ASHOK AGARWAL, J.:---The questions which arise for our consideration, in the present Appeal, are:

(i) Whether the appellant - original defendant No. 3 Kenya Airways can be held to be a Foreign State within the meaning of section 86 of the Code of Civil Procedure, 1908?

(ii) If yes, whether the first respondent original plaintiff was required to obtain a consent of the Central Government before filing the present suit as required by the aforesaid section?

(iii) Whether the third defendant has waived its right under section 86 of the Code?

(iv) Whether the communication dated 2nd June, 1995 addressed by the Ministry of External Affairs, Government of India, to the plaintiff entitles the plaintiff to file the present suit on the hypothesis that no consent under section 86 is required to be obtained prior to filing of the present suit?

2.Appellant, Kenya Airways, is defendant No. 3 in the suit. Respondent is original plaintiff No. 1, who along with original plaintiff No. 2, since deceased, is owner and as such landlord in respect of a flat on the South-West side on second floor of Dunkeld Building, 8, Harkness Road, Bombay 400 006 alongwith a garage located on the ground floor of the said building. Under an agreement of leave and license dated 11th of June, 1974 plaintiff Nos. 1 and 2 permitted original defendant one Mr. Ben Mbrani, the Manager in India of East African Airways posted at Bombay and having a temporary assignment in India, to occupy the said flat on leave and licence basis for a period of six months commencing from 1st June, 1974. Under Clause 4 of the agreement, the licence was given to defendant No. 1 for use of the flat and the garage for his personal use only and for no other purpose. The flat was to be used for his personal residence only. Clause 7 of the agreement provided that in case the licensee commits breach of any of the terms and conditions of the licence the licensor shall become entitled to revoke the licence notwithstanding the fact that the period of licence had not expired and upon revocation of the licence the licensee and his family were to remove themselves from the flat and garage. On the date of the execution of the leave and licence agreement, defendant No. 1 executed a declaration whereby he confirmed that the owners had given the said licence to him on his express representation that he will hand over to them possession of the said flat on or before the expiry of the said licence without creating any difficulty or obstruction or without claiming any right or interest of any kind whatsoever in the said flat and in the said garage. He further confirmed that but for the aforesaid representation the owners would not have given the said leave and licence to him.

3.After passage of time original defendant No. 2 M. Yusuf Butt - came to be inducted in the aforesaid premises. By a communication issued by defendant No. 2 on 29th July, 1978 to the attorneys of the plaintiffs, defendant No. 2 claimed that he was occupying the premises having succeeded defendant No. 1 in his capacity of being the Manager of the third defendant Kenya Airways. Defendant No. 2 accordingly claimed to be in possession in his independent right being the Manager of Kenya Airways in Bombay. Present suit for possession is filed on the 30th of August, 1978 claiming possession of the aforesaid premises from the defendants.

4.In the suit, plaintiff took out Notice of Motion No. 1012 of 1978 for interim reliefs. In the motion, defendant No. 2 filed an affidavit in reply. In para 1 of the reply defendant No. 2 asserted that he was at present the Manager, in India, of the third defendant- Kenya Airways. Averments contained in paras 2(a) to 2(c) and para 3(a) of the affidavit, which are relevant for the enquiry at hand, read as under :

2(a) The defendant No. 1 at the relevant time was the Manager - India of East African Airways. On East African Airways discontinuing its operations in India, Kenya Airways, commenced operations in In