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Petitioner: CHAIRMAN NABI QASIM INDUSTRIES PVT. LTD. VS Respondent: ROIDAD KHANHonorable Justice Muhammad Alam KhanSyed Asif Shah,Gohar Zaman Khan Kundi
2009 P L C (C
2009 P L C (C.S.) 275
[Peshawar High Court]
Before Muhammad Alam Khan, J
CHAIRMAN NABI QASIM INDUSTRIES PVT. LTD. through Attorney
Versus
ROIDAD KHAN
Civil Revision Application No.314 of 2006, decided on 15th September, 2008.
Specific Relief Act (I of 1877)---
----S. 12---Civil Procedure Code (V of 1908), O.VII, Rr.10, 11 & S.20--Suit for specific performance of service agreement and recovery of amount against the defendant---Question of jurisdiction of the court---Return of the plaint---Legal objections by defendant in written statement were that the Court 4 place "B" where suit was filed had no jurisdiction and the plaint was liable to be returned to the plaintiff for presentation to the proper court---Attorney for the defendant subsequently, filed an application under O.VII, R.11, C.P.C. on the ground that plaint was liable to be rejected as the cause of action had allegedly accrued to the plaintiff at place `K' and defendant was also residing at place 'K' and that civil court at place 'B', where suit was filed had no jurisdiction to entertain the suit---Trial Court rejected the plaint and simultaneously ordered that plaint along with documents and court-fee be returned to the. plaintiff for presentation before the court of competent jurisdiction---Appellate Court accepting said appeal, set aside impugned order of the Trial Court and sent the case to the civil court at place for disposal of the same on merits---Validity---Initial contract of service between the parties was executed at place `K' in which the terms and conditions of service of the plaintiff were determined and he had based his suit on that agreement---Relevant clause in the agreement pertaining to law suits, revealed that no legal proceedings would be entertained outside the place law suits against the company must be proceeded at place `K'---Said agreement was accepted by the plaintiff unreservedly by affixing his signature on the same---Jurisdiction of the courts was thus determined under provisions of S.20, C.P.C.---Defendant was residing at place `K', agreement of service was executed at that place and service of the plaintiff was also terminated at said place `K' which resulted in the accrual of the cause of action--Court at place according to service agreement executed between the parties, had the exclusive jurisdiction to try the suit between the parties---Impugned judgment and order of the Appellate Court, was set aside and that of the Trial Court was restored---Case was sent to civil court at place `B' with direction to return the plaint to the plaintiff for presentation to the proper court under O.VII, R.10, C.P.C.
Chaudri Mehtab Ahmad and others v. Mir Shakeel-ur-Rehman and 4 others 2004 MLD 662; WAPDA and 2 others v. Mian Ghulam Bari PLD 1991 SC 780; Ravi Glass Mills Limited v. ICI Pakistan Power Gen Limited 2004 YLR 2503; Messrs Father Motors Rawalpindi v. National Motors Karachi and 3 others 1992 SCMR 1174 and State Life Insurance Corporation of Pakistan v. Rana Muhammad Salim 1987 SCMR 393 ref.
Syed Asif Shah for Petitioner.
Gohar Zaman Khan Kundi for Respondent.
Date of hearing: 15th September, 2008.
JUDGMENT
MUHAMMAD ALAM KHAN, J.---Chairman Nabbi Qasim Industries Private Limited is aggrieved and dissatisfied from the order of the learned Additional District Judge, Bannu, dated 5-10-2006 in Appeal No.1/13 of 2006, through which the civil appeal filed by the respondent against the order of learned Civil Judge-III, Bannu, dated 17-7-2006, was allowed and the impugned order passed by learned Civil Judge-III, Bannu was set aside.
2. Briefly narrated, the facts of the case are that the respondent had filed a Civil Suit bearing No.47/1 for specific performance of agreement dated 1-6-2005 and consequent recovery of outstanding amount of Rs.3,51,037 against Chairman Nabbi Qasim Industries Private Limited.
This suit was registered by the learned Civil Judge as Suit No.47/1. The defendant was summoned who appeared before the Court and submitted a detailed written statement dated 8-4-2006. In para. No.1 of the written statement, a specific legal objection was raised with respect to the fact that the Court at Bannu had no jurisdiction and the plaint was liable to be returned to the plaintiff for presentation to the proper Court. On 24-4-2006 the attorney for the defendant-petitioner filed an application under the provisions of Order VII, rule 11, C.P.C. on the ground that the plaint is liable to be rejected as the cause of action had allegedly accrued to the plaintiff at Karachi and the defendant is also residing in Karachi, thus, the Civil Court at Bannu had no jurisdiction to entertain the instant suit. The learned trial Court, after calling for replication and hearing the learned counsel for the parties, accepted the application of the defendant-petitioner vide order-sheet No.9 dated 17-7-2006 and rejected the plaint and simultaneously ordered that the plaint along with documents and court-fee be returned to the plaintiff for presentation before the Court of competent jurisdiction. The main reason which prevailed with the learned trial Court was that the defendant is residing at Karachi whose Head Office is also situated there, thus, the Civil Court at Bannu lacks the jurisdiction. Consequently the impugned order was passed.
3. Roidad Khan plaintiff-respondent being aggrieved from the said order, filed an appeal before the Appellate Court which came up for consideration before the learned Additional District Judge-II, Bannu through Civil Appeal No.1/13 of 2006 who accepted the appeal and while setting aside the impugned order of the learned trial Court, sent the case to the Court of Senior Civil Judge, Bannu for disposal of the same on merits. Chairman Nabbi Qasim Industries Private Limited, petitioner-defendant, has come up in revision to this Court.
4. It was argued by learned counsel for the petitioner that the agreement between the parties had been executed at Karachi where the Head Officer of the Company is also situated and furthermore, the cause of action also arose at Karachi, thus, the Civil Court at Bannu had no jurisdiction to entertain the suit filed by the plaintiff-respondent. It was also submitted that the initial contract for service was executed at Karachi wherein it was specifically mentioned that any dispute between the parties shall be exclusively triable by the Civil Court at Karachi. Reliance was placed on the case of Chaudri Mehtab Ahmad and others v. Mir Shakeel-ur-Rehman and 4 others 2004 MLD 662.
5. On the other hand, learned counsel for the plaintiff-respondent submitted that the application submitted by the defendant-petitioner was under the provisions of Order VII, rule 11, C.P.C. which provision of law is meant for rejection of the plaint and not for the return of the plaint for presentation to the proper Court. It was also submitted that the learned trial Court had not applied its mind to the facts and circumstances of the case and on -one hand, ordered that the plaint is rejected but at the same time, ordered the return of the plaint for presentation to the proper Court which order was contradictory and that is why, the learned Appellate Court has rightly set aside the said order. It was also submitted that clause 13 of the agreement of service, where the exclusive jurisdiction has been conferred on the Courts at Karachi, will not invest the Court at Karachi with jurisdiction, as the party cannot confer jurisdiction on a Court, where the Court does not possess the inherent jurisdiction according to law and any agreement between the parties, conferring jurisdiction on a particular Court will be violative of the provisions of section 28 of the Contract Act and will be void to that extent. It was also submitted that the defendant-petitioner had principal office at Karachi, but a subordinate office at District Bannu and .thus, the Civil Court at Bannu had also the jurisdiction. Reliance in this respect was placed on the judgment handed down in the case of WAPDA and 2 others v. Mian Ghulam Bari PLD 1991 SC 780 and Ravi Glass Mills Limited v. ICI Pakistan Power Gen Limited 2004 YLR 2503.
6. I have heard the arguments of learned counsel for the parties and have given my anxious consideration to the facts and circumstances of the case.
7. Perusal of the record reveals that .the initial contract of service between the parties was executed on 8th March, 1994 at Karachi in which the terms and conditions of service of the plaintiff-respondent were determined and he has based his suit on this agreement. According to clause 13 of the agreement pertaining to law suits, no legal proceedings will be entertained outside Karachi, law suits against the Company must be processed at Karachi. This agreement of service was accepted by the plaintiff-respondent unreservedly by affixing his signature on the same. The jurisdiction of the Court is determined under the provisions of section 20, C.P.C. which is reproduced in verbatim as under:---
Section 20 Other suits to be instituted where defendants reside or cause of action arises.--- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction---
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or the cause of action, wholly or in part, arises.
Explanation I.--- Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence.
Explanation II.--- A corporation shall be deemed to carry on business at its sole or principal office in Pakistan or, in respect of any cause of action arising at any place where it has also a subordinate office, at such places."
The above reproduction of section 20, C.P.C. would show that the place of suing will be the place where the defendant resides or carry on business or work for gain or the cause of action arises. In case a person has permanent dwelling at one place and temporary at the other place, will be deemed to reside at both the parties in respect of any cause of action arising at a place where he has such temporary residence. However, in view of explanation II (ibid) the Corporation shall be deemed to carry on business at the principal office in Pakistan or with respect of any cause of action arising at any place, where it has also a subordinate office at such place.
8. Admittedly the defendant is residing at Karachi, the agreement of service was executed at Karachi and services of the plaintiff-respondent were also terminated at Karachi which resulted in the accrual of the cause of action. If the cause of action arises at the principal office as well as at the subordinate office and parties enter into an agreement and by consent confer jurisdiction on the particular Court in order to avoid the unnecessary raising of objection to jurisdiction, the same will not be either against the public policy or violative of section 28 of the Contract Act. In this case the cause of action had exclusively arisen at Karachi and clause 13 of the agreement of service, where the parties agreed to the jurisdiction of the Civil Court at Karachi, was not void as laid down in the case of Messrs Father Motors Rawalpindi v. National Motors Karachi and 3 others 1992 SCMR-1174, State Life Insurance Corporation of Pakistan v. Rana Muhammad Salim 1987 SCMR 393 and Chaudry Mehtab Ahmad's case 2004 MLD 662. Thus, the Court at Karachi according to the service agreement dated 8-3-1994 executed between the parties had the exclusive jurisdiction to try the suit between the parties.
9. In view of the facts and circumstances of the case narrated above, the revision petition is accepted and the impugned judgment and order of the Additional District Judge, Bannu, dated 15-10-2006 is set aside and that of the learned Civil Judge-II, Bannu, dated 17-6-2006 is restored. The case is sent to the Civil Judge-II, Bannu with direction to return the plaint to the plaintiff-respondent for presentation to the proper Court under Order VII, rule 10, C.P.C. Roidad Khan plaintiff-respondent, is directed to appear before Civil Judge-II, Bannu on 13-10-2008. Record of the case be sent to the concerned Court forthwith. No order as to costs.
10. Above are the reasons for my short order, dated 15-9-2008.
H.B.T./27/P Order accordingly.