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Civil Appeal No. 19 of 1982, decided on 25th March, 1986.
(On appeal from the judgment dated 15‑6‑1981 of the Lahore High Court, Rawalpindi Bench in Civil Revision No 119 of 1979).
‑‑ Art. 185(3)‑Civil Procedure Code (V of 1908), S. 86‑A‑State Immunity Ordinance (VI of 1981), Ss. 6 & 17‑Ciplomatic and Consular Privileges Act (XV of 1972), S. 4, First Sched., Art. 31‑ Leave to appeal granted to consider inter alia, question whether respondents could claim Diplomatic Immunity under S. 86‑A, C. P. C. or any other provision of law and as to what was effect of provisions contained in Ordinance of 1981 on the matter.
‑‑ S. 2(2), O. XXXIII, r. 5(d) & O. VII, r. 11‑Rejection of plaint is deemed to be a decree and, therefore, is appeal-able.
‑‑ O. XXXIII, r. 5 & O. VII, r. 11(d)‑Rejection of application under O XXXIII, r. 5, C. P. C. not on ground that allegation did not show a cause of action but was dismissed on account of provi sions of certain laws, namely S. 86‑A, C. P. C. and Diplomatic and Consular Privileges Ordinance, 1972‑Such order, dismissing applica tion, held, must be construed to be an order falling under O. VII, r. I1(d), C. P. C. and not under O. XXXIII, r. 5(d), C. P. C.‑Order in question, therefore, was appeal-able, even though appellant himself only filed a revision to challenge same‑Revision by appel lant, however, could be construed as appeal in circumstances.
‑‑ S. 4, First Sched., Art. 31‑State Immunity Ordinance (VI of 1981), Ss. 6 & 17‑Trial Court's order passed under Diplomatic and Consular Privileges Act, 1972‑Appeal pending‑Enactment of State Immunity Ordinance, 1981, pending such appeal‑Effect Appellant, held, could rely upon provisions of Ordinance, 1981, for statute relating to Diplomatic Immunity was procedural statute and pendency of an appeal would destroy finality of trial Court's judgment.
A. M. Qureshi v. Union of Soviet Socialist Republics and another P L D 1981 S C 377 ref:
----S. 4‑State Immunity Ordinance (VI of 1981), Ss. 6 & 17‑Emp loyer's immunity or privilege conferred by Ordinance, 1972 not effected by provisions of Ordinance, 1981.
‑‑ S. 67‑Objection to formal proof of document not taken at the earliest point of time‑No such objection, held, could be taken at appellate stage.
Malik Din and another v. Muhammad Aslam P L D 1969 S C 136 and Ch. Muhammad Saleem v. Muhammad Akram and others P L D 1971 S C 516 ref.
Khan Muhammad Yousuf Khan Khattak v. S. M. Ayub and others P L D 1973 S C 160 distinguished.
----S. 4‑Evidence Act (I of 1872), S. 4‑Certificate issued by or under authority of Federal Government, in respect of diplomatic status of "Agency for International Development" properly brought on record‑Evidence of facts stated in such certificate, held, were conclusive evidence‑Such certificate could not be allowed to be disproved.
‑‑‑ S. 4 read with first Sched., Art. 31‑‑Privileges and immunities enjoyed by employers‑Certificate issued by Central Government that employer enjoyed immunity from legal process, held, precluded employer from being sent before Civil Courts in Pakistan.
De. Semenolf v. Railway Administration of Norwegian State, Rivista 29 (1937) 224 ; Russian Trade Delegation v. Kazmann, Annual Digest 7 (1933‑4) 178 and Epoux v. Canada Annual Digest 1938‑40 Case No. 85 ref.
Bashir Ahmad Ansari, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant.
A. G. Chaudhry, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.
Date of hearing : 4th December, 1985.
‑The facts forming the background to this appeal are that the appellant, who was born in Bhabua Town in District Arrah, Bihar (India) in the year 1926, migrated to East Pakistan in 1949 and acquired Citizenship of Pakistan. On 14‑4‑1961, he was appointed as Junior Administrative Assistant by the U. S.‑AID Dacca at a salary of Rs. 520 p. m. and subsequently re‑employed on 8‑12‑1964 as Administrative Assistant. He continued to serve the 11. S.‑AID until 16th December, 1971 where after, on the fall of Dacca, he alongwith his family went to Kathmandu (Nepal) and ultimately came to Pakistan.
On arrival in Pakistan in May, 1973, the appellant requested the U. S .‑AID Islamabad for re‑employment. The request was not granted on the plea that no vacant position was available. But U. S.‑AID, Islamabad, however, by its good offices was successful in securing him a job on 1‑12‑1973 in the United States Information Services (U. S. I. S., Rawal pindi), its sister Organization, where he is still employed.
In December, 1975, the appellant lodged a written claim to U. S.‑AID, Islamabad for reimbursement of salary for the period commencing 16th December, 1971 and ending on 30th November, 1973, the period during which he remained unemployed since his departure from Dacca till his obtaining the job with the U. S. I. S. This claim was based on a Memo. No. F‑27 (4)‑RI/71, dated 18‑12‑1971 issued by the Ministry of Finance, Government of Pakistan on the subject of "Payment of Advances of emoluments of Central Government Servants who were in East Pakistan in connection with their official duties during the recent enemy action to their families in West Pakistan". The operative part of the office memo recited :‑
"The undersigned is directed to say that the President of Pakistan and C. M. L. A. has been pleased to decide that in the case of a Central Government Servant whose family is residing in West Pakistan and who happened to be in East Pakistan in connection with official duties and could not return to West 'Pakistan as a result of the recent enemy action, an amount equal to his full last known net monthly emoluments shall be advanced to his family in West Pakistan every month, beginning with the salary for the month of December, 1971. Such payment shall continue for a period of six months in the first instance, or till the officer concerned returns to claim his emoluments whichever is the earlier:"
The claim of the appellant was, however, refused by the U. S.‑AID, Islamabad on the ground that the aforementioned memorandum was inapplicable to his case.
Feeling dissatisfied the appellant, on 3‑9‑1977, moved an application under Order XXXIII, rule 1, C. P. C. for permission to sue in forma pauperis for the recovery of Rs. 1,15,281 against the respondents in the Court of Mn. Karamat Hussain Niazi, Civil Judge, Rawalpindi. The amount claimed represented :‑
(i) Salary ‑‑ Rs. 42,281
(ii) Expenses incurred
on repatriation
from Dacca to
Islamabad. ‑ Rs.23,000
(iii) Compensation for
mental torture on
account of
respondents' refusal
to re‑employ the
appellant. ‑‑ Rs.50,000
__________
Total
Rs.1,15,281
___________
In response, the respondents filed an application on 11‑10‑1977 under section 86‑A, C. P: C. read with Article 31 of the First Schedule of section 2(1) of the Diplomatic and Consular Privileges Act, 1972 praying for rejection of the appellant's application for permission to sue in forma pauperis on the ground that the respondents "enjoyed immunity from the civil, criminal and administrative jurisdiction of the local Courts of Pakistan" adding that "under section 86‑A, C. P. C. no proceedings in any Court of Pakistan can lie against the U. S.‑AID Mission relating to its activities in discharge of its official functions". A Certificate dated 15‑11‑1972 issued by the Federal Government of Pakistan to the effect that "U. S.‑AID is a mission of the U. S. President and having at all material times been a part of the Embassy of the United States to Pakistan and as such the agency and its officers (foreign nationals) enjoyed diplomatic immunity and privileges from the processes of Civil and Criminal Courts in Pakistan and their properties and funds are exempt from, garnishment, attachment, seizure or other legal processes". The provisions on which reliance was placed read as under :‑
"Section 86‑A of the Civil Procedure Code:-
No proceeding in any Court shall lie against a diplomatic agent except in a case relating to ‑
(a) any private immovable property situated in Pakistan held by him in his private capacity and not on behalf of the sending State for the purpose of the mission ;
(b) a succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State ;
(c) any professional or commercial activity exercised by the diplomatic agent to Pakistan outside his official functions."
"Section 4 of the Diplomatic and Consular Privileges Act, 1972
.‑If any question arises whether or not any person is entitled to any privilege or immunity under this Act, a certificate issued by or under the authority of the Federal Government stating any fact relating to that question shall be conclusive evidence of that fact."
"Article 31 of the First Schedule to the above Act
1, A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of
(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission ;
(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State ;
(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions."
In this application it was further stated that a Certificate issued by or under the authority of the Federal Government relating to privileges and immunities is conclusive evidence of the facts stated therein under section 4 of the Diplomatic and Consular Privileges Act, 1972.
In his reply to this application, the appellant asserted that the respondents did not enjoy immunity froth the jurisdiction of the local Courts of Pakistan and even if such immunity existed it had been waived by them.
The learned trial Court, on the pleadings of the parties, framed the following two issues :‑
(i) Whether the respondents enjoyed diplomatic Privileges and immunity under the Diplomatic and Consular Privileges Act, 1972 O. P. R.
(ii) If issue No. 1 is proved, whether that immunity has been waived by the respondents O. P. P.
Both the above Issues were decided in favour of ‑the respondents herein by the learned trial Court vide judgment dated 18‑9‑1978. On Issue No. 1, it found that the respondents did enjoy diplomatic immunity under the Diplomatic and Consular Privileges Act, 1972; and as regard Issue No. 2 it held that there was no waiver of immunity. In this connection, it observed that merely because the respondents addressed letters to the appellant refusing to reimburse the amount claimed by him, this did not amount waiver of the immunity. In view of these findings it ultimately ruled that "the respondents enjoyed diplomatic immunity from civil proceedings, therefore, this application is not maintainable and the same is dismissed with no order as to costs."
Feeling aggrieved with the above judgment a Civil Revision (No. 119 of 1978) was filed by the appellant on 26‑11‑1978 in the Lahore High Court and the order of the learned trial Court was challenged mainly on the grounds that :‑
(a) the certificate of immunity granted by the foreign office to the respondents had not been properly proved ;
(b) the respondents by replying to the appellant's letters waived the immunity and that the office memorandum dated 18‑12‑1971 issued by the Ministry of Finance, Government of Pakistan was applicable to the case of the appellant.
The learned Single Judge of the Lahore High Court by a well reasoned judgment dismissed the revision petition on 15‑6‑1981. He found that the first submission of the appellant that the certificate was not proved in accordance with law inasmuch as neither the person who had entered the witness‑box nor his signature was otherwise proved could not prevail because the objection to the mode of proof or to the formal proof or to the defect in the method of proof must be taken at the earliest opportunity and as no objection was ever taken in the mode of proof or to the defect in the method of proof of the certificate issued by the foreign office, the objection could not be taken at the revisional stage. He further held that a certificate issued by or under the authority of the Federal Government in respect of the diplomatic status of a Foreign Mission was conclusive evidence of the facts stated therein under section 4 of, the Diplomatic and Consular Privileges Act, 1972 and, therefore, the certificate could not be allowed to be disproved in the revisional proceedings.
It may be mentioned that the State Immunity Ordinance, 1981 (Ordi nance VI of 1981) was promulgated during the pendency of the revision petition and the appellant also urged before the High Court that as the said ordinance had retrospective effect it would govern the pending before the High Court. This plea too was rejected by the High Court on the ground that a revision is not a continuation of the original proceeding as in law a revision is a matter between the superior Court and the subordi nate Court in respect of exercise of the jurisdiction by the latter and differs from an appeal wherein the cause is lifted from the lower to the higher tribunal and is treated as a continuation of the same proceedings. On this view of the matter it was held that the law, as it existed when the application to sue in forma pauperis was commenced, would decide the rights of the parties.
The other objection that the respondents had waived their privilege of immunity by replying to the demands of the appellant does not appear to have been pressed before the High Court. In the result, the revision was dismissed. The appellant thereupon moved this Court seeking leave to appeal against the decision of the High Court.
Leave was granted by this Court to consider inter alia, the question raised whether the respondents could claim diplomatic immunity under section 86‑A, C. P. C. or any other provision of law and as to what was the effect of the provisions contained in the State Immunity Ordinance,) 1981 (Ordinance VI of 19811 in this matter.
However, in the course of the arguments during the hearing of the appeal it appeared that the real questions, which arose for determination, were as to whether the order of the trial Court dated 18‑9‑1978 dismissing the appellant's application for permission to sue in forma pauperis as not maintainable was an order under clause (d) of rule 5 of Order XXXIII, C. P. C. and, therefore, not appeal-able but only revisable or an order falling under the ambit of Order VII, rule 11(d) of the C. P. C. and. therefore, was an appeal-able order ; secondly whether the certificate issued by the Ministry of Foreign Affairs dated 15‑11‑1972 could be read in evidence and the failure by the appellant to take any objection with regard to the mode of proof before the trial Court debarred him to raise it later on ; and lastly as to what was the effect of the promulgation, during the pendency of the revision petition before the High Court, of the State Immunity Ordinance, 1981 (Ordinance VI of 1981).
The learned counsel of the parties were requested to submit written notes of their arguments, after the conclusion of the hearing, within one month but the same were submitted only now, but this default has been more than made up by the excellence of the quality of their notes and we are very grateful for their labours.
Returning to the questions noted above which require consideration and taking up the first question first we note that the provisions of Order XXXIII, rule 5(d) of the C. P. C. are to the following effect :‑
"5. Rejection of application.‑The Court shall reject an application for permission to sue as a pauper‑
(a) ------------------------------------------------------
(b) -----------------------------------------------------
(c) -----------------------------------------------------
(d) where his allegations do not show a cause of action.
(e) -----------------------------------------------------
Whereas clause (d) of rule 1 I of Order VII, C. P. C. provides :‑
"11. Rejection of plaint.‑The plaint shall be rejected in the following cases :‑
(a) ---------------------------------------
(b) --------------------------------------.
(c) -------------------------------------
(d) where the suit appears from the statement in the plaint to be barred by any law.
and the rejection of the plaint, according to subsection (2) of section 2 of the C. P. C. is deemed to be a decree and, therefore, appealable.
The learned trial Court in its order dismissing the application of the appellant for permission to sue in forma pauperis dated 18‑9‑1978 observed :‑
"This application is not maintainable and the same is dismissed with no order as to costs."
In view of the terms of the order the submission of the appellant that the learned trial Court did not reject the appellant's application on the ground that his allegations did not show a cause of action, on which ground alone the Court is empowered to reject an application for permission to sue as pauper under Order XXXIII, rule 5 of the C. P. C. but that it was dismissed on account of the provisions of certain laws, namely, section 86‑A of the C. P. C. and the Diplomatic Consular Privileges Ordinance, 1972 (Ordi nance 15 of 1972), appears to be correct. It is evident that the application was dismissed on the ground that it was not maintainable because the respondents were found to possess diplomatic immunity from the civil proceedings and that this privilege was enjoyed by them on account of the provisions of section 86‑A of the C. P. C. and of section 4 of the Diplo matic Consular Privileges Ordinance, 1972. Hence, the order dismissing the appellant's application must be construed to be an order falling under Order VII, rule 11(d), C. P. C. and not an order under Order XXXIII, rule 5(d) of the C: P. C.
On this view of the matter the order of the learned trial Court being appealable, even though the appellant himself only filed a revision to challenge it, the said revision can be construed as an appeal. Thus, the appellant could rely upon the provisions of the State Immunity Ordinance VI of 1981 because, as held in A. M. Qureshi v. Union of Soviet Socialist Republics and another (,P L D 1981 S C 377), statutes relates to Diplomatic Immunity are procedural statutes and the pendency of an appeal would destroy the finality of the trial Court's judgment. However, Mr. Bashir Ahmad Ansari, learned counsel for the appellant, has himself conceded (in his written note) that the case of the appellant has not improved by the enactment of the State Immunity Ordinance, 1981 (VI of 1981). He admits that if the employers enjoyed immunity or privilege conferred by the Diplomatic and Consular Privileges Ordinance, 1972 (Ordinance XV of 1972) this is not effected by the provisions of Ordinance VI of 1981. In this connection, he has pointed out that even though section 6 of 1981 Ordinance saves contracts of employment but the provisions of the subsequent section 17 of the said Ordinance take away the said advantage and saves the immunity of privileges conferred by the Diplomatic and Consulars Privileges Ordi nance, 1972. In view of this concession the question that now remains only is whether the respondents enjoyed diplomatic immunity under the last mentioned Ordinance of 1972
On this part of the case the respondents rely upon the certificate dated 15‑11‑1972 issued by the Foreign Office that the United States Agency for International Development are Missions of the President of the United States of America and have at all material times been a part of the Embassy of the United States of America in Pakistan. As such, the Agency for International Development and its Officers (foreign nationals) enjoy diplomatic immunity and privileges from the processes of civil and criminal Courts in Pakistan. But according to the appellant the above certificate (Exh. D. 1) cannot be read in evidence inasmuch as it was not proved as provided by section 67 of the Evidence Act, 1872.
The High Court rejected the‑contention of the appellant holding that the document was tendered in evidence and exhibited without any objection on the part of the appellant and that where no objection to the mode of proof of the document is raised at the earliest point of time, it cannot be entertained at the appellate stage.
We observe that this principle is supported by good authority. In Abdullah and others v. Abdul Karim and others (PLD1968SCI40), it was held that it is, now well‑settled that if objection to the formal proof of a document has not been taken at the earliest point of time it cannot be taken subsequently) and certainly not in appeal. Again in Malik Din and another v. Muhammad Aslam (PLDI969SC136), it was held that an objection regarding the defect, if any, in the method of proof of a document, cannot be raised at the appellate stage. It was added that where a document has been admitted into evidence without any objection in the trial Court, it is now well‑settled that an objection as to the formality of proof, must be taken at the earliest stage and if it has not been taken then it cannot be allowed to be taken at the appellate stage. Similarly, in Ch. Muhammad Saleem v. Muhammad Akram and others (PLD 1971 SC516), it was held that once a document has been admitted in evidence without objection its admissibility cannot subsequently be challenged on any technical ground or any ground which does not affect the parties.
However, Mr. Bashir Ahmad Ansari, learned counsel for the appellant, relied upon the judgment of this Court in Khan Muhammad Yousuf Khan Khattak v. S M. Ayub and others (PLD1973SC160), wherein it was observed that documents which are not copies of judicial record should not be received in evidence without proof of signatures and handwritings of persons alleged to have signed or written them, even if such documents are brought on record and exhibited without objection.
We find that this was an exceptional case in which the authenticity of the document itself was doubted. This is evident from the following observations of this Court appearing at page 203 of the report:‑
"While it is true, as observed by the Privy Council in Copal Das v. Sri Thakurji and by this Court in Abdullah v. Abdul Karim and Malik Din v. Muhammad Aslam, that an objection as to the mode of proof should be taken at the trial before the document is marked as an exhibit and admitted to the record and a party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof; it will be seen that in this case an objection as to the admissibility and the proof of this document was taken before the Election Tribunal itself. A cursory glance at the original of this document, which was summoned by this Court, shows that there is an overwriting on the signatures of the appellant.
It is recorded by the Election Tribunal that the original, as produced by the Registration Assistant, was seen and returned. I cannot help feeling that the Tribunal clearly failed to perform its duty if it did not see the overwriting on the original of Exh. P. E. Even in the attested copy obtained by the respondent there appears a note to the following effect:‑
Attested to be true copy. However, the signatures of Muhammad Yusuf Khattak appear to be overwritten.'
In these circumstances, it was obviously necessary for the Election Tribunal to have the signatures and the handwriting of the appellant proved in accordance with the mandatory provisions of section 67 of the Evidence Act but this was not done. The onus of proving this document lay on the respondent, and the fact that the appellant or his counsel did not take any specific objection at the time of the production of this ‑ document does not mean that the same stands duly proved, in view of the patent overwriting existing in the original and noted in the attested copy."
The situation in this case is altogether different and no such suspicion exists as to the authenticity of the document (Exh. D. 1); hence the judg ment relied upon by the learned counsel for the appellant is distinguishable and does not detract from the law laid down by this Court in the earlier judgments noticed above.
Having found that the certificate (Exh. D. 1) was properly brought on the record w4 agree with the High Court that under section 4 of the Diplomatic and Consular Privileges Act, 1972, the certificate issued by or under the authority of the Federal Government, in respect of diplomatic status of the agency for International Development is conclusive evidence of the facts stated therein. The said certificate, in view of the provisions of section 4 of the Evidence Act, cannot, therefore, be allowed to be disproved.
Mr. A. G. Chaudhry, learned counsel for the respondents, pointed out that even under the Customary Public International Law contracts of employment are acts jure imperil (i. e. sovereign or public acts of a State) and not acta jure gestionis (i. e. private acts of a State). In the elaborate note he prepared for our assistance, he has drawn our attention to three cases decided by Courts of Italy and Belgium wherein it was held that contracts of employment are acta jure imperil" of a State and were, there fore, immune from the jurisdiction of the Courts. Thus, in De. 5emenolf v. Railway Administration of Norwegian tale, Rivista (29 (1937) 224), the Court of Appeal of Italy refused to assume jurisdiction in the matter of a contract of employment between the plaintiff and an agent of the Norwegian Railway Administration on the ground that it lay outside the scope of ordinary private law transactions. Similarly, in Russian Trade Delegation v Kazmann, Annual Digest (7 (1933‑4) 178), the Court of Cassation in Italy held that Italian Courts were not competent to try an action for wrongful dismissal brought against the Russian Trade Delegation. Likewise, in Epaux v. Canada (Annual Digest (1938‑40) Case No. 85), a Belgian Court decided that it had no jurisdiction in an action brought against the Canadian Immigration Office at Antwerp for breach of a contract of employment. It observed that the Immigration Office of Canada was a branch of public service and that the Canadian Government in engaging the plaintiff as its employee was acting as a sovereign State and not as a subject of private law.
Be that as it may we are satisfied that the provisions of section 4 of the Diplomatic Consular Privileges Act, 1972, read with Article 31 of the First Schedule to the Act coupled with the certificate issued by the Foreign Office that the respondents enjoyed immunity from legal process, preclude them from being sued before the Civil Courts in this country.
We find, therefore, that the learned trial Court was right in holding that the appellant's application for permission to sue in forma pauperis was not maintainable since the respondents enjoyed diplomatic immunity from the civil proceedings.
The result is that this appeal fails and is dismissed hereby but in view of the novelty of the question involved the parties are left to bear their own costs.
M. H. A. Appeal dismissed.
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