' SHAUKAT UMAR PIRZADA,, J.--- This appeal has been preferred against the judgment and decree dated 21-11-2003 passed by the learned Civil Judge, Sahiwal, whereby the suit filed by respondents Nos.1 to 8 for rendition of accounts, recovery of money and damages/ compensation was decreed in favour of the said respondents and against the appellant/ Sadiq Khan.
2. Brief facts giving rise to this appeal that respondents filed a suit for rendition of accounts and recovery of Rs,43,53,164 ($64,973) as ompensation/damages. As per averments of the plaint one Kalu Khan was a joint owner in equal share with Atta Muhammad of land measuring 1081 acres of Rich Rice Ranch in Willo situated in the County of GelIn California U.S.A. In addition to the said land, he owned moveable assets of various descriptions. He bequeathed a will in respect of his entire property and created a trust and appointed one Fazal Muhammad as trustee in the will. The beneficiaries nominated under the said trust were the two brothers of said Kalu Khan, namely, Abdul Majeed Khan, Ahmad Khan and three sons of his deceased brother, who are Sadiq Khan (appellant), Rana Muhammad Haneef Khan and Aziz-ur-Rehman predecessor of respondents Nos.1 to 8. The shares of the beneficiaries as determined in the trust were 1/3rd to each brother and 1/9th Co each nephew of the deceased Kalu Khan. On 13-8-1962 the trustee Fazal Muhammad terminated the trust and consequently the aforementioned nephews jointly inherited 180 acres apart from the farm machinery described in the Quit Claim Deeds. As per averments of the plaint, in early March, 1958, predecessors of the respondents Nos.1 to 8 Aziz-urRehman and his two brothers (appellant/ Sadiq Khan, who is a U.S.A. Citizen and Muhammad Hanif Khan), verbally agreed that being the citizen of U.S.A., the appellant would look after, supervise and manage the shares of the two brothers inherited by them from said Kalu Khan in U.S.A. And would perform to said duties without any salary or remuneration. In return, the said two brothers based in Pakistan would lookafter, supervise and manage Sadiq Khan/appellant's interest and property in Pakistan without any salary or remuneration. It was also agreed that income generating from the joint farming in U.S.A. Would be remitted in foreign currency to Hanif Khan and Aziz-ur-Rehman Khan through cheques/drafts at Chicha Watni/Sahiwal. To enable the appellant/Sadiq Khan to perform his said functions in U.S.A. On behalf of his said two brothers (Muhammad Hanif Khan and Aziz-ur- Rehman Khan), they executed power of attorney in favour of the appellant, while the appellant also executed power of attorney in their favour to enable them to act on his behalf in Pakistan. It has been. Further averred that appellant did not perform his function honestly and did not apprise his brothers, in Pakistan about the real income generating from the joint farming. Consequently, said brothers revoked their power of attorney executed in favour of the appellant/Sadiq Khan on 3-11- 1973 and appointed respondent No,3/Naeem-ur-Rehman as their attorney and demanded from the appellant/Sadiq Khan to pay their share of the past income through respondent No,3/Naeem- ur-Rehman. The appellant paid $3000 to the predecessor of the respondents Nos.1 to 8 Aziz-ur- Rehman and $9000 to his brother Muhammad Hanif Khan. However, the joint farming was partitioned and each brother took his part of the land measuring 60 acres. It has been also averred in the plaint that the appellant/Sadiq Khan acquired 125 acres in his name in Maxwell Calousa County without having any significant income from any source, other than the joint farming. It has been further averred that irreconcilable differences erupted between appellant/Sadiq Khan and his wife, who filed a suit for dissolution of marriage in early ninties in the Superior Court of California.
During the proceedings of the said case, on 21-4-1992, she presented certain documents in Court, which were disclosing the share of the two brothers from 1962 to 1973 that was computed through protracted investigation as $98,900. But the testimony filed in the Court by the appellant/Sadiq Khan stating that the money from Kalu Khan's estate which belonged to his two brothers was withdrawn and sent to them, as referred in the Court's order dated 4-3-1993, is false and absurd. It has been reiterated that appellant/Sadiq Khan has sent to the predecessors of the contesting respondents only $9580 from 1962 to 1973 and after deducting the said amount out of $98099, the appellant/Sadiq Khan is still liable to pay $88,599. Through the instant suit, the respondents have claimed an amount of $64,973, which is equal to Pak Rupees 43,53,164 at the rate of Pak Rs,67 per Dollar prevailing at the time of the institution of the suit as their share in the aforesaid income of the joint farming and $2,07,914 equivalent to Pak Rupees 1,39,30,211 as compensation/ damages on account of loss and agony caused to them by the appellant/Sadiq Khan which is spreading over a period of 40 yeaRs, Thus, the total amount claimed comes to 2,72,887 equivalent to Pak Rupees 1,82,83,375. This suit was contested by the appellant/Sadiq Khan and the Bank by filing separate written statements and both the defendants raised various objections including bar of limitation, absence of jurisdiction and non-maintainability of suit etc., besides resisting the suit on merits.
While refuting the claim of the respondents, the appellant/Sadiq Khan categorically denied the verbal agreement between the brothers as alleged by the respondents in the plaint. It may not be out of place to mention here that respondent No,9/bank has been impleaded as the dollar/foreign currency account of the appellant/Sadiq Khan was lying with respondent No,9/bank. However, the said dollar/foreign currency account and House No,74 situated in Ghalla Mandi Chichawatni were attached by the learned trial court on the application of respondents Nos.1 to 8 under Order XXXVIII Rules 5 and 6, C.P.C., which was filed at the initial stage of the suit but the order of attachment of both the said assets was passed by the learned trial court without notice to the appellant. In view of divergent pleadings of the parties the learned trial court framed following issues:--
(1) Whether the suit of plaintiff is within time? OPP
(2) Whether this court lacks territorial jurisdiction to try this suit? OPD
(3) Whether the plaintiff has not come to the court with clean hands? OPD
(4) Whether any verbal agreement was made between the plaintiff and defendant No,1 and Aziz- ur-Rehman and resulting in the Exchange of power of attorney in March, 1959, if so, on what terms?
OPP
(5) Whether fiduciary relationship was created between the plaintiff and defendant No,1 and the defendant No,1 is bound to render account of joint farming business for the period of his agency i.e. w.e.f. 1959 to 1973? OPP
(6) Whether the plaintiff is entitled to recover from defendant No,1 Rs,23606763 $352340? OPP
(7) Whether the suit is not maintainable in its present form? OPD
(8) Whether the plaint does not disclose cause of action and is liable to be rejected? OPD-1
(9) Whether the plaintiff has no cause of action to file this suit? OPD-1
(10) Whether the suit is based on mala fide? OPD-1
(11) Whether suit is baseless, frivolous and vexatious and defendant No,1 is entitled to special costs?
OPD
(12) Whether the written statement on behalf of the defendant No,1 has been filed by the authorized person? OPD
(13) Whether the appointment of counsel on behalf of defendant No,1 is legal and that counsel are competent to plead on behalf of defendant No,1? OPD
(14) Whether the persons representing defendant No,1 are duly authorized agents of defendant No,1? OPD
(15) Relief.
Both the parties led evidence in support of their respective contentions and the learned trial court after hearing arguments of learned counsel for the parties decreed the suit in favour of the contesting respondents and against the appellant/Sadiq Khan, hence, this appeal.
'3. The learned counsel for the appellant has raised the following contentions:--
(a) The suit is badly barred by time, as the joint farming arrangement came to an end between the brothers in 1973 by finally settling the account which was followed by partition of the land in question between them that was eventually formalized in 1975, but the suit has been instituted on 17-9-2001 after about 28 years from the termination of the joint farming arrangement.
(b) Learned trial court had no territorial jurisdiction whatsoever and the impugned judgment and decree are without jurisdiction, as admittedly the appellant is a citizen of U.S.A., property in question is situated in U.S.A. And dispute of income/gains/ interest from the said land also accrued in U.S.A., therefore, the courts in Pakistan have no territorial jurisdiction on the subject matter of the suit.
(c) Without prejudice to the above, even otherwise, the suit is not maintainable, as the joint farming came to an end and land in question was partitioned between the said brothers and final settlement of account was effected between them in 1973, which was never questioned or objected to by any one (including the predecessor of the respondents, namely, Aziz-ur-Rehman Khan during his life time) till the filing of the instant suit, therefore, the said matter has become a past, closed and finished transaction, which the respondents Nos.1 to 8 cannot open at their option and particularly, after passing of about 28 yeaRs,
(d) Even otherwise, respondents Nos.1 to 8 have no locus standi to file the instant suit as the final settlement of account which took place between the said brothers in 1973 was never objected to or questioned by their predecessor Aziz-ur-Rehman in his life time, therefore, the said respondents cannot be allowed to re-open the same as they have no independent right or claim at their own against the appellant/Sadiq Khan.
(e) As the predecessor of the contesting respondents Aziz-urRehman never voiced any objection regarding the said final settlement reached between the three brothers, therefore, the said respondents are estopped to file this suit about a claim which their predecessor never raised in his lifetime. In view of the aforementioned facts and circumstances, the principle of waiver is also applicable in full force in the matter in hand.
(t) Ex parte proceedings have been passed by the learned trial court in haste without realizing the fact that the attorney of the appellants remained in Pakistan with the sole object to complete his deposition/cross-examination, which was deliberately and with mala fide intention delayed by contesting respondents by applying delaying tactics and the case was kept on adjourning for his cross-examination from 1-4-2003 to 27-4-2003, 8-7-2003 to 31-7-2003 and 7-9-2003 to 28-9- 2003, 5-4-2003, 16-4-2003, 22-4-2003, 10-7-2003, 12-7-2003, 21-7-2003, 11-9-2003, 16-9- 2003, 23- 9-2003 and 26-9-2003, despite the fact, he was present in Court on all these dates, therefore, the ex parte proceedings were illegal and unjust and the impugned ex parte judgment and decree are defective and arbitrary as being rendered without hearing the appellants. The impugned ex parte judgment and decree are against the record and a result of non-reading and misreading of evidence/record.
(g) Agricultural land in question situated in County Glenn State of California U.S.A. Was initially a joint property and was looked after by appellants' predecessor Sadiq Khan. He managed the said property from 1962 to 1973 also on behalf of the said two brothers who had been receiving their share of income out of the said property, as shown in the income return filed by the appellant/Muhammad Sadiq in U.S.A. Which was also accepted by the Court of U.S.A. After partition of the land, the joint farming arrangement came to an end in 1973 and settlement of account was effected between brothers and a cheque issued by Sadiq Khan/appellant to this effect to his brother clearly contained the words final settlement of payment, which no one objected till the filing of the suit.
(h) Besides being past and closed transaction, the final settlement cannot be re-opened in Pakistan as the same has been accepted as correct and accorded judicial sanctity/approval by the Court of U.S.A. Vide order dated 4-3-1993 Exh.P.53-A. This has attained finality as was never challenged by the said brothers before the said Court till to-date despite, having notice thereof.
(i) Appellant/Sadiq Khan was represented before the learned trial court through duly authorized person and counsel representing the appellant/Sadiq Khan were validly appointed and competent to represent him.
' Although the respondents produced no evidence to prove their claim of compensation/damages even then the learned trial court decreed the same entirely.
4. Learned counsel for the contesting respondents has controverted the contentions of the learned counsel for the appellant and has relied upon the judgment and decree passed by the learned trial court.
5. We have heard learned counsel for the parties and perused the record.
6. In the instant suit, the appellants have seriously objected to the jurisdiction of the court and has contended that the courts of Pakistan have no jurisdiction whatsoever either on the subject matter or on the cause of action, therefore, the suit is not maintainable. It is a settled law that the question of jurisdiction; if raised be decided first, therefore, it would be appropriate that Issue No,2 be taken and decided first.
' Issue No,2.
' The onus of this issue was on the defendants/appellants. The learned counsel for the appellants has vehemently contended that the learned trial court had no jurisdiction whatsoever and the impugned judgment and decree is without jurisdiction, as admittedly the appellant/Sadiq Khan is a citizen of U.S.A., property in question is situated in U.S.A. The disputed income/gain/interest of the said land also accrued in U.S.A., final settlement of account has been accorded judicial sanctity/approval by the Court of U.S.A., which has not been challenged there by anyone, therefore, the courts in Pakistan have no territorial jurisdiction to adjudicate the subject matter of the suit which already stands resolved. These contentions of the appellants are fully supported by the record thus, carry weight. The jurisdiction of the court has been described in sections 16 and 20, C.P.C. Which are reproduced hereunder:---
16. Suits to be instituted where subject-matter situate.--- Subject to the pecuniary or other limitations prescribed by any law, suits-
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(t) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situated, [or in the case of suits referred to in clause (c) at the place where the cause of action has wholly or partly arisen]: ' Provided that a suit to obtain relief respecting or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, [or in the case of suits referred to in clause (c) at the place where the cause of action has wholly or partly arisen] or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.
' Section 20 states as follows:---
20. Other suits to be instituted where defendants reside or cause of action arises.--- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
' The above provisions of law clearly stipulate that the courts in Pakistan cannot entertain suits in respect of the properties situated 'outside Pakistan and matters/disputes related thereto.
Admittedly, the property in dispute is situated in U.S.A. And disputed income/gain/ interest have also accrued in U.S.A., therefore, Courts of Pakistan have no jurisdiction to entertain this suit. This view has been supported by Mst. Gulzar Begum and others v. Muhammad Ghaus and 10 others 1993 CLC 448, which holds as follows:- "In fact, no effective declaration could be allowed through a decree by any court in Azad Kashmir in respect of the suit land which admittedly is situated in Tehsil and District Sargodha. There is no dispute that suit for recovery or declaration of any right or interest in any immoveable property must be instituted' in civil court of competent jurisdiction within the local limits of whose jurisdiction, the property in dispute is situated. However, the powers can be given to a civil court to decide the rights and interests in the property lying outside the jurisdiction of that court by a superior court through a transfer order. In the instant case, the courts functioning at Sargodha are situated in Pakistan. Therefore, the dispute in respect to the suit land situated in Tehsil and District Sargodha was wrongly instituted by the plaintiffs-appellants in the court of Additional Sub-Judge, Mirpur, who had no territorial jurisdiction to adjudicate upon the same."
7. Admittedly, the respondents came to know about the income in question in early nineties through the said divorce proceedings, but no one challenged the same till the filing of the instant suit which supports the contention of the appellants that the final settlement was reached with concurrence of the three brothers which was subsequently accepted also by the Court of U.S.A.
And upheld through judicial verdict. Therefore, a subject matter which pertained to U.S.A. And accepted by the Court of U.S.A., acted upon and attained finality long ago, cannot be re-opened and reheard by the courts of Pakistan which otherwise lack territorial jurisdiction over the subject matter. However, the reason for filing the instant suit has been revealed by P.W.3/Zafarullah Khan in his statement, wherein he has categorically admitted that during the cleaning of the shops, he found two bank documents in respect of the appellant/ Sadiq Khan's account, which he handed over to his brother Naseem Ahmad and there-after the instant suit was filed. This admission clearly reflects mala fide intention of the respondents that having come to know about the heavy deposit of foreign currency in the account of appellant/Muhammad Sadiq, they filed the instant suit to grab the said money, which view is further supported by this fact that they filed an application for attachment of accounts at the initial stage of the suit and obtained attachment order of the appellant/Muhammad Sadiq's accounts lying with respondent No,2 on 31-10-2001 without providing an opportunity of hearing to him. It goes without saying that the respondents successfully kept the appellant/Sadiq Khan deprived of use of his huge amount during his lifetime.
8. In view of the above referred provisions of sections 16 and 20, C.P.C. And admitted positions, such as appellant's predecessor Sadiq Khan was a citizen of U.S.A., property in question was situated in U.S.A., the income regarding which a dispute has been raised, pertained to years 1962 to 1973, also accrued in U.S.A., the final settlement of account reached between the three brothers, which led to the partition of E the property in question between them also affected in U.S.A., and acceptance of the settlement account by the Court of U.S.A., that remained challenged and attained finality, we have come to the irresistible conclusion that the courts of Pakistan have no jurisdiction in the instant matter and the findings of the learned trial court on this issue are erroneous, therefore, the finding on this issue is reversed and this issue is decided in favour of the appellants/defendants.
' Issue No, 1.
' The onus to prove this issue was on the respondents/plaintiffs. Admittedly, the financial relationship and joint farming arrangement between the three brothers came to an end in the year 1973 whereafter, final settlement of account took place and a cheque was accordingly issued by the appellant/Sadiq Khan to his two brothers clearly containing a note to the effect that the said payment was made as settlement of account between them. This cheque is exhibited as Exh.D.93 and the receipt of which has also been admitted by P.W.2/Naseem Ahmad in his statement, therefore, any claim by the respondents against the appellant could be filed within the period as prescribed by the Limitation Act, 1908, which is normally for such-like suits is three years, but this suit has been filed after about 28 years, which is badly barred by time. However, the respondents claimed benefit of Section 13 of the Limitation Act and maintained that the suit is within time.
Section 13 of the Limitation Act reads as follows:-- "13. Exclusion of time of defendant's absence from Pakistan and certain other territories.--- In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from Pakistan and from the territories beyond Pakistan under the administration of the Federal Government shall be excluded."
' By relying upon the aforementioned provisions of law, the respondents have contended that admittedly the joint farming arrangement between the three brothers came to an end in 1973 and the brothers living in Pakistan, namely, Rana Muhammad Hanif Khan and Aziz-ur-Rahman revoked their power of attorney given to the appellant/Sadiq Khan on 13-11-1973, even then the suit is within time due to absence of the appellant/Sadiq Khan in Pakistan. As per the statement of Zafarullah Khan as P.W.3, the appellant/Sadiq Khan visited Chichawatni/Pakistan in 1983 for a period of one month and his second visit was in 1987, when he stayed for one month and his third visit was in 1989, when he stayed-for 20/25 days. Thereafter, he came in 1992 and stayed in Pakistan for six months. This contention has also been supported by Rana Muhammad Hanif, while deposing as P.W.1. Learned counsel for the respondents has argued that his total stay in Pakistan is less than a year and the respondents (plaintiffs) are entitled for the exclusion of such time, which the appellant (Sadiq Khan) has spent out of Pakistan.
9. Learned counsel for the appellants has strenuously opposed this contention and argued that this contention amounts to playing fraud upon the statute, as admittedly, the appellant/Sadiq Khan is a citizen of U.S.A. He is permanently residing in U.S.A. And visited Pakistan only 4 times during his lifetime, therefore, the provisions of section 13 of the Limitation Act are not attracted in the facts and circumstances of the instant case. Learned counsel for the appellants has argued that the findings of the learned trial court to the effect that section 13 of the Limitation Act is applicable and that the suit is within time on the basis of the period that is spreading over less than 9 months, which the appellant/Sadiq Khan spent in Pakistan during his 4 visits, are illegal and unlawful. He has further contended that section 13 of Limitation Act is not applicable in the facts and circumstances of the instant case and for the sake of arguments, if it is presumed that the same is applicable, then it has been stretched by the learned trial court to an unwarranted extent, which has rendered its findings on this issue as not sustainable. It may be relevant to note that admittedly, Court of U.S.A.
Accepted the final settlement vide order dated 4-3-1993 Exh.P.53-A and appellant/Sadiq Khan never came to Pakistan after 1992. So if the cause of action has arisen on the passing of the said order by Court of U.S.A., then the appellant/Sadiq Khan never came to Pakistan after 1992. If the cause of action has arisen in 1973 when joint farming arrangement came to end then the argument of learned counsel for the appellants carry weight that the suit is barred by time and period of limitation cannot 'be stretched for about 28 years by stretching the provisions of section
13. Interestingly in the plaint, the factum of accrual of cause of action has deliberately been kept vague by the contesting respondents. In support of his contention he has relied upon Rathina Thevan v. Packirisani Thevan AIR 1928 Madras 1088, the relevant portion is reproduced below:-- ....It would be stretching the provisions of S.13 to an unwarranted limit if we hold that in whichever part of the world the cause of action might have arisen, and however old the cause of action might be, a suit is maintainable on it here, provided it is brought within the period of limitation prescribed by the Act for such suit; the time being calculated from the date of the arrival of the defendant in British India..."
' Following observation has also been given in the aforesaid judgment:-- ".... But in order to get the benefit of S.13 the cause of action or the transaction which gives rise to the cause of action must have taken place in British India..."
In the light of the above referred case-law, it may be concluded that the provisions of section 13 of the Limitation have been wrongly applied and period of limitation has been stretched to unwarranted limits by the learned trial. Court in order to benefit the respondents, hence, the suit is barred by time on this score also. Admittedly, the appellant/Sadiq Khan a citizen of U.S.A., and permanent resident of U.S.A., therefore, section 13 of Limitation Act under the circumstances is not attracted in the facts and circumstances of the instant suit. In view of the above, the findings of the learned trial court on issue No,1 are held erroneous and unsustainable, therefore, reversed and this issue is decided against the respondents/plaintiffs.
' Issues Nos.3 to 14.
' We do not feel the necessity to offer our findings on these issues.
' Issue No,15.
In view of our findings given on Issues Nos.1 and 2, the appeal is allowed with costs throughout and the impugned judgment and decree are set aside and it is held that the courts of Pakistan have no jurisdiction to entertain the suit, which is otherwise badly barred by time.