DORAB PATEL, J.--The dispute in this Letters Patent Appeal relates to the construction of the Chancery Building of the American Embassy in Karachi. The building was constructed by the respondent in pursuance of a written contract dated 28-6-1957 between the respondent and the appellant, and we may observe here that it was signed on behalf of the appellant by a Secretary of State of the American Government through its local Charge-de-Affairs. The agreement contained an arbitration clause and, as disputes arose between the parties, the respondent invoked this clause and appointed Mr. Manzer-e-Alam (now deceased) as its arbitrator. Further, as the appellant did not appoint an arbitrator, in the events that happened, the respondent appointed Mr. Manzar-e-Alam the sole arbitrator under section 8 of the Arbitration Act, 1940. Thereafter, the sole arbitrator entered on the reference and gave notice to the parties. Mr. S. Shaikh, Advocate, appeared before him on behalf of the appellant and challenged the validity of his appointment as sole arbitrator and also his jurisdiction as arbitrator on the ground that the appellant was entitled to immunity as a sovereign State. The arbitrator rejected the appellant's objections and adjourned the case for the filing of claims, evidence etc. by the parties. On the adjourned date, as Mr. Shaikh was out of Karachi, an Advocate appeared on behalf of the appellant and sought a further adjournment which was granted. On the next date the respondent filed his claim and produced his evidence, and we may point out here that the appellant was represented on this day by two Advocates. The arbitrator then adjourned the case to allow the counsel of both the parties to inspect documents. But when the case came up for hearing before him again, the Advocates for the appellant again stated that they challenged his jurisdiction and apparently therefore they walked out of the proceedings. The arbitrator then heard arguments, and by award dated 31st May 1963 he awarded a sum of Rs, 15,56,864.74 with costs to the respondent. On 13th August 1963 he filed an application under section 14 of the Arbitration Act, 1940 in the Karachi Seat of the West Pakistan High Court for making the award the rule of the Court. The Court gave notice of this application to the parties, and on receipt of this notice, the appellant filed an application under section 151, C. P. C. in which it claimed sovereign immunity as a foreign State and submitted that the Court had therefore no jurisdiction even to issue a notice to it. By his judgment dated the 1st February 1965 Awan, J. dismissed this application on the ground that the appellant was not entitled to immunity under section 86, C. P. C., and as no objections had been filed to the award, he decreed it by the said judgment. The appellant has now come before us against this judgment of Awan, J.
2. Dr. Mahmood submitted on behalf of the appellant that, as a foreign State, the appellant was entitled to immunity under section 86, C. P. C., because the proceedings against it had been admittedly instituted without the Central Government's permission under subsection (1) of section
86. In the alternative, he submitted that even if the appellant's claim did not fall under section 86 it was still entitled to immunity under the rules of private international law as interpreted by the English Courts. On the other hand, Mr. Pirzada submitted that section 86 applied to foreign Rulers and not to foreign States, and that, as the appellant was a foreign State, it was not entitled to benefit of section 86, C. P. C. Mr. Pirzada's second argument was that, in any event, section 86 applied only to suits, that the decree under appeal had been passed in pursuance of an application under the Arbitration Act, therefore, as such applications did not fall under section 86, the appellant was not entitled to the benefit of that section. Finally, he denied the appellant's claim that it could claim immunity under the rules of private international law.
3. As both the learned counsel placed great stress on section 86, C. P. C. it will be convenient to quote this section. Section 86 reads as follows : "86(1) Any Ruler of a foreign State, and any ambassador or envoy of a foreign State, may with the consent of the Central Government, certified by the signature of a Secretary to that Government, but not without such consent, be sued in any competent Court.
(2) Such consent may be given with respect to a specified suit or to several specified suits, or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which the Ruler, ambassador or envoy may be sued; but it shall not be given unless it appears to the consenting authority that the Ruler, ambassador or envoy, -- (a)has instituted a suit in the Court against the person desiring to sue him, or (b)by himself or another trades within the local limits of jurisdiction of the Court, or (c)is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon.
(3)No such Ruler, ambassador or envoy shall be arrested under this Code, and, except with the consent of the Central Government, certified as aforesaid, no decree shall be executed against the property of any such Ruler, ambassador or envoy.
(4)The Central Government, may by notification in the official Gazette authorisea Provincial Government and any Secretary to that Government to exercise with respect to any Ruler, ambassador or envoy named in the notification the functions assigned by the foregoing subsections to the consenting authority and a certifying officer respectively.
(5)A person may, as a tenant of immovable property, sue without such consent as is mentioned in the section, a Ruler, from whom he holds or claims to hold the property.
(6)A person may, as a tenant of private immovable property belonging to an ambassador or envoy, or in respect of any immovable property belonging to such person and held by an ambassador or envoy in his private capacity sue, without such consent as is mentioned in this section, the ambassador or envoy from whom he holds or claims to hold the property or by whom the property is so held."
The question which arises for determination is the meaning of the words "Ruler of a foreign State" and "Ruler" in this section, and we have to point out here that these words, wherever they occur in this section, were substituted for the words "Prince or Chief" by an amendment to the section in 1960. As this amendment was made more than half a century after the enactment of the Code of Civil Procedure in 1908, it is not irrelevant to observe here that this half century saw great changes in private international law, of which the Legislature must have been aware when it amended section 86.
4. Turning now to the arguments of the learned counsel according to Dr. Mahmood, the words "Ruler of a foreign State" mean both the person who is the head of a foreign State and the foreign State itself, and in support of this interpretation learned counsel referred us to a passage in Maxwell's Interpretation of Statutes, which we shall presently consider. However, as the Legislature has used the words "Ruler of a foreign State" in contradistinction to the word "State" sections 84 and 87, can we lightly disregard the language employed by it ? Additionally, word in the same section must always be given the same meaning in the absence of express provision to the contrary. Now subsection (3) confers immunity with regard to the person and property of the Ruler, and it is clear that this immunity is for the person who is the head of a foreign State and not for the foreign State itself. Even Dr. Mahmood conceded that the word "Ruler" in this subsection meant only the person of the foreign State and not the foreign State, therefore, as the word "Ruler" should be given the same meaning in subsection (1), prima facie the words "Ruler of a foreign State" cannot mean a foreign State. Further, section 84, in so far as it is relevant, reads as follows : "84(1) A foreign State may sue in any Court in the province : Provided that such State has been recognised by the Central Government: Provided, also, that the object of the suit is to enforce a private right vested in the head of such State or in any officer of such State in his public capacity.
(2) Every Court shall take judicial notice of the fact that a foreign State has or has not been recognised by the Central Government."
Similarly section 87 says that "the Ruler of a foreign State may sue and shall be sued in the name of a State." Thus the Legislature was fully aware of the distinction between a State and its Ruler, and must be presumed to have drawn a distinction deliberately in section 86 between a foreign State and its Ruler therefore, learned Counsel's interpretation of the words "Ruler of a foreign State" in subsection (1) of section 86 would, in our humble opinion, defeat the intention of the Legislature in amending section 86, and that was the view of Awan, J. in the judgment under appeal.
5. However Dr. Mahmud referred us to judgments which have taken a contrary view, and in particular to A. M. Qureshi v. U. S. S. R. and others in which Qadeeruddin Ahmad, J., as he then was, now the Chief Justice, has expressly dissented from the judgment of Awan, J. which is under appeal before us. As all the arguments advanced by learned counsel are contained in this judgment, we shall consider it first. In Qureshi's case the plaintiff had filed a money suit against the U. S. S. R. and its Trade Representative, and the Government of the U. S. S. R. and its Trade Representative claimed immunity under section 86 quoted above. In accepting the defendant's plea of immunity Qadeeruddin Ahmad, J , pointed out in para. 33 of his judgment that "the key to the correct appreciation of sections 84 to 87(a) of the Code of Civil Procedure" was to be found in the psychology of English jurisdiction. According to the learned Single Judge, not only did the foreign State enjoy complete immunity in legal proceedings in English Courts but English jurisdiction did not draw a distinction even between a foreign State and its Ruler. It had not been able to develop even to the point of recognising a State as a juristic personality and as a State was not a juristic personality, it followed that it could not be sued at all. Further, according to Qadeeruddin Ahmad, J., these principles were embodied in sections 84 to 87(a) of our Civil Procedure Code, and further, in1 view of the provisions of Order I, C. P. C. only a juristic person could sue or be sued in our Courts, and as a State was not a juristic person, there was no question of filing a suit against it. In this background the learded Single Judge came to the conclusion that section 86, which had to be read with section 84, barred a suit both against the Ruler of a foreign State and the foreign State.
6. Mr. Sharifuddin Pirzada, who has argued this case with his usual thoroughness, respectfully submitted that the learned single Judge had misconstrued the English law and had also erred in holding that the principles of English law had to be followed in the construction of section 86. He also submitted that the view that only juristic persons could sue in our Courts was a misconception. We shall now consider these arguments.
7. There is no doubt that a foreign State cannot be sued in England without its consent and that it enjoys complete immunity in the English Courts. But in view of the learned Single Judge that English jurisprudence had failed to draw a distinction between a foreign State and its Ruler was based on a Judgment of the House of Lords in the United States of America v. Wagner and Mr. Pirzada respectfully submitted that the learned Single Judge had misconstrued this judgment, therefore he took us through this judgment. In that case the United States of America had filed a suit in its own name, and the defendant had filed a demurrer on the ground that a Government could file a suit only in the name of its Ruler. This demurrer was rejected and it was unanimously held by the House of Lords that a foreign Government, which is not a monarchy, is entitled to file a suit in its own name in English Courts. It will be sufficient to refer here to the following observations of the Lord Chancellor at page 647 : "But if the president is not the proper person to sue on behalf of the United States, what other mode of prosecuting their rights in a foreign country than by suing in their own neaten can be resorted to ? I confess I have been unable to appreciate the distinction which ran through the whole of the defendant's argument between a suit in equity by the head of a monarchy and by a republican State. In a monarchy all the public rights and interests of the nation are vested in and represented by the monarch. In a republic they are the property of the State. When a foreign monarch sues in the Courts of this country it is not as the representative of his nation, but as the individual possessor of the rights which are the subject of t4e suit,Why should a republic be precluded from asserting in its own name similar rights vested in it ?"
Thus these observations show that in English law a State is identified with its Ruler only when it is a monarchial State, but, as in the judgment cited, the United States of Amercia was allowed to sue in its own name because it was a republic, with great respect, we are not able to agree with the view of the learned Single Judge that English jurisprudence has failed to draw a distinction between a foreign State and its Ruler, or that it does not treat a State as a juristic personality. It is true that the foreign State enjoys full immunity in the English Courts, but in our humble opinion that neither means that it is not juristic person nor does it mean that there is no distinction between the foreign State and its Ruler.
8. Mr. Sharifuddin Pirzada then took us through the relevant provisions of the Civil Procedure Code and submitted that the learned Judge erred in holding that our Code of Civil Procedure only permitted juristic persons to file suits. In this connection learned counsel referred us to Order I, rule 8, Order XXX and Order XXXII. He rightly submitted that under Order I, rule 8 unregistered associations, which cannot be said to be juristic persons, are permitted to file suits. Similarly, although firms are not juristic persons, they can file suits under Order XXX, whilst under Order XXXII, although minors are also not recognised as juristic persons, express provision has been made for suits by minors. Therefore, with very grate respect, we are not able to agree with the view of the learned Single Judge that, as only juristic persons can file suits in our Courts, a foreign State is precluded from suing or being sued except through its Ruler.
9. Finally, in a very able argument Mr. Pirzada submitted that section 86 falls under Part IV of the2 Code of Civil Procedure and that, as this Part has made an express departure from the corresponding provisions of English law, both the learned Single Judge and the Judges who have taken a similar view have erred in holding that the provisions of this Part should be constructed according to the concepts of English jurisprudence. Here we may observe that in English law, as the Crown could do no wrong, it could not be sued, and the only relief available to the subject was by way of a petition of right. This situation was altered only in 1947 by the Crown Proce-dings Act.
However, the position in the Sub-Continent had always been different. Even in the days of the East India Company the Courts had drawn a distinction between the sovereign acts of the Company and its commercial activities, and suits could be filed against it for its commercial activities. (See P. & 0. Steam Navigation Company v. Secretary of State . This position continued when the Crown took over the Government of India from the East India Company. Section 65 of the Government of India Act, 1858, section 32 of the Government of India Act, 1915 and section 176 of the Government of India Act, 1935 made express provision conferring rights on the subject to sue the Government except for its sovereign acts, whilst the personal immunity of the Crown was preserved, as in England. Corresponding to these Constitutional provisions the Codes of Civil Procedure contained express provisions for filing suits against the Government, and we need refer here only to sections 79 to 82 of the Code of Civil Procedure, 1908 which make express provision for institution of such suits. As the Legislature has thus departed from the English doctrine of the immunity of the Crown, which is not unrelated to the doctrine of the immunity of the foreign sovereign, Mr. Pirzada's submission that we would not be justified in construing the provisions of sections 83 to 87 on the basis of English law has force. We have also to observe here that, unlike English law, under which only the foreign Sovereign can waive his immunity, a suit under section 86 can be file against a foreign Ruler provided the Central Government' consent is obtained. In these circumstances, on the whole, it seems to us that, as the Legislature has departed from the rule of English law, we would not be justified in construing the words "Ruler of a foreign State" by reference to the concepts of English jurisprudence.
9. However, Dr. Mahmud submitted that as section 84 prescribes the conditions when a foreign State could file a suit it had to be read with section f 6, and that as section 84 relates to suits filed by foreign States, section 86 must be presumed to relate to suits filed against them. That was the view of Qadeeruddin Ahmed, J. in A. M. Qureshi's case, and of the Indian Supreme Court in Mirza All Akbar Khan v. United Arab Republic . We have quoted section 84 in para. 4, and, according to the second proviso of subsection (1), the object of a suit under section 84 has to be the enforcement of the "private right vested in the head of such State or in any officer of such State in his public capacity." As pointed out by the Indian Supreme Court in the judgment cited, the private right in this proviso means the non-political rights of the foreign State, therefore the section deals with suits on behalf of foreign States. Nor did Mr. Pirzada dispute this proposition. But because it deals with suits by States, does it necessarily mean that section 86 should be, so to say, put on a par with it so as to cover suits both against Rulers of foreign States and foreign States. Such a view totally ignores the other considerations which we have discussed, and it also ignores the fact that section 86 was amended in 1960. If the Legislature had intended to place section 86 on par with section 84, when it amended section 86, it would have done so by express language. Instead, it has expressly conferred immunity only on the Head of a foreign State. In this context, the words "Ruler of a foreign State" can be given an extended construction only on the assumption that the Legislature intended, by this amendment, to follow the rules of English law only, and that was the view of Qadeeruddin Ahmed, J. However, with very great respect, we are not able to agree with it, and we do not think the section can be construed in the manner sought by the appellant.
10.Dr. Mahmud then feebly submitted that his construction of section 86 was supported by the case-law of the sub-continent, and learned counsel referred us to a judgment of the Privy Council3 4 in Gaekwar Baroda State Railway v. Hafiz Hahi5-ul-Haq and of the Madras High Court in Gilmore v.
The State of Travancore . In the first case, a suit had been decreed against a defendant described in the plaint as the Gaikwar Baroda State Railway. The Railway was owned by an Malan Prince, namely, H. H. the Maharajah of Baroda, so that the name of the defendant was a misnomer. In setting aside the decree, the Privy Council pointed out that the suit was really against an Indian Prince, therefore it was hit by section 86 and it further observed that, as section 86 embodied a principle of public policy, it was the duty of the Courts to give full effect to it. We are in respectful agreement with this Judgment, but as it turned entirely on section 86, as it stood before its amendment, and as it related to property owned by a Prince, we do not see its relevance to the instant case. Learned counsel however thought that the second case was on all fours with the instant case. In that case, a Division Bench of the Madras High Court held that a suit against an Indian State amounted to a suit against an Indian Prince entitled to immunity under section 86, therefore such a suit was hit by section 86. The view of the learned Judges had reference to a monarchial State where the monarch is identified with the State, therefore once again it is not relevant to the construction of the words "Ruler of a foreign State". Secondly, the judgment does not give any reasons for the view taken in it but, as rightly pointed out by Qadeeruddin Ahmed, J., (we say so with respect) in A. M. Qureshi's case, the view of the learned Judges of the Madras High Court was based on the assumption that the object of section 86 was to reproduce the principles of English law. With respect, as we are not able to agree with that assumption, we do not agree with the view taken in this judgment. Additionally, there is no doubt of the importance of this case and, as the Legislature is supposed to be aware of the decisions of the Superior Courts, if it had intended to follow this judgment, when it amended section 86, it could easily have used the words "a foreign State" instead of the words "Ruler of a foreign State."
11.Dr. Mahmood then submitted that in the context of Part IV of the Civil Procedure Code there was an ambiguity in the words "Ruler of a foreign State", therefore that ambiguity had to be construed according to the principles for the construction of statutes, and in support of this argument, he referred us to a passage in Maxwell. Mr. Pirzada submitted that there was no ambiguity in the words under discussion,. We do not think that it can possibly be said that the matter is free from doubt, therefore, Dr. Mahmood is entitled to rely on the principles for the construction of statutes, and he referred us to the following passage in Maxwell's Interpretation of Statutes (12th Edn.) at p.
183: "Under the general presumption that the Legislature does not intend to exceed its jurisdiction, every statute is interpreted, so far as its language permits, so as not to be inconsistent with the comity of nations or the established rules of interntional law, and the Court will avoid a construction which would give rise to such inconsistency unless compelled to adopt it by plain and unambiguous language.
As we are in respectful agreement with these observations, the only question is what are the established rules of international law. According to Dr. Mahmood, the rules of international law were the rules of English law only, and that is the real question for consideration, and in deciding it, it is necessary to remember that we were construing words enacted in 1960.
12. Section 86, as it stood before this amendment, had been reproduced from section 433 of the first Code of Civil Procedure, 1877, but the 80 years and more between 1877 and 1960 had seen vast changes in diplomatic relations and in private international law. Monarchial States were replaced by Republics, laissez-faire States by welfare States, so that all States now carry on extensive Commercial and industrial acitivities, and finally the period after the Second World War saw the emergence of great nations in which all economic activities whatsoever, including foreign trade, are carried on by the State. The orthodox doctrine of the complete immunity of the Sovereign State, which had been evolved in the monarchial era during a perrod dominated by laisse-faire ideas, thus became an anachronism in the opinion of many. In any event, its continuance in our time5 6 means the ouster, on an unprecedented scale, of the jurisdiction of the Courts. This has invoked world-wide criticism, and as the appellant in the instant case is the American Government, Mr. Pirzada referred us to the Journal of the American Law Institute, 1952. In a letter dated 19th May 1952, Mr. Tate, the Legal Adviser of the American State Department, observed as follows: "A study of the law of sovereign immunity reveals the existence of two conflicting concepts of sovereign immunity, each widely held and fairly established. According to the new or restrictive theory of sovereign immunity, the immunity of the sovereign is recognized with regard to sovereign or public acts (jure imperil) of a State, but not with respect to private acts jure question .
It is thus evident that with the possible exception of the United Kingdom little support has been found except on the part of the Soviet Union and its satellites for continued full acceptance of the absolute theory of sovereign immunity."
Then after referring to the effect of the widespread tendency of states to indulge in commercial activities Mr. Tate said : "For these reasons it will hereafter be the Department's policy to follow the restrictive theory of sovereign immunity in the consideration of requests of foreign Governments for the grant of immunity."
The orthodox doctrine of immunity still holds the field in England but it has not escaped heavy criticism. 'Thus in Oppenheim's International Law (1955 Edition) at page 273 the learned author wrote 15 years ago as follows : "The grant of immunity from suit amounts in effect to a denial of a legal remedy in respect of what may be a valid legal claim ; as such, immunity is open to objection.. . . . . the vast expansion of activities of the modern State in the economic sphere has tended to render unworkable a rule which grants to the State operating as a trader a privileged position as compared with private traders. Most States, including the United States have now abondoned or are in the process of abondoning the rule of absolute immunity of foreign States.
Similarly, Professor Cheshire has supported the theory of restricted sovereignty proposed by the appellants State Depart-ment in its over country, and in reference to the English doctrine of absolute immunity, observed in his Private International Law (7th Edition) page 98 as follows : "The present English doctrine is in fact so out of tune the times that the failure of the Legislature to restrict its field of application is a little surprising. Most legal systems have retreated from the principle of absolute immunity by distin-guishing between acta imperil and acta gestionis distinction that rests upon the nature of the particular act in question. `What matters is whether the foreign State acts in the exercise of its sovereign power or like a private person'. In the former case alone is immunity allowed. In fact it would appear that outside Great Britain the doctrine of absolute and unqualified immunity is no recognized only in the communist countries, together with Japan and the Philippines."
Dicey in his Conflict of Laws has also approved of the restrictive theory of sovereignty supported by Professor Cheshire and pointed out that it is gaining ground all over the world. Then with reference to the distinction between acta imperil and acta gestionis, on which this theory is based, he has observed at page 126 "Such a distinction, though it is very difficult to draw, is discernible in the practice of many other States, and it may well be that English Courts have extended the doctrine of sovereign immunity considerably further then International practice strictly requires. The results have proved unfortunate and have led to widespread dissatisfaction."
Mr. Pirzada also referred us to other commentaries by eminent writers and to proceedings of International conferences to show that the restrictive theory of sovereignty had the approval of the civilised world. However, as Dr. Mahmud very fairly con-ceded that the orthodox English view of the complete immunity of the sovereign State was on the retreat all over the world, it is not necessary for us to go further into this respect of the case.
14. The view of the jurists quoted above is also reflected in the judgments of the Superior Courts in the countries where the common law prevails. Thus in Larson v. Domestic and Foreign Corporation the American Supreme Court observed that "the principle of sovereign immunity is an archaic hangover not consonant with modern morality and that it should therefore be limited whenever possible." The only answer of Dr. Mahmud to this decision of the American Supreme Court was that his argument was supported by the decisions of the English Courts, and in this connection he referred us, to .several judgments of the English Courts. The English Courts had always recognised the immunity of the foreign Sovereign, but in the Parlement Beige ((1880) 5 P D 197) this principle was extended to a ship dedicated to the public use. Then, in 1920, in the Porto Alexandre (1920 Probate 30), this principle was extended even to a ship employed by a foreign State for its commercial activities. Thus this case was really the high water mark of the orthodox doctrine of the complete immunity of the foreign State, and if this judgment applies the correct principles of private International law we would have to accept Dr. Mahmuct's argument. However, the validity of this judgment was considered by the House of Lords in the Christina's case a case which Dr. Mahmud thought supported his contention. The facts in this case were that the Christina was a Spanish ship, owned by the appellant, and the Spanish Government, which was fighting a civil war, had passed a law requisitioning all Spanish ships wherever they be. As the appellant did not surrender the Christina to the Spanish Government, its consul took possession of it in an English Port by forcibly ejecting the appellant's crew, therefore the appellant filed a suit against the ship for recovery of its possession. The- Spanish Government claimed immunity, and because this claim was upheld by the House of Lords, Dr. Mahmud submitted that the case supported his argument.
But the act of the Spanish Government in seizing the appellant's ship was clearly an act in the exercise of its sovereign powers, which would be upheld even under the restrictive theory of sovereignty, to which we have referred in paras. 12 and 13. Further, in the instant case, the dispute is of a commercial nature, so that the facts of the judgment cited are distinguishable ; on the other hand, it seems to us that the facts of the instant case are almost on all fours with those in the Porto Alexandre's case. But here we have to observe that, although the House of Lords unanimously dismissed the appeal in the Christina's case, Lord Maugham criticised the judgment in the Porto Alexandere's case and further said that the time had come for the revision of the orthodox doctrine of immunity which had been declared in that case. Similarly, out of the other four Law Lords, Lord Macmillan and Tkanketon expressly stated that they considered themselves free to reconsider the decision in the Porto Alexandre. Thus the highest Tribunal in England had its doubts about the orthodox doctrine of complete immunity. It is true that, dospite these doubts, the doctrine is still accepted by the English Courts, and the judgment of the House of Lords in Rahinitoola v. H.E. FL The Nizam of Hyderabad and others supports Dr. Mahmud's contention. However, although the decision of the House of Lords was unanimous in that case, Lord Denning critcised the orthodox doctrine of immunity and said the the time bad come for reconsidering it. We would quote here passage from his judgment at page 461 : "It is more, in keeping with dignity of a foreign sovereign to submit himself to the rule of law than to claim to be above it ; and his independence is better ensured by accepting the decisidion of Courts of acknowledged impartiality than by arbiirdrily, rejecting their jurisdiction. In all civilised countries there has been a progressive tendency towards making the sovereign liable to be sued in his own Courtsnotatly in England by the Crown Proceedings Act, 1947. Foreign sovereigns should not be in any different position. There is no reason why we should grant to the departments or agencies of foreign governments in immunity which we do not grant our own, provided always that the matter in dispute arises within the jurisdiction of our Courts and is properly cognizable by them."7 8 9 Dr. Mahmood described these observations as a voice in the wilderness, but the voice in the wilderness does not always die out, and, as rightly submitted by Mr. Pirzada, the point In these observations is that eminent Judges in England consider the view taken by the English Courts to be unsatisfactory and inequitable. As we cannot attribute ignorance to the Legislature of those developments in private international law, it seems to us that we would be defeating its intention in enacting the amendment of 1960 if we construe it by reference to an English doctrine condemned in England.
15. Additionally, the passage in Maxwell on which Dr. Mahmood relied, states that statutes should be construed so as to avoid inconsistency with the comity of nations and the established rules of international law. But the comity of nations and the established rules of international law are not necessarily the same as the rules followed by the English Courts. Here we may refer to the classic definition of private international law by Lord Macmillan in the Chritina's case, on which Dr. Mahmud placed so much reliance. At page 725 Lord Macmillan observed : "It is a recognised pre-requisite of the adoption in our municipal law of a doctrine of public international law that it shall have attained the position of general acceptance by civilised nations as a rule of international conduct, evidenced by international treaties and conventions, authoritative text-books, practice and judicial decisions. It is manifestly of the highest importance that the Courts of this country, before they give the force of law within this realm to any doctrine of international law, should be satisfied that it has the hallmarks of general assent and reciprocity."
As we are in respectful agreement with these observations, we can neither accept Dr. Mahmud's submission that the rules of private international law mean the rules contained in the English decisions, nor his submission that an ambiguity in section 86 has to be construed according to English law, so as to widen that the ordinary meaning of the words "Ruler of a foreign State" to mean the foreign State itself. We are aware that in A. M. Quresii's case Qadeeruddin Ahmed, J. had taken a contrary view, but his attention had not been drawn to the changes in private international law which we have discussed and to which Mr. Pirzada referred us in the instant case, therefore, with very great respect, we are not able to agree with the view of Qadeeruddin Ahmed, J.
16.Here we have to observe that both the learned counsel informed us that an appeal had been filed in the West Pakistan High Court against the judgment of Qadeeruddin Ahmed, J. in A. M.
Qureshi's case, but that appeal was summarily dismissed by a Division Bench of the West Pakistan High Court by its order dated 25th April 1963. Dr. Mahmud supplied us a copy of this order, and we find that it does not contain any reasons for rejecting the view taken by Awan, J. in the case under appeal. In these circumstances, Mr. Pirzada submitted that the dismissal order of the Division Bench was not binding on us and Dr. Mahmud very fairly conceded that we could not be bound by it. However, even if we are wrong in thinking that we are not bound by this order of 25th April 1968, we are of opinion that the appeal must fail on the second argument of Mr. Pirzada, namely, that the decree under appeal was a decree making an award the rule of the Court, therefore it was not a suit within the meaning of section 86, and we shall now consider the arguments of the learned counsel on this important question of law.
17.We have quoted section 86, and subsection (1) states that "any Ruler of a foreign State may with the consent of the Central Government be sued in any competent Court." Dr. Mahmud submitted that the word "sued" was a word of wide import and was sufficient to include arbitration proceedings. We agree with learned counsel that the word "sued" is a word of wide import and that in an appropriate context it can include arbitration proceedings, but section 86 is a part of the Code of Civil Procedure, 1908, and after the enactment of the Arbitration Act, 1940 this Code deals only with suits and not with arbitration proceedings, therefore, it seems to us that the word "sued" has been used with reference to a suit. As observed by the Privy Council in Hansraj Gupta and others v. Dehra Dun Mussoorie Electric Tramway Co. "the word "sued" ordinarily means, apart10 from some context, a civil proceeding instituted by the presentation of a plaint," as the proceedings in the instant case were instituted by the filing of an application under section 14 of the Arbitration Act, prima facie they do not fall under section 86. Additionally, as subsection (2) of section 86 expressly refers to suits, we have no doubt that the liability to be sued G under the section has reference only to suits under the Civil Procedure Code. Here we may observe that Mr. Pirzada referred us to the provisions of the United Nations Privileges and Immunities Act, 1948, No, XX of 1948 and the Diplomatic Immunities (Commonwealth) Countries Representatives Act, 1957, No, XXIX of 1957, and in both these statutes the Legislature has given immunity against litigation to foreign nationals. In Act XX of 1948 immunity is given to members of the United Nations, and subsection (a) of section 11 states that representatives of the United Nations shall enjoy "immunity from legal process of every kind." The language of this section is of much wider than that of section 86.
Similarly Act XXIX of 1957 extends immunity to diplomatic representatives of the Commonwealth countries on a reciprocal basis, and section 4 states that such representatives "shall be entitled to the immunity from suits and legal process " The immunity thus conferred is also much wider than under section 86. As both these statutes were passed before the amendment of section 86 of the Civil Procedure Code, we agree with Mr. Pirzada that if the Legislature had intended to confer immunity under section 86 with regard to matters other than regular suits it would have done so by appropriate language in this respect.
18.Dr. Mahmud then submitted that when an application is filed under section 14 of the Arbitration Act, according to Rule 282 of the Sind Chief Court (0. S) it is numbered as a suit, therefore, according to learned counsel, such an application had to be treated as a suit within the meaning of section 86. But if such an application is described as a suit it is only by way of a legal fiction, and the express provision shows that in fact it is not a suit. Additionally, we have to point out here that, unlike suits, applications under the Arbitration Act are generally disposed of without recording evidence, and the jurisdiction of the Court to set aside an award is very limited and bears no comparison to the powers of the Court in a regular suit. Further, the Arbitration Act enacts that awards can be challenged only by way of applications, and section 32 prescribes that "no suit shall lie on any ground whatever for a decision upon the existence, effect or validity of an arbitration agreement or award view of the clear provisions of the Arbitration Act, we cannot accept learned counsel's submission that arbitration proceedings can be treated as a suit under section 86.
19.Dr. Mahmud's next submission was that the provisions of section 86 were applicable to proceedings under the Arbitration Act either in view of section 141 of the Civil Procedure Code or section 41 of the Arbitration Act. Section 141 of the Civil Procedure Code reads as follows: "The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. '
It is true that arbitration proceedings are proceedings in a Court of civil jurisdiction, but it is only the procedural provisions of the Civil Procedure Code which are attracted to arbitration proceedings by virtue of section 141. As the provisions of sections 83 to 87 of the Civil Procedure Code are not procedural provisions but provisions which deal with the substantive law, in our humble opinion, they are not applicable to arbitration proceedings. Similarly, as to section 41 of the Arbitration Act, the provisions of the Civil Procedure Code are made applicable to proceedings under the Arbitration Act by this section but as this is expressly made subject to the provisions of the Arbitration Act, it means that only the procedural provisions of the Civil Procedure Code are made applicable to arbitration proceedings, therefore the effect both of section 141, C. P. C. and of section 41 of the Arbitration Act is that the provisions of the Civil Procedure Code, like section 86 which creates substantive rights and imposes liabilities, are not extended to arbitration proceedings, and we may observe here that this was also the view of the Indian Supreme Court in Nawab Usman Ali Khan v. Saghar Mall .11 20.Dr. Mahmud then submitted that his argument that section 86 was applicable to arbitration proceedings was supported by a Full Bench judgment of the West Pakistan High Court reported in All Muhammad v. Mirza Muhammad Hussain Beg . There the question was whether an application under section 8 of the Arbitration Act was hit by the provisions of section 69(3) of the Partnership Act, 1932, and this question was referred to a Full Bench. Subsections (0 and (2) of section 69 prohibit unregistered firms from filing suits, and subsection (3) then states as follows: "The provisions of subsections (1) and (1) shall also apply to a claim of set-off or other proceedings to enforce a right arising from a contract."
The Full Bench held that the arbitration application was hit by this subsection, but we do not see how the judgment cited helps Dr. Mahmud's argument. In para. 11 of the Judgment the learned Judges observed?
"The question is, therefore, answered in the affirmative and we find that the proceedings under section 8 of the Arbitration Act are covered by the words "other proceeding" appearing in subsection (3) and although the same are not a suit in the forensic connotation and are not initiated by presentation of a plaint, since they are proceedings included in the words "other proceeding" which words are to receive their full meaning unfettered by the words "a claim of set- off" the same would be barred by section 69(3) of the Partnership Act, 1932, if the partnership in question is unregistered, . . . ."
Thus it will be seen that the case turned entirely on the construction of the words "other proceeding" and has no relevance whatever to the instant case.
21.Dr. Mahmood then submitted that his argument was supported by a Judgment reported in Owners of Cargo on Board the Merak v. The Merak (Owners) . It is true that in this Judgment it was held that the word "suit" was wide enough to include arbitration proceedings. But this had reference to the provisions of Article III, rile 6 of the English Carriage of Goods By Sea Act (which is identical to our Carriage of Goods by Sea Act). This rule reads as follows : "In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered."
In construing this rule it is relevant to bear in mind, as was the view of the Probate Court, that the Carriage of Goods by Sea Act was passed to implement the Hague rules, and, as the Act was intended to deal with international commerce, the reason of the Act required that the word "suit" in it should be given the widest possible interpretation. As observed by Sellers L J. at page 252 "the fact that the rules may call for application under differing legal systems seems to justify a wide interpretation of the word "suit";" therefore, the judgment cited turned entirely on the objects of the Carriage of Goods by Sea Act and cannot be extended to the provisions of the Civil Procedure Code.
22, Dr. Mahmud next referred us to a Full Bench Judgment of the Allahabad High Court in Dehra Dun Mussorie Electric Tramway Co. Ltd. v. President, Council of Regency Nabha, State , which fully supported his argument. The question referred to the Full Bench was whether section 86, C. P. C. applied to proceedings under section 187 of the Companies Act and the facts material to the reference were as follows : The Dehra Dun Electric Tramway Company was in liquidation and, as an Indian Prince was its shareholder, he was liable as a contributary. The Company's liquidator had therefore filed an application against him under section 187 of the Companies Act for enforcing this liability, and as the bar of section 86 was raised by the respondent, the question whether this plea was available to him was referred to a Full Bench. The Full Bench decided the question in favour of the respondent on two grounds. The first ground was that section 86 conferred "a special privilege on sovereign Princes and ruling Chiefs which presumably existed under treaties before even the earlier Code (of Civil Procedure) was enacted " Therefore, it held that, as an application under12 13 14 section 187 was merely an alternative remedy to a regular suit for enforcing liability of the contributory, the application was hit by section 86. The second ground was that section 86 was applicable to proceedings under the Companies Act by virtue of section 141 of the Civil Procedure Code to which we had already referred. As to the first ground, it is not relevant in the instant case because the appellant is a foreign State and not a local Prince, and the considerations with regard to the immunity of local Princes are different from those with regard to foreign States. As to the second ground, with great respect, for the reasons which we have given in para. 18, we are not able to agree with the view taken by the learned Judges of the Allahabad High Court. Dr. Mahmud also referred us to a Judgment of the House of Lords in Duff Development Co. Ltd. v. Kalanatan Government and another . This case supports learned counsel's submission but, as it turned on the English rule of the immunity of the foreign sovereign, it is not relevant to the construction of section 86.
23.Finally, Dr. Mahmud submitted that if section 86 was not applicable to arbitration proceedings, immunity should be extended to such proceedings on the principle of private international law because the meager provisions of the Civil Procedure Code were not exhaustive on the question of the immunity of foreign States. However, by the principles of private international law learned counsel only meant the rules of English Law. But as we have shown, these rules have failed to take account of the charging conditions of international Society and therefore no longer command general acceptance by civilised nations as rules of international conduct. Further as we have already explained, the Legislature has expressly restricted immunity under section 86 to suits under the Civil Procedure Code, and it would be defeating its intention to extend immunity to any proceedings other than suits under the Civil Procedure Code, and that was also the view of the Indian Supreme Court in Nawab Usman Ali Khan's case. Accordingly we hold that the appellant cannot claim immunity against an award and on this ground also the appeal fails.
24.Before parting with this judgment we would like to express our appreciation of the assistance given to us by both the learned counsel on the many and interesting questions of law involved in this appeal. We are aware that the controversy over these questions will not be settled for a long time, nor will any solutions be easy, therefore whilst we dismiss the appeal, we leave the parties to bear their own costs. PLD 1968 Kar. 443 16 L T F 646 (1861) 5 Barn. H C R App. A AIR. 1966 SC 230 A I B. 1938 P C 165 17 1 C 444 337 U S 682 at. p. 703 (1938) 1 A E R 719 (P C) (1957) 3 A E R 441 AIR 1933 P C 63 A 1 R 1965 SC 1798 PLD 1968 Lah. 712 1965 Probate 223 AIR 1936 All. 826 1924 AER 1 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15