ORDER SHEET

HIGH COURT OF SINDH, KARACHI

      

HCA No.62 of 2010

   Date                            Order with signature of Judge.

Present:  Mr. Justice Muhammad Ather Saeed &

                           Mr. Justice Muhammad Ali Mazhar.

 

 

Date of hearing     :         02.02.2011.

 

Appellants           :         Muhammad Naved Aslam and others.

 

Respondents                  :         Mst. Aisha Siddiqui and others.

 

 

Mr. Mushtaq A. Memon and Khawaja Shamsul Islam, Advocates for the appellants.

 

Mr. Kamal Azfar along with Mr. Haider Waheed and Mr. Zayyad Khan Abbasi, Advocates for the respondent No.1.

 

Mrs. Haleema Khan, Additional Advocate General Sindh along with Mr. Saifullah, Assistant Advocate General Sindh.

 

Mr.Nazar Akbar, DAG.

 

Muhammad Ali Mazhar,J.:- This High Court Appeal is directed against the judgment dated 26.03.2010 passed by the learned single Judge of this court in Suit No.1122 of 2009, whereby the plaint was returned to the plaintiffs for its presentation before the court of appropriate jurisdiction after retaining only the copies of the pleadings for office record.

 

2.The aforesaid suit was filed for declaration, injunction, cancellation, direction and recovery of damages amounting to Rs.200 Million with the following prayers:-

 

I.                   Declare that the plaintiffs are lawful, genuine and bona fide owner of suit property i.e. private land bearing survey No.367 (measuring 23.10 acres) and No.368  (measuring 19.11 acres), making a total area of 42.21 acres in Deh Babu Band, Tapo Hathal Bhat, Taluka Thano Bula Khan, District Jamshoro, by virtue of sale deed dated 22.3.2005 and entry No.193 dated 30.04.2005 in Deh verified Form-VII made in the revenue records together with the poultry form of plaintiff No.4 constructed thereon.

 

II.                Declare that the defendant No.1’s claim in respect of her alleged 199.4 acres of land pertains to some lands allegedly situated at 67 km super highway from Karachi to Hyderabad, whereas the lands of the plaintiffs are situated at 95 km super highway from Karachi to Hyderabad, hence the lands of the plaintiffs are totally different and far away from the alleged lands of the defendant No.1 and all other official defendants acting in collusion with defendant No.1, have no legal authority or locus standi to interfere into the lawful possession of the plaintiff over the aforesaid suit lands i.e. survey No.367 (measuring 23.10 acres) and No.368 (measuring 19.11 acres), making a total area of 42.21 acres in Deh Babur Band, Tapo Hathal Bhat, Taluka Thano Bula Khan, District Jamshoro.

 

III.             Declare that the orders dated 31.03.2000 passed by the then Additional Commissioner, Hyderabad, has already attained finality long back and no appeal now lies against the same, consequently, the proceedings held and the order passed on 14.02.2008 in SROA No.122/2000 (filed by defendant No.1) by the defendant No.13 is patently illegal, ultra vires ab initio and of legal effect, hence the same may kindly be set aside.

 

IV.            Declare that the entire proceedings and actions of the official defendants with the collusion of defendant No.1 including the operation carried out at plaintiffs’ lands on 11.07.2009 is patently illegal and the defendants have to bear the consequences and make good the huge financial losses suffered by the plaintiffs on account of their illegal brutal acts as elaborated in para No.24, 25, 26 and 33 of the plaint.

 

V.               Declare the demarcation proceedings initiated by defendants No.3 to6 on the order of defendant No.2 for the exclusive benefit of defendant No.1 as illegal, void ab initio as the plaintiffs’ land is all together different from the alleged land of defendant No.1.

 

VI.            Declare that the appeal i.e. SROA No122/2000 filed by the defendant No.1 with the defendant No.13 was absolutely illegal has already dismissed in view of the proper order passed by the then Member (Judicial) dated 17.09.2001 and further declare that the order dated 17.09.2001 passed by Member (Judicial) Board of Revenue was proper and legal.

 

VII.         Pass money decree on account of damages claimed in para 33 above, amounting to Rs.200 million to be paid to the plaintiff’s proportionately by the defendants No.1 to 5 and 7 to 10(i).

 

VIII.      Grant mandatory injunction, suspend the operation of the order dated 14.02.2008 passed by the defendant No.13, letters dated 24.05.2008 and 28.05.2009 issued by defendant No.2 and cancelled the proceedings bearing SROA No.110/2000.

 

IX.            Grant permanent injunction restraining the defendants, specially the defendant No.1 as well as the official defendants No.2 to 5, their legal heirs, successors, employees, servants, subordinates, agents, attorneys, administrators, assigns, person or persons for, under or on behalf of the defendants including but (without limitation) to any beneficiary, from interfering in the lawful possession of the plaintiff over the suit land i.e. Survey No.367 (measuring 23.10 acres) and No.368 (measuring 19.11 acres), making a total area of 42.21 acres in Deh Babur Band, Tapo Hathal Bhat, Taluka Thano Bula Khan, District Jamshoro.

 

X.               To direct the defendants to immediately remove the police picket established at the suit lands i.e. survey No.367 (measuring 23.10 acres) and No.368 (measuring 19.11 acres), making a total area of 42.21 acres in Deh Babar Band, Tapo Hathal Bhat, Taluka Thano Bula Khan, District Jamshoro, and not to interfere into the smooth running of poultry form business of the plaintiffs.

 

XI.            To direct the defendant No.15 (Musarrat Hussain) to return back the four generators, which he took away from the land of the plaintiffs details of which is mentioned in para No.36 (a) of the plaint.

 

XII.         Consequential relief(s), which this hon’ble court deems fit and proper under the circumstances of the case may kindly be passed.

 

XIII.      Grant any other relief(s), which this honorable court deems fit and proper under the circumstances of the case.

 

XIV.     Costs of the suit.

 

 

3. The facts forming the background of the case are that the appellants/plaintiffs are engaged in the business of hatchery/poultry farming since decades and the appellant/ plaintiffs No.1 is the chairman of Pakistan Poultry Association (South). The appellants for the purposes of the business had purchased Qabooli land bearing survey No.367 (23.10 acres) and survey No.368 (19.11 acres) in Deh Babur Band, Tapo Hathal Buth, Taluka Thano Bula Khan, District Jamshoro, (hereinafter referred to as the suit land) through registered sale deed dated 22nd March 2005. The physical possession of the said land was handed over to the appellants and the revenue record was mutated in the names of appellants. The suit land is situated at 95 km main super highway from Karachi to Hyderabad.

 

4. It is further stated in the plaint that the respondent/defendant No.1  had purchased land measuring 199 acres consisting of block/survey Nos.390/1-4 and 389/1-3 in Deh Babur Band, Tapo Hathal Buth, Taluka Thano Bula Khan, District Jamshoro at 67 km main super highway from Karachi to Hyderabad through registered sale deed dated 9th February, 1995. The land purchased by respondent/defendant No.1 came to be cancelled by the Additional Commissioner-I, Hyderabad, through his order dated 31st March 2000 declaring the land of respondent No.1 as government land. The respondent No.1 preferred appeal/ revision No122 of 2000 before the Member (Judicial), Board of Revenue, which was dismissed in default on 17.09.2001. Subsequently, on a belated application preferred almost after seven years, the respondent No.13 granted the request of respondent No.1 and the order dated 31st March 2000 passed by the Additional Commissioner-I, Hyderabad was set aside through order dated 14.02.2008. Meanwhile, the appellants on account of interference by the respondent No.1 with their possession and enjoyment of the suit land, had filed suit No.29 of 2005 in the court of senior civil Judge, Kotri, for injunction with an application for interim orders. The respondent No.1 also preferred an application for interim injunction in the said suit. Both the applications for interim injunction were dismissed by order dated 22.06.2005 which was maintained in appeal as well as in civil revision on the ground that the dispute was about location of the land and the Mukhtiarkar Thano Bula Khan had reported that the  suit land belong to the government of Sindh.

 

5. On account of influence of respondent No.1 and with the help of respondent No.2, the respondent No.1 maneuvered demarcation of her land and got its sketch prepared showing location of her land overlapping the land of appellants at 95 km super highway from Karachi. The unlawful and arbitrary demarcation was assailed by the appellants in C.P.No.D-149 of 2009 (Hyderabad) which was decided on 26.05.2009 with the observation that the appellants might avail statutory remedy against demarcation after restoration of their entry before the appropriate forum. Meanwhile, the EDO (Revenue), Jamshoro, respondent No.3, by his order dated 28.03.2009 had  ordered cancellation of mutation entry No.193 which was recorded in favour of the appellants. Consequently, the appellants filed appeal No.SROA-79 of 2009 before the Member, Board of Revenue (Land Utilization), which was allowed on 2.7.2009 and entry No.193 was restored in favour of the appellants.

 

6. The appellant upon learning about the order dated 14.2.2008 passed by respondent No.13 at Karachi filed suit No.1122 of 2009 with the prayer reproduced herein above including declaration that the said order was illegal and without jurisdiction with further prayer for damages/compensation on account of the respondent No.1 and other official respondents having caused damage to the suit land. By virtue of an ad interim order dated 10.8.2009, parties were directed to maintain status quo. The respondent No.1 and  other respondents contested the matter. The respondent No.1 mainly asserted her ownership with further claim about its location being at the site of the suit land.

 

7. During the hearing of the applications, an objection was raised on behalf of respondent No.1 about maintainability of the suit for want of territorial jurisdiction. The learned Judge heard the arguments mainly on the issue of jurisdiction with  reference to provision under Order 7 Rule 10 CPC for return of the plaint. The learned single Judge ordered for return of plaint holding that the original side jurisdiction was conferred by Section 7 of the Civil Court Ordinance, 1962 which being special statute, the said jurisdiction could be exercised only in relation to matters emanating from the territorial limits of the District of Karachi with further finding that the original civil jurisdiction could not be exercised in respect of property falling within other territories in the province of Sindh.

 

8. We have heard the learned counsel appearing for the parties. The learned counsel for the appellants argued that the learned single Judge has not taken into consideration the facts which are material for deciding jurisdiction of this court on its original side. The suit of the appellant is not barred by provisions of Section 16, CPC. The respondent No.1 having intentionally acted mala fide with the object of causing loss and damage to the appellants can validly be sued at Karachi. Even if one relief can be maintained, then plant cannot be returned or rejected. The learned single Judge has failed to appreciate that proceedings for relief in personam can be instituted at the option of plaintiff, at place where a defendant actually and voluntary resides. He further argued that the finding to the effect that Section 7 of the Civil Courts Ordinance, 1962, alone confers the jurisdiction to entertain and adjudicate upon the civil suits instituted on the original side of this court is contrary to the settled law. The learned single Judge did not appreciate the exclusion of Order 7 Rule 10, CPC as provided under Order 49 Rule 3, CPC. The impugned judgment is based on assumption that the plaint could be returned in exercise of power under Order 7 Rule 10, CPC. He also argued that Order 49 Rule 3, CPC specifically excludes the applicability of Order 7 Rule 10, CPC to a high court in the exercise of its ordinary or extra ordinary original civil jurisdiction, thus the learned single Judge has erred in exercising power not available to him under law. The appellants had the choice of forum which had lawfully been exercised by filing the suit at Karachi. The location of immovable property cannot be the sole criteria to decide territorial jurisdiction. In the present case, Sections 16, 17 and 20, CPC stood excluded under Section 120 C.P.C, therefore, the appellants could not be non-suited. The learned counsel also argued that the learned single Judge has failed to consider that the cause of action for filing the suit had partly arisen at Karachi. For the purposes of deciding the jurisdiction, the facts pleaded in the plaint alone are required to be seen. Law favours assumption of jurisdiction unless expressly excluded. The impugned judgment is based on restrictions which are not postulated under any law in express terms.

 

9. The Learned counsel for the appellant further averred that while deciding the jurisdiction of this court on original side, the learned Single Judge did not consider that apart from declaration regarding the ownership of the property in question the appellants have also sought declaration that the order dated 14.2.2008 passed by respondent No.13 was illegal and void. It was also not considered that the appellant/plaintiffs have also prayed for damages and return of moveable properties taken by respondent/defendant No.15. The relief claimed in the suit have to be examined individually and even if one relief is maintainable, the plaint could not be rejected. The learned counsel further argued that the location of immovable property cannot be a sole criteria to decide territorial jurisdiction specially in the circumstances when the application of section 16, 17 and 20 CPC has been specifically excluded from the purview of original civil jurisdiction.  He further argued that it is a matter of record that the appellants/plaintiffs are aggrieved by directives dated 24.5.2008 and 28.5.2009 issued at Karachi by the Chief Secretary Sindh.

 

10. In order to justify the institution of suit at Karachi, the learned counsel further added that the respondent/defendant No.1 herself conceded to for the hearing of appeal before the respondent/defendant No.13 at Karachi, therefore, the suit filed on the original side of this court could not be returned for want of jurisdiction. The learned counsel further argued that the reasons for not applying the restrictions contained under section 16, 17 and 20 CPC is meant to enlarge its jurisdiction and not to curtail the same. In order to demonstrate the cause of action, the learned counsel further referred to paragraph 23, 24, 32, 33, 36 and finally paragraph 37 which relates to accrual of cause of action to the plaintiffs/appellants and for the purposes of territorial jurisdiction, it is stated in paragraph 39 of the plaint that the plaintiff and defendant No.1 are residing at Karachi, the plaintiffs purchased and paid sale consideration for the suit land at Karachi, all the adverse action were initiated and order were passed at Karachi, more particularly the defendant No.13 passed the impugned order dated 14.2.2008 while sitting at Karachi and the defendant No.2 is continuously passing orders in respect of the plaintiffs land from Karachi, the defendant No.1 preferred to transfer the proceedings from Hyderabad to Karachi therefore, this court has the territorial jurisdiction in the matter.

 

11. The learned counsel laid much emphasis that while deciding the issue of territorial jurisdiction, the learned Single Judge misapplied Firdous Trading Corporation Case reported in PLD 1961 Karachi 565 as the case of Firdous Trading was related to the payment of court fees only, therefore, it has nothing to do with the issue involved in the present controversy. In support of his arguments the learned counsel for the appellants relied upon following cases:-

 

1.     PLD 1964 (WP) Karachi 11 (West Pakistan Industrial Development Corporation v. Fateh Textile Mills Ltd). In this matter, the learned Single Judge of this Court held that section 16, 17 and 20 and Clause 12 of the Letters Patent prescribed the forum and the place for suing but these sections do not apply to High Court. Section 5 of the High Court of West Pakistan Establishment Order 1955 and also Section 8 of Sindh Act VII of 1926 do not prescribe the place of suing. Section 5 only saves the jurisdiction of Karachi Bench as exercised by it under section 8 of Sindh Ac, 1926. The jurisdiction of the High Court has been enlarged rather than restricted by removing altogether the restrictions contained section 16, 17 and 20. The legislature could never have intended to take away the jurisdiction of West Pakistan High Court (Chief Court of Sindh) altogether, since the High Court got that jurisdiction as a place of suing  through these sections.

 

2.     1991 CLC 684 (Shaikh Muhammad Ameen and Co. V. Provincial Industrial Development Corporation). In this matter, the learned divisional bench of this court discussed section 120 of CPC and held that although the provisions of section 16, 17 and 20 of CPC do not apply to the High Court in exercise of its original civil jurisdiction, the Court will have jurisdiction to entertain a suit if the cause of action has arisen within its local limit of jurisdiction. No doubt the letter dated 3.5.1967 by which the offer of Shaikh Muhammad Ameen was accepted which was written by PIDC Lahore but it is quite clear from the endorsement that the offer was made with the consent of DGM, Sugar, PIDC Karachi which was accorded to the contract. As the contract entered into with the consent of PIDC Karachi, the breach of agreement, could be enforced at Karachi.

 

3.     1988 CLC 59 (Agricides (Pvt). Ltd v. Ali Agro Supply Corporation Ltd). In this case, the learned single Judge of this Court held that provisions of Section 120 CPC has in no way restricted jurisdiction of High Court but on contrary, enlarge the same by removing restrictions, imposed under section 16, 17 and 20 CPC on original jurisdiction thereof, High Court in exercise of its original civil jurisdiction could entertain all suits value whereof exceeded Rs. 1,00,000/-. Part of cause of action having accrued within jurisdiction of High Court and such court having pecuniary jurisdiction to entertain claim of plaintiff, would assume jurisdiction on original side.

 

4.     2010 CLD 760 (Pakistan Kuwait Investment Company Pvt. Ltd v. Saadullah Khan and brothers). In this matter, one of us (Muhammad Ali Mazhar, J), while considering the effect of Section 20 (c) CPC, held that cause of action would accrue to the bank in the event of default and material breach committed by the defendant in repayments of loans/installments. Cause of action would be taken from acts of defendant, whereby he had breached agreements and defaulted in repayment of finance at place K. Accrual of action could not be restricted only to execution of lease finance agreement at place L, otherwise whole purpose and sprit of section 20(c) CPC would become redundant, superfluous and would also negate section 3 of Financial Institutions (Recovery of Finance) Ordinance 2001.

 

5.     2003 CLC 1183 (Gulfam and others v. Bibi Qudsia Begum). In this matter the learned Single Judge of this Court held that the original civil jurisdiction of this Court can be exercised to entertain a suit with one of more ingredients necessary to attract the jurisdiction of this Court which in view of section 120 CPC has undoubtedly a very broad base, yet there should always be some rational to attract jurisdiction. There must be some jurisdictional facts necessary to invoke jurisdiction. Same may be either the defendant residing or carrying on business or in cases plurality one of the defendants being so subject or the cause of action, wholly or in part arising or property, subject matter of the suit being situated or a defendant firm or company having a main or branch office within the jurisdiction which can attract the original civil jurisdiction of this Court. The only logical effect of section 120 of the Code seems to be that, subject to discretion of the court itself, the technicalities in section 16, 17 and 20 cannot be pressed into service to divest a High Court of its original civil jurisdiction.

 

6.     1991 CLC 473 (Syed Muhammad Anwar Iqbal  v. Bangladesh Shipping Corporation). In this matter, the learned Single Judge held that although the provisions of section 16, 17 and 20 CPC are not applicable to the  High Court but since only restrictions imposed by such sections were removed in respect of the High Court and general principles of law otherwise applicable would still govern the question of jurisdiction. High Court would exercise jurisdiction not only in cases where the defendant resides or carries on business within the local limits of the jurisdiction of the High Court but even in cases where the cause of action had accrued within such territorial limits. Merely because section 120 excludes the provisions of sections 16, 17 and 20 of the CPC from application to the High Court would not mean that the general principles governing section 20 of the CPC would cease to apply in cases before High Court.

 

7.     2007 CLC 394 (Wajid Hussain Farooqui v. Shahida Shahnawaz). In this matter the learned Single Judge held that undisputedly the land at Hyderabad and the agreement was also executed at Hyderabad. The plaintiff in para 12 of the plaint submits that defendant No.2 resides at Karachi and part payment of sale consideration was made at Karachi and this Court has jurisdiction to entertain the suit. Section 16 of CPC provides that suits relating to immovable properties to be instituted where subject matter situate subject to the pecuniary or other limitation prescribed by any law. Section 16 of CPC regulates the territorial jurisdiction of civil Courts. However, section 120 of CPC provides that section 16, 17 and 20 shall not apply to High Court in the exercise of its original civil jurisdiction. Since sections 16, 17 and 20 is not applicable to High Court in exercise of its original jurisdiction the High Court can entertain all suits where cause of action had arisen within its local limits of jurisdiction.

 

8.     PLD 1994 Karachi 388 (Mirza Abdur Rahim Baig and another v. Abdul Haq Lashari and 03 others). In this matter the learned Single Judge held that Original civil jurisdiction exercisable at the principal seat of the High Court. While the original civil jurisdiction, exercised at the principal seat of High Court Karachi might or might not be the ordinary original civil jurisdiction of High Court, it, nonetheless and in spite of its special character, was original civil jurisdiction of the Court. Provision of section 120 CPC, 1908, excludes applicability of section 16, 17 and 20 therefore, in exercise of that jurisdiction viz. original civil jurisdiction.

 

9.     PLD 1996 Karachi 411 (M/s. Popular Pharmacy, Karachi v. M/s. Nova Bio Medical and others). In this matter the learned Single Judge held that provisions of sections 16, 17 and 20 CPC were not applicable to High Court, in exercise of its original civil jurisdiction. Civil jurisdiction of High Court was divided into four classes viz. ordinary, original, appellate and relating to special matters. Restriction contained in sections 16, 17 and 20 CPC were not applicable to High Court in exercise of its original jurisdiction. Application under order VII Rule 11 CPC for rejection of plaint was not competent in circumstances.

 

10.                         PLD 1999 Karachi 1 (Valuegold Limited v. United Bank Limited). In this matter the learned Judge held that plaint could not be rejected in piecemeal, even if one prayer contained in plaint was found entertainable, proceedings were liable to be continued. Plaintiffs could maintain action for damages therefore, plaint could not be rejected in terms of Order VII Rule 11 CPC even if Court had no jurisdiction in respect of other reliefs claimed.

 

11.                        SBLR 2004 Sindh 1041 (Mazhar Valjee v. Sher Afghan Khan Niazai). In this matter the learned Single Judge held that a bare reading of section 19 CPC leaves no room for any doubt that a suit for compensation for wrong done to the person or to movable property may be instituted at the option of the plaintiff either in the Court within whose jurisdiction the defendant resides, or carries on business or personally worked for gain or where the wrong was done. It is also well settled that for the purpose of disposal of an application for return of plaint, allegations in plaint are to be taken as true.

 

12.                        2003 SCMR 990 (Haji Abdul Malik v. Muhammad Anwar Khan). In this matter the learned Single Judge held that the essential factor for determination of jurisdiction for the purpose of entertaining the suit would be judged from the contents of the plaint and the dispute subject-matter of suit and not from the consequences flown from the suit. The declaration in the suit filed by the respondents sought was that cancellation of registration of agreement by the Registrar was illegal which would not relate to the rights and interest in the immovable property and would be confined only to the limited extent of the exercise of jurisdiction by the Registrar. The place of breach of law would furnish the forum for a suit and such place is where some act was to be performed and thus the suit to set aside the document on the ground that it was obtained through misrepresentation would be maintainable at the place where the act of misrepresentation was committed and if such a document is registered, the suit would be maintainable at the place of its registration.

 

13.                        PLD 1993 S.C 395 (Muhammad Yasin v. Ch. Muhammad Abdul Aziz). In this matter the honorable Supreme Court held that suit for recovery of amount can be instituted in a Court within the local limits of whose jurisdiction the cause of action wholly or in part arose. Plaintiff who was resident of Quetta and had his business at Quetta reached an agreement with the defendants who were residents of Faisalabad for the supply of coal. Coal was to be dispatched through the Goods Company at Quetta to Faisalabad and after receiving the same payment had to be made. Part of cause of action having accrued at Quetta suit for recovery of amount could be instituted at Quetta.

 

14.                        1999 YLR 2162 (Sunshine Corporation (Pvt.) Ltd v. M/s. E.D. DU Pont De Nemours & Co). In this matter, the learned Single Judge held that relief claimed in the suit was based on the termination of agreements which had to be executed exclusively in Pakistan. Where contracts between the parties were acted upon locally, cause of action had arisen within the jurisdiction of High Court. Provision of Section 120 CPC was to enhance the jurisdiction instead of curtailment. Merely on the ground that section 16, 17 and 20 CPC were not applicable to the proceedings in question, the jurisdiction of High Court could not be questioned.

 

 

12. In response, the learned counsel for respondent No.1 invited our attention to the prayer clause of the Suit in which the present appellant sought the declaration that they are lawful and genuine owner of the suit property making a total area of 42.21 acres in Deh Baburbund, Taluka Thano Bola Khan District Jamshoro. He further contended that the appellants have also prayed for declaration that their land is totally different and far away from the land of respondent No.1 therefore, all official respondents and respondent No.1 have no authority or local standi to interfere into the lawful possession of the appellant over the aforesaid land. He further averred that besides claiming the aforesaid declaration and permanent injunction, the appellant also prayed for a declaration that demarcation proceedings initiated by the respondent No.3 to 6 was illegal. The learned counsel further argued that the appellant besides claiming damages in the suit also prayed for direction against respondent No.15 for returning back the four generators which he allegedly took away from the land of appellant. The main purpose for inviting our attention to the prayer clause was to show that the land in question is admittedly situated at Thana Bola Khan, District Jamshoro and all other prayers made in the plaint are ancillary and incidental to the main prayer of declaration.

 

13. He has also invited our attention to a sale deed registered on 22nd March 2005 before the Sub Registrar Kotri. He further pointed out another conveyance deed dated 9th February 1995 executed by Dr. Abdul Ghaffar Billoo in favour of respondent No.1 forming part of Survey No. 389 and 390 situated in Deh Baburbund Thana Bola Khan District Dadu was also registered before the Sub- Registrar Kotri. The main focus of the learned counsel for the respondent No.1 was on the maintainability of suit at the original side of this Court and he vehemently argued that from the contents of the plaint it is clear that the property in question is outside the purview and territorial jurisdiction of this Court therefore, no suit could be filed in this Court. In order to strengthen his arguments he further invited our attention to paragraph 37 of the plaint in which the appellants/plaintiffs have described the cause of action and according to the appellant firstly the cause of action accrued to them when they purchased the suit property in the year 2005 and the latest cause of action allegedly accrued on 11.7.2009 when the official respondents/defendants under the instructions of the respondent No.2 with the collusion and for the benefit of respondent No.1 demolished five poultry houses of the appellants allegedly causing heavy financial losses to the appellants. Further alleged cause of action accrued on 14.2.2008 when the respondent/defendant No.12 passed an order in favour of respondent No.1 and further on 28.3.2009 when the respondent No.3 cancelled the entries of the appellant and finally on 6.8.2009 when the SHO Nooriabad tried to allegedly dispossess the appellants from the land in question.

 

14. He further argued that the main question involved in the present appeal is that whether the learned Single Judge has rightly returned the plaint or not. He further urged that the question of jurisdiction has already been dealt with in Firdous Trading Corporation case in which detailed discussion has been made on the original side of this Court therefore, the order impugned in the instant appeal does not suffer any illegality or irregularity and it does not call for any interference by this court. In support of his arguments, he referred to following case law:-

 

 

1.     PLD 1961 (W.P) Karachi 565 (Firdous Trading Corporation v. Japan Cotton & General Trading Co. Ltd). In this matter the learned Single Judge of this court held that original civil jurisdiction in respect of civil suits in Karachi was not conferred on the High Court as a whole as in the case of Calcutta, Madras and Bombay under their Letters Patent, but only to the Bench at Karachi. The nature of this jurisdiction is further clarified under para 7 of the amendments in Part A of the schedule of President’s Order No.2 of 1956. In sub-clause (4) of Para 7, which replaced the original section 45 of the Sindh Courts Act, 1926, it is provided that all decrees and orders in suits and proceedings wherein the subject matter in amount or value does not exceed twenty five thousand rupees, or such sum as the central government may by order under the proviso to subsection (2) of section 22 prescribed, passed before the appointed day, by the Bench of the High Court of West Pakistan at Karachi functioning or exercising the powers and performing the duties as the principal Civil Court of original jurisdiction shall be deemed for the purpose of execution to have been passed by the District Court of Karachi. It is quite plain that the Karachi Bench of West Pakistan High Court is functioning or exercising the powers and performing the duties as the principal Civil Court of original jurisdiction in the civil district of Karachi and not ordinary civil jurisdiction of the High Court understood under the Letters Patent of some High Courts in this sub-continent.

 

2.      PLD 1975 Karachi 944 (Haji Razak v. Usman). In this matter the learned divisional bench of this court held that the question before us is of the meaning of the words “ordinary original civil jurisdiction”, and even the learned Advocate General, who was appalled by the possible loss of revenues to the State, had to concede that a suit pertains to the civil jurisdiction of a Court, and not to its criminal jurisdiction. Then, as to the word “original”, it can only refer to the jurisdiction of a Court to decide a matter as a court of the first instance, therefore this means that a suit decided by this Court is decided in the exercise of its original jurisdiction, just as a Constitutional Petition is decided in the exercise of its original jurisdiction. The learned Advocate General feebly pointed out that Waheeduddin Ahmed J, had taken a contrary view in the Firdous Trading Corporations’ case on the basis of some Indian rulings. But this view must be rejected, as it is contrary to the judgment of the Supreme Court in Ahmed Khan v. The Chief Justice and Judges of the High Court of West Pakistan (1). Therefore, the controversy before us turns really on the meaning of the word “ordinary”. The learned Advocate General bypassed this question and would not explain what the meaning of the word was, and, although it is obvious, would quote the meanings from the ‘Oxford Dictionary’. These are “regular “, “normal”, “customary”, “usual”, “not exceptional”. As subject to rules of valuation and for the accrual of the cause of action, suits are filed as of right on the Original Side of this Court, it follows that they are filed in the regular, normal, usual and customary course. Hence earlier observation that, the meaning of the said exception is very clear. But assuming, without conceding, that there is any ambiguity about this provisions, the section itself removes all possibility of doubt. Thus, the first clause of section 4 refers to cases coming before a High Court “in the exercise of its extraordinary original civil jurisdiction”. This expression, which is to be found in the Letters Patent of all the High Courts, refers to the power of such a High Court, “when the High Court shall think proper to do so”, to transfer to itself a suit pending a Court subject to its superintendence. And because the word ‘extraordinary’ refers to this special power, the word “ordinary” in the same section can only have reference to the jurisdiction of a High Court, which a plaintiff, filing a suit is entitled to invoke as of right.

 

3.     1991 SCMR 920 (Province of Sindh v. Haji Razzaq). In this matter the Full Bench of Honourable Supreme Court declared that view taken in the case of Firdous Trading Corporation v. Japan Cotton and General Trading Co. Ltd. (PLD 1961 Kar. 565) as to the payment of court-fee under the Court Fees Act on suits filed in the original side of the former High Court of West Pakistan (Karachi Bench), now Sindh High Court, and on appeals against the judgments and orders passed on the original side of that High Court states the correct position of law.

 

4.     PLD 2006 Karachi 444 (Rimpa Sunbeam co-operative Housing Society Ltd. v. Karachi Metropolitan Corporation). In this matter, the full bench of this Court held that as amended by Sindh Civil Courts (Amendment) Ordinance, (XXX of 2002). Jurisdiction of Sindh High 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 a Provincial Statue. Karachi Courts Order, 1956, was not a law made by the Parliament in the exercise of powers under the Concurrent Legislative List of the Constitution of Pakistan. No conflict between a Federal and Provincial Law existed in the above said context and, therefore, in accordance with section 7 of the Sindh Civil Courts Ordinary, 1962, 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.

 

5.     2010 CLC 1226 (Ismat Asad v. Pakistan Oxygen Limited). In this matter one of us (Muhammad Ali     Mazhar-J) held that in suit for specific performance of contract, principles of equity apply though the relief is the creation of statue. Section 12 of the Specific Relief Act provides that the specific performance of the contract may be enforced in the discretion of the Court. Explanation to section 12 of the Act clearly states that unless and until the contrary is proved, the Court shall presume the breach of contract to transfer immovable property cannot be adequately relieved by compensation in money. By reading section 12 of the Specific Relief Act in conjunction with section 16 clauses (a) and (d) CPC, it is clear that only the Courts in whose territorial jurisdiction the suit property is situated can entertain and decide the suit. Mere publication of an advertisement to sell or alleged payment of token money does not give any cause of action to decide this suit for specific performance in which many reliefs have been claimed including declaration. Section 16, CPC prescribed different eventualities and rights for institution of suits where subject-matter situate and in clauses (a) to (f) certain rights have been mentioned. For the purposes of clause (d), it is clear that for the determination of any other right or interest in immovable property, the suit shall be instituted in the Court within local limits of whose jurisdiction the property situate. The  suit for declaration, specific performance, cancellation and mandatory injunction are covered under clause (d) of section 16, CPC. I would also like to rely on a judgment reported in A.I.R 1941 Bombay 247 (New Mofussil Co. Ltd v. Shankerlal Narayndas Mudade) in which also section 16 (d) was under discussion and it was held that suit for specific performance and possession can be filed in Courts within whose jurisdiction property is situated though the defendant and property are situated at different places. The brief facts of the case were that a joint stock company which had its registered office in Bombay, owned a factory at Dhulia. The company was in liquidation and its liquidator who resided in Bombay, wanted to sell the factory. Negotiation opened between the parties at Bombay. The vendee who was resident of Dhulia engaged an agent to complete the transaction. Before the transaction was completed, the liquidator put an end to the negotiations. He then subsequently sold the same factory to other persons. The vendee sued the company and subsequent purchasers of the factory for specific performance to the agreement and for possession of the factory. It was held that Dhulia Court alone had jurisdiction to try the suit against the company as well as the subsequent purchasers under section 16 (d) of the Code and that the proviso to section 16 did not apply. The facts of the present case are also same as the property is situated at Rawalpindi, the office of the defendant No.1 is situated at Karachi and even the office of the defendant No.2 is situated at Karachi but the subject matter is situated at Rawalpindi, therefore, under section 16 clause (d) CPC, suit could only be filed at Rawalpindi Court in whose jurisdiction the property is situated.

 

6.     2005 MLD 1506 (Murlidhar P. Gangwani (Engineer) v. Engineer Aftab Islam Agha). In this matter, the learned divisional bench held that the only submission of the learned counsel with reference to rule 3 of Order XLIX, CPC which excludes the applicability of certain provisions of CPC including Order VII rules 10 and 11 (b) and (c) CPC, to ordinary or extraordinary original civil jurisdiction of the High Court, is also equally without force, as non applicability of such provisions of CPC do not deny or curtail the powers of High Court either to reject or return the plaint in appropriate cases. If any case is needed to fortify this view reference can be made to the case of Mirza Rahim Baig (supra). Suffice it to observe that the territorial jurisdiction of the Court cannot 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-à-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 of each suit and no perpetual orders could be passed against a party that since plaint in one suit earlier instituted by him was returned for want of cause of action then for all future times to come no other suit instituted, though having cause of action accrued within the territorial jurisdiction of this Court could be entertained, or the findings on the point of jurisdiction recorded in the earlier suit will operate as res judicata, irrespective of distinguishable fact.

 

 

15. The learned DAG on court notice referred to section 15 of CPC which provides that every suit shall be instituted in the Court of lowest grade competent to try it. He also referred to section 16 which envisaged that the suits categorized in clauses (a) to (f) shall be instituted in the court within the local limits of whose jurisdiction the property is situated or in case of suits referred to in clause (c) at the place where the cause of action has wholly or partly arises. He further invited our attention to section 19 which pertains to the suits for compensation for wrongs to a persons or movables and argued that section 19 cannot be read in isolation and since in the prayer clause the claim of damages is not an independent relief but it is ancillary and incidental to the main relief of declaration  therefore, the suit should have been filed within the local limits of jurisdiction where the property in question is situated in which the claim of damages can also be sought. He fully supported the order passed by the learned Single Judge of this Court.

 

16. The learned AAG also supported the impugned order. She invited our attention to the written statement filed in the suit by the defendant No.3 in which it was stated that the appellant/plaintiff had filed   CP. No.D.149 of 2009 in this Court which was dismissed on 26.5.2009 and the appellants were directed to approach the proper forum against the cancellation of entries in the record of rights. She further argued that since the appeal is pending before the hierarchy provided under the Land Revenue Act therefore, the suit is not maintainable during the pendency of appeal.

 

17. In rebuttal, Khawja Shamsul Islam learned advocate for the appellants argued that the respondent No.2 has nothing to do in the matter but on his instructions, his Additional Secretary vide letter dated 24th May 2008 communicated to DCO & DPO Jamshoro directing them to remove the encroachment from the land in question and be handed over the same to the legal owner with further instructions to establish a police picket to prevent any law and order situation. The learned counsel argued that all this was done on the application of respondent No.1. He further argued that Order II Rule 2 CPC does not bar filing of a suit on joinder of two causes of action. Order II Rule 2 deals with the splitting up of the claim and relief and provides that if the plaintiff omits to sue for all the claims and reliefs to which he is entitled in respect of a cause of action, he will be precluded in a second suit from suing in respect of the portions so omitted. He reiterated that the Firdous Trading Corporation case has no application in this matter as it only pertains to the levy of court fees and he added much emphasis that the learned Single Judge while passing the impugned order, only considered section 120 but failed to consider order 49 Rule 3 CPC which clearly provides that Rule 10 and Rule 11, clauses (b) and (c) of order VII CPC does not apply to any High Court in exercise of its ordinary or extra ordinary original civil jurisdiction. He further argued that for the purposes of order VII Rule 10 CPC, the contents of the plaint should be kept in mind and prior to deciding the question of territorial jurisdiction, the contents of the plaint should be seen and accepted to be true. According to learned counsel the plaint in question fully demonstrates the series of cause of action and specifically the order dated 14.2.2008 was also passed by the respondent No.13 at Karachi, therefore, the plaint should not have been returned. Learned counsel further tried to distinguish the judgment reported in 2010 CLC 1226 (Ismat Asad v. Pakistan Oxygen Limited), authored by one of us (Muhammad Ali Mazhar, J) which has been relied upon by the learned counsel for respondent No.1. The learned counsel argued that in this case the plaint was rightly returned to the plaintiff for the reason that the property in question was situated at Rawalpindi therefore, the suit for specific performance, cancellation of documents, declaration, permanent injunction and damages could not be filed at Karachi.

 

18. After considering the pros and cons of the matter, we have reached to the conclusion that the entire controversy is roaming around the  jurisdiction of this Court at original side and the application and implication of section 120 CPC read with Order 49 Rule 3 CPC. For the convenience and ready reference, Section 120 CPC and Order 49 Rule 3 CPC are reproduced as under:-

 

Section 120, C.P.C.

 

Provisions not applicable to High Court in original Civil Jurisdiction. (1) The following provisions shall not apply to High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17 and 20.

 

Order 49 Rule (3) C.P.C

3.     Application of rules. The following rules shall not apply to any High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:

 

(1)             rule 10 and rule 11, clauses (b) and (c), or Order VII ;

 

(2)             rule 3 of Order X ;

 

(3)             rule 2 of Order XVI ;

 

(4)             rules 5,6,8,9,10,11,13,14,15 and 16 (so far as relates to the manner of taking evidence) of Order XVIII ;

 

(5)             rules 1 to 8 of Order XX ; and

 

(6)             rule 7 of Order XXXIII (so far as relates to the making of a memorandum) ;

and rule 35 of Order XLI shall not apply to any such High Court in the exercise of the appellate jurisdiction.

 

 

19. Before adverting to the aforesaid provisions of CPC, it would be advantageous to trace out the history of original jurisdiction exercised by the Karachi bench of West Pakistan High Court in Civil Suits in the Civil District of Karachi and for that history, paragraph 5 of the establishment of Sindh (W.P) High Court Order 1955 is quite relevant which reads as under:-

 

Para 5 of the Establishment of West Pakistan High Court Order, 1955

 

“Original civil and criminal jurisdiction of the Bench at Karachi – Notwithstanding anything in this Order or in any other law for the time being in force, the Bench of the High Court at Karachi shall  have the same original civil jurisdiction for the civil district of Karachi and the same criminal jurisdiction and powers of the Court of Session for the Sessions Division of Karachi, as were exercisable, immediately before the commencement of this Order, by the Chief Court of Sindh under section 8 of the Sindh Courts Act, 1926 (Sindh Act VII of 1926):

 

Provided that the Governor-General may by notification in the official gazette direct that, as from a specified date such jurisdiction and powers as are mentioned therein shall cease to be exercisable by that Bench and as from that date that Bench shall cease to exercise that jurisdiction and powers.”

 

 

20. The establishment of West Pakistan High Court Order came into effect in the year 1955. The original civil jurisdiction of this Court was further strengthened and reinforced under section 7 of Sindh Civil Courts Ordinance 1962 which defined and clarified the jurisdiction of the Court of District Judge without the limit of value thereof, excepting in the Karachi Districts where the original jurisdiction in Civil Suits and proceedings of the value exceeding 30 lacs of rupees shall be exercised by the High Court. Section 7 of Civil Court Ordinance, 1962 is reproduced hereunder:-

 

Section 7 of Sindh Civil Courts Ordinance, 1962

 

 

Original jurisdiction of the Court of District Judge. Subject to this Ordinance or any law for the time being in force, the original jurisdiction of the Court of the District Judge in civil suits and proceedings shall be without limit of the value thereof excepting in the Karachi Districts where the original jurisdiction in civil suits and proceedings of the value exceeding thirty lacs of rupees shall be exercised by the High Court.

 

21. The comparison of both aforesaid provisions makes it undoubtedly clear that in paragraph 5 of the Establishment of West Pakistan High Court Order 1955 the original civil and criminal jurisdiction of the bench at Karachi was defined with certain parameters while under section 7 of Sindh Civil Courts Ordinance, 1962 the pecuniary jurisdiction of District Judge has been fixed excepting in the Karachi Districts where the original jurisdiction in Civil Suits and proceedings of the value exceeding 30 lacs of rupees shall be exercised by the High Court. The simple reading and comparison of both the provisions lead us to a conclusion that while exercising powers on original side, this court is in fact exercising jurisdiction for the civil district of Karachi as was exercisable immediately before the commencement of establishment of West Pakistan High Court Order by the Chief Court of Sindh under section 8 of the Sindh Courts Act 1926. The Karachi Bench of Sindh High Court is functioning or exercising the powers and performing the duties as the Principal Civil Court of original jurisdiction in the civil district of Karachi. It is also pertinent to mention here that by virtue of a latest amendment made under section 7 of Sindh Civil Court Ordinance 1962 on 2.3.2011, the pecuniary jurisdiction of the original side of this Court at Karachi has been enhanced from 30 lacs to 15 million.

 

22. The learned counsel for the appellants referred to various judgments relating to Order 7 Rule 10 CPC and non applicability of section 16, 17 and 20 of CPC as provided under section 120 CPC and Order 49 Rule 3 of the Civil Procedure Code and much emphasis has been made that the learned Single Judge of this Court has misconstrued the above provisions of law and since the above provisions are not applicable to this court at Karachi Bench therefore, the original side at Karachi gives the ample jurisdiction to entertain the suit in question and decide the same on merits. The gist and crux of the arguments advanced by the learned counsel for the appellants is that the non applicability of aforesaid provisions have enhanced the territorial jurisdiction at original side rather than curtailing it.

 

23. Now we would like to discuss and distinguish the case law cited by the learned counsel for the appellant. The first case is reported in PLD 1964 W.P Karachi 11, in which, the learned single Judge of this Court discussed the above provisions and held that this Court at Karachi has got jurisdiction to entertain the suit irrespective of the fact that the same could be filed in another district. In this matter the property in dispute was situated at Tando Muhammad and Hyderabad, outside the jurisdiction of this Court. The learned counsel appearing for the plaintiff in that case argued that the suit was not for possession in the strict sense of the term but was for resumption of management by the plaintiffs handed over to them by the defendants and in order to distinguish the facts of the case he further referred to an agreement which was executed at Karachi and the defendant company had also an office and carried on business at Karachi. The suit was entertained only on the notion that the restrictions prescribed under section 16, 17 and 20 CPC having been removed from the original jurisdiction of High Court, therefore, it had jurisdiction to entertain the present suit. In our view though the learned Single Judge referred to various provisions of law but he had not appreciated the issue involved in its right perspective, therefore, in our understanding, did not lay down the correct exposition of law. The next cited case is reported in 1991 CLC 684 in which the learned divisional bench of this Court in High Court Appeal held that although provisions of section 16, 17 and 20 of CPC do not apply to the High Court in exercise of its original civil jurisdiction, the court will have jurisdiction to entertain a suit if the cause of action has arisen within the local limits of the jurisdiction. In this matter the contract was entered into with the consent of PIDC Karachi therefore, it was held that breach of agreement could be enforced at Karachi. The change in the delivery time was granted at Karachi and accordingly the breach of altered contract which provided for delivery of contracted goods in two installments could be enforced at Karachi. The facts leading to this case are quite distinguishable and have no application in the case in hand.

 

24. In another case cited by the learned counsel for the appellant which is reported in 1988 CLC 59, the facts were distinguishable as this was a simple suit for recovery and the agreement between the parties was executed at Karachi for the supply of pesticides by the plaintiff to the defendants which had to become effective on the defendants furnishing irrevocable insurance guarantee accepted to the bankers of the plaintiff. In the next judgment reported in 2010 CLD 760, the cause of action relating to repayment of loan was discussed within the parameter of section 20 (c) CPC in a banking suit but in this case no case was made out for the declaration as to the ownership of any property or its possession or recovery of any moveable property. The facts and circumstances of the next case which is reported in 2003 CLC 1183 are also distinguishable in which two suits were filed against the same property, one at Hyderabad and another at the principal seat at Karachi and the suit filed at Hyderabad was transferred to the principal seat and both the suits were being tried together to avoid conflict of decision.

 

25. In the next case reported in 1991 CLC 473, the suit was filed for recovery of wages under admiralty jurisdiction of High Court Ordinance 1980 in which the defendant was carrying on business in Pakistan through its local agent. Plaintiff had received letter of appointment and signed article of agreement at Karachi and the telegram upon which cause of action was based viz. termination of service was received by plaintiff at Karachi, therefore, it was held that this court at original side had jurisdiction to decide the lis. In the next judgment reported in 2007 CLC 394 in which the learned single judge of this Court held that undisputedly the land is situated at Hyderabad and the agreement was also executed at Hyderabad but the defendant was residing at Karachi and part payment of sale consideration was also made at Karachi therefore, it was held that this court had jurisdiction to entertain the suit. The learned Single Judge only considered the section 20 (c) CPC and held that this court in its original civil jurisdiction can entertain all suits where cause of action had arisen within its local limits of jurisdiction but did not consider an important aspect that the jurisdiction of this court on original side is only confined to Karachi district which cannot be extended to the entire province of Sindh. In our understanding, the learned Single Judge did not lay down the correct law. In the next judgment reported in PLD 1994 Karachi 388, the cause of action had accrued at Sanghar in a suit for damages for wrongful detention. Though the learned Single judge of this Court discussed in detail sections 16, 17, 19, 20 and Order 7 Rule 10 CPC but in the end the suit was sent to the court of Civil Judge Sanghar. In this case, the learned single Judge further observed that surely section 24 CPC is very much on the statue book for seeking transfer of the suit, if warranted. But that can only be if and when the suit comes to pend in a Court of competent jurisdiction. In the next case reported in PLD 1996 Karachi 411, the question of termination of plaintiff sole distribution agreement was involved in the suit in which the defendants took the plea that one of the defendants neither resided nor carried on business in Pakistan nor personally worked for gain within territorial jurisdiction of High Court. The learned Single Judge held that the averments in the plaint fall within ambit of 20 (c) CPC which permits institution of a suit in a court within local limits of whose jurisdiction cause of action wholly or in part has arisen. Cause of action having arisen in Karachi High Court would have jurisdiction to entertain and hear the suit in its original civil jurisdiction. In this case, on one hand the learned Single Judge discussed the non applicability of section 16, 17 and 20 CPC while on the other hand it was held that the case of plaintiff as per averments in plaint apparently fall within ambit of section 20(c) CPC. The facts of this case are not relevant to the case in hand.

 

26. In the next case reported in PLD 1999 Karachi 01, the learned Single Judge had discussed order 7 Rule 11 CPC and held that  plaint could not be rejected in piecemeal even one prayer contained in the plaint was found entertainable. Plaintiffs could maintain action for damages, therefore, plaint could not be rejected in terms of Order 7 Rule 11 CPC, even if court had no jurisdiction in respect of other reliefs claimed. The facts and circumstances of this case are only relevant to the rejection of plaint and not to the return of plaint. In the next case reported in SBLR 2004 Sindh 1041, the suit for damages was filed for loss of business reputation and business prospects for implication in a criminal case. The learned Single Judge held that from the perusal of plaint, the plaintiff had claimed that wrong was done to him at Karachi where he had to face mental agony and anguish as certain material was published and circulated against him through newspapers published in Karachi where he had the notice that the non-bailable warrants were issued by the Magistrate against him at Islamabad.

 

27. In another case reported in 2003 SCMR 990, the honorable Supreme court had discussed the declaratory suits vis-à-vis a territorial jurisdiction of trial court and held that a suit relating to the rights in the immovable property would lie before the Court within the local limits of which the property is situated and if the property is situated outside the territorial jurisdiction of the Court, and the relief being sought in the suit relates to the property, the suit would not be maintainable before any other court except the one within the territorial jurisdiction of which property is situated. In the present matter the parties in the suit were residing in the local limits of district Mansehra and agreement was also registered at Mansehra therefore, it was held that cause of action in favour of plaintiff relating to the cancellation of agreement would arise at Mansehra . This case is not helpful to the case of appellant but it supports the contention of respondent No.1. In the next case reported in PLD 1993 S.C 395, the honorable Supreme court held that the suit for recovery of amount can be instituted in a court within the local limits of whose jurisdiction the cause of action wholly or in part arose. In this matter coal was to be dispatched through the goods company at Quetta to Faisalabad and after receiving the same payment had to be made, part of cause of action accrued at Quetta, therefore, it was held suit for recovery of amount could be instituted at Quetta. In the next case reported in 1999 YLR 2162, the facts of this case are also distinguishable in which a preliminary objection was taken by the defendant that this court has no jurisdiction in the matter due to foreign jurisdiction clause or forum selection clause contained in the agreement between the parties and it was urged that defendant No.1 to 7 and 8 are not residents in Pakistan nor do they carry on business in Pakistan. No such controversy is involved in the case in hand.

 

28. The case law relied upon by the learned counsel for the respondent No.1 are quite applicable in relation to the controversy involved in this case specially the case of Firdous Trading Corporation,  Haji Razaq case and the case of Province of Sindh v. Haji Razaq reported in 1991 SCMR 920. The main case on the subject is the Firdous Trading Corporation case reported in PLD 1961 (W.P) 565 in which the learned Single Judge of this Court traced out the history and held that the Karachi Bench of Sindh High Court is functioning or exercising the powers and performing the duties as the principal civil court of original jurisdiction in the civil district of Karachi and further held that the original civil jurisdiction in respect of civil suits in Karachi was not conferred on the High Court as a whole but only to the bench at Karachi. The nature of this jurisdiction is clarified under para 7 of part A of the Schedule of Karachi Courts Order 1956. The scheme of the establishment of West Pakistan High Court Order 1955 clearly shows that as a special measure Karachi bench was allowed to continue to perform the duties of the principal civil court of original jurisdiction in Karachi which is a special jurisdiction and by no stretch of arguments can be considered the ordinary original civil jurisdiction of the West Pakistan High Court. Though in the case of Firdous Trading Corporation, the main dispute was pertaining to the payment of court fee as the appellant only paid a court fee of Rs.4 and on the office objection, the appellant in that case contended that since it is letters patent appeal against the judgment passed in exercise of the ordinary civil jurisdiction of the court, section 4 of the Court fees Act does not apply and no court fee was payable thereon but while deciding the question of court fee the learned single Judge discussed in detail the nature of jurisdiction being exercised by this Court at its original side at Karachi.

 

29. The main issue before the learned Single Judge in Firdous Trading Corporation case was to determine what is the nature of original jurisdiction exercised by the Karachi Bench of Sindh High Court in Civil Suits in the Civil District of Karachi. Is it the Ordinary Civil jurisdiction of the High Court or some other jurisdiction? which was only dependent upon the interpretation of paragraph 5 of the Establishment of West Pakistan High Court Order 1955 in which it is clearly provided that the bench of High Court at Karachi shall have the same original civil jurisdiction for the civil district of Karachi. Similar question was raised in case of Haji Razaq reported in PLD 1975 Karachi 944 in which the learned Divisional Bench of this Court disagreed with the judgment passed in the Firdous Trading Corporation case and took the contrary view. The case of Haji Razaq was based on the office reference in High Court Appeal 61 of 1974 in which the learned Division Bench held that court fees act is not applicable to 3 unnumbered suits i.e. Suit No. Nil/74, M/s. Haji M. Zakaria and Co. V. Pakistan,      Suit No. Nil /75 Hameedul Haq ch. V. National and Grindlays Bank and another and Suit No. Nil/75 Burney States and others v. Mst. Gul Bibi. The office objection in these suits was rejected. The reference was made to resolve the conflict of authority between the judgment in the Firdous Trading corporation case and the judgment in W.P.I.D.C. v. Fateh Textile Mill and the learned divisional bench held that the view taken in the Firdous Trading Corporation case was not correct and the view taken in W.P.I.D.C’s case was affirmed. Though the decision delivered in Firdous Trading Corporation case was overruled by the Divisional Bench of this Court but on appeal filed by the Province of Sindh in case of Haji Razaq, the honorable Supreme Court upheld and affirmed the decision of Firdous Trading Corporation case reported in PLD 1961 Karachi 565. In another case reported in PLD 1991 S.C. 985 (Mian Akbar Hussain v. Mst. Aisha Bai and others), the question was raised whether in execution of decree passed by High Court of Sindh in Civil Suits Article 181 or 182 of the Limitation Act will apply or Article 183 will be applicable. The Honourable Supreme Court held that as is obvious from the judgment reported in 1991 SCMR 920 whereby it was held that the view taken in Firdous Trading Corporation case was correct and consequently the judgment in Razak v. Usman case was setaside, it was held that while entertaining and trying civil suit, the High Court of Sindh is exercising district court jurisdiction in contradistinction to the ordinary original civil jurisdiction of High Court. Article 183 provides a period of limitation of six years for enforcing a judgment and decree or order from any High Court in the exercise of its ordinary original civil jurisdiction and in the light of the judgment quoted above Article 183 cannot be applied, therefore, Article 181 will be applicable and in which the period of limitation is three years. Finally it was held in this case that the execution application should have been filed within a period of three years from the date of judgment and decree. 

 

30. Though in this judgment reported in PLD 1991 SC 985, it is printed that the Firdous Trading Corporation case was not a correct law and the case of  Haji Abdul Razaq v. Usman reported in PLD 1975 Karachi 954 was said to have been approved but in the body of the judgment, in fact, the honorable Supreme Court relied upon a judgment reported in 1991 SCMR 920, “Province of Sindh v. Haji Razaq” in which it was held that the judgment in Firdous Trading Corporation case was correct and consequently the judgment in Razaq v. Usman was set aside.

 

31. According to our understanding of law, the provisions of order 7 Rule 10 are mandatory in nature and adjudication by a court without jurisdiction is corum 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 immoveable property and the recovery of movable property. The relief claimed in the suit and its nature falls within the purview of Section 16 of CPC 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 CPC provides that section 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 is 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.122/2000 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 49 Rule 3 is only applicable and limited to the original side jurisdiction for the districts of Karachi and when it is found that the property is situated outside the territorial jurisdiction of Karachi then section 16 and 17 will automatically come into operation. The initial guiding principles for institution of various suits is provided under section 16 to 19 CPC 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 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 honorable 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 High 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. Gangwani v. Engineer Aftab Islam Agha), the learned divisional bench held that territorial jurisdiction of the Court cannot 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-à-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.

 

33. It is pertinent to state that Order 2 Rule 2 CPC provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Section 19 of CPC provides that where a suit is for compensation for wrong done to the person or to the moveable property, if the wrong 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, the suit may be instituted at the option of plaintiff in either of the said courts. Though the plaintiff in this suit has claimed the damages on account of actual loss and damages for mental torture suffered on account of actionable wrong of the defendants but for claiming the damages which could be filed in this court keeping in view the express provision of Section 19, subject to Order 2 Rule 2 CPC, the plaintiffs have to relinquish the part of claims and reliefs fall within the parameter and ambit of Section 16 CPC. It is further provided under sub-rule 3 of Order 2 Rule 2 CPC that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits, accept with the leave of the court to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Since the claim of damages arising from and offshoot of the same cause of action, therefore, in our view all such reliefs can be claimed and granted to the plaintiff in one suit by the Court having territorial jurisdiction to try the suit in question. Order II Rule 2 C.P.C is devised to prevent a party from splitting up claims and remedies arising out of same cause of action against the same party. This provision is based on the principle that the defendant should not be vexed twice for the same cause of action. It is penal in nature and precludes the plaintiff to sue for the portion of claim or remedy so omitted.   

 

34. The whys and wherefores lead us to a conclusion that the order passed by the learned Single Judge whereby the plaint was returned for presenting in the appropriate jurisdiction is unexceptional and does not suffer from any infirmity or irregularity and we do not find any cogent justification to make any interference in the findings recorded by the learned Single Judge.

 

35. For the foregoing reasons the appeal is dismissed along with pending applications.

 

                                                                                       Judge

                                                          Judge  

Karachi

Dated: