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Petitioner: Mirza ABDUR RAHIM BAIG and anothers VS Respondent: ABDUL HAQ LASHARI and 3 others
Court Name: Sindh High Court Judge(s): Wajihuddin Ahmed Title: Mirza ABDUR RAHIM BAIG and anothers vs ABDUL HAQ LASHARI and 3 others Case No.: Civil MisCellaneous Application No,1408 of 1990 Suit No,582 of 1989 Date of Judgment:1994-05-19 Reported As: PLD 1994 Karachi 388 Result: Order accordingly
Judgment ORDER ' This is an application under Order 7, Rule 10, C.P.C. Filed by the defendant No,1 for return of the plaint. ' The suit is for recovery of Rs,2,00,000 by way of damages for wrongful detention. The plaint recites that plaintiffs, Mirza Abdul R ahim Baig and Syed All Ahmad Tariq, are practising Advocates of this Court, the latter being also an Advocate of the Supreme .Court of Pakistan. The plaintiffs are stated to command respect at the Bar, in particular and amongst the members of the public, in general. On 26-4-1988, the plaintiffs had to go to Sanghar in connection with Sessions cases. State v. Mukhtar Ahmed and others and State v. Khalil Ahmed, pending before the learned Sessions Judge at Sanghar. Mr.Ghulam Muhammad Shad, an Advocate from Mirpur Khas, also joined them. The cases were adjourned by the learned Sessions Judge on that day before 10-15 a.m. Defendant No, 2, Moulvi Ahmed Mian Hamdi, who is the complainant in both such cases, was present with his companion in the Sessions Court on the day and time aforementioned. He is claimed to have conspired with defendant No, 1, Abdul Haq Lashari, S.I.P., Sanghar Police Station, with mala fide intention to cause harassm ent and mental torture even to the Advocates, who were defending the refuted cases and had to go from Karachi to Sanghar each time the cases were to be taken up. There were, it is maintained, other cases as well against "Ahmedis" in District Sanghar, which were registered either on the complaints of defendant No, 2 or his associates and plaintiff Advocates were defending the said cases also. On the two cases in question being adjourned, the plaintiffs leaving the jeep in the Court compound and accompanied by Mr. Ghulam Muhammad Shad, Advocate, in the latter's car, wanted to go and see the Superintendent of Police (S.S.P.?) Sanghar, in connection with the harassm ent of "Ahmedis" of the area by' the police at the instance of
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defendant No, 2. But while they were still in the Court premises a heavy contingent of police, headed by the defendant No, 1, took the Jeep in custody and surrounded the car in which all the three Advocates were sitting. The defendant No, 1 addressed the plaintiff No, 2, proclaiming that he was under arrest and so also the other Advocates sitting in the car. The defendant No, 1, thereupon, opened the door of the car and entered it, with a threatening gesture as if he had arrested the culprits involved in a heinous offence. The Advocates demanded from him the warrant order of arrest, but the defendant No, 1 neither replied to the query nor showed them any such warrant or order of arrest. The plaintiffs claim that he had no authority, lawful or otherwise, for proceeding in the manner that he did at the sole instance of the defendant No, 2 who is disposed to harassing the Advocates so that they should give up the cases they are defending. The objective also, it is urged in the plaint, has been to get involved maximum number of 'Ahmed is" in Court cases, as in numerous cases the defendant No,2 is the complainant, and the police at P.S. Sanghar is supporting him, as if they are his subordinate functionaries and he is their boss. The plaintiff No, 2, on the occasion, informed the defendant No, 1 that they had to see the S.S.P., Sanghar personally in order to deliver him a letter which was endorsed in his name by defendant No, 3, Inspector-General of Police, Sindh. While such letter is stated to have been filed with the plaint, as Annexure 'A' thereto, in actuality only a draft dated 6-1-1988 addressed to the Inspector-General of Police, Sindh, by Mirza Abdul Rahim Baig, Advocate and Amir-e-Jamaat Ahmedia, Karachi, is so attached in which attention of the I.-G., Police defendant No, 3, is invited to the arrest of Khalil Ahmed, President of the Ahmedia Jamaat, Shandadpur, on the basis of F.I.R. No,170 of 1987 dated 27-12-1987, under section 295-C, P.P.C., lodged with P.S., Shandadpur by a person known as Allama Ahmed Mian Hamadi and cognate matters. Be that as it may, the defendant No, 1 brought all the Advocates to the office of the S.S.P., Sanghar where the defendant No, 2 was also present with his men. The Advocates were not allowed to see the S.S.P. Mr. Ghulam Muhammad Shad, Advocate was allowed to go but the two plaintiffs were taken, in a police van, by the defendant No, 1 to the police station. The plaintiffs, however, managed to send a telegram to the Hon'ble Chief Justice of the High Court of Sindh at Karachi, the Inspector-General of Police, Sindh and the Secretary of Karachi Bar Association informing them about the incident. A photo stat copy of such telegram is stated to have been filed, as Annexure 'B' with the plaint but none is found to have been so filed, Annexure 'B' being a letter dated 4-5-1988 of M/s. A.R. Mirza & Co., Advocates, addressed to the Inspector-General of Police wherein the incident of 26-4-1988 is recorded and an inquiry is solicited, copy being endorsed to the Home Secretary, Government of Sindh. Taking up the sequence of events, the defendant No,1 informed the plaintiffs that they had been arrested on account of sticker of Kalma-e-Tayyaba on the car in which the two Advocates had come from Karachi. He, further informed that the jeep had been taken into custody from the Court premises and was handed over to CIA Police, Sanghar. Such jeep, it is averred in the plaint, belonged to a friend of the plaintiffs, who is a Shia Muslim. Ultimately, the plaintiffs were taken to the S.S.P., Sanghar to whom they delivered the representation letter, which was addressed to I:-G. Police Sindh, who in turn had endorsed it to S.S.P., Sanghar. The plaintiffs reported the highhandedness of the defendant No,1 in collusion with defendant No,2, to the S.S.P. And thereupon they were allowed to go and take the jeep from CIA Police but the registration book was retained by the CIA. The defendant No,1 it is urged, thus dept. The plaintiffs in unlawful custody for more than four hours without any cause or reason and without registering any case against them. All this happened in the holy month of Ramazan, when temperatures were ranging between 37-38-C. The defendant No,2 is Khateeb of Jamia Masjid, Tando Adam, Sanghar and wields considerable influence with the local police functionaries, who are always at his back and call. Representations with regards to foregoing were avowedly addressed by the plaintiffs for action against the defendants Nos.1 and 2 defendants Nos.3 and 4, Inspector-General Police, Sindh, and Home Secretary, Government of Sindh, respectively but they did not care so much as even to
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make reply. Cause of action is stated to have arisen on 26-4-1988, on subsequent dates and finally on 6-6-1988 when the plaintiffs served legal notices. Judgment and decree is sought against the defendant jointly and severally, for the claim of damages in the sum quoted above. ' Written statements have been filed by the defendants separately. Defendant No,1 has maintained that he had neither gone to the Court premises nor he made any arrest, as alleged. The jeep in question was removed by the C.IA. Police, which transpired on an application of Moulana Ahmed Mian Hamadi, defendant No, 2, to the Inspector, C.IA. Sanghar, for inquiry on allegations that No,195- 527 was being used by "Qadiani" Advocates at various places in Sindh and that it was inconceivable that such jeep was perenially allocated by a Shia Muslim, as given. Out, for such purposes. The stickers of Kalma-e-Tayyaba were allegedly found affixed on the front as well as on all side glasses of the said jeep. As per police report, the Inspector, C.I.A. Brought the Jeep from the Court premises to the C.IA. Office. Later on, the plaintiffs, who visited such office, admitted the affixation of stickers of Kalma-e-Tayyaba. The stickers were removed and the jeep was handed over to the plaintiffs but the registration book was retained by C.I.A. Police for delivery to the Shia Muslim, its purported owner, as claimed by the plaintiffs. The suit, it is urged, is also mala fide at the instance of one Dr. Fazalur Rehman, who being a "Qadiani" and incensed against his Harts wanted to involve them in false cases and upon refusal, got annoyed and thus implicated the defendant. No, 1 in the suit. ' The defendant No, 2 has submitted a lengthy written statement, which need not be discussed in any detail as to the contents thereof, since that may lead to unnecessary controversy. At any event, such is not relevant, at this stage, for the purposes of the above application. Suffice it to say that the defendant No, 2 has dilated in detail about the "Qadiani" beliefs, as he considers them to be, the plaintiffs on purpose allegedly inflaming the feelings and sentiments of the residents of the area by affixation of the said stickers in violation of the letter and spirit of section 295-C, P.P.C. And the plaintiffs finally succeeding in retrieving the jeep in their use upon the technical and improved plea that the jeep belonged to a Shia friend, claimed to be a pretentious artifice calculated avowedly to circumvent and defeat the law. This defendant has also supported the defendant No, 2 in the plea that the jeep in question was rounded up, not by the defendant No, 2 but by the Inspector, C.I.A. Who also, it is urged, acted in due course of law. ' The defendant No, 3, in his written statement has denied having personally anything to do with the incident in suit or even having received any legal notice, as alleged by the plaintiffs. ' The defendant No,4 has, in effect, taken a defence similar to that of the defendant No,3. ' All the defendants, besides, have urged that the suit is non-maintainable for want of cause of action. The jurisdiction of this Court is disputed for want of territorial incidents and the plaint is sought to be returned for presentation to the proper Court. ' In support of the application under Order 7, Rule 10, C.P.C. Mr. Hashmar Ali has contended that this Court has no jurisdiction in the matter, no cause of action, if any, having arisen within its territorial limits, the main defendants admittedly residing and/or working for gain beyond such limits and the defendants Nos.3 and 4 manifestly having wrongly been joined, solely to provide as semblance of jurisdiction. On the other hand, Mr.A.R. Mirza, for the plaintiffs, opposing the application has maintained that in view of section 120 of the Code of Civil Procedure, the jurisdiction of this Court extends all over the province of Sindh and sections 16,17 and 20 of the Code of Civil Procedure cannot be restored to in order to curtail the original civil jurisdiction of this Court. ' In a recent case viz. Messrs Muslim Commercial Bank Ltd. v. Messrs Nisar Rice Mills, Lahore and another 1993 CLC 1627, I had occasion to deal with this precise argument, concerning section 120 of the Code and the exclusion thereunder of sections 16, 17, and 20 in the context of the Original Civil Jurisdiction of a High Court. This is how the subject was approached there:--
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"There can be no gainsaying th4 the restrictive postulates in sections 16, 17 and 20, C.P.C. Do not curtail the jurisdiction of this Court as a High Court as envisaged in section 120 of the Code. A High Court is competent to frame its own Rules regulating the procedure, as applicable to exercise of its Original Civil Jurisdiction, the only restriction being that these Rules, when framed should be in consonance with and not in derogation of the Letters Patent: Section 129 and Order 49, C.P.C. The Sindh Chief Court Rules (O.S.) and the High Court Rules and Orders are such Rules. None of these Rules appear to control the area territorially. Does this mean and imply that the Original Civil Jurisdiction of the High Court has no territorial constraints? Correspondingly, does the writ of the High Court extend even beyond the province and the capital of Federation ? For one thing, the very fact that each Province in the Federation is endowed with a High Court of its own connotes a territorial element. For another, each High Court having more than one Benches signifies another compartmentalization. Indeed the applicable Benches Rules cover the subject. ' Relevant to the Original Civil Jurisdiction of this Court confined to Karachi, none of the authorities on the subject lays down that this Court can entertain a suit in the exercise of its Special Original Civil Jurisdiction without one or more of the ingredients necessary to attract the jurisdiction of this Court, which while in view of section 120 of the Code of Civil Procedure has undoubtedly a very broad base yet there should always be some rationale to attract that jurisdiction. For this, in view of Article 2A in the Constitution and the Enforcement of Shariah Act, 1991, we may resort to the Islamic Fiqh or where the Common law and the Fiqh do not conflict even the common law. Either way there must be some jurisdictional facts necessary to invoke jurisdiction. These, on principle, may be either the defendants 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 a 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. In the absence of at least one of these aspects the jurisdiction would not be attracted. The presence of section 120 on the statute book cannot mean and was never meant to mean that a High Court covered by that section could exercise jurisdiction merely for the asking without any jurisdictional fact being pleaded or shown. 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 if such, on general principles, is otherwise attracted. This should also be the cumulative effect of Kashinath v. Anant, ILR 24 Born. 407, West Pakistan Industrial Development Corporation v. Fateh Textile Mills Ltd. PLD 1964 Kar. 11, Muhammad Balloch v. Water Oil Company, Law Notes 1969 Kar. 51, Muhammad Shabbir v. Abu Dhabi Petroleum Co. Ltd. PLD 1975 Kar. 138, Fauji Foundation v. Yousaf 1985 CLC 2799, Agricide (Pvt.) Ltd. v. Ali Agro S. Corporation Ltd., 1988 CLC 59, National Bank of Pakistan v. Gammon Pakistan Ltd., 1990 CLC 1139, Sh. Muhammad Amin & Co. v. P.I.D.C., 1991 CLC 684 etc. ' In this background and the jurisdiction of the Benches of the High Court being co-extensive with the main seat I have not found any jurisdictional fact pleaded in this suit, which would make the institution of the suit a proper institution at Karachi. Neither the defendants carry on business at Karachi nor the loan was advanced at Karachi nor its repayment was due at Karachi nor the mortgaged property is situate at Karachi. The ,defendants could, therefore, validly object to the institution of the suit 'here. In view, however, of the plaintiff itself conceding that a transfer might be made to the Sukkur seat of the High Court the defendants need not have taken the objection." ' For seeking exclusion of sections 16, 17 and 20 pursuant to the exception in section 120 of the Code of Civil Procedure and corresponding invocation of the Original Civil Jurisdiction of this Court, learned counsel for the plaintiffs in addition to the authorities drawn upon in the above extract, has referred to R.J. Wyllie & Co. v. Secretary of State AIR 1930 Lah. 818, Dominion of India v. Nath & Company, AIR 1950 Cal. 207, Azizuddin & Co. v. Union of India AIR 1955 Mad. 345, Pakistan v. Waliullah
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Sufyani PLD 1965 SC 310, Mehboob Shah v. Balochistan, PLD 1982 Quetta 84, Muhammad Sarwar Khan v. Azad Government J&K 1986 CLC 2173 etc. It is also urged that the broadening effect of the Original Civil Jurisdiction of this Court brought about in virtue of section 120 of the Code is to be matched with the exclusion of Order 7, Rule 10, C.P.C. As contemplated by Order 49, rule 3 of the Code and, in consequence, once a suit is filed and entertained on the original side of this Court the plaint cannot be returned for representation to any' other so-called proper Court. ' There does appear to be consensus of authority that section 120, C.P.C. Has excluded the applicability of sections 16, 17 and 20 of the Civil Procedure Code from the Original Civil Jurisdiction of the High Court. However, an element of doubt is encountered in the applicability of the perception to the peculiar jurisdiction exercised at Karachi on the Original Civil Side of this Court when it is observed that none of the case-law, referable in context, has ,taken into consideration the current binding dicta laying down that Original Civil Jurisdiction vesting in the Karachi Bench of this Court is not Ordinary Original Civil Jurisdiction, as such, but is jurisdiction of a special character. This emerges from the rule settled in Firdous Trading Corporation v. Japan Cotton and General Trading Company, PLD 1961 Kar. 565, dissented from in Razzak v. Usman, PLD 1975 Kar. 944 but revived and resurrected in the Province of Sindh v. Razzak 1991 SCMR 920, Akbar Hussain v. Aishabai PLD 1991 SC 985 and Pakistan Fisheries Ltd. v. United Bank Ltd. PLD 1993 SC 109, the last" of which opines that the power of the Principal Civil Court, of original jurisdiction to entertain and try civil suits directly at the Karachi seat of this Court is in relation to Civil District of Karachi" alone and does not extend to the "rest of the area of Sindh Province, falling within" the Court's territorial jurisdiction. ' However, the doubt, such as it is, can easily be resolved once it comes 'to be noted that section 120 of the Code excludes sections 16, 17 and 20 thereof not from the Ordinary Original Civil Jurisdiction of a High Court but generally, from its Original Civil Jurisdiction. What Original Civil Jurisdiction, as a concept involves, I had ventured to reflect upon in the case of Muslim Commercial Bank Ltd. (supra) where from the under-noted extract may be relevant:- "That this precise jurisdiction of a 'special nature' was alone not the subject of conferment under section 2(f)(ii) of the 1979 Ordinance is dear because the reference is not to Ordinary Original Civil Jurisdiction or to any Statutory Original Civil Jurisdiction but, pure and simple, to Original Civil Jurisdiction, as such, which jurisdiction may be termed as the genus of which Extraordinary Original Civil Jurisdiction under the Letters Patent, Ordinary Original Civil Jurisdiction Special or Statutory Original Civil Jurisdiction etc. Are species. Still, it must be noted that 'the expression Original Civil Jurisdiction is often used ,loosely as a synonym for ordinary original a Civil Jurisdiction or even Statutory Original Civil Jurisdiction. Thus, it is taken casually to denote the jurisdiction to try and decide a suit. A more accurate way to describe Original Civil Jurisdiction would be to connote a jurisdiction, attracting and embracing proceedings of a civil nature liable to' commence in a specified forum and designated to conclude in the same forum, subject to a right of appeal etc. Available elsewhere: D.F. Hassan v. Habib Bank Ltd. PLD 1974 Lah.117 (119)." It is thus clear that while the original civil jurisdiction, exercised at the principal seat of this Court at Karachi, may or may not be the Ordinary Original Civil Jurisdiction of this Court, it, nonetheless and in spite of its special character, is an original civil jurisdiction of the Court and in virtue of A section 120, C.P.C. The applicability of sections 16, 17 and 20 of the Code stands manifestly excluded in the exercise of that jurisdiction. To this extent Mr.A.R. Mirza seems to be right. ' However, Order 49, Rule 3, C.P.C. Is to be approached from a different angle. That provision, postulates that, inter alias Rule 10 of Order 7, C.P.C. Shall not apply to any High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. It would thus arise to be examined as to what was the legislative intent in using the expression "ordinary or extraordinary original civil jurisdiction" in rule 3 of Order 49. Could the same purpose be not served by merely repeating the expression original civil jurisdiction", as that phraseology had already occurred in section 120 of the
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Code? The various kinds of original civil jurisdiction have come up for examination in several decided cases. We have already noted the position of the original civil jurisdiction of this Court, as settled by the ease-law referred above. In the context of jurisdiction under Article 199 of the Constitution and its equivalents under the earlier Constitutional dispensations necessary judicial constructions are to be found in Ahmed Khan v. Chief Justice and the Judges of the West Pakistan High Court, PLD 1968 SC 171, Hussain Bukhsh v. Settlement Commissioner, PLD 1970 SC 1 etc, and it is well-established that such jurisdiction is not to be termed as the extraordinary original civil jurisdiction of the High Courts nor is it to be referred to as any special jurisdiction but is defined as "constitutional jurisdiction of original kind". Besides, from the other original civil jurisdictions, vesting in the High Courts under various statutes, one, which has drawn judicial attention, is under the Companies Ordinance. That, while it may be covered by the genus of original civil jurisdiction, is again not the ordinary original civil jurisdiction, of the Court: Eastern Company (Pvt.) Limited v. Gul Begum, PLD 4980 Lah, 69. As found In Re: Muslim Commercial Bank ibid Not very dissimilar is the position of the original civil jurisdiction conferred on a High Court by the Banking Companies (Recovery of Loans) Ordinance, 1979. What precisely is meant by extraordinary original civil jurisdiction, as distinguished from the ordinary original civil jurisdiction, a very useful discussion is to be found in a Full Bench decision of this Court in Asad All v. Settlement and Claims Commissioner, PLD 1974 Kar. 345. There Dorab Patel, J., then in this Court, who spoke for the Bench, said:-- "12. Clause 11 of the Letters Patent prescribed that the High Court of Judicature at Fort William in Bengal shall have and exercise ordinary original civil jurisdiction within such local limits as may, from time to time, be declared and prescribed by any law..." and it is sufficient to state here that the local limits prescribed were the boundaries of the city of Calcutta. Clause 12 of the Letters Patent empowers the Court to hear the types of suits specified in that clause and the result is that the Presidency High Courts had, in consequence, the power to try all suits affecting a land within their local limits and they also had jurisdiction on personam. It is not the extent of this jurisdiction which is important, but the fact that the Presidency High Courts were, in conse Tience, Courts of the first instance and heard and decided suits on the evidence recorded by them.. But they also had appellate jurisdiction for the Province under their Letters Patent, and as the highest appellate Courts of the Province, they had the power to remove, and to try and determine as a Court of extraordinary original jurisdiction, any suit... ...Whether within or without the Bengal Division of the Presidency of Fort William subject to its superintendence when the said High Court shall think proper to do so ' This jurisdiction is common to the Presidency High Courts and all the other High Courts, and it is described in the marginal note to the relevant clause in all the Letters Patent as the 'extraordinary original civil jurisdiction'. Thus, whilst all High Courts had, under their Letters. Patent, the extraordinary original civil jurisdiction, the ordinary original civil jurisdiction was the prerogative only of the Presidency High Court." ' It would thus seem that in relation to Order 49, Rule 3, C.P.C. The legislative intendment was to exclude the operation of the various provisions mentioned therein, including Order 7, Rule 10, only from the exercise of "Ordinary or extraordinary original civil jurisdiction of a High Court" and not, generally, from the broader ambit of its original civil jurisdiction as such which in contradistinction, as stated, was the subject of section 120 of the Code. Needless to recount that the original civil jurisdiction of this Court, exercisable at the main seat in…
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