IN THE HIGH COURT OF SINDH, KARACHI
HCA No. 17 OF 2012
Present
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Muhammad Junaid Ghaffar
Syed Jaffer Abbas……………………………………………….Appellant
Versus
Habib Bank limited…………..……………………….……….Respondent
Date of Hearing: 08.10.2013
Date of Order: 10.12.2013
Mr. Akhtar Ali Mahmood Advocate for the Appellant.
Mr. Hamza I. Ali Advocate for Respondent.
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JUDGEMENT
MUHAMMAD JUNAID GHAFFAR, J., Instant High Court Appeal arises out of an order dated 13.12.2011 passed by a learned Single Judge of this Court in Suit No. 908 of 2003 whereby the application filed by the appellant under Order XI Rule 2 read with section 151 CPC, for administering the interrogatories on the Plaintiff for examination and reply thereof was dismissed. By consent of both the learned counsel for the parties, instant appeal is being disposed of at Katcha Peshi stage.
2. Succinctly, the facts relevant for the disposal of the instant Appeal are that the respondent had filed a suit bearing No.908 of 2003 against the appellant for recovery of certain amount on the basis of a foreign judgment under Section 13 of CPC. Summons were issued, and accordingly the appellant had filed its written statement on or about 22.1.2004. According to the appellant when the matter was set for directions on 12.2.2004 before the Additional Registrar (OS), the appellant had filed an application bearing CMA No.1433/2004 under Order XI Rule 2 CPC for administering the interrogatories on the respondents, which was dismissed by the Additional Registrar (OS) vide order dated 13.5.2004. Being aggrieved by such order of dismissal passed by the Additional Registrar an Appeal bearing CMA No.3569 of 2004 was preferred, whereas the respondent also preferred an appeal against the said order bearing CMA No.3568 of 2004. Both these appeals were put up before this Court, and vide order dated 10.10.2005 the said appeal of the appellant was allowed and CMA bearing No.1433 of 2004 under Order XI Rule 2 CPC was listed for hearing before a learned Single Judge of this Court, which has now been dismissed by the impugned order dated 13.12.2011.
3. It is the case of the appellant that in terms of Order XI Rule 2 CPC read with Rule 186 of the Sindh Chief Court Rules (OS) a vested right is embodied therein for the appellant to obtain directions of this Court to deliver interrogatories on the respondent for admissions or evidence of material facts, which are to be adduced at the trial by the respondent and to assist this Court in a fair disposal of the proceedings at or before the trial. While arguing the appeal learned counsel for the appellant submitted that administering the interrogatories is a vested right of the appellant and in terms of Rule 186 of SCCR the Additional Registrar (OS) was bound to refer them to the respondent for appropriate answers. He referred to “Words and Phrases” Volume 22 “Intent-Inter Vivos Trust” for definition and further explanation of the word ‘interrogatories’. He further contended that instead of examining the interrogatories on merits, the learned Single Judge has dismissed the application and as such the impugned order cannot be sustained. It has been further argued that in fact the suit filed by the respondent is an ordinary suit under Section 9 CPC for recovery of certain amount of money, and is not a suit under Section 13 CPC as according to the learned counsel, the respondent in the plaint had set up its case not only on the basis of the foreign judgment but also on the initial cause of action, which continues on the basis of the foreign judgment. His further contention was, that in fact the plaintiff was praying for a money decree and hence this could only be treated as an ordinary suit and, therefore, the procedure as well as the provisions under the SCCR (OS) and CPC respectively, are to be followed and applied in so far as the case of the appellant is concerned. He submitted that the interrogatories filed through the application under Order XI Rule 2 CPC were not for the evidence and merely questions required to be answered by the respondents as the appellant at the moment cannot go to the foreign country from where the judgment being relied upon has been obtained by the respondent and further the appellant also do not know as to what material was placed before the foreign court. Lastly, he submitted that his interrogatories should have been examined on merits and if the Court comes to the conclusion that they are not correct or relevant, the same could have been refused on its own merits.
4. Conversely, Mr. Hamza I. Ali, learned counsel appearing for the respondent submitted that he has also filed cross objections against the impugned order under order XLI Rule 22 read with Section 151 CPC, as according to him, the learned Single Judge had although dismissed the application, but while doing so, the learned Single Judge in paragraph 9 of the impugned order, had erred while observing that “the present proceedings are in the nature of a civil suit in every sense of the word”, as such, the aforementioned conclusion is contradictory and inconsistent with his observations in paragraphs 6 and 7 of the impugned order. He submitted that, although, while filing the suit the respondent had based its case primarily on the foreign judgment, but an alternate prayer was also made, which has been mistakenly referred to as an alternate cause of action by the learned Single Judge, which in fact was not the case of the respondent. He submitted that he is ready to drop all his prayers made in the plaint, except that of Section 13 CPC, as his case is exclusively based on the foreign judgment which has been passed in favour of the respondent and is covered under Section 13 CPC. He argued that it is his right to drop one or any of the reliefs so claimed, and for this he can also file an application under Order VI Rule 17 CPC for amendment of the plaint as according to him it is to be seen that what can substantially be done, rather to follow the procedure which is not the master but is subservient. He contended that the appellant has no reason or right to object to such withdrawal of claim/prayer and he has already done so substantially, through the cross-objections filed in the instant appeal. In support of his contention regarding pressing and or dropping the alternate prayers at this stage of the case as well as through oral motion, he relied upon the case of Mohd. Ilyas Hussain v. Cantonment Board, Rawalpindi reported in PLD 1976 SC 785 and case of Muhammad Khan v. Ghulam Abbas reported in 2002 MLD 1372. In so far as the contents of the interrogatories are concerned, the learned counsel contented that they are totally uncalled for in the instant matter, as the purpose of interrogatories is primarily to seek admissions on facts, whereas the present suit filed by the respondent is based on a foreign judgment, which is presumed to be conclusive in terms of Section 13 CPC and therefore, no interrogatories could be administered on the respondent. He submitted that interrogatories are only relevant if the respondent had filed its suit on the original cause of action and not on the basis of a foreign judgment. He finally submitted that there is no place at all for interrogatories in the instant proceedings. He relied upon the case of Abdul Ghani v. Saley Muhammad reported in PLD 1960 Karachi 594. He further submitted that the respondent is not seeking any execution under Section 13 CPC but only the fruits of a foreign judgment/decree under it, through proper filing of the suit. He further contended that the appellant has every right to contest the suit, in terms of the six exceptions provided under Section 13 CPC itself, but cannot ask for ascertaining any facts through interrogatories as all the facts are conclusive in nature in so far as foreign judgment/decree is concerned.
5. While exercising right of rebuttal, Mr. Akhter Ali Mahmud, the learned counsel for the appellant submitted, that it is not the case of dropping one prayer and pressing the other, rather it is the case of praying for a decree of certain sum of money through an ordinary suit under the civil jurisdiction of this Court. The respondent’s prayer is for adjudication of claim by the civil Court in respect of a claim of recovery of money and not of execution of a foreign decree. The suit has to be adjudicated, before any execution could be sought. It was further contented that if the appeal is not allowed and the interrogatories are not allowed to be administered, it would amount to execution of the judgment simplicitor. It was lastly contended that Section 13 CPC does not cater to the instant situation, and is only in respect of conclusiveness of a foreign judgment and perhaps there is no concept of institution of a suit under Section 13 CPC, and if there is any, then it has to be adjudicated upon like an ordinary civil suit.
6. We have heard both the learned counsel, perused the record and have also gone through the case law relied upon by them. Both, the appellant as well as respondent felt aggrieved by the impugned order which has been assailed through instant appeal by the appellant whereas, the respondent (the plaintiff in the suit) has also filed cross-objections in terms of Order 41 Rule 22 read with Section 151 CPC. On perusal of the cross-objections, it appears that now the controversy which is to be resolved in the instant case is to determine, as to whether the appellant can administer interrogatories in a suit exclusively based on a foreign judgment filed under section 13 CPC by the respondent. The findings of the learned single judge in the impugned order were based on the terms, when the case of the respondent was, firstly on the basis of a foreign judgment, and in addition to the alternate claim as noted and reproduced in para-6 of the impugned order whereas, now through the cross-objections as well as the arguments of the learned counsel for the respondent, it appears that the controversy in the suit is now only on the basis of the foreign judgment/decree passed in favor of the respondent and nothing else. The proposition as formulated above is the only question which needs adjudication in this appeal. Since controversy involves Section 13 CPC, accordingly the same is reproduced hereunder:-
13. “When foreign judgment not conclusive:- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except:-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) Where it has not been given on the merits of the case;
(c) Where it appears on face of the proceedings to be founded on an incorrect view of International Law or a refusal to recognize the law of [Pakistan] in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) Where it sustains a claim founded on a breach of any law in force in [Pakistan]”.
7. It is pertinent to note that the learned Single Judge while dismissing the application of the appellant was pleased to observe, that the question required to be answered through interrogatories relate to the evidence to be led by the respondent. Such observation was perhaps made for the reason that at the relevant time the respondent, according to its pleadings, had chosen to set up its case in respect of the original cause of action also. For this reason, the learned Single Judge was further pleased to observe that, if at all, the respondent chooses to lead the evidence in respect of the original cause of action, then of course, the appellant will be entitled to cross-examine the respondent’s witness and to examine and challenge any documents that are reproduced and thereafter, such question as contained in the interrogatories can be put to such witnesses. The learned Single Judge on the basis of the alternate cause of action had also observed that in fact the suit is an ordinary suit in every sense of the word and, therefore, evidence was required to be led by the respondent in the suit.
8. In view of the cross objections and the contention of the learned counsel for the respondent in this regard, it appears that the respondent has abandoned its case on the original cause of action, thus the question of leading any evidence by the respondent in the matter is no more alive. The question now therefore arise, that as to whether in a suit exclusively and entirely based on a foreign judgment/decree, can there be any interrogatories which can be administrated on the party which has filed a suit in terms of Section 13 CPC. The provision of Section-13 CPC as reproduced, above clearly shows that foreign judgment is conclusive as to any matter thereby directly adjudicated upon between the same parties or between the parties under whom they or any of them claim litigating under the same title, except where it has not been pronounced by a Court of competent jurisdiction, or where it has not been given on the merits of the case; or where it appears on the face of the proceedings to be based on incorrect view of International Law or a refusal to recognize the law of Pakistan in cases where such law is applicable or where the proceedings in which the judgment was obtained are opposed to natural justice; or where it has been obtained by fraud; and where it sustains a claim founded on a breach of any law in force in Pakistan. We have also noticed that in addition to Section 13 CPC, there is another provision i.e. Section 44-A of CPC, which we consider to be of relevance as it relates to execution of decree passed by Courts in the United Kingdom and other reciprocating territory. The provisions of Section 44-A CPC are also reproduced for ease of reference:-
44-A. “Execution of decrees passed by Courts in the United Kingdom and other reciprocating territory: (1) Where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed in a District Court, the decree may be executed in Pakistan as if it had been passed by the District Court.
(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate e, shall, for the purpose of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.
(3) The provisions of Section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court shall refuse execution of any such decree, if it is shown to be satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of Section 13.
From the perusal of sub-section (3) of Section 44-A, it is reflected that even when a foreign decree is being executed in terms of the procedure provided in CPC, the Court which is the executing the decree, can refuse the execution of the same if it has been shown to the satisfaction of the executing court, that such decree falls within any of the exceptions specified in Clauses (a) to (f) of Section 13 CPC.
9. Therefore, in view of the explicit provisions of section 13 CPC, this Court cannot sit in appeal against the findings and conclusions drawn on the facts of a foreign court or to adjudicate as to whether such findings are supported by any evidence or not. Matters already decided and adjudicated by the foreign Courts are conclusive, definitive and irrefutable in nature and cannot be Re-opened, except as provided under the exceptions of section 13 CPC. In so far as interrogatories are concerned, they are meant to ascertain the facts which are not so disclosed in the plaint, and since, scrutiny of facts is out of the ambit of section 13 ibid, therefore, such interrogatories have no role in a suit filed on the basis of a foreign judgment and decree under section 13 CPC. This could be discerned from the bare reading of the relevant provisions of Civil Procedure Code that certain sanctity has been attached to a foreign judgment, and if the same is not allowed, then perhaps such provision will become redundant and redundancy cannot be attributed to any provision of a statute. It is also a settled legal position, that interrogatories are not allowed to be put up to witnesses, but only to a party to a suit, as one cannot administer interrogatories to ascertain the evidence by which the opposing party would prove its case. One cannot be allowed to ask questions that exclusively relate to evidence of the opposing party, the reason being that it would enable an unscrupulous party to even tamper with the opponent’s witnesses and to manufacture evidence in contradiction, so as to defeat justice. Since the facts are conclusive in cases like the one in hand, no further interrogation can be made in so far as facts are concerned. However, the appellant is at liberty to challenge such judgment on the basis of exceptions as provided for in section 13 CPC itself. We are of the candid view that the Court in a Suit under section 13 CPC, has the right to examine as to whether such judgment is passed on merits or not. Whereas for a judgment being enforceable under law, it must be a judgment on merits and for being a judgment on merits it ought to have been based on evidence and the material produced by the parties. In other words, if no evidence or material is adduced by the Plaintiff (Respondent) while obtaining a judgment and decree from a foreign Court, and if the judgment is by way of penalty against the defendant (appellant) it will not be conclusive, as for being conclusive, it must be based on evidence. It seems that in the instant case the appellant wants to have answers to its interrogatories, even before any further proceedings are initiated in the suit, even before framing of issues, as it is perhaps being anticipated that since the conclusiveness of the foreign judgment is not open to any investigation in so far as the facts and its conclusiveness is concerned, as such it is very likely to be decreed against it. This perhaps is not the proper appreciation of law and procedure in so far as suits under section 13 CPC are concerned. The presumption as to its being conclusive is dependent on a number of factors; in fact six very important exceptions have already been incorporated under section 13 CPC itself. A foreign judgment would only be conclusive, once it is demonstrated that the procedure followed by the foreign court was the one warranted by law and not otherwise and was based on the principles of natural justice. Even a judgment, which has been passed without due heed to any judicial process, i.e. the court rendering such judgment, has not observed the minimum requirement of natural justice; was not composed of impartial persons; has not acted in a fair and lucid manner; was bigoted and was not in good faith; no reasonable notice or opportunity was allowed to the aggrieved party, will not be a judgment which could be called as conclusive or binding within the contemplation of section 13 CPC.
10. We have also seen the controversy in hand from another angle. A foreign judgment, even in terms of section 44-A CPC, (wherein direct execution can be filed on the basis of such foreign judgment), is not conclusive, and is subject to satisfaction of exceptions as contained in section 13 CPC by virtue of sub section (3) of section 44-A CPC. This means that the provisions of section 44-A and section 13 are not independent of each other and are in fact interlinked and dependent in as much as even a final judgment of a foreign court, after its approval from the appellate Court (of a country with whom there is an international treaty) cannot be executed directly without recourse to the provisions of exception as contained in section 13 CPC and the Courts in Pakistan can even refuse the execution of such final judgments of the foreign Courts, if they fall under any of the exceptions as contained in section 13 CPC. This understandably means that no foreign judgment or decree could be executed on the basis of the provisions of section 44-A CPC independently, without recourse to and satisfaction of the provisions of Section 13 CPC.
11. In our humble view, the Appellant can raise all sorts of objections and can also ask the Court to frame issues, and may also rely on documentary and or any other evidence as is relatable to the six exceptions under section 13, in negating the conclusiveness of the foreign judgment, if so required and specially when the Respondent is not pressing its claim on the basis of original cause of action and only relies upon the foreign judgment. Once the Respondent has chosen to continue with its case only on the basis of the foreign judgment, and decides to forego its claim on the original cause of action, then the Respondent will, obviously not lead any evidence in the matter, as according to the Respondent’s case, the foreign judgment is conclusive in its own nature, and the only case remains, is to the adjudication of it with respect to the six exceptions available to the appellant under section 13 CPC. In that case, there will be no evidence and consequently the question of any interrogatories does not arise, as facts are not to be ascertained anymore and only the legal issues (on the basis of six exceptions) are to be decided. Therefore we are of the view in that case; no interrogatories could be administered on the Respondent.
12. In view of hereinabove, we do not find any merits in the instant High Court Appeal, which is hereby dismissed along with listed application(s), however, with no order as to cost. The cross objections filed by the Respondent are allowed to the extent that the suit will proceed only on the basis of foreign judgment, and the Respondent may file an application under Order 6 Rule 17 CPC for amendment of the plaint for such purposes before the learned Single Judge.
J U D G E
J U D G E
Dated: 10.12.2013