P L D 1959 (W (PLP)

FARUQUI, J.‑This second appeal arises out of a wife's suit for dower which was decreed by the first Court and which decree was set aside in appeal by Mr. Abdur Rahman G. Muhammadally, Additional District Judge, Karachi, by his judgment dated 13‑8‑

57. The plaintiff appellant Moselle Ellias has come up in second appeal. The plaintiff‑appellant Moselle Ellias, a Jew, was married to the defendant‑respondent Khawaja Ahmed Said on lath November 1943, at Darjeeling according to Muslim Law. The appellant claimed that her dower was fixed at Rs. 5,000 in 1952. She filed a suit being Suit No. 552‑A of 1952 for dissolution of marriage, for the custody of her two children and for dower. This suit was filed in the High Court of Calcutta in its ordinary original civil jurisdiction. On receipt of the summons of this suit, the defendant‑respondent divorced the plaintiff‑appellant on or about 19th February 1952, by a letter sent by him through his attorney. The above suit of the plaintiff‑appellant is said to have been decreed by the Calcutta High Court on 21st June 1954. Soon after the passing of this decree the defendant‑respondent left India with his two children sometime in July 1954. The plaintiff' seems to have pursued the defendant to Pakistan were she came in 1955 and took action in this High Court with respect to the custody of her two minor children, which matter is now said to be pending in the Supreme Court. On 22nd August 1956, she filed the present suit for dower in the Court of Sub‑Judge, Karachi. This suit was primarily based upon the judgment of the Calcutta High Court, referred to above, though there were allegations from which it appeared that she was also relying upon the original cause of action. This is by no means very clear but an issue was framed to that effect by the first Court who had given a finding in plaintiff's favour on that issue and this question was also dealt with by the Additional District Judge in appeal. On the pleadings, the trial Court had framed the following issues :‑ "(1) What was the amount of plaintiff's dower and whether it was prompt (2) Whether the Calcutta Court passed a decree for Rs. 5,000 dower in favour of the plaintiff? (3) Is the plaintiff entitled to sue for dower? (4) What relief, if any, is the plaintiff entitled to?" On all these issues, the trial Court held in favour of the plaintiff and passed the decree for Rs. 5,000 against the defen dant with costs. In appeal, the learned Additional District Judge did not disturb the finding of the trial Court on the first issue, which was with regard to the amount and nature of the dower. In fact, as appears from the judgment of the Additional District Judge, the correctness of the finding of the first Court on this issue was not questioned before him: He, however, held that the copy of the judgment of the Calcutta High Court produced in this case was inadmissible and, therefore could not be taken into consideration. With regard to the question whether the plaintiff was entitled to sue for dower on the original cause of action, the learned Additional District Judge found that that claim was barred by the law of limitation and that he was entitled to deal with that point in appeal even though it was not taken in the Court below. On these findings, he dismissed the plaintiff's suit: Before us, the plaintiff‑appellant has appeared in person and the respondent was represented by Mr. Suleman Advocate and having heard him at some length we have reached the conclusion that the judgment of the lower appellate Court cannot be sustained. The finding of the learned Additional District Judge with regard to the inadmissibility of the certified copy of the judgment of the Calcutta High Court was based upon consideration of section 86 of the Evidence Act. Admittedly, the certified copy produced by the plaintiff did not bear, any certificate as con templated under that section. We have to consider the effect of the lack of this certificate and the consequences thereof in the circumstances of the case. In order to do so, it is necessary to state certain facts. Before the trial Court, the plaintiff had, in the first instance, produced a certified copy of a copy of the judgment of the Calcutta Court. This was because she had filed the original certified copy in this Court in connection with her claim for the custody of her minor children. The certified copy that she produced was the one obtained by her from this Court. This was taken on record subject to objection. Later on, however, the plaintiff was able .to obtain the original certified copy from this Court and produced it before the Sub‑Judge which was admitted in evidence. The judgment of the Calcutta High Court was pleaded in para. 3 of the plaint to which the defendant in his written statement replied by stating that he merely admitted the fact that the marriage of the parties was dissolved by the defendant's consent and with regard to other allegations the same were denied and the plaintiff was put to proof thereof. It would be useful to reproduce that part of the written statement. This is what was said':‑ "The alleged dower is denied and the decree and order for the alleged dower as alleged is denied." It may be noted that there was no categorical denial by the defendant to the effect that no decree was passed by the Calcutta High Court. When the defendant came to give evidence, this is what he stated :‑ "The plaintiff filed a suit No. 552‑A of 1952 in the Calcutta High Court against me. This suit was for custody of children and dissolution of marriage and not for dower as far as I remember . . . . . I do not know if that suit was decreed or not because I was not in Calcutta. I had not been to Calcutta since July 1954 . . . . The moment I received summons in suit No. 552‑A of Calcutta High Court, I divorced the plaintiff out of Court. My solicitor sent her a registered notice of Talaq, which was signed by me." The plaintiff herself in her evidence had categorically stated that her suit referred to above was decreed and that in that very suit her dower was also decreed, and that she was producing the certified copy of the judgment of that suit. The consideration of these facts' would be necessary to determine whether the fact of the passing of the judgment m favour of the plaintiff by the Calcutta High Court has been proved in this case notwithstanding the absence of the certificate as provided by section 86 of the Evidence Act. But, before we go on to determine that question, we would like to deal with that part of the lower appellate Court's judgment where it refers to section 86 of the Evidence Act. Section 86 of the Evidence Act reads as follows "The Court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of Her Majesty's dominions is genuine and accurate, if the document purpose to be certified in any manner which is certified by any representative of Her Majesty or of the (Central Government) (in or for) such Country to be the manner commonly in use in that country for the certification of copies of judicial records." The learned Judge observed that the certified copy produced in this case did not bear the certificate as required by section 86 of the Evidence Act, and although the mode of proof as to the genuineness and accuracy thereof as laid down in the said section is not exhaustive and it can be proved in any other manner which too had not been done by the plaintiff in this case. Thereafter, he merely dealt with the relevant part of the trial Court's judgment on this issue and then relying on the State v. Abdul Hamid and another (A I R 1957 Pb. 86) came to the conclusion that as there had been no authentication by Pakistan's representative in India, this presumptive proof was lacking and as there was no other proof thereof the copy of judgment of Calcutta High Court is inadmissible and could not be considered by Courts in Pakistan. In the Punjab case, the learned Judges were considering the effect of a judgment of a Magistrate at Lahore in which he had held one Abdul Hamid to be an Indian national. This Abdul Hamid seems to have been prosecuted in East Punjab under the Indian Passports Act and had been acquitted by a Magistrate at Rohtak, against which acquittal the State had appealed to the High Court. Abdul Hamid had relied upon the finding as to his nationality as given by the Lahore Magistrate. The learned Judges came to the conclusion that even if this judgment of the Lahore Magistrate had been rightly admitted, it was wholly irrelevant as no foreign judgment could confer Indian nationality on a non‑Indian national. The point had thus been disposed of but the learned Judges also considered the effect of the absence of a certificate as required by section 86 of the Evidence Act on the copy of the judgment of the Lahore Magistrate. All that they said on that point was as follows :‑‑ "The document is not authenticated. It was held in Murli Das v. Achut Das I L R 5 Lah. 105=A I R 1924 Lah. 493 (Para. 21) that the provisions of section 86 of the Evidence Act are imperative and must be complied with, and in the absence of the certificate referred to in the section the statements of witnesses taken in a foreign Court are not admissible in evidence. That is a very strong case against the admission of this document because in that case the record was sent by the Resident Jaipur State himself. Similarly in Ganee Muhammad Sarkar v. Tarini Charan Chukerbati I L R 14 Cal. 546 the same view was taken. That seems to have been the view of a Full Bench of the Calcutta High Court also in In re Ruldolf Stallmann I L R 39 Cal. 164, where it was held that records of the Berlin Court which are authenticated in the manner prescribed by law can be properly admitted in evidence. No doubt the section is not exhaustive of the modes of proof of foreign judicial records, but in the present case no other mode of proving the foreign judicial record has been shown". It would be noted that the learned Judges themselves did not give any definite finding that where a document did not bear the certificate as required by section 86, it would be inadmissible. On the contrary, they conceded that the section was not exhaustive of the modes of proof of foreign judicial record. In the Lahore case (A I R 1924 Lah. 493) referred to by the learned Judges, the dispute related to succession to the incumbency of a temple in Delhi upon the claim of the plaintiff that he was the Chela appointed by the last Guru. The lower Court had relied upon some oral evidence produced before it and also on copies of statements of certain witnesses who were examined in the succession certificate case in a Court in the former Jaipur State. These copies of the deposition were attempted to be relied upon on the ground that the witnesses could no longer be found within the meaning of section 33 of the Evidence Act. The copies did not bear the certificate under section 86 of the Evidence Act and the learned Judges excluded the evidence contained in those copies on that ground, though upon the other evidence they still held that the plaintiff had been appointed as Chela by the former Guru Man Dass. The other case referred to in the judgment of the Punjab High Court quoted above is Ganee Muhammad Sarkar v. Tarini Charan Chukerbati (I L R 14 Cal. 546). That case does not have much bearing upon the question in issue before us. In that case, a decree of the Court of the Civil Judge of Cooch Behar was sent for execution to the Court of the District Judge of Rangpore. The copy of the record was signed by the Sheristedar instead of by the Judge himself. Upon an objection having been taken by the judgment‑debtor to the effect that the record was not properly certified, the Sub‑Judge had ordered that the record be sent back to the Cooch Behar Court in order that a certificate might be given in proper form. This order was appealed against and the District Judge having rejected the appeal, the judgment‑debtor filed a further appeal to the High Court, and it was held that the Subordinate Judge had acted properly in sending the record back to the Cooch Behar Court to be properly certified. It was also observed that the Sub‑Judge should have set aside the execution proceedings as being altogether void, but as that formed no portion of the grounds of appeal urged in the lower appellate Court, the appeal should be dismissed. The Full Bench case reported in I L R 39 Cal. 164 would, again, appear not to have much bearing upon the point under consideration. This was a habeas corpus matter and it was complained on behalf of the petitioner that certain foreign depositions and papers recorded in Germany having not been properly authenticated in accordance with the provisions o1 section 82 of the Evidence Act the Magistrate should not have relied upon the same. The learned Judges observed that this objection was based on the assumption that the matter was governed by the rules laid down in the Indian Evidence Act. It was held that this contention was not well‑founded because it was plain that the matter was governed by Article XI of the Extradition Treaty with Germany and section 15 of the English Extradition Act, 1870 and as such the provisions of Indian Evidence Act had no application. In our opinion, section 86 of the Evidence Act does not relate to the admissibility or otherwise of a copy of a judicial record of a foreign country. It merely enables the Court to raise a presumption that a judicial record of a foreign country is genuine and accurate if it bears a certificate as required by that section. It is thus plain that the genuineness of the record is certainly capable of being proved by other means. The absence of the certificate merely excludes the raising of a presumption. The section nowhere says that a copy of a judicial record of a foreign country is not admissible in evidence unless it bears the certificate as required by it. This becomes obvious from the nature of the certificate itself which does not deal with the authenticity of the document as such, but merely certifies that the manner in which the document has been certified is the manner commonly in use in that country. Having regard to what we have said in the preceding para, it is clear to us that the certified copy of the judgment of the Calcutta High Court was rightly admitted by the trial Judge though the reasons given by him on that point were not correct. As we have already pointed out, the plaintiff had expressly stated in her evidence that her suit in the Calcutta High Court contained a claim for dower and that claim was decreed, and with that statement she produced a certified copy of that judgment. The defendant had admitted the filing of the suit and the number of the suit given by him is the same as is borne on the certified copy. He was not in a position to definitely deny that the claim of dower was contained in that suit. He admitted that he left Calcutta in July 1954, whereas the decree was passed on 21‑6‑

54. He admitted that he had engaged an attorney after he received a summons of that suit, who had sent to the plaintiff a letter of divorce. We observe that the copy of the decree bears the names of the two respective attorneys, who appeared in the case. The certified copy of the decree recites that it was passed in the presence of the advocates for the parties. It also bears the impressed seal of the Calcutta High Court on the face of it. It would have been the easiest thing for the defendant to produce documentary evidence to disprove the fact that what was stated Win the certified copy produced by the plaintiff was not a genuine and accurate statement of what had been decreed by the Calcutta High Court as it appears from the certified copy of the judgment produced and proved by the plaintiff. This would clearly justify the raising of an adverse inference against the defendant to the effect that if he had produced his own copy of the judgment, it would have gone against him. In fact, considering that the defendant was still in Calcutta when this decree was passed one would be very credulous to believe his statement that he was not aware as to what the judgment of the Court was. The finding of the learned Additional District Judge that there was no other proof of the judgment was thus in disregard of and against the evidence on record to which we have 'referred' above and we therefore set it aside, and hold that the decree of the trial Court based upon the judgment of the Calcutta High Court was rightly passed. Upon the other question viz., whether the plaintiff's claim could be supported upon the original cause of action, we agree with the learned Additional District Judge that having regard to section 3 of the Limitation Act, he was entitled to consider the question of limitation even though it was not raised as a defence in the first Court. The certified copy of the judgment itself showed that the marriage was declared to have been dissolved as on and from 19th February 1952. The plaintiff filed the present suit on the 22nd August 1956, and as such it would appear to be barred by Limitation. It may however be pointed out that if this defence was raised in the first Court it might have been possible for the plaintiff, we do not know with what success, to claim exemption of certain period of time such as was spent in the litigation in the Calcutta High Court. In view, however of our finding upon the previous issue, it is not necessary, for us to go into this question any further. With regard to the amount of dower, it was found by the first Court that it was Rs. 5,000 and not Rs. 500 as was half heartedly urged by the defendant for the first time in his evidence. This finding was not questioned by the Court of first appeal, and upon the state of the material on record we have no doubt as to the correctness of that finding. The defendant admits that he has not paid the amount of dower and as such the plaintiff is entitled to a decree as passed by the trial Court. For the reasons given above, we set aside the judgment and decree of the learned Additional District Judge passed in appeal and restore that of the trial Court as a result of which the plaintiff's suit stands decreed with costs throughout. A. H. Appeal accepted.