FAQIR MUHAMMAD vs PAKISTAN through Secretary, Ministry of Interior and Kashmir Affairs Division, Islamabad

' NAZIM HUSSAIN SIDDIQUI, J.---This appeal under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973, is directed against judgment/ decision-dated 30-4-1998 of a learned Division Bench of Lahore High Court, Rawalpindi Bench, whereby judgment and decree dated 11-3- 1978 passed by learned Civil Judge, 1st Class, Rawalpindi were set aside and the plaint was directed to be returned to plaintiff/ appellant for its presentation before the proper forum.

2. In November 1968, the Chief Engineer for Azad Kashmir and Northern Area Shahzada Kothi, Rawalpindi, invited tenders for improvement of Sikandarnad Hopper Road and the appellant's tender being the lowest was accepted. The Executive Engineer vide letter dated 8-2-1969 conveyed acceptance of tender to the appellant and thereafter formal agreement was executed between the parties. The appellant was not satisfied with the amount paid to him in respect of the work done by him, as such, he filed a suit for recovery of Rs,2,38,000 before said Senior Civil Judge, which was decreed by the judgment and decree referred to above. The respondent viz. Government of Pakistan, being dissatisfied with said judgment and decree challenged the same before the High Court and succeeded in getting the same set aside with a direction to the appellant to present the plaint before the competent Court at Gilgit having jurisdiction in the matter.

3. It appears that the matter was fully contested by the parties and issues including that of territorial jurisdiction were settled keeping in view material propositions of facts and law raised by the parties. Both the parties in support of their respective contentions had examined the witnesses and thereafter suit of the appellant was decreed.

4. Learned High Court only decided the issue of jurisdiction and while setting aside the impugned judgment and decree observed that the tender was floated, received, 'opened and processed at Giligit and that letter of acceptance was also issued to the appellant from Giligit, therefore, the suit could be filed at Giligit and not at Rawalpindi. A contention was raised that the tender was accepted at Rawalpindi, Head Office of the respondent, as such, Civil Court at Rawalpindi had jurisdiction in the matter, as part of cause of action had accrued there. Dealing with this proposition, the High Court took the view that telegram Exh.P.3 from Chief Engineer to Executive Engineer was only an internal matter of the respondent and this fact did not confer jurisdiction to the Court at Rawalpindi. This is not denied that tender was accepted at Rawalpindi and it being so clause (c) of section 20, C.P.C. Was attracted, which speaks about cause of action wholly or in part It is A immaterial that about acceptance of tender letter to the appellant was issued from Giligit.

The fact remains that it was accepted at Rawalpindi. Thus, cause of action in part had accrued at Rawalpindi. It appears that though the respondent had taken a plea about territorial jurisdiction, but, in fact, it had acquiesced of assumption of jurisdiction by the Civil Court at Rawalpindi, and led the entire evidence and never seriously challenged the factum of jurisdiction before or after framing of issues, except raising such plea in written statement.

5. It is significant to note that section 21 of C.P.C. Provides that no objection as to the place of suing shall be allowed by any appellate or revisional Court unless there was "a consequent failure of justice" . This section provides statutory recognition that an objection about territorial jurisdiction can be waived. Objection about 'territorial jurisdiction' and objection about 'competence of Court' are distinct. The, former can be waived and the latter cannot be ignored. In the instant case the objection related to the former category.

6. Under the circumstances, we are of the view that the High Court should have decided the matter on merits. Accordingly, we allow the appeal with no order as to costs, set aside the impugned judgment and remand the matter to the High Court for its fresh decision, on merits, as early as possible, preferably within 4 months from the receipt of this judgment.