P L D 1957 (W (PLP)

INAMULLAH, J.

This is an application for execution of a decree passed by the Queen's Bench Division, Liverpool on 30th June 1953, against judgment-debtors Abdullah Muhammad and Akbar Muhammad for payment of 4,133-4-0 together with F 25-18-1 as costs and also interest at the rate of four per centum thereon from the date of judgment till payment. The action resulting in the above decree was brought against the two judgment-debtors by the decree-holder on the ground that they had failed to pay the balance of the price of goods supplied by the plaintiff/decree-holder. The suit was filed on 25th November 1952 and a writ of summons on the claim filed by the plaintiff was issued to be served on the defendants/judgment-debtors at Karachi. The notices were duly served on 6th May 1953 and 7th May 1953 on Abdullah Muhammad and Akbar Muhammad respectively. The service was effected through Dr. I. Mahmood, an advocate of this Court by a Court bailiff, Abu] Hussain, on both the judgment-debtors. The judgment-debtors did not put in appearance before the Queen's Bench Division at Liverpool, and an ex-parte decree was passed against them, as already mentioned, on 30th June 1953. The decree was sought to be executed by this Court under Order XXI rule 37 read with section 44 (a) of the Code of Civil Procedure. The Execution Application was made on 13th August 1,

954. Notices were issued to both the judgment-debtors on 29th September 1954. Judgment-debtor No. 1, Abdullah Muhammad, was duly served on 13th December 1954, while judgment-debtor No. 2, Akbar Muhammad, could not be served, with the result that an application under Order V, rule 20, read with Order XXI, rule 37, Civil P. C., was made for substituted service, which was granted. Mr. Arif has filed power on behalf of the judgment-debtors. Mr. Arif has raised two-fold contentions before me. In the first place he contended that no service was effected on either of the judgment-debtors. In support of this he has filed the affidavit of Abdullah Muhammad, judgment-debtor. Dr.

1. Mahmood was allowed to cross-examine Abdullah Muhammad. On the side of the decree-holder. Dr. Mahmood has filed his own counter-affidavit and also examined in Court his clerk, Muhammad Akbar Ali. After reading the counter affidavit of Dr. Mahmood and the statement of his clerk, I have no doubt that Abdullah Muhammad was duly served by Dr. Mahmood. I have no reason to doubt the statement of Dr. Mahmood at the Bar. I would hold that the judgment-debtors were duly served. Mr. Arif next contended that, under the established principles of private International Law, the decree given by the Queen's Bench Division, Liverpool, was not binding upon his clients within the meaning of section 30 of the Code of Civil Procedure. His contention was that the Queen's Bench Division, Liverpool, was not competent to try the action against the judgment-debtors- inasmuch as (a) they were neither the residents of England ; (b) nor were they residing at the time when the action was brought in England ; (c) nor had they submitted to the jurisdiction of the Court in question. Mr. Arif contended that whether a foreign Court is com petent to pronounce a judgment or not within the meaning of section 13 (a) has to be determined according to the principles of International Law, and not in accordance with the Municipal Law of the foreign country which has passed the decree. In support of his contention he relied on Pemberton v. Hughes ((1899) 1 Ch. 781 (791)) Lindley, M. R. observed "The jurisdiction which alone is important in these matters is the competence of the Court in an international sense, i.e. its territorial competence over the subject-matter and over the defendant. Its competence or jurisdiction in any other sense is not regarded as material by the Courts of this country-." Our Courts in dealing with foreign judgments have followed the same principle. Applying the above principle, Mr. Arif contended, the Queen's Bench, Liverpool, being a foreign Court, the principles of private International Law were applicable. The principle of International Law which would be applicable is laid down by their Lordships of the Privy Council in the leading case of Gurdyal Singh v. Raja of Faridkot ((1894) 22 Cal. 222 (238)), as under "All jurisdiction is properly territorial and 'extra ter ritortum jue dicenti non paretur immune'. Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory, while they are within it ; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory ; . . , and in questions of status or succession governed by domicile, it may exist as to persons domiciled or who, when living, were domiciled within the territory. As between different provinces under one sovereignty (e.g. under the Roman Empire) the legislation of the sovereign may distribute and regulate jurisdiction ; but no territorial legislation can give jurisdiction which any foreign Court ought to recognize against foreigners who owe no allegiance or obedience to the power which so legislates." It was contended that inasmuch as the defendants/judg ment-debtors did not reside in England nor did they submit themselves by appearance or otherwise to the jurisdiction of the Court, the Queen's Bench was not competent to pass the decree. No useful purpose can be served by mentioning the cases in which the principle enunciated in the case of Gur Dyal Singh reproduced above, by the Privy Council has been followed. Dr. Mahmood, on the other hand contended that the Queen's Bench at Liverpool cannot be said to be a `foreign Court' inasmuch as at the time when the decree was passed, Pakistan was a Dominion within the common wealth of the United Kingdom and, therefore, the Courts in England cannot be said to be 'foreign Courts' within the meaning of International Law. In order to clarify his contention, he read out the definition of 'common wealth citizen' as given in section 2 of the Pakistan Citizenship Act, 1951, which reads as under: "Commonwealth Citizen means a person who has the status of a Commonwealth citizen under the British Nationality Act, 1948." Section 1 of the British Nationality Act, 1948 reads as under: "(1) Every person who under this Act is a citizen of the United Kingdom and Colonies or who under any enact ment for the time being in force in any country mentioned in subsection (3) of this section is a citizen of that country shall by virtue of that citizenship have the status of a British subject." Under subsection (3) of section 1, the following countries are mentioned: "Canada, Australia, Newzealand, The Union of South Africa, . . . .. . India, Pakistan, Southern Rhodesia, and Ceylon." Dr. Mahmood contended that the principle of Inter national Law as such will have no application qua the citizen of Pakistan and the British Courts. Mr. Mahmood relied on the commentary by Mulla on Civil P. C.. on section 13, at page 98, 12th Edition, which runs as under: "Indian subjects before Independence owed allegiance to the Sovereign of Great Britain and the British Parliament could therefore by legislation confer jurisdiction upon the Courts of England as it has in fact done, against British Indian subjects in British India. Hence, a judgment, passed by the Queen's Bench Division of the High Court of Justice of England (a foreign Court) against a British Indian subject residing in British India in an action founded on a breach of a contract committed within the jurisdiction of that Court, was not a nullity, and a suit might be brought on the judgment in British India. The above comment is based on Para (e) of rule 1, Order XI, of the Rules of the Supreme Court, 1883, the relevant portion of which reads as under: "

1. Service out of the jurisdiction of a writ of summons . may be allowed by the Court or a judge whenever . . . . (e) the action is one brought against a defendant not domi ciled or ordinarily resident in Scotland or Ireland, in respect of a breach committed within the jurisdiction of contract wherever made, even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction." There is no force in the contention raised by Dr. Mahmood. The question of citizenship should not be confused with the question of jurisdiction of Court. "Foreign Court" is defined under section 2 (5) of the Civil P. C. and means "a Court situate beyond the limits of the Provinces and the Capital of the Federation which has no authority in the Provinces and the Capital of the Federation and is not established or continued by the Central Government" ; while "foreign judgment" means under section 2(6) of the Civil P. C. "the judgment of a foreign Court". It is clear from the above definition of "foreign Court " that Courts in England are foreign Courts. The question, however,' remains whether the British Courts would have jurisdiction as provided under Order XI, rule 1, of the Supreme Court Rules of England. In answer to this question a reference may be made to what has been reproduced above from the commentary on the Civil P. C., by Mulla. , After the establish ment of Pakistan as an independent country, the British Parliament cannot legislate for Pakistan, and therefore, it cannot confer jurisdiction on Courts in England over non resident Pakistani subjects. Dr. Mahmood raised further two-fold contentions. He contended in the first place that the decision by a foreign Court, whether it had jurisdiction or not, was final and con clusive. In support of his contention, he relied on the case of Brijlal Ramjidas and another v. Govindram Gordhandas (A I R 1947 P C 192 = P L D 1947 P C 150). An award was given in that case by an arbitrator in the State of Indore (Bharat) which was filed before the District Court' in Indore' to be made the rule of the Court. On an application by one of the parties, the matter was transferred to the High Court which made the award the rule of the Court. A suit was filed in the Bombay High Court challenging the order of the High Court making the award the rule of the Court. One of the grounds taken was that the High Court had no juris diction to transfer the proceeding from the District Court to itself. The same point was urged before the Privy Council. The observation of the Privy Council is relevant, and I would reproduce it below: This argument was disposed of satisfactorily by both Chagla J. and the Appellate Court. It was for the High Court of Indore to interpret its own law and rules of procedure, and its decision that the High Court was the 'proper' Court must be regarded as conclusive." I have carefully gone through the decision of this case, and I have no doubt that it has no application to the present and before me. The question here is whether a foreign Court has jurisdiction over a Pakistani subject or not. It can not be said, in the words of their Lordships of the Privy Council, that "it was for the High Court of Indore (the English Court at Liverpool) to interpret its own law and rules of procedure, and its decision that the High Court was the 'proper' Court must be regarded as conclusive". In the present case it cannot be said that the question whether the English Court has jurisdiction over a Pakistani subject or not is a matter relating to "own law and rules of procedure". It is a question of International Law, and this Court is competent to adjudicate upon that question. In this connection, Dr. Mahmood also relied on section 14 of the Civil P. C., which reads as under: "The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was, pronounced by a Court of competent jurisdiction, unless the contrary appears on the record ; but such presumption may be displaced by proving want of jurisdiction." It would appear from section 14, Civil P. C., reproduced above, that the presumption is not conclusive, but can be displaced by proving want of jurisdiction. It cannot, therefore be said that the judgment-debtors are not entitled to raise the D question of jurisdiction on the ground that they were not residents of England ; nor were they residing at the time when the suit was filed or that they had submitted to the jurisdic tion of that Court. In the next place, Dr. Mahmood contended that the service having been effected upon the defendants, the judg ment of the English Court, Queen's Bench Division, Liverpool was binding upon the judgment-debtors. In support of his contention he relied upon a D. B. ruling of the Lahore High Court, Dr. Kulwant v. Dhan Raj Dutt (A I R 1935 Lah. 396). It was held in that case where the procedure laid down by the Rules of the Supreme Court is strictly followed and the defendant is given an opportunity to appear and contest the claim of the plaintiff and he voluntarily refrains from doing so, the decision of the High Court of Justice in England must be regarded as a judgment on the merits. If the defendant does not appear, his default after due service is taken to be tantamount to an admission of the claim. In that case their Lordships of the Lahore High Court formulated the question for decision in the following words: "The sole question for determination in this appeal is whether a suit lies on the basis of a judgment of the High Court of Justice in England given in default of appearance by the defendant." Dr. Mahmood candidly concedes that this case is no authority for the question whether the foreign Court had jurisdiction over a non-resident Pakistani subject or not, and rightly so. A decision is an authority only as regards the point that it decides. This question was not considered before their" Lordships of the Lahore High Court, whether a judgment against a non-resident British subject regarding a matter not covered by Order XI, rule 1 of the Supreme Court Rules of England would be with or without jurisdiction. It may be mentioned here that Order XI, rule 1 of the Supreme Court Rules gives only a limited jurisdiction to the British Courts in respect of "a breach committed within the jurisdiction of a contract wherever made." The jurisdiction, therefore, will be confined to where the breach of a contract is committed within the jurisdiction of English Courts. So far as the present case is concerned, it has not been alleged that any breach had been committed within the jurisdiction of the Queen's Bench Division, Liverpool. Moreover, as I have already pointed out Order XI, rule 1 of the Supreme Court Rules will have no application after the independence. For the reasons given above, I allow the objection of Mr. Arif and hold that the judgment passed by the Queen's Bench Division, Liverpool, had no jurisdiction. Under the circumstances of the present case I would make no order as to costs. K. M. A. Objections allowed.