P L D 1981 Karachi 715 (PLP)

The plaintiff has applied for rejection of plaint under Order VII, rule 11, C. P. C. on the grounds that defendant No. 1 is a sovereign Foreign State while defendant No. 2 is an organ and integral part of a foreign Embassy and as such the defendants are immune from the process of this Court. Reliance is placed on sections 86‑A and 87, C. P. C. to claim immunity. The plaintiff has sued the defendants for recovery of a sum of Rs. 2,59,050.83 on account of alleged damages caused to the premises by the defendant while in occupation as tenant, arrears of water, conservancy, electric and gas charges and mesne profits. The admitted position in the case is that the premises was let out by the plaintiff to defendant No. 2 on 31‑12‑1968 for a period of 3 years under a written agreement of tenancy which was renewed from time to time by mutual consent until 31‑12‑1977. In the agreement of lease the lessee is described as follows :‑ "The U. S. S. R. Trade Representative in Pakistan, having their Karachi Branch Office at No. 68, Clifton, Karachi, hereinafter referred to as L E S S E E "which expression shall mean and include their legal representative, Administrator and Assignee" of the Other Part." The agreement nowhere states that the premise acquired by defendant No. 2 is the premise where the office of Trade Representation of U. S. S. R. will be housed or that the premise was acquired for official use of the Embassy of defendant No.

1. However, in Part III, para. 8 of the agreement it is mentioned that that agreement shall stand terminated if at any time the U. S. S. R. Government decides to close down their interest in Pakistan or vice versa. In the application under Order VII, rule 11, C. P. C. it is asserted by the defendants that defendant No. 1 being a foreign Sovereign State and defendant No. 2 being an organ and integral part of the Embassy both are immune from the process of Court by virtue of the provisions contained in sections 86‑A and 87 of C. P. C. The plaintiff in his counter‑affidavit had denied that the defendants are entitled to claim any immunity. It is asserted in the counter‑affidavit filed by the plaintiff that the immunity provided in section 86‑A, C. P. C. is available only to a "diplomatic agent" whereas the defendants do not hold that position. ' It is also asserted by the plaintiff that in so far as defendant No. I is concerned no immunity at all is available to it, either under section 86 or 86‑A or 87, C. P. C. It is claimed by the plaintiff that agreement of lease between him and the defendant No. 2 was a private commercial transaction between the parties which is governed under the laws of this Country and defendant No. 2 is said to be engaged in commercial activities in Pakistan. Distinction is sought to be drawn by the plaintiff between "diplomatic activities" of a "diplomatic agent" and his commercial activities. The defendants with their rejoinder affidavit have filed a photostat of an unsigned typed letter dated 27‑6‑1956, alleged to have been addressed to Chief of U. S. S. R. Trade Delegation by the Chief of Pakistan Trade Delegation and in which the Trade Representation of U. S. S. R. is alleged to have been recognised by the Government of Pakistan as an integral part of the Embassy of U. S. S. R. in Pakistan and further Government of Pakistan is alleged to have agreed to impart customary diplomatic privileges and immunity to the Trade Representative of U. S. S. R. and his deputies. It is also stated in this letter that official lodgings in which the Trade Representation will be housed and which being subject to exact definition will use the rights of extra territories. The defendants have also filed another document which is a photostat of a certificate alleged to have been granted to defendants by a Secretary to the Government of Pakistan in connection with proceeding of Suit No. 115 of 1966, in which it is certified that the Trade Representation of Soviet Union in Pakistan, by virtue of an alleged agreement dated 27‑6‑1956 is an integral part of the Embassy of U. S. S. R. in Pakistan and that Trade Representative of U. S. S. R. Snanrai, I Karachi, appears and at all times has appeared in the Diplomatic list as a Diplomatic officer of U. S. S. R. Embassy and in the understanding of Pakistan Government he enjoys such privileges and immunities as are accorded to Diplomatic agent. This alleged certificate was filed by the defendants along with an affidavit dated 17‑5‑1980 and Mr. Khalilur Rahman, the learned counsel for the defendants claims that the occasion for filing ibis document arose when my learned brother Zaffar Hussain Mirza, J. who had earlier heard arguments on this application and after reserving orders thereon, later called upon the counsel to address further argument with regard to provisions of Diplomatic and Consular Privileges Act of 1972. This statement is disputed by Mr. Arif, the learned counsel for the plaintiff who claims that he has no notice of this document and that he is. also not aware of any such direction given by Mr: Justice Zaffar Hussain Mirza to the learned counsel to file documents. On record, however, there is nothing to indicate that any such direction was given to the counsel by my learned brother Zaffar Hussain Mirza, J. Be that as it may, for the purpose of deciding the application under Order VII, rule 11, C. P. C. I will only consider the averments in the plaint and can reject it only if it is shown that from the statement made in the plaint, the suit is barred under any law. In order to understand the true import of the contentions raised by the learned counsel t feel it necessary to reproduce here the provisions of sections 86‑A and 87, C. P. C. besides referring to some of the provisions of the Diplomatic and Consular Privileges Act of 1972. Sections 86‑A and 87, C. P. C. are as follows :‑ "86‑A. Suits against diplomatic agents.‑(1) No proceeding 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 a diplomatic agent except in cases which come under clauses (a), (b) and (c) of sub section (1) and in which such measures can be taken without in fringing 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 sub section (2) may be waived 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.

87. Style of Rulers as Parties to suits.‑(The Ruler of a Foreign State) may sue, and shall be sued in the name of his States Provided that in giving the consent referred to in the foregoing section (the Central Government, . . or the Provincial Government), as the case may be, may direct that any such (Ruler) shall be sued in the name of an agent or in any other name." Section 86‑A reproduced above was originally not in C. P. C. but was introduced in the Code by Amending Ordinance VI of 1970 on 28‑2‑1970. After incorporation of section 86‑A in the Code of Civil Procedure, the Federal Government on 12‑9‑1972 passed Act 1X of 1972 known as Diplomatic and Consular Privileges Act, 1972. The object of passing Act IX of 1972 was to adopt and give effect to the Articles of Vienna Convention on Diplomatic Relations, 1961 and Vienna Convention on Consular Relations, 1963. By section 2 of Act IX of 1972, various Articles of the two Vienna Conventions were adopted and were given effect to as a law, notwithstanding anything contrary contained in ,any other law for the time being in force in Pakistan. A comparison of the provision of section 86‑A with the provisions of Act IX of 1972 will show that the provision contained in section 86‑A are nothing but reproduction of the provisions of Arts. 31 and 32 of Vienna Conventions adopted by Act IX of 1972 in the First Schedule to the Act. The immunity granted to Diplomatic agents or to a person having diplomatic rank from the process of Municipal Court of this Country both under section 86‑A, C. P. C. as well as under Arts. 31 and 32 contained in First Schedule to the Act IX of 1972 is not a total or absolute immunity. There are number of exceptions enumerated in these provisions, in respect of which no immunity can be claimed, by the Diplomatic agent. I may mention here some of the cases in which no diplomatic immunity can be claimed from the process of a Municipal Court excessing civil jurisdiction by such a person. As for instance where such person is sued in respect of an immovable property situated in Pakistan held by him in his private capacity (section 86‑A (1) (a), C. P. C. and Article 31(1) (a) of First Schedule to Act IX of 1972) ; where such person is involved as an executor, administrator, heir or legatee in his private capacity in succession proceedings. (See S. 86‑A (1)(b), C. P. C. and Art. 31 (a) (b) of First Schedule to the Act IX of 1972) ; where such person is sued in respect of any professional or commercial activity exercised by him out‑ D side his official functions (See S. 86‑A (1) (c), C. P. C. and Art. 31(1) (c) of First Schedule of Act IX of 1972) and where such person initiate any proceedings in the civil Court and any counterclaim is made in those proceedings directly connected with the principal claim (See section 86‑A (3), C. P. C. and Art. 32(3) of First Schedule to Act IX of 1972). Two conditions must therefore be shown to exist before Diplomatic immunity is claimed. Firstly, the person against whom the proceedings are initiated is a "diplomatic agent" or is a "member of the diplomatic staff" and secondly the proceedings initiated against him relates to his functions and duties as a "diplomatic agent" and do not fall in any of the exceptions mentioned above. "Diplomatic agent" is defined in section 86‑A (6) as the head of the mission in Pakistan of that State and includes a member of the staff of that mission having E diplomatic rank. The above definition conforms with the definition of "diplomatic agent" and "member of diplomatic staff" as given in Art. 1 (d) and (c) of the First Schedule to Act IX of 1972. Defendant No. 2 by its very description is not covered in the above definitions. However the contention raised by defendants is that under some alleged bilateral agree ment between the Governments of Pakistan and U. S. S. R. the Trade Representation of U. S. S. R. is recognised as an integral part of the Embassy of U. S. S. R. and the Trade Representative is accorded diplomatic immunity. These assertions of defendants have to be proved in the suit like any other facts and decision thereon at this stage will amount to consideration of facts raised by the defendants by way of defence in the suit, which in my opinion is not permissible while dealing with an application under Order VII, rule 11, C. P. C. Apart from it, the plaintiff has alleged that defendant 2 is engaged in normal commercial activities in Pakistan which are outside the scope of the official functions of a diplomatic agent and the execution of lease between plaintiff and defendant 2 was in the course of these activities of defendant

2. I have already pointed out earlier that the lease agreement between the parties does not show that the premises was acquired either to house the Trade Representation of U. S. S. R. in Pakistan or in connection with official use of the Embassy of U. S. S. R. It cannot be denied that if the plaintiff is able to prove his assertions at the trial of suit this Court will have jurisdictions to hear and decide the present proceedings. There is another aspect of the case which also cannot be overlooked at this stage. The plaintiff's suit is both against the Government of U. S. S. R. and the Trade Representation of U.S.S.R. in Pakistan. The learned counsel for the plaintiff argued that in so far defendant 1 is concerned there is no immunity available to it under the provisions of C. P. C. as section 86, C. P. C. only gives immunity to the Ruler of the State and not to State itself. In support of the contention the learned counsel relied upon the case of the Secretary of State of the United States of America v. Messrs Gamanen Leytton, Karachi (1) decided by a Division Bench of Sind and Baluchistan High Court Karachi Bench. The above‑cited case fully supports the contention of the plaintiff and therefore it follows, that even if I am to hold that the suit cannot proceed against defendant 2, the plaint in the suit cannot be rejected as a whole. Order VII, rule 11, C. P. C. does not contemplate partial rejection of the plaint against some of the defendants in the suit. I therefore, reject this application at this stage but the defendant will be free to raise these contentions by way of defence in suit and prove them at the trial of the suit. Order on C. M. A. No. 776 of 1979 The defendants have applied for extension of time for filing written statement in the suit until decision of their application under Order VII, rule 11, C. P. C. (C. M. A. No. 408/79) in the suit. As I have rejected the application of defendants under Order VII, rule 11, C. P. C. I grant time to defendants to file written statement in the suit within two months from today. The costs of application under Order VII, rule 11, C. P. C. will abide by the final result in the suit. Both the applications stand disposed of. M. y. M. Order accordingly. (1) P L D 1971 Kar. 314