KARACHI, June 1: Justice Shabbir Ahmed of the Sindh High Court has declared a suit involving a foreign airline, time barred while interpreting section 14 of the limitations Act and discussing the concept of advancement of remedy and suppression of mischief.
The judgement was passed in the suit filed by Riazur Rahman against Lufthansa.
The only question involved in the matter was one of limitation, whether the words “a court of first instance” in section 14 of the Limitation Act, include a foreign court.
The case of the plaintiff, Riazur Rahman, against Lufthansa was that he was engaged in the profession of marketing on international basis and he frequently travelled all around the world by defendant airlines. He was represented by Arshad Iqbal, advocate.
On 30th May, 1997, after attending meetings, he travelled on his way from New York to Karachi on defendant’s flight LH-403 via connecting flight LH-634 from Frankfurt to Karachi.
On May 31, 1997, flight No. LH-634 arrived at Dubai International Airport, where, while disembarking the aircraft, stairs 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 came to Karachi on June 1, 1997, in serious condition and remained under medical treatment. Thereafter, he went to the US for further treatment.
The plaintiff, after service of legal notice on the defendant, filed a claim for absolute liability against the defendant in the US District Court, New York on July 6, 1998. The case was closed by the District Judge for lack of jurisdiction by judgment dated Oct 18, 2000.
The District Judge, New York was of the view that Article 28(I) of the Convention (Warsaw Convention) specified that actions, arising out of international transportation governed by the Convention, must be brought in one of four clearly identified 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.
Unless one of the specified fora was in the United States, a federal district court lacked jurisdiction over the claim under the terms of the Convention and, hence, lacked federal subject matter jurisdiction over the controversy.
The plaintiff presented the plaint for recovery of Rs 30,30,000.00 as damages against the defendant in the SHC on Dec 3, 2001.
Along with plaint, C.M.A. No. 9059/2001, an application under section 14 of the Limitation Act was filed for exclusion of period spent in District Court, New York, which contained the ground that the plaintiff had been, with due diligence and in good faith prosecuting his case in a court which from defect of jurisdiction was unable to entertain it.
Mr Mohammad Ali Sayeed, one of the two amicus curiae, contended that the question which required determination was whether the suit filed in American Court could be considered civil proceedings with 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” include the proceedings instituted in a foreign jurisdiction, if so, then (2) whether the proceedings were with due diligence.
His submission was that as there was no definition of the word “court” in the Limitation Act, it must be construed in the wider sense in which it was 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 was not subjected to the definition.
During the hearing, the decision of Division Bench of Lahore High Court in Hari Singh vs Muhammad Said and others (AIR 1927 Lahore 200) was referred to the effect that sections 12 and 14 were only applicable to suits in British India and not to the proceedings in foreign Courts.
Mr Rasheed A. Razvi, another amicus curiae while adopting the submissions made by Mr Mohammad Ali Sayeed, also contended that while considering the question of limitation, when no other material was available, the contents of the plaint was to be taken while deciding the matter.
By referring paras 3 and 9 of the judgment, he contended that the learned district judge had declined to assume the jurisdiction on the basis of Article 28 of the Warsaw Convention, which with modification, had 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 was not brought within two years, the right was extinguished and the period was to be reckoned from the date of arrival. He referred his own judgment, wherein the definition of the term “extinguish” had been stated in Shahenshah Hussain vs M/s Thai Airways International Limited (2000 MLD 1454).
Justice Shabbir Ahmed observed that peculiarity of the matter required dynamic approach by the court. The cause animated from the provision of carriage of air (Warsaw Convention) Act, 1966 (a special Law). Article 28 of Warsaw Convention provided 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 was domicile of the defendant carrier, (2) at principal place of business, which could be other than the place of domicile, (3) a place of business through which contract was made, and (4) the destination viz Karachi.
While dealing with such matter under special enactment, which provided different forum, as in this case, he observed that the court’s approach be dynamic and it should bear in mind that unless there were some compelling reasons, the party should not be non-suited simply because the court of a country lacked jurisdiction.
He was of the view that court can exclude the period spent in the proceeding of the same nature before a 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, he observed. Even otherwise “New days may bring the people into new ways of life and given them new outlooks and with this change, there may come a need for new rules or laws.” Justice Shabbir cited form Current Legal Problems, 1952 Volume 5.
He observed that in the instant case, the proceedings before District Court at New York were on the same cause of action and assumption of jurisdiction had been declined on jurisdictional defect. The proceeding was of “civil nature” and on the same cause of action, the plaintiff had also demonstrated that he was prosecuting his remedy with due diligence and bonafidely. The first four ingredients of section 14 of the Limitation Act were present.
He was inclined to follow the judgment of full Bench of Rajasthan High Court in Firm Ramnath Ramachandra v. Firm Bhagatram and Co., (supra), and under the concept of “advancement of remedy and suppression of the mischief”.
He was of the view that the benefit of section 14 of the Limitation Act was extendible to the instant case on its peculiarity, for exclusion of the period spent by plaintiff in proceedings before District Judge, New York. Thus benefit was extended to the plaintiff. Resultantly, the C.M.A. 9059/2001 was 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 was not brought within two years, the right was extinguished and the period was to be reckoned from the date of arrival.
In the instance case, the date of arrival of flight at the destination was June, 1, 1997. The presentation date was Dec 3, 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 was excluded, even then, the suit would be barred under Article 29, by two months, he observed.
“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 under section 3 of the Limitation Act,” Justice Shabbir Ahmed held.
