DATA STEEL PIPE INDUSTRIES (PVT.) LIMITED Versus SUI NORTHERN GAS PIPELINES LIMITED
ORDER
MUHAMMAD JUNAID GHAFFAR, J.--- These are two connected Suits, wherein, the defendant No. 1 has filed applications bearing C.M.A. Nos. 12805/2016 (Suit No. 1939 of 2016) and C.M.A. No. 11848/16 (Suit No. 1595 of 2016), both under Order VII, rule 10, C.P.C. for return of the Plaint to a Court having appropriate jurisdiction on the ground that this Court has no territorial jurisdiction to adjudicate the controversy.
2. Learned Counsel for defendant No.1 has contended that pursuant to a Tender issued at Lahore on 05.09.2015, the plaintiff was awarded a Letter of Intent dated 4.1.2016 and a Purchase Order dated 6.1.2016 for supply of Pipes in Punjab. He has further submitted that the Head Office of defendant No.1 as well as the business office is in Lahore, whereas, the factory from where the supply was to be made by the plaintiff is also in Punjab. He has referred to various documents annexed with the written statement in this regard. He has further contended that though defendant No.1 has a liaison office in Karachi, however, for the present purposes such office within the territorial jurisdiction of this Court has no relevance as according to the learned Counsel the said Office has only been established to handle imports at the Karachi Port. He has further contended that pursuant to the Tender, a Performance Guarantee has been issued by the Bank at Lahore, whereas, the encashment notice of such Performance Guarantee was also issued at Lahore. In these circumstances, per Learned Counsel no cause of action has accrued, either wholly or in part, within the territorial jurisdiction of this Court, whereas, defendant No.1 does not operate within the jurisdiction of this Court. He has also referred to section 20 of Civil Procedure Code to support his case and has also relied upon the cases reported as 2015 YLR 2277 (Mrs. Shamsand Begum and another v. Syed Iftikahr Hussain Jaferi and 5 others), 2014 CLD 1039 (Zafar Iqbal and 3 others v. Nasreen Ahmed and 8 others), 2011 CLC 1450 (Muhammad Bachal v. Province of Sindh through Home Secreatry and 12 others), 2010 CLC 1226 (Ismat Asad v. Pakistan Oxygen Limited and another), 2013 CLC 1532 (Mst. Khusheed Begum and another v. Habib Bank Limited through President), 2015 MLD 662 (Jawed Iqbal v. Province of Sindh and 4 others).
3. On the other hand learned Counsel for the plaintiff has contended that as a preliminary objection in view of Order XLIX, Rule 3, C.P.C, instant application is misconceived inasmuch as the provision of Order VII, Rule 10, C.P.C. does not apply to this High Court. In support of his contention he has relied upon PLD 1975 Karachi 944 (Haji Razak v. Usman and 9 others). However, he has candidly made a Statement at the Bar that he is only pressing this argument in case his objections on merits of the case are not convincing. Learned Counsel has then referred to section 20, C.P.C. and submits that Subsection ("a") and Subsection ("c") as well as Explanation-II, apply to the case of plaintiff, and therefore this Court has all the jurisdiction to adjudicate the issue. Per Learned Counsel the defendant No.2, which is a Bank, and has issued the Performance Guarantee in question, has its principal place of business at Karachi, and therefore by virtue of Explanation-II, instant Suit is maintainable within the territorial jurisdiction of this Court. He has further submitted that without prejudice, even in terms of section 20(c), the plaint cannot be rejected as according to the plaintiff, part of cause of action has arisen within the territorial jurisdiction of this Court as Letter of Credit issued by defendant No.1, pursuant to the Tender, has been issued by the Bank in Karachi for payment to be made to the plaintiff after supply of goods. Learned Counsel has referred to an Email dated 30.8.2016 (Pg:365) and has contended that the Bank at Karachi has informed the plaintiff that the Performance Guarantee in question is being asked for encashment, therefore, the plaintiff immediately rushed to this Court and has filed instant Suit for restraining defendant No.2 from en-cashing the Performance Guarantee. Per Learned Counsel for deciding an Application under Order VII, Rule 10, C.P.C., it is only the averments made in the plaint and disclosure of cause of action, which is relevant and not the case as setup by the defendants through their written statement. He has referred to Paras 25 and 28 of the Plaint where the cause of action has been disclosed and per learned Counsel substantial relief has been sought against defendant No.2, therefore, plaint cannot be returned in this manner. He has relied upon the cases reported as 2005 CLC 1659 (United Distribution Pakistan Ltd. v. Al-Syed Agrochemicals Services and others), 2012 CLD 491 (Haji Raiz Ahmed and another v. Messrs Habib Bank Limited and 2 others), 2007 YLR 21 (Aziz Bibi and others v. Aijaz Ali and others), 1999 CLC 954 (Sardar Muhammad Sarwar Khan v. Shaukat Zaman Khan) and PLD 2014 Sindh 601 (Redtone Telecommunications Pakistan (Pvt.) Ltd. and 3 others v. Federation of Pakistan and 11 others).
4. I have heard both the learned counsel and perused the record. The facts as discussed hereinabove do not appear to be in dispute to the effect that Tender was issued by defendant No.1 from Lahore, however, the same was published in the entire Country in various Newspapers and pursuant to such Tender, plaintiff participated in the proceedings and was awarded the same by issuance of Letter of Intent dated 4.1.2016 and Purchase Order dated 6.1.2016. It further appears to be an admitted position that the plaintiff furnished a Performance Guarantee through defendant No.2, which was issued by the office of defendant No.2 at Lahore. The present Suit has been filed in addition to the relief being claimed against Defendant No.1, for restraining defendant No.2 and/or its office at Lahore from encashment of the Performance Guarantee, being sought by defendant No.1 as according to them the plaintiff has failed to affect supply of goods in question. For deciding the present controversy, I need not to go into merits of the case as it is only a legal question with regard to the territorial jurisdiction of this Court which is to be decided that whether the plaint is to be returned in this matter or not. For such purposes it would be relevant to refer to section 20, C.P.C., which reads as under:-
"20. Other Suits to be instituted where defendants reside or cause of action arises.---Subject to the limitations aforesaid, every Suit shall be instituted in a Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the Suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the Suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation I . Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence.
Explanation II : A corporation Shall be deemed to carry on business at its sole or principal office in Pakistan or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."
5. Section 20 subsection (a) provides that subject to the limitations aforesaid (i.e. sections 16, 17, 18 and 19, C.P.C.) every Suit shall be instituted in a Court within local limits of whose jurisdiction the defendant or each of the defendants where there are more than one, at the time of the commencement of the Suit, actually and voluntarily resides or carries on business, or personally works for gain. Similarly, section 20(b) provides for institution of a Suit when any of the defendants where there are more than one, at the time of the commencement of the Suit, actually and voluntarily resides or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution. And section 20(c) caters to the situation for institution of a Suit where the cause the action, wholly or in part, arises. There are two Explanations to this Section and Explanation-I provide that where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. Explanation-II provides that a Corporation shall be deemed to carry on business at its sole or principal office in Pakistan or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. In the present case subsection (b) is not relevant and applicable as it is the case of both the parties that only section 20(a) and (c) as well as Explanations are to be considered for deciding the present controversy. Insofar as defendant No.1 is concerned there is no dispute to the effect that their Head Office is in Lahore and they operate from such office, whereas, it is neither the case of the plaintiff nor it has been argued that the liaison office of defendant No.1 at Karachi confers territorial jurisdiction on this Court. The plaintiff's case is that since defendant No.2 is having its principal place of business at Karachi, against whom substantial relief is being claimed, therefore, irrespective of the fact that any cause of action wholly or partly arises, by virtue of section 20(a) read with Explanation-II, instant Suit is competent within the territorial jurisdiction of this Court. In the alternative their case is that the cause of action has accrued partly within the territorial jurisdiction of this Court and for that reliance is placed on section 20(c), C.P.C. independently. On an overall perusal of facts and material placed before me, I intend to agree with the contention of learned Counsel for the plaintiff that this Court has the territorial jurisdiction in this matter. The plaintiff in the instant Suit has sought a restraining order against defendant No.2, who has its Principal place of business at Karachi and that is not in dispute. It is immaterial for the present purposes that the Performance Guarantee in question was issued by the Lahore office of defendant No.2. The plaintiff operates and has its principal place of business in Karachi and operates its Accounts with defendant No.2 at Karachi and has stated in Para 8 of the plaint that pursuant to the purchase order plaintiff procured the Performance Guarantee from Defendant No.2. It is not conceivable that the plaintiff would have made a direct request to the Bank at Lahore to issue the Performance Guarantee in question, which in my opinion has been issued by defendant No.2 from its Branch Office at Lahore, for convenience sake. It is also imperative to observe that nowadays in this emerging digital and electronic world, we see the Banks in the entire Country operate as one office or branch. A deposit made at a Branch in Karachi is credited easily in the account of a person having an account with the same Bank having a branch at Lahore through an online process. Therefore this is a changed scenario and it is in this perspective that the Court has to see that whether the cause of action wholly or partly arises within its territorial jurisdiction.
6. In this case the proper appreciation of section 20, C.P.C. would be that insofar as plaintiff's case is concerned, since defendant No.2 has been sued, who has its Principal place of business at Karachi, hence, this Court has the territorial jurisdiction in this matter. The given situation would be covered and can be dealt with by subsection (a) of section 20, C.P.C., which entitles the plaintiff to institute a Suit in a Court within the local limits of whose jurisdiction the defendant (defendant No.2 in this matter) actually and voluntarily resides, or carries on business read with the 1st part of Explanation-II i.e. "a corporation shall be deemed to carry on business at its Sole or principal office in Pakistan". Insofar as the 2nd part or the latter part of the Explanation-II, i.e. "or in respect of any cause of action arising at any place where it has also a subordinate office, at such place" is concerned, perhaps to my understanding is not relevant in this case and would only come into action when the question before the Court is with regard to the place of suing where the subordinate office is located and in that case would also require that the cause of action, wholly or in part, must arise where the subordinate office of a Corporation is situated. The Hon'ble Supreme Court in the case of Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. (1981 SCMR 494), had the occasion to interpret Explanation-II, in the following manner:
It would appear from the case-law cited at the Bar that the consensus of authority is that Explanation II to section 20, C.P.C. does not control clause (c) thereof and is relateable to clauses (a) and (b) only. Learned counsel for the appellant was unable to cite any case other than that Registered Firm Shelkhan Industries Quetta in support of his contention that clause (c) also is subject to the said explanation. We regret that the view taken in the said case, on proper analysis of section 20, C.P.C., cannot be upheld. The conjunction 'or' separates all the three clauses (a), (b) and (c) of section 20. Subject to limitations, pecuniary or otherwise, referred in the earlier provisions of the C.P.C., section 20 contains a general provision embracing all personal actions. The plaintiff has three options thereunder to sue: where the defendant or each of the defendants actually resides, carries on business or personally works for gain (clause 'a'); or, in case there are more than one defendants, any of them besides, carries oil business or personally works for gain (clause 'b'); or, at the place where the cause of action, wholly or in part, arises (clause 'c'). If the situation in a particular case is not covered by clauses (a) and (b), the suit can be instituted by virtue of clause (c), at the place where cause of action, wholly or in part, arises: Explanation I is not relevant for consideration in the present case. Explanation II covers an uncertainty, if not ambiguity, with regard to the place where a corporation is supposed to carry on business. Its subject obviously is relateable to the phrase 'carries on business' (used in clauses (a) and (b)). It would be violation to the language of section 20 to apply Explanation II to clause (c) where under the phrase 'carries on business' would have no meaning. Therefore, it would be unjustified to subordinate clause (c) also to Explanation II. The mention of cause of action in Explanation II would not make any difference in this behalf. While explaining the phrase 'carries on business' through a deeming process, the Explanation II provided that a corporation would be considered as carrying on business at its sole or principal office and also at its subordinate office provided in the latter case, for purpose of section 20, the cause of action also arose there. This Court did not approve the view taken by the Dacca High Court in the case of Messrs Rehmania Trading Company that the Explanation II is not restrictive but has the effect of extending the liability of a corporation to be sued at a place where it has principal office or at a place where it has a subordinate office. Explanation II can be subdivided into two parts; one dealing with the principal office and other with subordinate office a limitation has been placed regarding subordinate office only; which would mean that a party choosing to institute a suit at a place where the corporation has only a subordinate office would have initially to show that the cause of action arose there. Thus it would appear that the location of the subordinate office does not give the plaintiff a choice to institute the suit at that place. The law did not recognize that the location of a subordinate office of a corporation can be converted, through a deeming clause, into a place where the corporation 'carries on business'. It would be so only under a limitation namely, that where cause of action arose and the corporation has also a subordinate office at that place. The combination of these two facts would become equal to the "carrying on business". "The underlying idea seems to be that regarding corporation, it would not be correct to assume that it 'carries on business', as envisaged in section 20, at a subordinate office. Thus looked at from this angle as well, the entire Explanation II would appear to be relateable to the phrase 'carries on business' used in clauses (a) and (b) and section 20 and clause (c) remains independent thereof.
7. It is also a settled proposition of law that while considering an application under Order VII, Rule 10 or for that matter Rule 11, C.P.C., it only the averment in the plaint which are to be looked into primarily. The honorable Supreme Court (though dealing with an application under Order VII, Rule 11, C.P.C. but the principle remains the same) in the case reported as Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Ltd. (PLD 2012 SC 247) has been pleased to observe that.... "firstly there can be little doubt that primacy, (but not necessarily exclusivity) is to be given to the contents of the plaint........ Secondly it is also equally clear, by necessary inference, that the contents of the written statement are not to be examined and put in juxtaposition with the plaint in order to determine whether the averment of the plaint are correct or incorrect...Thirdly, and it is important to stress this point, in carrying out an analysis of the averments contained in the plaint the Court is not denuded to its normal judicial power."
A learned Division Bench of this Court in the case of Murlidhar P. Gangwani (Engineer v. Engineer Aftab Islam Agha and others (2005 MLD 1506) has been pleased to observe that it is an elementary principle of law that for examining the question of territorial jurisdiction the averments made in the plaint are to be taken as a whole and with a presumption of correctness attached to it. The relevant observation in this context is as under:-
"Indeed, it is elementary principle of law that for examining the question of maintainability of the suit with reference to or on the analogy of the provisions of Order VII, rules 10 and 11, C.P.C., the averments made in the plaint are to be taken as whole and with presumption of correctness attached thereto. But at the same time, it is also pertinent to mention that A for determining the question of territorial jurisdiction with reference to the cause of action, whether accrued wholly or in part, the averments of the plaint are to be read in conjunction with the relief sought by a party in the suit and such reading of plaint should be meaningful, rational to the controversy and not merely formal."
Similar view has been taken by another learned Division Bench of this Court in the case of Messrs Taha Commodity Export v. Khadim Ali Shah Bukhari (KASB) Bank Ltd. and 2 others (2011 MLD 1898).
In this matter the plaintiff has detailed out its cause of action in Paras 25 and 28 of the plaint, wherein, it has been specifically pleaded that it is also the notice of encashment issued by defendant No.2, by which the plaintiff is aggrieved. Hence, in view of such position I am of the view that this Court can exercise jurisdiction in the instant matter, independently of section 20(c) (which is being dealt with in the latter part of this opinion) by virtue of section 20(a) read with the 1st part of Explanation-II, as stated hereinabove.
8. Adverting to section 20(c), C.P.C. it also appears to be an admitted position that pursuant to the Tender and furnishing of Performance Guarantee the defendant No.1 has arranged for issuance of a Letter of Credit (Pg:285) bearing No.0361TF1602218517 from Allied Bank of Pakistan, Corporate Center Branch, Karachi to Silk Bank Limited, Karachi. The same has been issued on behalf of defendant No.1 and beneficiary is the plaintiff. Reference in this regard may also be made to Annexure "K/1" (Pg:365), which is an E-mail issued by the Lahore Office of defendant No.2 and addressed to Karachi Office of defendant No.2 and refers to the Performance Guarantee in question. The contents of this E-mail reflect that the Lahore Office of defendant No.2 corresponds with the Karachi Office, wherein, it has been stated to treat the matter as most urgent as today they have received original guarantee along with encashment letter, contents of which are self-explanatory. It further states that one Tuseef Ijaz is sitting at our Trade Processing office in Lahore, and kindly arrange for the payment to be made accordingly. Though, the learned Counsel for defendant No.1 has argued that this E-mail is an internal memo of defendant No.2 (Bank), therefore, not relevant. However, I am not inclined to agree with such contention for the simple reason that the Bank Office at Lahore has though issued the Performance Guarantee from their office, but it appears that they are unable to make payment of the same and have approached its Principal at Karachi, for seeking guidance and permission, as well as to arrange payment for the same. If the guarantee was independently issued by defendant No.2 Bank at Lahore, then there was no reason or occasion to seek any assistance from its Karachi office. The case law on this issue has laid down the sole criterion and an acid test to decide the territorial jurisdiction is the accrual of cause of action in whole or in part under section 20(c), C.P.C. and it is clear that even a fraction of cause of action gives territorial jurisdiction to decide the case. (See Pakistan Kuwait Investment Company (Pvt.) Limited v. Saadulah Khan and Brothers and others 2010 CLD 760).
The expression 'cause of action' has not been defined in the Code. It is however settled law that every suit presupposes the existence of a cause of action. If there is no cause of action, the plaint has to be rejected. Stated simply, 'cause of action' means a right to sue. It consists of material facts which are imperative for the plaintiff to allege and prove to succeed in the suit. The classic definition of the expression ('cause of action') is found in the observations of Lord Brett in Cooke v. Gill (1873) 8 CP 107: 42 L1 CP 98.
"Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court."
The Indian Supreme Court in the case reported as A.B.C. Laminart (Pvt.) Ltd. v. A.P. Agencies AIR 1989 SC 1239 has observed that;
"A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff." (Emphasis supplied)
A learned Single Judge of this Court in the case of Businet International (Pvt.) Ltd., v. Messrs Aramex International (Pvt.) Ltd., (2001 CLC 104), has been pleased to hold that;
"...but subsection (c) also allows the plaintiff to file a suit where the cause of action accrues. Although it may be correct that the defendant Company never carried on any business in Pakistan within the meaning of Explanation-II to section 20, it has to be considered whether in terms of subsection (c) to section 20 of the C.P.C. any cause of action accrued to the plaintiff in Karachi. In this regard it would be seen that the term 'cause of action' has not been defined in, the code, however, it has been held in a number of cases decided by the Superior Courts that it consists of every fact if traversed it should be necessary for the plaintiff to prove in order to support his right to judgment and if not proved gives the defendant a right to judgment...."
The cause of action in this case as aforesaid (i.e. encashment of Performance Guarantee) is a cause of action at least partly and clearly falls within the provisions of section 20(c) as it, has arisen within the territorial jurisdiction of this Court. Therefore, in view of hereinabove discussion, I am of the view that this Court has territorial jurisdiction in this matter, as firstly defendant No.2 who has its Principal office at Karachi, falls within such territorial jurisdiction of this Court by virtue of section 20(a) read with Explanation-II, and secondly part of cause of action has arisen within such jurisdiction in view of section 20(c), C.P.C.
9. Before parting I may observe that though the learned counsel for the plaintiff had candidly stated at the bar that in case his case succeeds on merits, he will not be pressing his objection as raised by relying upon the case of PLD 1975 Karachi 944 (Haji Razak v. Usman and 9 others) to contend that by virtue of Order XLIX, Rule 3, C.P.C., even otherwise this Court has no jurisdiction to entertain an application under Order VII, Rule 10, C.P.C., as this provision is not applicable to the High Court while exercising ordinary or extraordinary original Civil jurisdiction. However, for the sake of clarity I would like to deal with this objection as well. First of all it needs to be dilated that whether the civil jurisdiction being exercised by this Court on the Original Side is ordinary civil jurisdiction or extraordinary civil jurisdiction. An issue was placed before a full bench of this Court as a reference by a learned Single Judge of this Court that as to whether the provisions of the Sindh Civil Courts (Amendment) Ordinance, 2002, transferring suits of the value of Rs. 30,00,000 and less were constitutionally valid in terms of Article 143 of the Constitution. And the full bench of this Court in the case reported as Rimpa Sunbeam Co-operative Housing Society Ltd. v. Karachi Metropolitan Corporation through Administrator (PLD 2006 Karachi 444), speaking through erstwhile Chief Justice, Late Sabihuddin.J. (as his lordship then was), held as follows;
19. The upshot of the above discussion, therefore, is that the jurisdiction of this Court to entertain Suits is basically neither the ordinary nor the extraordinary original civil jurisdiction of the High Court but simply a District Court jurisdiction, which was conferred and regulated by provincial statutes. The Karachi Courts Order, 1956, was also not a law made by the Parliament in exercise of powers under the concurrent Legislative list.
20. For the foregoing reason, we are clearly of the view that there is no conflict between a federal and a provincial law in the above context and, therefore, in accordance with section 7 of the Sindh Civil Courts Ordinance, the jurisdiction of this Court to try civil suits is confined to matter where the pecuniary value of the subject matter exceeds Rs. 30,00,000 all other suits are liable to be tired by the District Court.
Insofar as reliance on the judgment reported as PLD 1975 Karachi 944 (Haji Razak v. Usman and 9 others) is concerned it would suffice to observe that the said judgment of the Division Bench of this Court was set aside by a 5 Member Bench of the Hon'ble Supreme Court in the case reported as Province of Sindh v. Haji Razzaq and others (1991 SCMR 920). Therefore any reliance on the said judgment by the learned Counsel for the plaintiff is of no help. Even otherwise this objection as well as the objection concerning section 120, C.P.C. which is also analogous to the provision of Order XLIV, Rule 3, which provides that the provisions of sections 16, 17 and 20, C.P.C. shall not apply to the High Court in the exercise of its original civil jurisdiction, has been dealt with by a learned Single Jude of this Court in the case of Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqui and 2 others (PLD 2010 Karachi 261) in the following manner at Para 13 of the judgment;
13. A bare reading of section 120 of Civil Procedure Code show that firstly it makes sections 16, 17 and 20 of Civil Procedure Code inapplicable for the High Court in exercise of its original civil jurisdiction. The need to make sections 16, 17 and 20 of C.P.C. inapplicable to a High Court arose because the jurisdiction of Civil Courts under sections 16, 17 and 20, C.P.C. and the original civil jurisdiction of the High Courts under the then Letters Patent determine separate places where a civil suit and proceedings could be filed. Section 120 of C.P.C. was enacted to settle the conflict of sections 16, 17 and 20 of C.P.C. with the laws that conferred original civil jurisdiction on the High Courts and to obviate any confusion as regards place of suing. This can be understood through an example. Ordinarily a suit relating to a dispute of immovable property situated in Saddar, Karachi is to be brought in the Civil Court, which under the provisions of sections 16 and 17 of Civil Procedure Code has jurisdiction to try such suit. As the area of Saddar in Karachi falls within the limits of Police Station, Saddar which is in District East, Karachi, therefore the Civil Court which can try suits of area falling in Police Station Saddar becomes the place where such a suit is to be filed when sections 16 and 17 of the Civil Procedure Code are applied. However, if the same suit is of a value, which is more than three million rupees then by virtue of section 7 of Sindh Civil Courts Ordinance, 1962 the place of suing shifts to the Original Side of this High Court. In order to overcome this overlapping of jurisdictions, provisions of sections 16 and 17 of C.P.C. were made inapplicable under section 120 of C.P.C. so that these provisions may not come in the way of filing a civil suit or proceedings on the Original Side of this Court. Therefore, while entertaining a suit relating to immovable property emanating from the area of Saddar in Karachi having a value of more than three million rupees, the place of suing as determined under sections 16 and 17 of the C.P.C. becomes immaterial and is not to be considered as under section 7 of the Sindh Civil Court Ordinance, 1962, the Original Side of this High Court becomes the place of suing. Section 120 of C.P.C. can be interpreted only in this manner and not in a manner that any suit of more than three million rupees in value, coming from any part of the territorial jurisdiction of this Court viz. the entire Province of Sindh can be entertained on the Original Side of this Court. If the interpretation as given to section 120 of C.P.C. by the learned counsel for the plaintiff is accepted then every suit of a value above three million rupees relating to any part of Sindh has to be entertained on the Original Side of this Court. Such an interpretation would defeat the very purpose that created original civil jurisdiction in this High Court for the Districts of Karachi. While interpreting section 120 of C.P.C., the meaning of the words "in the exercise of its original civil jurisdiction" appearing in that section should not be lost sight of which clearly mean that place of suing is not to be determined by sections 16, 17 and 20 but by the provision which confer original civil jurisdiction on this High Court. Now original civil jurisdiction is conferred on this Court under section 7 of the Civil Courts Ordinance, 1962 which is limited only for the territorial limits of Karachi. No other territory of this High Court comes within the ambit of the original civil jurisdiction prescribed under section 7 of the 1962 Ordinance. Therefore, if a suit does not fall within the ambit of original civil jurisdiction of this High Court then certainly the place of suing for such a suit is to be determined under sections 16 to 20 of Civil Procedure Code. What is actually meant by inapplicability of sections 16, 17 and 20 of C.P.C. to High Court under section 120 of C.P.C. is that High Court shall not apply these provisions to a suit if it comes under the ambit of section 7 of 1962 Ordinance i.e. sections 16, 17 and 20 of Civil Procedure Code shall not apply if a suit pertains to any part of the four Districts of Karachi and is valued at more than three million rupees. On the other hand, if a suit is filed in this Court which does not fall within the original civil jurisdiction of this Court i.e. it does not pertain to a dispute relating to any of the four Districts of Karachi or in not of a prescribed value then certainly the provisions of sections 16, 17 and 20 shall be attracted and the plaint shall be returned for its presentation to a Court of appropriate jurisdiction. Section 120 of Civil Procedure Code therefore only renders ineffective provisions of sections 16, 17 and 20 of C.P.C. to suits that can be entertained by this High Court in exercise of its original civil jurisdiction which is confined to civil suits and proceedings pertaining to the Districts of Karachi only and not for any other area falling within the jurisdiction of this High Court.
This judgment was assailed in High Court Appeal and the finding of the Single Judge was approved by a learned Division Bench of this Court in the case reported as Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiui and 14 others (2011 CLC 1176), by observing as follows at Paras 31 and 32.
31. According to our understanding of law, the provisions of Order VII, Rule 10 are mandatory in nature and adjudication by a court without jurisdiction is coram non judice and when any court lacks pecuniary or territorial jurisdiction, the proper course is to return the plaint for presentation to the proper court and such court cannot pass any judicial order except that of returning the plaint. The powers conferred under Rule 10 can only be exercised where the suit is pending before the Court and it may be exercised at any stage of the suit even in appeal and or revision. The bare look of the plaint in this case undisputedly shows that the plaintiff instituted the suit for the determination of the right to or interest in the immovable property and for compensation for wrong to immovable property and the recovery of movable property. The relief claimed in the suit and its nature falls within the purview of section 16 of C.P.C. which provides that such kind of suits shall be instituted in the court within the limits of whose jurisdiction the property is situated. Though section 120, C.P.C. provides that sections 16, 17 and 20 shall not apply to High Court in exercise of its original civil jurisdiction but it does not mean that by virtue of this section the jurisdiction of original side of this court extended to all territories of Province of Sindh no matter the property in question is situated at Karachi or not. The jurisdiction of this Court at original side is only limited and confined to the districts of Karachi and if the arguments of the learned counsel for the appellants are accepted to be true, it will tantamount to the extension of original side jurisdiction of this Court to the entire Province of Sindh subject to its pecuniary limits of jurisdiction. Merely for the reason that respondent No.13 on the application of respondent No.1 instead of hearing the case at Hyderabad, heard the Case No.SROA.122 of 2000 at Karachi and passed the order dated 14-2- 2008 at Karachi does not confer the territorial jurisdiction to this court on original side.
32. The non-applicability of sections 16, 17 and 20 read with Order XLIX, Rule 3 is only applicable and limited to the original side jurisdiction for the district of Karachi and when it is found that the property is situated outside the territorial jurisdiction of Karachi then sections 16 and 17 will automatically come into operation. The initial guiding principles for institution of various suits is provided under sections 16 to 19, C.P.C. whereafter section 20 has been provided for other suits to be instituted where the defendant resides or cause of action arises. In the present matter section 16 is applicable therefore, the suit should have been instituted in Thana Bola Khan where the property is situated and since the claim of damages is not an independent relief but arising from the alleged wrong done committed by the defendants in the suit, therefore, this relief can also be easily claimed in the same suit at Thana Bola Khan along with other reliefs including the declaration as to the ownership, permanent and mandatory injunction. The honourable Full Bench of this court in case "Rimpa Sunbeam Co-operative Housing Society Ltd. v. Karachi Metropolitan Corporation" reported PLD 2006 Karachi 444 already held that Jurisdiction of Sindh Court to entertain suits is basically neither the ordinary nor the extraordinary original civil jurisdiction, of the High Court but simply a District Court jurisdiction, the jurisdiction of Sindh High Court to try Civil suits is confined to matters where the pecuniary value of the subject-matter exceeds Rs.30,00,000. All other suits are liable to be tried by the District Courts. In another judgment reported in 2005 MLD 1506 in the case of (Murlidhar P. Gangivani v. Engineer Aftab Islam Agha), the learned Division Bench held that territorial jurisdiction of the Court could not be extended or curtailed on compassionate grounds or looking to the financial position of a party and the expenses which he might have to incur in pursuing the litigation before the proper Court having jurisdiction in the matter. Further, the question of maintainability of a suit with reference to the territorial jurisdiction, vis-a-vis cause of action accrued to a party for institution of such suit, is to be judged on the basis of averments made in the plaint.
In view of the above discussion I am of the view that even otherwise the objection raised by the learned Counsel for the plaintiff that by virtue of Order XLIX, Rule 3, C.P.C. this Court cannot entertain an application under Order VII, Rule 10, C.P.C. is misconceived and is hereby repelled.
10. The upshot of the above discussion is that in view of hereinabove facts and circumstances of this case both the applications filed by defendant No.1 under Order VII, Rule 10, C.P.C. are hereby dismissed. Since urgency has been shown in this matter, as interim order is operating, therefore, Office is directed to list all pending applications within two weeks from today.
ZC/D-24/Sindh Applications dismissed.