D. Falshaw, J.
1. This is an appeal by joint Hindu family firm Kesar Dasrajan Singh against a decree passed by a Court at Karnal for Rs. 12,280/- and costs in favour of the respondent Seth Parma Nand.
2. The suit was instituted by Parma Nand in August 1949 for the recovery of Rs. 10,000/- as principal and Rs. 2,280/- as interest on the basis of a pronote executed by two members of the defendant-firm, Rajan Singh and Kesar Das, on 25-1-1947 at Bannu (N. W. F. P.) where the parties then resided and carried on business.
In a statement made by Rajan Singh defendant before issues were framed, the execution of the pronote by himself and his father Kesar Das was admitted, and it has never been pleaded that the pronote was without consideration. Apart from one or two technical points which have not now been pressed, the defence was based entirely on the following facts. The plaintiff instituted a suit based on this very pronote and claiming the sum then due under it in the Court of the Senior Subordinate Judge at Bannu on the 29lh of July 1947. This suit was dismissed by Mr. Daood Khan by his order dated 30-10-1947 which reads--
'Counsel for the plaintiff is present. Counsel for the defendants is also present. In compliance with the previous order, the plaintiff's counsel has not so far produced the original pronote for perusal of the defendants. On the other hand he has produced a telegram stating that the plaintiff cannot produce the pronote either through post Or a particular messenger. The plaintiff should have handed over the pronote to his counsel or some agent. There does not exist any solid ground for further adjournment.
Under Order 11, Rule 15, Civil P. C., the plaintiff not having now produced the pronote, he will not he allowed to produce it in this case. For this reason, as the present suit is on the basis of the said pronote, the plaintiff will not even be able to prove it in any other manner. Under these circumstances, until the original pronote is produced, we cannot pursue this suit any further. Hence this suit is dismissed with costs under Order 17, Rule 3, Civil P. C.'
3. The defendant's case is that this order dismissing the plaintiff's suit based on the same pro-note on which the present suit is based constitutes a bar to the present suit by res judicata.
4. It is, however, clear that whatever the position may have been on 29-7-1947, when the plaintiff instituted a suit at Bannu, Pakistan had become a separate and independent country by 30-10-1947 when the suit was decided and the judgment is therefore a judgment of 'foreign' Court. It is therefore governed by the provisions of Section 13, Civil Procedure Code, which reads--
'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 the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India 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 India.'
5. In the present case the judgment of the Bannu Court was held not to bar the present suit on the grounds contained in Clause (b) and (d) or, in other words, because the decision of the plaintiff's suit was not on the merits of the case and because the proceedings were opposed to natural justice.
6. It may be stated at this stage that the plaintiff's case on the facts, which I see no reason for doubting, was that by the time the suit was heard he had fled to India on account of the communal situation and that the telegram referred to in the order of the Bannu Court was sent by him to his counsel from Hardwar pointing out that under the circumstances it was not possible for him to send the pronote in suit to his counsel either through postal channels or by the hand of any messenger.
7. It seems to me that on both points the decision of the lower Court was correct. Order 17, Rule 3, Civil P. C., is in the following terms--
'Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further pro-gress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.'
There is no doubt that decisions under this rule may generally be decisions on the merits, and in fact the intention seems to be that on the default of a party the Court may proceed to decide the suit on the available material. It does not, however, seem to me that an order dismissing a suit at a preliminary stage for the non-production of a document by the plaintiff, before even a written statement has been filed by the defendant, and without the framing of any issues, can be said to be a judgment dismissing a suit on the merits. It is in fact clear in the present case that the defendants were temporising and were intending to file a written statement only after they had seen the pronote, and were perhaps counting on the fact that its production was going to be difficult.
8. Some cases have been cited on behalf of the appellant in which orders under Order 17, Rule 3 have been held to be orders on the merits and a bar to subsequent suits, but these were purely domestic matters and in none of the cases was there any question of the judgment of a 'foreign' Court. To my mind the words 'where it has not been given on the merits of the case' relating to a foreign decision must be interpreted liberally and must mean that there has been some pronouncement on the merits of the respective parties' cases and a decision thereon.
This view derives considerable strength from the decision of their Lordships of the Privy Council in Keymer v. Viswanatham Reddi, ILR 40 Mad 112: (AIR 1916 PC 121). The facts in that case were that the appellant had brougbt a suit against the respondent in the Court of Kings Bench in London for the recovery of a certain sum of money alleged to be due as a result of some business transactions. The defendant contested the claim, but refused to answer certain interrogatories which the plaintiff was allowed to exhibit calling on the defendant to speak as to some of the material matters in dispute, and the defence was thereupon ordered to be struck out, and the defendant to be placed in the same position as if he had not defended.
The plaintiff was then granted a decree, on the basis of which he proceeded to file a suit against the defendant in Madras. The defendant adopted the position that the judgment between him and the plaintiff in the English Courts had not been judgment given on the merits of the action and that consequently by virtue of Section 13(b), Civil Procedure Code, the action could not be maintained on the judgment alone in the Indian Court and that the merits would have to be investigated. This was the question before their Lordships and it has been dealt with in the following passage at page 115: (of ILR Mad) : (at p. 123 of AIR);
'The whole question in the present appeal is whether, in the circumstances narrated, judgment was given on 5-5-1913, between the parties on the merits of the case. Now if the merits of the case are examined, there would appear to be, first, a denial that there was a partnership between the defendant and the firm with whom the plaintiff had entered into the arrangement; secondly, a denial that the arrangement had been made; and, thirdly, and a more general denial, that even if the arrangement had been made the circumstances upon which the plaintiff alleged that his right to the money arose had never transpired.
No single one of those matters was ever considered or was ever the subject of adjudication at all. In point of fact what happened was that, because the defendant refused to answer the interrogatories which had been submitted to him, the merits of the case were never investigated and his defence was struck out. He was treated as though he had not defended, and judgment was given upon that footing. It appears to their Lordships that no such decision as that can be regarded as a decision given on the merits of the case within the meaning of Section 13; Sub-section (b).
It is quite plain that that sub-section must refer to some general class of case, and sir Robert Finlay was asked to explain to what class of case in his view it did refer. In answer he pointed out to their Lordships that it would refer to a case where judgment nad been given upon the question of the Statutes of Limitation, and he may be well founded in that view. But there must be other matters to which the sub-section refers, and in their Lordships' view it refers to those cases where, for one reason or another, the controversy raised in the action has not, in fact been the subject of direct adjudication by the Court.'
9. In the present case, as I have said, the due execution of the pronote has been admitted by the defendants and it has not been denied that consi deration was received, but these matters had not been touched on at all in the judgment of the Court at Bannu, which dismissed the suit because the plaintiff had not produced the pronote when callec on to do so by the Court for die Inspection of the defendants.
10. Apart from this it appears to me that the summary dismissal of the suit in this, manner offends the principles of natural justice in that the plaintiff had fled to India and in October 1947 it was certainly not practicable either for him to send pronqte to his counsel at Bannu through the post, or to go there in person with it or to send it through any messenger from this side, and in such, circumstances the refusal to allow any further adjournment for the production of the pronote appears to me to be extremely harsh and arbitrary. I thus see no reason to interfere and would accordingly dismiss the appeal with costs.
I.D. Dua, J.
12. I agree.