P L D 2016 Supreme Court 174

Present Mian Saqib Nisar, Gulzar Ahmed and Umar Ata Bandial, JJ

MUHAMMAD RAMZAN (DECEASED) through L.Rs. and others---Appellants

Versus

NASREEN FIRDOUS and others---Respondents

Civil Appeal No. 1560 of 2008, decided on 16th December, 2015.

(Against the judgment dated 12-8-2002 of the Lahore High Court, Lahore passed in C.R. No.
353 of 1991)

(a) Civil Procedure Code (V of 1908) ---

----S. 16---Suit with regards to the property situated outside Pakistan---Territorial jurisdiction of
courts in Pakistan---Scope---Territorial jurisdiction of courts in Pakistan had been limited,
restricted and circumscribed only to such properties which were situated within the territorial
boundaries of Pakistan---Properties which fell within the purview of S.16, C.P.C were those
which were situated in Pakistan and thus the courts in Pakistan shall have the sole and exclusive
territorial jurisdiction in respect thereto---Properties outside Pakistan were expressly excluded
from the purview of jurisdiction of Courts of Pakistan as a whole.

Premchand v. Hiralal AIR 1928 Nagpur, 295 ref.

(b) Interpretation of statutes---

----Where a word/expression had been defined in the statute, such word/expression had to be
given the same meaning until and unless the assignment of such meaning would be patently in
conflict with the express text of the said provision or would destroy the spirit and object of the
provisions of law in which such expression/word appeared or shall lead to an absolute absurdity.

(c) Civil Procedure Code (V of 1908) ---

----Ss. 16, 17, 18 & 19---Suit to be instituted where subject-matter situated---Territorial

jurisdiction of courts in Pakistan---Sections 17, 18 & 19, C.P.C. as supplemental provisions to
S.16, C.P.C---Scope---Sections 17, 18 & 19, C.P.C. were basically supplemental provisions to
S.16, C.P.C. and in fact and law, catered for a situation once the threshold of S.16, C.P.C. vis- -
vis the jurisdiction of courts in Pakistan was crossed; it was then that if the courts in Pakistan had
jurisdiction over the subject matter, that it should be settled and determined as to which court
within Pakistan shall have the jurisdiction in the given circumstances of the case to try a suit of a
particular nature---For the application of Ss.17,18 & 19 C.P.C. it was essential that first the
jurisdiction should vest in the Courts in Pakistan in terms of S.16, C.P.C.---Section 16, C.P.C.
was not only a threshold section for the conferment of jurisdiction to the courts in Pakistan but it
was the portal through which the plaintiff had to enter for the purposes of entering into the city of
jurisdiction of different courts in Pakistan---Where, as per the mandate of law, such door was
closed upon a plaintiff because the property, subject matter of a suit, was not within the limits of
Pakistan, then such litigant was barred and precluded from invoking the jurisdiction of any other
court of the country in terms of Ss.17, 18 & 19, C.P.C.
Yusuf Abbas and others v. Mst. Ismat Mustafa and others PLD 1968 Kar. 480 ref.

(d) Civil Procedure Code (V of 1908) ---

----S. 20---Suit for administration with regards to the property situated outside Pakistan---
Territorial jurisdiction of courts in Pakistan---Scope---Defendants residing, carrying business or
working outside Pakistan---Jurisdiction of courts in Pakistan disputed by defendants---Cause of
action not wholly or partly arising in Pakistan---Effect---Section 20, C.P.C was not applicable in
such circumstances and thus jurisdiction of courts in Pakistan over the property situated outside
Pakistan would be barred.

In terms of section 20, C.P.C., a suit may be filed in a court within the local limits of which (a)
all the defendants were actually and voluntarily residing, carrying on business or personally
working for gain at the time of commencement of the suit, or (b) any of the defendants, where
there were more than one, actually or voluntarily resided, or carried on business or personally
worked for gain provided that in such cases leave of the court was obtained or the defendants
who were not within the court's jurisdiction acquiesced or (c) where the cause of action wholly or
partly arose.

Record of the present case clearly illustrated at the very least that at all times, all the main
contending defendants were residing, carrying business or working outside Pakistan. Such
assertion was further supported by the fact that the address provided for the defendants was that
of England and it was nowhere suggested that the defendants had at any time been residents of
Pakistan or carried on business in Pakistan, or worked in Pakistan. Section 20(a) C.P.C.,
therefore, evidently did not apply to the facts of the present case.

Considering whether the present case fell within section 20(b), C.P.C., if it was the case of the
plaintiff that at least one of the defendants permanently resided, carried on business or worked in
Pakistan, then, as necessitated by section 20(b), C.P.C. leave of the court had to be obtained
which was not done in the present matter. Furthermore, the defendants clearly did not acquiesce
in relation to jurisdiction over the property situated in England as the jurisdiction of Pakistan in
relation to the property in England was firmly disputed in the written statement of the
defendants.

Finally, section 20(c), C.P.C. did not help the case of the plaintiffs since the question of
jurisdiction of the courts in Pakistan in relation to some of the property in Pakistan formed part
of a separate cause of action than that in relation to the property situated in England. Factum of
the distinct location of the properties alone gave rise to two separate causes of action.

Mst. Zainab v. Mst. Raji and others PLD 1960 SC 229; Nadeem Ghani v. United Bank Limited
2001 CLC 1904; Heman and others v. Fazal PLD 1955 Lah. 280; Dr. Abdul Ghani and others v.
Ismail and others PLD 1958 Lah. 690 and Haroon Ayoob Abdul Karim v. Sulleman Ahmad and
others 1983 CLC 162 ref.

Yusuf Abbas and others v. Mst. Ismat Mustafa and others PLD 1968 Kar. 480 distinguished.

Plaintiffs could not rely on section 20, C.P.C. to argue that the suit was or could competently be
filed in relation to all properties, movable and immovable, situated in England.

(e) Civil Procedure Code (V of 1908) ---

----S. 20(b)---Suit with regard to the property situated outside Pakistan---Territorial jurisdiction
of courts in Pakistan---Scope---Presence of a defendant within the jurisdiction (of a court in
Pakistan) would not ipso facto grant jurisdiction to such court under S.20, C.P.C. when the
property was situated within the territorial jurisdiction of another country.

Muhammad Sohail Siddiqui v. Mst. Parveen 2010 MLD 1433 ref

(f) Civil Procedure Code (V of 1908) ---

----S. 16---Restriction on jurisdiction of a State within its own territory---Rationale---Respect for

territorial jurisdiction of another State.

(g) Succession Act (XXXIX of 1925)---

----S. 5---Cross-border succession---Private International Law---Principles---'Lex domicilii' and
'lex situs'---Moveable/immoveable property of deceased situated in foreign country (outside
Pakistan)---Deceased possessing nationality and domicile of foreign country---Since disputed
property was situated in a foreign country and the deceased was also domiciled and a national of
the said foreign country, thus, following the rules of lex domicilii' and lex situs, the laws of
foreign country would apply and courts of foreign country would have jurisdiction over such
property ---Jurisdiction of courts in Pakistan over the subject-matter property would be barred.

Cardinal rule of private international law in matters of cross-border succession was that the
movable property of the deceased person was regulated by the laws of the country in which the
deceased was domiciled (lex domicilii); in the present case, the law of England constituted the
law of the country in which the deceased was domiciled, and he was also a national of that
country. As to immovable property, the recognized rule governing real or immovable property
was that such property was subject to the laws of the place within which it was situated (lex
situs); again, in the present case the laws of England would be applicable and courts of situs were
the courts of England since the disputed property was situated in England. Property in dispute
was undoubtedly and indisputably located inside the territorial jurisdiction of England thus
barring the jurisdiction of Pakistan over the subject-matter property.

Private International Law, Sixth End., p.550 ref.

Courts of Pakistan had to keep the principles of Conflict of Laws or Private International Law in
mind whilst dealing with matters involving questions of cross-border succession. Such principles
were based on mutual respect for and recognition of, the judicial systems and the laws of other
countries.

Since the deceased and the defendants were domiciled in England, the English courts would have
jurisdiction and their verdict on the matter, in respect of property situated in England should be
considered final by the courts in Pakistan.

(h) Civil Procedure Code (V of 1908) ---

----S. 13---Judgment of foreign courts---Judicial comity, doctrine of---Scope---Courts in Pakistan

should respect and give effect to (subject to certain exceptions), the judicial decisions of other
countries on the same subject under the principle of 'judicial comity'---Foreign judgments were
conclusive as to any matter thereby adjudicated upon and courts in Pakistan must recognize and
enforce the same, however, before enforcing any foreign judgment, a court in Pakistan would
have to ensure that it did not fall within any of the exceptions contained in S.13, C.P.C.
Mark Janis (An Introduction to International Law 327 2003 and Louise Anne Fairley v. Sajjad
Ahmed Rana PLD 2007 Lah. 300 ref.

(i) Civil Procedure Code (V of 1908) ---

----S. 13(a)---When foreign judgment not conclusive---Judgment pronounced by a foreign court

not having competent jurisdiction---Scope---Courts in Pakistan may not consider a foreign
judgment to be conclusive if it had been pronounced by a court of incompetent jurisdiction---To
ascertain whether a judgment had been pronounced by a court of competent jurisdiction, courts
in Pakistan would necessarily have to examine the principles of Private and Public International
Law to determine whether the subject matter of the foreign judgment fell within the jurisdiction
of the foreign court---Where the judgment was found to have been pronounced in excess of the
foreign court's jurisdiction in view of the parallel body of law, that is, private international law, it
would be deemed to have not been pronounced by a court of competent jurisdiction rendering the
judgment inconclusive.

(j) Private International law ---

----Principles of---Applicable in Pakistan---Courts in Pakistan were bound to apply the principles
of Private International Law wherever necessary.

(k) Private International law---

----Judgment passed by court in Pakistan without regard to the principles of Private International
Law---Such judgment may not be considered to be conclusive by foreign courts for having
usurped the jurisdiction of a foreign court, even if in substance the case was rightly decided (by
the court in Pakistan).

Mian Abdul Aziz, Advocate Supreme Court for Appellants.

Malik M. Tariq Rajwana, Advocate Supreme Court for Respondents Nos.1 to 8.

Khalid Anwar, Senior Advocate Supreme Court and Makhdoom Ali Khan, Senior

Advocate Supreme Court as Amici curiae.

Date of hearing: 21st October, 2015.

JUDGMENT

MIAN SAQIB NISAR, J.- The primary question in this Appeal, with leave of the Court dated
30.9.2008, is whether the Civil Courts in Pakistan have jurisdiction to entertain and adjudicate
upon a suit for administration with regards to the property situate abroad.
2. In the context of the above, the facts in brief are:- that Mst. Hafi (now deceased), represented
by the appellants as her legal heirs (hereinafter called the appellants) being the mother of
Muhammad Anwar Irshad (deceased) who died in Islamabad on 26.3.1987 filed a suit for
administration of his property(ies) in the Civil Court at Lahore, claiming that the deceased had
left behind him Mst. Hafi as mother, Mst. Nasreen Firdous and Abida Begum (defendants Nos.1
and 2) as his widows and the remaining defendants as his sons and daughters. It was averred that
the deceased had been settled in England and certain movable and immovable property(ies)
situate in Pakistan as well as in England forms part of his estate (detailed in Schedule A and
Schedule B of the plaint). It may be pertinent to mention here that the respondents/defendants,
the legal heirs of the deceased, primarily resisted the suit in respect of the property(ies) abroad
on the ground that the courts in Pakistan have no jurisdiction to entertain and adjudicate the
matter, obviously meaning that they never submitted to the jurisdiction of the courts in Pakistan
to the extent of the property situated abroad.

3. The learned Civil Judge seized of the matter, on the conclusion of the trial granted partial
decree, in that, the suit to the extent of the property(ies) situated in Pakistan was allowed but to
the extent of those abroad it was dismissed, holding that it does not have jurisdiction. The appeal
filed by the appellants could not succeed and their civil revision before the learned High Court
was also dismissed. Thus the judgment and decree of the Trial Court was maintained throughout.

4. Leave in this case was granted to consider the following questions:-

"(i) Whether the courts below have fell in error in not giving effect to the mandate of section 20
of C.P.C. 1908 which, inter alia, provides that the suit could be instituted within the local limits
of a place where the defendant resides at the time of the commencement of the suit?

(ii) Whether the question of domicile of the deceased Muhammad Anwar Irshad could be a
determinative factor on the question of jurisdiction of the court in the facts and circumstances of
the instant case?

(iii) Whether in the face of the evidence led to the effect that the parties admittedly reside
permanently in Pakistan, would it not be in accord with the principle of forum non convenience
for the courts in Pakistan to entertain the suit qua the administration of properties situated in
England?

(iv) Whether the respondents-defendants having agreed to the administration of properties and
their respective shares in terms of the Islamic law and having not challenged the impugned
judgments and decrees of the three courts below, invoking the said law, could they be allowed to
raise the plea at this stage that in the administration of properties in England, the law in England
would be applicable and not the Islamic law?"
In the context of the above, two basic questions requiring resolution are as follows:-

(a) What is the substantive law to be applied?

(b) Which court has jurisdiction?

These are completely independent questions which require to be considered separately. At

present, there appears to be a lot of confusion and these two independent questions appear to
have been jumbled together and thus there is lack of conceptual clarity.

As regarding the question of the applicable substantive law, in order to determine the question of
jurisdiction of the courts in line with the substantive municipal law of Pakistan, we will have to
make recourse to sections 16 to 20 of the Civil Procedure Code, 1908 (C.P.C.). In so far as
sections 16 and 20 of the C.P.C. are concerned, they raise complex questions leading to the need
to conduct a deeper examination of related, but much broader issues of reconciliation of private
international law in relation to the municipal law of Pakistan. The extent of jurisdiction of
Pakistani Courts will also be determined in view of the established principles of private
international law.
5. In respect of the municipal law of Pakistan, in order to address the first question as to the
applicable substantive law, the provisions of sections 16 to 20 of the C.P.C. are relevant. It will
be determined whether the appellants' suit before the Civil Judge in Lahore was competently
filed under the laws of Pakistan in relation to the property situated in England. In terms of
section 16, C.P.C., such suits, in so far as they relate to immovable property, are to be instituted
before the Court within whose territorial jurisdiction the property is situated. Section 16 ordains:-

"16. Suits to be instituted where the subject matter situate.---Subject to the pecuniary or other
limitations prescribed by any law, suits---

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable
property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment, shall be instituted
in the Court within the local limits of whose jurisdiction the property is situate, or in the case of
suits referred to in clause (c) at the place where the cause of action has wholly or partly arisen:

Provided that a suit to obtain relief respecting or compensation for wrong to, immovable
property held by or on behalf of the defendant may, where the relief sought can be entirely
obtained through his personal obedience, be instituted either in the Court within the local limits
of whose jurisdiction the property is situate, or, in the case of suits referred to in clause (c) at the
place where the cause of action has wholly or partly arisen or in the Court within the local limits
of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or
personally works for gain.
Explanation.-- In this section "property" means property situate in Pakistan." (emphasis added
(sic))

It may be noted that the proviso contained in section 16 prescribes that a suit may also be filed
before a Court within the local limits of which the defendant resides, carries on business or
works if the relief sought can be obtained entirely through his personal obedience. We may take
this opportunity to dispel a commonly held perception that this proviso applies to all the
categories of suits provided in subsections (a) to (f) of section 16. It is stressed that the language
of the proviso is very clear and it does not apply to suits for determination of a right to, or
recovery of immovable property.

Be that as it may, from the clear and unambiguous language of the explanation of section 16,
there remains absolutely no doubt that the property(ies) which falls within the purview of the
section are those which are situated in Pakistan and thus the Pakistani Courts shall have the sole
and exclusive territorial jurisdiction in respect thereto. In other words, as per the mandate of law,
the territorial jurisdiction of Pakistani Courts has been limited, restricted and circumscribed only
to such property(ies) which are situated within the territorial boundaries of Pakistan. It may be
pertinent to mention here that where a word/expression has been defined in the statute, it is
settled law of interpretation that such word/expression has to be given the same meaning until
and unless the assignment of such meaning would be patently in conflict with the express text of
the said provision or would destroy the spirit and object of the provisions of law in which such
expression/word appears or shall lead to an absolute absurdity. This principle is no less true for
the explanation added to a particular section which (explanation) in law is a guideline for the
purposes of explaining the true intent, object, purpose, letter and spirit of such a provision by the
legislature itself, with the obvious consequence that the legislature means and intends to leave
little room and opportunity for any misinterpretation and misapplication of the said section and
would desire that the scope of the section should be construed in the manner as has been
explained by the statute.1 Thus, it is clear that the Pakistani Courts as per the explanation shall
only have the jurisdiction with respect to the property(ies) which are subject matter of the suit
and falls within the territorial domain of Pakistan.

Such interpretation of the relevant provisions of the C.P.C. are duplicated in the Indian
Jurisprudence as will be illustrated by briefly making reference to a few cases on the question of
jurisdiction of courts to try suits pertaining to property situate outside the respective State.

In the case of Premchand v. Hiralal (AIR 1928 Nagpur 295) while interpreting section 16,
C.P.C., the learned judge agreed with the lower court which held that it had no jurisdiction over
the movable or immovable property situated at Shahdole (outside British India). The learned
Judge stated that:-

"It seems to me very clear that the lower Court is right. The question is concluded by S.16, Civil
P.C., as regards immovable property. The explanation to that section states that the word
'property' used therein means property situated in British India Our Courts are governed by the
Civil Procedure Code, and they cannot deal with immovable property situated where that Code
does not run."
6. Having considered the provisions of section 16, we feel it is expedient to make reference to
sections 17 to 19 of the C.P.C. which also deal with the territorial jurisdiction of Pakistani
Courts. It may be stated that section 16, as per the interpretation given to it above, is the main
and pivotal section which prescribes for the territorial jurisdiction of the courts in Pakistan (i.e.
the courts of plenary civil jurisdiction) and this section, as mentioned, has limited its jurisdiction
only to the property(ies) which are situated in Pakistan with the obvious legal consequence that
the property(ies) outside Pakistan are expressly excluded from the purview of jurisdiction of
Pakistani Courts as a whole. Sections 17 to 19 when read and construed in the context of the
subject matter jurisdiction are basically supplemental provisions to section 16 and in fact and
law, cater for a situation once the threshold of section 16 vis- -vis the jurisdiction of Pakistani
Courts is crossed; it is then that if the Pakistani Courts have jurisdiction over the subject matter,
that it should be settled and determined as to which court within Pakistan shall have the
jurisdiction in the given circumstances of the case to try a suit of a particular nature. But for the
application of these sections (17 to 19 C.P.C.) it is essential that firstly the jurisdiction should
vest in the Pakistani Courts in terms of section 16. In other words, Section 16 is not only a
threshold section for the conferment of jurisdiction to the Pakistani Courts but it is the portal
through which the plaintiff has to enter for the purposes of entering into the city of jurisdiction of
different courts in Pakistan. If, as per the mandate of law, such door is closed upon a plaintiff
because the property, subject matter of a suit, is not within the limits of Pakistan, then such
litigant is barred and precluded from invoking the jurisdiction of any other court of the country in
terms of sections 17 to 19. In the context of the above, if a judgment is required, reference can be
made to a case reported as Yusuf Abbas and others v. Mst. Ismat Mustafa and others (PLD 1968
Karachi 480) (see paragraph 19 thereof).

With respect to section 18, C.P.C., it may be added that even if the property was situate in
Pakistan (which is not the case in the present matter), section 18, C.P.C. will ipso facto be
inapplicable for the very reason that there is no uncertainty as to the respective jurisdiction of the
courts in England in the instant case since the property in question lies within the territorial
jurisdiction of England.
In a similar vein, section 19 C.P.C is applicable only to suits for compensation for wrong to the
person or movable property. It further applies to torts committed within Pakistan. The instant
case has no nexus with the law of tort.

7. We will now consider whether the present matter falls within the purview of section 20,
C.P.C. Learned counsel for the appellants while relying upon section 20 of the C.P.C. contends
that the courts below fell in error in refusing to exercise the jurisdiction with respect to the
property(ies) situated in Pakistan because of the reason that the cause of action had arisen to the
appellants in Pakistan as the deceased had passed away in Pakistan and in support of the
contention has relied upon Yusuf Abbas's case (supra). Therefore, it seems expedient to consider
the legal effect of the said section which reads as under:-

"20. Other suits to be instituted where defendants reside or cause of action arises.---Subject to the
limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose
jurisdiction--

(a) the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or personally
works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on business, or personally works for gain,
provided that in such case either the leave of the Court is given, or the defendants who do not
reside, or carry on business, or personally work for gain as aforesaid, acquiesce in such
institution; or

(c) the cause of action, wholly or in part, arises.

Explanation I.--- Where a person has a permanent dwelling at one place and also a temporary
residence at another place, he shall be deemed to reside at both places in respect of any cause of
action arising at the place where he has such temporary residence.

Explanation II.--- A corporation shall be deemed to carry on business at its sole or principal
office in Pakistan or, in respect of any cause of action arising at any place where it has also a
subordinate office, at such place."
Ordinarily, section 20 C.P.C. is to be read with and subject to the limitations prescribed in
section 16, C.P.C., however, since section 16, C.P.C. does not apply in relation to property
situated abroad, section 20, C.P.C. will have to be read independently in the present case.

In terms of section 20, C.P.C., a suit may be filed in a Court within the local limits of which (a)
all the defendants were actually and voluntarily residing, carrying on business or personally
working for gain at the time of commencement of the suit, or (b) any of the defendants, where
there are more than one, actually or voluntarily resides, or carries on business or personally
works for gain provided that in such cases leave of the Court is obtained or the defendants who
are not within the Court's jurisdiction acquiesce or (c) where the cause of action wholly or partly
arises.

The record of the present case clearly illustrates at the very least that at all times, all the main
contending defendants Nos. 1 to 8 were residing, carrying business or working outside Pakistan.
This assertion is further supported by the fact that the address provided for the defendants Nos.1
to 8 is that of England and it is nowhere suggested that the defendants have at any time been
residents of Pakistan or carried on business in Pakistan, or worked in Pakistan. Therefore, section
20(a) C.P.C evidently does not apply to the facts of the given case.

Moving on to consider whether the present case falls within section 20(b), C.P.C., let it be said
that if it is the case that at least one of the defendants permanently resides, carries on business or
works in Pakistan, then, as necessitated by subsection (b), leave of the court had to be obtained
which was not done in the present matter. Furthermore, the defendants clearly did not acquiesce
in relation to jurisdiction over the property situated in England as the jurisdiction of Pakistan in
relation to the property in England is firmly disputed in the written statement of the defendants
Nos. 1 to 9.

Finally, subsection (c) does not help the case of the appellants since the question of jurisdiction
of the Pakistani Courts in relation to the property in Pakistan forms part of a separate cause of
action than that in relation to the property situated in England. The factum of the distinct location
of the properties alone gives rise to two separate causes of action.

The aforementioned opinion is supported by a body of cases consistently decided by the learned
courts of Pakistan.

To mention but a few, in the case of Mst. Zainab v. Mst. Raji and others (PLD 1960 SC 229) the
Supreme Court of Pakistan stated that even if the suit was not barred by section 16, and the
Pakistani Courts could not assume jurisdiction in relation to property in India, since no effective
decree could be passed by the Civil Court, their jurisdiction must be held to be barred by
necessary intendment.

In the case of Nadeem Ghani v. United Bank Limited (2001 CLC 1904), the Karachi High Court
after examining section 20, C.P.C. found to have jurisdiction to try to suit only because the
Principal Office of United Bank Limited (defendant No.1) was situated in Karachi and the
defendants Nos.2 and 3 in that case resided and worked for gain with defendant No.1 in Karachi,
thus falling within the purview of section 20, C.P.C. However, as noted above, a perusal of the
record reveals that is in an accepted position that the deceased and the defendants were at all
material times domiciled in England and the defendants have been permanently residing there
throughout.

In the case of Heman and others v. Fazal (PLD 1955 Lahore 280) the learned Judge was only
able to find that the Court in Pakistan had jurisdiction under section 20, C.P.C. since the
defendants were all residing within the territorial jurisdiction of the Court.

In the case of Dr. Abdul Ghani and others v. Ismail and others (PLD 1958 Lahore 690 DB) there
was a dispute in relation to the ownership of property abandoned in India at the time of partition.
The trial court framed issues in relation to the jurisdiction and found that the civil court had
jurisdiction. Thereafter, arguments were addressed on the issue of jurisdiction before the High
Court and the case of Heman and others v. Fazal (PLD 1955 Lah. 280) was also cited. The High
Court acknowledged that the facts of the case were almost identical to the facts in Heman. The
High Court refused to follow the dictum in Heman and held that the courts in Pakistan are not
competent to determine rights and interests in immovable property situated outside Pakistan. The
High Court further held that section 20 of C.P.C. only applied to actions of a personal or
transitory nature and not to actions of real or mixed kinds, which are exclusively governed by
sections 16 and 17 of C.P.C.

Going further, in the case of Haroon Ayoob Abdul Karim v. Sulleman Ahmad and others (1983
CLC 162 SB-Karachi) shareholders of a company registered in Bombay filed a suit for accounts
in Pakistan. Question arose as to whether the Pakistani courts had jurisdiction in respect of the
subject-matter situated abroad. The learned single judge held that:-
"it is not every action where mere presence of the defendants within the jurisdiction of the Court
vests the Court with jurisdiction to pass a decree in respect of properties situate outside the
jurisdiction".

The learned Judge went on to hold that since the records pertaining to the company were not
available with the defendants either, even by obedience of the defendants, no effective order
could be passed. The suit was accordingly dismissed.

In this respect, it is notable that the presence of the defendant within the court's jurisdiction
would not ipso facto grant jurisdiction to the court under section 20, C.P.C. for the simple reason
that the property in question is within the territorial jurisdiction of another country which has the
sole jurisdiction as will be discussed below in detail.

Finally, in the case of Muhammad Sohail Sidddiqui v. Mst. Parveen (2010 MLD 1433 SB-
Karachi), while discussing the principles in relation to letters of administration and succession
certificates the learned court stated that:-

"succession of the immovable property is regulated by the Law of the Country in which person
had his domicile at the time of his death and Succession of Immovable property in Pakistan of a
person deceased is regulated by the Law of Pakistan wherever such person may have had his
domicile at the time of his death."
It thus follows that the appellants cannot further rely on section 20, C.P.C. in addition to section
16, C.P.C. to argue that the suit was or can competently be filed in relation to all property,
movable and immovable, situated in England.

8. After having considered the relevant municipal law, we will now consider the case relied upon
by the appellants in the context of its application to the facts of the present case.

The appellants have sought to rely on the Yusuf Abbas case to argue that the courts of Pakistan
have jurisdiction over property in England and that the facts of the Yusuf case are identical to the
facts of their case and it is fully applicable to the present situation.

It must be pointed out that the appellants' reliance on this case is flawed for the reason that it
originates from an erroneous understanding of the ratio of the case. In addition to this, the facts
of that case and the facts of the present case are completely distinct as will be made clear below.

Two determinative features in the facts of the Yusuf Abbas case are not present in the present
case: (i) the deceased in that case was domiciled in Pakistan hence invoking the jurisdiction of
Pakistani courts; (ii) the defendants in that case were residing in Pakistan bringing the suit within
the purview of section 20, C.P.C.

Since the deceased was domiciled in Pakistan, the Pakistani Court already possessed jurisdiction
under private international law to generally administer the entire estate of the deceased and the
only issue was in relation to immovable property abroad which was subject to the rule of lex
situs (discussed below). On the contrary, in the present matter, the deceased was not domiciled in
Pakistan, rather it is undisputed that he was domiciled in England.

As far as the obiter dictum in the Yusuf case is concerned, we must proceed cautiously before
following the obiter. In that case the learned Judge was faced with the question of whether the
Court could assume jurisdiction over immovable property abroad, and move away from the rule
of lex situs, while administering the estate of the deceased who was domiciled in Pakistan. The
learned High Court Judge discussed the English jurisprudence on this point in England at length
in order to ascertain whether jurisdiction could be exercised in relation to property situated
abroad. In this respect, it is pertinent to state that English law on this point is imprecise and at
times inconsistent, hence the obiter in that case cannot be of assistance to the appellants in the
present case.

9. The consideration of the substantive position under the municipal law of Pakistan leads us to
the conclusion that the courts in Pakistan lack the jurisdiction to adjudicate upon foreign property
in terms of the provisions of sections 16-20, C.P.C.
10. For the sake of being comprehensive, it may be mentioned here that the underlying basis or
rationale for restricting the jurisdiction of a state within its own territory under municipal law
stems from the respect for the territorial jurisdiction of another state. It is in this light that the
principles of private international law must be appreciated. Let us now consider the question of
jurisdiction under a parallel body of law, that is, private international law.

Recourse is made to international law as the property in dispute being within the territorial
jurisdiction of England invites the application of the recognized principles of private
international law. Whilst articulating this notion, it is of benefit to quote Ian Brownlie's
Principles of Public International Law (4th edn, Oxford University Press 2004) 299 wherein it is
stated:-

"...a state in normal circumstances maintains a system of courts empowered to decide civil cases
and, in doing so, prepared to apply private international law where appropriate in cases
containing a foreign element."

11. Bringing our attention to bear on the principles of private international law, the law
governing matters of cross-border succession to property are dealt with in line with the concepts
of lex situs and lex domicilii. In order to understand these two concepts, we can turn to Cheshire,
a renowned international law jurist, (Private International Law, Sixth End., p. 550).
As noted by Cheshire, one of the cardinal rules of private international law in matters of cross-
border succession is that the movable property of the deceased person is regulated by the laws of
the country in which the deceased is domiciled; in the present case, the law of England
constitutes the law of the country in which the deceased was domiciled. As to immovable
property, the recognized rule governing real or immovable property is that such property is
subject to the laws of the place within which it is situated; again, in the present case the laws of
England will be applicable since the property in dispute is situated in England. This is the
principle of lex loci rei sitae (or more commonly referred to as lex situs) which governs the
question of jurisdiction as far as the immovable property is concerned.

The rationale for these two principles, lex domicilii and lex situs is clearly to address and solve
the problem posed by the notion of Conflict of Laws by resorting to the two stated concepts.

It is of benefit to quote Cheshire who stated:-

"...only the Courts of Situs can make an effective decree with regard to land".

The courts of situs in the instant case are the courts of England by reason of the fact that the
disputed property is situated in England.
Pakistan recognizes these well-settled rules of private international law as can be ascertained
from a perusal of section 5 of the Succession Act, 1925 which is reproduced below:-

"5. Law regulating succession to deceased person's immoveable and movable property
respectively: (1) Succession to the immoveable property in Pakistan of a person deceased shall
be regulated by the law of Pakistan, wherever such person may have had his domicile at the time
of his death.

(2) Succession to the moveable property of a person deceased is regulated by the law of the
country in which person had his domicile at the time of his death."

This Section clearly acknowledges the application of international law, particularly in matters of
succession.

12. In the preceding paragraphs, after considering and applying the relevant municipal law under
C.P.C. (sections 16 to 20 respectively), we concluded that the jurisdiction of the courts of
Pakistan is not extended to property situated outside its territory. We have further attempted to
very briefly consider the applicable principles of private international law to answer the same
question of jurisdiction and there too, as has been illustrated, we found that the courts of Pakistan
must not adjudicate upon property which is situated in another country as the governing
principles will be those of private international law as opposed to the municipal law of Pakistan.

Viewed in this light, it is incumbent upon the courts of Pakistan to keep the principles of Conflict
of Laws or Private International Law in mind whilst dealing with matters involving questions of
cross-border succession. These principles are based on mutual respect for and recognition of, the
judicial systems and the laws of other countries.

13. The property in dispute is undoubtedly and indisputably located inside the territorial
jurisdiction of England thus barring the jurisdiction of Pakistan over the subject-matter property
situated in England.

A state may extend its jurisdiction to its nationals abroad, however, in the instant case, the
deceased held dual nationality being both a Pakistani and a UK national simultaneously.

In the case of Nadeem Ghani (supra) at paragraph 22 the Karachi High Court stated as follows:-
"It is universally accepted that according to the comity of nations all legislation of a country is
territorial, all exercise of jurisdiction is territorial in nature and the laws of a country apply to all
its subjects, things and acts within its territory."

This case aptly noted the international principle of absolute nature of a state's territorial
jurisdiction is not to be extended beyond its territory and within the territory of another state,
since in that case, it will be interfering with the territorial jurisdiction of England.

Additionally, it may be mentioned that the courts in Pakistan should respect and give effect to
(subject to certain exceptions), the judicial decisions of other countries on the same subject under
the principle of 'judicial comity.' While acknowledging the doctrine of judicial comity, Mark
Janis, ('An Introduction to International Law 327 2003) noted that:-

Roughly speaking, courts, according to the doctrine of international judicial comity, should apply
foreign law or limit domestic jurisdiction out of respect for foreign sovereignty.

The doctrine of judicial comity, being recognized and applied in the courts around the globe, was
correctly acknowledged by the Lahore High Court in the case of Louise Anne Fairley v. Sajjad
Ahmed Rana (PLD 2007 Lahore 300).
The view that Pakistan should respect and give effect to the judicial decisions of other countries
finds further support from section 13, C.P.C. which reads, in so far as it is material, as under:-

"13. 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--

(a) Where it has not been pronounced by a Court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;

(c) 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;
(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) Where it has been obtained by fraud;

(f) Where it sustains a claim founded on a breach of any law in force in Pakistan."

It is clear that foreign judgments are conclusive as to any matter thereby adjudicated upon and
Pakistani courts must recognize and enforce the same. However, before enforcing any foreign
judgment, a Pakistani court will have to ensure that it does not fall within any of the exceptions
contained in section 13, C.P.C. For example, a Pakistani Court may not consider a foreign
judgment to be conclusive if it has been pronounced by a Court of incompetent jurisdiction. In
order to ascertain whether a judgment has been pronounced by a Court of competent jurisdiction,
Pakistani courts will necessarily have to examine the principles of private and public
international law to determine whether the subject matter of the foreign judgment fell within the
jurisdiction of the foreign Court. If the judgment is found to have been pronounced in excess of
the foreign Court's jurisdiction in view of the parallel body of law, that is, private international
law, it will be deemed to have not been pronounced by a court of competent jurisdiction
rendering the judgment inconclusive. When viewed in this light, it is correct to state that since
the deceased and the defendants were domiciled in England, the English courts will have
jurisdiction and their verdict on the matter, in respect of property situate there should be
considered final by the Pakistani Courts.
Similarly, under section 13(c), C.P.C. it is expressly acknowledged that a foreign judgment will
not be conclusive where it appears to have been founded on an incorrect application or
understanding of private international law or a refusal to recognize the law of Pakistan where
such law is applicable. These provisions, along with section 5 of the Succession Act 1925
establishes, beyond any doubt, that the courts of Pakistan recognize the principles of private
international law and are bound to apply the same wherever necessary.

A corollary to the above is that if a Pakistani court passes a judgment without regard to the
principles of private international law, its pronouncement may not be considered to be conclusive
by foreign courts for having usurped the jurisdiction of a foreign court, even if in substance the
case is rightly decided.

In light of the above we are persuaded to hold that Pakistan must refrain from exercising its
jurisdiction because the property in dispute is situated within the territorial jurisdiction of
England.

14. This logically leads us to the second question, as stated in the Leave Granting Order, which
can be answered in the affirmative. The very nature of the present case invites the operation of
private international law; as such the domicile of the deceased will be a determinative factor to
the extent of the movable property of the deceased abroad. The movable property abroad will be
subject to rule of lex domicilii. Such a rule finds further support in the present case because not
only was the deceased domiciled in England; he was also a British national in addition to holding
a Pakistani nationality.

The appellants have further tried to argue that the deceased's domicile continued to be of
Pakistan in terms of section 7 of the Succession Act 1925. However, this argument is not
sustainable in view of sections 9 and 10 of the Succession Act 1925. Section 9 of the Succession
Act 1925 states that the domicile of origin only prevails until a new domicile is acquired. Section
10 of the same act states that a man acquires a new domicile by taking up his fixed habitation in
a country other than the country of his origin. The determination of the question of domicile can
be slightly difficult at times since it involves an element of subjectivity. However, in the present
case it is an admitted position that the deceased had taken up permanent residence in England
and acquired a new domicile which will prevail over his domicile of origin. Reference can be
made to the mentioned sections below:

"7. Domicile of origin of person of legitimate birth. The domicile of origin of every person of
legitimate birth is in the country in which at the time of his birth, his father was domiciled, or, if
he is a posthumous child, in the country in which his father was domiciled; or, if he is a
posthumous child, in the country in which his father was domiciled at the time of the father's
death.

.
9. Continuance of domicile of origin. The domicile of origin prevails until a new domicile has
been acquired.

10. Acquisition of new domicile. A man acquires a new domicile by taking up his fixed
habitation in a country which is not that of his domicile of origin."

In this regard reference may be made to 1975 SCMR 265, Ms. Amtul Naseer Sami v. Secretary
Health, Govt. of Balochistan wherein at p.267 this court held that the "residence must answer on
qualitative and quantitative test, and that the courts have regarded naturalization, purchase of
house or burial ground, exercise of political rights, financial expectations, establishment of
children in business, place where a man's wife and family reside as indicia of his intention in
regard to residence." In light of the above, it is clear that the newly acquired domicile of the
deceased (domicile of England) will prevail in the present situation.

15. As regarding question (iii), this issue has been framed due to the incorrect appreciation of
facts by the learned counsel for the petitioner. This, as it appears from question (i) and (iii) in the
Leave Granting Order, has erroneously led the Supreme Court to believe that all the parties in the
case are admittedly residing in Pakistan. This proposition is incorrect in light of the record
available from which it is immediately discernible that the deceased and the material defendants
have been permanently residing in England. As noted earlier, this is evidenced by the fact that in
all the pleadings filed by the appellants themselves, the address of the respondents provided is
that of England alone. Therefore, on the correct appreciation of facts, it is maintained that the
courts in Pakistan lack jurisdiction in so far as it is rightly discovered that the defendants did not
reside permanently in Pakistan.

16. As regarding the final question (iv), suffice it to say that this point has not been pressed by
the learned counsel for the parties.

17. In light of the entire discussion undertaken, it may be stated that even if the rules of private
international law are disregarded, the suit of the appellants in relation to the property situated
abroad could only be entertained if it was brought within the purview of section 20, C.P.C., as is
clearly laid down in paragraph 21 of the judgment in the Yusuf Abbas case. But for the reasons
stated above and from the given facts of the case, the present matter does not fall within the
purview of section 20, C.P.C. Hence, Jurisdiction in relation to the property situated in England
will necessarily have to be determined with regard to the relevant principles of private
international law. The courts of Pakistan could only take cognizance in relation to the immovable
property situated in Pakistan subject to the limitations prescribed in section 16 of the C.P.C. It
may be contended that they should not even have determined the rights to the movable property
in Pakistan inter se the parties in derogation of the rule of lex domicilii in private international
law. However, this element may have become irrelevant since the defendants submitted to the
jurisdiction of Pakistani courts in relation to the movable property in Pakistan and therefore the
Pakistani courts were competent to determine the rights of the parties in relation to the same. But
there is no legal justification for the courts in Pakistan to assume jurisdiction over any property,
movable or immovable, situated in England.
Conclusion: As can be discerned from the preceding discussion, cross-border succession gives
rise to the most important question of jurisdiction of the courts. It must be understood that the
question of jurisdiction is separate from the issue of the applicable law. It is correct to state that
the English courts may apply Muslim law in such a case, hence the question to be addressed
never revolved around the law applicable, rather the question was ultimately whether the courts
in Pakistan had the jurisdiction as under sections 16 to 20, C.P.C. to entertain the suit in question
and adjudicate upon the disputed property in England. Based on the reasons detailed above, this
Court has answered the question in the negative, affirming the concurrent findings and
conclusion of the courts below. The plain application of the relevant sections of C.P.C. provides
that the courts in Pakistan will have jurisdiction in respect to property situated in Pakistan. The
said sections do not envisage an extra-territorial exercise of jurisdiction, neither is such an extra-
territorial exercise of jurisdiction desirable in clear

violation of sections 16-20, C.P.C. and also in line with the established and recognized principles
of private international law.

In view of private international law this Court finds that the international responsibility of
Pakistan to respect the territorial jurisdiction of England cannot be ignored. It has never been
disputed that the property in dispute is situated outside Pakistan. As far as the Pakistani courts
possessed jurisdiction over to the property situated in Pakistan, the decision was given in favour
of the plaintiff Mst. Hafi (now deceased).
18. In light of the foregoing, the discussion of the applicable law and the reasons given thereafter
led to the conclusion that this appeal fails and is accordingly dismissed.

MWA/M-58/SC Appeal dismissed.