2012 PLP 704 (CLC)

MUNIB AKHTAR, J.

By means of a short order dated 13-12-2011 I dismissed this application. The following are my reasons for having done so.

2. Briefly stated, the case of the plaintiff-Bank is that the defendant, either himself or in connection with certain business entities which at the material time were doing business in Abu Dhabi, obtained certain facilities from the plaintiff's Abu Dhabi branch. The plaintiff contends that those facilities remained outstanding and that the defendant was liable in respect thereof. Accordingly, the plaintiff initiated recovery proceedings in the courts at Abu Dhabi and it appears that it obtained a judgment in its favour, both against the defendant and the other entities as noted above. The judgment remained unsatisfied, and the plaintiff-Bank therefore filed the present suit in this Court on the original side against the defendant.

3. The defendant was served, appeared in the matter, and filed his written statement. The present application was filed under Order XI, C.P.C. in terms of which the defendant sought to serve the interrogatories annexed to the application on the plaintiff for reply by the latter. The application was strongly contested by learned counsel for the plaintiff.

4. Learned counsel for the defendant, in support of his application, submitted that the present suit was being construed as though it was in the nature of execution proceedings and that was in any case the stance being adopted by the plaintiff. Learned counsel submitted however, that the suit had been filed as an ordinary suit in which interrogatories could be served by one party upon the other. Learned counsel submitted that the interrogatories were necessitated because the plaintiff based its case on the judgment obtained in Abu Dhabi. Learned counsel submitted that this judgment had no conclusive effect in terms of section 13, C.P.C. since the defendant's case came within one or more of the clauses thereof, and anyone of the said clauses, if applicable, excluded the applicability of the aforesaid section. He submitted that since the plaintiff was pursuing its case on the basis of the foreign judgment, the defendant needed to serve the interrogatories on the plaintiff in order to establish that that judgment did not have any conclusive effect.

5. Learned counsel for the plaintiff opposed the application. He submitted that a suit could certainly be brought on a foreign judgment and that such a judgment was conclusive with regard to the matters in issue or dispute between the plaintiff and the defendant. In this context he placed reliance on Abdul Ghani v Haji Saleh Muhammad PLD 1960 Karachi 594 (SB) and submitted that the present application was entirely without merit.

6. After having heard learned counsel as above, I came to the conclusion that the application ought to be dismissed. For present purposes, it is important to keep in mind that insofar as the courts of Pakistan are concerned, the original cause of action on which a defendant had sued in the foreign court does not merge with the judgment of that court. While the foreign judgment cannot, in and of itself, take effect in Pakistan (unless the matter comes within section 44-A, C.P.C. or some other statutory provision), it can serve as, and provide, the cause of action for a suit to be filed in Pakistan. Accordingly, a plaintiff who has a foreign judgment in his favour against a defendant in Pakistan has three options. He can bring his suit on the foreign judgment, omitting altogether to sue on the original cause of action. Or, he can ignore the foreign judgment and bring his action on the original cause of action. Or, he can sue in the alternative, i.e., bring his suit on the foreign judgment and in the alternative on the original cause of action. The advantage of suing on the foreign judgment is that as provided in section 13, C.P.C. such a judgment is conclusive between the parties with regard to any matter thereby directly adjudicated upon between the plaintiff and the defendant. Thus, the defendant stands precluded from agitating before the Pakistani court any issue directly adjudicated upon by the foreign court. The disadvantage of suing only on the foreign judgment is that if the defendant is able to raise a defence in terms of any one of the clauses of section 13, the foreign judgment ceases to be conclusive. If therefore, the suit is brought only on the foreign judgment, and such a defence is successfully raised, the suit would inevitably have to be dismissed. The prudent plaintiff therefore sues in the alternative, i.e., bases his claim on the foreign judgment or in the alternative on the original cause of action. This is precisely the course adopted by the plaintiff as attested by para 10 of the plaint which reads as follows:

"The plaintiff is entitled to UAE Dhs. 1,650,220.23 (being equivalent to Rs.26,040,475.22) against the defendant on the basis of the judgment of the Federal Supreme Court of Abu Dhabi comprising of Dhs.1,071,572,23 plus Dhs. 578,648 being interest at 9% thereon from 30-1-1997 till 31-1-2003. Alternatively, the plaintiff is entitled to the amount of UAE Dh. 3,151,408.23 being equivalent to Pak Rs.49,729,221.00 against the Defendant on the basis of the certified copies of the 3 accounts of the Defendant aforementioned which show as on 31.12.2002 the amounts of Dhs. 1,819,378.58, Dhs. 869,289.00 and Dhs. 462,740.65 as outstanding, their Pak rupee equivalent being Rs.28,709,794.00, Rs.13,717,318.00 and Rs.7,302,047.00 respectively."

7. At the same time, it must also be kept in mind that regardless of whichever of the three options the plaintiff chooses, he must prove his case by appropriate evidence, which would of course be tested against the evidence of the defendant on a balance of probabilities. Thus, if the plaintiff chooses the third option (as is the case at hand) then he must (to establish his case on the foreign judgment as the cause of action) lead appropriate evidence to establish the factum of the foreign judgment and also any evidence to rebut any objection(s) taken by the defendant in terms of section

13. At the same time, since he has chosen the third option, he must also produce the evidence necessary to prove his alternative claim on the original cause of action. As is immediately obvious, if the plaintiff fails, or chooses not to, adduce the necessary evidence to establish the original cause of action, then he obviously cannot succeed in respect of that alternative since no evidence has been produced. In the present case therefore, if at all the plaintiff-Bank wishes to maintain the viability of both the alternatives being sued upon in terms of para 10 of the plaint, it would have to produce evidence not merely of the foreign judgment (and to rebut any objections taken by the defendant under section 13), but would also have to lead evidence on the original cause of action. If the plaintiff-Bank does not lead evidence in respect of (say) the original cause of action and the defendant succeeds in bringing his case within one or more of the clauses of section 13 C.P.C., then the suit will most probably fail. This is so because in such a situation, the foreign judgment, even if proved, would nonetheless not be conclusive, and the plaintiff would be unable to succeed on the basis thereof. Since no evidence would have been led on the original cause of action, that alternative would also fail. But that of course is a matter that depends on what evidence the plaintiff ultimately chooses to lead at the trial.

8. In my view, the foregoing is the correct legal context in which the application presently under consideration must be considered. I have seen the questions that learned counsel for the defendant proposed to serve on the plaintiff by way of interrogatories. In my view, all of these questions, really speaking, relate to the evidence to be led by the plaintiff. If at all the plaintiff chooses to lead evidence in respect of the original cause of action, then of course learned counsel for the defendant will be entitled to cross-examine the plaintiff's witnesses and to examine and challenge any document(s) that they may produce, and the proposed questions can be put to such witnesses. Furthermore, and in any case, a party is not entitled to serve interrogatories to find out the facts constituting the other side's evidence. The proposed questions would, in my view, fall in this category, and defendant must therefore, wait for the trial to put these questions to the plaintiff's witness if the latter chooses to lead evidence on the original cause of action. At this stage therefore, it would be inappropriate for the defendant to serve the proposed interrogatories on the plaintiff.

9. I may note that during the course of the hearing it was suggested by learned counsel for the plaintiff that since the suit had been brought on a foreign judgment as the cause of action, all that remained to be done was to consider the objections raised by the defendant in terms of section 13, C.P.C.. In my view, that is, with respect, not the case. The present proceedings are in the nature of a civil suit in every sense of the word. Accordingly, since the parties have filed their pleadings, the next step to be taken is for issues to be framed so that the parties can properly lead evidence in the matter.

10. For the foregoing reasons, I had come to the conclusion that the application under consideration was misconceived and had therefore, dismissed it by means of the short order referred to above. The office may now fix this case for framing of issues. M.H./H-32/K Application dismissed.