ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

High Court Appeal No. 130 of 2011

_______________________________________________________________ Date Order with signature of Judge

_______________________________________________________________

Before: Mr. Justice Aqeel Ahmed Abbasi, J.

Mr. Justice Muhammad Junaid Ghaffar, J.

14.01.2015.

Mr. Mustafa Lakhani, Advocate for the appellant.

Mr. Muhammad Saif Malik, Advocate for Respondent No.15.

Mr. Rauf Ahmed Butt, Advocate for Respondents No.16, 17 and 18.

Mr. Azizulllah Bur’rro, DAG alongwith Lt. Faiza PN

--------

Through instant High Court Appeal, the appellant has impugned the order dated 07.4.2011 passed on CMA No.9386 of 2008, whereby, the learned Single Judge of this Court while dismissing the application filed by the Respondents No.1 to 13, under section 34 of Arbitration Act, 1940, seeking stay in view of arbitration clause as also held that in view of clause (c) Section 20 CPC the Civil Court at Rawalpindi has the jurisdiction in the matter. It is contended by the learned counsel for the appellant that the appellant is aggrieved by the order of the learned Single Judge, whereby, the plaint has been directed to be returned by the Civil Court at Rawalpindi, as according to learned counsel, neither proper opportunity was allowed to the appellant to make his submissions in this regard nor there was any application filed on behalf of the Respondent under Order VII Rule 10 CPC, whereas, the learned Single Judge, while dismissing the application of the Respondent filed under Section 34 of the Arbitration Act has suo-motu decided to return the plaint to the appellant. Per learned counsel, admittedly the contract was executed between the parties at Karachi, whereas, both the parties have their permanent addresses of Karachi and the supplies were also made at Karachi by the appellant to the Respondents. Learned counsel further submits that even bills were submitted at Karachi to Respondents and the payments were also made by the Respondents to the appellant from Karachi office, therefore, the parties do not have any privity of contract nor performed any part of the contract at Rawalpindi, hence the learned Single Judge was not justified to hold that since there was a part performance to contract in terms of subsection (c) of section 20 CPC, therefore, the plaint may be returned and suit may be filed before the Civil Court at Rawalpindi.

2. Learned counsel has read out the provision of section 20 as well as section 21(iii) CPC and submits that for all factual and legal aspects of the case the suit was competently filed before the learned Single Judge of this Court have a territorial and pecuniary jurisdiction over the case of the parties, hence prayed that the impugned order may be set-aside.

3. Conversely, learned DAG representing the Respondents No.1 to 13 contended that since agreement between the parties, the payment were to be disbursed from the head office at Rawalpindi, therefore, the Civil Court at Rawalpindi has the jurisdiction as it was between the parties, however, while confronted with the legal provision as referred to hereinabove and the judgment of the Hon’ble Supreme Court, which has been relied upon by the learned Single Judge of this Court while passing the impugned order in the case of Kadir Motors v National Motors Ltd. and others 1992 SCMR 1174, wherein it has been held that:

“………… if the mutual agreement between the parties a particular Court having territorial and pecuniary jurisdiction is selected for the determination of their dispute, there appears to be nothing wrong or illegal in it or opposed to public policy.”

4. Learned DAG could not controvert the submissions made by learned counsel for the appellant nor could deny the legal position, which has been enunciated by the Hon’ble Supreme Court in the aforesaid cited judgment, according to which, the parties may choose a forum of their choice provided such forum or the Court otherwise has the territorial and pecuniary jurisdiction over the case/dispute in the instant case. Admittedly, the entire contract was duly executed and performed at Karachi, whereas, no part performance or cause of action appears to have arisen at Rawalpindi, therefore, keeping in view the legal position, we are of the view that the learned Single Judge has erred in law and fact by passing the impugned order, whereby, the plaint has been directed to be returned/filed before the Court of civil jurisdiction at Rawalpindi.

5. Accordingly, instant appeal is hereby allowed in the above terms and impugned order is set-aside with the directions that the plaint be returned to its jurisdiction.

Judge

abduRazak