CHAPTER XXVII. SUITS BY OR AGAINST GOVERNMENT OR PUBLIC Suits by or against Secretary of State in Council. OFFICERS. 416. Suits by or against the Government shall be instituted by or against (as the case may be) the Secretary of State for India in Council. Instituted.-See Sec. 48. 417. Persons being exofficio or otherwise authorized to act for GovernPersons authorized ment in respect of any judicial proceeding, shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of Government. to act for Government. Recognized agents.-See Secs. 36 and 37. 418. In suits by the Secretary of State for India in Council, instead of Plaints in suits by inserting in the plaint the name and description and Secretary of State in place of abode of the plaintiff, it shall be sufficient to insert the words "The Secretary of State for India in Council." Council. Agent of Government to receive pro cess. 420. The Court, Appearance and answer by Secretary of State in Council. 419. The Government Pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the said Secretary of State in Council issuing out of such Court. in fixing the day for the said Secretary of State in Council to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channels, and for the issue of instructions to the Government Pleader to appear and answer on behalf of the said Secretary of State in Council or the Government, and may extend the time at its discretion. Reasonable time.-In suits against the Government not less than three months should be allowed between the date of the summons and that fixed for the hearing. Pro. S. C., 10th September, 1861. Attendance of person able to answer questions relating to suit against Govern ment. 421. The Court may also in any case in which the Government Pleader is not accompanied by any person on the part of the said Secretary of State in Council, who may be able to answer any material questions relating to the suit, direct the attendance of such a person. 422. Where the defendant is a public officer, the Court may send a Service on public copy of the summons to the head of the office in which the defendant is employed, for the purpose of being served on him, if it appear to the Court that the summons may be most conveniently so served. officers. Public officer.-This new term is defined in Sec. 2. May be most conveniently so served.-Conveniently, that is, for the purposes of the suit, not for the purposes of the Government service. Where a defendant is following the Collector of a District on circuit, or the Superintending Engineer on a distant tour, and in many other cases, it may be very difficult to make service otherwise than in the mode hereby permitted. 423. If the public Extension of time to enable officer to make reference to Government. officer on receiving the summons considers it proper to make a reference to the Government before answering to the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel; and the Court upon such application may extend the time for so long as appears to be requisite. 424. No suit shall Notice previous to suing Secretary of State in Council or public officer. be instituted against the said Secretary of State in Council or against a public officer until the expiration of two months next after notice in writing, has been in the case of the Secretary of State in Council delivered to, or left at the office of, a Secretary to the Local Government or the Collector of the District, and, in the case of a public officer, delivered to him or left at his office, stating the cause of action and the name and place of abode of the intending plaintiff; and the plaint must contain a statement that such notice has been so delivered or left. 425. No warrant of arrest shall be issued in Arrests in such suits. such suit without the consent in writing of the Dis trict Judge. 426. If the Government undertake the defence of a suit against a public officer, the Government Pleader, upon being furnished Application where with authority to appear and answer to the plaint, Government undershall apply to the Court, and upon such application takes defence. the Court shall cause a note of his authority to be entered in the register. 427. If such application is not made by the Government Pleader on or before the day fixed in the notice for the defendant Procedure where no to appear and answer to the plaint, the case shall such application made. proceed as in a suit between private parties, except Defendant not liable that the defendant shall not be liable to arrest, nor to arrest before judg- his property to attachment, otherwise than in execution of a decree. ment. Exemption of public officers from personal appearance. 428. In a suit against a public officer the Court shall exempt the defendant from appearing in person when he satisfies the Court that he cannot absent himself from his duty without detriment to the public service. 429. When the decree is against the said Secretary of State in Council or against a public officer, a time shall be specified in the decree within which it shall be satisfied; and if the decree is not satisfied within the time so specified, the Court shall report the case for the orders of the Local Government. Procedure where decree is against Government or a public officer. Execution shall not issue on any such decree unless it remains unsatisfied for the period of three months computed from the date of the report. CHAPTER XXVIII. SUITS BY ALIENS AND BY OR AGAINST FOREIGN AND may sue 430. Alien enemies residing in British India with the permission of the Governor General in Council and alien friends When aliens may in the Courts of British India as if they were subjects of Her Majesty. sue. No alien enemy residing in British India without such permission, or residing in a foreign country, shall sue in any of such Courts. Explanation. Every person residing in a foreign country, the Government of which is at war with the United Kingdom of Great Britain and Ireland and carrying on business in that country without a license in that behalf under the hand of one of Her Majesty's Secretaries of State or of a Secretary to the Government of India, shall, for the purpose of the second paragraph of this section, be deemed to be an alien enemy residing in a foreign country. Alien enemies.-Are subjects of a nation which is at war with this country. Wharton. Every person.-Whether a British subject or not. When a foreign 431. A foreign State may sue in the Courts of State may sue. British India, provided that (a) it has been recognized by Her Majesty or the Governor General in Council, and (b) the object of the suit is to enforce the private rights of the head or of the subjects of the foreign State. The Court shall take judicial notice of the fact that a foreign State has not been recognized by Her Majesty or by the Governor General in Council. 432. Persons specially appointed by order of Government at the request of any Sovereign Prince or ruling Chief, whether in Persons specially subordinate alliance with the British Government or appointed by Governotherwise, and whether residing within or without ment to prosecute or British India, to prosecute or defend any suit on his defend for Princes or behalf, shall be deemed to be the recognized agents Chiefs. by whom appearances, acts and applications under this Code may be made or done on behalf of such Prince or Chief. Sovereign Prince.-Austin, at p. 226, thus distinguishes 'sovereignty' from other superiority or might:-" 1. The bulk of the given society are in a habit of obedience or submission to a determinate and common superior: let that common superior be a certain individual person, or a certain body or aggregate of individual persons. 2. That certain individual, or that certain body of individuals, is not in a habit of obedience to a determinate human superior......or— If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent." It appears from Wheaton, p. 20, that:-"Wherever the absolute or unlimited monarchical form of government prevails in any State, the person of the prince is necessarily identified with the State itself: l'état c'est moi. Hence the public jurists frequently use the terms Sovereign and State as synonymous.........sovereignty is the supreme power by which any State is governed. This supreme power may be exercised either internally or externally......(and at p. 34.) A Sovereign State is generally defined to be any nation or people, whatever may be the form of its internal constitution, which governs itself independently of foreign powers......... All Sovereign States are equal in the eye of international law, whatever may be their relative power. The sovereignty of a particular State is not impaired by its occasional obedience to the commands of other States, or even the habitual influence exercised by them over its councils......... Treaties of unequal alliance, guarantee, mediation, and protection, may have the effect of limiting and qualifying the sovereignty according to the stipulations of the treaties. States which are thus dependent on other States, in respect to the exercise of certain rights, essential to the perfect external sovereignty, have been termed semi-sovereign States. Thus the city of Cracow, in Poland, with its territory, was declared by the Congress of Vienna to be a perpetually free, independent and neutral State, under the protection of Russia, Austria, and Prussia." Latin 'princeps,' means generally individual politically superior to Thus Austin, at p. 36, says:during the Lower Empire, were The word 'prince,' from the the sovereign one, or determinate all other individuals, in a State. "The Roman Emperors or Princes, avowedly as well as substantially, sovereign in the Roman World." 433. Any such Prince or Chief, and any ambassador or envoy of a foreign State may, with the consent of Government certified by the signature of one of its Secretaries (but not without such consent) be sued in any competent Court not subordinate to a District Court; Suits against Sovereign Princes, &c. Such consent shall not be given unless (a) the Prince, Chief, ambassador or envoy has instituted a suit in such Court against the person desiring to sue him; or (b) the Prince, Chief, ambassador or envoy by himself or another trades within the local limits of the jurisdiction of such Court; or (c) the subject-matter of the suit is immoveable property situate within the said local limits and in the possession of the Prince, Chief, ambassador or envoy. Sovereign Princes, &c., exempt from arrest. When their property may be attached. No such Prince, Chief, ambassador or envoy shall be arrested under this Code; and no decree shall be executed against the property of any such Prince, Chief, ambassador or envoy unless with consent of Government certified as aforesaid. Envoy.-A diplomatic agent' sent' by one State to another, and of lower rank and dignity than an ambassador. See Wharton. Execution in British India of decrees of 434. The Governor General in Council may from time to time, by notification in the Gazette of India, (a) declare that the decrees of any Courts situate in the territories of any Native Prince or State in alliance with Her Majesty, and not established by the authority of the Governor General in Council, may be executed in British India as if they had been made by the Courts of British India, and (b) cancel any such declaration. So long as such declaration remains in force, the said decrees may be executed accordingly. CHAPTER XXIX. SUITS BY AND AGAINST CORPORATIONS AND COMPANIES. 435. In suits by a Corporation, or by a Company authorized to sue and be sued in the name of an officer or of a trustee, the Subscription and plaint may be subscribed and verified on behalf of verification of plaint. the Corporation or Company by any director, secretary or other principal officer of the Corporation or Company, who is able to depose to the facts of the case. Corporation.-See the notes to Sec. 124. Service on Corpora tion or Company. 436. When the suit is against a Corporation, or against a Company authorized to sue and be sued in the name of an officer or of a trustee, the summons may be served (a) by leaving it at the registered office (if any) of the Corporation or Company, or (b) by sending it by post in a letter addressed to such officer or trustee at the office (or if there be more offices than one, at the principal office in British India) of the Corporation or Company, or (c) by giving it to any director, secretary or other principal officer of the Corporation or Company, and the Court may require the personal appearance of any director, secretary or other principal officer of the Corporation or Company who may be able to answer material questions relating to the suit. |