AKMIDC vs AKBER ALI MALIK

' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been preferred against the order of the High Court, dated 15-12-1998, whereby the suit for damages filed by the appellant, herein, was transferred to the Court of District Judge Mirpur.

2. The case has a chequered history behind it. The respondent, herein who was an employee of the appellant Corporation, was dismissed from service as early as on 31-5-1987. He challenged the order of his dismissal before the Court of Additional Sub-Judge, Mirpur and the order of his dismissal was set aside. The appeal filed by the appellant, herein, to the District Judge and the High Court also failed. Consequently he was reinstated but he was again dismissed on 15-6-1991. The respondent Akbar Ali Malik filed two suits, one before the District Judge, Mirpur and the other before the Additional Sub-Judge, Mirpur for the recovery of some arrears etc., and damages. A compromise took place between the appellant, herein, and the respondent, whereby respondent Akbar Ali Malik, was to withdraw both the suits. Afterwards the appellant wrote a letter to respondent that he should abide by the agreement which was entered into between the parties at the time of compromise but he was not obliged. Now the appellant, herein, has filed a suit in the Court of District Judge, Muzaffarabad for recovery of Rs,6,69,624 against the respondent as damages which were alleged to have been spent on the previous litigation initiated by the respondent in the Courts situated at Mirpur District. The present application was moved by the respondent in the High Court seeking the transfer of the case for damages filed by the appellant, herein, in the Court of District Judge, Muzaffarabad to Mirpur, on the ground that the District Judge, Muzaffarabad has no jurisdiction to try the case. The transfer application has been accepted by the High Court and the suit has been transferred to the District Judge, Mirpur on the ground that the cause of action arose at Mirpur and the defendant was also residing within the territorial jurisdiction of District Judge, Mirpur.

3. It has been argued by Mr. Ghulam Mustafa Mughal, the learned counsel for the appellant, that the impugned order of the High Court is not sustainable for the simple reason that the general power of transfer under section 24, C.P.C. Cannot be invoked when the respondent has already taken the stand in the suit that the Court at Muzaffarabad has no jurisdiction in the matter. He has argued that the question of jurisdiction in the instant case is a mixed question of law and facts and the same can only be decided by the trial Court after recording the evidence of the parties. The learned counsel has further contended that the High Court has also committed an error because in view of section 19, C.P.C., the appellant had choice to file the suit at Muzaffarabad and thus, the transfer of suit to Mirpur was not warranted. He has further argued that the High Court has also failed to correctly appreciate the provision contained in section 20 of C.P.C.

4. In reply it was strenuously argued by Ch. Muhammad Sharif Tariq, the learned counsel for the respondent, that the High Court did not transfer the case on the ground that in the original suit the appellant had taken a plea that the District Judge, Muzaffarabad has no jurisdiction to hear and try the suit, but on the other hand the case was transferred on the ground that, according to the appellant, the wrong was done to him within the local limits of jurisdiction of a Court at Mirpur. The defendant was also residing within the local limits of jurisdiction of District Judge, Mirpur. Therefore, there was no option with the plaintiff to file the suit before the Court of District Judge Muzaffarabad.

According to the learned counsel section 19, C.P.C. Gives an option to the plaintiff if the wrong was done within the local limits of jurisdiction of one Court and the defendant was residing or carrying on business within the local limits of another Court then the plaintiff is at liberty to file the suit in either of the said Courts, but section 19 of C.P.C. Has no application when the wrong done to the plaintiff arose within the local limits of jurisdiction of District Judge, Mirpur and the defendant was also residing at Mirpur.

5. We have given our due consideration to the points raised by the learned counsel for the parties and perused the record. For the resolution of the point involved we deem it appropriate to reproduce section 20, C.P.C. Which reads as under:-- "Subject to the limitations aforesaid, every suit shall be instituted in a Court within local limits of whose jurisdiction--

(a) the defendant, or each of the defendants where there are more than one, at the time of the commcenment of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendant, 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, acquiese in such institution; or

(c) the cause of action, wholly or in part, arises."

The bare reading of section 20, C.P.C. Shows that every suit shall be instituted in a Court within the local limits of whose jurisdiction the defendant or defendants reside or where they personally work for gain or where cause of action wholly or in part arose.

6. Section 19 of C.P.C. May also usefully be reproduced:-- "Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts."

' This provision of law provides that if wrong done to the plaintiff or to his movable property was done within the jurisdiction of one Court and the defendant resides or carries on business or personally works for gain within the local limits of jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts. The learned counsel for respondents rightly distinguished that this provision of law will come into operation in case the wrong done to the plaintiff was done within the local limits of jurisdiction of one Court and the defendant resides or carries on business or personally works for gain within the local limits of jurisdiction of another Court. In that eventuality the plaintiff has the option to sue in either of the two Courts but in the case in hand the question of option of plaintiff would not arise as the cause of action arose to the plaintiff wholly or in part at Mirpur and the defendant was also residing at Mirpur. Therefore, by transferring the case from Muzaffarbad to Mirpur, the High Court has committed no illegality. Our aforesaid view is supported by reported cases titled Muhammad Rafique Dar v. Ideal Insurance Co. (PLD 1973 Azad J&K 21) and Waqar Ahmad Malik v. The Commandant; Armed Forces Institute of Pathology. Rawalpindi Cantt and others (PLD 1991 Pesh, 130). Thus, the judgment of the High Court suffers from no legal infirmity.

' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.