IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

C. Revision Application No.S-99 of 2018

 

Applicants                        Naudero Energy (Pvt) Limited & another

through Mr. Qurban Ali Malano, Advocate.

 

Respondent                      M/s Sukkur Electricity Supply Company Limited

through Mr. Tahir Qureshi, Advocate.

 

Mr. Mehboob Ali Wassan, Assistant Advocate

General.

Mr. Muhammad Aslam Jatoi, Assistant Attorney

General. 

 

Date of hearing                26.09.2022

 

Date of order                   14.10.2022

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O R D E R

 

SHAMSUDDIN ABBASI, J:-    By means of this Civil Revision filed under Section 115, CPC, the applicants have impugned the judgment and decree dated 30.03.2018, penned down by the learned Additional District Judge, (Hudood) Sukkur, in Civil Appeal No.154 of 2017, whereby the order dated 24.08.2017 passed by the learned Senior Civil Judge-I, Sukkur rejecting the plaint of Suit No.212 of 2015 in terms of Order VII Rule 10, CPC, was set-aside directing the learned trial Court to treat the said suit pending and decide the same afresh through full dressed trial on merits strictly in accordance with law. 

 

2.       F.C. Suit No.212 of 2015 was filed by respondent against applicants for recovery of Rs.77,01,312/- seeking following relief(s):-

 

“(a)    To direct defendant M/s Naudero Energy (Private) Limited Company to reimburse Rupees 7.701 (Million) to the Plaintiff SEPCO, as per section 5.8 of the Power Purchase Agreement (PPA) which Mark-up/Compound Mark-up calculated thereon Rs.77,01,312.00 at the rate of Rupees 15 percent per annum calculated from 22.02.2013 on which date COD (Commercial Operation Date) expired, and the Power House @ Naudero could not be established and made operational by the defendants;

 

(b)     To pass preliminary decree directing the defendants M/s Naudero Energy (Private) Limited Company to reimburse Rs.7.701 (Million) to the Plaintiff SEPCO, as per section 5.8 of the Power Purchase Agreement (PPA) which Mark-up/Compound Mark-up calculated thereon Rs.77,01,312.00 at the rate of Rupees 15 percent per annum calculated from 22.02.2013 on which date COD (Commercial Operation Date) expired, and the Power House @ Naudero could not be established and made operational by the defendants;

 

(c)      That if in case of failure on the part of the defendants NEPL Company to pay the said reimbursement amount of Rs.77,01,312.00 to the Plaintiff SEPCO with the calculated Mark-up/Compound Mark-up thereon the said amount of Rs.77,01,312.00 at the rate of Rupees 15 percent per annum from 22.02.2013, that is the date on which COD (Commercial Operation Date) expired, and the Power House @ Naudero could not be established and made operational by the defendants; the property movable and immovable of NEPL Company may kindly be attached and sold out alongwith all their operational Bank Accounts of NEPL Company for the satisfaction of the prayed for decree;

 

(d)     To grant any other relief which this Hon’ble Court deems fit and proper under the circumstances of the case; and

 

(e)      To award the cost of the suit.

 

3.      An application under Order VII Rule 11, CPC was filed by the applicants seeking return of plaint for want of territorial jurisdiction.

 

4.      The learned trial Court, after hearing both sides, allowed the application in terms of Order VII Rule 10, CPC (impugned herein) observing as under:-

 

“        Record shows that both agreements Annexure “A-1” and annexure “A-2” were executed in Karachi, even stamp paper of annexure “A-2” was purchased from Karachi and Naudero plant is located at Larkana. However, learned counsel for the plaintiff contended that the annexure “A-4,5 & 6 were issued from Sukkur and Head Office of plaintiff is located at Sukkur therefore this Court can entertain this suit but I am not agree with contention of learned counsel for the plaintiff because this is not family suit pertaining to Khula or dowry to file the suit where plaintiff resides but this is Civil Suit in respect of jurisdiction which is to be entertain while consideration Section 16 to 20 of CPC 1908. Moreover defendants are residence of Karachi and their Head Office also located in Karachi and their Sub-Office is located in Larkana. Such kind of suit is to be instituted where the defendants resides or cause of action arises. In the instant matter the prima facie cause of action accrued to plaintiff at Karachi where both agreements were executed and defendants are also resident of Karachi and Naudero plant is located at Larkana, as such this Court has no jurisdiction to entertain subject matter and if any order would be passed by the Court that will come in the ambit of “Coram non-judice” means order passed without jurisdiction, which will be void, ab-initio.

 

          For the reasons as discussed herein above, I hereby return the plaint of suit within the meaning of Order VII Rule 10, CPC, to the plaintiff with direction to present it in a proper form having jurisdiction. Order accordingly. The case law relied by learned counsel for the plaintiff are not suitable for his contention”.

 

         

5.      Heard and record perused minutely.

 

6.      What emerges from the record is that plaint of suit filed by the respondent was returned in terms of Order VII Rule 10, CPC for its presentation before a proper forum. The order of returning plaint was set-aside in appeal with direction to the learned trial Court to decide the suit on merits. The learned trial Court proceeded with the suit. The applicants failed to appear and file their written statements, hence they were ordered to proceed exparte. The respondent filed affidavit-in-exparte proof through its Manager (Legal & Labour). The learned trial Court decreed the suit of the respondent to the tune of Rs.77,01,312/- vide judgment and decree dated 21.08.2019 observing that “there is nothing on record in rebuttal; therefore, under these facts and circumstances the court has left no option to believe the version of plaintiff to be true and correct”. The learned counsel for the applicants is posed with the question whether the judgment and decree dated 21.08.2019, passed by the learned trial Court, decreeing the suit in favour of the respondent is challenged before appellate forum, he confirms that such a judgment and decree has not been assailed by the applicants before a Court of competent jurisdiction. He, however, placed reliance on the cases of Wapda and 2 others v Mian Ghulam Bari (PLD 1991 Supreme Court 780 and Muhammad Yasin and 2 others v Ch. Muhammad Abdul Aziz (PLD 1993 Supreme Court 395). Admittedly, the judgment and decree passed by the learned trial Court has attained finality and this revision application impugns the findings of learned appellant Court, whereby the order of the learned trial Court returning the plaint was set-aside with direction to proceed with the suit on merits, mainly relying on sub-section (c) of section 20 of Civil Procedure Code, 1908, 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)       ……………………………………….

(b)      ……………………………………….

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

Explanation II.  A corporation shall be deemed to carry on business at its sole or principal office in 3[Pakistan] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

 

7.       Section 18 of CPC provides that where there is uncertainty as to the local limits of two or more Courts and a suit is filed in any one of them then upon its disposal the decree would be regarded as if it was passed by a Court of competent jurisdiction. The object of enacting Section 18 is to treat a decree passed by a Court legally valid even though there was confusion as to its local limits and subsequently the uncertainty of limits is resolved and the area is found not to be within the jurisdiction of the Court which passed the decree. Thus, the recovery suit even if it is filed in the Court of Sukkur on account of uncertainty of its local limits and the Civil Court in Sukkur decrees the suit then the decree would still be treated as valid and passed by a Court of competent jurisdiction though subsequently the uncertainly is resolved and the area to which the suit related is found to be part of Karachi. At this juncture, the learned counsel for the applicants has failed to point out any question of law that may require consideration by this Court in exercise of its revisional jurisdiction. As to the case law cited by him, in support of his submissions, in my humble view, the facts and circumstances of the said cases are distinct and different from the present case, therefore, none of the precedents cited by the learned counsel are helpful to the applicants. This Revision Application is, therefore, dismissed on merits as well as having become infructuous.

 

                                                                                      JUDGE