2002 PLP 1783 (MLD)

Rasheed Ahmed Qureshi, Asstt. A.‑G. for Respondents Nos.7 to

13. Abdul Jabbar Khaskheli for Respondent No.

14. Date of hearing: 8th July, 2002. This revision application under section 115, C.P.C. is directed against the order dated 3‑4‑2001 passed by the 1st Additional District Judge, Hyderabad in' Miscellaneous Civil Appeal No.36 of 1999, whereby he allowed the said appeal and resultantly the order dated 27‑9‑1999 passed by the Senior Civil Judge, Tando Allahyar in F.C. Suit No.86 of 1998, whereby an application under Order 7, rule 10, C.P.C. moved by the present applicants was allowed and plaint in the suit was ordered to be returned to the private respondents for presentation before the Court having jurisdiction in the matter, was set aside. Relevant facts forming the background of this litigation are that on 12‑2‑1998 respondents Nos.1 to 6 filed a suit for Declaration and Permanent Injunction before the Court of Senior Civil Judge, Tando Allahyar, mainly seeking declaration in respect of order dated 27‑11‑1997 passed by the respondent No.10, being legal and binding on other official respondents, with consequential reliefs of permanent injunction. During pendency of the suit present applicants moved an application under Order 7, rule 10, C.P.C. on 13‑10‑1998, praying therein for return of plaint in the suit for want of territorial jurisdiction of the Court of Senior Civil Judge, Tando Allahyar in the matter. Plaintiffs/respondents Nos. l to 6 and some other respondents in the suit filed objections to such application, which was eventually heard and disposed of by order dated 27‑7‑1999, whereby plaint in the suit was returned to the plaintiffs for presentation before the Court having jurisdiction in the matter. The order of lower Court referred to above was challenged by respondents Nos.1 to 6 through Miscellaneous Appeal No.36 of 1999, which was heard by the 1st Additional District Judge, Hyderabad, who by his order dated 3‑4‑2001 allowed the said appeal and remanded the case back to the Senior Civil Judge, Tando Allahyar to decision on merits. Though this Revision Application is fixed today for Katcha Peshi and hearing of listed application but with the consent of learned counsel for the parties I have heard it finally and the same is being disposed of by this order. Mr. Naimatullah Soomro learned counsel for the applicants read before this Court the two orders, one passed by the Senior Civil Judge, Tando Allahyar and others by 1st Additional District Judge, Hyderabad and contended that the jurisdiction of Civil Court is ordinarily regulated by sections 15 to 19 of C.P.C. and section 20, C.P.C. is the residuary section which only comes into play and is applicable in a situation where the suit instituted before the Civil Court is not covered by preceding sections 15 to 19 of C.P.C. to fortify his submission he placed reliance on the case of Muhammad Jewan and another v. Syed Abdul Qasim and 3 others (1979 CLC 186). He further contended that in this case admittedly the lands belonging to the parties and the disputed watercourses are situated within the ter6torial limits of Civil Court at Tando Muhammad Khan, where already F.C. Suit No. 14 of 1998 instituted by the applicants is pending f or adjudication in respect of the same dispute, therefore, subsequent suit filed by respondents Nos. 1 to 6 at Tando Allahyar, seeking declaration, in respect of order of respondent No. 10 is not maintainable at Tando Allahyar as even the office of respondent No. 10 is situated at Hyderabad. He also contended that mere fact that as per allegations of respondents Nos. l to 6 made in the plaint that they were informed about suck order by the respondent No. 12 at Tando Allahyar has not given any cause of action to these respondents to file their suit at Tando Allahyar. Referring to case of Malik Khizar Hayat Khan v. Punjab Province (PLD 1955 Lahore 88) he urged that dispute relating to water is attaching to the lands which are irrigated from such water and therefore on this ground too only the Court at Tando Muhammad Khan has jurisdiction in the matter. Learned counsel referred to the contents of the plaint to emphasise that all the reliefs claimed in the suit emanate from the relief of declaration with reference to the order dated 27‑11‑1997 and thus the Court at Tando Allahyar has no territorial jurisdiction to decide such dispute. As to the maintainability of this Revision Application Mr. Soomro referred the case of Saheb Khan through Legal Heirs v. Muhammad Panah (PLD 1994 Sc 162) and contended that where the 1st Appellate Court's order is based on wrong proposition of law then such order can be validly interfered with by the High Court in exercise of its revisional jurisdiction. Mr. Hassan Mehmood Baig learned counsel for the respondents Nos. 1 to 6 controverting the above submissions emphasized on the concept of cause of action in respect of civil disputes and vehemently contended that even if fraction or part of cause of action has accrued within the territorial jurisdiction of Civil Court Tando Allahyar then by virtue of section 20, C.P.C. the jurisdiction of that Court will be extended to entertain the suit. Referring to the averments of respondents Nos. l to 6 in the plaint learned counsel contended that it has been categorically stated by the respondents Nos. I to 6 that the order dated 27‑11‑1997 passed by the respondent No. 10, regarding which declaration has been sought in the suit was communicated by the respondent No. 12, who had called them for this purpose through respondent No.

13. As the office of respondents Nos. 12 and 13 is situated within the territorial jurisdiction of Civil Court at Tando Allahyar, therefore the Court at Tando Allahyar has jurisdiction in the matter. In support of the contentions learned counsel placed reliance on the cases. Faqir Muhammad v. Pakistan through Secretary, Ministry of Interior and Kashmir Affairs Division, Islamabad (2000 SCMR 1312), Sardar Muhammad Sarwar Khan v. Shaukat Zaman Khan (1999 CLC 954) and Miss S.K. Jan v. Delta Shipping (Pvt.) Ltd. and others (1998 MLD 1551) and Agha Mehboob Shah v. Baluchistan through the Secretary to Government and others (PLD 1982 Quetta 84). Last case is the one, which was squarely relied by the 1st Appellate Court to decide the fate of the appeal filed by the respondents Nos. l to 6 before it. Mr. Abdul Jabbar Khaskheli learned counsel representing the legal heirs of respondent No. 14 adopted the arguments of Mr. Hassan Mehmood Baig with the addition that watercourse through which the lands of respondents Nos. l to 6 are irrigated is situated within the territorial limits of Tando Allahyar and therefore for this additional reason the Civil Court at Tando Allahyar has jurisdiction in the matter. Mr. Rasheed Ahmed Qureshi, Assistant A.G,, Sindh representing the official respondents' did not support the impugned order of the Appellate Court and contended that the office of respondent No. 10 who had passed the order dated 27‑11‑1997, is situated at Hyderabad, therefore, mere fact that as per averments of the plaint such order was communicated to the respondents Nos. l to 6 by respondent No. 12 at Tando Allahyar will not give any cause of action to these respondents to, institute their suit at Tando Allahyar but the Civil Court at Hyderabad, will have jurisdiction to entertain the suit. I have carefully considered the arguments advanced by the learned counsel for the parties and perused the relevant provisions of law referred by them. In the instant suit, for giving jurisdiction to the Court at Tando Allahyar, the case of respondents Nos.1 to 6, as stated in the plaint, is that fifteen days before the filing of suit respondent No. 12 had informed them about the order passed by the respondent No. 10, therefore, the part of cause of action for filing of suit had accrued at Tando Alahyar. According to learned counsel for respondents Nos. l to 6 in such situation by virtue of section 20, C.P.C. Civil Court at Tando Allahyar has jurisdiction in the matter. To examine this aspect of the case if the provisions of sections 16 and 20, C.P.C. are carefully examine then it will be seen that subsection (d) to section 16, C.P.C. provides that subject to pecuniary or other limitations prescribed by any law suit for the determination of any other right to or interest in immovable property is to be instituted within the territorial jurisdiction of the Court where the immovable property is situated, while section 20, C.P.C. unambiguously provides that for the purposes of jurisdiction this section will only be applicable' subject to the limitations as prescribed in the preceding sections 15 to 19, C.P.C. which relate to place of suing in civil suits. In my view the dispute as to the supply of water agitated in the suit emanates from the lands, which are or to be irrigated from such water, therefore, it is relevant that the Court should see that where such lands are situated In the present case admittedly the agricultural lands of the respondents Nos. l to 6 and the watercourse regarding which the dispute has been agitated are situated beyond the jurisdiction of Court at Tando Allahyar. The order with reference to which declaration has been sought was also passed by the respondent No. 10, who has his office at Hyderabad. Thus, looking to these aspects of the case the Court at Tando Allahyar has no jurisdiction the matter. As to the allegations contained in the plaint that cause of action accrued at Tando Allahyar it may he observed that there is no cavil to this legal principle that for examining the applicability of Order 7 rule 10/11, C. P. C averments made in the plaint are to be taken is correct at the same time reading of plaint for this purpose should not be formal in nature but it should be meaningful, practical and realistic. Mere statement of respondents Nos. l to 6 in the plaint that order of respondent No. 10 was communicated to them by respondent No. 12 at Tando Allahyar, therefore, part of cause of action accrued at Tando Allahyar and a Court at Tando Allahyar has thus jurisdiction in the matter cannot be accepted. It will be seen that the term 'cause of action' used in section 20, C.P.C. with reference to the jurisdiction of Court relates to the fact or allegation giving rise to a claim or infringement of some right of a party and not to a notional or imaginary assertion in that context. The respondents have failed to show any substantive grievance or infringement of their rights by the respondents Nos.12 and 13, therefore, mere communication of older passed by respondent No. 10 on 27‑11‑1997 by respondent No. 12 as disclosed in the plaint, has not given any cause of action or part of cause of action to the plaintiffs/respondents Nos.1 to 6 to make an attempt to give colourful jurisdiction to the Court at Tando Allahyar on the basis of such assertion. The contention of Mr. Abdul Jabbar Khaskheli that as the office of defendants Nos. 6 and 7/respondents Nos. 12 and 13 is situated within the territorial limits of Court at Tando Allahyar, therefore, by virtue of section 20, C.P.C. jurisdiction vests with that Court has also no force as use of words. `actually and voluntarily resides', `carries on business' and `personally works for gain' refer to natural persons and not to legal entities viz. Government. This view is fortified from the case of Sardar Muhammad Sarwar Khan v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 2 others (1986 CLC 2173) wherein Court observed as under:‑‑ "The word `reside' should be taken to refer to natural persons because this word denotes living of a person where he dwells, sleeps, and eats, therefore, it shall be taken to refer to natural persons and not to legal entities such as Government. The word `carries on business' as used in section 20, C.P.C. apply to a commercial concern which has its principal office at one place and branches at various places but all of those do the business for profit. These words cannot be extended to apply to the Government, which spends lacs of rupees for its servants who are posted at various places to maintain law and orders, to adjudicate upon the case between the parties, to provide medical aid and essential food commodities to the public. The word `works' has been qualified with the word `gain', therefore, it also refers to those persons who on their free‑will work to earn gains and it excludes those who work to promote the interest of others and are not entitled to share the return of their labour such as convicts who, during the terms of their sentence, do a lot of labour which fetches handsome money to the jail authorities but not a penny to them." The lower Court in its order dated 27‑9‑1999 had taken into account all these aspects comprehensively for ordering return of plaint but the 1st Appellate Court in its impugned order not only did not assign any cogent or valid reason for setting aside the order of the lower Court but also misapplied the case of Agha Mehboob (supra), which is quite distinguishable. As observed above, in the present case mere formal statement of respondents Nos. l to 6 with reference to the act of respondent No. 12, informing them about the order dated 27‑11‑1997 passed by the respondent No. 10, has not given any cause of action to them within the jurisdiction of Civil Court at Tando Allahyar. The 1st Appellate Court while passing the impugned order against the applicants exceeded its jurisdiction and acted illegally and with material irregularity. Thus the impugned order calls for interference in the revisional jurisdiction of this Court. Accordingly this revision application is allowed. In the result, the order of Appellate Court dated 3‑4‑2001 is set aside and the order passed by the lower Court dated 27‑7‑1999 stands restored. Q.M.H./M.A.K./A‑356/K Revision allowed.