ABAID ULLAH KHAN, J--This appeal against the order of the learned Senior Civil Judge, Lahore, dated the 2nd December, 1981, rejecting the plaint of and dismissing the appellants' suit for recovery of damages amounting to Rs.84 million from the respondents arises out of the following circumstances. The appellants, who were plaintiffs 1 to 37 in the suit, are citizens of Pakistan. Plaintiff 38, Messrs Skyline Travels Limited, Lahore, which has chosen not to appeal, is a travel agency and, as it alleges, is recognised by and registered with the International Air Transport Authority.
Defendant-respondent 1 is the Government of Netherlands (Holland), defendant-respondent 2 is K.L.M. Royal Dutch Airlines and defendant-respondent 3 is Lufthansa German Airlines. Respondents 2 and 3 have their head offices in Pakistan at Karachi and their branch offices at Lahore. Plaintiff 38 claimed to be agent of respondents 2 and 3 for the purpose of selling their air tickets. Plaintiff 38 issued air tickets of respondent 3 for the appellants' travel from Karachi to Amsterdam and onwards to Brussels and London and return to Karachi. Plaintiff 38 alleged that it had sold air tickets to the appellants on behalf of respondents 2 and 3 and also made bookings for the appellants' stay for three nights in Amsterdam through and on behalf of respondent 3. Amsterdam was chosen as the first stop, because as the first stop, because, $s the appellants say, of their 'keen desire to see the world famous tulips of Holland in their flowering season'. The -" appellants contend that they were led to believe by respondents 1 and 2, by what is contained in the brochure issued by the Netherlands National Tourist Office and time table of respondent 2, that they would be able to enter and visit Holland without any difficulty or problem. The Netherlands National Tourist Office brochure opens with the following inscription:- "Welcome in the Netherlands.
You are very welcome in a friendly country that makes tourists feel at home immediately. A country of flowers and museums, a country where a visitor can have a very good time indeed. He will enjoy the atmosphere of the canals during the soft summer evenings and the vast polder landscape, unspoiled by the centuries. A country of flourishing industry and ancient merchant homes, of windmills and of wooden shoes. But above all, Holland is a country of friendly people, who will say to you: welkom, wellkommen, men, bienvenue, benvenuto, bienvenido, welkommen, valkomna."
The time table of K.L.M. Gives, inter alia, the following information:- "Travel documents. Before you start your journey, check to be sure all your travel documents-- visas, passports, vaccination certificates etc.--are in order. All airlines reserve the right to refuse carriage to passengers whose documents are not in order."
The appellants secured visa through plaintiff 38 from the Royal Dutch Embassy, Islamabad, for visit to Holland. They maintained that by issuing visas on payment of fee the Government of Netherlands (Holland), respondent 1, entered into a legally binding contract with them whereby they became entitled to enter Netherlands for the prescribed period subject to legally valid and bona fide exceptions. They alleged that each of them paid Rs.12,482, to respondents 2 and 3 through plaintiff 38 on account of air fare, hotel accommodation and sightseeing tours.
2.On the 27th May, 1980, the appellants travelled by respondent's Flight No.LH-641 from Karachi to Frankfurt, from where they proceeded to Amsterdam on respondent 2's connecting Flight No.KL-
244. They arrived at the Schipol Airport of Amsterdam in the afternoon of the 27th May, 1988. The Dutch immigration authorities refused their entry into Holland. They blamed the Dutch immigration officers to have behaved with them in a rude and insulting manner and to have kept them in the lock-up till the next day. They made grievance of the fact that they had not been given their baggage and were boarded upon respondent 3's plane for taking them back to Karachi. The plane touched Frankfurt airport on its way to Karachi. The treatment meted out to the appellants by the officials of respondent 3 at Frankfurt has been adversely commented upon by them in the plaint.
Respondents 2 and 3 have seen described to have been conscious and deliberate parties to the wrongful acts of respondent 1 and as such are held by the appellants to be equally liable for payment of damages to them
3. Plaintiff 38 felt aggrieved with the publication of news touching the humiliation suffered by the appellants at Amsterdam and maintained that it had damaged its reputation and adversely affected its business and income. The plaintiffs in all claimed damages to the tune of its. 84 million.
4. The Government of Netherlands, respondent 1, did not submit to the. Jurisdiction of the Court, rather it moved application under Order VII, rule 11 read with section 151 of the Code of Civil Procedure with the avowed object of getting the suit dropped against it. The jurisdiction of the Court to proceed against it was questioned on the grounds that the suit was misconceived and an abuse of the process of the Court inasmuch as it related to the acts of a sovereign State outside the territorial jurisdiction of the Court and that the suit was barred under the domestic law (including the Code of Civil Procedure and State Immunity Ordinance, 1981) as well as under the principles of international law.
5. Respondent 2 took exception to the territorial jurisdiction of the Court stating that the alleged incident giving rise to the claim of damages occurred wholly outside the jurisdiction of the Court and no part of the alleged cause of action arose within its jurisdiction. It maintained that the appellants had no cause of action against it because the terms and conditions (mentioned in the documents filed by the appellants) upon which plaintiff 38 alleged it had contracted fox the tour with the appellants specifically stipulated 'airlines concerned are not to be held responsible for any acts, omissions or event during the time passengers are not on board the aircraft' and since the alleged acts and omissions complained of by the appellants had not occurred on board the aircraft it was not liable to the appellants in any manner. It gave a lie to the appellants' allegations that it had in any manner conspired or colluded with respondent 1 for meting out any maltreatment to the appellants. It pointed out that the Netherlands National Tourist Office, an extract from whose brochure has been reproduced above and which, according to the appellants, led them to believe that they would be able to enter and visit Holland, was an independent legal entity and it had no connection with it. Falsifying the appellants' averment that they wanted to see tulips it stated that the time selected by them was totally inappropriate as the tulips seeing was over by about the second week of May every year. It denied that plaintiff 38 had arranged air travel of the appellants or had made reservations as its agent. It also denied that plaintiff . 38 had sold any tickets to the appellants on its behalf. It clarified that it was a public limited company constituted and existing under the laws of Netherlands and that respondent 1 was a majority share-holder thereof.
6. As regards the appellants' accusation that respondent 2 had not made over to them their baggage at Amsterdam the latter explained the procedure for the delivery of baggage by the airlines and its collection by the passengers at Schipol and every other airport as follows: - "In accordance with the standard and customary practice at all airports, the baggage of the passengers is made available to them at Customs baggage area for collection by the passengers themselves after they have been allowed to enter the country by the Governmental Authorities of that country. This defendant delivered the said baggage at the Customs baggage area at Schipol Airport. The airport at Amsterdam does not belong to this defendant but it is owned and operated by a company owned and controlled by respondent No.l who set the procedures which passengers have to follow on disembarkation. The passengers can only collect their baggage after they have been allowed to enter the country by the immigration authorities of respondent No. 1. The said passengers were not so allowed to enter the country by the authorities of respondent No.l and consequently the said passengers could not proceed to the Customs baggage area to collect their baggage. Moreover, the baggage has to be cleared by the passengers themselves through the Customs. Since the immigration authorities of the respondent No.l did not permit the said passengers nor this defendant was able to or allowed to collect the baggage, the authorities of respondent No.l took possession of the said baggage."
Respondent 2 denied that it had violated any of the contractual or trade obligations towards the appellants. It said that it was under no obligation to deliver the baggage to the appellants personally and that its only obligation was to make the baggage available at the customs baggage area and this it did and it was for the appellants to collect the same and get it cleared through the customs. It denied point blank that it had in any manner wrongfuly held the baggage in its own custody. It affirmed that the baggage of the appellants was lying at the customs baggage area at the airport and since the immigration authorities of respondent 1 had not permitted the appellants to enter Netherlands the said authorities had also taken possession of the baggage and that it could not do anything in this connection. It contended that once the authorities of respondent 1 had refused permission to the appellants to enter Netherlands there was nothing that it could do to assist them to enter the country or to deliver them their baggage. It maintained that it was inconceivable that it would in any manner conspire with respondent 1 or its officers or any other Government or its officers to violate any rights of its passengers. It denied that its buses were used to carry the appellants to the lock-up. It pointed out that the buses belonged to another company.
7. Apart from taking exception to the jurisdiction of the Court and sustainability of the suit respondent 3 maintained that according to plaintiff 38's tour conditions the carrier, like respondent 3, was not to be liable or responsible for any act, omission or event during the time the passengers were not on board the aircraft and since none of the alleged acts or omissions asserted by the appellants against it (respondent 3) occurred on board its aircraft, it was not liable to the appellants in any manner whatsoever. Disputing the correctness of the plaintiffs' assertion in para 4 of the plaint that plaintiff 38 was an agent of respondents 2 and 3 for the purpose of selling their air tickets and further that it was their agent for making the reservations and arranging air travel offered to and contracted for by respondents 2 and 3 and the appellants, it stated its position as follows,-- "Plaintiff No. 38 is an independent Travel Agency and a member and Sales Agent of International Air Transport Association. Under its agency arrangement with IATA, the plaintiff No. 38 is authorised by IATA to issue the tickets of all the IATA Airlines, including those of the answering defendant, but there is no agency agreement between the plaintiff No. 38 and the answering defendant. In particular the answering defendant denies that the plaintiff No. 38 was an Agent of the answering defendant for the purposes of reservations or arranging air travel or group tour and the plaintiffs are put to a strict proof thereof. It is respectfully clarified that plaintiff No. 38 had or has no authority whatsoever to bind the answering defendant in any manner whatsoever, except that the plaintiff No. 38 had the right to issue tickets of the answering defendant as an IATA Agent. Without prejudice to the foregoing contention, it is respectfully submitted that as regards the said excursion tickets of the answering defendant's Airline issued by plaintiff No. 38, the answering defendant's position was that of a Carrier only and not of a Tour Organiser or Operator. The said group tour referred to by the plaintiffs had been organised by the plaintiff No. 38; for fulfilment of which the plaintiff No. 38 alone can be liable. Vis-a-vis the answering defendant, the plaintiffs were just ordinary passengers travelling in normal course of answering defendant's day to day business.
As regards hotel bookings, it is respectfully submitted that these are effected by the Travel Agencies and the hotel reservation contracts normally exist between the Travel Agents and the Hotels. However, as part of additional service, which service is also customarily provided by the leading airlines to the travel agents specially the IATA members, the answering defendant assisted the plaintiff No. 38 in confirming the hotel reservations. At any rate, this was not done on behalf of or at the request of the rest of the plaintiffs. It is also denied that any payment towards hotel booking was received or appropriated by the answering defendant."
8. Respondent 3 admitted that the appellants had travelled on the 27th May, 1980, from Karachi to Frankfurt on its Flight No LH-641 but denied that this was done under any arrangement or agreement as alleged by them. It asserted that the appellants were carried on its aircraft as ordinary passengers in normal course of its business as an international carrier with no special contract or reservations. It vehemently denied that it had in any way conspired with respondent 1 or respondent 2 in any manner whatsoever so as adversely to affect the interests of the appellants. It said that as an out bound carrier on whose tickets the appellants had travelled it was obliged to abide by the directives issued by respondent 1's authorities to carry back the appellants to Pakistan when they had been refused admission into Netherlands by respondent 1's authorities. It averred that it was only acting in obedience to law and directives of the sovereign State within whose jurisdiction its Amsterdam office came and that it had no malice or bad intention to harm the appellants. It clarified that Frankfurt Airport belonged to and was controlled by West Germany and not by it (respondent 3). It disclaimed responsibility for any action of the West German Federal Border Police at Frankfurt Airport as it had not control over the Police force. It held plaintiff 38, as organiser and operator of the tour, to be responsible for all costs and consequences resulting from the tour and for the consequential damage or losses to as well as mental or physical agony suffered by the appellants.
9. The learned trial Court held the action taken by respondent 1's authorities to refuse permission to the appellants to enter Netherlands to be an act of foreign State for which respondent 1 could not be sued in Pakistan Court. It observed that under international law as well as in view of the provisions of the State Immunity Ordinance, 1981, suit against .Respondent 1 was not maintainable.
It formed the view that the cause of action touching refusal of entry into Netherlands and alleged maltreatment to the appellants arose in Amsterdam and, therefore, the civil Court at Lahore had no territorial jurisdiction to take cognizance of the suit. It remarked that respondent 1 was well within its powers to decline to allow entry to the appellants into Netherlands despite the fact that they were holders of visa. Consequently for lack of jurisdiction and in face of legal impediments to the sustainability of the suit it rejected the plaint under Order VII, rule 11 of the Code of Civil Procedure against respondent 1. Working on the view that in the absence of respondent 1 the suit against respondents 2 and 3 could not be proved it concluded that the suit against respondents 2 and 3 in the existing form without respondent 1 could not proceed. Accordingly the suit was dismissed against respondents 2 and 3. Feeling aggrieved the appellants have approached this Court in appeal.
10. The learned counsel for respondent 1 claimed immunity for respondent 1 from the jurisdiction of the Courts of Pakistan for two-fold reasons: the act complained of, namely, refusal to allow entry to the appellants into and their expulsion from Holland was an act of state and international law as also the State Immunity Ordinance, 1981 (VI of 1981), accorded general immunity. The learned counsel for the appellants disputed the correctness of the contention of the learned counsel for respondent 1 that the treatment meted out by the functionaries of respondent 1 to the appellants could constitute an act of State. He referred to the judgments of the Supreme Court of Pakistan reported as Mir Ahmad Nawaz Khan Bughti versus Superintendent, District Jail, Lyallpur PLD 1966 SC 357, In re: Special Reference under Article 187 of the Interim Constitution of Islamic Republic of Pakistan by President Zulfiqar Ali Bhutto PLD 1973 SC 563 and A. M. Qureshi v. Union of Soviet Socialist Republics P L I) 1981 SC 377 which explained and gave illustrations of acts of State. The meaning of 'act of state' and scope of its immunity from the Court's jurisdiction in English law, which we generally follow, is succinctly stated in paras. 1413 and 1414 (reproduced below) of Volume 18 of Halsbury's Laws of England, fourth edition, which give the crux of judicial pronouncements spread over a span of more than two centuries.
"1413. Meaning of 'act of State'_An act of state is a prerogative act of policy in the field of foreign affairs performed by the Crown in the course of its relationship with another state or its subjects.
Typical sets of state are the making and performance of treaties, the annexation of foreign territory, the seizure of land or goods in right of conquest, declarations of war and of blockade. The detention of an enemy alien in wartime or his deportation may be regarded as an act of state."
"1414. Acts of State outside the Court's jurisdiction-An act of State is essentially an exercise o sovereign power and hence cannot be challenged, controlled or interfered with by municipal Courts. Its sanction is not that of law, but that of sovereign power, and the municipal Courts cannot question it: it is a catastrophic change, constituting a new departure, and the municipal law has nothing to do with the act of change by which the new departure comes about.
Hence the Courts have no jurisdiction to question the validity of an act of state, and an individual cannot rely upon an act of state in order to found a cause of action."
An act of State is an act of Government involving a matter of policy and is usually performed in the course of its relations with another state, including its relations with the subjects of that State, it is an act done by the State in execution of sovereign power. The action of the immigration authorities of respondent 1 declining to admit appellants into their country and, subsequently deporting them did not involve consideration of any policy. It was just a routine type of action, probably under some rules framed by the Government and stood at a much lower pedestal than that of an act of State. It can by no means be categorised as an act of State as has been explained above.
11. However, immunity from the jurisdiction of the Court in international law and under the provisions of the State Immunity Ordinance, 1981 remains to be adjudged. The subject of 'State immunity', including. Its nature, scope, different facets, application and limitations, with reference to the well-settled principles of international law, standard international law treaties, Islamic Law and various provisions of the State Immunity Ordinance, 1981, has been discussed and commented upon in sufficient detail by the Supreme Court of Pakistan in the case of A.M. Qureshi v. Union of Soviet Socialist Republics PLD 1981 SC 377. No useful purpose would be served by dealing with the subject over again here. The State Immunity Ordinance, 1981, gives recognition to rules of international law which, inter alia, lay down that no State can claim jurisdiction over another and although States can sue in foreign Courts they cannot as a rule be sued unless they voluntarily submit to the jurisdiction of the Court concerned.
12. Unless a case falls in any of the exceptions enumerated in sections 4 to 10 of the State Immunity Ordinance, 1981, a state is immune from the jurisdiction of a Court in Pakistan. The learned counsel for the appellants maintained that the case in hand was covered by section 5(3)(c) of the Ordinance which lifts the veil of immunity in respect of proceedings relating to commercial transactions. Section 5(1)(3)(c) runs as follows:- "5. Commercial transactions and contracts to be performed in Pakistan.--(1) A State is not immune as respects proceedings resting to-- (a)a commercial transaction entered into by the State; or (b)an obligation of the State which by virtue of a contract, which may or may not be a commercial transaction, falls to be performed wholly or partly in Pakistan.
(2)
(3)In this section "commercial transaction" means-- (c)any other transaction or activity, whether of a commercial, industrial, financial, professional or other similar character, into which a State enters or in which it engages otherwise than in the exercise of its sovereign authority."
The learned counsel tried to bring the activities of respondent 1 into the ambit of commercial transaction by arguing that the tourist office of respondent 1 had publicised its invitation to Netherlands by distributing its brochure containing the inscription quoted in the beginning of this judgment that respondent 2, in which respondent 1 holds substantial shares, advertised its time table informing, among others, the appellants how to undertake travel to .Holland and that respondent 1's counsellor office at Islamabad issued visa for entry into Holland and all this was done for earning money which the appellants would have spent as fare for travelling by respondents 2 and 3 and as board, lodging and other charges during their stay in Holland. The learned counsel for respondent 1 met this argument by pointing out that respondent 1 had neither placed any advertisement nor held out any invitation nor issued tickets nor, it had any nexus with calling the appellants to Netherlands. He contended that respondent 1 could not be synonymised with the Netherlands National Tourist Office nor with respondent 2 as they were quite different entities. Respondent 2 is a corporation incorporated under the laws of Netherlands while the Netherlands National Tourist Office is not integrated into the Government of Netherlands; it is an independent office. Respondent No.2 and the Tourist Office are themselves legally responsible for their actions, respondent 1 is not answerable for their acts and omissions. Respondent 1, as a distinct legal entity, is not proved to have been involved in carrying on commercial transactions as the term is used in the Ordinance, because it is not shown to have indulged in any commercial activity. Therefore, it is entitled to enjoy immunity from the jurisdiction of Courts in Pakistan.
13. According to the learned counsel for respondent 1 the advertisement of the Netherlands National Tourist Office could. Not be taken to be a personal invitation to the appellants for attending some specific function, it was rather a sort of information touching the bright side of Holland made available to the public. No doubt the advertisement paints a rosy picture of Netherlands and is meant to persuade foreigners to visit Holland it, cannot be equated with an invitation which in normal social intercourse is issued to a particular person to attend a particular function or event. It simply served the purpose of attracting tourists to Holland. The appellants could not make it a basis of their cause of action.
14. The contents of time table of respondent 2 can hardly be interpreted to serve any sort of invitation to the appellants. It simply gave particulars of the flights and some sort of ancillary information like the one referred to in the opening para of this judgment. Therefore, anything mentioned in the time table cannot provide a cause of action for suing it by the appellants.
15. The purchase of tickets -by the appellants from respondent 3 at Lahore would not constitute a cause of action for suing respondent 1 for its functionaries' acts which took place wholly in Netherlands.
16. The issuance of visa to the appellants from the counsellor's office of the Netherlands Embassy in Islamabad, and not at Lahore as alleged by the appellants, cannot be formed basis of action re: respondent 1's officers' acts complained against which took place in Amsterdam. A visa, as explained in Luke. T. Lee's Consular Law and Practice, pages 178 and 179, is a document or an endorsement placed upon a passport testifying that the passport has been examined and found in order for the bearer's passage to or continued residence in the country granting the visa; it is only prima facie evidence that the holder, according to the available information and examination, is entitled to enter the sending State but it is no guarantee that he will be able to do so as the final decision still rests with the immigration officials who may refuse permission to enter the country even tough an alien has a valid passport and visa. The issuance of visa does not partake of creation of any contractual -obligation binding the state to allow unhindered entry into its territory to the holder of visa.
17. It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within the dominions or to admit them in such cases and upon such conditions as it may see fit to prescribe. The reception of aliens is a matter of discretion and every State is by reason of its territorial supremacy competent to exclude aliens from the whole or any part of its territory. The right of a state to expel an alien whether he is only on temporary visit or has settled down for professional or business purpose on its territory is well recognised. Consequently the immigration authorities of respondent 1 at Amsterdam were well within their rights to decline to allow the appellants to enter Netherlands and to expel them despite their having secured visa.
18. The cause of action against respondent 1 is inseparable from the cause of action against respondents 2 and 3. It is only if action of. Respondent 1 is held to be justiciable in Courts of Pakistan that respondents 2 and 3 can be drawn in and proceeded against. However, j as respondent 1 is found to enjoy immunity from jurisdiction of Pakistani Courts it would be otiose to proceed against respondents 2 and 3. In the circumstances the impugned order of non-suiting the appellants cannot be taken exception to. The appeal is, therefore, dismissed with costs.