Order Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
High Court Appeal No. 152 of 2012
_______________________________________________________________
Date Order with signature of Judge .
Present
1. Chief Justice
2. Mr. Justice Nadeem Akhtar
For Katcha Peshi :
Appellants : Mst. Khursheed Begum & another
through Agha Zafar Ahmed, Advocate.
Respondent : Habib Bank Limited
through Mr. Nabeel Kolachi, Advocate.
Date of hearing : 28.03.2013.
O R D E R
Nadeem Akhtar, J. : The appellants filed Suit No. 559 of 2010 against the respondent for recovery / return of original documents, declaration and damages under tort, under the original civil jurisdiction of this Court. The respondent filed an application under Order VII Rule 10 read with Order VII Rule 11 CPC, which was allowed by the learned single Judge through the impugned order whereby the plaint was returned to the appellants for presentation before the Court having jurisdiction at Islamabad.
2. Appellant No.1 is the owner / lessee of Plot No.77, measuring 3,333.33 sq. yds., situated in the industrial area, Sector I-10/3, Islamabad, and appellant No.2 is the owner / lessee of Plot No.78, measuring 3,333.33 sq. yds., and Plot No.63, measuring 2,000 sq. yds., both situated in the industrial area, Sector I-10/3, Islamabad. As per the averments made by the appellants in their plaint, they availed a finance facility from the respondent for opening a letter of credit, and in consideration of the said facility and as the security for the repayment thereof, the appellants mortgaged their aforementioned plots in favour of the respondent by depositing the original title documents thereof with the respondent. The mortgage of the appellant No.1’s Plot No.77 was subsequently registered with the Sub-Registrar concerned at Islamabad. It was averred by the appellants that the finance facility was fully adjusted by them, however, the original title documents of their plots remained with the respondent on the advice of the respondent to enable the appellants to avail further finance facilities from the respondent. It was further averred by the appellants that on 03.06.2009, they requested the Manager of the respondent’s Industrial Area Branch at Islamabad to return the original title documents of their properties, and that their request was followed by two reminders. According to the appellants, the respondent informed them that the original documents were being traced, and that the same will be handed over to the appellants, but the same were not returned to them.
3. In the above background, the suit was filed by the appellants with the following prayer :
“It is, therefore, prayed that this Hon’ble Court may be pleased to judgment and decree in the following terms:-
I) Direct the Defendants for immediate return/ delivery of the original title documents of suits properties to the Plaintiffs viz.
a. Original lease deed dated 1-1-1995 mortgage deed dated 19-10-2002, NOC from Capital Development Authority, Maps and Non-Encumbrance Certificate in respect of Plot No.77 measuring 3333.33 sq. yards in industrial Area Sector I-10/3, Islamabad.
b. Original lease deed dated 1-1-1995 NOC from Capital Development Authority, Maps and Non-Encumbrance Certificate in respect of plot No.78, measuring 3333.33 sq. yards in Industrial Area Sector I-10/3, Islamabad.
c. Original lease deed dated 6-1-1994 NOC from Capital Development Authority, Maps and Non Encumbrance Certificate in respect of plot No.63, measuring 2000 sq. yards in Industrial Area Sector I-10/3, Islamabad.
II) Upon failure of the Defendant to return any or all of the aforesaid original documents, damages equivalent to the current value of the three properties i.e. Rs.360,000,000/- along with markup from the date of suit to the date of payment and cost of preparing duplicate documents.
III) Direct the Defendant to redeem the mortgage on Plot No.77 measuring 3333.33 sq. yards in Industrial Area Sector I-10/3, Islamabad in favour of the Plaintiff No.1.
IV) Damages for wrongfully detaining the original title documents of the said properties amounting to Rs.50,000,000/-
V) Declare that the Defendant have wrongly detained the original title documents of the said properties
VI) Declare that the act of the denial by the officers of the Defendant that no document is lying with them is malafide, negligent and unlawful act.
VII) Grant cost of the suit.
VIII) Grant any further and better relief as may be deem appropriate by this Hon’ble Court in the interest of justice.”
4. In its written statement, the respondent raised the preliminary objection that this Court, under its original civil jurisdiction, had no territorial jurisdiction to adjudicate upon the Suit filed by the appellants. The respondent also filed an application under Order VII Rule 10 read with Order VII Rule 11 CPC, praying that the plaint may either be returned to the appellants, or the same may be rejected. In the impugned order, it was observed by the learned single Judge that the mortgaged properties are situated at Islamabad ; the finance facility was availed by the appellants from the respondent’s Branch at Islamabad ; and the original title documents were deposited by the appellants with the respondent at Islamabad. In view of his above observations, it was concluded by the learned single Judge that the appellants should have instituted the Suit before the appropriate forum at Islamabad where the subject matter of the Suit was situated. It was further held by the learned single Judge that the prayer / claim of damages made by the appellants was not an independent relief, but had arisen from the alleged wrong committed by the Branch of the respondent situated at Islamabad, therefore, such relief could also be sought before the appropriate forum at Islamabad. The case of Muhammad Naveed Aslam and 3 others V/S Mst. Aisha Siddiqui and 14 others, 2011 CLC 1176 decided by a learned Division Bench of this Court was relied upon by the learned single Judge.
5. Agha Zafar Ahmed, the learned counsel for the appellants, submitted that the plaint ought not to have been returned as no relief was claimed by the appellants in respect of their properties. He submitted that the relief in respect of the properties and the relief in respect of the title documents thereof, were two separate and distinct reliefs. He urged that the appellants had not prayed for a declaration regarding their title to their properties, or for their possession, but had prayed for the enforcement of the terms and conditions of a contract, which was the finance facility in this case. It was further urged by him that the relief sought for the return of the original title documents of the properties had nothing to do with the title or possession of the properties and / or the territorial jurisdiction of this Court or the court at Islamabad. In support of his submissions, the learned counsel relied upon Haji Abdul Malik and 10 others V/S Muhammad Anwar Khan, 2003 SCMR 990, wherein it was held by the Hon’ble Supreme Court that under Section 16 CPC, a suit for declaration relating to the rights and interest in an immovable property is instituted in a court within local limits of which the property is situated ; a suit for the purposes of determining the rights or interest in the property being different to that of the suit in which the relief claimed does not relate to the rights in immovable property, can be filed at the place at which the cause of action fully or partially arose. The learned counsel also relied upon Adcon Electronics Pvt. Ltd. V/S Daulat and another, AIR 2001 Supreme Court 3712, wherein it was held inter alia by the Supreme Court of India that “a ‘suit for land’ is a suit in which the relief claimed relates to title to or delivery of possession of land or immovable property. Whether a suit is a ‘suit for land’ or not has to be determined on the averments in the plaint with reference to the relief claimed therein; where the relief relates to adjudication to title to land or immovable property or delivery of possession of the land or immovable property it will be a ‘suit for land’.” It was further held that “in its true sense a suit simplicitor for specific performance of contract for sale of land is a suit for enforcement of terms of contract. The title to the land as such is not the subject matter of the suit.”
6. On the other hand, Mr. Nabeel Kolachi, the learned counsel for the respondent, strongly supported the impugned order by submitting that the law does not permit a party to choose the forum or the place of the forum for instituting a suit. He submitted that Sections 16 and 17 of the Code of Civil Procedure, 1908, specifically provide that suits should be instituted where the subject matter is situated, and the suits seeking relief in respect of an immovable property or for compensation for the wrong committed in relation to an immovable property, must be instituted in such court within the local limits of whose jurisdiction any portion of the property is situated. He urged that the question of jurisdiction is always construed strictly, so much so that the parties cannot confer jurisdiction to a court even by consent. The learned counsel further urged that it was an admitted position that the appellants were/are the customers of the respondent within the meaning of Section 2(c) of the Financial Institutions (Recovery of Finances) Ordinance XLVI of 2001, therefore, the suit even otherwise was not maintainable at the original side of this Court.
7. In support of his submissions, the learned counsel for the respondent relied upon a number of reported cases, out of which some are discussed here very briefly as the remaining were not found by us to be relevant for the purposes of this appeal. In Muhammad Naveed and 3 others V/S Mst. Aisha Siddiqui and 14 others, 2011 CLC 1176, (relied upon by the learned single Judge in the impugned order) a learned Division Bench of this Court was pleased to uphold the order passed by a learned single Judge of this Court in Muhammad Naveed and 3 others V/S Mst. Aisha Siddiqui and 2 others, PLD 2010 Karachi 261, wherein it was held inter alia that if a suit is filed in this Court that does not fall within the original civil jurisdiction of this Court, that is, it does not pertain to a dispute relating to any of the four Districts of Karachi, then certainly the provisions of Sections 16, 17 and 20 shall be attracted, and the plaint shall be returned for its presentation to a court of appropriate jurisdiction ; Section 120 CPC, therefore, only renders ineffective provisions of Sections 16, 17 and 20 CPC to suits that can be entertained by this High Court in the exercise of its original civil jurisdiction which is confined to civil Suits and proceedings pertaining to the Districts of Karachi only and not for any other area falling within the jurisdiction of this High Court. In Bankers Equity Limited and 5 others V/S Messers Bentonite Pakistan Limited and 7 others, 2003 CLD, 931, it was held by the Lahore High Court that it is well-settled that jurisdiction of a court within whose territorial limits, cause of action or a part thereof arose, cannot be contracted out by the parties. In National Bank of Pakistan and 4 others V/S Khalid Mehmood, 2002 CLD 658, it was held by a learned Division Bench of the Peshawar High Court that the Banking Court had the exclusive jurisdiction to adjudicate upon the controversy related to redemption of the mortgaged property and release of its documents.
8. It is an admitted position that the plots of the appellants are situated at Islamabad, the finance facility was availed by them from the respondent through its branch at Islamabad, the title documents of the plots were deposited by them at the said Islamabad branch of the respondent, the demands for the return of the title documents were made by the appellants at Islamabad, the respondent was required to return the title documents at Islamabad, but it failed in doing so according to the appellants, and the title documents are still lying at the said Islamabad branch of the respondent. Thus according to the appellants themselves, the entire alleged cause of action and every part thereof arose in their favour at Islamabad. In fact, a perusal of the plaint shows that it was nowhere pleaded by the appellants that any part of the alleged cause of action had accrued in their favour within the territorial jurisdiction of this Court. Before us also, it was not argued that the alleged cause of action or any part thereof had accrued in favour of the appellants within the territorial jurisdiction of this Court.
9. We are unable to persuade ourselves to agree with the learned counsel for the appellants that, since the suit was not for declaration as to any right in the plots and/or for the possession thereof, the same could be filed either at Islamabad, or within the territorial jurisdiction of this Court. The prayers made in the suit clearly show that it was primarily a suit for redemption of the mortgage admittedly created in respect of Plot No.77. The other prayers sought by the appellants for the return of the original title documents of all the three plots, damages, and declaration that the respondent had acted illegally by wrongfully retaining the original title documents, in our opinion, were merely consequential reliefs arising out of the main relief for redemption of the mortgage. We have said so as it was admittedly the case of the appellants that, despite settlement of the finance facility by them, the respondent had not redeemed the mortgage and had not returned the original title documents of their plots. Such pleadings and prayers are made only in suits by a mortgagor against the mortgagee for redemption of a mortgage. The prayers for redemption of the mortgage and for the return of the original title documents can be made only by the person whose rights and interests in the mortgaged property are involved. Therefore, in view of the law laid down by the Hon’ble Supreme Court in the case of Haji Abdul Malik (supra) that a suit relating to the rights and interests in an immovable property would lie before the Court within the local limits of which the property is situated, the suit ought to have been filed by the appellants before the court of competent jurisdiction at Islamabad. The principles laid down by a learned Division Bench of this Court in the case of Muhammad Naved Aslam (supra), shall also apply here.
10. We would like to observe here that, since the appellants are admittedly the customers of the respondent within the meaning of Section 2(c) of the Ordinance of 2001, and they mortgaged their plots with the respondent in consideration of a finance facility availed by them from the respondent, the learned single Judge of this Court had no jurisdiction to adjudicate upon the suit under the original civil jurisdiction of this Court. Only the Banking Court having jurisdiction in the matter had the exclusive jurisdiction to entertain and adjudicate upon the suit as framed by the appellants. The plaint was liable to be returned on this ground also.
11. In view of the above discussion, we do not see any reason for interfering in the findings of the learned single Judge, who rightly returned the plaint to the appellants for its presentation before the court having jurisdiction at Islamabad.
The above are the reasons of the short order dated 28.03.2013, whereby this appeal was dismissed.
Chief Justice
Judge
*HCA 152-12.doc Return of Plaint/Judgments DB/Court Work/ARK*