JUDGMENTS IMPEACHABLE ON THE MERITS OF THE CASE

Rules that are common to civilised jurisdictions though entities may be different

The Indian Courts shall honour the conclusiveness of a foreign judgment by virtue of Sec. 13 of Civil Procedure Code, 1908. However, the Section also lists certain exceptions among which Sec. 13(b) shall be subject of focus of this article. In order for a foreign judgment to operate, it ought to have been given on the merits of the case. The S.C. has succinctly summarized the requirements of Sec. 13(b)1  of the Civil Procedure Code, 1908 as follows : ". The clause should be interpreted to mean (a) that the decision of the foreign Court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the Court and contests the claim or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the Court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on merits. "2 The leading case on this point is Keymer v. P.Vishwanatham,3 the plaintiff-appellant had brought a suit against the defendant-respondent, who was a partner of the firm, in London, with respect to certain bills of exchange, which the defendant was alleged to have been overdrawn. The defendant denied the liability, and the plaintiff sought to exhibit interrogatories. The defendant didn't answer any of them. The plaintiff applied for the defence being struck out. The judgment was, on the basis entered for the plaintiff. On this judgment, the plaintiff sued in Madras, to which the defendant took the defence mentioned under Sec. 13(b). The Privy Council, in its judgment noted that the denials were made as to some averments in the plaint, but none of these matters were ever considered or were ever the subject matter of adjudication. The judgment was given only because the defendant had refused to answer the interrogations. The merits of the case were never gone into and his defence was struck out.4 Thus, the decree cannot be said to be one on merits so as to make the general provisions mentioned in Sec. 13 applicable. This case has been followed in Raj Shitole v. Shankar Saran, AIR 1962 SC 17375 The appellant, in Bombay had bought some goods from the respondent in London. But on the receipt of the goods in Mumbai, the appellant realised they were of inferior quality and hence did not pay for them. The respondent thereafter sued in London County Court and sued upon that decree in Ludhiana, where the appellant was a resident. The question which came up for consideration was whether the decree given by the London Court was one on the merits as required under Sec. 13(b). The S.C. distinguished between a decree passed regularly and one passed on merits.6 An ex-parte decree passed without consideration on merits may be decree passed regular if permitted by the rules of the Court. Such a decree would be valid in that country in which it is passed unless set aside by Court of appeal. However, even though it may be a valid and enforceable decree in that country. It would not be enforceable in India if it has not been passed on merits. In this case, the London Court had given the appellant leave to appeal after considering the affidavits and documents filed by the respondents. Thereafter, there seems to have been no consideration of the affidavit or the documents filed by the appellant, neither were the merits of the case considered. This was held to be sufficient to prove the case under Sec. 13(b). But if the judgment in question is not a foreign judgment than there is no question about the defendants relying on clause b in order to escape liability.7 An ex-parte decree was obtained in a Trivandrum Court against the defendant. The defendant then adds the order set aside and files a written statement in which he questions the jurisdiction of Trivandrum Court. But after filing the written statement, the defendant withdrew from further opposition and the decree was passed against him. Subsequently, the plaintiff filed an execution petition in the Native St. of Sattur, where the defendant had joint family property. The defendant took the defence that the foreign judgment was not on merits of the case. The High Court8 rejected this contention of the defendant. The defendant had filed a written statement and the decree was given after the plaintiff was examined in the witness box, though he was not cross-examined. This was held sufficient cause to constitute judgment on merits. Similarly, the Orissa H.C. has held that even an ex-parte decree in favour of the plaintiff may be one on merits, if some evidence is adduced on behalf of the plaintiff and the judgment however brief, is based on the consideration of that evidence. But where the suit is decreed merely because of the absence of the defendant, either by way of plenty or in a formal manner, then the judgment is not one on merits.9 Here, the plaintiff had given oral evidence before the Rangoon Court and the Judge gave reasons for accepting the plaintiff's claim. The Madras H.C. had occasion to consider whether a decree passed by the Ceylon Court under its summary procedure was on merits.10 In that case, the defendant did not obtain leave to defend in time and ex-parte decree was passed against him, which was set aside on an application of the defendant. He was asked to furnish Security, which he did not. Therefore, a decree was granted in favour of the plaintiff. A suit was filed in Tuticorin on this judgment. Welsh, relying on the Keymar ratio, held that the judgment was not one on merits and hence it fell within the exclusionary clause of Sec. 13(b).11 A similar question arose in the case of O. P. Verma v. Lala Gorilal12  where a decree has been obtained on the basis of a negotiable instrument under the summary procedure provided in Order XXXVII of the Code of Civil Procedure, after the defendant appeared through his Counsel and his prayer for leave to defend had been rejected from a Court in the State of Bikaner, which was a foreign Court as regards the Rajasthan Courts. The Court observed : "....In order that a judgment of a foreign Court may successfully pass the test of having been given on the merits, such a judgment must not have been given either as a matter of penalty or as a matter of mere form based on special or summary procedure inasmuch as such a trial does not offer any real or substantial opportunity to the defendant to contest the suit as a matter of right as he receives it under a regular procedure. 13 It was thus held that a decree passed in a suit brought under the provisions of Order XXXVII without going into the merits of the defence either because the defendant failed to appear or because he was not given leave to defend, cannot be held to be a judgment on merits of the case. Similarly, the Madras H.C.14 has held that the foreign judgment of a Singapore H.C. under the summary procedure after refusing leave to defend sought for by the defendant is not a judgment on merits and cannot be enforced in the Indian Courts. Similarly, a foreign judgment which dismissed the suit at the preliminary stage for non- production of documents by the plaintiff, before the defendant has even filed a written statement and without framing issues was held to be a judgment not on the merits of the case. 1 5 In another case,16 the defendant's father had mortgaged a house in Osmanabad to the plaintiff. On the father's death the defendant was its owner. The plaintiff filed a suit against the defendant on recovery of the money due under the mortgage deed. Her husband was appointed the Nazir as her guardian who appeared and filed a written statement. A decree was passed against the defendant in pursuance of which the house was sold. But money still remained to be recovered. So the plaintiff filed a suit in Sholapur, where some of the defendant's father's assets were situated. In this suit, the defendant took the defence that the judgment of Osmanabad Court was not on merits. The Bombay H.C.17  rejected the plea and held that the foreign Court did not give judgment merely because she was unrepresented. The Court had given ample notice and time to the defendant's husband, who ultimately did not appear. After taking evidence, the Court had considered the claim on merits. Conclusion : The rules of Private International Law must in the very nature of things differ, but by comity of nations, certain rules are recognised as common to all civilised jurisdictions. Through part of the judicial system of each State, these common rules have been adopted to adjudicate upon disputes involving a foreign element and to effectuate judgments of foreign Courts in certain matters or as a result of conventions. The Section prescribes the conditions to be satisfied by a foreign judgment in order that it may be accepted by an Indian Court as conclusive between the parties thereto or between parties under whom they or any of them litigate under the same title. One such condition is that the judgment must have been given on the merits of the case. Whether the judgment is one on the merits, must appear from the judgment itself. It is not enough if there is a decree or a decision by the foreign Court. In fact, the word 'decree' does not find a place anywhere in the Section. What is required is that there must have been a judgment. What the nature of that judgment should be is also indicated by the opening portion of the Section where it is stated that the judgment must have directly adjudicated upon questions arising between the parties.

The Court must have applied its mind to the matter and must have considered the evidence made available to it in order that it may be said that there has been an adjudication upon the merits of the case. It cannot be said that such a decision on the merits is possible only in cases where the defendant enters appearance and contests the plaintiff's claim. Even where the defendant chooses to remain ex-parte and to keep out, it is possible for the plaintiff to adduce evidence in support of his claim (and such evidence is generally insisted on by the Courts in India), so that the Court may give a decision on the merits of his case after a due consideration of such evidence instead of dispensing with such consideration and giving a decree merely on account of the default of appearance of the defendant.

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<EM>1.&nbsp;Sec. 13(b) Where it has not been given on the merits of the case. &nbsp;2.&nbsp;Halsbury's Laws of India, Vol. 7 (Civil Procedure), Butterworths India, New

Delhi, 2002

3. &nbsp;AIR 1951 Bom. 190

4. &nbsp;Bharat Nidhi v. Shri Megh Raj, AIR 1967 Del. 22 5.&nbsp;Raj Shitole v. Shankar Saran, AIR 1962 SC 1737 6.&nbsp;Bhagwan Das v. Rajaram Bapu, AIR 1951 Bom. 125 7.&nbsp;Lalji Raja v. Firm Hansraj Nathuram, AIR 1971 SC 974 8.&nbsp;1991 (3) SCC 451

9. &nbsp;AIR 1962 SC 262

10. &nbsp;AIR 1952 SC 508

11. &nbsp;AIR 1938 Bom. 173

12.&nbsp;AIR 1925 Mad. 155 (at 156)

13.&nbsp;AIR 1930 Bom. 511 (at 515)

14.&nbsp;AIR 1941 Mad. 387 (at 388)

15.&nbsp;AIR 1916 PC 121

16.&nbsp;2001 (5) SCC 265

17.&nbsp;AIR 1930 Bom. 511 (at 515)