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Petitioner: Messrs LAND MARK ASSOCIATES through partner VS Respondent: SINDH INDUSTRIAL TRADING ESTATE LTD. through Chief Executive Officer and another
Court Name: Sindh High Court Judge(s): Muhammad Junaid Ghaffar Title:Messrs LAND MARK ASSOCIATES through partner vs SINDH INDUSTRIAL
TRADING ESTATE LTD. through Chief Executive Officer and another Case No.: Suit No, 247 of 2008 Date of Judgment:2018-01-09 Reported As: 2018 YLR 2143 Result: Plaint returned Judgment ORDER MUHAMMAD JUNAID GHAFFAR, J.---The matter has been listed for orders as to maintainability of this Suit in view of the Order passed on 13.04.2017, which reads as under:-- 1. Counsel for the plaintiff undertakes to file counter affidavit to this application during course of the day with advance copy to the learned counsel for the interveners. Rejoinder, if any, shall be filed before the next date with advance copy to the other side. 2 to 4. Counsel for the plaintiff is once again directed to satisfy the Court on the next date about maintainability of this Suit before this Court at Karachi. By consent, adjourned to 27.4.2017, when the matter shall be listed for orders as to maintainability. 2. It appears that in this matter when this Suit was filed the Office had also raised a similar' objection regarding the maintainability of this Suit in view of the fact that the property in dispute is situated in. District Jamshoro and therefore the Suit is to be filed before the Court of Senior Civil Judge, Jamshoro at Kotri. 3. Learned Counsel for the Plaintiff has contended that in view of the Office objection the matter was placed before the Court and the Office Objection No,(ii) regarding territorial jurisdiction of this Court was overruled, and therefore, a subsequent objection on 13.4.2017 so raised by another Hon'ble Judge was unwarranted. He has further submitted that once a judicial order has been made the same cannot be reviewed suo motu in this manner, whereas, the Defendants have also failed to raise any such objection. Per learned Counsel propriety demands that an order passed by a Judge having jurisdiction, should not be disturbed and should always be kept intact. Learned Counsel has further submitted that Defendants Nos,1 and 2 were debarred in this matter on
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04.12.2008 and the matter was listed for final disposal, whereas, affidavit in evidence for ex-parte proof has already been filed, but suddenly an intervener's application has been filed bearing C.M.A.No,5253/17 on 30.03.2017, which is delayed by more than 14 years, and apparently on the pointation of the learned Counsel for the Intervener, the Court has once again raised the above objection. Learned Counsel has submitted that this Court being a Court having original civil jurisdiction for the entire province can take and assume jurisdiction in this matter, notwithstanding the fact that the property is situated in District Jamshoro. Per learned Counsel there is a series of Judgments, whereby, it has been observed that this Court has jurisdiction in such matters. He has further contended that by virtue of section 120, C.P.C., the provisions of sections 16, 17 and 20 C.P.C. are not applicable and therefore, the question of any territorial jurisdiction does not create any obstacle in exercising jurisdiction in respect of properties situated outside Karachi. In support of his contention learned Counsel has relied upon various judgments of this Court and has made his submissions that insofar as the case reported as PLD 2010 Karachi 261 (Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqui and 2 others) up held by Division Bench and reported as 2011 CLC 1176 (Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqui and 14 others) are concerned are not a good law, whereas, the matter is now pending before the Honorable Supreme Court, wherein, leave has been granted. He has finally submitted that in view of such position, the matter be referred to the Hon'ble Chief Justice for constitution of larger bench, so as to resolve the controversy. He has specifically relied upon 2016 CLC Note 132 [Sindh] (Muhammad Naved Aslam and others v. E.D.0 Revenue Jamshoro and others), 2012 CLC 507 (Haji Riaz Ahmed through Attorney v. Messrs Habib Bank Limited through President and 2 others), PLD 1997 Karachi 579 (Samir Oosman and 2 others v. Rex Talkies (Pvt.) Ltd.), 1988 CLC 59 (Messrs Agricides (Pvt.) Ltd. v. Messrs Ali Agro Supply Corporation Ltd.), PLD 1964 (W.P) Karachi 11 (West PakistanIndustrial Development Corporation v. Messrs Fateh Textile Mills Ltd.), 1991 CLC 684 (Messrs Sh. Muhammad Amin & Co. v. The Provincial Industrial Development Corporation), 1982 CLC 110 (Abdul Kadir v. Mir Ashraf All Khan and 2 others) and 1985 CLC 2799 (Fauji Foundation and others v. Yousuf). 4. On the other hand, learned AAG has contended that the objection regarding territorial jurisdiction must be sustained as the property is situated outside Karachi and in support he has relied upon an Order dated 15.12.2016 passed in Suit No,421/1987. He has also relied upon the cases reported as 2016 YLR 157 (Muhammad Waseem Ghori and another v. Altaf Hussain Tunio and others), 2015 YLR 2277 (Mrs. Shamshad Begum and another v. Syed Iftikhar Hussain Jafri and others) as well as 2011 CLC 1176 (Muhammad Naveed and others v. Mst. Aisha Siddiqui and others) and PLD 2008 Karachi 536 (Ghulam Fareed v. Shahid-ud-Din Tughlaq). The Counsel for the Intervener has also made an attempt to assist the Court, however, since the intervener is not yet a party to this Suit, whereas, the objection has been raised by the Court itself, I have not permitted the learned Counsel to assist the Court as it is not appropriate at this stage of proceedings. 5. I have heard learned Counsel for the Plaintiff as well as learned AAG and perused the record. Insofar as the objection of the learned Counsel for the plaintiff regarding the order, whereby, the office objection was overruled and subsequently it has again been raised is concerned, I may observe that the question of maintainability specially in case of jurisdiction is a question, which is always alive and it is immaterial that whether the office has raised any objection to that effect or the objection was so raised has been overruled. The Court is fully competent to take notice of its jurisdiction and to see as to whether the Court has jurisdiction or not. This is always a preliminary issue which must be decided by the Court at the very first instance. Notwithstanding the above even otherwise on perusal of the record it reflects that though through Order dated 11.02.2008, the office objection was overruled; but it appears that the same was done without assigning any reasons. There is nothing in the order which could reflect that as to why the office objection was not sustained and overruled. It would be advantageous to reproduce the said order dated 11.02.2008,
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which reads as under:- 1. Learned counsel for the plaintiff, regarding office objection No,(1) submits that the plaintiff is a registered partnership firm and he will produce such certificate within one week. For the time being this objection is deferred. Regarding office objection No,(ii), the learned counsel submits that sections 16, 17 and 20 of the Code of Civil Procedure is not applicable to the High Court in view of section 120, C.P.C. He relied on the case of Wajjid Hussain Faruqui v. Shahida Shahnawaz and another (2007 CLC 394). As regards the other office objections learned counsel submits that the same have been complied with. In view of the above, this office objection is over ruled and the office is directed to register the suit. 2. Learned counsel for the plaintiff submits that the defendant No,1 is trying to encroach upon the land of the plaintiff's leased land. He further submits that the land of the plaintiff has been properly demarcated by way of fixing of poles around it. He prays that the defendant No,1 may be restrained from creating any third party interest in the suit property or to enter upon the land of the plaintiff. It appears that there is some dispute with regard to the proper demarcation of the land of the plaintiff. Mr Moinuddin Ahmed, Deputy Registrar (Judicial) is appointed commissioner to inspect the site of the plaintiff as well as that of the defendant and to properly demarcate the same with the help of the Survey Department after notice to the parties. Fee of the commissioner is fixed at Rs,10,000/- to be paid by the plaintiff. The plaintiff shall also be liable to pay any other expenses which may be incurred in taking assistance from the Superintendent Survey Department and for making maps/sketches. Notice to the defendants. In the meanwhile the defendants are restrained from creating any third party interest in the suit land or to enter upon the same. 6. Bare perusal of the aforesaid order does not reflect any reason to overrule the office objection and therefore, I am of the view that the Court has correctly taken up the issue of maintainability vide Order dated 13.04.2017 and the learned Counsel for the plaintiff has been put on notice to satisfy as to maintainability of the Suit, on which the learned Counsel has assisted the Court. In the circumstances, the objection of the Counsel for the plaintiff in this regard is overruled. 7. Insofar as the question of maintainability of a Suit in respect of exercising original civil jurisdiction in respect of a property situated outside Karachi is concerned the same has been settled by a learned Single Judge of this Court in the case reported as PLD 2010 Karachi 261 (Naveed Aslam-A), wherein, the learned Single Judge of this Court after tracing out the relevant history regarding conferment of jurisdiction on this Court has been pleased to hold that this Court does have any jurisdiction in respect of a property which is situated outside the Territorial jurisdiction of Karachi District(s). The relevant finding is contained in Paras Nos,10 to 15 and 22 which reads as under:- 10. Thus since 1906 the Highest Court of this Province has been exercising powers of original civil jurisdiction by functioning as the principal Civil Court for the district of Karachi (presently covering all districts of Karachi) where suits and proceedings of civil nature relating to any territorial limit of Karachi are entertained subject always to the pecuniary limit that is prescribed for such cases from time to time. To function as principal Civil Court for Karachi, Original Side was created in this Court at its principal seat where civil suits and proceedings are filed, heard and decided. 11. The laws which conferred original civil jurisdiction on this High Court clearly show that civil suits and proceedings of certain pecuniary value, which otherwise could only be filed in the District Courts of Karachi, became entertainable on the Original Side of this High Court. These laws in effect fixed the pecuniary jurisdiction of the Civil Courts of Karachi and beyond such pecuniary limit the jurisdiction was conferred to the Original Side of this Court. Except for the territorial limits of Karachi, no other area of Sindh was ever brought under the ambit of the original civil jurisdiction. It is for this reason that the Civil Courts falling beyond the districts of Karachi continue to exercise original civil jurisdiction of unlimited jurisdiction whereas the Civil Courts in the districts of Karachi exercise
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jurisdiction only to the extent which is lesser in value than that conferred on the Original Side of this High Court. Thus, it is quite evident that conferment of original civil jurisdiction on this Court throughout its history was confined to the territorial limits of Karachi provided always that the cause was of a prescribed amount and value. 12.The history of exercising original civil jurisdiction by certain High Courts of the sub-continent is much prior to the conferment of this jurisdiction on the Court of Judicial Commissioner in 1906 under section 2 of Bombay Act, 1906.The High Courts of Calcutta, Bombay and Madras were conferred with this jurisdiction much prior to conferment of this jurisdiction to this Court. The Bombay High Court was conferred original civil jurisdiction way back in 1863. The laws which confer original civil jurisdiction on the High Courts and the provisions of sections 16, 17 and 20 of Civil Procedure Code were bound to overlap each other, as the former calls for a suit to be filed on the Original Side of a High Court whereas sections 16 to 20 determine the Civil Court where suit is to be entertained. Keeping this in mind, section 120 of Civil Procedure Code was enacted. Section 120 of C.P.C. reads as follows:-- 120. Provisions not applicable to High Court in original civil jurisdiction.--(1) The following provisions shall not apply to High Court in the exercise of its original civil jurisdiction, namely sections 16, 17 and 20. 13.A bare reading of Section 120 of Civil Procedure Code show that firstly it makes sections 16, 17 and 20 of Civil Procedure Code inapplicable for the High Court in exercise of its original civil jurisdiction. The need to make sections 16, 17 and 20 of C.P.C. inapplicable to a High Court arose because the jurisdiction of Civil Courts under sections 16, 17 and 20 C.P.C. and the original civil jurisdiction of the High Courts under the then Letters Patent determine separate places where a civil suit and proceedings could be filed. Section 120 of C.P.C. was enacted to settle the conflict of sections 16, 17 and 20 of C.P.C. with the laws that conferred original civil jurisdiction on the High Courts and to obviate any confusion as regards place of suing. This can be understood through an example. Ordinarily a suit relating to a dispute of immovable property situated in Saddar, Karachi is to be brought in the Civil Court, which under the provisions of sections 16 and 17 of Civil Procedure Code has jurisdiction to try such suit. As the area of Saddar in Karachi falls within the limits of Police Station, Saddar which is in District East, Karachi, therefore the Civil Court which can try suits of area falling in Police Station Saddar becomes the place where such a suit is to be filed when sections 16 and 17 of the Civil Procedure Code are applied. However, if the same suit is of a value, which is more than three million rupees then by virtue of section 7 of Sindh Civil Courts Ordinance, 1962 the place of suing shifts to the Original Side of this High Court. In order to overcome this overlapping of jurisdictions, provisions of sections 16 and 17 of C.P.C. were made inapplicable under section 120 of C.P.C. so that these provisions may not come in the way of filing a civil suit or proceedings on the Original Side of this Court. Therefore, while entertaining a suit relating to immovable property emanating from the area of Saddar in Karachi having a value of more than three million rupees, the place of suing as determined under sections 16 and 17 of the C.P.C. becomes immaterial and is not to be considered as under section 7 of the Sindh Civil Courts Ordinance 1962, the Original Side of this High Court becomes the place of suing. Section 120 of C.P.C. can be interpreted only in this manner and not in a manner that any suit of more than three million rupees in value, coming from any part of the territorial jurisdiction of this Court viz. the entire Province of Sindh can be entertained on the Original Side of this Court. If the interpretation as given to section 120 of C.P.C. by the learned counsel for the plaintiff is accepted then every suit of a value above three million rupees relating to any part of Sindh has to be entertained on the Original Side of this Court. Such an interpretation would defeat the very purpose that created original civil jurisdiction in this High Court for the Districts of Karachi. While interpreting section 120 of C.P.C., the meaning of the words "in the exercise of its original civil jurisdiction appearing in that section should not be lost sight of which
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clearly mean that place of suing is not to be determined by sections 16, 17 and 20 but by the provision which confer original civil jurisdiction on this High Court. Now original civil jurisdiction is conferred on this Court under section 7 of the Civil Courts Ordinance, 1962 which is limited only for the territorial limits of Karachi. No other territory of this High Court comes within the ambit of the original civil jurisdiction prescribed under section 7 of the 1962 Ordinance. Therefore, if a suit does not fall within the ambit of original civil jurisdiction of this High Court then certainly the place of suing for such a suit is to be determined under sections 16 to 20 of Civil Procedure Code. What is actually meant by inapplicability of sections 16, 17 and 20 of C.P.C. to High Court under section 120 of C.P.C. is that High Court shall not apply these provisions to a suit if it comes under the ambit of section 7 of 1962 Ordinance i.e. sections 16, 17 and 20 of Civil Procedure Code shall not apply if a suit pertains to any part of the four Districts of Karachi and is valued at more than three million rupees. On the other hand, if a suit is filed in this Court which does not fall within the original civil jurisdiction of this Court i.e. it does not pertain to a dispute relating to any of the four Districts of Karachi or in not of a prescribed value 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 of Civil Procedure Code therefore only renders ineffective provisions of sections 16, 17 and 20 of C.P.C. to suits that can be entertained by this High Court in 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. 14. While discussing the real meaning and intent of section 120 of the Civil Procedure Code, it could occur in one's mind as to why only sections 16, 17 and 20 of Civil Procedure Code have been made inapplicable when the place of suing is also determined by sections 18 and 19 of the Civil Procedure Code. The reasons are these. Taking up section 18 of C.P.C. first, it provides that where there is uncertainty as to the local limits of two or more Courts and a suit is filed in anyone of them then upon its disposal, the decree would be regarded as if it was passed by a Court of competent jurisdiction. The object of enacting section .18 of Civil Procedure Code is to treat a decree passed by a Court to be legally valid even though there was confusion as to Courts' local limits and subsequently the uncertainty of limits is resolved and the area is found not be within the jurisdiction of the Court which passed the decree. In order not to disturb this legal position as envisaged by section 18 of Civil Procedure Code and not to render such decree a nullity, the provisions of section 18 of Civil Procedure Code were not made inapplicable under section 120 of Civil Procedure Code. Thus a suit valued at more than three million rupees even if it is filed on the Original Side of this Court on account of uncertainty of local limits and this Court decrees the suit then the decree would still be treated as valid and passed by a Court of competent jurisdiction though subsequently the uncertainty is resolved and the area to which the suit related is found to be part of Thatta. Thus, to keep such decree valid, Section 18 of Civil Procedure Code has not been made inapplicable to the original civil jurisdiction of the High Court under section 120 of Civil Procedure Code. 15. Section 19 of C.P.C. on the other hand gives an option to the plaintiff to sue for his claim for compensation for wrong done to him or to his movable property at the place where the wrong was done as well as at the place where defendant resides as provided in the illustrations to section 19 of Civil Procedure Code. Now section 19 of Civil Procedure Code has not been made inapplicable to the original civil jurisdiction of the High Courts under section 120 of Civil Procedure Code for the reason that legislature intended that options for the place of suing provided therein should not be taken away and remain available with the plaintiff. However, if one of the two options provided in section 19, C.P.C. is exercised in a manner that suit of a category falling under section 19, C.P.C., i.e. claim for compensation for wrong done to him or to his movable property is to be filed in Karachi then such a suit can be competently filed on the original side of the Court provided only if the
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amount or value of subject-matter of dispute is of prescribed value. Therefore, for these reasons i.e. to keep the options as to place of suing open for the plaintiff in suits relating to his claim for compensation for wrong done to person or to movable property, the provisions of section 19, C.P.C. have not been made inapplicable to the Original Civil jurisdiction of this Court under section 120 of Civil Procedure Code. 22. From the above discussion, the only conclusion that can be drawn is that whenever any suit is filed in this High Court and is found that it does not relate to any of the Districts of Karachi then irrespective of the fact that it is valued at more than three million rupees the same has to be returned back to the plaintiff for its presentation before a Court of appropriate jurisdiction under Order VII, rule 10 of Civil Procedure Code. It is not section .120 of the Civil Procedure Code but section 7 of the Civil Courts Ordinance, 1962 which confers original civil jurisdiction on this High Court and this jurisdiction being a special jurisdiction conferred under section 7 of the Sindh Civil Courts, 1962 Ordinance is limited for the matters that emanate from the territorial limits of the Districts of Karachi. Except for the Districts of Karachi no other territory falls under the Original civil jurisdiction of this High Court. 8. This judgment was appealed before a Division Bench of this Court and the same has been upheld in the case reported as 2011 CLC 1176 (Naveed Aslam-B). The relevant findings of the learned Division Bench are so stated in Paras Nos,31 and 32 which reads as under; 31. 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. 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 this Court at original side is only limited and confined to the districts of Karachi and if the arguments of the learned counsel for the appellants are accepted to be true, it will tantamount to the extension of original side jurisdiction of this Court to the entire Province of Sindh subject to its pecuniary limits of jurisdiction. Merely for the reason that respondent No,13 on the application of respondent No,1 instead of hearing the case at Hyderabad, heard the Case No,SROA.122 of 2000 at Karachi and passed the order dated 14-2-2008 at Karachi does not confer the territorial jurisdiction to this court on original side. 32. The non-applicability of sections 16, 17 and 20 read with Order XLIX, Rule 3 is only applicable and limited to the original side jurisdiction for the district of Karachi and when it is found that the property is situated outside the territorial jurisdiction of Karachi then sections 16 and 17 will automatically come into operation. The initial guiding principles for institution of various suits is provided under sections 16 to 19, C.P.C. whereafter section 20 has been provided for other suits to be instituted where the defendant resides or cause of action arises. In the present matter section 16 is…
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