P L D 1967 Dacca 515 (PLP)

(2) No alien enemy residing in Pakistan without such permission, or residing in a foreign country, shall sue in any of such Courts. Explanation.‑Every person residing in a foreign country the Government of which is at War with Pakistan and carrying on business in that country without a licence in that behalf under the hand of Secretary to the Central Government shall for the purpose of subsection (2) be deemed to be an alien enemy residing in a foreign. country." Having regard to the plain language in which it has been couched, I am absolutely clear in my mind, as is also the gist of the argument advanced by the learned Advocate for the appellant, that the bar contemplated by section 83 attached only to institution and prosecution of a suit and an alien, no matter whether a friend or enemy, is legally competent to defend himself and that by preferring an appeal from a decree passed against him he does nothing more than merely defend himself against the liability imposed upon him thereby. An appeal is a mere continuation of the suit and as such by preferring an appeal, a defendant against whom the decree appealed from is passed, really pursues, i.e. proceeds with, his defence as that is nothing more than an attempt to ward off the attack launched upon him by his adversary with initial success in the primary Court. There is therefore no substance in the contention urged on the other side that although an alien is entitled to defend himself in an action brought against him, he cannot initiate a proceeding by way of appeal in that by so doing he shall actually be suiting the other party inasmuch as a suit include an appeal. In support of the above view I need only refer to the authorities that had also been cited before the learned Court of appeal below as well as l decision of the King's Bench relied upon by the learned Advocate for the appellant. Thus in the case of Abdul Quader Khalifa v. Fritz Kapp (20 C W N 691), it has been laid down: "There is no provision in the Code barring suits against alien enemies and we see no reason why such suits should not be heard and decided during the continuance of the war. No matter whether the cause of action arose before the war or after the war an alien enemy can be sued in our Courts and would have every right to present his case before the Courts in accordance with the laws of procedure." Another authority on the point is the case of Prem Pratap Singh v. Jagat Pratap Kunwar (A I R 1944 All. 97), wherein it has been held: "Alien enemies residing in British India without the permission of the Governor‑General, or residing in a foreign country, shall not sue in the Courts of British India and that it is settled law that an alien enemy is entitled to defend if any proceedings are instituted against him." Again in the case of Vaikunth P. Munim v. Prahladshankar K. Shukla (A I R 1941 Bom. 406), the same view has been expressed in these terms: "An alien enemy is entitled to defend an action brought against him and in a proper case, where his presence is found essential and necessary for his defence, to refuse an adjournment will be denying him the right to defend. Where, therefore, owing to war he is interned and it is not possible for him to come out under any conditions and give instructions for cross‑examination of the plaintiff and his witnesses when they give evidence, to refuse the application of defendant for an adjournment would be to refuse him the right to defend, which according to the British Jurisprudence and civilization has always been recognised." Lastly, I come to the decision of the King's Bench Division, to wit, Porter V. Freudenberg, Kreglinger V. S. Samuel and Rosenfeld, In re: Marten's Patends ((1915) 1 K B 857), wherein the relevant principle has been enunciated as follows:‑. "An alien enemy, unless he be within the realm by the licence of the King, cannot sue in the King's Courts. An alien enemy may be sued in the King's Courts. An alien enemy who is sued has a right to enter an appear ance and to defend the action; he has also the right to appeal against any decision, final or interlocutory that may be given against him. But an alien enemy who is plaintiff in an action commenced before the outbreak of war has no right of appeal; his right to appeal is suspended until the conclusion of peace." Thus having regard to the provision of section 83 of the Code of Civil Procedure as well as the authorities cited above, I am of the opinion that the defendant appellant in spite of his being an Indian National was legally entitled to prefer an appeal from the decree passed against him and the appeal so preferred by him is competent. It follows that the decision of the learned Court of appeal below is contrary to the law and cannot as such be sustained. The appeal is accordingly allowed, the judgment, and decree of the learned lower appellate Court are set aside and the said Court is directed to hear the appeal on merit. Costs shall abide the result. Let the records be sent down expeditiously. K. B. A. Appeal accepted.