2021 PLP 1379 (CLC)

ZAHEER-UD-DIN KAKAR, J.

This appeal under section 96, C.P.C., is directed against the Ex Parte judgment and decree dated 28-7-2016 (the "impugned judgment"), passed by the Senior Civil Judge-I, Quetta (the "trial Court"), whereby suit filed by the appellant/plaintiff was dismissed.

2. Feeling aggrieved from the Audit Findings of Financial and Program Cooperation Agreements (PCAs) No.PAK/13/102 and PAK/14/128, dated 1-7-2015 conducted by the respondents/defendants; the appellant/plaintiff filed the Suit for Declaration and Recovery of Damages amounting to Rs.214,000,000/- against the respondents / defendants before trial Court with the following prayer: "i. Declaring the Special Audit conducted by the defendants as biased, dishonest, willful misconduct and contrary to the provisions of the PCA hence null and void; ii. Declaring that the letter dated 01.07.2015 issued by the defendants is dishonest and biased one, a willful misconduct, illegal and based on mala fide as well as contrary to the provisions of the PCA hence mull and void: iii. Declaring that the defendants Nos.1 and 2 committed willful misconduct against the plaintiff; iv Declaring that the defendant No.3 mis-exercising his powers. authority and post against the plaintiff committed willful misconduct: v. For recovery of stopped amount valuing Rupees Four Million from the defendants Nos. 1 and 2: vi. For recover of Rupees Six Million from the defendants Nos. 1 and 2 in tune of financial loss caused to the plaintiff; vii. For recovery of Rupees Three Million from the defendant No.3 in tune of financial loss caused to the plaintiff; viii. For recovery of Rupees One Million from the defendant No.4 in tune of financial loss caused to the plaintiff; ix. For recovery of Rupees One Hundred Twenty Million as damages (loss to reputation) from the defendants Nos.1 and 2; x. For recovery of Rupees Sixty Million for damages (loss to reputation) from the defendant No.3; xi. For recovery of Rupees Twenty Million for damages (loss to reputation) from the defendant No.4; xii. The defendants may kindly be directed to pay the decrial amount accordingly; xiii. The expenditures of the suit also may kindly be ordered to be recovered from the defendants; xiv. Any other relief which this Honourable Court deems fit and proper may kindly be issued to the plaintiff."

3. Process was issued to the respondents/defendants, but despite service they did not appear, thus, the trial Court left with no other option but to declare them ex parte vide order dated 19.07.2016 after fulfilling the legal procedure provided under the law. However, the appellant / plaintiff in support of his claim produced four witnesses and lastly recorded his own statement. Consequently, the trial Court after hearing the learned counsel for appellant/plaintiff dismissed the suit vide ex parte judgment and decree dated 28.07.2016.

4. Being dissatisfied with the impugned judgment, the appellant / plaintiff has preferred the instant Regular First Appeal before this Court.

5. Learned counsel for the appellant/plaintiff while arguing the matter mostly relied on the points raised in the appeal.

6. We have heard the learned counsel for the appellant/plaintiff and perused the record which reflects that the appellant/plaintiff and respondent No.1 (UNICEF) entered into an agreement by introducing as Program Cooperation Agreement (PCA) No.PAK/13/102 dated 21.06.2013 which was valid up to 24.06.2014. In this regard, Clause-55 of the said agreement is regarding the resolution of differences, which reads as under: "Resolution of Differences:

55. If there is a dispute, controversy or claim between the Parties, they will try to reach agreement amicably by direct negotiations. If no agreement can be reached within thirty (30) days, the dispute, controversy or claim will be decided by the UNICEF Regional Director for the region that includes Pakistan and the chief executive of Partner meeting together, in person or otherwise, to consider the matter."

7. A plain reading of the afore-referred Clause abundantly makes it clear, that if there is a dispute, controversy or claim between the parties they will try to reach agreement amicably by direct negotiation and if no agreement can be reached within the period of thirty (30) days. then, the dispute, controversy or claim will be decided by the UNICEF Regional Director for the region that includes Pakistan and the Chief executive of partner meeting together, in person or otherwise, to consider the such matter. In this respect, it is noted that the appellant/plaintiff without availing the alternate remedy as provided under Clause 55 of the PCA. approached the inappropriate forum i.e. Civil Court for redressal of his grievances. It is settled law that a Suit before the Civil Court was not competent before exhausting the available remedy under the Law. Apart from this it is also settled principle of law that where a special remedy is provided, it may not be bypassed and the Civil Courts should not be approached directly without exhausting the proper forum in the hierarchy for the subject purpose. In this regard, reference may be made to the cases of Muhammad Jalat Khan v. Faisal Hayat Khan and 4 others, 2003 CLC Peshawar 837, Hakam and others v. Tassadaq Hussain Shah, PLD 2007 Lahore 261 and Zahid Hussain and 10 others v. Shamsuddin and 9 others 2014 CLC Sindh 1334. Furthermore, the jurisdiction of Civil Courts in also impliedly barred where an alternate remedy has been provided under the law, provided that the authority was not exercised in excess of the jurisdiction conferred upon the authority. In this regard, reference may be made to the case of Bashir Ahmed v. Messrs Muhammad Saleem, Muhammad Siddique & Co. (Regd.) and others 2008 SCMR 1272.

8. Besides, the UNICEF as a subsidiary organ of the United Nations is entitled to the privileges and immunities provided in the Convention on the Privileges and Immunities of the United Nations (hereinafter, the "General Convention") with which Pakistan has been a party since September 22nd, 1948. Pursuant to section 2, of the Article II of the General Convention, the United Nations, its property and assets whenever located and by whomsoever held, shall enjoy immunity from every forum of legal process except insofar as in any particular case, it is expressly waived its immunity. In this respect, section 2 of the Article-II of General Convention is referred hereunder for ready reference: "The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every forum of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, under-stood that no waiver of Immunity shall extend to any measure of execution." In addition, pursuant to the Section 18(a) of the Article-V, of the General Convention; the officials of the United Nations shall "be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity." Section 18(a) of the Article-V speaks as follows: "SECTION

18. Officials of the United National shall: (a) Be immune from legal process in respect of Words spoken or written and all acts performed by them in their official capacity; Further, the Article-IX of the Basic Cooperation Agreement (BCA) between the Government of the Islamic Republic of Pakistan and UNICEF reaffirms the applicability of the General Convention. Hence, it would appropriate to refer the Article-IX of BCA hereunder for ready reference: "Applicability of the Convention The Convention shall he applicable mutatis mutandis to UNICEF, its office, property, funds and assets and to its officials and experts on mission in the country."

9. In view of what has been discussed above, the trial Court has rightly held that the respondents/defendants have diplomatic immunity and cannot be sued in Civil Courts and the jurisdiction of the Civil Courts are barred to entertain any such suit against them being functionary of UNICEF. Besides, the learned counsel for appellant has failed to point out any illegality, irregularity or perversity in the impugned ex parte judgment and decree dated 28.07.2016 passed by the Senior Civil Judge-I, Quetta, warranting interference by this Court. Hence, the appeal in hand being devoid of merits is hereby dismissed. No order as to costs. Decree sheet he drawn. MQ/147/Bal. Appeal dismissed.