MODULE II

GENERAL
PRINCIPLES OF PRIVATE INTERNATIONAL LAW

Successive stages in a suit which involves the application of Private

International Law
A Jurisdiction
The first step is to ascertain that the court possesses jurisdiction to try
the case
B Classification of the cause of action
The next is to classify the cause of action and place it in appropriate
legal category. The court has to determine whether the cause of action
comes within the category of contracts, torts, succession or matrimonial
cause etc. This is an essential step because unless the classification is
made, it will not be possible to apply the relevant rule of private
international law for the choice of law.
c) Selection of the Lex causae
After the cause of action is classified, the further step is to choose the
appropriate foreign law or to select the lex causae. The selection is made
as indicated by the choice of Law rule of Private International law.
d) Application of the Lex causae
The last step is to decide the case by applying the chosen law. This is not
as simple as it appears to be. It is here that we become confronted with
the bewildering doctrine of renvoi.

A .JURISDICTION
By Jurisdiction is meant power of the court to hear and adjudicate an
issue on which decision is sought. Jurisdiction may pertain to person or
to property. All persons in the world may invoke jurisdiction of English
courts except an alien enemy. A person may become amenable to the
jurisdiction by his mere presence in the sense that summons has been
served on him personally is the only requirement for exercising the
jurisdiction, although he is a foreigner in the curse of transit to some
other country and although the cause of action has no factual
connection with England. This still continues to be the basic principle of
English law, with certain statutory modification in what are called action
in rem (proceedings against a ship or other chattels) jurisdiction depends
upon the presence of the res (as a property, interest, or status) in
England. Under certain situations court may exercise what is called
“assumed jurisdiction” against the absent defendants. In India rules as to
jurisdiction are found in the Code of Civil Procedure, 1908.
Exemption from jurisdiction - Sovereign and sovereign states:
It is a well-established principle that an English court will not exercise
jurisdiction over the person or property of a foreign sovereign state
unless it is willing to admit to the jurisdiction.
Two important principles with regard to jurisdiction;
1. Court will not make sovereign party to a suit
2. Court will not, even though sovereign is a party to the suit, by its
process seize or detain a property which belongs to the sovereign or in
its control.
So these are two distinct immunities of the sovereign. The one is
personal immunity, the other is proprietary immunity.
Personal Immunity of Sovereign;
There is no limit to personal immunity. Even if the sovereign comes
under an assumed name, and enters into commercial or other ordinary
transaction in the guise of an ordinary private person, no action can be
entertained against him, if he objects to jurisdiction. This is illustrated by
the well-known case of Mighell v. Sultan of Jahore [1894] 1 QB 149.
Mighell v. Sultan of Jahore
Sultan of Jahore disguising himself as Albert Baker came to England and
fell in love with Miss Mighell and promised to marry her. After a while
she came to know about the real identity of her lover filed this particular
suit for fraud. Court held that the Sultan was entitled to immunity even
though up to the time of suit ‘he has perfectly concealed the fact that he
is a sovereign. To an argument that he had waived this immunity, the
court held that the only way that a sovereign could waive immunity was
by submitting to jurisdiction in the face of the court.
Proprietary Immunity
Proprietary Immunity extends to the following three cases
a)Where sovereign is the admitted owner of the subject matter of suit.
Example: The parliamentary Belge (1880) LR 5 PD 197. A ship belonging
to the Belgian government collided with a British ship in Dover harbour.
The Belgian ship carried not only public mail and also merchandise and
passengers for hire. An action brought against the Belgian ship for
negligence was stayed on the ground that the ship was property of the
sovereign government and this was confirmed by the court of appeal.
Another important point decided in this case was that the jurisdictional
immunity enjoyed by the foreign government is not lost because the
vessel was engaged on trading operations.
b)Where the sovereign though not the owner, is in de facto possession
or control of the subject matter through its servants. Example. The
Christina case, (1938, 1 All E.R 729)Republican Government of Spain
issues a decree requisitioning all private ships registered in Spain. The
Christina, British ship registered in Spain was in British port of Cardiff.
Spanish consul boarded the ship dismissed all the crew and captain who
are not sympathetic to the government. The owner of the ship sought a
Writ to detain and get possession from the sovereign through its agent.
Court held that Action would not lie against sovereign as there is
sovereign immunity.
c)Where Sovereign not in possession, has an immediate right to
possession. Example. U.S.A v. Bank of England, ( 1952 1 All E.R
572)During Second World War the Germans seized some gold bars
belonging to a company and carried them to Germany (Axis Powers).
This was recovered by the Allies from Germany and deposited in the
Bank of England to be shared among (U.K, France and U.S.A- Allies).
After the war company claimed the gold bar and filled a suit for its
recovery in English court. Court held that company was only a bailee and
sovereign governments where entitled to the real possession of the gold
bars.
Assumed Jurisdiction
An action in personam is an action brought against a person to compel
him to do something or not to do something. It is an action between
parties as among themselves whether it relates to an obligation or to
chattels.
In action in personam ( as distinct from action in rem) physical presence
of the defendant in England is the basis of the jurisdiction for an English
court. The common law rule is that no action in personam will lie against
a defendant unless he has been served with a writ while present in
England. Either a writ (or summons) should be served on him during his
presence in England or he should voluntarily submit to the jurisdiction of
the court. Nothing other than these will confer jurisdiction.
The above rule often times can promote injustice by preventing a person
from enforcing a claim in England which is the most appropriate forum
to decide the claim. For example, A foreigner makes a contract with an
English man in England and commits a breach of the contract in England.
But before an action is brought before the court, the foreigner returns to
his home state. Under such a situation, according to the common law
rule, it is not possible to invoke the assistance of the English court. The
only remedy to the aggrieved party is to follow the other party to the
place of his residence and try to sue him there. To meet difficulties of
this nature, a new kind of jurisdiction called ‘assumed jurisdiction’ was
introduced by the common law procedure act, 1852. By this, courts were
given discretionary power under certain circumstances to issue
summons against the defendants who were not present in England. This
discretionary exercise of jurisdiction over the absent defendants is now
regulated by Order II of the Rules of the Supreme Court.
The enlarged jurisdiction conferred by Order II is different from the
jurisdiction under common law. If the court has jurisdiction under the
common law, the plaintiff can invoke the jurisdiction as of right. But
under Order II, the court may or may not exercise jurisdiction. The
discretion vested in courts by Order II is one which should be exercised
with extreme caution, after fully considering the circumstances of every
case.
In the exercise of this extended jurisdiction under Order II, the following
five principles have been laid down by courts:
(a ) The court ought to be extremely careful, before it allows a writ to
be served on a person who is outside England,
(b) If there is doubt in the construction in any of the Rules of the Order
II, the doubt should be resolved in favour of the defendant,
© A full and fair disclosure of all the facts of the case must be made by
the plaintiff when he seeks the issue of summons against the
defendant outside England,
(d )The court will refuse to issue summons if the case is outside the
spirit of the rule, though it may come within the letter of the rule,
€ And if the parties have agreed that the dispute between them shall be
referred to the exclusive jurisdiction of a foreign court, the court
most probably refuse to exercise jurisdiction.
The Cases that fall under Order II
according to the provisions of Order II, rule I, the English Court may issue
process against a person outside England (absent defendant) in the
following cases:
[Link] matter of claim concerns land situated within the jurisdiction
of the court
[Link] is sought against a person who, though absent from England at
the time, is domiciled or ordinarily resident in England.
[Link] relates to trust with regard to property situated in England
[Link] relates to the administration of the estate of a person who died
domiciled in England
[Link] relating to contract made in England, or by through an agent
trading or residing in England or terms of contract governed by English
Law
[Link] case of tort – tort committed within England
[Link] case where person outside England is a necessary party to an action
properly brought against some other person duly served when present
in England
[Link] an injunction is sought ordering defendant to do or to refrain
from doing anything within England.
SUING A FOREIGN ENTITY IN INDIA;
India recognizes -“par in parem non habet imperium”, which translates
to, “one sovereign state is not subject to jurisdiction of another state”.
India has signed the United Nations Convention on Jurisdictional
Immunities of States and their Property on 12th January 2007. India has
neither ratified nor accepted the said treaty. Section 86 of the Code of
Civil Procedure, 1908 deals with suing of foreign entity in India. Any
person may sue a foreign state in any court with the consent of the
Central Government. The provision starts with the general rule, that no
foreign state may be sued in any court, and then carves out the
exception of the consent of Central Government by a Certificate in
writing by the Secretary of the State.
Conditions under which the Central Government may give permission
are;
 If the foreign state has instituted a suit in the court against the
applicant.
 If the foreign state, by itself or another, trades within the local limits of
the Indian court.
 If the foreign state’s immovable property, in respect of which the
applicant want to sue is situated in India.
 If the foreign state has waived privilege of Section 86.
[Link] OF THE CAUSE OF ACTION
In any field of knowledge there is an ordering of the concepts. In all
system of law various legal rules are arranged under specific categories
or divisions such as Contracts, torts, Succession etc. Cause of action in a
case should be put into appropriate category; for example, the Judge
should decide whether the cause of action relates to tort or contract etc.
Unless this is done judge will not be able to apply choice of rule of law or
lex causae (Law chosen by the forum court from the relevant legal
system when it judges an International or inter-jurisdictional case),
because the choice of law will be different for different categories.
Illustration: “X” a man Domiciled in Russia dies leaving immovable
properties in England. The widow claims a share of the properties in
England. The widow claims a share of the properties and English court
has to adjudicate upon the widow’s claim. How will you classify the
cause of action? If you classify the matter as a succession in immovable
property the rule of choice of law is the lex situs (law of the place where
property is situated) is applicable. In English Law, with regard to
succession it is the law of the place where the properties are situated. If
you classify the Widow’s claim as matrimonial right, the choice of law
rule is ‘lex domicile’. In England, it is the domicile of the husband – the
Russian Law.
In vast majority of the cases the process of classification is simple and
automatic process. In some cases, however, difficulties arise because the
cause of action may equally be placed in one category or another. Again,
there may be cases where the English law and the foreign law may
classify the cause of action into different categories. In this case there
arises what is called “conflict of classification and the question is “which
law governs classification- lex fori or the foreign law”? Illustration- A
man takes a ticket in London for railway journey from London to
Glasgow in Scotland. He is injured in train collision which occurs in
Scotland. In a suit for compensation, how will you classify the cause of
action? Is it a breach of contract or the commission of Tort?
The above difficulties in classification are illustrated by the famous
Maltese marriage case decided by the court of appeals at Algeria in
1889. Plaintiff, a widow bought an action for share in her husband’s
landed property before French Court. Landed property was In France. At
the time of marriage husband and wife were domiciled in Malta. After
marriage they settled down in France and acquired Domicile of France.
Both According to French and Maltese Law; Succession to landed
property choice of law is ‘Lex situs ‘and matrimonial rights were
regulated by Lex domicile at the time of marriage. How was the cause of
action to be classified? Did the factual situation of the case raise a
question of succession to land or a question of matrimonial rights?. On
this question there was a conflict between Maltese law and the French
law. According to French law the factual situation raises a question of
succession to land, but according to Maltese law the question raised was
one of matrimonial rights. The French court accepted the classification
made by the Maltese law and applied the Maltese law (lex domicilii at
the time of marriage) in deciding the widow’s claim.
But English law does not follow this principle. The English judge will
classify the cause of action by applying English law. All the same, he is
not to ignore completely the classification made by the foreign law and
may give wider meaning to the legal categories recognized in English law
in order to accommodate the foreign classification.
[Link] OF THE LEX CAUSAE- CONFLICTS OF CONNECTING FACTORS
The lex causae has to be ascertained by applying the correct choice of
law rule. The choice of law rule will depend on some connecting factor,
such as domicil, situation of property, place of celebration of marriage
etc. the decisive connecting factor may not be same in all systems of
Private International Law.
[Link] of the Lex Causae: DOCTRINE of Renvoi
The last and final stage is the application of the lex causae to the facts of
the case. This would appear to be simple thing to do. But in fact it is far
from simple. The foreign law has to be proved by expert testimony
before the court.
Once it is decided that a court has jurisdiction, the court is required to
apply the law of a particular country or place. The problem of renvoi
arises in connection with the application of ‘law of a country’. Then,
what do we mean by the ‘law of a country’.
The ‘law of a country’ means the internal law of a country in a narrow
sense ie; excluding the rules of a private international law or in a broad
sense including the rules of private international law.
Thus, the ‘law of a country’ or place means:
(a)Internal law of that country; or
(b)The whole law of that country ie; the internal and the rules of private
international law.
In a country, its private international law, either:
(i)Refer back to the law of the forum, or [it is named in French ‘renvoi’,
in Germany ‘Reckverweisung’ and in English ‘remission’]
(ii)Refer forward to a foreign country. [it is named in German
‘weiterverweisung’ and in English transmission]
In the above case the problem of renvoi arises.
Doctrine can be explained by the following illustration.
‘x’ a British subject, domiciled in Italy, dies intestate leaving movable
properties in England and an English court is required to decide as to
how the movables are to be distributed. Three connecting factors in this
case are (1) nationality, (2) domicile and (3) the place where the
movables are situated. According to English private international law the
decisive connecting factor is the place of domicile and hence the law to
be chosen is the lex domicile of the deceased at the time of his death
i.e.; the Italian law. The judge has to apply the law of Italy. Here the
difficulty is to determine the sense in which the lex causae or Italian law
should be understood. According to Italian private international law
intestate succession to the movable properties is governed by the lex
patriae (law of the nationality); in this case, English law. So we find the
matter is referred back to English law.
The result therefore, is the English private international law
refers the question of succession to movables to Italian law, as the lex
domicile and Italian private international law refers the question back to
English law, as the lex patriae. This reference back is called Renvoi
(meaning remission). If the remission back is accepted, in the above
illustration it is the simple renvoi or single renvoi or partial renvoi.
Fargo’s case
Simple renvoi is illustrated by the well-known French decision in the case
of Fargo. Fargo, a Bavarian national domiciled in France, dies intestate in
France leaving movable properties there. The French court had to decide
how the movable properties were to be distributed there.. According to
French private international law, the law to be applied was the lex
patriae, i.e. law of nationality namely the Bavarian law. Bavarian law, in
what sense? Bavarian law was taken in the wider sense. According to
Bavarian Private International law succession to movables are governed
by the lex domicile. So the Bavarian law referred the question back to
French law. This reference was accepted by the French court and French
law of succession was applied
The Doctrine of Double Renvoi/ The Foreign Court Theory
This is also known by the names of “total renvoi” or English doctrine of
renvoi or the foreign court theory.
According to this theory, an English judge who is referred by his own
law to a foreign system of law should apply whatever law a court in that
foreign country would have applied if the court were seized of the
matter. The English judge is required to make an imaginary journey to
the foreign land and sit in the court of that country. Illustration: X”, A
British subject domiciled in Belgium, dies intestate in Belgium leaving
assets in England. English court has to decide as to how the assets are to
be distributed. Theory requires English Judge to imagine that he is sitting
in a Belgian Court. He will apply the choice of law rule of Belgian private
international Law. According to Belgian private international Law
question of succession is to be decided by lex patriae, (law of nationality)
i.e. English Law. Judge examines English law and finds that English
private international law refers the question back to Belgian law as lex
domicile. Belgian law does not recognizes Single or partial renvoi, so
reference back will not be accepted. So English judge will apply the
internal law of England in distributing the assets.
Cases in Support of the Foreign Court theory/Double renvoi
There are several decisions which are usually cited in support of the
foreign court theory. The earliest of these cases is Collier v. Rivaz (1841)
2 Curt, 855. A British subject who died domiciled in Belgium made a will
which was valid according to English law not according to Belgian Law
and case was instituted in English court. According to English law, English
judge will make an imaginary journey to Belgium court. According to
Belgium law validity of the will should be tested by the law of place of
nationality, so Belgian private international law refers the case to
England. But according to English Private international law validity of the
will should be tested by the law of the place where the testator was
domiciled at the date of his death. So English court refers the case to
Belgium court, Belgium law does not recognizes single renvoi or
referring back so the case will be decided applying English law .If the
cases were to arise in Belgian court, that court would apply English law
as the law of the nationality.
In Re Annesley, [1926 ch 692], the case was concerned with the validity
of the will executed by women named Annesley. She was a British
subject domiciled in France at the time of her death. The will she
executed was valid by English law but failed to satisfy the requirements
of the French law. The English court held that French law should be
applied. The judge reached that conclusion by applying foreign court
theory. English private international law refers the question of validity of
wills in the law of domicile, namely, French law. According to French law,
judge should apply law of the nationality that is English law. But English
law refers back to French law which recognizes partial renvoi therefore
the reference would be accepted and French internal law would be
applied by English court.
Drawback of Foreign Court Theory
Double renvoi does not necessarily ensure uniform results. Uniform
result will only be produced if accepted by one country and rejected by
the other. If recognized by both there will be an interminable reference
back and forth. This theory amounts to surrender of English choice of
law rule. Double renvoi is difficult to apply because has to determine
what other judge would apply and whether country recognizes partial or
single renvoi or not.
[Link] OF FOREIGN LAW
[Link] OF FACT
Points of relevant foreign law should be proved by the parties. They are
treated as questions of fact: consequently, they should be pleaded and
proved to the satisfaction of the judge as any other fact. The onus lies on
the party who wishes to rely on a foreign law. He must state it in his
pleadings and prove it at the trial by adducing evidence. If he does not
do so, the court will decide the case as it were a purely domestic case.
As a rule, the appellate courts will not disturb the findings of fact by the
trial judge, but this is not so when the finding relates to a question of
foreign law.
[Link] OF PROOF
As a general rule, foreign law must be proved by expert evidence. It
cannot be proved by simply placing the text of the foreign law before
the court or by citing foreign decision or foreign text book. These can be
done only by an expert witness, as part of his evidence, and subject to
the cross examination by the opposite party. The court can evaluate and
interpret the text of a foreign law or a foreign decision or the opinion of
an academician only with the assistance of an expert giving evidence
before the court.
[Link] IS COMPETENT WITNESS?
No clear-cut answer is given by English decisions. The general principle is
that no person is a competent witness unless he is a practising lawyer in
the particular legal system or unless he follows a calling in which he
must necessarily acquire a practical working knowledge of the foreign
law. Practical experience would be a sufficient qualification. Thus not
only a foreign judge or a legal practitioner would be a competent
witness, but also such persons as an Ambassador and embassy official, a
reader in law, a Roman Catholic Bishop have been held to be competent.
[Link] OF FOREIGN LAW (LIMITS OF APPLICATION OF FOREIGN
LAW)
Under certain circumstances, private international law of a country
applies foreign law. However the application of foreign law is excluded
due to
(i)Ordre Public ie; public policy
(ii)Being penal law, and
(iii)revenue law.
The Civil Law doctrine of ordre public under which any domestic rule
designed to protect the public welfare must prevail over an inconsistent
foreign rule. Similarly the English doctrine of the forum refuses to
enforce any foreign law which is of penal, revenue or other public law
nature. Finally, the mandatory rules of the forum may be applied, with
the result that, to that extent, a foreign law is excluded.
Thus, under English private international laws, the application of
otherwise applicable foreign law may be excluded under the following
heads:
(i)Foreign Law is against the public policy
(ii)Foreign law is penal law
(iii)Foreign law is revenue law and
(iv)Mandatory rules
PUBLIC POLICY
Public policy is equivalent to the ‘Policy of the law. It is applicable to the
spirit as well as the letter. Whatever tends to injustice of operation,
restraint of liberty, commerce and natural or legal rights, obstruction of
justice, violation of statute, against good morals is against public policy.
Public policy is not the policy of a particular government. It connotes
some matter which concerns the public good and public interest.
According to Graveson, ‘Public Policy’ is an indefinite concept which
indicates those matters regarded by parliament or the court as clearly of
fundamental concern to the State and Society at large.

[Link] law repugnant to the English Public Law

The English law relating to preclusion of foreign law by operation of
doctrine of public policy is formulated by Dicey and Morris thus, “the
court will not enforce or recognise a right, power, capacity, disability or
legal relationship arising under the law of a foreign country, if the
enforcement or recognition of such right, power, etc would be in
consistent with the fundamental public policy of English law”.
It is well established principle that any action brought in England is
subject to the English doctrine of public policy.
The areas where the doctrine of public policy has been applied
[Link] relations
[Link] with an alien enemy
iii. Contracts in restraint of trade
iv. Liability of permanent maintenance of illegitimate children

2 .English Ideas of Justice and Morality

For English courts the overriding test of fairness and honesty is the
English conception. Transactions denied enforcement under the
principles of justice and morality fall into three main groups:
[Link] tainted with immorality in a wide sense: it cannot be
doubted that a contract or other transaction which is objectionable in
English eyes on the ground that it tends to promote immorality will not
receive judicial recognition in England, though it may be innocuous
according to its foreign lex causae.
[Link] contrary to English ideas of Justice: justice in this connection at
times bears a wider meaning of natural justice, and applies particularly
in the recognition and enforcement of foreign judgement.
[Link] Confiscation and requisition of a property : with regard to the
recognition of title to property based on a foreign confiscatory decree,
English Court generally adhere to the territorial concepts of State power
i.e. that a foreign state has authority to deal with all matters within its
territory, but (apart from questions of the personal law) not beyond.
FOREIGN PENAL LAWS
‘Penal law’ imposes punishment for an offence against the State or some
division thereof. The imposition of a penalty reflects the exercise by a
state of its sovereign power. Penalty is a fine or other exaction imposed
by the State for some violation of public order of criminal complexion.
Enforcement of Foreign Penal Law
From very beginning the English courts have taken the view that the
foreign penal law cannot be enforced. The common law has always
considered crimes as entirely local and cognizable and punishable
exclusively in the country where they are committed.
Recognition of Foreign Penal Laws
Although enforcement of foreign penal laws will not be allowed, the
English courts are not precluded from taking notice of foreign penal laws
under the doctrine of public policy.
Mandatory Rules
Mandatory rules of the forum are domestic rules which are regarded as
so important that as a matter of construction or policy they must apply
in any action before a court of the forum, even where the issues are in
principle governed by a foreign law selected by a choice of law rule.
English Law of Extraterritorial Operation
Unless an English statute expressly or by necessary implication is
intended to operate outside England, it will be given a strictly territorial
effect certain statutes e.g.,
1. Wills Act, 1861;
2. Bills of Exchange Act, 1882;
3. Merchant Shipping Act, 1894;
4. Bankruptcy Act, 1914 -26;
5. Foreign Judgment (Reciprocal Enforcement) Act, 1933;
6. Matrimonial Causes Act, 1950 –
Deals expressly with problems of private international law and certain
provisions of choice of law or of jurisdiction.
FOREIGN REVENUE LAWS
‘Revenue law’ is a law requiring a non-contractual payment of money or
kind in favour of the State or some department or subdivision thereof.
Thus, laws imposing income-tax, custom duty, stamp duty, succession
duty, municipal contribution, capital gains tax, compulsory contribution
to the State insurance scheme and a profit levy have been held to be
revenue laws.
Enforcement of Revenue Laws
Ever since Lord Manfield’s remarks in Holman v Johnson, [(17750 1
Cowp 341)], that no country takes notice of the revenue laws of another’
it has been traditional view that no action for the recovery of a tax,
public or local, including such forms as customs, excise and death duties,
or other monetary imposition levied by a foreign State with a foreign
Municipal authority.
Indirect Enforcement
The rule that no action lies to recover foreign taxes is not affected by the
identity of the claimant or by the form in which the action is brought. In
every case the substance of the claim must be scrutinised, and if it then
appears that it is really a suit brought for the purpose of collecting the
debts of foreign revenue it must be rejected.
The indirect enforcement of foreign revenue laws under the cover of
foreign judgments is excluded by the Administration of Justice Act, 1920
and the Foreign Judgements (Reciprocal enforcement Act, 1933).
Recognition of foreign Revenue Laws
For a long time the observation of Lord Mansfield “No country ever
takes notice of the revenue laws of another” was accepted by courts.
The dictum gradually eroded and by now it was totally washed away.
As regard foreign currency legislation e.g., foreign exchange control,
although such regulations may be accompanied by a sanction of criminal
law, that fact does not per se preclude their recognition in England
unless it gives to the foreign law the character of confiscatory legislation.
Indian Law
In India rules relating to jurisdiction in action inter partes are laid down
in Sec.19 and 20 of the Civil Procedure Code. Sec. 19 is confined to suit
for compensation for wrongs to person or movables. Under Sec.20, the
Indian courts can exercise jurisdiction in inter partes actions in the
following four circumstances:
1. When the permanent or temporary residence of the defendant is
within the jurisdiction,
2. If the defendant is engaged in some business within the jurisdiction,
3. If the defendant is working for gain within the jurisdiction,
4. If the cause of action, wholly or in part, arises within the jurisdiction.
It is submitted that the Indian court should not construe strictly the
requirement of residence in Private International Law cases, nor should
it exercise jurisdiction over persons on whom process has not been
served just because cause of action arises within jurisdiction. It is well
established rule of Indian Law and International Law that if the
defendant is resident within the jurisdiction the court will have
jurisdiction to entertain the suit.
There has been a consistent view of Indian courts that if the defendant is
carrying on business personally or through an agent, then the Indian
Courts have jurisdiction, irrespective of the fact whether cause of action
did not arise within the jurisdiction or that the defendant was not
present within the jurisdiction. In Haveli Shah v. Khan Sahib Shaikh
Painda Khan [AIR 1926 PC 88] where the cause of action against the
defendant residing in Punjab arose in Persia but the defendant carried
on business in Quetta (then in India), the Privy Council held that the
defendant could be sued in Quetta.
Submission to jurisdiction
If a person is outside the jurisdiction, the court will have jurisdiction on
him only if he submits to the jurisdiction of the court. In case the
defendant does not submit to the jurisdiction of the court, then the
judgement delivered in his absence would be null and void (Shaik
Athama Sahib v. Davud Sahib [(1909) 32 Mad 469]).
If the defendant puts up appearance in the court, then the appearance
to amount to submission, must be unconditional; he must unequivocally
submit to the jurisdiction of the court. Only full participation by the
defendant in the proceedings amounts to submission to jurisdiction. The
waiver of objection to the jurisdiction of the court also amounts to
submission to jurisdiction. In Bahrain Petroleum Co. Ltd v. P.J. Pappu
[AIR 1966 SC 634] the Supreme Court observed that it is possible to say
that long and continued participation by the defendant in the
proceedings without any protest may, in an appropriate case, amount to
a waiver of objection to jurisdiction.
Against whom suit may not be filed: Jurisdictional immunity
Although as a general rule an action can be filed against any person who
is present within the jurisdiction, there are certain persons who enjoy
jurisdictional immunity and therefore, suits cannot be filed against them.
The following enjoy jurisdictional immunity:
1. Foreign state, its head and its departments;
2. Persons entitled to diplomatic immunity; and
3. Officials of international organisations including United Nations and its
organs.

Foreign State and the Foreign Sovereign:

The rule of immunity of foreign state and its head has been derived from
the English law maxim 'par in parem non habet imperium' and from the
rules of public international law. The principle of sovereign immunity is
now an internationally recognized principle. The immunity from
jurisdiction of the foreign sovereign exists in respect of his person and
property. The personal immunity of the sovereign is almost unlimited. If
the question before the court is not of the jurisdictional immunity of the
sovereign but of the existence of sovereignty in some other connection,
the court is not bound by the statement of the foreign office or
commonwealth office that foreign government concerned is not
recognized by the Crown. In such a situation actual facts are decisive.
The jurisdictional immunity does not extend to the sovereign of the
State which is not recognized by the Crown. However, if the foreign
state is recognized provisionally or de facto that is enough to confer
immunity.
Indian law of jurisdictional immunity is primarily based on English law,
though in some minor details it makes some departure from it. Sec. 84
to 87A of the Civil Procedure Code deal with this matter. Sec. 84A (1) (a)
defines, "Foreign State" as "any state outside India which has been
recognized by the Central Government". Sub-section (2) of Sec. 87A lays
down:
Every court shall take judicial notice of the fact:
1. That a state has or has not been recognized by the Central
Government;
2. That a person has or has not been recognized by the Central
Government to be the head of a State.
The Indian Law has been codified. Sec.86, Civil Procedure Code confers
jurisdictional immunity to (a) ruler or head of a foreign state,
(b)ambassador or envoy of a foreign state, (c) High Commissioners of the
Commonwealth States, and (d) members of the staff or retinue of the
head or ruler of the foreign state, ambassador, envoy or High
Commissioner, as the Central Government may, by general or special
order specify in his behalf. These persons cannot be sued in any court in
India except with the consent of the Central Government certified in
writing by a Secretary to the Government. The jurisdictional immunity
extends to all civil actions as well as to execution proceedings. The
aforesaid person cannot be arrested under any provision of the Code of
Civil Procedure.
The Central Government will give consent only in the following cases:
1. When the foreign state, etc has instituted a suit in the court against
the person desiring to sue,
2. When the foreign state by itself or with another trades within the
local limits of the jurisdiction of the court,
3. Went the foreign state is in possession of immovable property
situated within those limits and is to be sued with reference to such
property or for money charged thereon, or
4. When the foreign state has expressly or impliedly waived the privilege
accorded to it.
The Indian law lays down that even when a foreign Ruler is sued, the suit
is to be in the name of the foreign state whose ruler he is, though the
Government of India may direct that the Ruler may be sued in the name
of an agent or in any other name.