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Allahabad High Court
V.E. Smith vs Indian Textile Company on 15 February, 1927
Equivalent citations: AIR 1927 All 413, 101 Ind Cas 673
Author: Boys


Boys, J.

1. Plaintiff filed a suit in a Benares Court on the allegation that in pursuance of a conversation with Mr. Smith, Defendant No. 1, and on assurances given by him he had supplied certain goods to Mr. Smith and to the second defendant, Mr. Roche; that later Mr. Smith discharged all his own personal obligations in regard to the goods supplied to him but that the second defendant Mr. Roche had, while retaining some of the goods supplied to him, defaulted in regard to the payment therefor. The plaintiff, therefore, sued both the defendants and obtained a decree against them both, against the second defendant as principal and against the first defendant as surety. Mr. Smith is a resident of Ceylon and, for the purposes of British India, admittedly a foreigner. He has also no property, in this country, He filed a written statement in which he challenged the allegations of fact so far as they concerned him. He also demurred to the jurisdiction of the Court alleging that the Court had no jurisdiction whatever to deal with him. Beyond filing this written statement he took no further steps and did not appear, and, so far he was concerned, the suit was decreed ex parte.

2. The proposition as to the jurisdiction of the Court would be somewhat startling if it were well founded. It would mean that, so far as the civil Courts are concerned, any foreigner could walk into the country, could cheat anybody in the country and walk out again and continue to repeat the process as long as he pleased. If that, however, was the law we should have to declare it. In support of this proposition we have had a ruling of their Lordships of the Privy Council and a passage from Dicey’s Conflict of Laws drawn to our attention. We do not think, however, that either of these authorities are of any assistance to the present applicant. The decision of their Lordships is reported in Gurdyal Singh, v. Raja of Faridkot [1894] 22 Cal. 222. A decree had been obtained in the foreign State of Faridkot against a defendant who was not resident in Faridkot at the time the suit was filed, who was in another foreign State, Jhind, who had ignored the process of the Faridkot Court, who made no appearance during the course of the suit, and had in no way submitted to the jurisdiction of the Faridkot Court. Subsequently the plaintiff brought a suit against this defendant in a Court of the Punjab. Their Lordships of the Privy Council held that when the foreign judgment of the Faridkot Court was put in evidence in the Punjab Court it was for the British-Indian Court to consider whether the Faridkot Court’s judgment had been passed with jurisdiction. Their Lordships held that the Faridkot Court had no jurisdiction, that is to say, they held that a foreign Court had no jurisdiction. That is a wholly different proposition from that in the present case. We are not concerned with the judgment of a foreign Court nor the extra-territorial effect (a question of foreign law) of the judgment of a British Indian Court, but the intra-territorial effect of the judgment of a British Indian Court. We, a superior Court in British India, are asked to hold that a subordinate Court in British India had no jurisdiction. That question must depend for its answer on what is the jurisdiction given to the British-Indian Courts by the Legislatures of this country. The distinction is expressly recognised in their Lordships’ judgment at page 238 where they say:

In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in absentem by a Foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself; is by International Law an absolute nullity. He is under no obligation of any kind to obey it, and it must be regarded as a mere nullity by the Courts of every nation, except (when authorised by special local legislation) in the country of the forum by which it was pronounced.

3. The “causes of jurisdiction,'” to which reference is made as being non-existent in the particular case, are referred to in a preceding passage which runs:

It exists always as to land within the territory, and it may be exercised over moveables within the territory: and in questions of status or succession governed by domicile, it may exist as to persons domiciled, or who when living were domiciled, within the territory.

4. Those causes of jurisdiction are equally absent in the present case. But there is an exception expressly made at the end of the passage first quoted:

except (when authorized by special local legislation) in the country of the forum by which it was pronounced.

5. This is sufficient to indicate, as might be expected, that their Lordships expressly excepted the case of a Court considering a decree passed by another Court in the same country. The latter is what we have to do here. We are not considering a foreign judgment but whether a Court in this country had jurisdiction, and we have, as indicated by their Lordships, merely to consider the effect of the special local legislation.

6. The passage quoted to us from Dicey’s Conflict of Laws, second edition, page 374, Rule 84, has similarly no application. There also the question being dealt with is what view is a country to take of a foreign judgment. It is clear from the rule itself and from the comments and illustration which follow that is the question which was under consideration.

7. We have then only to consider the effect of the legislation affecting British India. It is, of course, clear that the Code of Civil Procedure extends to the whole of British India. Counsel for the applicant in revision has not been able to direct our attention to any limitation in the Code of Civil Procedure or in any other Act in force in this country excepting foreigners from the jurisdiction of British-Indian Courts. Nor are we aware of any such limitation. That being so, there is nothing which will protect a foreigner from being subject to the Courts of British India in a suit of the description before us. We hold that the Court at Benares had jurisdiction to pass the decree which it passed against Mr. Smith.

8. It is unnecessary then to consider whether Mr. Smith submitted to the jurisdiction by accepting the process, appointing a pleader and filing a written statement, or, if he did so submit, what would be the effect thereof. The application is dismissed with costs.

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