P L D 1966 (W (PLP)

KHAMISANI, J.‑

This is a reference, the necessity of which arose because of dastardly and unprovoked invasion of India upon sacred territory of Pakistan. The office knowing that several suits in which alien enemies were either the plaintiffs or the defendants were pending within the jurisdiction of the West Pakistan High Court, put up all the suits for decision whether they fell within the ambit of section 83 of the Code of Civil Procedure and could be proceeded with. The Senior Judge of this Bench directed the matters to be placed before a Division Bench. Notices to the learned counsel appearing in all those matters were issued. Notice to the Custodian of Enemy Property was also given. This reference consequently came up before us for hearing on the 13th of December 1965.

2. The following is the list of cases in which the plaintiffs are said to be alien enemies. (1) Suit No. 160/64 Hindustan Construction Co. v. Province of West Pakistan. The plaintiff's. office is in India. (2) Suit No. 161/54 Hindustan Construction Co. v. Province of West Pakistan. The Plaintiff's office is in India. (3) Suit No. 179/54 Hindustan Construction Co. v. Province of West Pakistan. The Plaintiff's office is in India. (4) Suit No, 44/58 Ajaz Husain and others v. Mst. Alya Begum and others. Plaintiff No. 5 is residing in India. (5) Suit No. 154/59 Messrs Esoofali and others v. Kassim. The Plaintiffs are residing in India. (6) Suit No. 70/60 Kulsum Bai and others v. Mst. Shah Sultana and others. The plaintiffs are residing in India. (7) Suit No 164/62 Muhammad Ishaq and others v. Haji Karam Illahi and others. Plaintiffs 1 to 4 and 11 to 14 are residing in India. (8) Suit No. 176/62 Rajab Ali and others v. Muhammad Ibrahim and another. Plaintiffs 1 to 15 are residing in India. (9) Suit No. 89/63 Ganesh Floor Mills v. Messrs Kulqundis Lines Ltd. and others. Plaintiff's company is incor porated in India. (10) Suit No. 160/63 Keki Pestonji Jamadar v. Yousuf and others. Plaintiff is residing in India. (11) Suit No. 180/63 Messrs Pervez Merwanji Bomanjee Dalal v. Phoenix Mills Ltd. Plaintiff is residing in India. (12) Suit No. 145/64 Deepchand v. C. Heynen and another. Plaintiff is residing in India. (13) Suit No. 146/65 Ideal Life Insurance Co. v. Life Insurance Corporation. Plaintiffs vest Controller of Insurance, Government of Pakistan. (14) Suit No. 167/65 Haji Jusub v. Mst. Khatoo and others. The Plaintiff is Indian National. (15) Suit No. 168/C5 Framjee Rustamjee v. Ratanshah. The next kins 3 to 6 are residing in India. (16) Suit No. 174/65 Mst. Khatabai and others v. Abdul Shakoor and others. The Plaintiffs are in India.

3. The following is the list of cases in which the defendants are said to be alien enemies. (1) Suit No. 1309/53 Muhammadi St. S. Co. v. Shiv Ratan and others. The defendants are evacuees. (2) Suit No. 24/60 Habib and others v. Haji Muhammad and others. Defendant No. 4 is residing in India. (3) Suit No. 3/61 Adamali & Sons v. Messrs Mahmood W. Akhwan and others. Defendants 3 and 4 are residing in India. (4) Suit No. 35/61 Haji Muhammad and others v. Sharif and others. Defendant No. 10 is residing in India. (5) Suit No. 46/61 Trustee of Port Trust of Karachi v. Jamnadas and others. Defendants 1 to 3 are evacuees. (6) Suit No. 187/61 Abdul Karim. v. Hussain Mumtaz and another. Defendant No. 2 is residing in India. (7) Suit No. 17.5/62 Muhammad Ishaq and others v. Nasiruddin. Defendants 19 and 20 are residing in India. (8) Suit No. 191/63 Hoshang and others v. Dr. E. P. Bharucha and others. Defendant No. 1 is in India. (9) Suit No. 89/64 Mst. Zubeda and others v. Dayalalvalji and others. Defendants 1‑5 are residing in India. (10) Suit No. 178/65 Ashraf All v. Bank of India and another. Defendant No. 1 vests in Deputy Governor of State Bank of Pakistan. (11) Suit No. 198/65 Mst. Zaitoon Begum v. Ali Abbas and others. Defendant No. 4 is in India.

4. The following is the execution case in which the applicant is said to be an alien enemy:‑ (1) Execution No. ‑33/65 Indralal v. Mst. S. Abdul Ghafoor and others. The decree‑holders are residing in India.

5. It is undisputed that Pakistan and India are in a state on hostility. For the purpose of disposing of this reference the first question that has to be considered is whether the state of hostility between Pakistan and India is such which can bring the above cases within the operation of section

83. C. P. C. Section 83 in its amended form reads as under: "83. (1) Alien enemies residing in Pakistan with the permission of the Central Government, and alien friends, may sue in the Courts in the Provinces, as if they were citizens of Pakistan. (2) No alien enemy residing in Pakistan 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 or is engaged in military operations against Pakistan, and carrying on business in that country without a licence in that behalf under the hand of a Secretary to the Central Government shall, for the purpose of subsection (2), be deemed to be an alien enemy residing in a foreign country."

6. In order to understand and interpret section 83, C. P. C., it is necessary to bring also on record the background under which the hostility between the two countries started. It is very well‑known that on the 6th of September 1965, Indian armed forces attacked Pakistan clandestinely without any warning. The President of Pakistan on that very day issued a proclamation, the relevant words of which are reproduced hereunder. "Now that the Indian rulers, with their customary cowardice and hypocrisy; have ordered their armies to march into the sacred territory of Pakistan, without a formal declaration of war, the time has come for us to give them a crushing reply which will put an end to India's adventure in imperialism. The brave people of Lahore have been chosen as the first to confront the enemy. They will remain in history as the people who delivered the last blow to destroy the enemy. The 100 million people of Pakistan whose hearts heat with the sound of "La Elaha Illallah Mohammadur Rasulallah" will not rest till India's guns are silenced for ever. The Indian rulers do not yet realise what people they have taken on. Dedicated to their faith and convinced of the justice of their cause, they will fight as one man in the name of God whose promise to mankind is that right shall triumph. A state of emergency has been declared. We are at war. Our brave soldiers have gone forward to repel the enemy. The armed forces of Pakistan will prove their mettle. Armed with an invincible spirit and a determination which has never faltered they will give a crushing blow to the enemy." On the same day, the President of Pakistan issued a Proclamation As To Contraband Of War which was published in the Extra ordinary Gazette of Pakistan pf the 9th of September 1965. The state of emergency was also declared by the President of Pakistan on the same day under Article 30 of the Constitution. Another Proclamation As To Contraband Of War was also published 'in the Extraordinary Gazette of Pakistan of the 11th of September 1965. In the Proclamation As To Contraband Of War it was stated as under: "Whereas a state of war exists between Pakistan, on the one hand, and India on the other. And whereas it is necessary to specify the articles which it is the intention of the Government of Pakistan to treat as contraband of War." The Defence of Pakistan Ordinance, 1965 (Ordinance XXIII of 1965) was also promulgated on the 6th of September 1965. Under section 4 of this Ordinance it was enacted that any rule made under section 3, shall prevail notwithstanding its incon sistency with anything contained in any other enactment or law. Under section 14 of this Ordinance the ordinary Criminal and Civil Courts were directed to exercise jurisdiction subject to what was contained in the Ordinance.

7. The Defence of Pakistan Rules, 1965, have also defined `enemy' and 'enemy territory' in Rules 2 (2) and (3). Rule 2 (2) reads as under: "2(2) `enemy' means any person or State at war with, or engaged in military operations against, Pakistan." Rule 2 (3) reads as under: "2 (3) 'enemy territory' means‑ (a) any area which is under the sovereignty of, or administered by, or for the time being in the occupation of, a State at war with, or engaged in military operations, against, Pakistan, and (b) Any area which may be notified by the Central Government to be enemy territory for the purposes of these rules or such of them as may be specified in the notification." Under rule 161 of these Rules, `enemy' has been defined in Clauses (a), (b) and (c) as under: "161 (a) Any State, or Sovereign or a State, at war with, or engaged in ‑military operations against, Pakistan. (b) Any individual resident in enemy territory, or (c) anybody of persons constituted or incorporated in 'enemy territory, or in, ' or under the laws of, a State at war with Pakistan." Under Rules 169 of these Rules, 'enemy subject' has been defined in clause (a) of sub‑rule 1 as under: "169 (1) (a) Any individual who possesses the nationality of a State at war with, or engaged in military operations against, Pakistan, or having possessed such nationality at any time has lost it without acquiring another nationality." `Enemy firm' has been defined in sub‑rule 2 (b) of rule 169 as under: "169 (2) (b) Any firm, whether constituted in Pakistan or not, of which any member or members or officer is an enemy subject, and which is carrying on business in Pakistan." In rule 182 of these Rules it has been said that with a view to preventing the payment of moneys to an enemy firm, and to provide for the administration and disposal by way of transfer or otherwise of enemy property and matters connected therewith or incidental thereto, the Central Government may appoint a Custodian of ‑Enemy Property for Pakistan and one or more Deputy Custodians and Assistant Custodians of Enemy Property for such local areas as may be prescribed.

8. Enemy Property (Custody and Registration) Order, 1965, was also promulgated and published in Gazette of Pakistan, Extraordinary, of 9th of September 1965. Sub‑rules (i) to (iv) of Rule 4 lays down that the Custodian or such person as may be specially authorized by him in this behalf, may carry on the business of the enemy, take action for recovering any money due to the enemy, make any contracts, and execute any documents in the name and on behalf of the enemy, and institute, defend or continue any suit or other legal proceeding, refer any dispute to arbitration and compromise any debts, claims or liabilities. Rule 5 of Enemy Property (Custody and Registration) Order 1965, exempts all enemy property vesting in the Custodian from attachment, seizure or sale in execution of a Civil Court decree or orders 'of any other authority.

9. From the various proclamations issued by the President of Pakistan and the language in which they are couched and from the various provisions of defence of Pakistan Ordinance and Defence of Pakistan Rules enumerated above there can be no doubt that the Government of India is at war with or is engaged in military operations against Pakistan. This being the state of law there can be no manner of doubt that the persons residing in India or domiciled in India but carrying on business in Pakistan fall within the Explanation of section 83, C. P. C., and are alien enemies. The learned Attorney‑General, the learned Advocate‑General and Mr. A. A. Fazeel, the learned Advocate for the Custodian of Enemy Property and all other counsel appearing before us are one in holding that India is at war with or is engaged in Military operations against Pakistan.

10. The conclusion having been reached that India is at war with or is engaged in Military operations against Pakistan, the next question for the purpose of interpreting section 83, C. P. C., that will pose for consideration will be as to who are the alien enemies and what are their rights and liabilities. The question as to who are alien enemies has received judicial consideration time and again and is by now settled. Two main considerations that have governed the decisions of the Courts regarding the rights and liabilities of the alien enemies are (1) the place of their residence, and (2) the likelihood of enrichment of the enemy country. The principle on which the decisions A regarding alien enemies was originally founded was of public policy but the same has now become a settled question of law having received legal sanction through various decisions of the Courts of law. This question has also received attention of the Courts in England and the view at common law on this question has been the subject‑matter of several decisions. In Porter v. Freudenberg, Kreglinger v. S. Samuel and Rosenfeld and In re: Merten's Patent ((1915) 6 K B 857) the rights of alien enemies have been' discussed at great length by Lord Reading, C. J. at page

867. His Lordship has, while dealing with this subject, said as under: "It is necessary at the outset to keep clearly in mind the meaning of the term `alien enemy' when used in reference to civil rights and liabilities. Its natural meaning indicates a subject of enemy nationality, that is, of a State at war with the King, and would not in any circumstances include a subject of neutral State or of, the British Crown, but that is not the sense in which the term is used in reference to Civil rights. Ever since the great case of The Hoop (1 C Rob. 196) the law has been firmly established as pronounced in the judgment of Lord Stowell (then Sir William Scott) that one of the consequences of war was the absolute interdiction of all commercial intercourse or correspondence by a British subject with the inhabitants of the hostile country except by permission of the Sovereign. This branch of law was again considered as a result of the Crimean War, and Willes, J., in delivering the judgment of the Court of Queen's Bench in Esposito v. Bawden (1857) 7 E & B at p. 779 said it is now fully established that the presumed object of war being as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of commercial intercourse and correspondence with the inhabitants of the enemy's country and that such intercourse, except with the licence of the Crown is illegal.' This law was founded in earlier days upon the conception that all subjects owing allegiance to the Crown were at war with subjects o C the State at war with the Crown, and later it was grounded upon public policy, which forbids the doing of acts that will be or may be to the advantage of the enemy State by increasing its capacity for prolonging hostilities in adding to the credit, money or goods, or other resources available to individuals in the enemy State. Trading with a British subject or the' subject of a neutral State carrying on business in the hostile territory is as much assistance to the alien enemy as if it were with a subject of enemy nationality carrying on the business in the enemy State, and, therefore, for the purpose of the enforcement of Civil rights, they are equally treated as 'alien enemies. It is clear law that the test for this purpose is not nationality but the place of carrying on the business: Wells v. Williams 1 Ld. Raym. 282 ; McConnel v. Hector per Lord Alvanley, C. J. 3 Bos. & p. 113 ; Janson v. Driefontein Consolidated Mines 1902 A C at p. 505 per Lord Lindley. When considering the enforcement of civil rights a person may be treated as the subject of an enemy State, notwithstanding that he is in fact a subject of the British Crown or of a neutral State. Conversely a person may be treated as a p subject of the Crown notwithstanding that he is in fact the subject of an enemy State. As Lord Lindley said in Janson v. Driefontein Consolidated Mines 1902 A C at p. 505: `When considering questions arising with an alien enemy it. is not the nationality of a person but his place of business during war that is important." It has further been said at page 880 as under:‑-- "Having now explained the meaning of `alien enemy' for Civil, purposes, and having, decided that such alien enemy's right to sue or proceed either by himself or by any person on his behalf in the King's Courts is suspended during the progress of hostilities and until after peace is restored the next point to consider is whether he is liable to be sued in the King's Courts during the war. To allow an alien enemy to sue or proceed during war in the Civil Courts of the King would be, as we have seen, to gives to the enemy the advantage of enforcing his rights by the assistance of the King with whom he is at war. But to allow the alien enemy to be sued or proceeded against during war is to permit subjects of the King or alier friends to enforce their rights with the assistance of the King against the enemy. Prima facie there seems no possible reason why our law should decree an immunity during hostilities to the alien enemy against the payment of just debts or demands due to British or neutral subjects. The rule of law suspending the alien enemy's right of action is based upon public policy, but no considerations of public policy are apparent which would justify preventing the enforcement by a British or neutral subject of a right against the enemy."

11. In the case of Daimler Company, Limited v. Continental Tyre & Rubber Co. (Great Britain), Limited (1916 A C 307) the similar view was expressed and an action was struck out as irregular as the same was commenced without authority. In the case Rodrigue v. Speyer Brothers (1919 A C 59) the view taken was that an alien enemy can derive no benefit from the laws of the country and has no rights or privileges during the time of war except by the special favour of the government of the country. It was also held that an alien enemy is wholly incapacitated from suing either at law or in equity, for he cannot invoke the assistance of the King's Courts. It was further held that such an incapacity was a personal disability inherent in the character of alien enemy. The test laid down for the purpose of determining whether an action could or could not be pursued was whether in the event of an action of an alien enemy being successful the success of the alien enemy would lead to the enrichment of the enemy during the war. The view was also taken that even in the case of an appeal by two co‑plaintiffs, one of whom had become an alien enemy before the hearing of the appeal, the appeal must be suspended during the war. The view of Lord Finlay in this case is reproduced as under: "There is no doubt that, as a general rule, an alien enemy cannot bring an action in the King's Courts as plaintiff, though he may, of course, be made a defendant. The rule seems to have its origin in two considerations. Firstly, that the subject of a country then at war with the King is in this country,1 unless he be here with the King's permission, exlex and than he cannot come into the King's Courts to sue any more than could an outlaw ; and secondly, that the King's Courts will give no assistance to proceedings, which, if successful, would lead to the enrichment of an alien country, and therefore would tend to provide his country with the sinews of war. The rule is founded on public policy; but any such rule of law must be observed, even if there are circumstances in any particular case which make its enforcement contrary to public policy, and indeed detrimental to the interests of this country." The view of Lord Atkinson in this case was as under: "This rule of our law, like many others of our rules of law, was, no doubt, originally bused upon, and embodied, certain views of public policy; but in this case, as in many others, the principles of public policy so adopted have, as numerous authorities conclusively show, crystallised, as it were, into strict and rigid rules of law to be applied, to use Lord Stowell's words, `with rigour'."

12. A similar view was expressed in V/O Sovfract v. Gebr. Van Udens Sheepvaart En Agentuur Maatschappij ((1943) All E L R 76). The view taken in this case is that an alien enemy cannot sue or otherwise take up the position of an actor save under permission of the Government. An alien enemy in this connection has been interpreted to mean not only a subject of a State at war with the country but a person of whatever nationality who is carrying on business in or is voluntarily residing in the enemy's country. Lord Atkinson in this case at page 80 answered the question in following words: "The question that is in dispute is the right of the resident of enemy‑occupied country to enforce by suit in this country civil rights whether by contract or otherwise, a question that will generally concern rights claimed that arise from commercial transactions. When a British Court has to consider what is the nature and extent of the enemy occupation that makes the resident an enemy, I think that in these days one of the most important tests would be the extent to which the enemy while in occupation assumes to control the civil rights of the subjects of the occupied country. If that control be for the material time effective, I am inclined to think that it matters not that the enemy contemplate to withdraw that control at some future time or on some future event whether distant or not. I have no doubt in this case that the enemy effectively control the commercial operations of the appellants in Holland; and that a successful judgment in this action would directly or indirectly ensure to the enemy benefit, and that the plaintiffs are precluded as enemy aliens from suing in these Courts without the licence of the Crown."

13. Even in Halsbury's Laws of England, Vol. 39 at page 34 the right of an alien enemy to sue has been put in the following words: "

25. Right of an alien enemy to sue. On grounds of public policy an alien enemy is not permitted to maintain an action in the Courts of this country during the progress of hostilities, unless expressly licensed by the Crown to sue as resident in this country by licence or ‑under the protection or authority of the Crown. A subject of an enemy state who is registered in accordance with an Order in Council for the time being in force under the Aliens Restriction Act, 1914, is entitled to sue in the Courts of the United Kingdom notwithstanding the fact that he has been interned as a civilian prisoner. A prisoner of war may, whilst still in confinement, sue upon a contract entered into by him whilst he was a prisoner. Subject to the foregoing exceptions, an action commenced by an alien enemy before the outbreak of war cannot be continued after its outbreak, nor can an alien enemy plaintiff appeal in respect of a judgment pronounced against him, nor can any other person maintain an action of an alien enemy during the continuance of hostilities. The right of action is, however, merely suspended and revives on the restoration of peace. The Court may apparently, take notice of the fact that a plaintiff is an alien enemy even though the fact is not pleaded."

14. This question has also been discussed in Legal Effects of War by McNair and what is laid down by his elaborate discussion on the subject is that an alien enemy cannot be an actor in a matter which will ensure to the benefit of enemy country. This subject has also been dealt with in Legal Controls of International Conflict by Julius Stone.

15. The last case on the subject is Ali Jan v. Abdur Jalil (A I R 1920 Lah, 4). Their Lordships have answered the question in controversy in this reference in the following words: "But this is not the meaning of the expression when used in reference to civil rights and liabilities. For this purpose the place of residence or the place where the business is carried on, and not the nationality, is the determining factor, and even a British subject will be treated as an alien enemy, if he voluntarily resides or carries on business in a hostile country. In other words an enemy means a person, of whatever nationality, residing or carrying on business in the enemy country. The reside‑ace must of course be a voluntary one because it is clear that an involuntary residence, e.g., that of a prisoner of war or an internee, does not debar him if otherwise qualified, from invoking the assistance of the British Courts That nationality is not the test for determining the status of a person for the purpose of Civil rights and liabilities is clear from the explanation appended to section 83, Civil F. C., and the doctrine has been repeatedly affirmed in a series of judgments by the English Courts. It was enunciated during the Napoleonic wars in, the case of McConnell v Hector (1802) 3 Bos. & P. 113 when two of the Judges laid down that a British subject resident and carrying on trade in an enemy's countries is an alien enemy and is consequently incapable of suing in an English Court. The reason of the rule is that the fruits of the action may not be remitted to a hostile country and so furnish resources against this country." Their Lordships have also said that the correct proposition appears to be that if a person resides in a hostile country for a substantial period of time he acquires the disability attaching to an enemy during the period unless such residence is with the consent of the Crown. The residence must however be of a voluntary character, for example, a prisoner of war kept in the enemy country cannot be regarded as an alien enemy. A person may not be resident in an enemy country and yet he may, acquire, an enemy status if he carries on business in that country. The plaintiffs in this case were non‑suited by the District Court and the action of the District Judge was upheld by their Lordships,

16. In answering this reference we have merely to lay down general principles on the basis of which the actions pending in Court whether on the Original Side or on the Appellate Side can be disposed of. On the discussion of the cases mentioned above the undisputed position that emerges and which has also the the concurrence of the learned counsel appearing in this reference is that: (1) The suits in which the plaintiffs are enemy, aliens cannot proceed. (2) The suits in which the defendants are enemy aliens can proceed. If the enemy property is involved and vests in the Custodian of Enemy Property it is open to him to continue or defend the suit. (3) In the case of appeals an enemy plaintiff is not competent to file an appeal during the continuance of the hostilities on the principle that on account of the action pending in appeal the alien enemy may get such benefit which is likely to enrich the enemy country. Such action, if pending, will be suspended. In the case of enemy defendants they are entitled to file appeals and to pursue their remedy in the same way as any other citizen of Pakistan. But in cases where, after the conclusions of the appeals, the alien enemy gets pecuniary benefit conducive to the enrichment of the enemy country, he will not be entitled to derive any benefit out of it; and would therefore be not competent to enforce it. (4) The execution applications and other miscellaneous matters will also be controlled by the above‑mentioned general principles. These are some of the general principles which will govern the cases before us. Any other case pending before any other Court may be disposed of keeping in view the general proposition laid down by us in this judgment. The reference stands disposed of in the light of what has been said above: WAHIDUDDIN AHMAD, J.‑

I have had the advantage of reading the order proposed by Khamisani, J. The reference under consideration was made by the office to find out the legal effect of the open hostilities that existed between Pakistan and India on the suits, executions and appeals filed by or again t the Nationals of India or persons residing or carrying on business in that territory and pending in this Court. It will be noticed that India‑ had not declared any formal war against Pakistan. Had a formal war been declared the applicability of section 83, C. P. C. would not have presented any difficulty. The above provision of law in its unamended form provided in its explanation is‑as under: "Section

83. Explanation.‑Every person residing in a foreign country the Government of which is at war with Pakistan and carrying on business in that country without a licence in that behalf under the hand of a Secretary to the Central Government shall for the purpose of subsection (2) be deemed to be an alien enemy residing in a foreign country." According to the Explanation added to section 83, C. P. C. only those persons would be deemed to be alien enemies who reside in a foreign country, the Government of which is at war with Pakistan or who are carrying on business in that country without a licence in that behalf granted by the Central Government. , In the absence of any formal declaration of war, it was, therefore, for consideration whether in law India would be considered to be a country at war with Pakistan within the meaning of section 83, C. P. C., Khamisani, J. has dealt in detail with this aspect of the case. I am in full agreement with my brother that, though India did not formally declare war, the Government of Pakistan having treated the attack of India on West Pakistan as an act of war, it was open to this Court to take this circumstance for holding that India was at war with Pakistan. The contention of Mr. Sharifuddin, the learned Attorney General, that the declaration made by the President of Pakistan and a number of legislations that followed it, referred to if the order of Khamisani, J. according to well recognized principles of international Law were quite sufficient to apply section 83, C. P. C. is well founded.

3. In International Law fighting between two countries can take place without a formal declaration of war. It is also to open to a Government in certain circumstances to say that it is at war or not with a foreign country. It is quite true that the earlier writers on International Law were of the opinion that some public declaration of war was essential but this notion in spite of Hague Convention has now considerably changed. In 1813, in .The Eliza Ann case‑ (2 E P C 162, 164) Lord Stowell observed that war may exist without a declaration on either ‑side. Similarly, in 1814 in R. v. De Berenger's case (3 M & S 67, 69), on an objection raised that there existed no war, Lord Ellenborough, C. J. observed that "there were so many statutes which spoke of war with France, that it was impossible for the Judges not to take judicial notice of it." The well known book on "Legal Effects of War" by McNair cited by the learned Attorney‑General shows that there is consensus of opinion in English Courts that "it belongs to the Government of the country to determine in what relation of peace or war any other country stands towards it." In view of the declaration of the President it is quite clear that India was at war with Pakistan within the meaning of section 83 of the Civil Procedure Code.

3. But whatever doubt there might have been expressed on this point it was removed by the amendment made in the Explanation to section 83 of the C. P. C., which has retrospective effect. Under the amended provision of law any person residing in a foreign country, the Government of which is engaged in Military operations against Pakistan and who is carrying on business in that country without a licence in that behalf granted by the Central Government is to be deemed an alien enemy residing in a foreign country. It is not disputed that India had engaged itself in military operations against Pakistan and, therefore, any person voluntarily residing or carrying on business in that country is an alien enemy for the purpose of section 83 of the Code of Civil Procedure.

4. This conclusion, however, does not dispose of the point raised in the reference under consideration. The next question is: what is the legal effect of the above situation on the suits, executions, applications and appeals filed by or against enemy aliens pending in this Court. According to section 83 an alien enemy residing in Pakistan with the permission of the Central Government and alien friends under the protection of the Government are entitled to sue in the Courts of this country in the same way as a citizen of Pakistan. But no alien enemy residing in Pakistan without such permission or residing in a foreign country is competent to sue in our Courts. It will thus be noticed that there is a disability on the right of an alien enemy to invoke the jurisdiction of the Courts of this country for the redress of their grievances in Civil matters against the citizens of Pakistan. But this disability is confined only to the institution of suits. Section 83 does not deal or discuss the question as to what would happen in cases filed against the enemy aliens before the hostilities were opened or in appeals filed by them or against them. The rights of an alien enemy in this respect have to be determined in accordance with certain well recognised principles laid down by the Courts in this Sub‑continent, which are based on public policy. The object of a country during the war is to see that the resources of its enemy should not be augmented by any acts of an enemy alien in its territory. If the act of an alien enemy by invoking the jurisdiction of the Courts of this country is likely to help the enemy country that is considered as good ground for taking preventive measures. It is now a well established rule of law that on ground of public policy a Government would be fully justified in forbidding the doing, of acts that will be or may be to the advantage of the enemy State by increasing its capacity for prolonging hostilities in adding to the credit, money, goods or other resources available to individuals in the enemy State. It is in. this background that a right of an alien enemy to invoke the jurisdiction of the Courts in this country shall have to be considered.

5. Before dealing with other important aspects of the question it may be pointed out that the words "alien enemy" include not only the subject of a country at war with Pakistan r but also citizens of Pakistan and subjects of a neutral country who are voluntarily residing in a hostile country. As observed in the case of Ali Jan v. Abdur Jalil (A I R 1920 Lah. 4) the phrase "alien enemy" has a different meaning when used in reference to civil rights and liabilities during the war. Their Lordships observed: "For this purpose the place of residence or the place where the business is carried on, and not the nationality, is the determining factor, and even a British subject will be treated as an alien enemy, if he voluntarily resides or carries on business in a hostile country." It is therefore quite clear that it is not nationality of a person which would determine the character of an alien enemy but the main test is a territorial one. Even if a citizen of Pakistan is voluntarily residing in a hostile country for a considerable period of time he is disabled to sue in the Courts of this country and will be treated in the same manner as a citizen of an enemy State.

6. Both the learned Attorney‑General and Mr. Nasiruddin, Advocate‑General have referred us to a number of decisions dealing with the extent of disabilities attached to alien enemy in Civil litigation. So far as enemy plaintiffs are concerned, section.83 of the Civil Procedure Code directly deals with their cases. Questions have arisen whether a plaintiff in an action pending at the date of the outbreak of hostilities is in a better position than the one who wants to invoke the jurisdiction of a Court during the time of war, In England in the Bret v: Papillon ((1804) 4 East 502) an action was brought on a French Judgment by a Plaintiff. ‑Subsequently war broke out between England and France. The defendant's objection that the plaintiff' being an alien enemy was debarred from further maintaining his action was accepted as good plea. In Eichengruen v. Mond ((1940) Ch. 785) an action was struck out on the ground that the plaintiff was an alien enemy.

7. As far as enemy defendants are concerned, the position is little different. Since the suspension of a right of a citizen of Pakistan against an alien enemy is likely to injure the right of a subject of a country, the view is that it would be wrong to hold that no suit can be filed against an alien enemy. In Porter v. Freudenberg (1915 K B 857 C A) Lord Reading, C. J. in delivering the judgment of the Court observed as under: "As was said by Bailhache, J. in Robinson & Co. v. Continental Insurance Co. of Mannheim "to hold that a subject's right of Suit is suspended against an alien enemy is to injure a British subject and to favour an alien enemy and to defeat the object and reason of the suspensory rule." In our judgment the effect would be to convert that which during the war is a disability, imposed upon the alien enemy because of his hostile character, into a relief to him during the war from the discharge of his liabilities to British subjects." The learned Chief Justice further observed: "Once the conclusion is reached that the alien can be sued, it follows that he can appear and be heard in his defence and may take all such steps as may be deemed necessary for the proper presentment of his defence . . . To deny him that right would be to deny him justice and would be contrary to the basic principles guiding the King's Courts in the administration of justice." It will thus be noticed that in English Courts the enemy defendant, whether the proceedings are instituted before or after the outbreak of hostilities, is entitled to be represented and defend the suit filed against him. But in certain circumstances they are under a disability, For example he cannot counter claim but may plead his claim pro tanto as a set off. He cannot take third party proceedings because in doing so he would become an actor, and cannot execute a judgment for costs because that is likely to augment the resources of the enemy State.

8. Coming now to the enemy appeals, it will be noticed that a distinction is to be made in the case of enemy appellants who happened to be plaintiff's and those who are the defendants. In Porter v. Freudenberg referred to above, the Court of Appeal considered that position and held that the appellate Courts are as much open to the enemy defendants as to any other defendants; he may be said to initiate the appeal but he was not the actor in the original proceedings. It was further observed that "once he is cited to appear he is entitled to the same opportunities of challenging the correctness of the decision of the Judge of first instance or other tribunal as any other defendant." This view also found favour with the Supreme Court of the United States in McVeigh v. United States (11 Wallace 259). In that case also the same position was adopted. But an enemy plaintiff' is denied the right to file an appeal on the ground that he is an actor throughout, and it would be so whether judgment was pronounced against him before or during the war. It is, therefore, quite clear that he has no right of appeal during the war. In the light of the above discussion the same principle would apply to executions and other miscellaneous matters pending in this Court.

9. The upshot of the above discussion is that if an alien enemy is found to be an actor throughout he is neither competent to institute a suit nor can he continue the suit. He is not competent to file an appeal or to continue the appeal or execute the decree obtained by him during the continuance of the p hostilities. In cases where a suit is filed against an enemy defendant he is not only entitled to defend the suit but he is also entitled to file an appeal if a decision is given against him during the continuance of the hostilities. He is, however, debarred from executing any benefit derived by him in such litigation.

10. In the result, I agree with the answer proposed by Khamisani, J. Before parting with this case in the end I would like to express our appreciation of the assistance rendered by the learned Attorney‑General and Advocate‑General in arriving' at the above conclusion. K.B.A. Reference answered.