When Foreign Judgment not Conclusive

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When Foreign Judgment Not Conclusive:

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except.—

  1. Where it has not been pronounced by a court of competent jurisdiction;
  2. Where it has not been given on the merits of the case;
  3. Where it appears on face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the Law of Pakistan in cases in which such law is applicable;
  4. Where the proceedings in which the judgment was obtained are opposed to natural justice;
  5. Where it has been obtained by fraud;
  6. Where it sustains a claim founded on a breach of any law in force in Pakistan. (Section 13).

Foreign Judgment:

Foreign judgment refers to the decree or order of a foreign court and not to the statement or reasons for such adjudication. Section 13 recognizes the enforceability of a foreign judgment in Pakistan provided it fulfills the conditions enumerated therein. In accordance with private International Law a foreign judgment creates an obligation enforceable by the holder thereof against the judgment debtor. It gives rise to a new cause of action, but does not extinguish the original cause of action.

A foreign judgment is given recognition in International Law on the basis of reciprocity, and on the principles of comity and has force by virtue of international usage and customs and gives rise to rights and obligations. It will operate as resjudicata provided it fulfills the conditions of section 11 and 13 and provided further that it is final and conclusive in court in which it was given. It will be conclusive even if it is subject to appeal. In accordance with the explanation to section 10 the pendency of a suit in a foreign court does not preclude courts in Pakistan from trying a suit founded on the same cause of action. It is only after the adjudication in a foreign court has been obtained that this Section will apply.

A foreign judgment creates obligations and is conclusive in Pakistan except in the circumstances enumerated in section 13. However, a foreign judgment is not by itself executable in Pakistan, except in certain circumstances. It can be enforced in Pakistan by filing a suit in which the cause of action is the foreign judgment. A judgment of a Pakistani court is a foreign judgment in Azad Kashmir

Conditions:

In order that section 13 be applicable, the following conditions must be satisfied:-

  1. The matter must have been directly adjudicated upon;
  2. It should have been between the same parties or parties under whom they or any one of them claim;
  3. The parties must have been litigating under the same title;
  4. The exceptions contained in Section 13 must not be attracted.
  5. The Pakistani courts can refer to the pleadings and the reasoning of the judge to understand what the judgment actually decides and whether any of the exceptions of section 13 apply.

Matter Directly Adjudicated:

This term is different from the term directly and substantially in issue. It is narrower in its meaning and does not mean every issue but refers to those matters regarding which there is specific adjudication or decision and encompasses such matters regarding which relief has either been granted or refused. The term any matter, includes all questions of fact and law. It means the right claimed and not the subject matter. Where the issue raised was not decided the judgment will not be conclusive.

When Not Conclusive:

A foreign judgment will not be conclusive in cases which fall in the exceptions. It is not open to attack on the ground that it proceeds on an erroneous view of evidence or law.

  1. Where It Has Not Been Pronounced By A Court Of Competent Jurisdiction:

A judgment pronounced by a court without jurisdiction is a nullity. In the case of a foreign judgment however the competence of court is to be determined with reference to the principles of International Law and not the municipal law of the competence of the court determined by the territorial competence of the foreign court over the defendant or the subject matter of the suit.

Whether the foreign court had jurisdiction over the suit in accordance with the laws of the country where it is situate, is to be determined conclusively by the foreign court and it is not for Pakistani courts to determine the competence of foreign courts under their municipal law. The date for testing the validity of the decree is the date on which the decree was passed and not the date on which its enforcement or execution is sought.

Territorial Competence Over Subject Matter Of The Suit:

In accordance with private International Law a court does not have competence of entertain an action regarding title to or possession of immovable property which is not stated n the territory of the state, from where the foreign judgment was obtained. A foreign court will be competent in terms of Sections 13 only if the property is situate within the boundaries of the state to which the foreign court owes allegiance.

The question as to whether the foreign court had territorial jurisdiction over the property in accordance with the Municipal Law governing such court will be determined conclusively by such foreign court.

Territorial Competence Over The Defendant:

In an action of a personal nature or in an action involving moveable property, the suit should be brought in the court to whose jurisdiction the defendant is subject at the time of institution of the suit. However, the mere fact that defendant possess property within the jurisdiction of the court will not confer jurisdiction in actions of a personal nature against him. In accordance with private international law as enunciated by courts, a court will have jurisdiction over a defendant in the following cases.

  • Where the defendant is citizen of the state where the foreign judgment was obtained.
  • Where the defendant is a resident of the state, from where the foreign judgment was obtained, at the time when the action was initiated. Such residence may be temporary or permanent.
  • Where the defendant has himself sued as a plaintiff in to the foreign court, and is subsequently sued there as a defendant.
  • Where the defendant had contracted to submit himself to the forum which the foreign judgment has been obtained.
  • Where the defendant had voluntarily appeared in the forum from which the foreign judgment has been obtained. Voluntarily appearance before a foreign court confers jurisdiction upon such court, for the reason that having taken the chance of a judgment in his favour, the defendant cannot be later on allowed to plead want of jurisdiction in the event of an adverse decision. Voluntary appearance with take place if the defendant:-
  • Expressly agrees to submit to the jurisdiction of the foreign court; or
  • Voluntarily appears without protest, or even for the purpose for protesting jurisdiction; or
  • Himself invokes jurisdiction of the foreign court, or, makes an application to set aside an ex-parte decree, or engages a counsel and takes part in cross-examination, or gives a power of attorney to an agent, or files a written statement and questions jurisdiction, or where business is carried out in the jurisdiction of the court through an agent and a decree is passed on a summons to him.

Where The Judgment Has Not Been Given On The Merits Of The Case:

Courts in Pakistan have jurisdiction to examine whether the foreign judgment has been given on merits, for a finding in the negative will render such judgment unenforceable in Pakistan. The test to be employed for such purpose is to find out whether the judgment is pronounced as a penalty for the conduct of the party, e.g., judgment given against a party for default of appearance, or whether it is based upon considerations of the truth or falsity of the plaintiff’s case. Where a defendant though given an opportunity voluntarily refrains from contesting, the judgment will be one on merits.

Where The Judgment Is Founded On An Incorrect View Of International Law Or A Refusal To Recognize The Law Of Pakistan In Case In Which Such Law Is Applicable:

The mistake must be apparent on the face of the proceedings Lex loci contracts’ is an accepted principle of International Law in accordance with which the rights and liabilities of parties to a contract are prima facie governed by the law of the place where the contract was made and foreign judgment given in contravention of this rule will be unenforceable in Pakistan. Another is the rule of Lex loci contracts i.e., the law of the place where the contract is to be performed is applicable.

Where The Proceedings In Which The Judgment Was Obtained Are Opposed To Natural Justice:

This refers to the procedure adopted in obtaining the foreign judgment and not to merits of the decision. The procedure should not be opposed to natural justice. It will have to be seen that the proceedings have been conducted in substantial compliance with the prevailing notions of fair play. Service of summons must be strictly proved. For example, if the defendant is not allowed an opportunity to represented in the proceedings, or without notice to the defendant, or the judge was biased or partial, or based on second or third review, or where a minor is used without a guardian or where the legal representatives of a deceased defendant are not impleaded, the adjudication will not be enforceable in Pakistan. Small errors of procedure, etc. Will not vitiate the judgment. An incorrect view of law will not render the judgment opposed to natural justice.

Where The Judgment Has Been Obtained By Fraud:

Fraud vitiates the most solemn transactions. Judgments obtained by recourse to fraudulent procedure are nullifies and can be got set aside. The fraud must have been in relation to the procedure. Accordingly a judgment obtained on the basis of false evidence will not be binding. Mere concealment of facts is not sufficient to vitiate a foreign judgment.

Where The Judgment Sustains A Claim Founded On A Breach Of Any Law In Force In Pakistan:

Pakistani courts cannot be allowed to become instruments for the violation of the law of the land. They will accordingly refuse to recognize judgments that are founded on a breach of the law of Pakistan, or violative of public policy or repugnant to Islam.

Conclusion:

The enforceability of a foreign judgment cannot be determined merely upon the production of the foreign decree, for in deciding a case on the basis of a foreign judgment various considerations arise which can only be determined by examining the judgment.

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