1. ' Plaintiffs claim to be the Committee of Receivers constituted and appointed, as such, under Royal Decree No,3 of 1984, dated 17-4-1984, promulgated by Maktoum Bin Rashid Al-Maktoum, the then Crown Prince and Deputy Ruler of Dubai U.A.E., relative to the financial affairs and assets of the defendant No,1, both within and outside the U.A.E. A copy of such Decree has been annexed with the plaint. Its examination shows that the same was promulgated and issued after reviewing two Court decrees favouring the Union Bank of Middle East Ltd." in order to protect the interests of all concerned with the financial affairs of Abdul Wahab Ibrahim Galadari", who has been impleaded as defendant No,1 herein. In consequence, all "Galadari Assets", as defined in the Royal Decree, came to vest in the plaintiff Committee of Receivers with the apparent object of settling the debts of the defendant No,1 herein. It is maintained in the suit that the defendant No,1 owns 11,049 shares out of a total 22,588, shares, issued by and subscribed in the defendant No,2 Company, namely, Messrs Hayat Services (Pakistan) Limited, owners of Hotel Mehran, Karachi. The defendant No,1 is said to have been called upon, inter alia, through letter dated 23-1-1988 to transfer such shares in the defendant No,2 company in favour of the Committee of Receivers (shortly termed herein as the "Receivers" or "Committee"). The defendant No,1 responded on 31-1-1988 and maintained that the share-holdings in the defendant No,2 company appearing in his name were so recorded only "as nominee in trust for the actual beneficial owner." Thus having failed in accomplishing the transfer of the said shares, the Receivers filed the instant suit, on 9-3-1988, in this Court.
2. ' Written statements have been submitted by the defendants separately, though, through common counsel.
3. ' An application under Order XL, rule 1, C.P.C. And Order XXXIX, rules 1, and 2, C.P.C. (CMA No,1504/88) was moved contemporaneously with the institution of this suit through which appointment of an interim Receiver is sought to take over charge, control, custody and possession of the shares, subject-matter of the suit, and to prohibit sale, transfer, encumbering and parting with the possession of the same by the defendant No,1, while the suit pends, as also, correspondingly, restraining the defendant No,2 from giving effect to the same. Counter-affidavits have been filed to such application on behalf of both the defendants reiterating, essentially, the defences taken in their respective written statements.
4. ' It would be appropriate now to detail the substance of the defences in suit as also of the replies and Rejoinder to the above-referred application for interim relief. By way of preliminary objections, it has been urged that the law and Constitution in Pakistan do not allow recognition by the Pakistan Courts of executive decrees of a foreign Government purporting to affect title to property situated in Pakistan, more so when such executive foreign decrees are penal in nature or in contravention of public policy. Laws of other countries cannot be enforced in Pakistan. Contrary mandate, as regards enforcement of foreign decrees, is to be read, generally, in the Civil Laws of Pakistan and, particularly, in Article 4 of the Constitution. Only such decrees of a foreign Government can be recognised, as fall within strict legal limits. Besides, constitutional competence has to be established of the authority issuing a decree (which ex facie if missing) before proceeding with any suit (preliminary objection-D). At any event, only judicial decrees can be enforced in Pakistan and such too if requirements of Section 13 of the Code of Civil Procedure are satisfied, which the Decree in question does not so satisfy. On merits, it is pleaded that the defendant No,1 is only an ostensible holder of the shares under reference, the real owner being quite another person. In consequence, such shares do not constitute a "Galadari Asset", even within the meaning of the aforesaid Decree.
5. Then it is maintained that there are no allegations of waste and the very fact that damages have been claimed, as an alternative relief, bespeaks that the plaintiff is not entitled either to seek appointment of an interim Receiver or an order of restraint by way of a temporary injunction.
6. Basides, the injunction claimed, it is urged, would adversely effect the interests of the majority shareholders.
7. ' Before dealing with the above application further, it will be advantageous to point out that the plaintiff in the supporting documents of the plaint had also pleaded that in respect of a bail matter in a U.S. Court, defendant No,1 had stated as under: "Mr. Galadari: Your honour, the hotel in Karachi is may be 50% belongs to me, It's net worth (sic) more than a million and a half to 2 million, and it is not something which you can sell over-night to get money and there is also a foreign exchange regulation in Pakistan. I cannot just sell the goods and bring the money over here. That is the only thing I have which is in my name."
8. ' As regards the quoted statement, the defendant No,1 has maintained that the same was made purely as a nominee of the real owner, that defendant expecting that "the actual beneficial owner would have no hesitation in permitting me to submit his interest as security to secure my release on bail."
9. ' While the above application was pending, an application under section 151, C.P.C. (C M A No, 6833/88) was filed by the plaintiff to bring on record an affidavit of Hamidi Abdul Majeed, Legal Adviser to the Government of Dubai, U.A.E., in relation to the promulgation and issuance of Royal Decree No,3 of 1984. Such affidavit is also in the shape of an affidavit-in-rejoinder. Therein, inter alia, are assertions that the above-said Decree was issued with full authority and in exercise of lawful power since the Ruler and the Crown Prince of Dubai, U A E, are the source and fountainhead of all laws in Dubai and that laws in force in Dubai are promulgated either by the Ruler or the Crown Prince of Dubai. The decree in question, avowedly, was published in the Official Gazette of the Government of Dubai in April, 1984 and such Official Gazette is the official publication for the laws of the Emirate of Dubai. The Decree has been and continues to be in force ever since. Subsequently on 11-4-1989, an application was filed on behalf of the defendant (without specifying which, but because it was supported by the affidavit. Rafiq Dhedhi, elsewhere claimed to be the attorney of the defendant No,1, the application could be limited to the defendant No,1 alone) under Order VI, rule 17, C.P.C. Whereby the above-quoted paragraph-D in the written statement was sought to be deleted (CMA No, 2654/89). Such application was granted by consent on 19-4-1989 and due amended written statement, on behalf of the defendant No,1 was submitted on 3-5-1989. On 21-2- 1990 the plaintiff submitted yet another application under section 151, C.P.C. Through which a photostat copy of the purported affidavit dated 11-5-1989 of the defendant No,1, filed by him in the High Court of Justice, (Chancerry Division), England, in case No, C.H. 1989 D No,2034, instituted by the Dubai Bank against various persons, including the defendant No,1 herein, was sought to be brought on record. In this affidavit the Royal Decree aforesaid is claimed to have been accepted by the defendant No,1 as legal, valid and binding. Still another application under section 151, C.P.C. Was filed on 16-8-1990 (C.M.A. No, 3715/90) by the plaintiff wherein another additional affidavit-in- rejoinder was sought to be filed maintaining that in the same affidavit, purportedly, filed in the High Court of Justice in England, the competence and enforceability of the Royal Decree was acknowledged and admitted by the defendant No,1. On the same date viz. 16-8-1990, an application under Order XIX, rule 2, C.P.C. (C M A No, 3714/90) was filed on behalf of the plaintiff seeking a direction that Rafiq Dhedhi, the alleged attorney of the defendant No,1, be directed to submit himself for cross-examination in relation to his averments made before this Court. Counter- affidavit in respect of the foregoing applications was duly submitted by the referred Rafiq Dhedhi.
10. The burden of this counter-affidavit is that the plaintiff has filed one application after another, which are repetitive in nature, solely to confuse the issue and to burden the record. As regards the affidavit, allegedly, filed in the High Court of Justice (Chancerry Division), England, it is said that such is neither admissible nor relevant in the present proceedings and, besides, the plaintiffs were not even a party in such proceedings filed by the Dubai Bank. It is denied that any case for cross- examination has been made out. The other allegations are also denied.
11. ' Before examining the merits of the application seeking interim relief, it would be appropriate to dispose of the subsequent Misc. Applications. Taking up C.M.A. 6833/88 an application under section 151 C.P.C. For taking on record the affidavit of Hamidi Abdul Majeed, Legal Adviser to the Government of Dubai, such has not adequately been repudiated by the defendant No,1, either as regards the competence of the deponent to speak about the prevailing legal situation in Dubai or as to the contents of his deposition. Subject to the examination of the matter in detail at the hearing, this application is allowed. C.M.As. Nos. 954/90 and 3715/90, both under section 151, C.P.C.
12. Are directed towards the same end namely, to bring the purported averments of the defendant No,1 through an affidavit submitted in the High Court of Justice in England on record. It is true that the object could be achieved through a single application. It is also true that, as for as possible, repetitive applications or depositions by way of affidavits should be avoided, all the more so because the Courts in these times have a heavy load of pending cases to grapple with the unnecessary or repetitive proceedings can only lead to delays and prolongation besides confusing and relegating the main controversies in the background. However, applications and proceedings ought not be thrown out solely for these reasons. Something more may be required for that to wit, inter alia, mala fides or vexatious character of the same. Such elements missing, if merits permit, discretion must always be governed by principles calculated to secure the advancement of the ends of justice. As regards the said two applications such seem, apparently, to make assurance doubly sure that what the defendant No,1, allegedly, stated in the High Court of Justice in England, as to the validity and competence of the Royal Decree, involved here, should be properly and emphatically brought on record. In the relevant counter-affidavit, while the relevancy and the admissibility of such affidavit is denied, its factum is not disputed. As such, but subject to all just exceptions, for the purposes of the interlocutory proceedings, I would allow C.M. As. Nos. 954/90 and 3715/90 Coming now to the application of the plaintiffs under Order XIX, rule 2, C.P.C. (CMA No,3714/90) seeking the cross-examination of Rafiq Dhedhi, purported attorney of the defendant No,1, the sole ground on which that application is based is that such attorney has disputed the legality, validity and affectiveness of Royal Decree No,3 of 1984, whereas the defendant No,1 himself in the High Court of Justice in England, through his above-referred affidavit in hat Court, has made manifest admissions in relation to such Decree and these leas being contradictory the said attorney should be subjected to cross-examination. It is incontrovertible that there is a factual contradiction involved here, as claimed by the plaintiffs. However, whether a particular document, order or enactment is valid in law or not is a legal question. While normally it is to be expected that litigants would be consistent in factual as well as legal stands the consequences of such contradictions have got to be different. Where a fact was admitted in one form or at one time and disputed at another the effect could be dealt with in accordance with the concept of admissions and for such purpose, even in interlocutory proceedings, unless the factum of admission was not denied, cross-examination would be warranted and called for. However, if a position at law was taken at a particular point of time or place or forum and which was different from what was said or done at a previous time or at another place or in a particular forum, that being a question of law alone, would not, in itself, warrant any undue dissertation or elaboration, since an admission of law does not conclusively and for all times and places bind a person. At any event, as to the factum of inconsistent pleas in the Court in England and here the contradiction was not denied by the defendant, with what consequence being another matter. The question involved with reference to C M A No, 3714/90, being a purely legal matter no useful purpose would be served by permitting the cross-examination, as sought. On the fact of "Galardari Assets" vesting in the plaintiff Committee, as admitted in England, there is no denial of such admission; when and where it was made and with what result again being a purely legal controversy. This application, therefore, does not lie. It cannot be disposed of otherwise than by being dismissed. Such is so dismissed.
13. ' This brings us to the main controversy involved in the application under Order XL, rule 1, and Order XXXIX, rules 1 and 2, C.P.C. (C.M.A. No, 150/88).
14. ' Mr. Liaquat Merchant for the plaintiff has urged that in so far as the abovesaid Royal Decree is concerned, its competence stands admitted because of the deletion of paragraph-D in the preliminary objections and, therefore, competence of the claim in the suit is beyond doubt.
15. Mr. Khalid M. Ishaque, in response, has maintained that the amendment by way of deletion was sought because of circumstances, which are patent on the record, as the defendant No,1 being a United Arab Emirates' subject had been in no position to get away with a challenge, directed towards the authority of the Ruling Prince. The contention of Mr. Khalid M. Ishaque, subject to further proceedings, can, at this stage, be considered by adopting another approach. For one thing, the amendment sought and allowed, as recorded above, is limited t the defendant No,1 alone, similar objection in the written statement of the defendant No,2 having remained untouched by any amendment. Again, objection taken by either of the defendants in the counter-affidavits separatel filed in respect of the instant application also remains un-touched. There is therefore, scope for such a contention to be still raised firstly, by the defendan No,2 and secondly from the side of both the defendants in so far as the application for interim relief is concerned. As regards the purported admission of competence by the defendant No,1 in the High Court of Justice in England, no more need be said at this stage than that a legal objection does not get foreclosed merely because it is waived in another set of proceedings or even at some stage in c the same proceedings, there being no estoppel against law. By the same token, no amount of consent can confer jurisdiction or competence where none at law subsists. The question of waiver, therefore, shall have to remain open to be addressed, appropriately in the final analysis.
16. ' Proceeding from here, Mr. Khalid M. Ishaque has urged that the question of maintainability of a proceeding has to be approached first before the Court embarks upon the decision, if any, of an interlocutory nature in a suit because if the suit itself is not maintainable and jurisdiction is wanting in the Court neither any final nor any interlocutory relief can be granted. Reference is made in support to the decision of the erstwhile Dacca High Court in the case of Shamsuddin Khan v.
17. Shamsuzzaman, 1970 DLC 684, in which case, however, though the Court refrained from rejecting the proposition as untenable, it did not choose to decide it. In the Supreme Court case of M.O.
18. Ghani v. A.N.M. Mahmood PLD 1966 SC 802 which is referred to in the Dacca decision itself, the question involved was of contempt and it was said that if, eventually, it was found that the suit was wholly outside jurisdiction the interim order, attracting contempt proceedings, would also be one without any validity and its disobedience could not be visited with punishment. It seems to me that the proposition advanced on the strength of the above dicta is too broad to be accepted as a rule.
19. Undoubtedly, in relation to contempt matters the question of jurisdiction has got to be decided first, as laid down by the Supreme Court of Pakistan, because contempt being of a criminal or at the very least a quasi-criminal genus before imposing any punishment the Court seized of the matter of contempt must first be satisfied about the maintainability of the proceedings or, what comes to be same thing, its own jurisdiction to deal with the dispute. Nonetheless this cannot be an unexceptionable approach in respect of all interlocutory proceedings. It would appear that a more plausible view in situations involving interim relief and concomitant jurisdictional controversies in line with Order XIV, rule 2, C.P.C. Could be to decide the question of jurisdiction first, if such could be decided on the available material straightaway and then to go to the matter of interim relief, if jurisdiction was found to be available. Where this is not possible on the record and a serious question of law or fact was projected to go to trial, interlocutory proceedings should be decided, leaving the matter of maintainability and jurisdiction to be dealt with at the appropriate time. If such approach is not favoured the entire proceedings would be aborted by raising questions of jurisdiction, which at a later stage was found to be subsisting and available. At the same time, in granting or refusing interim relief, possibility of jurisdiction ultimately found to be wanting should not be ignored. Such, hopefully, would alone be a balanced dispensation.
20. ' According to the stand taken by Mr. Khalid Ishaque, the Royal Decree relied upon in the suit is neither an executive nor a judicial one, the latter of which ought to fall within the purview of Section 13 of the Code, of Civil Procedure. In this view of the matter, the suit is said to be wanting in any cause of action whatever. It has been further urged that such a Decree, as is under reference here, could only be passed in terms of Article 121 of the Provisional Constitution of the U.A.E. By the Union which, inter alia, in terms of such Article has exclusive legislative jurisdiction in respect of "real estate and expropriation in the public interest" and that being so and Article 116 of the same Constitution envisaging that "the Emirates shall exercise all powers not assigned to the Union by this Constitution" the power and authority of the Emirates in such-like matters stands duly excluded (Constitution of Nations Vol II page 1700 Revised 4th Edition). Mr. Liaquat Merchant in reply points out that "expropriation" which is the equivalent of "dispossession" is not attracted in the context of the Royal Decree in question. Speaking tentatively, it would appear not to be unlikely that the concept of "expropriation" in Article 121 of the UAE Constitution may be the equivalent of acquisition or requisition, with or without compensation, in public interest and may not govern cases, where expropriation is motivated not to denude SIMPLICITER, a person entitled to specific rights but merely to take control and restrict those rights with a view to safeguard the interests of lawful claimants (eg. Creditors) or other persons legally or equitably so placed, as to warrant protection in public interest. Without expressing any firm or final opinion on the subject, such an interpretation cannot be disregarded and if that be so the Royal Decree may not be wanting in due authority, for then it may have legislative connotations, as it manifestly proceeds on two successive judicial decrees.
21. ' The next question raised by the defendants pertains to the extraterritorial nature of the Royal Decree under scrutiny. It has been urged that irrespective of validity of the Decree in the U.A.E. Such is totally without jurisdiction in respect of assets and properties located in another country and in relation to another legal order, particularly, when there is no reciprocal arrangement for mutual enforcement between the two countries, in this case the UAE and Islamic Republic of Pakistan. The argument is attractive and may not be altogether without force, but such need not be decided, at this stage, in respect of the interlocutory proceedings. Placing the case of the plaintiffs at no higher level than one of mere conferment of power on the Committee of Receivers through the Royal Decree to pursue the assets of the defendant No,1, wherever found, solely to protect and safeguard the interests of his creditors, the purpose of this application, if not of the suit itself, may have been duly served. Construed thus, the Committee of Receivers may be taken to have instituted this action, as representing the interests of the creditors in the UAE and seeking, through the instrumentably of this suit, to reach the assets of the defendant No,1 so as to satisfy the claims of such creditors. By necessary implication, the Committee does not attempt to treat the Royal Decree, aforesaid as self-executory. Apparently, only the claim in the suit and right to sue is sought to be based on such Decree.
22. ' Whether or not a decree can be passed. In the suit in favour of the plaintiff-Committee is a matter which is yet to be seen and will undoubtedly depend on the merits of the case, on facts and law. Till then, however, for the purposes of a prima facie case their right to institute the present suit cannot be totally overlooked. More so, because of the nebulous state of facts no immediate findings as to maintainability and jurisdiction can readily and immediately be arrived at. Suffice it to say that the suit poses a serious question to go to trial. Accordingly, for the purposes of interim orders, I would hold that, at the bare minimum, the plaintiff-Committee has a prima fade right to institute this suit to pursue the "Galadari Assets" in Pakistan. Thus viewed the suit may be a properly instituted legal action. Whether or not, as said above, a decree here can lawfully be claimed and what fate the suit will ultimately meet will depend on the facts and law, as they unfold at the trial. For the present, it is enough that the plaintiffs have a case and, if I may say so, as substantial one to go for hearing.
23. ' In further elaboration and continuation of what is observed above in the context of prima facie case it would appear that the prayer of the plaintiff-Committee for interim relief, touching the above-said shares in the defendant No,2 company, cannot be resisted by the defendant No,1 even though tentatively, on the ground that such shares do not belong to him at all. On that score the defendant No,1 has, obviously, failed to indicate even the name of the person to whom such shares are said to beneficially belong nor has that person himself thought it necessary to appear in Court and protect his interests, if any. In addition, as seen above, the defendant No,1 has ex facie admitted in the U.S. Court that the shares in question belonged to him. Whether that statement in such Court had any explainable implications shall have to await further examination and further hearing. It is, therefore, manifest that the plaintiff-Committee has established an arguable case for grant of interim relief. However, the relief need not be one of appointment of an interim receiver. No waste, an ingredient essential to such interlocutory appointments, is even alleged, let alone established. The purpose, on the other hand, can be equally served by an interim order of injunction, as alternatively claimed. Even if there was no such residuary prayer, the Court will always favourably consider and even lean towards granting the less disturbing and less pervasive of any two equally applicable interlocutory reliefs. For this reason, as well, an interim injunction in preference to an interim receiver ought to be the choice. Even so, before any such order can be passed it will have to be seen whether the other essential requirements for passing of such an order namely, balance of convenience and irreparable loss do or do not exist co-extensively with the prima fade case. As regards balance of convenience, such clearly lies in maintaining the state of things as they presently subsist. More so because nothing has been said about any imminent prospect or necessity for transfer of the shares involved in this suit.
24. ' Turning to the imperative of irreparable loss, in the event the shares in dispute are permitted to be transferred while the suit awaits trial, arguably there may be endless transfers and one or more of the succeeding transferees may come to acquire interests in good faith and for consideration, resulting in serious difficulties to reach the shares in their hands. Besides, the ensuing outcome may result in multiplicity of proceedings, a prospect which must be safeguarded against.
25. Resultantly, unless adequate restraint is adressed covering the said shares, the plaintiff- Committee may be exposed to irreparable prejudice.
26. Having found that an interim prohibition can plausibly be issued, it is still to be seen as to what extent such will meet the requir ements of justice and fairplay. There being Injunctions and Injunctions, the one to be granted, as a temporary measure should neither be in any manner excessive nor too restricted, so as to be rendered inadequate and in-efficacious. In the matter of granting interim relief, the Court seized of the main controversy, has, of necessity, to be extremely circumspect and is never to be swa yed by the broad scope of the prayer. Contrary approach should, fore seeably, do more harm than good, all the more so because of protracted pendencies of original actions due to the spate of litigation being currently grappled with in Courts of law.
27. ' Duly considering all aspects of the matter, it seems to me that a just, fair and equitable order would be that the two defendants be restrained from making or correspondingly accepting any transfers of the shares in the suit. However, that would neither preclude the defendant No,1 from participating in the affairs of the defendant No,2 company as share-holder, it being immaterial whether real or only ostensible, nor would it preclude the defendant No,1 in obtaining from the defendant No,2 and putting to use all or any of the dividends, which may accrue on the shares under reference. The injunction, however, would apply to all right or bonus issues flowing from the shares in dispute. Interim orders in the foregoing terms, accordingly, shall follows.
28. ' C.M.As at serial Nos.1 to 5 above stand disposed of accordingly. The matter of Issues, at serial No,6, shall be posted for consideration in due course.