordinary creditors or 'common persons' (to use an old expression) concur or come into competi tion that the Crown is preferred. The Crown has no more right than a 'common person' to, seize X's property and apply it in or towards discharge of a debt due from Y. It was so observed by Lord Macnaghten in a case in which the Privy Council held that where a money decree is obtained by a pauper in a suit by him against Y, and Y is directed by the decree to pay the Court fees, the Government are not entitled to realize the Court‑fees by sale of Y's property previously mortgaged by him to X, so as to defeat the right of X. All that could he sold by the Government in such a case is the equity of redemption of I' to the property." These decisions were made not by disregarding the provisions of the Code but to accordance with them The Calcutta decision is in accord with the provisions of the Code which are now con tained in section, 73 (3) and O XXXII1, r.

10. I would, therefore, grant the two applications under O. XI, r. 12 before us, The 'two plaintiffs will have the costs of this application. THADANI J.‑

I concur but I would add a few words. I think the prerogative right of the Crown in India, in the matter of dis covery, procedure in regard to which is regulated by O. XI. Civil P. C., has been taken away by reason of section 276, Government of India Act, 1935, in suits instituted under the provisions of section 79, Civil P. C., provided the subject‑matter of the suit is one in respect of which the East India Company could have been sued as a body corporate. If, however, the subject‑matter of the suit is not one in respect of which the East India Company could have been sued, I think the Crown in India, at any rate up to 15th August 1947, could claim the prerogative right in the matter of discovery. Strictly speaking the question of discovery when the plea to which I have referred is taken does not arise as the plea goes to the root of the Court's jurisdiction. The question then arises when can such a plea be taken. I think it can properly be taken upon notice issued to the Crown on an application made under the provisions of O. XI r. 2, Civil P. C. and before the Court can compel the Crown to make discovery, it would have to decide whether the subject‑matter of the suit is one in respect of which the East India Company could have been sued. In the two cases referred to us, the learned Advocate. General has not contended on behalf of the Crown that the subject‑matter of the suits is one in respect of which the East India Company could not have been sued. JUDGMENT CONSTANTINE, J.‑

I agree with the judgment of the Hon'ble the Chief judge, and hate nothing to add. A. H. Applications granted,