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2003 DIGILAW 1554 (AP)

Madame Canisia Ceizer v. Altar Hussain Khan

2003-12-17

P.S.NARAYANA

body2003
( 1 ) THIS Civil Revision Petition is filed by the revision petitioner Smt Madame Canisia ceizer, aggrieved by the order made in i. A. No. 1224 of 1994 in O. S. No. 361 of 1994 on the file of the I Senior Civil Judge/ City Civil court, Hyderabad. The petitioner as plaintiff moved I. A. No. 1224 of 1994 in O. S. No. 361 of 1994 praying for impleading of respondents 2 to 5 herein under Order 1 Rule 10 of the code of Civil procedure (for short "the code") on the ground that the proposed parties also were declared as co-debtors by the Switzerland Courts and it is necessary to implead them as defendants 2 to 5 in the suit to decide all the disputes involved in the said suit. Several details were narrated in the affidavit filed in support of the application. The said application was opposed and the learned I Senior Civil Judge, City Civil Court, hyderabad by order dated 13-03-2002, had dismissed the said application with costs and aggrieved by the same, the present petitioner-plaintiff had preferred the present civil revision petition. ( 2 ) SRI Vedula Venkataramana, learned counsel representing the petitioner had submitted that the learned I Senior Civil judge, City Civil Judge, Hyderabad, had definitely gone wrong in dismissing the application to implead the parties. The learned counsel also pointed out that the observation made by the learned Judge that prima facie case for impleading the parties had not been made out is definitely unsustainable. The learned Counsel also would maintain that though in the plaint, it was stated that in relation to the contract between the plaintiff and the 1st defendant in paras 11,12 and 13 of the plaint, several details had been narrated and the certified copies of the proceedings of the Courts at switzerland also had been specified in detail at para 11. The learned counsel also pointed out that the observation made by the learned judge that there is no judgment of the foreign court as the foundation for the suit claim also cannot be sustained since along with the plaint, the judgment of the Switzerland Court was in fact filed. The learned counsel also pointed out that the observation made by the learned judge that there is no judgment of the foreign court as the foundation for the suit claim also cannot be sustained since along with the plaint, the judgment of the Switzerland Court was in fact filed. The learned counsel also submitted that it is not in controversy that the proposed parties-respondents 2 to 5 are the real brothers of the 1st respondent- original defendant in the suit who are shown as co-debtors as per the subsequent orders of the foreign Court. The learned Counsel also submitted that it is not as though this aspect was not pleaded at all but, no doubt it could have been pleaded in a better way giving further particulars in the plaint and that by itself does not mean that the proposed parties are unnecessary parties to the suit. The learned counsel in all fairness submitted that it is no doubt true that the application was moved at a belated stage and that itself cannot be a ground for refusing the relief of impleadment, if otherwise, the Court is satisfied that the presence of these parties definitely is essential for the purpose of adjudicating the matters in controversy between the parties. The learned counsel also had pointed out to Sections 13 and 14 of the Code and had maintained that the validity, binding nature or otherwise of a foreign judgment may have to be decided depending upon the satisfaction of several conditions and these are all matters to be decided at the stage of disposing of the main suit and the counsel concluded that it is a fit matter where the parties are to be brought on record for the purpose of the complete and effective adjudication of the matters in controversy between the parties. ( 3 ) MRS. Rama was appointed as Amicus curiae to assist the Court. The learned Amicus curiae had drawn the attention of this Court to Sections 13 and 14 of the Code and also to section 21 of the Limitation Act, 1963 (for short the Act ). The learned counsel contended that in the light of the averments made in support of the application and the stand taken in the counter, it is clear that the suit is for recovery of money and the application is moved beyond the period of limitation. The learned counsel contended that in the light of the averments made in support of the application and the stand taken in the counter, it is clear that the suit is for recovery of money and the application is moved beyond the period of limitation. The learned counsel also contended that unless the conditions specified under Section 21 of the Act are satisfied the application which would result in other consequences may not be allowed. The learned counsel also had placed reliance on B. Satyanarayana Murthy v. Venkata Rao, the judgment of this Court made in CMP. No. 7497 and 7498 of 1976 in A. S. No. 540 of 1973, dated 15-09-1976 and also on Gummidi ramulu v. Gadey Srinivasa Rao. ( 4 ) HEARD the counsel representing the revision petitioner and the learned Amicus curiae, who was appointed to assist the Court. ( 5 ) THE petitioner-plaintiff filed the suit o. S. No. 361 of 1994 as against the sole defendant originally on the file of the I Senior civil Judge, City Civil Court, Hyderabad for recovery of an amount of Rs. 50,00,000/- and pass such other suitable orders. ( 6 ) IT is pleaded in the plaint that in the year 1987, the plaintiff and the defendant had entered into an agreement for the purpose of constructing a building in plot of land No. 767, situated at Ruo du Lacno 15a, in the commune of Renens, Switzerland and the defendant is a known architect and he assured the plaintiff that he would be of immense help to her in the construction of the said building. It was further pleaded that the defendant was for some time in the service of Swiss Government and was later on removed from the service due to his nefarious activities, which had been narrated in detail. The other details may not be very relevant for the purpose of deciding the present application. At paras 11, 12 and 13 of the plaint, it was pleaded as hereunder: "the plaintiff was advised to institute necessary legal proceedings for the said purpose in the concerned Courts at switzerland against the defendant. Accordingly she promptly took such legal proceeding against the defendant and filed all relevant documents in that court. At paras 11, 12 and 13 of the plaint, it was pleaded as hereunder: "the plaintiff was advised to institute necessary legal proceedings for the said purpose in the concerned Courts at switzerland against the defendant. Accordingly she promptly took such legal proceeding against the defendant and filed all relevant documents in that court. The following certified copies filed herewith reveal that the Courts at switzerland, having jurisdiction in the matter, pleased to entertain the same and pass necessary attachment orders against the defendant and his properties at Switzerland. (1) Certified copy of the petition for sequestration by the plaintiff along with true translation. (2) Certified copy of the order for sequestration dated 13-10-1993 along with true translation. (3) Certified copy of the order for sequestration dated 18-10-1993 along with true translation. (4) Petition for legal proceedings dated 25-11-1993 along with true translation. (5) Notice of sale by auction dated 18-2-1994 along with true translation. (6) Copy of the construct for opening credit for construction along with true translation. (7) Copy of the Distribution Table produced by the builders along with true translation. It is submitted that the French Language being the official language of the said court, the above certified copies are filed along with the English Translation. It is further submitted that it is settled law that the above certified copies of the judgments referred to above, are the foreign judgment and are relevant for purposes of this suit, under sections 13 and 14 of the C. P. C. The above foreign judgments do disclose that the properties belonging to the defendant situated at Switzerland were attached and confiscated for realisation of the amounts due to the plaintiff and that the properties and the assets of the defendant so attached and located within the jurisdiction of the Courts at switzerland, are not sufficient for realisation of amounts payable to the plaintiff and that the defendant is about to leave Switzerland and is trying to go to India with a view to defraud creditors and to escape all his liability in the matter. The plaintiff now understands that the defendant actually came over to hyderabad in A. P. State in India. He is also having his own properties at hyderabad City as specified below and he is now actually residing in item no. 2 mentioned here under in hyderabad city. The plaintiff now understands that the defendant actually came over to hyderabad in A. P. State in India. He is also having his own properties at hyderabad City as specified below and he is now actually residing in item no. 2 mentioned here under in hyderabad city. He is also an Indian citizen holding an Indian Passport. (1) A commercial complex consisting of three stories building with mulgies, constructed on a premises admeasuring 1500 sq. yards, bearing municipal No. 5-9-183, situated at gunfoudnry, beside S. B. H. Head office, Hyderabad city. The defendant is having his half share in the said complex which comes to at about Rs. 30,00,000/ -. (2) Double stories building located on a premises admeasuring 3000 sq. yards, bearing Municipal No.- 3- 6-19, situated at Himayathnagar, hyderabad City. The defendant is having his 1/5th share in the property which comes to about rs. 20,00,000/ -. Several other allegation also had been narrated in paras 14, 15 and 16 and in the cause of action at para 17 it is specified as here under:"that the above facts constitute cause of action and it arose in Hyderabad city within the jurisdiction of this Hon ble court and it arose on 13-10-1993, 18-10-1993 and 25-11-1993 as per the attachment orders of the foreign Court referred to above, and in view of the fact that since the said orders of the attachment do cover only the properties of the defendant situate at Switzerland and that such properties of defendant situate at Switzerland and that such properties do not cover the entire liability of the defendant and hence for realisation of balance of amounts due from the defendant the cause of action arose to the plaintiff against the defendant in Hyderabad city where the other properties of the defendant are situate in Hyderabad city. " ( 7 ) ALL these aspects had been specifically averred in the affidavit filed in support of the application for impleading the parties. An elaborate counter was filed and in substance, the stand taken by the proposed parties who are sought to be impleaded is that there is no privity at all between the petitioner and the proposed parties and they are in no way concerned with the transaction and in the cause of action also specifically the same was pleaded and hence the application to bring them on record is not maintainable. Virtually, the stand taken by the proposed parties is that they are not at all liable to pay this amount. It is needless to say that this is a matter to be decided ultimately while deciding the suit. For the present purpose, the Court may have to look into the aspect whether these are either necessary or proper parties to be brought on record for the purpose of completely and effectively deciding the questions in controversy between the parties. The main ground raised by the revision petitioner is that in view of certain proceedings of the Courts of switzerland inclusive of judgment, these parties also are liable to pay the amount sought to be recovered in the suit along with the 1st defendant. Sections 13 and 14 of the code read as here under: xxx xxx xxx 13. Where foreign judgment not conclusive - 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 recognize the law of [india] in case 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]. 14. Presumption as to foreign judgments - The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction. ( 8 ) THE principles relating to the enforcement of foreign judgments and foreign awards had been dealt with in detail by the Apex Court in Badat and Co. v. East india Trading Co. . ( 8 ) THE principles relating to the enforcement of foreign judgments and foreign awards had been dealt with in detail by the Apex Court in Badat and Co. v. East india Trading Co. . ( 9 ) IN Maqbul Fatima v. Amir Hasan while dealing with the aspect of the British Indian court s Judgment and whether it operates as res judicata in foreign Court, their Lordship of the privy council while dealing with provisions of the code as they stood at the relevant point of time had observed as hereunder: "the word "judgment" in the expression "foreign judgment" is evidently used in the sense in which the word judgment is used in England. It is contended that if in the Rampur court the judgment of the learned Sub- ordinate judge of Barielly was produced, that Court would be at once bound to pronounce judgment against the defendants in the Rampur State and in favour of the plaintiffs by reason of the language of Section 13. If this argument be sound the result would be somewhat startling. A Court in Rampur which was only competent to try suits where the value of the property was very small, might give judgment in favour of a party and in a suit subsequently brought in British India between the same parties in respect of different property worth many lakhs, if the judgment of the Rampur Court was produced nothing more could be said, and the Court in British India (no matter how big its jurisdiction) would be absolutely bound. This would mean that it was the intentionof the legislature to give greater effect to judgments of a foreign Court, no matter how petty, than to judgments of as high or possibly higher Courts in British India. In British india it is only when the first Court is competent to try the second suit that the matter is res judicata. Such a result, we think, would be almost absurd. It is contended that no matter how absurd the result, the words of section 13 are quite plain. A "foreign judgment" is defined in our Code of civil procedure to be the judgment of a "foreign Court" and a "foreign Court" is defined to be a Court which has no authority in British India, and is not established or continued by the governor-General. A "foreign judgment" is defined in our Code of civil procedure to be the judgment of a "foreign Court" and a "foreign Court" is defined to be a Court which has no authority in British India, and is not established or continued by the governor-General. A "foreign judgment" has no force or authority as such in British India. It is, of course, true that a "foreign judgment" may give a cause of action and a suit may be brought based upon it to obtain the same relief as was given by a "foreign judgment". If we read with words of section 13 as meaning that the "foreign judgment" shall be conclusive as to any matters thereby directly adjudicated upon in any proceedings based upon such judgment, the meaning of the section becomes perfectly clear. In our judgment it is only in proceedings based upon "foreign judgments" that the question of the effect of the "foreign judgment" can properly arise. We may here point out that if the Code printed in Rampur is simply a copy of our Code and contains the same definition of "foreign judgment" and "foreign court", it is difficult to see how section 13 applies at all. We would be inclined, if such be the case, to infer that the Code was only printed as a guide to judicial officers in Rampur when dealing with cases in the ilaqa. For these reasons we are of the opinion that the plaintiffs are not entitled to the declaration they ask for. If they are not so entitled they clearly are not entitled to the injunction claimed. ( 10 ) IN Padmini Mishra v. Ramesh Chandra mishra, while dealing with Sections 13 and 14 of the Code, it was observed as hereunder: "the law of this country in Sections 13 and 14 of the C. P. C. , which is not merely the rules of the procedure, but rules of substantive law recognizes the conclusiveness of a foreign judgment as to any matter thereby directly adjudicated upon between the same parties. In order that the foreign judgment shall be held to be not conclusive, the plaintiff in this case could have taken any ground available under els. (a) to (f) of the said Section. In order that the foreign judgment shall be held to be not conclusive, the plaintiff in this case could have taken any ground available under els. (a) to (f) of the said Section. In the absence of any plea taken by the plaintiff in the plaint and in the absence of proof of the material facts which would bring her case within the exceptions enumerated in the said section, this Court has no scope for taking a view different from that of the lower appellate Court. In all the reported cases relied upon by the learned counsel for the appellant, specific facts were pleaded and proved to bring the case within the exception u/s 13 of the C. P. C. in the facts of this case and on the basis of the materials placed on record, the belated attempt of the learned counsel for the appellant to bring the case within one or the other exceptions u/s 13 of the C. P. C. must be held to be futile. I would thus confirm the judgment of the lower appellate court and dismiss this appeal. ( 11 ) IN "setabganj Sugar Mills v. Benazir ahmed, it was held as follows:"a foreign judgment does not occasion a merger of the original cause of action. The plaintiff has therefore his option, either to resort to the original ground of action or to sue on the judgment recovered, provided that the judgment has not been satisfied. Thus, a suit on a cause of action remains competent in a domestic tribunal even though a judgment has been passed on it by a foreign Court. ( 12 ) IN East India Trading Co. v. Badat and co. , while dealing with the aspect of foreign judgment and suit on original cause of action, the Division Bench of the Bombay High Court held as hereunder:"it is open to a party who has obtained a foreign judgment to sue in the alternative on the original cause of action which resulted in his obtaining the foreign judgment. On principle there is no reason why the plaintiffs should be debarred from relying on the arbitration award as the original cause of action which resulted in the foreign judgment being obtained. On principle there is no reason why the plaintiffs should be debarred from relying on the arbitration award as the original cause of action which resulted in the foreign judgment being obtained. It may well be said that an award which is incomplete and unenforceable cannot be made a subject-matter of a suit, and that before a party can file a suit on the award he must make the award enforceable. If that be the true principle, that objection cannot survive where obtaining a foreign judgment the plaintiffs have made the award enforceable and they are suing on an award which is not enforceable but which has been made enforceable and which has been completed in every legal manner. But it is not correct to say that even though the award has been made enforceable and has been completed, still the party cannot sue on it because this award was not enforceable as such that it could not be enforced without the aid of a competent Court in the foreign country. " ( 13 ) IN M/s. Gopal Singh v. Punjab National bank, while dealing with the effect of foreign judgment it was held as hereunder: "a foreign judgment only creates a new obligation to pay but does not extinguish the original cause of action for the debt. A foreign judgment involves no merger of the original cause of action and creditor who obtains a foreign judgment has two remedies open to him, that is, either to bring an action in a domestic Tribunal on the foreign judgment or to bring an action in the domestic Tribunal on the original cause of action. " ( 14 ) THUS a right to sue on the strength of a foreign judgment is also available to the party and a careful reading of the pleading would go to show that the petitioner/plaintiff is trying to get the rest of the amount since the assets available at Switzerland are not sufficient. In this view of the matter, I am definitely satisfied that these parties are necessary parties to be brought on record for the purpose of proper adjudication of the matters in controversy between the parties. In this view of the matter, I am definitely satisfied that these parties are necessary parties to be brought on record for the purpose of proper adjudication of the matters in controversy between the parties. The next question which may have to be considered is that whether the application is to be allowed in view of Section-21 of the Act, ( 15 ) SECTION 21 of the Act-reads as hereunder: effect of substituting or adding new plaintiff or defendant - Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him/be deemed to have been instituted when he was made a party: provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake in good faith it may direct that the suit as regards such pontiff or defendant shall be deemed to have been instituted on any earlier date. (1) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owning to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff. ( 16 ) IN B. Satyanarayana Murthy s case (1 supra), the Division Bench of this Court in c. M. P. No. 7497 and 7498 of 1976 in A. S. No. 540 of 1973, dated 15-09-1976 while dealing with a suit for partition and appeal against the decree pending when an application was filed to implead some parties on the ground of change of law, while deciding the question that the application was time barred and whether the same can be allowed, it was held as hereunder: "the petition is not maintainable. In the present case, the proposed defendants are necessary parties to the suit and they should have been brought on record within time. Their addition after the expiry of the period of limitation would be fatal to the suit unless the court holds that the omission to implead them was originally due to a mistake made in good faith. In the present case there is no question of mistake and much less one made in good faith on the part of the plaintiffs. Their addition after the expiry of the period of limitation would be fatal to the suit unless the court holds that the omission to implead them was originally due to a mistake made in good faith. In the present case there is no question of mistake and much less one made in good faith on the part of the plaintiffs. Order 1, Rule 10 C. P. C. which empowers the court to add either necessary or proper parties to the suit, confers a discretion upon the court and this discretion is made subject to the provisions of Section 21 of the limitation Act of 1963. The discretion to add parties is not an untramelled discretion. It is conditioned and made subject to Section 22 of the Limitation act. To allow the appellants to add parties at this stage would be to reopen the whole trial and send the case back for a fresh investigation. Such a course is clearly countenanced. " ( 17 ) IN Gummidi Ramulu s case (2 supra) while dealing with a similar question, this court held as hereunder: "having regard to the change in law between Section 22 (1) of Limitation act, 1908 and the provision of section21 (1)of the Limitation Act, 1963 by insertion of proviso, Court agrees with the contention of the learned counsel for the petitioner that if a party was not impleaded on account of a mistake made in good faith the party can be impleaded under Order 1 rule 10 CPC subject to the question of limitation being decided at the time of the disposal of the suit. Therefore the crp is allowed and the fifth respondent is impleaded as fifth defendant in the suit and if a contention is taken by any of the defendants that the claim in so far as the fifth defendant is concerned is barred by limitation, the trial Court shall frame an issue on that question and decide the question along with the suit. " ( 18 ) ON overall appreciation of all the facts and circumstances, the plaintiff who could have impleaded these parties originally in the suit on the date of presentation definitely by bonaf ide mistake had not impleaded these parties and evidently on advice, the petitioner-plaintiff had thought of impleading these parties who are none other than the close relatives of the 1st defendant. A specific averment is made that these parties also are liable to pay the amount on the strength of a foreign judgment or a decree as the case may be. It is needless to say that this aspect may have to be decided at the appropriate stage while deciding the suit. ( 19 ) IN the light of the foregoing discussion, i have no hesitation in holding that the dismissal of the application to implead the proposed parties definitely cannot be sustained and accordingly the impugned order is hereby set aside and the revision petition is allowed. Costs made easy. ( 20 ) THIS Court records its appreciation for the assistance rendered by Mrs. Rama, Amicus curiae in this regard.