2003 PLP 364 (MLD)

This revision petition under section 115, C.P.C. is directed against the order, dated 14‑3‑1998 passed by Civil Judge 1st Class, Lahore, whereby the petitioners' application under Order VII, rule 10 read with sections 16 and 20 of the C.P.C. was dismissed.

2. I have heard the learned counsel for the parties and have also seen the record.

3. The relevant facts are that the respondents instituted a declaratory suit at Lahore on 18‑2‑1997 alleging that they were awarded the work order of Rehabilitation of IRA/7‑R at Bahawalnagar, vide office acceptance Letter No.84 dated 2‑8‑1991, against a tender at Bahawalnagar by XEN, Hakra Division, Bahawalnagar, that the rehabilitation work was almost completed by the plaintiff No. 1, but because of the non‑cooperation of the defendants, the payments of its bills were not made to the plaintiffs, that another tender was published in the newspapers in respect of the execution of the rehabilitation work of 3R Distillary R.D. 0‑55 and IR‑/3R Minor and the same was awarded to the plaintiff again by the defendant No.2, vide acceptance Letters Nos.221‑22 dated 25‑1‑1994, that the total amount of work was Rs.22:38 lacs, that the defendants got completed the works but stopped the payments and rescinded the agreement vide letter No.2826/65‑W dated 1‑9‑1994. It was, therefore, prayed that it .be declared that the plaintiffs had completed the works mentioned above and the above said rescinding letter was illegal and that the defendants be directed to pay a sum of Rs.20,30,192 plus 20% profits above Bank rates from 2‑8‑1991 onwards, with costs. The petitions/defendants filed an application under Order VII, rule 10, read with sections 16 and 20, C.P.C. on 27‑1‑1998, alleging that the subject‑matter of the suit belonged to District Bahawalnagar, the site concerned is situated. in Tehsil Haroonabad. District Bahawalnagar, the cause of action arose in Bahawalnagar but the plaintiff had malafidely instituted the suit at Lahore and the same required to be sent to the Civil Court at Bahawalnagar. The application was contested by the respondents though no written reply was submitted by them and the learned Civil Judge, Lahore, as mentioned above, dismissed the application on 14‑3‑1998. Hence, the revision petition, which also accompanies an application under sections 5 and 14 (C. M. No. 1‑C of 1998) of the Limitation Act and section 151, C. P. C. for the condonation of delay.

4. It is submitted by the learned counsel for the petitioners that the tenders for rehabilitation of the canals were called at Bahawalnagar by respondent‑defendant No.2/XEN Hakra Division, Bahawalnagar, the tender was approved by Superintending Engineer, Canals, Bahawalnagar, the estimate of the work was approved by the Chief Engineer, Bahawalpur, the rescinding order was passed at Bahawalnagar, the site at which the works were to be completed by the respondents, are situated in Tehsil Haroonabad, District Bahawalnagar and this shows that the cause of action wholly arose at Bahawalnagar and the Civil Courts of Lahore have no territorial jurisdiction to entertain the suit and the trial Court acted illegally in dismissing the petitioners application under Order VII, rule 10, C.P.C. In regard to period of limitation, it is submitted that on the supply of the certified copy of the impugned order, appeal was immediately filed erroneously in the Court of District Judge, Lahore, due to a mistake committed by the Deputy District Attorney, which was treated as a revision petition by the Additional District Judge and as soon as the same was returned to the petitioners due to the lack of pecuniary jurisdiction, it was filed in this Court after observing administrative requirements and making necessary amendment/correction in the memorandum of revision petition and, therefore, the delay, if any, in filing the present revision petition merits condonation.

5. The learned counsel for the respondents, while opposing the contentions, has submitted that defendant No.1 is Province of Punjab, who has been impleaded through Secretary Irrigation, Civil Secretariat, Lahore and the Secretary Irrigation, Government of the Punjab has the control over the budget, therefore, the' Civil Courts at Lahore have the territorial jurisdiction to try the suit. The learned counsel for the respondents has not addressed any arguments on the petitioner's application (C.M. No.1‑C of 1998) under sections 5 and 14 of the Limitation Act for the condonation of delay.

6. The facts narrated above show that the cause of action arose Wholly at Bahawalnagar and the learned trial Court has dismissed the petitioners application only because the defendant No.l/the Province of he Punjab has been impleaded through Secretary Irrigation, whose offices are situated at Lahore, without realizing that the Secretary Irrigation played no role in the award of the works to the respondents. The work orders were issued at Bahawalnagar. The sites at which the works were carried out, are situated in Tehsil Haroonabad, District Bahawalnagar and the rescinding letter was also issued at Bahawalnagar. The subject‑matter of the suit has, therefore, no concern at all with Lahore. The Civil Courts of Lahore have, therefore, no jurisdiction to try the present suit. It may further be added here that the trial Court overlooked the fact that the Government does not carryon any business in relation to its normal function of Government. It does not reside at any particular place nor does it personally work for gain, as both these terms, as employed in clauses (a) and (b) of section 20, C.P.C., are used with reference to natural persons, as such these clauses are inapplicable in the case of Government and clause (c) of section 20, C.P.C. is the only clause applicable in the case of a suit against the Government, which provides that suit shall be instituted in a Court within the local limits of whose jurisdiction "the cause of action, wholly or in part, irises". In Pakistan v. Waliullah Sufyani (PLD 1965 Supreme Court 310), it was held with reference to the provisions of section 20, C.P.C., that a Government neither resides anywhere nor carries on business nor works for gain. The impugned order passed by the trial Court, therefore, cannot be sustained in law. In regard to the condonation of delay in filing the present revision petition, justifiable reasons have been given in the application for the condonation of delay, which is supported with an affidavit of Executive Engineer, Hakra Canal Division, Bahawalnagar. The application has not been contested through any written reply and there is no counter‑affidavit. The delay has occurred mainly due to the reason of the filing of the appeal before the wrong forum. It may further be added here that had the District Judge or the Additional District Judge returned the appeal/revision to the petitioners, on the day when it was presented before it for its presentation before this Court, the revision could have been filed in this Court in time. The application for condonation of delay is, therefore, accepted and the delay in filing the present revision petition is condoned.

7. In view of the abovementioned, revision petition is accepted with costs throughout, the impugned order, dated 14‑3‑1998 passed by the Civil Judge, Lahore, is set aside, the petitioners' application under Order VII, rule 10, read with sections 16 and 20 is accepted and the respondents/plaintiffs' plaint is directed to be returned to them for its presentation before the Civil Courts at Bahawalnagar or Haroonabad, as he case may be. I.B.T./P‑116/L Revision accepted.