2000 PLP 1833 (YLR)

(B) That the status of the petitioner is Mission and of the respondent as member of the staff of the Mission cannot invoke the jurisdiction of Court in the matter and therefore, it cannot be disputed that the petitioner is immune from the jurisdiction of the Court by virtue of State Immunity Ordinance, 1981 read with Diplomatic and Consular Privileges Act, 1972 and section 86‑A, C.P.C. The learned counsel in support of the contention has placed reliance on Ghulam Ahmad v. USA (1986 SCMR 907).

3. Learned counsel for the respondent on the other hand placing reliance on section 6 of the State Immunity Ordinance, 1981 contended that no immunity is available to the petitioner in the matter relating to the contract of employment of the respondent which was to be performed in Pakistan and under subsection (3)(11)(4) of the State Immunity Act, 1981, the petitioner shall be deemed to have submitted to the jurisdiction of the Court while taking an effective step in the proceedings by filing of written statement to the suit. The learned counsel argued that the provision of Order 7, Rule 11, C.P.C. cannot be invoked after filing the written statement by the defendant and therefore, the trial Court has rightly dismissed the application of the petitioner.

4. Notwithstanding the nature of claim involved in the suit, this petition is confined only to the extent of question relating to the immunity of the petitioner from the civil, criminal and administrative jurisdiction of the Court in Pakistan under section 86‑A, C.P.C. read with Article 31 of the First Schedule and section 2(1) of Diplomatic and Consular Privileges Act, 1972 and section 17 of State Immunity Ordinance, 1981.

5. The relevant provisions of law on the subject are reproduced hereunder:‑‑ Section 86‑A, C.P.C. "Suit against diplomatic aged.‑‑‑(1) No proceedings in any Court shall lie against a diplomatic agent except in a case relating to‑‑ (a) any private immovable property situated in Pakistan held by him in his private capacity and not on behalf of the sending State for the purpose of the mission. (b) A succession in which the diplomatic agent is involved as executor administrator, heir or legatee as a private person and not on behalf of the sending State. (c) Any professional or commercial activity exercised by the diplomatic agent in Pakistan outside his official functions. (2) No measures of execution shall be taken in respect of diplomatic agent except in cases which come under clauses (a), (b) and (c) of subsection (1) and in which such measures can be taken without infringing the inviolability of his person or his residence. (3) The initiation of any proceedings in a Court by a diplomatic agent shall preclude him from invoking immunity from jurisdiction under this section in respect of any counterclaim directly connected" with the principal claim. (4) The immunity of a diplomatic agent under subsection (1) or subsection (2) may be waved by the sending State; and any, such waiver shall be express‑ (5) Waiver of immunity in respect of any proceedings shall not be held to imply waiver of immunity in respect of any measure of execution for which a separate waiver shall be necessary. (6). In this section diplomatic agent in relation to a State means the head of the Mission in Pakistan of that State and includes a member of the staff of that Mission having diplomatic rank. Article 31 of the First Schedule of the Act, 1972; (1). A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity form its civil and administrative Jurisdiction except in the case of

(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purpose of the Mission. (b) An action relating to succession in which the diplomatic agent is involved as executor administrator heir or legatee as a private person and not on behalf of the sending State. (c). An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. (2). A diplomatic agent is not obliged to give evidence as a witness. (3). No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph I of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. (4). The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. Sections 6 (1) and 17 of State Immunity Ordinance 1981;

6. Contract of employment .(1) A State is not immune as respects proceedings relating to a contract of employment between a State and an individual where the contract was made, or the work is to be wholly or partly performed in Pakistan .

17. Savings etc .(1) This Ordinance does not affect any immunity or privilege conferred by the Diplomatic and Consular Privileges Act, 1972 (IX of 1972); and

(a). section 6 does not apply to proceedings concerning the employment of the members of a Mission within the meaning of the Convention set out in the First Schedule to the Said Act of 1972 or of the members of a consular post within the meaning of the Convention set out in the Second Schedule to that Act; (b). subsection (5) of section 7 does not apply to proceedings concerning a State s title to or its possession of property used for to purposes of a diplomatic Mission. (2) This Ordinance does not apply to

(a). proceedings relating to anything done by or in relation to the armed forces of a State while present in Pakistan. (b). Criminal Proceedings; or (c). Proceedings relating to taxation other than those mentioned in section 12.

6. The pivotal question involved in the present petition is as to whether the present petitioner enjoys immunity under Displomatic and Consular Privileges Act, 1972 read with State Immunity Ordinance 1981 or he by virtue of section 6 (1) of the State Immunity Ordinance 1981 cannot claim such privileges.

7. Under Order 7, Rule 11, C.P.C the plaint is rejected in the following cases:- (a). Where it does not disclose a cause of action: (b). Where the relief claimed is under valued and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so; (c). Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court Supply the requisite stamp paper within a time to be fixed by the Court fails to do so; (d). Where the suit appears from the statement in the plaint to be barred by any law. 7-A It is therefore, essential to determine the preliminary question regarding the maintainability of the suit in the light of section 86-A C.P.C. read with Diplomatic and Consular Privileges Act, 1972 and State Immunity Ordinance, 1981. A perusal of above-referred provisions of law show that unless the requirement of section 86-A C.P.C. is fulfilled in such cases, no such suit can be brought against a Mission on the plea of an exemption to the general provision of law on the subject referred above. The parties having not disputed their status cannot confine themselves to the provisions for State Immunity Ordinance 1981 and Diplomatic and consular Privileges Act, 1972. the Apex Court in Ghulam Muhammad v. U.S.A. (1986 SCMR page 907) in a matter arising out of an application under Order 38, Rule 1 C.P.C. for permission to sue in forma pauperis for the recovery of certain amount against the U.S.A. held that the provisions of section 4 of the Diplomatic and Consular Privileges Act, 1972 read with section 31 of the First Schedule to the said Act coupled with certificate issued by the foreign office would show that while enjoying immunity form legal process respondent a foreign Mission was precluded to be sued before the Civil Court in this country and held that U.S.A. enjoyed diplomatic immunity from the civil proceedings in appeal and dismissed the appeal. The case f the present petitioner British High Commissioner is not distinguishable to that of the case as reported in 1986 SCMR

907. The British High Commissioner is a Mission as defined under the Diplomatic and Consular Privileges Act. 1972 and the respondent is member of the staff of Mission. Therefore the breach of the contract of service, if any between the petitioner and the respondent cannot be adjudicated by the Courts in‑ Pakistan due to availability of immuntity to the petitioner from the civil, criminal and administrative jurisdiction of the Courts in Pakistan as provided under section 4 of the Diplomatic and Consular Privileges Act, 1972 read with section 31 of the First Schedule of the said Act. The learned counsel for the respondent contended that the petitioner by filing the written statement has submitted to the jurisdiction of the Courts and thus under section 4(3) of the said Act he shall be deemed to have submitted to the jurisdiction of the Pakistani Court as provided under clause (b) of subsection (3) to section 4 of State Immunity Ordinance, 1981 which is read as under: "Subject to subsection (4) it has intervened or taken any step in the proceedings." The contention of the learned counsel has no substance in the light of provision of subsection (4) of section 4 which is reproduced as under:‑‑ "Section 4(4).‑‑Clause (b) of subsection (3) does not apply‑‑-- (a) to intervention or any step taken for the purposes only of‑‑‑ (i) claiming immunity; or (ii) asserting an interest in property in circumstances such that the State would have been entitled to immunity if the proceedings had been brought against it; or (b) to any step taken by the State in ignorance the facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable."

8. The petitioner before filing the written statement has filed an application under Order 7, Rule 11, C.P.C., therefore, filing of written statement under the direction of the Court which contained the preliminary objection regarding the maintainability of the suit under State Immunity Ordinance, 1981 and Diplomatic and Consular Privileges Act, 1972 was neither intervened in the proceedings nor shall be deemed to have submitted to the jurisdiction of Court in Pakistan and submission of written statement under the direction of Court after filing an application under Order 7, Rule 11, C.P.C. would not be considered to take a step in the proceedings voluntarily. Therefore, the case of the petitioner is not covered by the provision of section 4(3) (A) and (B) of section 4 of State Immunity Ordinance, 1981 read with subsection (4) of the said section. 8‑A. The result of the above discussion is that this revision petition succeeds and the application of the petitioner under Order 7, Rule 11, C.P.C. is allowed. The plaint in the suit for damages filed by the respondent against the present petitioner is rejected. Q.M.H./M.A.K./B‑16/L Revision allowed