QADEERUDDIN AHMAD, C. J.-Messrs Bokhara Palace Ltd, have filed this suit for the recovery of Rs.
62,000 as the price of rugs most of which are said to have been purchased from them by the late Ameer of Bahawalpur, His Highness Nawab Al-Haj Sir Sadiq Mohammad Khan Abbasi, Bahadur.
Without going into the details of the claim, we may mention that the plaintiffs have stated in paragraph 16 of the plaint as follows "That the said Ameer of Bahawalpur died on 24-5-1966 and his son Brigadier His Highness Mohammad Abbas Khan Abbasi became the administrator of his estate."
2. Thus the amount of money claimed by the plaintiffs was demanded from the defendant mainly as the administrator of his father's estate and partly as the price of a pair of rugs purchased by himself. The claim remained unsatisfied ; therefore, this suit was filed for the recovery of that amount. The plaint was presented on the 10th of May 1969 and was to come up on the 8th of July 1969 before the Additional Registrar (O. S.) for orders to register it. On that date, an application was presented an behalf of the defendant under Order VII, rule 11, C. P. C., containing the objection that the suit was filed without obtaining the consent of the Central Government ; therefore, was liable to be dismissed in terms of section 86, C. P. C. That application was sent up to a Single Bench of this Court for disposal. It came up for hearing on the 25th of August 1969 on which date another application of the defendant was brought to the notice of the Court. The defendant had requested in it that a reference be made to the Central Government for an inquiry as to whether the defendant was the recognized Ruler of the acceding and merged State of Bahawalpur within the meaning of section 87-A, C. P. C., or not. The application was accepted and the learned Judge made a reference to the Central Government. The reply of the Central Government, dated the 25th of September 1969, was received on the 29th of September 1969. The material part of the reply is as follows : "That Brigadier His Highness Mohammad Abbas Khan Abbasi, Sadiq Garh Palace, Dera Nawab Sahib, Bahawalpur is the Recognized Ruler of the merged State of Bahawalpur."
3. The parties appeared before the Court on the 18th of December 1969 for the consideration of that reply and counsel for the plaintiffs took the plea that in terms of section 87-A, C. P. C., it was necessary that the Ruler of a merged State should have been recognized by the Central Government before the 14th day of October 1955. As the father of the defendant was alive on that date and died much later in May 1966, the defendant could not be the Ruler of Bahawalpur State before the 14th day of October 1955. Thus the reply received from the Central Government did not satisfy the requirements of section 87-A, C. P. C. The learned Single Judge felt that the question was of public importance ; therefore, it was proper that it should be considered by a larger Bench. He framed the question as follows :- "Can the recognised ruler of a merged State claim immunity under section 87(a), C. P. C. If he was not the recognised ruler before 14-10-1955 ?"
The papers were then placed before the then Senior Judge who referred the whole case to a Division Bench for decision.
4. The case was laid before this Bench on the 23rd of February 1971 on which date Mr. Khalid Ishaq criticized the reply which was received from the Central Government by saying that according to it the Central Government has mentioned in its reply the recognition of the defendant as the Ruler of the merged State of Bahawalpur which did not satisfy the requirement of section 87-A, C. P. C., because there is no mention of a "merged State" in the definition of a "Ruler" as it is contained in clause (b) of subsection (1) of section 87-A, C. P. C. Irrespective of whether he be the Ruler of an acceding State or of a merged State. Section 87-A is as follows "87-A-(l)-In this section :--
(a) `Merged State' means a State which being immediately before the fourteenth day of October 1955, an Acceding State, was on that day incorporated into the Province of West Pakistan ; and
(b) 'Ruler of an Acceding State or of a Merged State' means the person who for the time being is recognized by the President as the Ruler of an Acceding State, or who immediately before the fourteenth day of October 1955, was the duly recognized Ruler of an Acceding State.
(2) The provisions of sections 85 and 86 shall apply in relation to the Ruler of an Acceding State, or of a Merged State as they apply in relation to the Ruler of a foreign State."
Since there is no mention of a "Merged State" in the above common definition of a Ruler of an Acceding State and of a Merged State, the reply to the effect that the defendant is recognized to be the Ruler of a Merged State should not be accepted as adequate for granting immunity which has been claimed by the defendant. On the basis of this objection, another reference was made to the Central Government pointing out this difficulty. In reply to the second reference, another reply was received from the Central Government, dated the 5th of April 1971, certifying :- "that Brigadier His Highness Mohammad Abbas Khan Abbasi, Sadiqgarh Palace, Dera Nawab Sahib, Bahawalpur, is the recognized ruler of the former Bahawalpur State within the meanings of clause
(b) of section 87-A of the Civil Procedure Code. A copy of notification to this effect issued in 1966 is also enclosed herewith."
The use of the terms "merged state" or "acceding state" has been avoided in the above reply and the defendant is recognized as the Ruler of the former Bahawalpar State within the meaning of the relevant provision of law.
5. On receipt of the above reply, Mr. Khalid Ishaq criticised it by saying that the certificate purports to be based on the notification of 1966 ; therefore, it should be interpreted to mean nothing more than that notification. That notification was issued on the 22nd of June 1966 as follows : "The President of Pakistan has been pleased to recognize Brigadier His Highness Mohammad Abbas Khan Abbasi, M. N. A., the eldest son of tire late Ameer of Bahawalpur as the new Ameer of Bahawalpur in succession to his father General His Late Highness Nawab Al-Haj Sir Sadiq Mohammad Khan Abbasi, Bahadur, NQA ., GCSI., GCIE., KCVO.. LL.D., Ameer of Bahawalpur."
The object or scope of the above notification, according to Mr. Khalid Ishaq, was merely the recognition of the defendant as the eldest son of his late father and as such his successor to the office of the Ameer of the Bahasralpur State. Since it was not, according to counsel, intended to satisfy the requirements of section 87-A, C. P. C., the word "Ruler" did not occur in it. Counsel argued that the titles oz "Nawab" and "Ameer" are not synonyms of the word "Ruler" ; therefore, the recognition of the defendant in the above-mentioned notification as the Ameer of Bahawalpur in succession to his father neither amounted to acceding to him the immunities intended to be conferred by virtue of section 87-A, C. P. C., nor did it literally satisfy the require--ments of that section.
6. In support of the above contention, he referred to a Division Bench ruling of the High Court of West Pakistan in Mst. Bibi Lal Bibi v. Mir Baluch Khan and another (PLD 1962 Quetta 28). In that case the question was as to whether the Nawab of Kharan was the recognized Ruler of a merged state or not. The learned Judges held that he could not claim the benefit of section 87-A, C. P. C., and gave several reasons for this conclusion which can b;, said to have been summarised in the following passage of the judgment : "In the light of the above facts it is quite clear to us that Kharan State has no individual entity and is not headed by any Ruler. It is for this reason that the President of Pakistan has not recognized Nawab Mir Mustafa Khan as the Ruler of Kharan State but only as Nawab of Kharan. In our pinion section 87-A of the C. P. C. Does not apply to this respondent as he cannot be considered to be a Ruler of an Acceding State. Nawab Habibulluh Khan's case might have stood on a different footing but this provision of law has no application to Nawab Mir Mustafa Khan. In the first place Kharan State is not a Merged State within the meaning of tae said Ordinance which merged into West Pakistan. Secondly Nawab Mir Mustafa Khan cannot be considered to be a recognized Ruler of an Acceding State.
Apart from this, the Kalat Civil Procedure Code being a Special legislation is still in force and it is doubtful that the Civil Procedure Code of 190 applies to the Baluchistan States Union area.
Assuming that section 87-A applies to this respondent, even then the objection of this respondent in this behalf is not of much consequence. Nawab Mir Mustafa Khan was already a party to the original suit much before the enactment of the above-mentioned legislation and his recognition as Nawab of Kharan. In that capacity he was also joined as party to the appeal. It will be further noticed that section 86, C. P. C. Talks of instituting a suit and not an appeal."
Counsel argued that a distinction was drawn in the above judgment between the expression "Nawab" and "Ruler", secondly, the immunity which was claimed by the Nawab of Kharan in that case was not accepted because it is for the Court to decide as to whether the requirements of the provisions of law are satisfied or not. He said that neither the reply dated the 25th of September 1969 nor the second reply, dated the 5th of April 1971, received from the Central Government satisfied the requirements of law ; therefore, the plea taken by the defendant should be overruled.
7. Counsel emphasised that since in the definition of the Ruler of an acceding State and of the Ruler of a merged state, the expression "Acceding State" only occurs and the expression "Merged State" does not occur, the definition cannot apply to Bahawalpur State as now it is not an acceding State because it has become a merged State. He argued that in view of this situation the Central Government has certified the recognition of the defendant in the second reply as the Ruler of the former State of Bahawalpur. The first reply, according to counsel, is inapplicable because it refers to a merged State and the second is a circumvention inasmuch as it does not remove the difficulty which is in the way of the defendant. The defendant's problem, according to counsel, is that he was not the Ruler of Bahawalpur State so long as it was an acceding State and now cannot be recognised as the Ruler of an acceding State because such recognition comes into conflict with the physical impossibility of recognising him as the Ruler of an acceding State which does not exist.
He argued that this difficulty was in the mind of the Legislature ; therefore, it has not used the expression "merged State" in the definition of "Ruler" and differentiated between the existing acceding States and those States which were acceding States but later became merged States.
This object has been achieved, according to counsel, by mentioning the two junctures of recognition one for the time being and the other before the 14th of October 1955. The second part of the definition, according to counsel, relates to those acceding States which have become merged States. This is so particularly because the merger took place on the 14th of October 1965.
8. The Advocate-General of Sind tried to meet the above objection by relying on Rulers (Recognition of Successors) Order, 1960 (President's Order No. 15 of 1960) and on two instruments of Accession of Bahawalpur State dated the 3rd of October 1947 and dated the 29th of April 1951, the Agreement of the Ameer of Bahawalpur State regarding his Privy Purse dated the 11th of April 1952 and the Bahawalpur Merger Agreement dated the 17th of December 1954. His argument was that according to the Instruments and Agreements the father of the defendant was a recognised Ruler of Bahawalpur State when it was an acceding State. This had happened before the merger of the State in Pakistan on the 14th of October 1955 and the defendant is his successor in terms of the President's Order No. 15 of 1960 ; therefore, he ought to be accepted as the recognised Ruler of Bahawalpur State even if the objection raised by Mr. Khalid Ishaq was accepted as correct.
Counsel's reliance on the President's Order No. 15 of 1960 was not relevant because it contains the rules of the recognition of successors to acceding States and empowers the President to recognize or not to recognize anybody as a successor to such a State. This is different from the recognition of the Ruler of a State by the President in terms of section 87-A, C. P. C. Article 2 of the President's Order is its main provision and runs as under :- "2. It is hereby declared that the provisions of clause (1) of Article 2 of the Laws (Continuance in Force) Order, 1958, shall be construed as including in any reference to the Ruler of a State at any time in accession with Pakistan a reference to the person recognized for the time being by a President as a successor to that Ruler."
The language of the above provision limits its scope, firstly, to the construction of clause (1) of Article 2 of the Laws (Continuance in Force) Order, 1958, secondly, to recognition "for the time being" of a person as the successor to the Ruler of an Acceding State and, thirdly, it has no reference to the successor of the Ruler of a merged State. Thus, the President's Order No. 15 of 1960 lends no support to the argument of the Advocate-General of Sind with the result that the Instruments and Agreements to which he has referred are of no assistance to him.
9. As to the Instruments and Agreements, the attempt of the Advocate-General of Sind to interpret them was not only without force but objectionable on principle because the practice of the Courts of this country has been the same as has prevailed in England in respect of the method of ascertaining the recognition of a foreign sovereign, namely, that an inquiry be made from the relevant department of the Government as to whether the State recognizes a person as such or not and the information supplied by the Government is accepted as final. Mr. Khalid Ishaq did argue that such an information did not deprive the Court of the right to interpret the law and to arrive at its own conclusion and this contention is correct to the extent that in those cases in which information is laid in such a nabulous form as is make the interpretation of law or facts necessary, it is the right and duty of the Court alone to do so but this is a distinctly different process from producing evidence of the political status of a person for interpreting it or disregarding a clear and definite answer given by the Government. We pointed out to the Advocate-General of Sind that we would be creating a dangerous precedent if we accepted his views.
10. We were usefully assisted by Mr. Saeed A. Shaikh who appeared for the Attorney-General of Pakistan. He invited our attention to Duff Development Company Ltd. v. Government of Kelantan and another (1924 A C 797) and Her Highness Munawar Jehan Begum v. Crown (PLD 1952 FC 120).
In the case reported in Appeal Cases the House of Lord has expressed the view that it is the practice of the Court to receive information from the appropriate Department of the Government with respect to the sovereign status of a person and to accept it as conclusive. Viscount Finlay has observed as follows:-- "It is settled law that it is for the Court to take judicial cognizance of the status of any foreign Government. If there can be any doubt on the matter the practice is for the Court to receive information from the appropriate department of His Majesty's Government, and the information so received is conclusive."
The learned Judge has pointed out that the reply received in that case from the Secretary of State was clear and therefore overruled the objections which were founded on the interpretation of the documents which were sent with the reply. He has observed in this regard as follows: "In the face of this statement it is hopeless to contend that the Colonial Office, by appending to its letter the agreements with Siam and with Great Britain, referred it to the Courts to decide upon these documents whether the Sultan was sovereign or not. Such an interpretation is contrary to the plain terms of the letter. Of course, the Colonial Office might have given a bald answer that the Sultan is a sovereign, but it has been the practice, when there are agreements or treaties dealing with the powers of the alleged sovereign, to append to the reply on the question of sovereignty copies of any documents. There are very good reasons for this practice. The department might lay itself open to serious misunderstanding if it took any other course. It might be said that there was a want of candour in merely stating the conclusion that the Power is a sovereign Power without disclosing any such limitations on the sovereignty as exist here. The contention that by appending these documents the Colonial Office remits the question to the Court to form its own opinion upon it, is based on a misconception. When the letter and the documents are read together, it is clear that the Secretary of State says explicitly that the Sultan is a sovereign ruler, and the documents are appended by way of making it clear that their effect has been considered and that the Colonial Office has given all due weight to them in arriving at the conclusion that the Sultan is a sovereign prince. There is no ground for saying that because the question involves considerations of law these must be determined by the Courts. The answer of the King, through the appropriate department, settles the matter whether it depends on fact or on law."
Viscount Cave has referred to the documents and observed as follows: "No doubt the engagements entered into by a State may be of such a character as to limit and qualify, or even to destroy, the attributes of sovereignty and Independence---.. But where such a question arises it is desirable that it should be determined, not by the Courts, which must decide on legal principles only, but by the Government of the country, which is entitled to have regard to all the circumstances of the case. In the present case the reply of the Secretary of State shows clearly that notwithstanding the engagements entered into by the Sultan of Kelantan with the British Government that Government continues to recognize the Sultan as a sovereign and independent ruler, and that His Majesty does not exercise or claim any rights of sovereignty or jurisdiction over that country. If after this definite statement a different view were taken by a British Court, an undesirable conflict might arise; and, in my opinion, it is the duty of the Court to accept the statement of the Secretary of State thus clearly and positively made as conclusive upon the point."
11. In the judgment of the Federal Court, Abdul Rashid, C. J. Has observed that : "The first question for determination, therefore, is whether the Nawab of Junagadh is a foreign sovereign so far as Pakistan is concerned. In my opinion this question can be determined only on the information supplied by the appropriate Ministry of the Government of Pakistan and that no other facts or documents can be taken into consideration in determin--ing the status of the Nawab of Junagadh: "
His Lordship has referred to three English judgments in Mighell v. Sultan of Johore ((1894) 1 Q B D 149), Duff Development Company Limited v. Government of Kelantan ((1924) 1 K B 797) and Government of the Republic of Spain v. S. S. Arantzazu Mendi (1939 A C 256) and drew the conclusion as follows : "I respectfully agree with the opinions expressed in the three judgments to which reference has been made above. In my opinion, the information supplied by the Government of Pakistan is conclusive on the subject. It must be held, therefore, that the Nawab of Junagadh is not a foreign Sovereign. This question having arisen in the Courts in 1952, it is not open to us to determine this question on the interpretation sought to be placed on the Instrument of Accession executed by the Nawab of Junagadh in September 1947, and accepted by the Governor-General of Pakistan."
12. The law in accordance with which we have to decide the question as to whether the defendant is a Ruler of Bahawalpur State or not has no reference to the international concept of an independent sovereign. We are bound by the terms of section 87-A, C. P. C., which has been reproduced above. In terms of it, the Ruler of an acceding State or of a merged State is the person who is for the time being recognized by the President to be so or was so recognized before the 14th of October 1955. Therefore, for purposes of the municipal Courts of the country, our law is dependent more completely on the recog--nition of the President than other considerations. Thus, in our case, the information supplied by the appropriate department of the Government as to the recognition or non-recognition by the President of a person as the Ruler of an acceding or of a merged State is unfettered by considerations of actual independence, sovereignty, physical existence of his State or his political status for other purposes. Our additional reasons for taking this view are briefly set out in the following paragraphs in which we propose more specifically to discuss the contentions of Mr. Khalid Ishaq.
13. It is an admitted fact that in Pakistan there are acceding States which are not merged States and there are also acceding States which have become merged States. In view of the merger or acceding States, Mr. Khalid Ishaq advanced two argu--ments. Firstly that in consequence of the merger of acceding States they have lost their physical existence; therefore, any reference to them as acceding States would be unreal. Secondly, that in the second part of the common definition of the "Ruler" of an acceding State and of the Ruler of a merged State, the time at which the Ruler is or was to be recogized by the President is mentioned. That is for the time being or "before the 14th day of October 1955". This date is the same which is mentioned in the definition of a merged State as the date on which "a State which being immediately before" that date an "acceding State", was on that date incorporated into the Province of West Pakistan. Therefore, he argued the mention of the date in the second part of the definition of a Ruler co-relates the second part of the definition with merged States. This being the correct construction of the law, the Ruler of a merged State, according to counsel, could be recognized at the indicated time only, i.e. Before the 14th day of October 1955, and any recognition of the Ruler of a merged State after that date fails to satisfy the legal requirements of recognition.
14. The first argument can be disposed of shortly because the introduction of the idea of physical existence of States is out of place. The definitions are in this respect predominantly conceptional and not factual. It is true that an acceding State ceases to exist as such when it is incorporated into Pakistan but for that matter even a merged State has no existence because merger causes its physical disappearance. What is merged is gone except conceptually. The Ruler of a merged State is a fiction of law. The second argument can be clearly appreciated if the definitions of a "merged State" and of a "Ruler" are placed side by side as follows: The italics are ours. The same date is mentioned in the definition (a) and in the second part of the definition (b) but the word "or" is important in definition (b). Irrespective of whether this word is read as conjunction or disjunction the fact remains that the language draws no distinction between the Ruler of an acceding State which is merged and of an Acceding State which is not merged.
Therefore, to introduce this distinction would amount to adding something to the definition which it does not contain. But to this view an objection was raised by saying if this distinction is foreign to the definition (b), then why is it 7 The answer is that the reason becomes obvious if we note the difference in the nature of the recognitions that are mentioned in the two parts. In the first part the recognition is "for the time being" and in the second part it is unqualified. The distinction that has been created, therefore, is that recognition which was granted before the 14th of October 1955, is guaranteed, and ail other recognitions can be for the time being. This is in accordance with the agreements of merger which were made with the Rulers of acceding States at the time of the merger of their States in Pakistan. The agreement of merger with the father of the defendant shows his personal privileges, dignities and titles enjoyed by him at the time of the merger were assured to him. Those assurances are protected by mentioning the date of the merger of acceding States.
We are not called upon in these proceedings to express any opinion on the scope of the assurances or of their protection and refrain from doing so.
15. We would like to point out that in the category of those Rulers of acceding States who were recognized as such before the 14th of October 1955, are included the Rulers of merged States because, as mentioned above, the emphasis is on the time and the nature of recognition.
16. If we are right in drawing the conclusion that neither physical existence of acceding and merged States, nor merger itself, in comparison with the time and nature of recognition, is vital, then the contentions of Mr. Khalid Ishaq lose their entire force. Additionally, in this case we have clear cut information before us that the defendant is the recognized Ruler of Bahawalpur in terms of section 87-A, C. P. C. We presume that the President has taken into consideration all relevant circumstances for granting the recognition which has been conveyed to this Court.
17. In the above circumstances, we uphold the objection of the defendant in terms of section 87-A read with sections 85 and 86 of the Code of Civil Procedure and dismiss the suit since it has been filed without the consent of the Central Government as required by section 86, C. P. C. Taking the circumstances of the case into consideration we leave the parties to bear their own costs.
K. B. A.
"(a) `Merged State' means aState which being immediately before the fourteenth day of October 1955, an Acceding State was on that day incorporated into the Province of West Pakistan.(b) `Ruler of an Acceding State or of a Merged State' means the person who for the time being is recognized by the President as the Ruler of an Acceding State, or who imme--diately before the fourteenth day of October 1955, was the duly recognized Rules of an Acceding State."