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Petitioner: Mrs. SHAMSHAD BEGUM and another VS Respondent: Syed IFTIKHAR HUSSAIN JAFARI and JUDGMENT
Court Name: Sindh High Court Judge(s): Arshad Hussain Khan, Munib Akhtar Title:Mrs. SHAMSHAD BEGUM and another vs Syed IFTIKHAR HUSSAIN JAFARI and
JUDGMENT
Reported As: 2018 CLC 1795 Result: Appeal dismissed Judgment JUDGMENT ARSHAD HUSSAIN KHAN, J.---Through this High Court Appeal, the appellants have assailed the order dated 19.12.2013 passed by the learned Single Judge of this Court in Suit No,1673 of 2006, on an application under Order VII Rule 11, C.P.C. In the event, the plaint of suit filed by the appellants/plaintiffs was directed to be returned to the plaintiff for presentation before the court of appropriate jurisdiction. 2. Brief facts leading to the filing of the present appeal as averred therein are that the appellants/plaintiffs are the legal heirs of (Late) Syed Altaf Husain (hereinafter referred to as the deceased) who owned several agricultural lands including lands in Sujawal and Jatti, District Thatta (suit land). The appellants applied for letters of administration being SMA No,106 of 2002 in this Court in respect of all the properties of the deceased, which was granted on 03.09.2002. In the aforementioned SMA, the Nazir of this Court was directed to mutate the immovable properties of the deceased in the name of his legal heirs and in pursuance thereof the Nazir wrote letters to the Executive District Officer Revenue Thatta to mutate the aforesaid agricultural lands in the name of the appellants but respondent No,4, the then Mukhtiarkar Sujawal, District Thatta, avoided to do the needful on one pretext or the other. It is also averred that respondent No,1 (defendant No,1 in the suit) a step-brother of the deceased, having ulterior motives to grab the properties of the deceased, intervened in the said SMA and alleged that appellant No,2 is not the son of the deceased. It is also it respondent No,1 forged the signature of the deceased on a Decimation and Confirmation of Oral Gift dated 10.11.2000 and got his name mutated in the relevant record and thereafter sold the land in Sujawal to respondent No,2, vide sale deed dated 10.8.2004. It is also
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averred that appellants came to know about the fraud and forgery in the month of May 2006, when an application was moved for obtaining Form-VII in respect of the agricultural lands of the deceased, therefore, appellants filed the aforesaid Civil Suit No,1673 of 2006 (said suit) in this Court for declaration, cancellation, permanent injunction, damages and possession. Respondent No,2 upon receiving notice of the said suit, besides filing Suit No,1723 of 2017 before this court, filed an application under Order VII Rule 11, C.P.C. for rejection of the plaint on the ground that the suit was barred under section 16, C.P.C. The appellants/plaintiffs opposed the said application. The learned Single Judge, after hearing counsel for the parties, vide its order dated 19.12.2013 disposed of the application and the plaint of suit filed by the appellants/plaintiffs was directed to be returned to the plaintiff for presentation before the court of appropriate jurisdiction. The said order of the learned Single Judge is impugned in the present appeal. 3. Upon notice of the present appeal, only respondent No,2 came forward and contested the appeal. 4. Learned counsel for the appellant, during the course of arguments, has contended that the order impugned in the present proceedings is not sustainable as the same is bad on facts and law both; inasmuch as the learned Single Judge while passing the impugned order failed to apply his judicial mind and also failed to, consider the relevant law on the point. Further contended that the document described as Declaration and Confirmation of Oral Gift was fabricated and the signature of the deceased was forged thereon at Karachi, hence the cause of action initially accrued at Karachi within the jurisdiction of this Court. Further contended that the said suit is maintainable at Karachi as the same was filed for 'wrong to the lands of the appellants and also for compensation and admittedly respondent No,1 who committed wrong, resides at Karachi. Further contended that according to section 120, C.P.C., provisions of Section 16 are not applicable to High Court in exercise of its original civil jurisdiction and, therefore, the restriction of section 16, C.P.C. will not be-a bar to the trial of the suit by this Court. It is further stated that the learned Single Judge while passing the impugned order has incorrectly interpreted sections 16 and 120, C.P.C. and that since the appellant has challenged the fraud committed by defendant No,1, at Karachi, hence this Court has the jurisdiction to try the suit filed by the appellant. It was further argued that the subject suit was essentially filed under Section 39 of the Specific Relief Act and appellant's basic relief in the suit was regarding cancellation of gift deed, which was obtained through fraud, whereas other reliefs were consequential to the said relief. It is also argued that the learned Single Judge while passing the impugned order relied upon the case of Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqui and 14 others (2011 CLC 1176), whereas the facts of that case were not relevant as in that case no cause of action accrued at Karachi. Furthermore, learned Single Judge also relied upon the judgment reported in 2003 SCMR 990, wherein section 120 was not under consideration. It is also argued that judgments reported in PLD 1964 Karachi 11 and 2003 CLC 1183, though were exactly on the points and applicable to the case of the appellant, however, the learned Single Judge failed to consider the same. Learned counsel in support of his stance has relied upon the following case law. (PLD 1964 Karachi 11) West Pakistan Industrial Development Corporation y. Messrs Fateh Textile Mills Ltd. In this case, the suit was challenged on the ground that the property in dispute, namely, Talpur Textile Mills consists of extensive lands heavy machinery, looms, spindles and buildings, being immovable property situated at Tando Muhammad Khan in Hyderabad Division of West Pakistan, outside the ordinary Civil Jurisdiction of this Court and the suit could not be filed here at Karachi and further the defendant company is registered under the Companies Act with its registered office at Kali Road, Hyderabad and all its Directors were also ordinarily residents of Hyderabad. It was therefore urged that the suit being for possession of the property in question this Court had no
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jurisdiction to entertain it, and therefore it was prayed that the plaint be returned to the plaintiff. The learned Single Judge while disposing of the application under Order VII Rule 10, C.P.C. has held that "Sections 16, 17 and 20 and clause 42 of the Letters, Patent prescribe 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 of 1926. It is my view that 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 the West Pakistan High Court (Chief Court of Sindh) altogether, since the High Court got that jurisdiction as a place of suing through these sections. Two alternative conclusions can arise from the non-applicability of sections 16, 17 and 20, C.P.C. to the High Courts. Firstly that the West Pakistan High Court could not entertain any suit, whatsoever, and secondly, it could entertain suits from all places within its jurisdiction. It is true that all the District Courts except Karachi District Court have no limit prescribed to their pecuniary jurisdiction. The present suit could, therefore, be filed at Hyderabad. The question for decision, however, before me is whether it could not be instituted in the High Court at Karachi. The restrictions prescribed by sections 16, 17 and 20, C.P.C. having been removed the original jurisdiction of the High Court is enlarged and it has jurisdiction to entertain the present suit." 2003 CLC 1183 Gulfam and others v. Bibi Qudsia Begum. The learned Single Judge in this case, inter alia, held as under: "The original civil Jurisdiction of this Court can be exercised to entertain a suit with one or 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 rationale 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 of 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 situate 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." 2012 CLC 507 Haji Riaz Ahmed through Attorney v. Messrs Habib Bank Limited through its President and 2 others. in this case the plaintiff filed suit for recovery of amount before this court against the appellants in respect of fraud committed in the account of the plaintiff maintained at HBL Panjgur Branch, Baluchistan. The HBL filed application for return of plaint on the ground that alleged cause of action had accrued to the plaintiff at Panjgur, Baluchistan, therefore, this court had no territorial jurisdiction to entertain the suit and thus the plait having been barred by law is liable to be returned. The learned Single Judge of this court, (one of members of this bench namely Mr. Justice Munib Akhar) while discussing the scope of sections 16 to 20 and 120 of C.P.C. in detail has held under: "In the ordinary course, the jurisdictional rules that apply to a court exercising original civil jurisdiction are the statutory rules laid down in sections 16 to 20, C.P.C. Since section 120 has displaced the statutory rules in relation to a High Court a gap has obviously been created, as no court can function without having any rules at all as to how its jurisdiction is to be exercised. The gap has perforce had to be filled in by judicially evolved jurisdictional rules. The question therefore is what jurisdictional rules are discernible from the case-law as having been developed by this Court for the exercise of its original civil jurisdiction. The relevant judgments are conveniently gathered in Naveed Aslam II (at pp. 1185 to 1194 (paras 11 and 14)). Most of these are single Bench
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decisions of the Court. In my view, when the cases are analyzed, the primary rule that appears to have been evolved and applied by the Court is that if the cause of action has arisen, either wholly or in part, at Karachi, then the original civil jurisdiction of the Court can be invoked. As is at once obvious, the jurisdictional rule developed by the Court is no different from the statutory rule embodied in section 20(c), C.P.C. The rule was applied in a number of single Bench decisions, and expressly recognized by a Division Bench of the Court in Shaikh Muhammad Amin and Co. v. Provincial Industrial Development Corporation 1991 CLC 684, (hereinafter referred to as "Muhammad Amin") where it was held as follows:-- "Although the provisions of sections 16, 17 and 20 of the Code of Civil Procedure 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 limits of the jurisdiction." (at pg. 688) This decision was distinguished on the facts in Naveed Aslam II (at pg.1199). In my respectful view, for reasons that will presently be stated, the decision in Naveed Aslam II can in fact be regarded as a clarification of the rule laid down in Muhammad Amin." "In my respectful view, the combined effect of the two Division Bench decisions can be stated as follows. Muhammad Amin has expressly articulated, recognized and laid down the primary jurisdictional rule judicially evolved and applied by the Court, namely, that a suit will lie on the original side if the cause of action has accrued wholly or partly at Karachi. Naveed Aslam II has clarified that this rule does not extend as far as some Single Bench decisions have taken it, namely, even in respect of disputes relating to immovable property located outside Karachi if it could be said that the cause of action arose here, in whole or in part. Those decisions have seen expressly overruled, and it is now clear that a suit will not lie in this Court on its original side in such a situation. The position that therefore emerges from the case-law is that notwithstanding the displacement of the statutory jurisdictional rules by section 120, the judicially evolved rules have developed, and are continuing to develop, in the same direction as the statutory rules. In other words there is, at the very least, a convergence of the two sets of rules. When the widely accepted principle that section 120 has served to enlarge and not to curtail the jurisdiction of the Court is also taken into consideration, the result, in my view, is clear. The original civil jurisdiction of the Court cannot in any manner be regarded as less than the jurisdiction available under the statutory rules. As presently relevant, the statutory rules can be regarded as conferring jurisdiction in at least two situations. Firstly, the civil court will have jurisdiction if the cause of action arises, in whole or in part, within its local limits. This is, in effect, the Muhammad Amin rule as clarified by Naveed Aslam II. Secondly, the civil court will have jurisdiction if the defendant ordinarily works for gain or resides within the local limits of the court's jurisdiction and this is so irrespective of where the cause of action has accrued. This statutory rule has of course, to be read and applied in conjunction with the two Explanations to section 20. In my view therefore, the original civil jurisdiction of this Court must also be regarded as extending to the situation where the defendant ordinarily resides, or work for gain, in Karachi. Equally, in the case of a corporation, if it has its principal or head office at Karachi this Court would also have jurisdiction. This would be so regardless of whether the cause of action has accrued at Karachi or not. Any other view would necessarily result in a loss and curtailment of the Court's jurisdiction and in my view that is not a result that the law countenanced by applying section 120 to the High Court. The above said decision was subsequently upheld by the learned Division Bench of this Court in the un-reported case HCA No, 204 of 2011 Habib Bank Limited and another v. Hall Riaz Ahmed and another. The learned Division Bench of this Court while upholding the decision of the of learned Single Bench has held that since the appellant is having its Head Office in Karachi therefore the jurisdiction in the case cannot be questioned merely on the ground that sections 16, 17 and 20 C.P.C. are not
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applicable to the present proceedings. The accrual of cause of action, even partly, within the territorial jurisdiction of a court creates jurisdiction to grant relief to plaintiff. AIR 1950 Federal Court 83 Messrs Moolji faith and Co. v. The Khandesh Spinning and Weaving Mills Co. Ltd. In this appeal the questions before the court was in two parts (i) What is the true construction of expression 'suit for land' in Clause 12 of the Letters Patent, which prescribes the ordinary original civil Jurisdiction of the High Court at Bombay and (ii) Whatever be the true meaning of expression 'suit for land' in Clause 12, whether the plaint, as framed, and the two reliefs in particular relating to Jalgaon properties make it a suit for land. In accordance with the opinion of the majority of the Court, the appeal was dismissed. The majority of the court has held that the suit was not suit for land within the meaning of C1.12. All that the plaintiffs sought in regard to the lands at Jalgaon was the fulfillment of the personal obligation which it was claimed, the law cast upon the defendants to hold the properties for benefit of the plaintiffs and to execute the necessary instruments conveying to them the legal title in those properties, an obligation arising out of the fiduciary relation between the parties and the circumstances, relating to the acquisition of the properties as alleged in the plaint. And as the defendants resided and carried on business in Bombay and were thus amenable to the jurisdiction of the High Court, that Court could act in personam and compel the defendants to fulfill their fiduciary obligation though such fulfillment had reference to lands situate outside the jurisdiction. PLD 1959 (W. P.) Lahore 932 Nur Muhammad v. Mst. Karim Bibi. In this appeal filed by the appellant against a decree of the Civil Judge, 1st Class, Toba Tek Singh, declaring void a deed of gift executed by respondent, the sister of the appellant, in favour of the appellant. The learned Division Bench while discussing question of maintainability of suit raised by the appellant, inter alia, has held as under: "The technical objection to the form of the suit has' been repeated before us. It was urged that the plaintiff should have sued for possession of 7/24th share which she inherited from her father. There is no force in this objection. So far as 1/24th share is concerned, not only the right of the plaintiff but her possession to this extent has been conceded. So far as 7/24th share, is concerned, the plaintiff has sued for cancellation of the deed of gift. Under section 39 of the Specific Relief. Act, any person against whom exists a deed which is either void or voidable can file a suit to have the deed adjudged void and the right to file such a suit is not conditional upon seeking any further relief to- which the party may be entitled. The condition about further relief exists only in section 42 where a declaration is sought. A suit for cancellation is not filed under section 42 of the Specific Relief Act but under section 39, which creates an independent right. Even though the plaintiff does become entitled by virtue of the cancellation of the deed to possession of the property, she is not bound to sue for possession in this suit. In fact, learned counsel for the appellant has been forced to concede that in a suit under section 39 the plaintiff is not bound to ask for further relief. He contends, however, that the relief of cancellation being an equitable and discretionary relief, we should refuse to exercise this equitable jurisdiction in favour of the plaintiff unless she sued even for the further relief which is open to her. It is surprising that the appellant should appeal to us in the name of equity. There is no equity in refusing the relief to a sister, from whom a brother has secured a gift by the use of undue influence." 5. On the other hand, learned counsel for respondent No,2 during the course of arguments has contended that the order impugned in the present proceedings is well within the four corners of law and equity, hence does not warrant any interference by this court in the present appeal. It is also argued that under Section 16 of Civil Procedure Code, the civil suits are to be filled where the subject matter of the suit is situated. Per learned counsel in the present case suit property is
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situated at Sujawal, District Thatta and the sale deed was also executed and registered at Sujawal in the office of Sub-Registrar. Besides, respondents Nos,2 to 6 are also residents of Thatta District. It is also argued that all the prayer clauses in the suit are independent, which clearly attract the provision of section 16 of C.P.C. Furthermore, there was nothing in the pleadings, which could suggest that basic relief of the plaintiff was cancellation of gift deed whereas other reliefs were consequential reliefs. In the circumstances, the suit filed by the appellants/plaintiffs was not maintainable and the learned Single Judge by applying correct law rightly returned the plaint of the said suit. Learned counsel in support of his arguments relied upon the following case law. 2003 SCMR 990 Haji Abdul Malik Khan and 10 others v. Muhammad Anwar Khan and 26 others, In this appeal the judgment of Peshawar High Court Abbotabad Bench was challenged whereby the plaint was returned under Order VII Rule 10, C.P.C. The Hon'ble Supreme Court while discussing the issue has held that if a suit involves dispute relating to the rights in the immovable property, such suit will be maintainable at the place where property is situated and if the relief does not relate to the rights and interest in the property and is confined only to the extent of an ancillary matter, can be filed at the place where the cause of action wholly or partly arose. 1991 CLC 684 Messrs Sh. Muhammad Amin and Co. v. The Provincial Industrial Development Corporation In this case the learned Division of this bench while discussing the scope of sections 16 to 20 and 120 of C.P.C. has held that section 120 of the Code of Civil Procedure provides that the provisions contained in sections 16, 17 and 20 of the Code shall not apply to the High Court in exercise of its original civil jurisdiction. Section 16 of the Code of Civil Procedure relates to the recovery of immovable property, partition of immovable property, foreclosure, sale or redemption in the case of mortgage of or charge upon immovable property, determination of any right or interest in the immovable property, compensation for wrong to immovable property and for recovery of movable property actually under distraint of attachment. Section 17 deals with the situation where an immovable property in respect whereof a suit is to be filed to obtain relief for compensation of wrong to an immovable property and it provides that where the property is situated within the local limits and jurisdiction of two Courts the suit could be filed in any one of such Courts. Section 20 provides that a suit is to be instituted where defendant or defendants reside or cause of action arises. Although the provisions of sections 16, 17 and 20 of the Code of Civil Procedure 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 limits of the jurisdiction. PLD 2010 Karachi 261 Muhammad Naveed Aslam and 3 others v. Mst, Aisha SiddiQui and 14 others. Subsequently upheld by the learned Division Bench of this court in the case reported as 2011 CLC 1176 Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqul and 14 others. In this case the learned Division Bench of this court while discussing the sections 16 to 20 and 120 of C.P.C. in the light of various decisions on the issue has, inter alia, held in the case as under: "According to our understanding of law, the provisions of Order VII, Rule 10 are mandatory in nature and adjudication by a court without jurisdiction is coram 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 immovable property and the recovery of movable property. The relief claimed in the suit and its nature falls within the purview of section 16 of C.P.C. 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, C.P.C.
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provides that sections 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…
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