1. NADEEM AZHAR SIDDIQI, J.--- The plaintiff has filed this suit for recovery of Dhirhams 3,70,000. The plaintiff claims that he supplied herbal medicine to the defendant's firm worth Dhirhams 2,34;592 but the defendant failed to pay the price and plaintiff filed Suit No,1544 of 1989 in Dubai Court which was decreed on 30-3-1991 in the sum of Dhirhams 1,70,671.78. Both the plaintiff and defendant filed Appeals bearing Nos,259 of 1991 and 261 of 1991 before the Appellate Court Dubai. The appeals were disposed of on 24-5-1992. The amendment of decree was made on 18-4-1993. The plaintiff filed Execution No,632 of 1993 and got attachment of car which was sold against a price of Dhirhams 30,000 and the certificate was issued on 13-8-1994. It was further pleaded that defendant No,1 came to Pakistan with mala fide intention to defeat the decree passed against him. The plaintiff has filed his suit on the basis of a foreign judgment.
2. The defendant filed his written statement and taken legal pleas i,e, the suit is barred by principle of res judicata. The Court has no jurisdiction, the plaintiff has no cause of action, the suit is hopelessly time-barred, and has been filed by an incompetent persona The defendant in his written statement has not denied that plaintiff has exported Herbal medicine from India to Pakistan through Dubai and the defendant has only acted as agent of plaintiff. The defendant in the written statement pleaded that the plaintiff has filed the suit against the defendant to save himself from the adverse action in India. The defendant further submits that the plaintiff has recovered the amount from his partner in Dubai and nothing is due and payable by the defendant. The defendant admits that the car of his partner was attached and an amount of Dhirhams 30,000 was realized.
3. The case was fixed for settlement of issues on 7-4-2003 when the learned counsel for the plaintiff made a statement that the suit is for enforcement of judgment and decree of the foreign Court and no question of disputed fact is involved in the matter and only legal point is to be argued. He further states that no issue is required to be framed and the matter may be posted for hearing of arguments. On the next date i,e, 28-4-2003 Mr. Shafaat Hussain learned counsel for the defendant appeared and not disputed the above contention of Mr. Latif A. Shakoor and seeks time to prepare himself to argue the matter. In view of above neither issues were framed nor evidence was recorded.
4. I have heard the learned counsel for the parties and perused the record.
5. Mr. Latif A. Shakoor learned counsel for the plaintiff argued, that in view of section 13 of the Civil Procedure Code, 1908 a suit based on foreign judgment could be filed and maintained. He submits that the foreign judgment is conclusive and is binding upon the defendant and on the basis of foreign judgment a suit can be maintained in Pakistan against the defendant. He further submits that the defendant in his written statement has admitted the liability and no evidence is required.
6. He further submits that the foreign judgment is also a conclusive prove to the fact that defendant is liable to pay the amount to the plaintiff.
7. On the other hand Mr. Shafaat Hussain learned counsel for the defendant submits that the suit is barred by principle of res judicata as the controversy was already adjudicated between the parties. He urged that since the defendant is not residing within the jurisdiction of this Court, this Court has no jurisdiction and no cause of action has been accrued to the plaintiff within the jurisdiction of this Court. He further contended that suit is hopelessly time-barred in view of Article 117 of the Limitation Act. The contention of Mr. Shafaat Hussain is that Appellate Decree was passed on 24-5-1992 whereas this suit was filed on 29-5-2000 and even if the appellate decree is considered to be the starting point of limitation the suit is time-barred.
8. Mr. Latif A. Shakoor the learned counsel for the plaintiff in reply submits that the principle of res judicata is not applicable to the present case. He contends that a suit under section 13 of C.P.C. on the basis of foreign judgment could not be maintained unless conclusive between the parties.
9. Regarding the cause of action and jurisdiction the learned counsel for the plaintiff submits that the defendant to show that he is not residing within the jurisdiction of this Court has not filed any proof to this effect.
10. Regarding limitation he submits that the proceedings were initiated in Dubai Court and last order in execution was passed on 13-8-1994 when the car was attached and sold and this suit was filed on 29-5-2002 within 6 years from the last order. He also referred to sections 19 and 20 of the Limitation Act to show that the suit was filed within time and that the payment of debt before expiration of period of limitation amounts to acknowledgment of debt and gives rise of fresh period of limitation.
11. Mr. Latif A. Shakoor learned counsel for the plaintiff relied upon the following reported cases:--
(1) Baijnath Karnani v. Vallabhdas Damani AIR 1933 Mad. 511;
(2) Mian Nazeer Ahmad v. Abdur Rasheed Qureshi 1986 CLC 1309; (3) Grosvenor Casino Ltd. v. Abdul Malik Badruddin 1997 SCM R 323; (4) Emirates Bank Ltd. v. Messrs Oosman Brothers 1990 M LD 1779;
(5) Mst. Amir Begum v. Lt.-Col. S. Mir Fateh Shah PLD 1968 Kar. 10; (6) Abdul Ghani v. Haji Saley Muhammad PLD 1960 (W.P.) Kar. 594.
12. I will first take up the issue of limitation as it will go to the route of the' case. Section 19 deals with effect of acknowledgment in writing. The requirement of section 19 is that an acknowledgment to be valid must relate to the time when the right was still enforceable and that the acknowledgment must be in writing. In this case the plaintiff has not produced any writing by which the defendant has acknowledged the debt. Section 19 of the Limitation Act is, therefore, not applicable to the facts of the present case and the plaintiff cannot claim protection under section 19 unless a writing acknowledging debt is produced. Section 20 of the Limitation Act, 1908 deals with effect of payment on account of debt or of interest on legacy. The explanation of the section provides that debt includes money payable under a decree or order of Court. Mr. Latif A. Shakoor refers to Annexure "P/8" to the plaint which is a certificate granted by the Court of UAE Dubai to the effect that on 13-8- 1994 the car belongs to the defendant was attached and sold and a sum of Dhs.30,000 was recovered and since the execution is still pending the limitation for filing the suit in Pakistan under section 13, C.P.C. starts from the attachment, sale and realization of the amount and the suit has been filed within six years of such last order in execution. Mr. Shafaat argued that the benefit of section 20 of Limitation Act cannot be availed unless debt has been made before expiration of prescribed period of limitation coupled with acknowledgment of payment in writing, which is lacking in this case. In the present case the trial Court passed judgment on 30-3-1991 and the appellate judgment was passed on 24-5-1992. Article 117 provides that the suit upon a foreign judgment can be filed within six years from the date of the judgment. Now the question is that whether the time starts running from the date of judgment of trial Court or from the date of judgment of Appellate Court. The starting point of limitation would be from the date of appellate judgment as the original judgment merged or superseded by the appellate judgment. The judgment capable of execution, which is conclusive, is the judgment of the Appellate Court. The starting point of limitation for filing suit under section 13, C.P.C. would be 24-5-1992 on which date the appellate judgment was passed and not 13-8-1994 the date on which the car of the partner of the defendant was attached and sold. In the case of Baijnath Karnani cited by the learned counsel for the plaintiff it was held that for the purpose of Article 117 the limitation will begin to run from the appellate judgment. The payment recovered by attachment and sale of car cannot be considered as the same was due to coercive measure adopted by the Court and not the voluntary act of the defendant or his partner and that the same cannot be equated with acknowledgment in writing. In the case of Muhammad Suleman v. Habib Bank Limited 1987 M LD 2757 it was held that payment made by the debtor towards loan before the expiration of the period of limitation can give a fresh starting point to the period of limitation provided such payment is coupled with acknowledgment in the handwriting of or in the writing signed by the person making the payment. Admittedly there was no such acknowledgment made by the defendant or his partner. The suit was therefore, filed beyond the period prescribed and was bared by Article 117 of the Limitation Act.
13. The other argument of Mr. Shafaat Hussain learned counsel for the defendant is that the suit is barred by principle of res judicata. Section 13 of the C.P.C. gives right to the plaintiff to institute the suit in Pakistan on the basis of foreign judgment treating it as a cause of action. The suit can only be filed on the basis of such foreign judgment, which is conclusive between the parties and not falling within the exception of section 13 of C.P.C. In the written statement legal pleas were taken but it was not stated that the judgment is covered by the exception of section 13, C.P.C. Under section 13, C.P.C. a foreign judgment is not enforceable per se but a suit on its basis has to be filed though it is conclusive with respect to a matter adjudicated upon between the parties subject to exception of section 13 of C.P.C. For filing a suit under section 13, C.P.C. the existence of a decree is essential as the basis of the action and that has to be one that is final and conclusive between the parties so as to operate as res judicata. In the case of Emirates Bank International Ltd. v. Messrs Osman Brothers and 9 others 1990 M LD 1779 the Court has held that suit can be filed in Pakistan on the basis of foreign judgment treating it as the cause of action if the conditions prescribed in section 13, C.P.C. are fulfilled. The judgment is conclusive between the parties otherwise it is res judicata between them and the Courts in Pakistan are bound by its findings. The contention of the defendant that the suit is barred by res judicata amounts to acceptance of the finality and conclusiveness of the appellate judgment passed by the foreign Court. I do not find any force in this argument. The other argument advanced by Mr. Shafaat Hussain is with regard to jurisdiction of this Court on the ground the defendant is not residing with in the jurisdiction of the Court. The defendant has not produced any document to show that he is not residing within the jurisdiction of this Court. The mere words of the defendant are not sufficient to non-suiting the plaintiff on this Court.
14. Furthermore this is a factual controversy and cannot be resolved without evidence. I also do not find any force in this argument.
15. The other case-law cited by the learned counsel for the plaintiff has no direct bearing upon the merits of the case in hand.
16. In view of my finding that the suit has not been filed within the period prescribed by Article 117 of the Limitation Act the suit is hereby dismissed with no order as to cost.