1995 PLP 1102 (CLC)

1985 CLC 296, and PLD 1952 Dacca 155.

8. While controverting the arguments of the learned counsel for the appellant, the learned counsel for the respondents contended that both the plaintiff and the defendant No. 1, are British National. The decree passed by the Court of Great Britain was binding upon them. It was also maintained by the learned counsel for the respondents that the plaintiff and defendant No. 1. both, have contracted second marriages and they are having issues from the second marriages. Defendant No. 1, is residing with defendant No. 2 since her marriage. She also gave birth to the children aft6r the marriage with the defendant No.

2. Even, at present time, neither the plaintiff, nor the defendant are residing in Pakistan. Both of them are residing in Great Britain. They are British nationals as it was admitted by the attorney of the appellant. It was next contended by the learned counsel for the respondents that the decree was not an ex parte decree, but it was passed after hearing the parties and according to the Personal Law of the parties, this decree was conclusive between the parties.

9. I have heard the learned counsel for the parties and perused the record of the case.

10. The primary question which requires determination in this case is whether the appeal files through counsel was competent or not? The perusal of the file of appeal shows, that no power of attorney was filed alongwith the appeal. Neither the plaintiff‑appellant gave any power of attorney to the learned counsel for filing the appeal, but the appeal was filed through counsel As this contention of the learned counsel for the appellant is Concerned, that he was counsel in the lower Court and that power of attorney contains the powers in favour of the learned counsel for filing the appeal. The perusal of the power of attorney filed in the lower Court shows, that nowhere the specific powers for filing the appeal against the judgment and decree of the learned Sub‑Judge were given to the learned counsel for the appellant. The power of attorney is a printed form. Normally the printed Vakalatnamas contain the power in favour of the counsel for filing the appeal and the learned counsel for the appellant filed an appeal under such impression. The Vakalatnama executed in favour of the learned counsel for the appellant in the lower Court does not contain specific power for filing an appeal as stated above. However, it gives such power to the learned counsel impliedly.

11. Order 3, Rule 4 of the C.P.C., deals with the appointment and acts of pleader. Order 3, rule 4 of the C.P.C., postulates that no pleader shall act for any person in any Court, unless he has been appointed for such purpose by a person, by a document in writing, signed by such person, or his recognized agent, or by some other persons duly authorised, by or under power of attorney to make such appointment, and every such appointment should be filed in the Court. Such appointment shall be deemed to be in force, until determined with the leave of the Court, by a writing, signed by the client or the Pleader, as the case may be, and filed in Court, or until the client or the pleader dies or until all the proceedings in the suits are ended so far as it relates to the client. The provision of rule 4 postulates that no pleader shall act for any person in the Court, unless he has been appointed for the purpose by a document in writing signed by such a person. It further contains that the document appointing a counsel shall be submitted before the Court shall be presumed to be in force until revoked or death of the client or counsel. It is the basic requirement for the counsel appearing on behalf of the party to submit the Vakalatnama duly signed by the party to whom he represents. In the light of the aforesaid provisions of C.P.C., no counsel can act on behalf of a party, unless a power of attorney was given to him. Now the question emerges what does mean the act of the counsel. Drafting of the pleadings and filing the suits and appeals in the Courts are the acts of the counsel. Thus, the appeal filed by the learned counsel for the appellant comes within the ambit of the act of the counsel. Now the question arises whether the learned counsel for the appellant acted on the basis of a valid power of attorney or not? The perusal of the record shows, that at the time of filing of the appeal, no power of attorney was executed by the appellant in favour of the learned counsel for the appellant as contemplated in Order 3, Rule 4 of the C.P.C.

12. Now the next question emerges, when the appeal was filed by the learned counsel for the appellant without any Vakalatnama and subsequently, the Vakalatnama was given by the appellant, which has been produced in the Court today. By this Vakalatnama, the act of the learned counsel for the appellant is ratified by the appellant or not? Section 196 of the Contract Act contains that where acts done by one person on behalf of another but without his knowledge or authority he may elect to ratify, or to disown such acts, if he ratifies them the same effect will follow as they had been performed by his authority. Section 196 is very clear on the point, that when certain acts were done by a person on behalf of other person without his knowledge or authority he may ratify those acts and if he ratifies them, then the same will be presumed to have been done by the person who ratified them. Section 197 of the Contract Act contains that the ratification may be express or implied. Now the question arises whether the appellant was competent to ratify the act of the learned counsel for the appellant and through the Vakalatnama produced today, act of filing of the appeal, is ratified. Same like proposition arose before the Supreme Court of Azad Jammu and Kashmir in Ghulam Mohy‑ud‑Din's case in PLD 1988 SC (AJ&K)

42. In that case, the suit was filed through the counsel who signed and filed the suit. Vakalatnama was not filed by the plaintiff at the time of the drafting and its institution. An application was moved for permission to secure the signatures of the plaintiff on the Vakalatnama. The plaintiff was permitted to sign the Vakalatnama at the, subsequent stage, on the ground that under law, the plaintiff was empowered to ratify the act of his counsel with retrospective effect. For having proper perception, I would like to reproduce as it was observed by the Supreme Court which is as under:‑‑ "In the present case, the objection is to the effect that in absence of signatures of the plaintiff on `Vakalatnama' the pleadings of plaintiff could not be signed by the Advocate nor the same could be presented in the Court. In other words, it was emphasized that in absence of due authority in form of signatures on `Vakalatnama', it shall be deemed that the plaint was neither signed by the plaintiffs and verified nor it was presented in due course of law. Therefore, there was no suit of plaintiffs before the Court. The answer to the objection is that the rules of procedure contained under Rules 1 and 4 of Order 3 are directory in nature and not mandatory as suggested by the learned counsel for the appellant. This is so as no public policy is involved nor the provisions are accompanied by a penal clause for its non compliance. The object of rules is to ensure that facts stated in the pleadings are duly owned by the parties presenting the same and that the pleadings are presented by the parties personally or through an authorized person. This check is laid down to avoid fraudulent and fictitious litigation. The interpretation of these provisions received attention of superior Courts frequently. There is no denying fact that the omission to sign `Vakalatnama' was considered as a formal defect rectifiable at any stage of the proceedings. Moreover, the rectification of the defect was given effect back from the date of the institution of the suit. Here, it is relevant to state that omission to sign `Vakalatnama' on the part of the counsel or party, is not different in degrees. Therefore, irrespective of the fact that `Vakalatnama' was not signed by the party or the counsel, the formal defect shall have the same effect. In present case, in the application moved at the earliest stage of the proceedings to remove the defect, it was frankly accepted that the omission to sign `Vakalatnama' was by an inadvertence. On the date of hearing, when the application was moved by the counsel for removal of defect, Noor Dad, plaintiff was present in the Court as the same is borne out from the interim order of the trial Court. This leads to an inference that the application for removal of defect was made under the instruction and consent of Noor Dad plaintiff who was also attorney of other plaintiffs. The bona fide of the case of plaintiffs is clearly established from the aforesaid facts. We are, therefore, of the opinion that the absence of signatures of the plaintiffs on `Vakalatnama' is not an illegality but an irregularity. And an irregularity is curable at any stage of proceedings." Even otherwise where the appeal is filed by the learned counsel without the authority from the appellant, the appellant can ratify the same and if the appellant ratifies the past acts of the attorney, though not authorised to institute the appeal subsequent ratification of his act of institution of appeal by principal would validate his action of filing the appeal. This view finds support from 1987 CLC 1366. The same view was also adopted by the High Court of Azad Jammu and Kashmir in ILJ 1987 AJ&K 76.

13. It is also pertinent to note that when the appellant‑plaintiff has not challenged the authority of the counsel, rather by giving a new Vakalatnama, he has ratified the act done by the learned counsel for the appellant, then the respondents have no competency to challenge the authority of the learned counsel for the appellant. The authority for the institution of the appeal by the counsel was questionable only by the client, on whose behalf the appeal was instituted and not by the opposite‑party. This principle was elucidated in 1982 CLC 1275. As the appellant has ratified the act of the learned counsel for the appellant by giving a new power of attorney to the learned counsel for the appellant. Thus, he has ratified the act of the learned counsel for the appellant of filing the appeal as contemplated in section 196 of the Contract Act, therefore, the appeal cannot be dismissed on the ground that it was filed without the authority as provided in order 3, Rule 4 of the C.P.C. In these circumstances, the preliminary objection raised by the learned counsel for the respondents is not tenable and the same is hereby repelled.

14. The next contention raised by the learned counsel for the appellant is that a decree passed by the Court of Great Britain was an ex pane decree and it was not passed on merits but it was passed in absence of the appellant, so, that was not conclusive decree in the eye of law. It was also alleged in the content 4 of the plaint that the decree passed by the Court of Great Britain may be declared null and void and inoperative on the rights of the appellant. The relief claimed in the plaint also contains that the decree passed by the Court of Great Britain, dated February 5, 19638 may be declared null and void and inoperative on the rights of the plaintiff‑appellant. The perusal of the file shows that the appellant‑plaintiff did not adduce any evidence about the decree passed by the Court of Great Britain nor a single word was uttered in the evidence by witnesses of plaintiff. It was the paramount duty of the plaintiff appellant to adduce the copy of the decree and the judgment of the Court of Great Britian in evidence, because he wants that the decree may be declares; null and void. It was incumbent upon the plaintiff‑appellant to file the certified copy of the decree. A photostat copy of the decree‑sheet was adduced in evidence by the defendant on that too, the plaintiff‑appellant raised an objection, that it cannot be adduced into evidence. It is quite astonishing to note that on one hand, the appellant wants that the judgment and decree passed by the Court of Great Britain may be declared as null and void and in operative on his rights. On the other hand, he has not filed the copy of the judgment and decree. When‑the copy of the decree‑sheet was filed, by the defendants, then the appellant raised an objection, that the copy of the decree cannot be adduced into evidence. While it was the fundamental duty of the appellant to bring into the notice of the Court the judgment and decree whom he wants to be declared null and void.

15. An important question involved in the instant case, is that the decree of a foreign Court can be considered as conclusive between the parties now residing in this country. Section 13 of the C.P.C., contains that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties, unless the decree comes within the exception contained in section 13 of the C.P.C. Section 13 of the C.P.C. is reproduced a5 under:‑‑ "13.‑‑When foreign judgment not conclusive.‑‑A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties under whom they or any of them slain; litigating under the same title except‑‑ (a) where it has not been pronounced by a Court 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 a incorrect view of international law or a refusal to recognise the law of Pakistan in cases in which such law is applicable; (d) where the proceedings, in which the judgment was obtained are 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 Pakistan." Section 13 of the C.P.C., is very much clear on the subject if the impugned decree comes within the exception of section 13, then it cannot be considered as conclusive between the parties, but the onus to prove that the decree comes within the exception was on the plaintiff which he failed to discharge.

16. The principle laid down in section 13 of the C.P.C., is against the general principle that a State is not bound under the law of nation to enforce the judgments of foreign Courts in its territories. But in those countries where the English system of jurisprudence has been made applicable foreign judgments ‑are enforced on the principle, that where the Court of competent jurisdiction has adjudicated the liability of certain parties a legal obligation arises to meet it and an action to enforce the judgment is applicable. As it is recognized by section 13 of the C.P.C. This view finds support from PLD 1960 Karachi 594 (600):‑‑ "It will be observed that under this provisions of law a foreign judgment is conclusive as to any matter thereby directly adjudicated upon between the parties or between parties under whom they or any of them claim litigating under the same title except amongst other grounds (not relevant to the present case) where it has not been given on the merits of the case. The principle laid down in section 13(b) is no doubt against the general principle that a State is not bound under the law of nations to enforce in its territories the judgment of a foreign tribunal. But in countries where the English System of jurisprudence is adopted foreign judgment is enforced on the principle that where a Court of competent jurisdiction has adjudicated the liability of a certain party a legal obligation arises to meet it and that an action to enforce the judgment is maintainable. This principle has been recognized in section 13 of the C.P.C. It has been rightly observed by his Lordship that under section 13 of the C.P.C. judgment of a foreign country is conclusive as to the matter directly adjudicated upon between the parties in such foreign Court, but a judgment of a foreign country cannot be conclusive between the parties if it comes within the exception contained in section 13 of the C.P.C. It is settled principle of law, that judgment of a foreign country is not binding on another foreign country, but in those countries where the English System of jurisprudence is prevailing, the judgment of the foreign country are enforceable on the principle, that the Court of competent jurisdiction, has determined a liability and it is an obligation of the parties to meet the liabilities determined by such foreign Court. The case‑law referred by the learned counsel for the appellant is not applicable to the facts of the present case. PLD 1976 Azad J&K 9, referred by the learned counsel for the appellant deals with the different proposition. In that case, the point in dispute was whether the decree of the Pakistan Court is a decree of a foreign Court. It can be executed in Azad Jammu and Kashmir. It was declared by the Court that the decree of the Pakistan Court is a decree of foreign Court with the meaning of section 2(6) and that decree can be executed in Azad Jammu and Kashmir, as the extradition agreement exists between the Pakistan and Azad Jammu and Kashmir Government.

17. In the instant case, there is no question of the execution of the decree but the learned counsel for the appellant wants that the decree of the foreign Court may be declared null and void on his rights. The aforesaid case referred by the learned counsel for the appellant, has no bearing on the facts of the present case. The next case referred by the learned counsel for the appellant 1985 CLC 296 has also no bearing on the facts of the present case. In this case too, the proposition was pertaining to the execution of the decree and it was held by the Court that under section 44‑A of the C.P.C., a decree of foreign Court, U.K. or any reciprocating territory can be executed in Pakistan, but the Court of Pakistan will refuse to exercise such discretion if it conies to the conclusion that the decree is covered by one of the exceptions contained in section 13 of the C.P.C. Section 13 of the C.P.C., contains that foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties, under whom they or any of them claim litigating under the same title except as stated in the exception of section 13 as stated above.

18. As this contention of the learned counsel for the appellant is concerned, that the decree was not passed on merits but it was an ex parte decree carries no substance for the reason. A decision cannot be termed a decision on merits, unless it is based on consideration of some evidence on the question under consideration. Even if an ex parte decision was pronounced after considering and discussing the evidence, it can be termed a decision on merits. The real criteria for finding out that the judgment is on merits or not, is whether an ex parte judgment is given after applying the mind, considering the evidence, or the judgment was given simply due to the default of appearance of defendant. If the judgment is given due to the default of appearance of defendant, it cannot be considered a judgment on merits. If it is given after considering the evidence then it will be on merits, irrespective of the facts that it was ex parte decree. This view also finds support from PLD 1960 Karachi 594.

19. The learned counsel for the appellant submitted that decree was an ex parte decree, so the judgment was not delivered on the merits of the case. As it was an ex parte decree, so it may be declared null and void. Now the question emerges, whether the decree was an ex parte decree, or it was not given on the merits of the case. I am unable to give any finding on the proposition raised by the learned counsel for the appellant, because the learned counsel for the appellant has not filed the copy of the decree alongwith the suit, nor there is any copy of the judgment on the file on the basis of which I can reach on the conclusion, that it was not given on merits or it was an ex parte decree. A photostat copy of the decree‑sheet was adduced in evidence by the defendants which is not admissible. It is pertinent to note, here, that the plaintiff‑appellant who has to produce the copy of the decree, also raised objection on the production of the copy of decree. It is just ‑a copy of the decree‑sheet. It does not contain that it was passed an ex parte decree, so the arguments of the learned counsel for the appellant that the decree was not passed on merits of the case, is without any substance.

20. The next question raised by the learned counsel for the appellant was that the parties were governed by Muhammadan Law and the decree was not given under the Muhammadan Law. No doubt, that section 13, clause `c' contains that where it appears on the face of the proceedings to be founded on refusal to recognise the law of Pakistan in cases in which such law is applicable. No doubt, in` case of Muhammadans they are governed by Muhammadan Law in respect of dissolution of marriage. Now the question emerges whether the Court of United Kingdom passed a decree while keeping in consideration the law applicable to the Muslims, but when the decree was not adduced in evidence then, how the finding can be given that the decree was not given according to the Muhammadan Law by which the parties were governed. It was the basic duty of the appellant to prove before the Court that decree was not passed according to Muhammadan Law by which the parties were governed, but the appellant has miserably failed to prove the Court that the decree was passed under some other law.

21. When the appellant. has admitted that a decree was passed by foreign Court between the parties then, the onus to prove that the decree and the judgment was not conclusive between the appellant‑plaintiff and defendant and the appellant has failed to discharge the onus. It was the paramount duty of the appellant to prove before the Court that the decree passed by the foreign Court comes with the exception contained in section 13(1 to f) but the appellant‑plaintiff has neither produced the copy of the judgment or the decree‑sheet, nor he could prove that it comes within exceptions contained in section 13 of the C.P.C. Thus, merely on the saying of appellant‑plaintiff, it cannot be said that the judgment between the plaintiff and defendant No.1, by the Court of U.K. was not conclusive.

22. Assuming for the sake of arguments that the decree would have been produced by the appellant and the decree would have been passed under the law of U.K. even then, the decree could not be declared as null and void on the ground that it was not passed according to the law applicable in Pakistan because the attorney of the appellant, Ch. Muhammad Yaqoob appeared as a witness and stated that the plaintiff and the defendant both are British Nationals and they are residing there. When the parties were British Nationals and they are also residing in U.K. and there is nothing on the file from which it can be said that they were the State‑Subjects. They were not British Nationals, then how the decree‑passed under the law of U.K. can be declared null and void.

23. It is also pertinent to note, that plaintiff and defendant, both are residing in U.K. Neither the plaintiff nor the defendant appeared as a witness before the Court. The perusal of the file shows, that the present litigation is the sequel of some acrimony among the parents of the plaintiff and defendant. Both of them have contracted second marriage and have given birth to various children from their second marriages. They are not keen in the present litigation. If they would have any interest in the present litigation, then, they would have appeared before the Court. The perusal of the whole file shows, that they never appeared before any Court, rather the cases are being prosecuted by their attorney. The defendant No.1, has contracted the marriage and various children born out of the wedlock of defendant No.2. The plaintiff appellant has also contracted the second marriage. They are not residing within the jurisdiction of this Court, then, how a decree for restitution of conjugal rights can be passed in the aforesaid circumstances. How the. decree of the I Court of United Kingdom which is not before me and on the record, can be declared null and void. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed. A.A./11/Sh.C(AJK) Appeal dismissed.