SHAIK ATHAM SAHIB Vs. DAOUD SAHIB

JUDGEMENT

(1.) 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.

(2.) 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, Civil Procedure Code (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/s. Rajah of Faridkot 22 C. 222 : 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/s. Raphael Robinson 28 C. 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. 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.

(3.) 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/s. 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/s. Symon (1908) 1 K.B. 302 : 77 L.J.K.B. 180 : 98 L.T. 304 : 24 T.L.R. 85 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 22 C. 222 : 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/s. Symon (1908) 1 K.B. 302 : 77 L.J.K.B. 180 : 98 L.T. 304 : 24 T.L.R. 85 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.