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ishri Prasad Vs. Sri Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All510
Appellantishri Prasad
RespondentSri Ram
Excerpt:
.....that the document on which the suit was based was registered coupled with the omission of the defendant to contest the suit, furnished a prima facie proof of the genuineness of the plaintiff's claim. it is a well-settled rule of international law that courts cannot, by their judgments, bind absent foreigners who have not submitted to their jurisdiction, and can only exercise jurisdiction over persons who are within the territorial limits of their jurisdiction, and, therefore, a judgment of a foreign court obtained against a defendant cannot be enforced in british india where the defendant, at the time of the commencement of the suit, was not a subject of, nor resident in, the country in which the judgment was obtained:.....of rs. 979-9-6 as due to him from the respondent under a decree obtained by the appellant in the rampur state.2. the plaintiff's case was that the respondent was living in rampur state at the time that the suit was filed and the decree was obtained by the plaintiff, but subsequent to the passing of the decree, the defendant had left rampur state and settled within the local limits of the jurisdiction of the court of the munsif of saharanpur.3. the suit was contested by the defendant inter alia on the ground that he was not residing in rampur state at the time of the institution of the suit in the court of rampur state and as such, the foreign judgment obtained by the plaintiff could not be enforced against him, in view of the provisions of section 13(a) of the code of civil.....
Judgment:

1. The appellant sued the respondent in the Court of the Munsif of Saharanpur for recovery, of Rs. 979-9-6 as due to him from the respondent under a decree obtained by the appellant in the Rampur State.

2. The plaintiff's case was that the respondent was living in Rampur State at the time that the suit was filed and the decree was obtained by the plaintiff, but subsequent to the passing of the decree, the defendant had left Rampur State and settled within the local limits of the jurisdiction of the Court of the Munsif of Saharanpur.

3. The suit was contested by the defendant inter alia on the ground that he was not residing in Rampur State at the time of the institution of the suit in the Court of Rampur State and as such, the foreign judgment obtained by the plaintiff could not be enforced against him, in view of the provisions of Section 13(a) of the Code of Civil Procedure.

4. The learned Munsif, while holding that the defendant and one Kesaree were jointly and severally liable for the debt with respect to which the plaintiff had obtained a decree in Rampur State, dismissed the plaintiff's suit on the ground that

the defendant's presence or even residence in Rampur when the case was in progress there has not at all been proved.

5. and

therefore the Court in Rampur had no jurisdiction over the defendant and the judgment thus passed carries no weight.

6. On appeal by the plaintiff the lower appellate Court after observing that the only question argued before it was 'the question of jurisdiction' and after referring to Section 13(a) of the Code of Civil Procedure held that there was

not a scrap of evidence on the record to show that the defendant lived in Rampur when the decree was passed against him.

7. After recording this finding the lower appellate Court referred the case of D.T. Keymer v. P. Viswanath Reddi A.I.R. 1916 P.C. 121 and recorded a finding in the following terms:

I hold that such a judgment was not a judgment given on the merits of the case as contemplated by Section 13 of the Civil P.C. and thus no action could be maintained on it in the Indian Courts.

8. It is argued by the learned Counsel for the appellant that the judgment on which the suit giving rise to the present appeal was based, was a judgment given 'on the merits of the case' and the lower appellate Court has erred in holding otherwise. It is further argued that the Courts below were wrong in proceeding on the assumption that it lay on the plaintiff appellant to show that the defendant was residing within the jurisdiction of Rampur Court at the time when the suit was filed and the decree was obtained by the plaintiff and, that in view of the provisions of Section 14 of the Civil P.C., it was incumbent on the Courts below to presume that the judgment, on which the present suit was based was pronounced by a Court of competent jurisdiction, unless the contrary was proved.

9. It is a fact that the decree obtained by the plaintiff in Rampur was an ex parte decree. The judgment of, the Rampur Court after giving a summary of the plaint runs as follows:

The defendant notwithstanding due service of summons has not contested the suit. The document is registered. The failure of the defendant to contest the suit amounts to an admission of the plaintiff's claim. Accordingly the plaintiff's suit is decreed.

10. We are unable to hold that this judgment was not a judgment given 'on the merits of the case.' It appears to us that the phrase 'the merits of the case' has been used in the Code in contradistinction to a judgment by way of penalty. If without considering the questions, the determination of which is necessary for the decision of the case, the Court, because of certain default made by a plaintiff or by a defendant penalizes the party in default, by deciding the case against him, the decision cannot be regarded as a 'judgment given on the merits of the case.' In the present case it appears that the Rampur Court was impressed by the fact that the document sued on was a registered document, and having taken that fact into consideration along with the fact that the defendant did not contest the plaintiff's claim, came to the conclusion that the plaintiff's case was true. That being so, it cannot be said that Court pronounced its judgment without considering the question whether or not the amount claimed was due to the plaintiff from the defendant.

11. The case reported as D.T. Keymer v. Biswanath Reddi A.I.R. 1916 P.C. 121, on which reliance has been placed by the lower appellate Court is distinguishable. In that case upon the defence being put in, the plaintiff applied for liberty to exhibit interrogatories. He was allowed to do so, and the interrogatories were exhibited calling upon the defendant to answer with respect to some of the material matters in dispute. This the defendant failed to do, and then an application to have the defence struck out was made on behalf of the plaintiff under O.31, Rule 21 of the English Judicature Act, which provides that where a defendant fails to comply with an order to answer interrogatories he shall be liable to have his defence struck out. The application was allowed, and the plaintiff was allowed to sign judgment against the defendant. The judgment so obtained by the plaintiff was not a judgment on the merits inasmuch as, as observed by their Lordships of the Privy Council, not one of the questions that arose for consideration in the case were 'ever, considered' or were 'ever the subject of adjudication at all' and the merits of the case were never investigated.

12. As was pointed out in the case of George Summerly Carmichael Cole v. Catherine [1920] 41 All. 521 'the judgment followed as a penalty upon the defendant not complying with the order of the Court.' In the present case a decree was granted to the plaintiff by the Rampur Court, not because of the failure of the defendant to comply with any order of the Court, but because the Court, rightly or wrongly, was of opinion that the fact that the document on which the suit was based was registered coupled with the omission of the defendant to contest the suit, furnished a prima facie proof of the genuineness of the plaintiff's claim. We are, therefore, unable to hold that the judgment on which the present suit was based was a judgment that was pronounced by the Rampur Court without considering the merits of the case.

13. The argument of the learned Counsel for the appellant that both the Courts below wrongly cast on the plaintiff the burden of proving the fact that the defendant was subject to the jurisdiction of the Rampur Court, when the suit was filed in Rampur, has considerable force. The Courts below seem to have overlooked Section 14 of the Code of Civil Procedure. The plaintiff did produce a certified copy of the judgment of the Rampur Court. On such copy being produced, it was imperative on the Courts below to presume that the judgment was pronounced by a Court of competent jurisdiction, unless the contrary was proved. It is a well-settled rule of international law that Courts cannot, by their judgments, bind absent foreigners who have not submitted to their jurisdiction, and can only exercise jurisdiction over persons who are within the territorial limits of their jurisdiction, and, therefore, a judgment of a foreign Court obtained against a defendant cannot be enforced in British India where the defendant, at the time of the commencement of the suit, was not a subject of, nor resident in, the country in which the judgment was obtained: vide the case Kassim Mamoojee v. Isuf Mahomed Sulaiman [1902] 29 Cal. 509. That being so, in a suit based on a foreign judgment, one of the questions that arises for consideration is: Was the defendant, at the time of the commencement of the suit in the foreign Court, residing within the territorial limits of the jurisdiction of the State in which the suit was brought? But on the production of a certified copy of a foreign judgment the Court is bound to presume that the judgment was pronounced by a Court of competent jurisdiction

and therefore, it devolves on the defendant, by his pleading and evidence, to deny and disprove every fact and circumstance which negative the jurisdiction of the foreign Court.

14. Jurisdiction over him being presumed, he must allege and establish facts from which the inference must necessarily arise that in his case the presumption is contrary to the facts vide: Freeman on Judgments, 4th Edition page 1017. In the present case, as already stated both the Courts below decided the point against the plaintiff because the plaintiff adduced no evidence to show that the defendant was residing in Rampur State at the time that the suit was filed against him by the plaintiff. Inasmuch as the findings of the Courts below on this point proceed on a misapprehension of the law on the subject, we consider it desirable to decide this appeal after haying a finding from the lower appellate Court on the following points:

(1) Is the defendant a subject of Rampur State?

(2) Was the defendant residing in Rampur State at the time that the suit was filed by the plaintiff in that State?

15. Parties will be allowed to adduce further evidence. On receipt of the finding ten days will be allowed for filing objections.


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