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Second Appeal No. 1249 of 1965, decided on 10th March 1966.

and Defence of Pakistan Rules, 1965 ‑ Provisions of S. 83 not inconsistent with or repugnant to any rule framed under Defence of Pakistan Rules, 1965‑Provisions of S. 83 despite Proclamation of Emergency, still operative.

‑Bar contemplated by section‑Attaches only to institution and prosecution of suit by alien enemy or friend‑Alien whether friend or enemy when sued, not precluded from defending himself and has right to appeal against any decision given against him‑Appeal in such case, nothing more than pursuing of or proceeding with defence.

Abdul Quader Khalifa v. Fritz Kapp 20 C W N 691; Prem Pratap Singh v. Jagat Pratap Kunwar A I R 1944 All. 97; Vaikunth P. Munim v. Prahladshankar K. Shukla A I R 1941 Bom. 406 and In re: Merten's Patends (1915) 1 K B 857 ref.

Abdur Rab‑I and B. B. Roy Choudhury for Appellant.

Siddique Ahmed Chowdhury with A. K. M. Shafiqur Rahman for Respondent.

The plaintiff‑respondent instituted in the 5th Court of Munsif at Chittagong. Other Suit No. 73 of 1963 against the defendant‑appellant who is an Indian National for permanent injunction restraining him from interfering with his (plaintiff's) possession in certain plots of land and eventually succeeded in obtaining the relief sought by him in respect of one of those plots, i.e., plot No. 590. That decree was passed on 25‑6‑65. Against that the defendant preferred an appeal on 7‑7‑65. Thereafter in the month of September 1965, India launched a surprise attack on Pakistan and there was the Proclamation of Emergency made by the President on the 6th September 1965. Thus the two countries were at war. The plaintiff‑respondent thereupon took a preliminary point questioning the maintain ability of the appeal on the ground that "the appellant, who is admittedly an Indian national, is not competent to maintain the appeal as he has no civil right in Pakistan, India being at war with Pakistan" and appears to have moved the Court for an early hearing on that point. The learned Subordinate Judge acceded to the prayer and hearing the appeal accordingly upheld the objection raised by the plaintiff ‑respondent with the result that the appeal was dismissed as not maintainable. The view taken by the learned Subordinate Judge appears to be that with the Proclamation of Emergency all other laws touching aliens stood superseded and all aliens, friends and enemies like, came to be governed solely by the provisions made in the Defence of Pakistan Ordinance, 1965 and since the Sind Ordinance makes no provision as to the rights of alien enemies and alien friends they have no civil rights which include the right of suing as well as of preferring appeals. It appears to have been contended before the learned Subordinate Judge that under section 83 of the Code of Civil Procedure "the appellant who is residing in Pakistan and who is the holder of Tamgha is the order of Khidmat awarded by the President of Pakistan in recognition of his services "is" competent to maintain the appeal to enforce his right as an alien friend", but he rejected this argument on the ground that the intention of the Ordinance as it appeared to him from section 4 thereof, is that operation of the said section shall remain suspended during the period of emergency. Section 4 of the Ordinance reads:

"Any rule made under section 3 and order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Ordinance or in any instrument having effect by virtue of any enactment other than this Ordinance."

As far as I am aware, the authorities concerned have not up till now framed any rule with which the provisions of section 83 ibid. may be said to be inconsistent nor has the learned Subordinate Judge, too, referred to any such rule. It is unfortunate that the learned Subordinate Judge discarded the plain language of the provision cited above and permitted himself to be guided by a supposed intention which, as a matter of fact, appears to be clearly unwarranted. It is again this misconception that misled the learned Judge to reject the authorities cited before him on the ground, to quote his own words, "that the whole question shall have to be decided with reference to the provisions made in the Defence of Pakistan Ordinance, 1965 on the 6th September 1965, by the President of Pakistan and there being no provision as to any civil right of any alien enemy or alien friend in that Ordinance, I think the rules of law referred by the learned Advocate for the appellant do not help his client in any way because no Court can act on the rules and principles laid down in those cases against the provisions made in the Ordinance".

As has already been made clear above, no rule, has, so far, been framed in exercise of the power conferred by section 3 of the Ordinance so that the question of section 83 of the Code of Civil Procedure being inconsistent with or repugnant to any such rule appears to be wholly misconceived. It is, therefore, A equally irrelevant to say that a Court by acting upon the provision of section 83, in the absence of any rule such as is referred to above, is acting "against the provisions made in the' Ordinance". The correct position, however, is that it is In section 83 which still holds the field and it will accordingly be worthwhile to quote that section which provides

"83(1) Alien enemies residing in Pakistan with the permission of the Central Government and alien friends, may sue in the Courts in the Provinces, as if they were citizens of Pakistan.

(2) No alien enemy residing in Pakistan without such permission, or residing in a foreign country, shall sue in any of such Courts.

.‑Every person residing in a foreign country the Government of which is at War with Pakistan and carrying on business in that country without a licence in that behalf under the hand of Secretary to the Central Government shall for the purpose of subsection (2) be deemed to be an alien enemy residing in a foreign. country."

Having regard to the plain language in which it has been couched, I am absolutely clear in my mind, as is also the gist of the argument advanced by the learned Advocate for the appellant, that the bar contemplated by section 83 attached only to institution and prosecution of a suit and an alien, no matter whether a friend or enemy, is legally competent to defend himself and that by preferring an appeal from a decree passed against him he does nothing more than merely defend himself against the liability imposed upon him thereby. An appeal is a mere continuation of the suit and as such by preferring an appeal, a defendant against whom the decree appealed from is passed, really pursues, i.e. proceeds with, his defence as that is nothing more than an attempt to ward off the attack launched upon him by his adversary with initial success in the primary Court. There is therefore no substance in the contention urged on the other side that although an alien is entitled to defend himself in an action brought against him, he cannot initiate a proceeding by way of appeal in that by so doing he shall actually be suiting the other party inasmuch as a suit include an appeal. In support of the above view I need only refer to the authorities that had also been cited before the learned Court of appeal below as well as l decision of the King's Bench relied upon by the learned Advocate for the appellant. Thus in the case of Abdul Quader Khalifa v. Fritz Kapp (20 C W N 691), it has been laid down:

"There is no provision in the Code barring suits against alien enemies and we see no reason why such suits should not be heard and decided during the continuance of the war. No matter whether the cause of action arose before the war or after the war an alien enemy can be sued in our Courts and would have every right to present his case before the Courts in accordance with the laws of procedure."

Another authority on the point is the case of Prem Pratap Singh v. Jagat Pratap Kunwar (A I R 1944 All. 97), wherein it has been held:

"Alien enemies residing in British India without the permission of the Governor‑General, or residing in a foreign country, shall not sue in the Courts of British India and that it is settled law that an alien enemy is entitled to defend if any proceedings are instituted against him."

Again in the case of Vaikunth P. Munim v. Prahladshankar K. Shukla (A I R 1941 Bom. 406), the same view has been expressed in these terms:

"An alien enemy is entitled to defend an action brought against him and in a proper case, where his presence is found essential and necessary for his defence, to refuse an adjournment will be denying him the right to defend. Where, therefore, owing to war he is interned and it is not possible for him to come out under any conditions and give instructions for cross‑examination of the plaintiff and his witnesses when they give evidence, to refuse the application of defendant for an adjournment would be to refuse him the right to defend, which according to the British Jurisprudence and civilization has always been recognised."

Lastly, I come to the decision of the King's Bench Division, to wit, Porter V. Freudenberg, Kreglinger V. S. Samuel and Rosenfeld, In re: Marten's Patends ((1915) 1 K B 857), wherein the relevant principle has been enunciated as follows:‑.

"An alien enemy, unless he be within the realm by the licence of the King, cannot sue in the King's Courts.

An alien enemy may be sued in the King's Courts. An alien enemy who is sued has a right to enter an appear ance and to defend the action; he has also the right to appeal against any decision, final or interlocutory that may be given against him. But an alien enemy who is plaintiff in an action commenced before the outbreak of war has no right of appeal; his right to appeal is suspended until the conclusion of peace."

Thus having regard to the provision of section 83 of the Code of Civil Procedure as well as the authorities cited above, I am of the opinion that the defendant appellant in spite of his being an Indian National was legally entitled to prefer an appeal from the decree passed against him and the appeal so preferred by him is competent. It follows that the decision of the learned Court of appeal below is contrary to the law and cannot as such be sustained.

The appeal is accordingly allowed, the judgment, and decree of the learned lower appellate Court are set aside and the said Court is directed to hear the appeal on merit.

Costs shall abide the result.

Let the records be sent down expeditiously.

K. B. A.

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