' SYED HAMID ALI SHAH, J.---Respondent No,1, is a trading company i,e, registered partnership (Shirka) under the municipal law of Dubai. Defendants Nos.2 and 3 are the registered partners of the concern. Defendant No,1 was allowed Banking facility, for establishing letter of credit, loan against Trust Receipt and Over Draft facility, in the year 1994. These facilities were renewed from time to time and lastly on 18-11-1997. The plaintiff bank instituted a suit (Suit No,207 of 1998- Commericial Plenary) in the Court of first instance for recovery of AED 4,531,671.65. The suit was decreed in the sum of AED 4,531,671.65 along with interest thereon @ 9% per annum from the date of institution till realization against defendant No,1 only. The suit was dismissed against defendants Nos.2 and 3 as learned Court found vide judgment and decree dated 28-7-1998 that defendants Nos.2 and 3 are not liable for the debts of the company in their personal capacity. The plaintiff assailed the judgment of the Dubai Court of First Instal. Ice, in appeal to the extent of dismissal of the suit against defendants Nos.2 and 3. Dubai Appellate Court decided the appeal (Appeal No, 1384 of 1998) vide judgment and decree dated 15-3-1999 and held the defendants Nos.2 and 3 jointly liable for the payment of the debts on the basis of clause (6) of the Trust Receipt. The present suit has been instituted on the cause of action based upon aforementioned foreign judgments.
2. Defendants Nos.2 and 3 contested the suit filed application for leave to defend the suit (PLA No,37-B of 2001), which was allowed vide order dated 8-2-2007. Defendant No,1 had not sought leave to appear and the suit was decreed against it on 10-4-2001. Following issues were framed on 8-2-2007, out of the divergent pleadings of the parties:--
(1) Whether the Court has jurisdiction to entertain and adjudicate upon the claim of the plaintiff?
(2) Whether suit is barred by limitation?
(3) Whether the decree in the instant suit can be passed on the basis of the foreign judgments, without touching the merits of the plaint?
(4) Whether the plaintiff has acquiesced in the right to enforce the foreign judgments against defendants Nos.2 and 3?
(5) Relief.
' The parties suggested that issues Nos.1 and 2 being legal issues, can be decided without recording of evidence. These issues were treated as preliminary issues at the request of the parties.
The parties were afforded opportunity to address arguments on 13-11-2007, 2-11-2007, 31-11-2007, 23-1-2008, 21-4-2008, 4-6-2008, 17-9-2008, 23-9-2008, 13-11-2008 and 19-12-2008 but the parties failed to address the arguments. Learned counsel for the defendants (Mr. Jehanzeb Khan Bharwana, (Advocate), however, has submitted written arguments.
3. According to the learned counsel for the defendants, the loan transactions took place in Dubai where the Ordinance (Financial Institutions (Recovery of Finances) Ordinance, 2001) is inapplicable, thus no cause of action has arisen in favour of the plaintiff within the territories of Pakistan. Letter of Credit, subject matter of the suit, was opened at Dubai and documents were processed in Dubai, therefore, this Court has no jurisdiction to entertain the suit. Case of "Al-Attar Sports Dress Trading v. Habib Bank Limited" 2005 CLD 1693 was referred to support this contention. The Courts in Dubai have decided the matter in absentia, therefore, the Courts in Pakistan cannot entertain a suit based on such judgments, the veracity whereof is doubted. Learned counsel placed reliance in support of this contention on the case of "Naeemullah Malik v. United Bank Limited" 2006 CLD 1592.
While referring to the case of " Habib Bank Limited v. Ali Muhammad" 2005 CLD 491, it was submitted that the Courts in Pakistan cannot assume jurisdiction, which is otherwise vested in a foreign Court, merely for the reason that the defendants have shifted to Pakistan. Defendants Nos.
2 and 3 have emphasized that defendant No,1, Virk House Trading LLC, is non-existent in Pakistan and the suit has been filed incompetently against it.
4. Learned counsel on the issue of limitation has submitted that claim of the plaintiff was lodged before the Court of First Instance at Dubai and it was asserted in the suit that claimed amount is due since 10-3-1998. The present suit was filed on 12-3-2001 after the lapse of three years and as such the same is barred by limitation and merits dismissal on this score alone.
5. Pleadings of the parties and documents appended therewith, foreign judgments and written submissions of defendants perused.
6.. The suit of the plaintiff is based on foreign judgments. Section 2(6) of C.P.C. Pertains to a foreign judgment and it refers to decree or order of a foreign Court. Three courses are open to a decree holder in whose favour foreign judgment has been passed. The decree holder can seek execution of the foreign judgment under sections 44 or 44-A of C.P.C., where these provisions are applicable.
Second available course is filing of the suit on the basis of foreign judgment, treating it to be the cause of action, subject to limitation under Article 117 of the Limitation Act. Thirdly, a suit can be filed in the Court of A competent jurisdiction in Pakistan on the basis of original cause. Foreign judgments can be enforced in Pakistan by filing a suit, in which the cause of action is the foreign judgment. The reference in this regard can be made to the cases of "Mian Nazir Ahmad v. Abdur Rashid Qureshi" 1986 CLC 1309, "Ganguli Engineering Ltd. v. Smt. Sushila Bala Dasi and another" AIR 1957 Cal. 103 and Popat Virji v. Damodar Jairam" AIR 1934 Bombay 390. The Banking Court can entertain a suit in a similar manner as has been held in the case of "Emirates Bank Intl. Limited v.
Messrs Osman Brothers and 9 others" 1990 M LD 1779. Section 13 of C.P.C. Recognizes the enforceability of a foreign judgment in Pakistan provided it fulfils the conditions enumerated therein, namely:-
(i) it has been pronounced by a Court of competent jurisdiction;
(ii) it has been given on the merits of the case;
(iii) it is founded on correct view of international law, or does not amount to refusal of recognized applicable law of Pakistan;
(iv) proceedings in which judgment was obtained are not opposed to principles of natural justice;
(v) it has not been obtained through fraud; and
(vi) it does not sustain a claim founded on breach of any law in force in Pakistan.
' A foreign judgment, which complies with the above conditions is binding when the matter adjudicated upon was directly adjudicated between the same parties.
7. I have perused the foreign judgment under reference, which transpires that the decision was rendered after proper appraisal of the documents, pleadings and other material. Defendants were served with a notice and they failed to appear before the Court. The decision of the Court of the First Instance in Dubai starts with the following sentence:- "After due examination of the papers, listening to the pleadings, as shown by all papers 91 ' Learned Court further observed in the judgment that the defendants were duly informed of the case and yet none of them appeared to rebut or refute the case. The first question, which needs to be answered is whether the decision/foreign judgment meets the conditions of section 13, C.P.C.
And the defendants were provided opportunity of being heard according to the recognized principles of natural justice and that the judgment was given on merits. A judgment is deemed to be on merit, even in cases where no defence has ever been on the file, yet the Court pronounced the judgment on judicial consideration of plaintiffs evidence. The Court while passing the judgment has not decided the matter solely due to default in appearance of the defendant. Thus, the test to be employed for this purpose is to find out whether the judgment is pronounced as penalty for the conduct of the party or is it based on the consideration of the truth of falsity of the plaintiff's case while the defendant despite opportunity, refrained from contesting the lis.
8. The defendants were afforded the opportunity of being heard by the Court of First Instance but the opportunity was not availed. It is wrong to contend that any judgment or order passed without hearing the other side, offends the principles of natural justice. The law requires that opportunity be afforded to a party to a lis. If such party despite such opportunity opts to stay away from the proceedings wilfully, it cannot subsequently come forward when an adverse order is passed against it and then challenge such order or judgment on the plea of denial of the right of hearing.
The aim of rules of natural justice is to secure justice. The rule was originally based on two principles namely, (1) No one should be condemned unheard (Nemo debet esse judix propria, causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram pattern). Then a third principle/rule emerged that judical or quasi-judicial forum, must hold enquires in good faith, unbiased and not arbitrarily or unreasonably. Indian Supreme Court, in the case of "Chairman, Board of Mining Examination and Chief Inspector of Mines v. Rajmee" AIR 1977 SC 965, observed as under":-- "Natural justice is no unruly horse, no lurking land mine, nor a judicial cure all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of, unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt that is the conscience of the matter."
' The essential point to be kept in consideration to meet the ends of justice would be that the person concerned should have a reasonable opportunity of presenting his case and such measures should be applied that a reasonable man would regard a fair procedure in particular circumstances. It will be useless to provide further opportunity to a person, who was once provided adequate opportunity and failed to avail the same without any lawful justification. The Court which passed an order or a judgment has acted fairly then it will be considered that there is no breach of principles of natural justice. The proceedings, action or order/judgment would not vitiate in such E circumstances on the touchstone of principles of natural justice.
9. The Bench of three Judges headed by Dr. Hassan Basuni (President) of the Court of the first instance in Commercial Plenary Jurisdiction, examined the documents, went through pleadings and other relevant record, held the defendants liable for the payment of the suit amount. Learned Court considered Account Opening Application, Trust Receipt of debt dated 31-12-1997 and copy of the Statement of Account dated 10-5-1998 and then determined the liability of the defendants. The judgment by all intents and purposes is a judgment on merit. The liability of the defendants was directly adjudicated upon. Learned Dubai Appellate Court held defendants Nos. 2 and 3 jointly liable for the payment of the suit amount. The certified copies of the foreign judgments along F with their translation are available on record. The judgments are presumed to be pronounced by the Court of competent jurisdiction within the contemplation of section 14 of C.P.C. The defendants have failed to rebut the presumption. There is nothing on record of show that foreign judgments, upon which the plaintiff has filed the suit fall within the exception enumerated in section 13 of C.P.C.
The judgment is conclusive and binding on the defendants and this Court while entertaining the claim on the basis of foreign judgment cannot sit in appeal, over findings and conclusions of the fact, recorded by the Foreign Court.
10. The suit on the basis of cause of action upon a foreign judgment is governed by Article 117 of the Limitation Act, which provides a period of six years from the date of the foreign judgment. In the instant case the foreign judgment was pronounced on 29-8-1998 while the suit under reference was filed on 12-3-2001. Thus the suit was instituted well within the period of limitation.
11. For the foregoing, both the preliminary issues are decided against defendants Nos.2 and 3. The suit of the plaintiff upon foreign judgment has competently been instituted within the period of limitation.
12. To come up for further proceedings on 20-1-2009.