ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Suit No. 385 of 2003

Date	Order with signature of Judge

Mr. Zahir Hussain Chishti, advocate for the plaintiff.

Mr. Muhammad Imtiaz Agha, advocate for defendant No.1.

Date of hearing : 28.10.2013.

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ORDER ON C.M.A. No. 11885 / 2011

Nadeem Akhtar, J. – This application has been filed by defendant No.1 under Order VII Rule 10 CPC read with Section 151 CPC praying that the plaint of this Suit be returned to the plaintiff for filing the same in the Court having territorial jurisdiction in respect of this Suit, or in the alternative, an order be passed for the transfer of this Suit to Banking Court No.I at Larkana for hearing and decision along with Suit No.165/2001 pending before the said Court.

2. This Suit for compensation and damages has been filed by the plaintiff against National Bank of Pakistan, the Manager, employee, chowkidar, and godown keeper of its Rato Dero Branch, Larkana, the CIA Inspector Larkana, and the S.H.O. P.S. Rato Dero, District Larkana. In the instant application, it has been averred by defendant No.1 that the plaintiff availed a finance facility of Rs.3.000 million from its Rato Dero Branch, Larkana, in the year 2000 against mortgage of his immovable property situated in Rato Dero, and security of his stocks of rice. As the plaintiff committed default in fulfilling his obligations, defendant No.1, through its Rato Dero Branch, filed recovery Suit No.165/2001 against him before the Banking Court No.I at Larkana. The Suit was decreed on 15.12.2001 against the plaintiff in the sum of Rs.2,998,477.00. Defendant No.1, through its Rato Dero Branch, then filed execution proceedings, wherein the decree was satisfied through sale of the stocks of rice and the immovable mortgaged property. The decree was challenged by the plaintiff through an application under Section 12(2) CPC, which was dismissed, but the appeal filed by the plaintiff against the said order of dismissal was allowed, and the defendant No.1’s Suit was remanded to Banking Court No.I at Larkana for deciding the same afresh after recording evidence of the parties. It is stated that the said Suit is subjudice before the Banking Court No.I at Larkana.

3. The grounds on which defendant No.1 has sought return of the plaint, or in the alternative, transfer of this Suit to Banking Court No.I at Larkana, are that the facility was availed by the plaintiff at Larkana ; the immovable property that was mortgaged by the plaintiff was also situated in Larkana ; the said mortgaged property and stocks were auctioned in Larkana ; Suit No.165/2001 filed by defendant No.1 against the plaintiff is subjudice before the Banking Court No.I at Larkana ; and, the entire cause of action for filing the instant Suit, as alleged in the plaint, accrued to the plaintiff at Larkana. It is also averred by defendant No.1 that this Court in its banking jurisdiction has no jurisdiction to adjudicate upon this Suit, as the valuation of this Suit is less than Rs.50.000 million. In view of the above, it is the case of defendant No.1 that this Court lacks territorial as well as pecuniary jurisdiction to adjudicate upon this Suit.

4. The plaintiff has strongly opposed this application by filing his detailed counter affidavit, wherein all the assertions and allegations made by defendant No.1 have been specifically denied. The plaintiff has averred that this Suit filed by him is a civil Suit for recovery of compensation and damages for malicious prosecution ; he has not filed this Suit as a customer of defendant No.1 under the Financial Institutions (Recovery of Finances) Ordinance of 2001 in the banking jurisdiction of this Court ; and, this Suit filed by him has no nexus with Suit No.165/2001 filed against him by defendant No.1 before the Banking Court. It has been further averred that as the head office of defendant No.1, who is the main defendant, is situated in Karachi, and also as the minimum limit of the pecuniary jurisdiction of this Court is less than the amount claimed in the Suit, this Court has the territorial as well as pecuniary jurisdiction to adjudicate upon this Suit. I may point out that no affidavit-in-rejoinder was filed by defendant No.1 in reply to the counter affidavit filed by the plaintiff.

5. In order to appreciate the respective contentions of the parties, the plaint was minutely examined by me. As per the averments made in the plaint, it is the case of the plaintiff that he availed a finance facility of Rs.3.000 million from the defendant No.1’s Branch at Larkana (defendant No.2) against mortgage of his rice mill, and his stocks of rice worth Rs.8.000 million were kept as security with defendant No.2. Some repayments were made by the plaintiff to defendant No.2, but in order to usurp his properties, defendant No.2, in collusion with other employees of defendant No.1 and the police officials, lodged a false FIR bearing No.25/2001 on 10.07.2001 against the plaintiff and his brother under Section 382 and 406 PPC ; and, forcibly took away his stocks of rice. The plaintiff and his brother were arrested and challaned, but ultimately they were acquitted by the trial Court for want of evidence. The plaintiff has alleged that not only were his stocks of rice illegally removed by the defendants, but the employees of defendant No.1 also misappropriated expensive appliances, equipment, fixtures and fittings from his rice mill. He has further alleged that due to the setback suffered by him because of such illegal actions, he could not pay the installments to defendant No.1, and consequently defendant No.1 filed Suit No.165/2001 before the Banking Court in Larkana, and obtained an ex parte decree against him. It has also been alleged by the plaintiff that he suffered mental torture and heavy financial losses because of malicious prosecution and the other illegal and malafide actions taken by defendant No.1, its employees and representatives. In the above background, this Suit for compensation and damages to the tune of Rs.20,450,000.00 was filed by the plaintiff against defendant No.1, its employees and representatives, and the CIA and police officials.

6. I have observed that the plaintiff has not prayed for any relief in respect of the immovable property situated in Larkana that was mortgaged by him. He has not prayed for recovery of the said property, or for its redemption, or for the determination of his rights thereto or interests therein, or for compensation for wrong to the said property. Section 16 CPC provides that Suits seeking any of the above reliefs shall be instituted in the Court within the local limits of whose jurisdiction the property is situated, or in the case of a Suit for foreclosure, sale or redemption of a mortgaged immovable property, at the place where the cause of action has wholly or partly arisen. The averments and allegations contained in the plaint clearly show that this is a Suit for compensation and damages for the alleged malicious prosecution, and for the tortious acts allegedly committed by the defendants. Therefore, the provisions of Section 16 shall not apply to this case as the plaintiff has not prayed for any of the reliefs prescribed therein.

7. Under Section 19 CPC, where a Suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the Suit may be instituted at the option of the plaintiff in either of the said Courts. Section 20 CPC provides inter alia that every Suit shall be instituted in a Court within the local limits of whose jurisdiction the defendant, or each of the defendants where there are more than one, at the time of commencement of the Suit, actually and voluntarily resides, or carries on business, or personally works for gain ; or where the cause of action arises, wholly or in part. By virtue of Sections 19 and 20 ibid, this Court has the territorial jurisdiction to adjudicate upon this Suit as defendant No.1 has its principal / head office at Karachi, and it carries on business admittedly at Karachi.

8. I have further observed that the plaintiff has not pleaded or alleged breach of any obligation by defendants 1 and 2 in relation to the finance facility, nor has he filed this Suit under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance of 2001. This position is further supported by the fact that none of the defendants filed any application for leave to defend the Suit under Section 10 of the said Ordinance. On the contrary, written statement was filed by defendant No.1 straightaway, and the Suit is now at the stage of evidence. The above shows that this Suit was neither instituted nor is pending in the banking jurisdiction of this Court. As such, this Suit, not being a banking matter, cannot be transferred to the Banking Court at Larkana. Since the Suit was instituted before this Court under its original civil jurisdiction, this Court has the pecuniary jurisdiction in respect thereof.

9. In view of my above findings, the various cases relied upon by the learned counsel for defendant No.1 are not applicable to the present Suit, as the said cases relate either to the territorial jurisdiction of courts where immovable properties were situated, or default in fulfillment of an obligation in relation to a finance under the Financial Institutions (Recovery of Finances) Ordinance of 2001.

For the foregoing reasons, C.M.A. No. 11885 of 2011 is dismissed with no order as to costs.

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J U D G E

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