1. A preliminary point has been taken on behalf of the defendants that the plaint is not properly signed, inasmuch as it was signed by a person holding not a general power of attorney but a special power of attorney given by the plaintiff for the purposes of this particular suit. The case is governed by Order III, Rule 2, and the rule in the Civil Procedure Code on that point has been modified by the rules of this Court which will be found at p. 1215 of Mulla's Code of Civil Procedure. The persons who, under Order VI, Rule 14, are held to be duly authorised by a party unable to sign the plaint himself, are, under the rules of this Court made under Section 122, ' persons holding general powers of attorney from parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, the application or act is made or done, authorising them to make and do such appearances, applications and acts on behalf of such parties.' The plaintiff in this case is a resident at Basra in Iraq, and has given a power of attorney to a person residing in Bombay who has signed the plaint, and it is contended that this power of attorney is a special power of attorney and not a general power of attorney. The terms of the power of attorney are:-
I, the undersigned Ephrayim Hiskail Ephrayira residing at Seef quarter Basrah, Iraq, do hereby constitute and appoint Mr. Khedoori Rubain Aboodi residing at present at Bombay India, to be my true and lawful attorney in connection with realisation of the amount of decree No. 144 of 1023 for Rupees five thousand besides the Court expenses passed by the Court of first instance at Basrah against Turner Morrison & Co., at Bombay India. The said attorney is further authorised to file suit, make application and sign documents and appoint pleaders relative to the above suit, give receipt for the amount and make compromise, ask for attachment or the imprisonment of the debtor and generally do all what he thinks necessary in the above case the same manner would I done if present to which I have absolutely no objection
2. It is contended by the learned Counsel for the defendants that this is a special power of attorney and not a general power of attorney. It has been contended by the learned Counsel for the plaintiff that no point was taken in the written statement as to the signature on the plaint being insufficient, and so the point cannot be taken now. It is, however, not necessary under the section of the Code relating to pleadings that points of law should be taken in the written statement. It-is only necessary to plead facts. It is also contended that this is a general power of attorney, and that the stamp paid on it at the stamp office is the stamp applicable to a general power of attorney. On reading the power of attorney I am of opinion that this is a special power of attorney, because it authorises the attorney to act only in connection I with the one particular matter, i. e., the realisation of the amount which had been obtained by the decree against the defendants in the Basra Court. Reference has been made to the case of Fardaji Kasturji v. Chandrappa ILR (1916) 41 Bom. 40 : 18 Bom. L.R. 821 in which it was held that, where | an attorney was authorised to act in one particular matter, the) power was a special power of attorney inasmuch as the agents authorization extended not to any class of business or employment, but was restricted to the doing of all necessary acts in the I accomplishment of one particular purpose, and on reading the power of attorney which I have set forth above, I think there can be no doubt the authority of the attorney in this case extended only to the doing of acts in connection with one particular purpose, viz., the recovery of the amount due to the plaintiff in one particular suit, although for the accomplishment of the purpose it might be necessary for the agent to do a number of acts in Bombay. The learned Counsel for the defendants has referred to the case in In re Gopalrao (1901) 3 Bom. L.R. 890. That, however, was a case under the Indian Stamp Act. It was a reference under the Stamp Act, and the question was whether the instrument should be stamped as a general power of attorney or not. Each power of attorney has to be considered on its own terms, and I have no doubt that in view of the ruling in Vardaji Kasturji v. Chandrappa this power of attorney must be considered as a special power of attorney, and, therefore, it does not fulfil the conditions laid down in the amended rule as framed by this Court. It has been contended that in any event it is only a matter of procedure not affecting the merits of the case, and reference has been made to Qanpati Nana v. Jivanabai ILR (1922) 47 Bom. 227 : 24 Bom. L.R. 1302, in which, in view of the provisions of Section 93 of the Code of Civil Procedure, the Court refused to interfere in a case where a suit had been instituted on a power of attorney which was liable to the same objection as the one in the present case. But it is a different matter where the suit has already been heard and a decree has been passed, as in that case the provisions of Section 99 of the Code of Civil Procedure debar the appellate Court from interference in appeal on account of any error, defect or irregularity in any proceeding in the suit not affecting the merits of the case or the jurisdiction of the Court. The same was the case in the case which is referred to in Vardaji Kasturji v. Ghandrappa ILR (1916) 41 Bom. 40 : 18 Bom. L.R. 821 and Charles Palmer v. Sorabji Jamshedji (1886) P.J. 63. In that case also, it was held that although the power of attorney was defective, the appearance with a power of attorney for the particular case was at the most an irregularity not affecting the merits of the case or the jurisdiction of the Court, and the Court, therefore, declined to interfere.
3. It would, however, be a matter of regret in the present case, where the plaintiff is resident outside the jurisdiction of the Court, if he were deprived of an opportunity of having the case heard on the merits merely on an irregularity which does not affect the merits. It so happens, however, that in the present case the plaintiff has com(c) from Basra and is actually present in the Court, and 1 shall, therefore, in the circumstances of this case, direct that he be allowed to amend his plaint by signing it himself, subject to this that he must pay the costs of the proceedings up to today.
4. The plaint was accordingly signed by the plaintiff himself, and the suit was set down for hearing on the remaining issues.
5. The plaintiff, who is a Jewish inhabitant of Basra, sues the defendants, are doing business in Bombay, on a foreign judgment obtained by him in the Court of the first instance at Basra against the defendants on December 20, 1923. The defendants by their written statement have raised several points, the principal point being that the judgment was not given on the merits, and they are, therefore, entitled to defend the suit in this Court on the merits. The following issues have been framed :-
1. Whether the plaint is properly signed f
2. Whether the suit in the Basra Court was decided on the merits'
3. Whether there was an agreement between the plaintiff and the defendants that the defendants should retain the Rs. 5,000 deposited with them in settlement of their claim against the plaintiff and one Darvesh as pleaded in para 3 of the written statement ?
4. Whether in any case the plaintiffs are entitled to Rs. 2,000 out of the said sum of Rs, 6,000 as pleaded in para 4 of the written statement ?
6. I have already given an interlocutory judgment on issue No. 1. The principal issue in the suit is issue No. 2, whether the suit in the Basra Court was decided on the merits, as, admittedly, if that is decided against the defendants, it will be unnecessary to go into the merits of the case.
7. The facts of the case, so far as it is necessary to go into them at this stage, are that the defendants during the war and afterwards had a branch in Basra. In 1920 they sold some cases of cigarettes to one Darvesh, Darvesh transferred the contract to the present plaintiff. In the course of this contract a deposit of Rs. 5,000 was made, at this stage we may say, made on behalf of the plaintiff, but that is a disputed question, as well as a promissory note passed for Rs. 5,000 as security for the performance of the contract. Subsequently, however, as the defendants say, owing to the termination of the war and the removal of the troops from Iraq and the consequently lessened demands for cigarettes, the market fell, the plaintiff did not take delivery of the goods. The cigarettes were, therefore, sold by Messrs. Turner, Morrison & Co. at a loss of Rs. 23,000. They brought a suit against the present plaintiff in the Court of Basra in 1921 to recover that amount. In the course of his written statement the defendant, the present plaintiff, counterclaimed for the amount of the deposit. The plaintiff's suit was dismissed, but the counterclaim does not seem to have been awarded, the plaintiff says because he did not pay the court-fees on it acting under advice. However that may be, he subsequently instituted a suit in the Court of first instance at Basra, viz., suit No. 144 of 1923. In that suit the present defendants were represented by their pleader, who appeared land stated that he was unable to defend the suit as he represented the defendants for service of process only. A decree was, thereupon, passed against the defendants for Rs. 5,000, the amount claimed, and on this foreign judgment, against which no appeal was filed, the present suit is brought.
8. The case is governed by Section 13 of the Code of Civil Procedure, which says that a ' 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,' and then follow six exceptions of which we are only concerned with (b) :-'(b) where it has not been given on the merits of the case '.
9. The question of jurisdiction has not been raised in this case, because it is obviously unsustainable. It appears from the proceedings in the case and from the evidence, the proceedings in the Basra Court having been put in, that at the time when the suit was instituted the defendants were carrying on business in Basra through their manager Mr. Gillespie. The summons was served on the pleader of the defendants on behalf of the defendants, and clearly no question of want of jurisdiction could arise, as the defendants were actually resident and doing business within the jurisdiction of the Court, and the cause of action arose within the jurisdiction of the Court, and the defendants were served. They were again served through the Court of Small Causes in Bombay, when after the Basra office was closed Mr. Gillespie returned to Bombay about the end of March 1923.
10. But the principal point which has been taken in this case is that the decision is not on the merits. The learned Counsel for the plaintiff has quoted a number of English cases to show that where the decision is on the merits, the Court cannot go into the question, but it is unnecessary to refer to these cases in view of Section 13 of the Civil Procedure Code, inasmuch as if the foreign judgment is given on the merits it is conclusive. The only question, therefore, in this case is whether the judgment of the Basra Court is given on the merits. What actually happened in this case was that the defendants, as I have already said, had been served with the summons, and the correspondence show that they had notice of this suit. It also appears that they had given a power of attorney to one Menasse, a pleader, in 1922, and as far as appears in this case, that power of attorney was still in force because, although Mr. Gillespie examined as a witness says that he cancelled all these powers of attorney, it seems that Menasse was still in possession of the power of attorney which was filed in the record of this case, and a certified copy is before this Court. Menasse produced the power of attorney in the Court when the case came on for hearing. Also from the correspondence of Messrs. Turner, Morrison & Co., which has been filed in this case, and from the telegrams which have been put in, it is perfectly clear that the pleader Menasse had instructions from Turner, Morrison & Co., Bombay, to appear on their behalf and to act under the instructions of Messrs. Andrew, Weir & Co. who were in Basra and to apply for an adjournment. The adjournment was refused. The Court then proceeded to go into the papers in the former proceedings and to pass a decree against the defendants. It is only necessary in this case to refer to very few cases. The learned Counsel for the defendants has relied on the case of Keymer v. Visvanatham Reddi ILR (1916) Mad. 112 : 19 Bom. L.R. 206.. In that case the plaintiff sued the defendant on a judgment obtained in the Court of King's Bench in London. The defence had been struck out because the defendants had refused to answer interrogatories. It was held by the Privy Council that the decision was not on the merits of the case within the meaning of Section 13 (b) of the Code of Civil Procedure. The principle on which that case was decided will be found at the end of the judgment where it is stated that Section 13, Sub-section (b) refers to those cases where, for one reason or another, the controversy raised in the action not in fact been the subject of direct adjudication by the Court, The same question arose in G.S.C. Cole v. C.A. Harper ILR (1919) All. 521, in which the case I have just referred to, Keymer v. Visvanatham Reddi, was distinguised. In that case the defendant was sued for personal injuries caused in a motor car accident. The writ of summons was accepted by a solicitor, and an appearance was entered by him on behalf of the defendant. But before the hearing the defendant was recalled to India, but the case proceeded in his absence and resulted in a judgment for the plaintiff. There it was held that in the case of Keymer v. Visvanatham Eeddi (p. 523) 'the judgment follows as of a penalty upon the defendant not complying with the order of the court and the facts and circumstances of the case were never gone into at all. In the present case the evidence of the plaintiff herself, or some other evidence, had to be given before the jury could find a verdict in her favour,' and that the judgment was, therefore, one which was given on the merits. The present case, with which we are now concerned, is practically on all fours with that of Janoo Hassan v. Mahamad Ohuthu ILR (1924) Mad. 877, where the notice of suit to the defendant in the Court in Ceylon was served on a person who was conducting business on the defendant's behalf in Ceylon, and had been given by him a power of attorney under which the agent was empowered to sue in the Courts of Ceylon and to appear in any Court of Justice in Ceylon either as plaintiff or defendant. The agent did not put in any appearance at all in the suit in the Ceylon Court, and the case was allowed to proceed ex parte against the defendant. It was held that the defendant must be deemed to have submitted himself to the jurisdiction of the foreign Court by reason of the execution of the power of attorney. It was further held that ordinarily a judgment delivered ex parte is deemed to be on the merits, and it is only when a defence has been raised and for some reason or another has not been adjudicated upon that the decision can be said to be not upon the merits, and that the ex parte judgment in that case must be deemed to be one passed on the merits as the defendant did not at all appear in the case. This is practically on all fours with the present case. In the present case Turner, Morrison & Co. were served while they were actually residents in Basra. Although at the time when the suit came on for hearing Mr. Gillespie was not resident in Basra,, the pleader Menasse, who held a power of attorney from the firm and was retained to appear in the case, was in Basra. He represented the defendants in fact. That he did not receive any instructions to defend the case on the merits does not, in my opinion, prevent the decision from being one on the merits. Applying the test that it is only when a defence has been raised reason or another has not been adjudicated upon that the decisions can be said to be not on the merits, it is clear that the present case, where no defence was raised, but merely an adjournment was asked for and the judgment proceeded on the evidence of the plaintiff and the papers in the former suit, cannot be said to be a case in which the judgment is not one on the merits. The assertion in the written statement at the beginning that Menasse if had no authority to represent the defendants is entirely incorrect.
11. In these circumstances, I find on issue No. 2 that the suit in the Basra Court was decided on the merits. This being so, the judgment is conclusive, and the Court cannot go behind the judgment. I, therefore, cannot consider any of the other questions which have been raised in the case.
12. The result is that there will be a decree for the plaintiff against the defendants as prayed for in the plaint with costs, subject to the order as to costs made in the interlocutory judgment on February 25, 1930. Interest on judgment at six per cent.