P L D 1959 (W (PLP)

ORTCHESON, J.‑This is a petition for revision of the order of the learned Chief Judge, Court of Small Causes, Karachi, dated the 22nd of December 1955, granting a decree for Rs. 2,000 with costs to the plaintiff‑respondent on the basis of a decree passed by the Court of Small Causes, Bombay.

2. The facts briefly are that in the year 1951 Dr. Sarosh Rattanji Wadia, a registered medical practitioner of Bombay, filed a Suit No. 771/5401 of 1951, against Ghulam Ahmad and Sultan Ahmad, the present petitioners, and two others, Ali Ahmad and Nur Ahmad, for recovery of the sum of Rs. 1,910 as balance of medical charges for treatment given to defendants 2, 3 and 4, their families, and their servants and friends between December 1946 and October 1949. At the time of the institution of the suit Ali Ahmed and Nur Ahmed were residing and carrying on business in Bombay. The present petitioners were then residing and carrying on business at Karachi, but the plaintiff prayed for leave to sue them under section 18 of the Presidency Small Cause Courts Act XV of 1882. Leave was granted on the 4th of May 1951, and the suit has decreed on the 19th of September, 1955.

2. On the basis of the above foreign judgment Dr. Wadia instituted Suit No. 1210 of 1953. against the present petitioners at Karachi. They contested the validity of the judgment on grounds which are apparent from the issues framed. They run as under (1) Has the Bombay Court no jurisdiction to pass a decree against foreign nationals as defendants 1 and 2 are, being Pakistanis ? (2) Is the decree of the Bombay Court invalid owing to the adjudication of Ali Ahmad as an insolvent on 25‑8‑1948 ? (3) To what sum is each defendant liable ?

3. On issue No. 1, the learned Chief Judge of the Karachi Small Causes Court held that the Bombay Small Causes Court had jurisdiction, all the formalities required under the law for the time being in force having been observed. The contention of the present petitioner that as the decree was ex parte the suit cannot be held to have been decided on the merits was repelled, the Court holding on the basis of two authorities, A I R 1935 Lah. 396 and A I R 1941 Pat. 109, that if the procedure prescribed by law is strictly followed and the defendants inspite of being duly served fail to appear and contest the suit the findings must be considered as being given on the merits. The learned Chief' Judge further held that the onus lay on the petitioners of bringing their case within any of the exceptions to section 13, C. P. C. and that they had failed to discharge it.

4. On the second issue it was held that as Ali Ahmed had failed to appear before the Bombay Small Causes Court and to show that he had been adjudicated an insolvent, the plaintiff could not be expected to be aware of his insolvency, and that having failed to raise the point at the proper stage, Ali Ahmad could not do so in the Karachi Court.

5. The next point raised by the defendants is that as, at the time the decree was passed by the Bombay Small Causes Court, the value of the Pakistan ' Rupee was equal to Rs. 144 Indian, the decree should have been passed on the basis of the above ratio. This contention was also rejected, the learned Chief Judge holding that as the Indian Rupee was, at the time the Karachi suit was decided, at par with the Pakistan Rupee, the decree should be passed on that basis.

6. Feeling aggrieved by the above decision the petitioners filed the present revision, the grounds put forward being in the main those already raised before and disposed of by the learned trial Court.

7. The main point for decision in this petition is that covered by issue No. 1 framed by the trial Court. The petitioners take their stand on section 13 of the Civil Procedure Code, which provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same out as (a) to (f) as under: " (a) where it has not been of competent jurisdiction ; (b) where it has not been given on the merits of the case ; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of the States in cases in which such law is applicable ; (d) where the proceedings in which the judgment was obtained or opposed to natural justice. (e) where it has been obtained by fraud ; (f) where it sustains a claim founded on a breach of any law in force in the States ".

9. The position with respect to foreign judgments is set out in Cheshire's Private International Law 5th Edition at pp. 608 to 610 in the following terms: " A. Competence of the foreign Court.‑The first and over riding essential for the effectiveness of a foreign judgment in England is that the adjudicating Court should have had jurisdiction in the international sense over the defendant. A foreign Court may give a judgment which, according to the system of law under which it sits, is conclusively binding upon the defendant, but unless the circumstances are such as in the eyes of English law justify the Court in having assumed such jurisdiction, the judgment does not create a cause of action that is actionable in England. In Sirdar Gurdyal Singh v. The Rajah of faridkot 1894 A C 670 for instance The Rajah obtained ,two ex parte judgments in two actions brought by him against the appellant for sums amounting to over '76,000 rupees. The appellant, who had been treasurer to the Rajah, left Faridkote five years before these actions and did not return there again. An action founded on the judgments was later brought against the appellant in the Court at Lahore, where he was then resident. This action was therefore on a foreign judgment, since Faridkote was a native State with independent jurisdiction. It was held by the Privy Council that the action brought at Lahore must fail, for the Faridkote Court had no juris diction on any recognized principle of international law against a man who had left the territory and who was the domiciled subject of another State. The requirement is that the foreign Court should have been a Court of competent jurisdiction in the international, sense, i.e., according to the‑principles of private international law as understood in England. In other words, the inquiry with which we are now concerned is whether, in the view of English law, the foreign Court was entitled to summon the defendant and subject him to judgment Pemberton v. Hughes 1899 I Ch. 781, 790 et seq We must now deal separately with actions‑in personam and actions in rem. (a) Jurisdiction over actions in personam.‑ Since a foreign judgment is actionable only because it imposes an obligation upon the defendant, it follows that any fact which negatives the existence of that obligation is a bar to the action. One of the negativing facts must necessarily be that the defendant owes no duty to obey the command of the tribunal which has purported to create the obligation. There must be a correlation between the legal obligation of the defendant and the right of the tribunal to issue its command. The circumstances in which an English Court may assume power to determine a claim in personam are well settled, and it is legitimate to infer that the criterion by which the competence of an English Court is tested must also be adopted when the inquiry relates to the competence of a foreign Court. Personal jurisdiction in this country depends upon the right of a Court to summon the defendant. Apart from special powers conferred by statute (pp. 113 et seq.) it is obvious that, since the right to summon depends upon the power to summon, jurisdiction is in general exer cisable only against those persons who are present in England (Employers' Liability Assurance Corporation v. Sedwich Collins & Co., 1927 A C 95, 114). If the defendant is absent from a country and has no place of business there, then whethe he be a citizen or an alien, he would appear to be immune from the jurisdiction, unless he has voluntarily submitted to the decision of the Court (Harris v. Taylor (1915) 2 K B 580, 589). These considerations would seem to show that jurisdiction depends, either upon presence in a country at the time of the suit (with which may be classed the possession of a place of business there), or upon sub mission ".

9. Applying the principles set out above to the facts of the present case, it is clear from the material on the record that the petitioners were not residing within the jurisdiction of the Bombay Court at the time the action against them began. Before, there fore, the judgment can be held to be valid, the respondent music establish that the petitioners submitted to the jurisdiction of the Court, but they have entirely failed to do so. I am accordingly constrained to hold that the judgment in dispute is without jurisdiction.

10. The validity of the order of the learned Chief Judge of the Small Causes Court, Karachi is also attacked on a second ground, namely, that what has been produced by the respondent is not the judgment of the Bombay Court but only a copy of the decree, which is insufficient for his purpose.

11. In support of this contention the petitioners rely on Fazal Ahmed and others v. Abdul Bari (P L D 1952 Dacca 155) in which a learned Judge sitting singly held as follows: "Then again the present appeal can be disposed of on the shot ground that the suit is based not on a foreign judgment but on a foreign decree. The judgment of the foreign Court has not been filed but only a decree has been filed. `So it can be said that the suit is not maintainable. Mr. Pakrashi refers to me sections 14 and 44‑A of the Code of Civil Procedure. Neither of the sections can be of any avail to him. Section 14 speaks of that if a certified copy of the judgment of the Foreign Court is produced that shall be presumed to be a judgment of competent jurisdiction and that presumption is rebuttable. Section 44‑A is in Chapter regarding execution and in that connection in explanation 3 it is stated that `decree of a Superior Court' means `any decree or judgment of such Court,' but I cannot hold from that that a foreign judgment is conclusive without production of that judgment but only on the basis of the decree of that Court. 'Foreign judgment' has been defined in section 2 (6) and 'judgment' has been defined in section 2 (9) and 'decree' in section 2 (2), but I am unable to hold that a foreign judgment is enforceable on the production of the decree of that Court, because in deciding a case on foreign judgment various considerations arise, which cannot be determined without looking into the judgment."

12. The above decision requires some elucidation, which is to be found in Brijlal Ramjidas v. Gobindram Gordhandas Seksaria (A I R 1943 Bom. 201), a Division Bench decision, in which Beaumont, C. J., observed "I have no doubt that under section 13, (C. P. C.), judgment is not used in the sense of a statement of the Judge's reasons. I have no doubt that a foreign judgment means an adjudication by a foreign Court upon the matter before it. It would be quite impracticable to hold that a foreign judgment means a statement by a foreign Judge of the reasons for his order. If that were the meaning of 'judgment' the section would not apply to an order where no reasons were given. Section 13 applies to foreign judgments generally, and we must remember that some systems of foreign procedure may not recognize the distinction between decrees and orders with which we are familiar, and there may be no requirement on a Judge to give reasons. We have to ascertain what is the actual adjudication of the foreign Court, and for that purpose the first thing to look at is the actual decree or order of the foreign Court. But in order to understand and interpret the decree or order, we may have to look at the pleadings of the parties and the reasons of the Judge. Those reasons would not, in my opinion, be binding on any question of fact or law, except so far as they show what the judgment actually decides, and whether any of the exceptions to section 13 applies."

13. On appeal to the Privy Council from the decision of the Bombay High Court in the above case, reported as A I R 1947 P C 192 : P L D 1947 P C 150 their Lordships approved the remarks of Beaumont, C. J., cited above, remarking "Some difficulty has been occasioned in the interpretation of section 13 by the definition of 'judgment' contained in section

2. Notwithstanding this definition, their Lordships agree with the learned Chief Justice that the expression 'foreign Judgment' in section 13 must be understood to mean 'an adjudication by a foreign Court upon the matter before it.' The Chief Justice pointed out that 'it would be quite impractic able to hold that a "foreign judgment" means a statement by a foreign Judge of the reasons for his order, `since' if that were the meaning of "judgment" the other section (viz., S. 13) would not apply to an order where no reasons were given."

14. In the present case the necessity of the principle laid down by Beaumont, C. J., that although in the first instance what' is to be looked at is the decree or order of the foreign Court, it may be necessary to look at the pending of the parties and the reasons of the Judge in order to understand and interpret the decree or order, is clearly shown, since, though the decree of the Bombay Court shows that the present petitioners were carrying on business at Karachi, it does not explicitly state whether they were also residing there or, if so, whether they submitted them selves to the jurisdiction of the Bombay Court. I am, therefore, of the opinion that on this ground also the present suit must be dismissed.

15. In view of the above findings, it is unnecessary to enter into the remaining matters raised by the petitioners. The petition is accepted and the decree of the lower Court set aside with costs throughout. K.M A. Petition accepted.