2008 PLP 98 (CLD)

MAULVI ANWAR-UL-HAQ, J.

On 31-5-2000, the respondent No.1 filed a suit against the appellant and the remaining respondents for recovery of Pak rupees equivalent of UAE DHs.1,602,523.67. In the plaint it was stated that the appellant and the remaining respondents are the customers/borrowers of respondent No.

1. Respondent No.2 maintained an account with the Bank's branch at Dubai and had been availing various facilities as detailed in para.5 of the plaint. Several documents, mentioned in para-6 were executed by the defendants in the suit regarding the appellant who was defendant No.2 in the suit, it was urged that he had executed a personal guarantee to discharge the said liabilities of respondent No.2. Default was committed and a suit was filed in the Commercial Court at Dubai. The suit was decreed against the defendants jointly and severally. Respondent No.1 still felt aggrieved and filed an appeal in the Dubai Court of Appeal. The appeal was allowed and ultimately a decree was passed on 14-1-1997 in a sum of DHs 1,535,736.45. The defendants in the suit were stated to have fled from Dubai and to be residing at the address given in the plaint. According to the plaint, the matter had been conclusively and directly determined and adjudicated on merits by the Dubai Court of Appeal. A decree was accordingly prayed, for. Only the appellant put in appearance and filed an application for leave to defend the suit. Several objections were raised in the said application which will be referred to in the later part of this judgment. On merits, it was stated that the appellant had never gone to Dubai after 25-3-1993 and the guarantee stated to have been executed by him on 5-6-1993, was never so executed and is forged document. The application was replied by the Bank vide judgment and decree dated 30-7-2001, learned Judge Banking Court-II, Lahore, refused to grant the leave and decreed the suit in the sum of Rs.2,26,64,282.52 against all the defendants with costs jointly and severally.

2. Mr. Najam-ul-Hassan Kazmi, Advocate, learned counsel for the appellant contends that the judgment and decree alleged to have been passed by the Court at Dubai had not been certified in the manner prescribed in Article 89(5) of Qanun-e-Shahadat Order, 1984 and as such the said copy did not constitute evidence of the fact that a foreign judgment has been passed in favour of the respondent No.

1. Further contends that the provisions of section 13 C.P.C. were not considered at all as to the relevancy of the said judgment. According to him the impugned judgment is completely silent as to the plea of the appellant that he had not executed the guarantee and further that he was not present at Dubai when the guarantee is stated to have been executed by him: He relies on the cases Nusrat Mehdi Chaudhri v. Habib Bank Ltd. and another" 2006 CLD 405 and "Naeemullah Malik v. United' Bank Ltd and 2 others" 2006 CLD 1592.

3. Mr. Waheed Mazhar, Advocate, learned counsel for contesting respondent No.1 insists that since copy of the judgment of Dubai Court had been attested by the Consular of Pakistan Embassy, the same sufficiently meets the requirement of Article 89(5) of Qanun-e-Shahadat Order, 1984.

4. We have gone through the records with the assistance of the learned counsel for the parties. It is evident on record that the respondent-Bank sued on the basis of said foreign judgment stating that the cause of action has also arisen because of the said fact. We also find that the mode of proof of such a document is prescribed in Article 89(5) of Qanun-e-Shahadat Order, 1984 which is as follows:-- "(5) Public documents of any other class in foreign country, by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or of a Pakistan Counsel or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document accordingly to the law of the foreign country." The foreign judgment relied upon by the respondent-Bank bears the following legend both in Arabic as well as in English version:-- PHOTO COPY ATTESTED S. AFZAL HUSSAIN SHAH Consular Officer. Office stamp of Consulate General of Pakistan in Dubai is also affixed. To our mind, prima facie, said attestation or, certificate does not meet the requirements of the said provision of law and it needs to be determined as to, whether the person issuing the said certificate was the legal keeper of the said document or having the legal custody of the original and if not what is the effect. After the determination of the said primary fact, the Court will further have to determine whether the said foreign judgment is conclusive within the meaning of section 13 C.P.C. We may note here that the impugned judgment does not at all refer to the specific denial of the execution of the guarantee and the assertion of the fact that the appellant was not present in Dubai when the guarantee is stated to have been executed by him. Having thus examined the records, we do find that the appellant had made out a plausible defence to entitle him to grant leave to defend the suit. We find that the suit was filed and decided before the promulgation of Financial Institutions (Recovery of Finances) Ordinance, 2001. RFA accordingly is allowed. The impugned judgment and decree of learned Judge Banking Court-II, Lahore is set aside as against the appellant only which will remain intact against other defendants in suit. The appellant is granted leave to appear and to defend the suit filed by respondent No.

1. The appellant and the Bank shall appear before learned Judge Banking Court-II, Lahore on 10-12-2007. The appellant shall file his written statement and learned Judge Banking Court shall proceed to decide the matter in accordance with law.

5. No orders as to costs.

6. A copy of this judgment along with records be remitted back immediately by the office. S.A.K./Z-56/L???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.