P L D 2002 Karachi 434
Before Shabbir Ahmed, J
LUFTHANSA GERMAN AIRLINES, QUAID‑E‑AZAM INTERNATIONAL AIRPORT, KARACHI‑‑‑Defendant
Suit No. (sic) of 2001, heard on 15th May, 2002.
Arshad Iqbal for Plaintiff.
Muhammad Ali Sayeed and Rasheed A. Razvi, Amicus Curiae.
Date of hearing: 15th May, 2002.
The only question involved in the matter is one of limitation, and it is, whether the’ words “a Court of first instance” in section 14 of the Limitation Act, include a foreign Court, such as one of New York. District Court, falling within that description. The question has arisen under the following circumstances::
The case of the plaintiff is that he is engaged in the profession of Marketing on International basis and he frequently travelled all around the world by defendant airline. He attended several meetings in London and New York in May, 1997. On 30th May, 1997, after attending such meetings, he travelled on his way from New York to Karachi on defendant flight LH‑403 via connecting flight LH‑634 from Frankfurt to Karachi. On 31‑5‑1997, flight No.LH‑634 arrived at Dubai International Airport, where while disembarking the defendant aircraft, stairs/ladder wobbled at a very high speed resulting in his fall from the stairs to the ground, as a result of that fall,, he became unconscious. He was taken to Emergency Medical Centre, thereafter he was shifted to Sheikh Rashid Hospital. The plaintiff was not being treated properly at Dubai, he came to Karachi on 1‑6‑1997 in serious condition arid remained under medical treatment in Karachi. Thereafter, he went to United States for further treatment: The plaintiff after service of legal, notice on the defendant filed a claim for absolute liability against the defendant in the United States District Court, New York on July 6, 1998, the case was closed by the District Judge for lack of jurisdiction by judgment, dated October 18, 2000.
The District Judge, New York was of the view that Article 28(1) of the Convention (Warsaw Convention) specifies that action, arising out of international transportation governed by the Convention, must be brought In one of four clearly identified fora: (I) the domicile of the carrier: (2) principal place of business of the carrier; (3) the forum in which the carrier has a place of business through which the contract watt made; or (4) the place of destination, Unites one of the specified ion Is in the United States, a Federal District Court lacks jurisdiction over the claim under the terms of the Convention and. hence lacks federal subject-matter jurisdiction over the controversy.
The plaintiff presented the plaint for recovery of Rs.30,30,000 as damages against the defendant in this Court on 3‑12‑2001.
Alongwith plaint, C.M.A. No.9059 of 2001, an application under section 14 of the Limitation Act has been filed for exclusion of period spent in District ‑Court, New York, which contains the ground that the plaintiff has been, with due diligence and in good faith prosecuting his case in a Court which from defect of jurisdiction is unable to entertain it. The same ground has been taken in supporting affidavit. .
Mr. Muhammad Ali Sayeed, Senior Advocate and Mr. Rasheed A. Razvi, Advocate, were appointed amicus curiae, to assist the Court, whether the word “a Court of first instance” in section 14 of the Limitation Act includes a foreign Court viz. District Court, New York, falling within that description with regard to a proceeding taken by plaintiff on same cause of action there. Both learned amicus curiae have addressed the Court and the plaintiff’s counsel had adopted their arguments in support of the application.
It may be stated here that by Carriage by Air (International Convention) Act, 1966, the Warsaw Convention, as amended, has been given force of law in Pakistan in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage in terms of subsection (2) of section 2, which r(.‑ads as follows:‑‑
“2. Application of the Warsaw Convention as amended, two Pakistan.‑‑(1) The rules contained in the First Schedule, being the provisions of the Convention for the unification of certain rules relating to international carriage by air known as ‘the Warsaw Convention as amended at the Hague, 1955’ , hereinafter referred to as the Convention, shall, subject to the provisions of this Act, have the force of law in Pakistan in relation to any carriage by‑air to which those rules apply. irrespective of the nationality of the aircraft performing the carriage.”
It may also be pointed out that rule 28 of First Schedule of the Act is adoption of the Article 28(1) of Warsaw Convention said rule also provides same foras for an action for damages; (1) before the Court having jurisdiction where the carrier is ordinarily resident; or (2) has his principal place of business; or (3) has an establishment by which the contract has been made; or (4) before the Court having jurisdiction at the place of destination.
The above provision is not like the provision of section 20 of the C.P.C. for bringing a cause at a place where the plaintiff gets cause of action, save where the defendant resides or carries on business.
Rule 29 states that the right of damages shall be extinguished if an action is not brought within two years, reckoned. from the date of arrival at the destination or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
Admittedly, the present suit ought to have been filed in ordinary course within a period of two years from 1‑6‑1997, the date of arrival at the last destination i.e. Karachi.
The provision of section 14 of the Limitation Act, provides the exclusion of time in computing the period of limitation as follows:‑‑
” 14. Exclusion of time proceedings bona tide in Court without Jurisdiction.‑‑(1) In computing the period of limitation, prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or to a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a. Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.”
The reading of the above provision suggests that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of alike nature, is unable to entertain it.
The following conditions have to be satisfied before section 14 car f be pressed into service:‑‑
(1) Both the present and subsequent proceedings are civil proceedings prosecuted by the same party..
(2) The prior proceedings had been prosecuted with due diligence and in good faith.
(3) The failure of the prior proceedings was due to defect of Jurisdiction or other cause of like nature.
(4) The earlier proceedings and the later proceedings must relate to same cause of action: and
(5) Both the proceedings are in a Court.
The present suit is governed by the Carriage by Air (International Convention Act) a special law and I have no hesitation in concluding that by virtue of section 29 of the Limitation Act the provision of section 14 can be pressed into service.
Mr. Muhammad Ali Sayeed, learned amicus curiae contended that the question which requires determination is whether the suit tiled in American Court could be considered civil proceedings within the meaning of section 14 of the Limitation Act. In other words, whether the proceedings must be in Courts of Pakistan or in a Court of Foreign jurisdiction. He further contended that (1) whether “civil proceeding” includes the proceedings instituted in a foreign jurisdiction, if so. then (2) whether the proceedings were with due diligence. His submission was that as there is no definition of the word “Court” in the Limitation Act, it must be construed in the wider sense in which it is used in that section, so as to include “a foreign Court” and contended that any term used in the statute, which limits or curtails the right of a citizen should be interpreted, liberally particularly, when such term is not subjected to the definition.
During the hearing, the decision of Division Bench of Lahore High Court to Hari Singh v. Muhammad Said and others (AIR 1927 Lahore 200; was referred to the effect that sections 12 and 14 are only applicable suits in British India and not to the proceedings in foreign Courts:‑‑ ;
“Section 9 of the Limitation Act lays down that when once time has begun to run rno subsequent disability or inability to sue stops it subject to one proviso, which does not apply in the present case. It was conceded that there is nothing in the Indian Limitation Act to warrant the deduction of any of the period claimed. Further, it has been held in AIR 1923 Nagpur, page 321 that sections 12, 14, etc. of the Limitation Act are only applicable to suits in British India and ‑not to proceedings in foreign Courts. This ruling followed Chanmalapa v. Abdul Vahab (1911) 35 Bombay 139), which is to the effect that the Courts contemplated by section 14 of the Limitation Act are British Indian Courts.”
M/s. Muhammad Ali Sayeed and Rasheed A. Razvi, learned amicus curiae contended that view taken in Hari Lal case is restrictive interpretation of term Court, and the Limitation Act has to be interpreted keeping in view the observation trade in several judgments by the Supreme Court that the access to justice is a fundamental, such, right cannot be taken away and the plaintiff might have been misled by the term civil proceedings. Mr. Muhammad Ali Sayeed has referred the following celebrated judgments:‑‑
(1) Government of Balochistan v. Azizullah Memon and 16 others PLD 1993 SC 341 and (2) Government of Sindh v. Sharaf Faridi and others PLD 1994 SC ‘105 to contend that the right to access to justice is internationally, well‑recongnized human right and is now being implemented and executed by granting relief under the Constitutional provisions. Article 10 of the Universal Declaration of Human Rights and Article 14 of the United Nations Convention on Criminal and Political Rights recognise the right of fair trial by an independent and impartial Tribunal established by law. The right of equal access to ordinary Tribunals and Courts is recognized in other countries also. The right of access to justice does not only mean that the law may provide remedies for the violation of rights, but it also means that every citizen should have equal opportunity and right to approach the Courts without any discrimination. It also envisages that normally the Courts established by law shall be open for all citizens alike. Where the jurisdiction of the Ordinary Courts established under ordinary law is excluded or barred and certain class of cases or class of persons or inhabitants of an area are not allowed to approach such Courts and are to be tried or rights adjudicated by special Courts, then a fair, rational and reasonable classification must be made which have nexus with the object of the legislation.
Mr. Muhammad Ali Sayeed also referred the following cases, wherein the concept of access to justice has been highlighted; (1) Al‑Jehad Trust v. Federation of Pakistan and others PLD 1996 SC 324; (2) Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; (3) Malik Asad Ali and others v. Federation of Pakistan PLD 1998 SC 161; (4) Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; (5) Sh. Liaquat Hussain and others v. Federation of Pakistan PLD 1999 SC 504 and (6) New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126.
In the last case, the right, access to justice is equally founded to the doctrine in due process of law which includes the right to be treated according to law, the right to have fair and proper trial.
Mr. Muhammad Ali Sayeed also contended that where a taw contravenes fundamental right, the Court would be lean to preserve the rights of the party to approach the Court, even if law of limitation would not be struck down being contrary to the a fundamental right but where the intention of law with language used is undefined and if there is room for more than one interpretation, the Court should interpret which is to consonance with fundamental right of access to justice. He also contended that civil proceedings means a proceedings of competent jurisdiction, if the proceedings before a Court having no jurisdiction would not be proceedings with due diligence and contended that in the instant case, the plaintiff brought a ticket of defendant Airline from Karachi to New York and arrangement has been made through defendant for Karachi from New York via defendant flight No.LH‑634 from Frankfurt to Karachi via. Dubai. On ‘ this fact, he contended that the plaintiff was under a bona tide impression that the Court at New York had the jurisdiction. The plaintiff was within their right to file claim at New York in a forum in which the carrier has a place of business through which the contract was made. He also contended that no doubt, the ignorance of law is no excuse but such principle would be applicable to the local laws and not to the International Conventions. The myth of ignorance of law is no excuse, cannot be pleaded in respect of such conventions and contended that nowadays laws are so complex that it is not possible to have quittance with all, more particularly, the International Law. The contention of Mr. Muhammad Ali Sayeed, learned amicus curiae might have some weight, had it been a case of International Convention only. By enacting the Carriage by Air (International Convention) Act 1966, the Warsaw Convention, as amended, has the force of law ‘”Pakistan.
Mr. Muhammad Ali Sayeed further contended that the Court can show indulgence if the party seeking the condonation has shown that he was prosecuting the proceedings with due diligence and contended that term “due diligence” has been interpreted by superior Court in various cases and referred the case of Mirza Muhammad Saeed v. Shahab‑ud‑Din and 8 others PLD 1983 SC 385, the observations are as follows:‑‑
. “The law as it now stands is that the Courts can show indulgence and condone the delay where time has been lost by prosecuting a remedy before a wrong forum on account of a bona fide mistake or error committed by a counsel, which a reasonable and prudent man despite exercising due diligence and caution might have committed. Where, however, the mistake in approaching the wrong forum is committed by him due to gross negligence and carelessness and it does not appear that he has shown due diligence, and caution before moving the said wrong forum, the only remedy for the unfortunate client of such a counsel appears to be to sue him for damages for the loss suffered on account of his gross negligence. If such a remedy is exercised more frequently and counsel made to pay for their carelessness and negligence which results in such grave losses’ to their clients, some amelioration in the situation is possible.”
Mr. Muhammad Ali Sayeed has also referred the cases: (1) Raja Karamatullah and 3 others v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892: (2) Karachi Electric Supply Corporation Ltd. v. Lawari and 4 others PLD 2000 SC 94; (3) Bashir Ahmed v. Muhammad Sharif and 4 others PLD 2001 SC 228 that in order to take advantage of Limitation Act, a litigant has to show that he has been prosecuting in civil proceedings with due diligence and that other civil proceedings were prosecuted in good faith, section 2(7) states that nothing shall be deemed to be done in good faith which is not done with due care and coercion.
Mr. Rasheed A. Razvi, learned anucus curiae while adopting the submissions made by Mr. Muhammad Ali Sayeed has also added in support of contention placed by Mr. Muhammad Ali Sayeed, by contending that while considering the question of limitation when no other material is available, the contents of the plaint is to be taken while deciding the matter and by referring paras..3 and 9 of the judgment, he contended that the learned District Judge has declined to assume the jurisdiction on the basis of Article 28 of the Warsaw Convention, which with modification, has the force of law in Pakistan and enacted in the shape of Carriage by Air (International Convention) Act, 1966 and pointed out that under rule 29, if an action is not brought within two years, the right is extinguished and the period is to be reckoned from the date of arrival. He referred his own judgment, wherein the definition of the term “extinguish” has been stated in Shahenshah Hussain v. M/s. Thai Airways International Limited (2000 MLD 1454) in the following terms:‑‑
“It will be pertinent to see that how the term extinguished has been defined in different law dictionaries. Some define it as an end; termination or to render extinct. In Black’s Law Dictionary, the term ‘extinguishments’ has been defined as the destruction or cancellation of a right, power, contract or estate. ‘It connotes the end of a thing, precluding the existence of future life therein’. In Legal Theasurus by William C. Burton. (McMillan Publishing Co., New York, 1990 at page 217) the term ‘extinguish’ has been defined as abolish, cancel, cut out, demolish, destroy, devastate suppress, terminate, wipe out etc. In the case of Barlow v. Ross (24 QBD 381) the word ‘extinguished’ was considered in reference to section 20 of Artizan’s and Labourer’s Dwelling Improvement Act, 1875; whereafter it was held, inter alia, that ‘the right to compensation is co‑extensive with extinguishment of rights’. I would also like to refer a decision of Indian Supreme Court in Vania Silk Mills (P) Ltd. v. Commissioner of Income Tax AIR 1991 SC 2104 at 2107 where the phrase ‘extinguishment of any rights therein’ was considered in reference to section 2(47) read with section 45 of the Indian Income Tax Act, 1961 whereafter following observations were made while defining the said phrase:‑‑
Since those associated words and expressions imply the existence of the asset and of the transferee, according to the rule of nositur a sociis, the expression ‘extinguishment of any rights therein’ would take colour from the said associated words and expressions, and will have to be restricted to the sense analogous to them. If the Legislature intended to extend the definition to any extinguishmem of right, it would not have included the obvious instances of transfer, viz. sale, exchange etc. Hence the expression ‘extinguishment of any ‘rights therein’ will have to be confined to the extinguishment of rights on account of transfer and cannot. be extended to mean any extinguishment of right independent of or otherwise then on account of transfer’ “
He contended that plaintiff seeking condonation in terms of section 14 of the Limitation Act has to satisfy the Court that the proceedings filed by him were of civil nature and were being prosecuted with due diligence at the Court of first instance or at the Appellate Court and the cause was dismissed due to jurisdictional defect. He also referred the case of Messrs Farid Sons Ltd. v. Messrs Siemens and Halske A.G. Hoff and Pakistan PLD 1961 (W . P.) Karachi 612, wherein the expression “good faith” with reference to section 14 of the Limitation Act was discussed as follows:‑‑
“The expression ‘good faith’ is not exhaustively defined in section 2 of the Limitation Act but inherently embraces the idea of honesty of purposes. The definition is as follows:
‘good faith’, nothing shall be deemed to be done in good faith which is not done with due care and attention; its effect is that do body can be said to have acted honestly for purposes of the Act if he did not act with due care and attention. This is a stricter definition than that contained in section 3(20) of the General Clauses Act, 1897, and excludes its application.”
It was further held that :‑‑ .
“where there is absence of diligence and good faith, it is erroneous to attribute the failure to defect of jurisdiction or a like cause.”
The view taken in Hari Singh’s case (supra) by Division Bench of Lahore high Court and in Rajanna v. Narayan (AIR 1923 Nagpur 321) by Division Bench of Nagpur High Court, that the term “civil proceeding before the foreign Court would not attract the provision of section 14 of the Limitation Act. The reason for such view was that the Limitation Act is not applicable to those territories. Learned amicus curiae have emphasized that this view is very rigid and narrow, and such restrictive interpretation should not be adopted by the Courts in the present circumstances when the concept of global scenario is being advocated in the background of economic activities involving International Law. When the policy of section 14 is to afford protection to a litigant against the bar of limitation, when he instituted a proceedings which by reasons of technical defect, want of jurisdiction cannot be decided on merit and is dismissed.
It has also been canvased that section 14 itself does not contemplate any territorial limits of a Court and it will neither be in tune with the established principles of interpretation nor with the exigencies and requirements of the present day society to confine its application to the proceedings in domestic Courts, The phenomenal Increase in economic and social activities at international level within the recent past has given rise to various contracts and transaction amongst persons belonging to different nationalities and consequently, controversies and conflicts cropped up, which some time culminated into litigation situations may arise as happened in the instant case, where recourse to judicial remedy may fail simply because the Court of a country lacks jurisdiction and by the time proceedings are instituted in a Court of Pakistan, the law of limitation comes in the way and prohibits entertainment or consideration of dispute on merits. Thus one, who has a right is deprived of the remedy. It cannot, therefore, be aptly held that proceedings only in Municipal Court is the sine quo non for availing relief under section 14 of the Limitation Act; for such an interpretation will be against the concept of equity which has been stated as follows:‑‑
“All great systems of Jurisprudence have a mitigating principle or set of principles by the application of which substantial justice may be attained in particular cases wherever the prescribed or customary forms of ordinary law seem to be inadequate. From the point of view general Jurisprudence ‘equity’ is the name which is given to this feature or aspect of law in general.” (American Jurisprudence, 2nd Edition page 516).
“Equity” cannot of course be invoked against what the law speaks in positive terms but when there is room for play, Court can verily rely on equity to put a liberal interpretation to save, otherwise, good case from being non‑suited. The concept of access to justice is no doubt well‑recognised right but within the parameters of the Law.
All legislation is primarily territorial, and a limit must be placed upon the general sense of a word used in a statute with reference to that the statute which compels the Court to interpret the word in its wide sense. The words of a statute, though to be given their grammatical sense, are to be construed also with reference to the general purpose of the statute.
Turning now to the Limitation Act,, its preamble shows that the “Courts” to which it applies are Courts in Pakistan, not foreign Courts. The word must be read in that restricted sense, or else the absurdity would follow that the Legislature intended to provide a “law relating to the limitation of suits, appeals and certain applications” for Courts outside its jurisdiction. And if that is the restricted meaning of the word as used in the Preamble, the same meaning must be attached to the word where it occurs in the enacting portions of the Act, unless the enactment is itself so clear and unambiguous as to show that the Legislature intended a departure from that meaning in the case of any particular section of the Act. Neither expressly nor by necessary implication has the Legislature made any such purpose apparent in the Limitation Act. The implication is rather the other way. Section 11 of the Act relates to a “suit on foreign contracts”; and Article 117 to Schedule I of the Act provides a period of limitation for a suit upon “a foreign judgment”. Whenever, therefore, the Legislature intended anything relating to a foreign State to be brought in, it has provided for it by express language. It is a fair inference from it that, had the Legislature intended to include a foreign Court in the word “Court” in section 14, it would have said so.
In this connection, the scheme of the Code of Civil Procedure needs examination with reference to foreign Court, because the Code and the Limitation Act are in pari materia; both are laws of procedure. The Code does not define the word “Court”, and that for the obvious reason that it applies primarily to the Courts on whom the Code is binding. But it defines “a foreign’ Court”, “foreign judgment” and wherever it intended that any section of the Code should apply to any judgment or proceeding of that Court, it has said so in distinct terms, as, for instance, in section 13. By section 13 of the Code, the judgment of a foreign Court is placed on the same footing as that of a Court to which the Code applies, not in all but only in some cases and for a certain purpose. That judgment is conclusive as to any matter “directly adjudicated upon” but only upon certain conditions, one of which is that it must be a judgment “given on the merits of the case”. Where it is not so given, the foreign Court is not recognised by the Code as being on the same footing with Court in Pakistan, to which the Code applies. A judgment of a foreign Court, dismissing a suit on the ground that it has no jurisdiction to try it, is not a judgment on the merits. If a foreign Court, which has dismissed a suit for want of jurisdiction, is not equivalent to a Court to which the Code applies, so far as its judgment dismissing the suit is concerned, it follows that the Legislature did not intend .the word “Court” to include a foreign Court in cases to which such judgments relate.
Again, by section 10 of the Code it is enacted that no Court shall proceed with the trial of any suit, in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, where such suit is pending in the same or any other Court in Pakistan having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Pakistan established or continued by Federal Government and having like jurisdiction or before the Supreme Court. Then there is an “explanation” added at “the pendency of a suit in a foreign Court does not preclude the Courts in Pakistan from trying a suit founded on the same cause of action”. There was, strictly speaking, no necessity for this explanation, because the words of the section restrict its scope in plain language to Courts which exclude a foreign Court. Therefore, the fact that it is added as an “explanation” to the section is important. Had the Legislature intended the word “Court” to mean any Court, whether Pakistani or foreign, it would have called that a proviso or an exception which it has called an “explanation”. The explanation must, therefore, be regarded as having been added ex majore cautela, and it throws lights on the intention of the Legislature that the word “Court” should not include a “foreign Court” unless it has that meaning given to it expressly or by necessary implication in the Code.
Article 55 of the Qanun‑e‑Shahadat Order can also be referred which relates to judgment in rem, the judgments of all competent Courts including foreign, in the exercise of probate, matrimonial, admiralty, or insolvency jurisdiction. The word “competent Court” in that section includes a foreign Court, because of the well‑known rule of law that such judgments are of “ubiquitous authority and universally conclusive”. This section in the Qanun‑e‑Shahadat Order supports the conclusion that the word “Court”, occurring in a statute, excludes a foreign Court, unless by express language or by necessary implication the statute includes it, or some well‑known rule of law warrants the wider sense.
Nevertheless, similar question also came before Full Bench of Rajasthan High Court in Firm Ramnath Ramachandra v. Firm Bhagatram & Co. AIR 1959 Rajasthan 149, through a reference involving question that a party who has been prosecuting a proceeding bona fide in a foreign Court can also take advantage of the benefit of the section 14 of Limitation Act, and deduct the period spent in prosecuting the proceeding before such Court when the proceedings are subsequently instituted in a proper Court of the country. The reference was in the following terms:‑‑
“Whether advantage can be taken under section 15 of the Kishangarh State Limitation Act, corresponding to section 14 of‑the Indian Limitation Act, of the pendency of a suit in the Courts of the erstwhile territory of the Ajmer‑Merwara, in subsequent suit in Kishangarh Court in view of the accession of Kishangarh State to the Dominion of India, and thereafter its becoming a part of the Union of India, and specially the merger of the erstwhile State of Ajmer with Rajasthan under the States Reorganisation Act, 1956?”
The Full Bench was of the view that no doubt, the Preamble to the Act shows that the “Courts” to which it applies are Courts in India and not foreign Courts. It is also true that all legislation are primarily territorial and that the limitation Act was enacted to be applied by the Courts of the country for which it was made and not by Foreign Courts. But that is not reason why the word “Court” should not be given a wider meaning so as to include proceedings in a foreign Court also if the subject or context in which it is used in the section would justify that meaning being given.
To reach above conclusion, the Bench observed that section 14 contains a general principle which is based on justice, equity and good conscience and it would not be proper to place a narrow construction upon the word “Court” in it. The provision has been made to give relief to honest suitors or applicants who prosecute their suits or application with due diligence in another Court in good faith and then their suits or applications are dismissed simply because the Court is unable to entertain them on account of some defect in its jurisdiction or some other cause of alike nature. If that is so there is no reason why time spent bona fide only in municipal Courts by honest suitors should be excluded and why the time spent in foreign Courts should not be excluded. The Bench brushed aside the objection that section 14 would appear to contain extra‑territorial law in case the word “Court” appearing therein in its wider sense by observing that “we think that it is not proper to say that simply because the word “Court” was used in the sense of the Courts of British India in the country in the preamble, the same meaning must be attached to the word wherever it occurs in the enacting portions of the Act without looking to the subject context in which it has been used”. It follows, therefore, that the word “Court” need not necessarily be interpreted to mean “Courts” of the country as shown in the Preamble if a different meaning appears from the subject or context in which the word is used.
The facts of the instant case are similar to the facts of firm Ram Nath Ramchandra, except that section 15 of the Kishangarh State Limitation Act was exactly in the same language of the section 14 of Limitation Act whereas, to the present case, it is not brought to the notice of this Court, if similar provision to the section 14 of the Limitation Act, governs the proceedings of Federal District Court, New York.
The peculiarity of the matter requires dynamic approach by the Court. The cause emanates from the provision of Carriage of Air (Warsaw Convention) Act, 1966 (a special Law). Article 28 of Warsaw Convention provides four fora: (1) the domicile of the carrier; (2) principal place of business of the carrier; (3) the forum in which the carrier has a place of business through which the contract was made; or (4) the place of destination. The same fora have been engrossed in rule 28 of the Schedule of the Act, 1966 and the suit could have been filed (1) in Germany, which is domicile of the defendant carrier, (2) at principal place of business, which might tie other than the place of domicile, Q) a place of business through which contract was made which might be in a third country and (4) the destination viz. Karachi. While dealing with such matter under special enactment which provides different forum, as in the instant case, the Courts’ approach should be dynamic and it should bear in mind that unless there are some compelling reasons, the party should not be non‑suited simply because the Court of a country lacks jurisdiction and by that time proceedings are instituted in a Court of Pakistan and prohibits the institution of cause. I am of the opinion that Court can exclude the period spent in the proceedings of the same nature before foreign Court under the “concept of advancement of remedy and suppression of mischief”. If the legislation lags, equity will come to the rescue and the Law is to be developed and adopted by the Judge to the needs of the members of his society. Even otherwise “New days may bring the people into new ways of life and give them new outlooks and with this changes, there may come a need for new rules or law”. (Current Legal Problems, 1932, Volume 5, Stevens & Sons Ltd., London).
In the instant case, the proceedings before District Court at New York were on the same cause of action and assumption of jurisdiction has been declined on jurisdictional defect. The proceeding was of “civil nature” and on the same cause of action, the plaintiff has also demonstrated that he was prosecuting his remedy with due diligence and bonafidely. The first four ingredients of section 14 of the Limitation Act can be said to be present. I am inclined to follow the judgment of Full Bench of Rajasthan High Court to Firm Ramnath Ramachandra v. Firm Bhagatram & Co. (supra), and under the concept of “advancement of remedy and suppression of the mischief”. I am of the opinion that the benefit of section 14 of the Limitation Act is extendable to the instant case on its peculiarity, for exclusion of the period spent by plaintiff in proceedings before District Judge, New York. Thus, benefit is extended to the plaintiff. Resultantly, the C.M.A. 9059 of 2001 is granted.
Turning to the question of availability of right to sue or its extinguishment, on exclusion of the period spent by the plaintiff in prosecuting civil proceedings before District Court, New York, suit would not be in time.
Article 29 of Schedule I of the Act, 1966 prescribes, if an action is not brought within two years the right is extinguished and the period is to be reckoned from the date of arrival. In the instant case, the date of arrival of flight at the destination is June 1, 1997. The presentation date is 3‑12‑2001, if the period of about two years four months (July 6, 1998) to (October 18, 2000), spent in the proceedings before District Judge, New York is excluded, even then, the suit would be barred under Article 29, by two months. The suit having been filed after the extinguishment of right to sue, is barred by time. Resultantly, the plaint is rejected by exercising the power tinder section 3 of the Limitation Act.
Before parting with the order, I would like to record my appreciation for the valuable assistance provided by learned amicus curiae, in resolving the point of law involved in this case.
M.B.A./R‑72/K Order accordingly.