P L D 1969 Karachi 204 (PLP)

7. Section 3 of the Act is material to the discussion and that section reads: "3(1) Every High Contracting Party to the Convention who has not availed himself from the provisions of the Additional Protocol thereto shall, for the purposes of any suit brought in a Court in Pakistan in accordance with the provisions of rule 28 of the First Sehedule to enforce a claim in respect of carriage undertaken by him, be deemed to have submitted to the jurisdiction of that Court and to be a person for the purposes of the Code of Civil Procedure, 1908 (Act V of 1908). (2) The High Court may make rules of procedure providing for all matters which may be expedient to enable such suits to be instituted and carried on. (3) Nothing in this section shall authorize any Court to attach or sell any property of a High Contracting Party to the Convention." It would be noticed in subsection (1) that a special procedure has been prescribed under rule 28 of the First Schedule to enforce a claim in respect of loss of life of a passenger and his baggage, and the proceedings under subsection (1) have been designated as a "suit". The material words used in that section are "for the purposes of any suit . ". Again it is stated that the High Contracting Party "be deemed to have submitted to the jurisdiction of that Court" and to be a person for the purposes of the Code of Civil Procedure, 1908 (Act V of 1908)."

8. Subsection (2) empowers the High Court to make rules of procedure providing for all matters which may be considered expedient "to enable such suits to be instituted and carried on."

9. The next provision which is relevant is rule 28 of Schedule First. The said rule reads as follows :‑ "An action for damages must be brought at the option of the plaintiff, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination." It will be noticed that the rule opens with the words "an action for damages" and then proceeds to state that the same can be brought at the option of the plaintiff "either before the Court having jurisdiction where the carrier is ordinarily resident, or . . . . . before the Court having jurisdiction at the place of destination."

10. The next provision which has bearing on the point, is rule 3 to the Second Schedule, under which it is provided that after deducting any costs not recovered from the defendant the amount recovered in the action from the defendant "shall be divided between the persons entitled in such proportions as the Court may direct." Here again the word "Court" is used. Rule 4 to the Second Schedule again mentions the word "Court" and proceeds to state that the Court in which proceedings are brought "may at any stage of the proceedings make any such order as appears to the Court to be just and equitable . . . . . ." Rule 6(1) of the Second Schedule states that the person compe tent to institute an action rule 2 has to apply "to the District Judge having jurisdiction to issue a succession certificate following the death of the passenger for the grant of a certificate to the effect that only the persons named therein are the members of the passenger's family for whose benefit the liability is enforce able under rule 1." Sub‑rule (2) states that the apportionment of the amount recoverable be such "as may be agreed upon amongst the members", and in the absence of such agreement "as may be determined by the District Judge." The last provision which has bearing on the question in hand is rule 7, which makes it incumbent on the District Judge to follow as far as may be the same procedure as in the case of an application for a succession; certificate under the Succession Act, 1925 (XXXIX of 1925). It will be noticed from the provisions of the Act and the rules reproduced above that the Act and the rules provided a comprehensive procedure as to how an action has to be brought o instituted, the Court in which such action is to be brought namely, the District Judge and that the said Court in the absence of agreement amongst the members of the passenger's family, who have sustained damage by reason of his death, in regard to the apportionment of the damage has to determine the entitlement of the members of the passenger's family. In other words, the procedure provided therein is a complete procedure where any lis is determined. The question then arises whether in the absence of any special provision conferring a right of appeal, can an appeal be preferred against an order of the District Judge when some members of the passenger's family have not been allowed any compensation or not been held to be such members of the family, as suffered any damage on account of his death: The question then arises whether section 141 of the Code of Civil Procedure can be pressed into service in regard to the right of appeal. That section is in the following terms: "The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jursidiction." It will be noticed from the language of the section reproduced above that the procedure provided by the Civil Procedure Code in regard to suits so far as prac ticable is made applicable to all the proceedings in any Court of civil jurisdiction. The expression "Court of civil jurisdiction" has come up for judicial interpretation and it has been held that proceedings under the Lunacy Act, 1912 or a proceeding under section 235, Companies Act, 1913, or an appli cation under Art. 98 of Constitution of 1962 as also disciplinary proceedings under the Legal Practitioners Act are proceedings in a Court of civil jurisdiction. Regard being had to the nature or the proceedings contemplated by the Act of 1966 read with riles to Schedules 1 and 2, the proceedings can safely be termed to be proceedings in a Court of civil jurisdiction within the meaning of section 141, C. P. C.

11. Here comes the crux of the question whether the expression "procedure" provided in the Civil Procedure Code also includes the right of appeal, which is for all intents and purposes held to be substantive right. I have not been able to lay my hand on any decision of the Pakistan High Courts or the Supreme Court on the point. Some of the Indian authorities, namely (1)AIR1961All.562, (2) A I R 1950 E Pb. 1 11, (3) A I R 1953 Nag. 133, (4) A I R 1918 Cal. 77, and the then Sind Chief Court, (5) A I R 1943 Sind 223, have expressed themselves against the view that under section 141 of the Civil Procedure Code, which relates to the procedure, a right of appeal is also available to any of the proceedings which can be termed as "Court of civil jurisdiction". I have been able to lay my hand on the decision of the Privy Council in R. M. A. R. A. Adaikappa Chettiar and another v. R. Chandrasekhra Thevar (P L D 1947 P C 279), wherein a contrary view in favour of right of appeal was taken. At page 283, it was held 'The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal; See Secretary of State v. Chelikani Rama Rao 43 I A 192 and Hem Singh v. Basant Das 63 I A 180." In that case their Lordships had to decide whether the right of appeal was available in the proceeding under the Madras Agriculturists' Relief Act (IV of 1938), which did not specifically provide the right of appeal. In view of the categorical opinion of the Privy Council, referred to above, and in the absence of any decision of the Supreme Court of Pakistan to the contrary, I feel persuaded to hold that the right of appeal is available to the C aggrieved person in the proceedings under the Act of 1966, read with section 141, C. P. C.

12. This brings me to the merits of the case. This question need not detain me long, in that the burden of proof lies on the appellant to prove that he was the member of the family of the deceased, who has suffered on account of the death of Muhammad Yaqub. The fact that he is the real brother of the deceased, instead of helping him would go against him, in that it is presumed that a healthy grown up brother of the deceased is not depended on the deceased unless it is proved to the contrary. On this point we have the affidavit of Miss Nisar Begum that the appellant was an employee of the deceased working for his periodical at the monthly pay of Rs. 150 and in the absence of any other evidence in rebuttal that he depended entirely on the deceased and is not able to eke out his own livelihood on account of any disability, cannot be termed to be a member of the family of the deceased, who has suffered on account of his death. It will be remembered that the other two brothers of the appellant, namely, Abdul Majid and Muhammad Ali Khan in their affidavits have also stated that the compensation should be apportioned between Miss Nisar Begum and their widowed mother. This would strongly reinforce the suggestion that the appellant is capable of earning his independent livelihood.

13. For all the foregoing reasons, the appeal is dismissed. I, however, make no order as to costs. A. E./K. B. A. Appeal dismissed.