Shaik Atham Sahib vs Daoud Sahib

The appellant in this second appeal sued in the District Munsif''s Court of Valangiman upon a judgment which he had obtained against the

present respondent in the District Court of Kandy for a certain sum of money due on a promissory note. Both the District Munsif and the

Subordinate Judge in appeal, dismissed the suit on the ground that the judgment of the Ceylon Court having been passed in absen-tem was not

binding upon the respondent who is a native of British India and was not a resident at the time of the action in Ceylon. They also found against the

contention of the appellant that the respondent has submitted himself to the jurisdiction of the Ceylon Court.

Upon the first question the contention of the learned Vakil for the appellant is, that rules of Private International Law apply only to judgments of

Courts of Foreign Independent States and not to that of a Court of a Country which is subject to the same sovereignty as the country in which the

judgment in question is sued upon. This proposition, to support which there is really no authority, is obviously untenable. The Ceylon Court being

outside the limits of British India is a Foreign Court as defined by Section 2, CPC (Act XIV of 1882) and its judgments are foreign judgments.

That being so, the recognition of such judgments by a Court in British India would prima facie be subject to all the rules which govern foreign

judgments. And we are not aware that the validity of a foreign judgment when it is obtained in the forum of a country with system of administration

and judicature separate and distinct from that of the country in which it is sued upon, though both the countries may owe allegiance to the same

sovereign, is apart from special legislation regulated by rules different from those which regulate the operation of other foreign judgments. Perhaps

the phrase Private International Law'' which has, however, the sanction of authority and long usuage is as pointed out by Mr. Dicey (see his

Conflict of Laws, Introduction, page 15) misleading and has, as he says, given rise to many misconceptions. In fact the assumption underlying the

entire argument addressed to us by the learned Vakil for the appellant on this point is that when considering the question of application of Private

International Law to foreign judgments one must understand the word international in the same sense in which it is used when speaking of usages

arid customs regulating the public relations inter se of Independent States. As for authority, he has referred us to certain passages in the judgment

of Lord Selborne in Gurdyal Singh v. Rajah of Faridkot 21 I.A. 171 the leading case on the subject of foreign decrees. But in that case the present

question did not arise at all, for there the judgment sued upon was that of an Independent Native State, and if Lord Selborne in stating the general

rules of Private International Law relating to the enforcement of foreign decrees speaks with particular reference to judgments of Courts in foreign

independent territories, that is clearly because the question before the Board arose with reference to judgment of such a Court and not that he

wanted to confine the application of the rules of International Law to judgments of such Courts alone. Considerable reliance was also placed on

behalf of the appellant upon the decision in the case of Moazzim Hossein Khan v. Raphael Robinson 28 C.m 641 but as we read the judgments of

Maclean, C.J., and Banerjee, J., in that case the ground on which the judgment of the High Court of Justice in England obtained in absentem in a

personal action against one of the defendants, a resident of British India was upheld, was that a statute of the British Parliament which is also the

Supreme Legislature for India gave jurisdiction to the English High Court in actions of a particular class over nonresident British subjects. We are

not concerned here with the question whether the decision correctly appreciated the scope of certain orders and rules of English practice upon

which the High Court in England acted, but the conclusion arrived at in that case is, we take it, based on especial legislation of the Supreme

Legislature (see pp. 647 and 648). Otherwise it would be difficult to reconcile that decision with the ruling in Kassim Mamoojee v. Isuf Mohamed

Sulliman 29 C.m 509 to which also Maclean, C. J., was party, and where it was held that the judgment of a Court in Mauritius passed in absentem

imposing personal liability upon a native of British India was a nullity.

There the Chief Justice of the Calcutta High Court says : I think the defendant here was a foreigner within the meaning of that term as used in the

cases I have mentioned, otherwise the result would be that, upon a judgment obtained in a Court of any Colony of the British Crown against an

absent person who was not a native of or either permanently or temporarily resident or domiciled within that Colony at the time of the suit or of the

judgment passed against him in absentem, he might be successfully sued upon that judgment in any other Court within the British dominions. This

view appeals inconsistent with the decision in the case of Turnbull v. Walker. This is a direct authority negativing the appellant''s position and it

seems that no doubt was ever entertained that for the purposes of Private International Law two provinces part of the same Empire may be treated

as foreign to each other. For instance the judgment of a Western Australian Court was in Emanuel v. Symon (1908) 1 K.B. 302 assumed without

any question at the bar to be subject to the rules of Private International Law: and the judgments of the Scotch and the Irish Courts apart from the

Judgments Extention Act have always been considered in England to be governed by those rules (see Halsbury''s Laws of England Vol. VI page

291). It is then argued that the Ceylon Court having derived authority from the British Crown by the Charter of 1833 Section 24 (Ceylon

Legislative Enactments Vol. I) and by Section 9 of Ordinance No. II'' of 1889 Ceylon Legislative Enactments Vol. II page 576 passed by the

Legislative Council of Ceylon under the general power of legislation conferred on them by the British., Parliament, to adjudicate in a matter in

which the'' cause of action arose within its jurisdiction, it must be held that the Imperial Parliament empowered the Ceylon Court in such cases to

bind by its decree a defendant who is a resident of British India and subject of the British Crown, although he never resided in Ceylon at the time

of the action or submitted himself to the jurisdiction of the Ceylon Court. We shall assume that the British Parliament, if it so thought fit, might

confer authority on the Ceylon Courts to exercise jurisdiction over residents of British India in absentem in a personal action of the kind under

consideration and if such jurisdiction were conferred, the case would probably fall within the dictum of Lord Selborne in Gurdiyal Singh v. Rajah of

Faridkot 21 I.A. 171 where he says at page 238 '' As between different provinces under one sovereignty (e.g., under the Roman Empire) the

Legislation of the sovereign may distribute and regulate jurisdiction."" But such jurisdiction having regard to the principles of International Law

would only be recognized in British India if it was conferred by the Supreme Legislature by express and clear words. In the absence of any express

enactment the ordinary ""presumption that the jurisdiction of all Courts is properly and strictly territorial would not be displaced just in the same way

as a contract on the part of an absent foreigner to submit himself to the jurisdiction of the forum of a country to which he owes an allegiance, if not

express, would not be inferred as a matter of implication."" See the case of Emanuel v. Symon (1908) 1 K.B. 302 already referred to.] In this

connection it is important to bear in mind the distinction between the question of validity and operation of a decree within the territorial limits of the

country of the forum which passed it and its recognition outside such limits. To the former question International Law has nothing to say, while no

amount of mere territorial legislation can enforce its recognition beyond the territory itself. Thus although the decree sued upon in the present case

may be perfectly valid in Ceylon, it will not be recognized by a British Indian Court if it to in violation of any of the well-established doctrines of

International Law.

The next argument of Mr. Rangachariar, the appellant''s Vakil in connection with his first contention, that a decree based on a contract imposing

personal obligation upon an absent foreigner is countenanced by the Comity of nations if the defendant entered into the contract in the territory of

the forum which passed the decree, is no longer worth any serious consideration after the decision in Gurdiyal Singh v. Rajah of Faridkot 21 I.A.

But reference has been made to Tadepalli Suba Rao v. Nawab Sayed Mir Gulam Alikhan of Banganpalli 29 M.k 69 as laying down the law

otherwise. All that the case decides, however, is, that a non-resident foreigner who is subject of a Protected Native State may be sued in the

Courts of British India if the cause of action arose within the jurisdiction of any such Court bat the learned Judges in that case, one of whom was

Subramanya Aiyer, J., were not called upon to consider the validity of such a judgment outside British India. There are no doubt, words in the

judgment of Subramanya Aiyer, J., which would show that he overlooked the distinction I have just alluded to, but he himself took the opportunity

afforded to him in a subsequent case in Srinivasa Moorthy v. Venkata Varada Aiyangar 1 M.L.T. 71 to correct the mis-apprehension see page

278.

Upon the other question, however, whether the respondent submitted to the jurisdiction of the Ceylon Court, we are unable to agree in the view

which has commended itself to the lower Courts. What happened was this: The respondent, a native of the Madras Presidency, executed the

promissory note in question at Kandy, where he was then carrying on business. But at the time the suit to recover on the'' note was instituted in the

District Court of Kandy he had left Ceylon and was residing at a village in Kumbakonam where he was served with the summons of the Kandy

Court. In answer to the summons which was issued under the summary procedure relating to suits on Negotiable Instruments laid down in Chapter

LIII of the Ceylon Ordinance II of 1889 and which is substantially the same as enacted in Section 532 of the Indian CPC of 1882 and in Order

XXXVII of the Indian CPC of 1908'' the respondent appeared through a duly appointed Attorney and applied for leave to defend the suit on the

allegation that the; note which he admitted he had made had been discharged. He filed an affidavit in support of his allegation but the learned Judge

having regard to certain facts doubted the good faith of the defence and granted leave to the respondent conditional upon his furnishing security.

The respondent failed to'' furnish the required security and judgment was accordingly entered against him. The question is, did the respondent by

appearing in obedience to the process of the Kandy Court and applying for leave to defend the-action-neither of which he was obliged, to do-

without raising any objection to: its jurisdiction, voluntarily submit himself to the jurisdiction of that Court? The answer must be in the affirmative.

And it would be clear bad faith on his part having once elected to submit to the forum chosen by his opponent and; taken the chance of a decision

in his favour in that Jorum to turn round and say after-'' wards when the decision has gone against him that the judgment was without jurisdiction.

This according to doctrines of International Law he cannot be permitted to do. See Emanuel v. Symon (1908) 1 K.B. 302. But the learned

Advocate-General who appears for respondent argues that according to Section 704 of the Ceylon Ordinance II of 1889 a defendant in an action

under the Summary Procedure can appear or defend the action only after leave is granted and hence he contends that if leave was refused or if

leave having been granted, the defendant did not appear in pursuance of such leave and in this respect it would make no difference whether the

leave if granted was conditional or absolute-he cannot be held to have appeared in the action at all and submitted to the jurisdiction of the Ceylon

Court. We think the words appear or defend? occurring at one place in Section 704 which runs thus: ""In any case in which a plaint and summons

are in such forms respectively, the defendant shall not appear or defend the action unless he obtains leave from the Court as hereinafter mentioned

so to appear and defend..."" are the equivalent of appear and defend"" and clearly refer to appearance for the purpose of defending the action in

accordance with the leave granted and do not imply that appearance for the purpose of obtaining leave is not to be deemed appearance in the

action at all (see also Section 705). But what we are concerned with is not the question whether appearance in order to apply for leave is or is not

appearance in the action for certain purposes contemplated in Chapter LIII of the Ordinance, but whether appearance in answer to the process of

the Ceylon Court without any protest whatever and applying for leave to defend the action do not show that the respondent submitted to its

jurisdiction. It is not even necessary that submission must be by an act done in the course of the action itself, for it can be constituted by a contract

to that effect entered into between the plaintiff and the defendant previously to the action. That the conduct of the respondent amounted in this case

to submission hardly admits of any doubt, as we have already indicated, and in this view we are supported by the case of Voinet v. Barret 55

L.J.N.S.39. There the defendant having appeared and taken part in certain proceedings of a preliminary nature was held to have submitted to the

jurisdiction of the Court although he eventually allowed judgment to go against him in default of appearance at the time of hearing. The learned

Advocate-General has cited the case of Parry and Co. v. Appasami Pillai 2 M.k 407 as an authority in his favour. But there the defendant who

appeared in order to escape the inconvenience of arrest and attachment of property in, a foreign territory objected at the same time to the

jurisdiction of the foreign Court though ineffectually and that was held to show that his submission was not voluntary. In Sivaraman Chetti v. Iburam

Saheb 18 M.b 327 also quoted by the Advocate-General, the facts of which are not fully set forth in the report, it seems that the defendant had

instructed a Vakil to defend the action but at the time of the hearing the Vakil stated that he had no instructions and thereupon judgment was given

against the defendant ex parte. There the learned Judges while recognizing the force of the rule that a defendant who has taken his chance of a

decision in his favour cannot afterwards take exception to the'' jurisdiction held that on the facts of the particular case before them there was in fact

no submission. It is not for us to consider whether the view they took of the facts in that case was correct or not. but there is nothing in the

judgment of Collins, C. J., and Best, J., to indicate that they intended to lay down broadly that if the defendant allows judgment to be passed

against him by a foreign Court in default of appearance, although he might have otherwise submitted to its jurisdiction the plaintiff cannot sue upon

that judgment in the forum of the defendant''s country. No doubt a judgment of a foreign Court which does not decide upon the merits Of the

dispute, for instance if a suit is dismissed as being barred by the law for limitation of suits prevailing in that Court cannot be pleaded as a bar to a

suit instituted in the Court of the plaintiff''s domicile on the same cause of action. The cases of The Delta v. The Erminia Foscolo 1 Probate Division

393 and the Challenge and Duc D''Aumale (1904) P.k 41 were cases of that description. But we are not dealing with a question of that nature in

the present case. In the view we have expressed we reverse the judgments of both the lower Courts and decree the plaintiff appellant''s suit. There

will be judgment for the plaintiff for Rs. 1,873-0-5 with interest at 6 per cent, per annum from the date of suit until payment.