P L D 1966 Dacca 481 (PLP)

MURSHED, C. J.‑The facts and circumstances in respect of this application, which raises a rather important question of law, may be briefly stated as follows:‑-- Opposite‑party; Province of East Pakistan instituted a suit against the petitioners, namely, Osaka Shosen Kaisha O. S. K. Line, Japan, and Bird & Co. (Pakistan) Ltd., Local Shipping Agents at Chittagong, on the allegation that the petitioner No. 1 the said Osaka Shosen Kaisha O. S. h. Line, which is a shipping com?pany, had contracted to carry certain consignment of Creasote Oil from Yokahama in Japan by a ship to Chittagong to be delivered to the plaintiff-opposite party. The said consignment was shipped by the plaintiff and carried by Osaka Shosen Kaisha O. S. K. Line in a vessel called s.s. "KANTO MARU": Plaintiff's case is that the drums containing the said oil were found in a damaged condition and, after survey, the extent of the damage was computed at 9 tons 15 cwts. 3 qrs. 21 lbs. . Plaintiff, therefore, claims, by way of damages, a sum of Rs. 6,470.56. The contract for shipment of the goods was entered into by the plaintiff with petitioner No. 1, Osaka Shosen Kaisha O. S. K. Line, and defendant No. 2, Bird & Co. (Pakistan) Ltd., acted as the local clearing agents of defendant No..

1. Defendant No. 2 is petitioner before us. The said defendants Nos. 1 and 2 did not file any written statement but asked for rejection of the plaint in limine or for a return thereof to the plaintiff for presentation before an appropriate Court. The substance of the case that was made out on behalf of the defendants, petitioners before us, is, that in the contract between the parties, as embodied in the Bill of Lading, it was agreed that any claim arising between the parties out of the contract and involving any breach of its terms, would be decided by the District Court of Osaka and that such a claim would be governed by the law of Japan. It was contended, in the first place, that, in the aforesaid premises, no suit could be instituted against them in a Court in Pakistan in violation of the above?mentioned terms of the contract to the effect that District Court of Osaka would be the forum for adjudication of a claim arising out of the contract. Secondly, it was argued that defendant No. 1 (petitioner No. 1), Osaka Shosen Kaisba O. S. K. Line, with whom the contract was entered into by the plaintiff, was a company having its principal registered office at Osaka in Japan and was, therefore, a non‑resident foreign company. In this context, it was submitted that a Court in Pakistan, that is a Court at Chittagong, had no jurisdiction to try the suit against the said defendant which was a foreign company residing in a foreign territory. The learned Subordinate Judge, in whose Court the suit was instituted, overruled the contentions of the defendant‑petitioners, who, thereupon, moved this Court in its revisional jurisdiction. This Court on hearing the said application, remanded the case to the Court below directing the learned Subordinate Judge to make certain investigations before giving any final decision on the points raised on behalf of the defendant‑ petitioners. It seems that the trial Court, on remand, caused an enquiry to be made as to whether the Osaka District Court had jurisdiction to try the suit founded on a breach of contract to carry the goods shipped from Yokahama and not from Osaka: Furthermore, it also appears that an enquiry was made as to whether Yokahama was within the territorial limits of the jurisdiction of the Osaka Court. It transpires that an information was received from the Consulate of Japan at Dacca to the effect that the cities of Osaka and Yokahama were situated in two different prefectures of Japan. A map of Japan was also appended to the answer. It does not appear that information was received by the Court on the other point. In any event, the said point is probably irrelevant, so far as this petition is concerned. On the question as to whether Osaka was the principal registered place of business of defendant, Osaka Shosen Kaisha O. S. K. Line, Mr. Syed Mohammad Hussain, who appeared on behalf of the petitioners, has made a statement from the Bar that his instruction is that Osaka Shosen Kaisha O. S. K. Line has its principal registered office and place of‑business at Osaka. The name of the company itself also supports that statement. In any event, we accept the statement that has been made in this behalf from the Bar. The learned Assistant Government Pleader does not contest this point on behalf of the opposite‑party. The learned Subordinate Judge has again overruled the aforesaid contentions which were advanced on behalf of the defendant‑petitioners on the ground that it has not been shown that the Osaka Court has jurisdiction to try the subject‑matter of the suit. He has, therefore, rejected the petitioners' applica?tion. This Rule is directed against the aforesaid order passed by the learned Subordinate Judge rejecting the prayer made on behalf of the defendant‑petitioners. At the hearing of the Rule the same contentions were again taken before us. With regard to the first point, our attention was drawn to the following clause in the appropriate Bill of Lading which runs thus:

"Any dispute arising under this Bill of Lading shall be governed by Japanese Law except as may be otherwise provided herein, and any such dispute shall be decided by Osaka District Court in Japan." It is not contested before us that the aforesaid clause is a part of the contract which the parties had entered into. Mr. Md. Jani Alain, appearing on behalf of the opposite‑party, Province of East Pakistan, has urged that the aforesaid clause comes within the mischief of section 28 of the Contract Act. We would like to say, at the very outset, that it is difficult to see what relevance the aforesaid section has on the point that has been urged before us. It should be remembered that the said clause lays down two things: In the first place, it lays down that in case of any claim arising out of the contract the adjudication would be made by the district Court of Osaka. Secondly, it has further been agreed by the parties that the law which would govern such a transac?tion would be the law of Japan. Section 2S of the Contract Act is not the law of Japan and it has also not been shown that there is a similar law which prevails in Japan. In any event, even if it is held that the Contract Act applies to such a situation, section 28 has no manner of application to the facts of this case. Section 28 runs thus:‑ "28 Every agreement, by which any party thereto‑is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent. "Exception 1 . . . . . . ????????. "Exception 2 . . . . . . . . . . . . . . . . ." The, aforesaid section codifies a well‑settled principle that parties to a' contract cannot absolutely fetter the legal remedy open to a party to claim an adjudication of 'his grievaLce in an appropriate and competent forum. The present contract does not impose an absolute fetter on either party to take recourse to permissible legal remedies as allowed by law. It only limits the choice of an appropriate forum. Situations may arise when either party can sue the other, either in a Court in Japan or in a Court in Pakistan. In the present case the parties have by agreement chosen to have such matters adjudicated only in the Osaka District Court which is the principal place of business of the petitioner‑company.? It is, therefore, patent that section 28 of the Contract Act has no manner of application to such a case. In the present case there is no absolute prohibition which disentitled a party to the contract to have his claim decided in a competent Court of Law. By agreement there is only a restric?tion upon the choice of such a Court. The principle, which is applicable to a case like this is well settled and has been enunciated in a series of decisions of this Court. One of the earliest cases to which we may refer is that of Abdul Razak v. The East Asiatic Co. Ltd. (5DLR394). This is a decision which not merely enunciates the principles which we have stated above but also refers to a large number of decisions on the subject. The same principles were repeated in the case of Tar Mohammad & Co. v. Federation of Pakistan (9DLR197), and agaia re‑armed in Narayanganj Iron Works Ltd. v. Pakistan (15 D L R 434,). The aforesaid principles are embedded in the law of this country and it is un-necessary to discuss further decisions on the subject. The plaintiff having agreed to abide by the aforesaid clause cannot be allowed to sue the defendant Osaka Shosen Kaisha O. S. K. Line in a Court in Pakistan. So far as defendant Bird & Co. (Pakistan) Ltd., is concerned it has been argued that it was merely clearing agents of the shipper, Osaka Shosen Kaisha O. S. K. Line (Defendant No. 1). We, therefore, hold that the suit could not be instituted against the aforesaid defendants Nos. 1 and 2 in the Chittagong Court or in any other Court in Pakistan. It was next contended by Mr. Jani Alam that the above?mentioned clause would be void if the District Court at Osaka was incompetent to try the suit instituted by the plaintiff. To this question the short answer is that it has not been shown that the District Court at Osaka was incompetent to try the suit or that the law of Japan, which governs the contract, prohibits such a trial. Arguments based on pure hypothetical suppositions cannot be answered. ??????????? At the very outset, we have stated that the Osaka Shosen Kaisha O. S. K. Line is resident in Osaka in the sense that it has its principal place of business in Osaka. Its Head Office is registered there. It is clear that in a suit instituted against the petitioner‑company at Osaka it must be held that the defendant is resident within the territorial limits of the jurisdiction of the Osaka District Court. According to general principles of law there is no difficulty in the Osaka District Court adjudicating upon the subject‑matter of the suit instituted by the plaintiff. Plaintiff can, as a general rule, sue the defendant at a place where the defendant is resident. If, however, the law of Japan imposes any inherent disability upon the Court at Osaka to adjudicate upon such dispute, it is the duty of the plaintiff to establish that such is the law of Japan. More than two years have elapsed between the institution of the suit and the hearing of this Rule and not even the slightest attempt has been made by the plaintiff to show that the law of Japan is in any way different from the general principles stated above. It should be remembered that by agreement between the parties the Law of Japan has been made applicable to this case. One of the Courts where the suit could on general principle, be instituted was the Court within whose territorial limits the defendants reside. By agreement parties have chosen a forum which in this case is a Court where the defendant‑petitioner No. 1 resides. Therefore, the aforesaid clause of the contract must prevail. Mr. Syed Mohammad Hussain has next argued that the Osaka Shosen Kaisha O. S. K. Line must be treated as a foreign national resident in a foreign country. This is so, because, as we have already noticed, the Osaka Shosen Kaisha O. S. K. Line is resident at Osaka in Japan, having its registered Head Office and its Principal place of business there. The question which, therefore, arises, is: Can a foreign national resident in a foreign country be sued in a Court of Pakistan. The answer has to be in the negative, unless the defendant either voluntarily submits to the jurisdiction of the Court in Pakistan or becomes a resident of this country while the suit is pending. The said principle has been enunciated in Sirdar Gurdyal Singh v. The Rajah of Faridkote (L R 21 I A 171). Broadly speaking, the refusal of a Court to entertain a suit against a foreign national, resident in a foreign country, is founded on the principle that a Court would refuse to pass a decree which it has no means to enforce, that is to say, that a Court will not award a decree which would become Brutum fulmen. It is a well‑known principle of jurisprudence that Courts would not give ineffective decrees. This is also a much discussed principle in Private International law which is also called "Conflict of Laws". In Cheshire's Private International Law, Third Edition, page 139, this principle has been discussed in extenso and we quote the same hereunder as follows: "As a general rule, an English Court is not prevented from entertaining a Suit merely because the parties are foreign by nationality or by domicile or because the incidents that raised the issue have all occurred in a foreign country. At the same time it is obvious that the power to adjudicate upon matters which have occurred abroad must be subject to some restric?tion, for otherwise, to mention only one consideration, a judg?ment would often be nothing but a brutum fulmen. We there?fore require to know what limits exist to exercise of jurisdiction and what are the principles that lie at the base of those limitations. In other words, the object of the present section is to state in general terms the circumstances in which English Courts are competent to entertain cases that involve some foreign element. The general doctrine of English Law is that the exercise of civil jurisdiction, in the absence of an Act of Parliament, must in all cases be founded upon one or other of two principles, namely, the principle of effectiveness or the principle of submission. The principle of effectiveness means that a judge has no right to pronounce a judgment if he cannot enforce it within his own territory. The elementary fact several times stated by Holmes, J., that "the foundation of jurisdiction is physical power" is worthy of attention, although, as we shall see, there are certain exceptional cases in which jurisdiction may be assumed by virtue of statute over persons who are abroad and thus not within the power of the Court. Power is this connection means that physical power which becomes exercisable because the property which is the subject‑matter of the suit is in England or because the defendant is present at the time of service of the writ in England, and, broadly speaking, it is true to say that an English Court does not consider itself competent to adjudicate upon a claim if neither of these elements is present. Id such a case the Maxim is actor sequiter forum rei and the plaintiff has no alternative but to sue the defendant in the country where he happens to be. The position was clearly stated by the Privy Council in the leading case of Sirdar Gurdyal Singh v. Rajah of Feridkote 1894 A C 670." Mr. Jani Alam has invited us to read section 64 (d) of the Sea Customs Act. Section 64 (d) reads thus: "64 (d). The ship's agent (if any) delivers to the Customs collector a declaration in writing to the effect that such agent is answerable for the discharge of all claims for damage or short delivery which may be established by the owner of any goods comprised in the import cargo in respect of such goods." We fail to see what relevance that section has to the matter in issue before us. The said section enumerates the principles upon which clearance may be refused to ship by customs authorities. It provides for certain undertaking being given by the owners of a ship to the said authorities. In case of any breach of an under?taking given under the aforesaid provisions or under the Sea Customs Act, it can be enforced in the manner laid down under that Act. It is difficult to understand how the plaintiff can found their case against the defendants on the basis of the provisions of the Sea Customs Act. Mr. Jani Alam has next invited us to read the provisions of section 233 of the Contract Act. This section also has no bear?ing on the point at issue. Section 233 is a provision with regard to the law of agency. So far as defendant No. 2, Bird & Co. (Pakistan) Ltd., is concerned, it is true that it was the clearing agents of defendant, Osaka Shosen Kaisha, O. S. K. Line (defendant No. 1). Since defendant No. 1 has not denied its liability under a claim which may be established by way of a suit, the liability of the clearing agents does not arise at all. Our attention was also drawn to the fact that consequent upon certain amendments of the plaint, certain insurance companies were also added as defendants to the suit. They have also been made parties to this application. They are (1) South British Insurance Co. Ltd., (2) Union Society of Canton Ltd., (3) Royal Insurance Co. Ltd., (4) Phoenix Insurance Co. Ltd., and (5) James Finlay & Co. Ltd. We do not wish to give any decision as to whether the aforesaid insurance companies can be validly sued by the plaintiff. Such a question does not arise out of this application and has not been agitated before us. However, nothing has been shown to us as to why the plaintiff‑opposite‑party, Province of East Pakistan, Cannot sue the aforesaid insurance companies in a Court of Pakistan. Thus, the petitioners before us are entitled to succeed on the two points that have been pressed before us on their behalf. Having held that, in the light of the facts of the present case, the plaintiff is not entitled to sue the defendant I in a Court at Chittagong or in any, other Court in Pakistan, we make the Rule absolute. The petitioners have asked for a return of the plaint to the plaintiff. In the interest of justice, we direct that unless the plaintiff amends the plaint by striking off the names of defendants, Osaka Shosen Kaisha O. S. K. Line and Bird & Co. (Pakistan) Ltd., from the plaint within one month of the arrival of this order in the Court below, the plaint be returned to the plaintiff. If, however, the plaintiff does not press the suit as against the said defendants Nos. 1 and 2 but wishes to proceed against the other parties to the suit, the plaint need not be returned to the plaintiff and the suit may proceed, if permissible by law, against the rest of the defendants, who may, if they so desire, contend that the suit cannot be maintained even against them. The petitioners are entitled to the costs of this application which we assess at five Gold Mohurs. ABU MD. ABDULLA, J.‑I agree: K. B. A.?????????????????????????????????????????????????????????????????????????????????? Rule made absolute.