Fazal Shau Khan vs Gafar Khan on 22 September, 1891

Madras High Court
Fazal Shau Khan vs Gafar Khan on 22 September, 1891
Equivalent citations: (1892) ILR 15 Mad 82
Bench: A J Collins, Kt., Shephard


1. The first point taken is that there was no judgment of a foreign Court on which an action would lie. This point is clearly not maintainable. From the record it is apparent that there is a Court in the Bastar territory, and that by that Court the plaintiff’s claim was heard and determined after consideration of evidence adduced on both sides in the usual way.

2. It is then argued that the Bastar Court had no jurisdiction, because the defendant did not reside or possess property, and the cause of action did not arise within the Bastar territory.

3. It appears, however, from the evidence that the appellant carried on business by his agent within the limits of the territory. Moreover the defendant did not protest that the Court had no jurisdiction, but appeared by an agent and defended the suit. Having done so, and having taken the chance of a judgment in his favour, he cannot now, when an action is brought against him on the judgment, take exception to the jurisdiction–see Schibsby v. Westenholz L.R., 6 Q.B., 155 followed in Kandoth Mammi v. Abdu Kalandan 8 M.H.C.R., 14. On this point, therefore, the appellant’s contention fails. Finally, it is argued that notwithstanding the judgment, the District Judge ought to have taken the evidence afresh and re-heard the case de novo, and that upon the facts the judgment of the Bastar Court was wrong. We are clearly of opinion that it was not intended by the Legislature when amending Section 14 of the Code that parties to an action on a foreign judgment should have the right to have the case re-heard.

4. All that the Section says is that the Judge is not to be precluded from inquiry into the merits. In the present case he has so inquired having had before him ample materials in the judgment of the Bastar Court and the evidence then taken, and he then found that the judgment was well founded.

5. We see no reason to differ from him. The appeal is dismissed with costs.

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