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Petitioner: MUHAMMAD NAVED ASLAM and 3 others VS Respondent: Mst. AISHA SIDDIQUI and 14 others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Muhammad Ather Saeed Title:MUHAMMAD NAVED ASLAM and 3 others vs Mst. AISHA SIDDIQUI and 14
others Case No.: H.C.A. No,62 of 2010 Date of Judgment:2011-04-21 Reported As: 2011 CLC 1176 Result: Appeal dismissed Judgment ORDER ' MUHAMMAD ALI MAZHAR, J.--- This High Court Appeal is directed against the judgment dated 26- 3-2010 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 owners 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 30-4-2005 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, is 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.
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(III) Declare that the orders dated 31-3-2000 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 14-2-2008 in SROA No,122 of 2000 (filed by defendant No,1) by the defendant No,13 is patently illegal, ultra vices ab initio and of no 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 11-7-2009 is patently illegal and the defendants have to bear the consequences and make good the huge financial lo,sses suffered by the plaintiffs on account of their illegal brutal acts as elaborated in paras Nos.24, 25, 26 and 33 of the plaint. (V) Declare the demarcation proceedings initiated by defendants Nos.3 to 6 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 No,122 of 2000 filed by 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 17-9-2001 and further declare that the order dated 17-9-2001 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 plaintiffs proportionately by the defendants Nos.1 to 5 and 7 to 10(i). (VIII) Grant mandatory injunction, suspend the operation of the order dated 14-2-2008 passed by the defendant No,13, letters dated 24-5-2008 and 28-5-2009 issued by defendant Nos.2 and cancelled the proceedings bearing SROA No,110 of 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 farm 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 honourable court deems fit and proper under the circumstances of the case may kindly be passed. (XIII) Grant any other relief(s), which this honourable court deems fit and proper under the circumstances of the case. 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
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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-1, 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 No,122 of 2000 before the Member (Judicial), Board of Revenue, which was dismissed in default on 17-9-2001. 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 14-2-2008. 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 22-6-2005 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 manoeuvered 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 26-5-2009 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 28-3-2009 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 VII, Rule 10, C.P.C. 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 Courts 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.
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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, C.P.C. 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 person am 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 VII, Rule 10, C.P.C. As provided tinder Order XLIX, Rule 3, C.P.C. The impugned judgment is based on assumption that the plaint could be returned in exercise of power under Order VII, Rule 10, C.P.C. He also argued that Order XLIX, Rule 3, C.P.C. Specifically excludes the applicability of Order VII, Rule 10, C.P.C. To a High Court in the exercise of its ordinary or extraordinary 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, C.P.C. 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 appellants/ plaintiffs have also prayed for damages and return of movable 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 sections 16, 17 and 20 C.P.C. 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 sections 16, 17 and 20 C.P.C. 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 paragraphs 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 actions were initiated and orders 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
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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 sections 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 Act, 1926. The jurisdiction of the High Court has been enlarged rather than restricted by removing altogether the restrictions contained in sections 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) (3) #TBS (4) (5) (5) (6) #TBE (7) 1991 CLC 684 (Shaikh Muhammad Ameen and Co. v. Provincial Industrial Development Corporation). In this matter, the learned Division Bench of this court discussed section 120 of C.P.C. And held that although the provisions of sections 16, 17 and 20 of C.P.C. 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 C.P.C. Have in no way restricted jurisdiction of High Court but on contrary, enlarge the same by removing restrictions, imposed under sections 16, 17 and 20 C.P.C. 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) C.P.C., 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/instalments. 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 spirit of section 20(c), C.P.C. Would
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become redundant, superfluous and would also negate section 3 of Financial Institutions (Recovery of Finances) 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 C.P.C. 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 sections 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 sections 16, 17 and 20 C.P.C. 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 C.P.C. From application to the High Court would not mean that the general principles governing section 20 of the C.P.C. 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 C.P.C. 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 C.P.C. Regulates the territorial jurisdiction of Civil Courts. However, section 120 of C.P.C. Provides that sections 16, 17 and 20 shall not apply to High Court in the exercise of its original civil jurisdiction. Since sections 16, 17 and 20 are 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 3 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 C.P.C., 1908, excludes applicability of sections 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 C.P.C. 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 C.P.C. Were not applicable to High Court in exercise of
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its original jurisdiction. Application under Order VII Rule 11 C.P.C. 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 C.P.C. Even if. Court had no jurisdiction in respect of ther reliefs claimed. (11) 2004 YLR 2525, (Mazhar Valjee v. Sher Afghan Than Niazi). In this matter the learned Single Judge held that a bare reading of section 19 C.P.C. 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…
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