2022 PLP 762 (MLD)

MUZAMIL AKHTAR SHABIR, J.

Through this first appeal against order the appellant has called in question order dated 09.03.2020 passed by learned Additional District Judge, Khanewal whereby in a suit for recovery of money filed by the respondent against the appellant on the basis of two cheques amounting to Rs.45,50,000/- in total, the application filed by the appellant under Order VII, Rule 10, C.P.C., for return of plaint to be presented in the Court having territorial jurisdiction to entertain the same, has been dismissed.

2. It has been contended by learned counsel for the appellant that as per the plaint, the applicant who was defendant in the suit for recovery, resides in Tehsil Mailsi, District Vehari, where the lease agreement between the parties was executed and the Bank account of the appellant from where the cheques have been allegedly issued is also in Tehsil Mailsi, District Vehari, therefore, the Court at Khanewal has no jurisdiction to entertain the suit for recovery filed by the respondent.

3. To resolve the dispute, Sections 20 and 21 of Code of Civil Procedure, 1908 may be referred, which are reproduced as under: "

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, at the time of the commencement of the suit actually and 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 (c) 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 place.

21. Objections to jurisdiction.

No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice."

4. It is observed that although the petitioner/ defendant is a resident of Tehsil Mailsi, District Vehari and lease agreement between the parties is stated to be executed in the same tehsil/district and cheques subject matter of the suit, were also issued and drawn on Bank situated there but said cheques were presented for encashment and dishonoured at Habib Bank Limited, Main Branch, Jamia Masjid Road, District Khanewal, therefore, cause of action has partly arisen in District Khanewal. In similar situation, where cheques were issued in one district and dishonoured in other district, the Superior Courts have held that suit can not only be filed at the place where the defendant resides or carries on business or works or has a branch office where cause of action has accrued but the same can also be filed in the district courts in the territorial jurisdiction of which the said cheques were presented in the other Bank by the plaintiff for encashment and were dishonoured. The judgments on the said issue are discussed below.

5. In Hussain Bakhsh Awan v. Anjum Farooq (2013 MLD 769) it has been laid down by the Sindh High Court as follows: "

10. It is an admitted fact on record that the appellant in the title of the plaint has shown his residential address as Kasba Colony, Mangopir road, Karachi, West and such leave has been granted by the trial court at the time of framing of issues. Therefore, in view of stated factual and legal position, I am of the opinion that the appellant while carrying on his business and residing within the local limits of Karachi West, could be sued within the local limits of District Court of Karachi West, which rightly assumed jurisdiction and could determine the controversy involved in the suit."

6. In Muhammad Aslam Motiwala v. Messrs Quice Food Industries Ltd. (2009 CLD 830), the Hon'ble Sindh High Court in a suit for recovery of money on the basis of cheques has held as under: "For the purpose of ascertaining, as to whether this Court has territorial jurisdiction or not to entertain and adjudicate upon the matter in between the parties, it is to be examined as to whether the respondents are running their business wholly in N.W.F.P. or are running their business at Karachi through their branch office, as section 20, C.P.C. postulates about filing of the suit at both places where the defendants are running their business wholly or partly or the place where the cause of action accrued wholly or partly."

7. It has further been held in Muhammad Aslam Motiwala's case (supra) that Plaintiff company was running its business at Karachi through its branch office memorandum of understanding between the parties was signed in Karachi, five cheques were issued and passed on to the plaintiff at Karachi, three cheques were drawn at Bank at Karachi and two cheques were drawn at Islamabad but in the said cases also the bank at Karachi had informed the plaintiff about its dishonouring by the bank at Islamabad. The letter head of the Respondent also provided address of one of its branch at Karachi, where the defendant was running his business wholly or partly. In these circumstances, it was held that question of territorial jurisdiction would be decided on the basis of case set up by the plaintiff and not on the basis of defence taken by the defendant and consequently held that courts at Karachi where the plaintiff had filed recovery suit were competent to try the same."

8. In Abrar Ahmed v. Shaikh Zahoor Ahmed (2008 CLD 1288), the Hon'ble Singh High Court has observed as under:- "The defendant in his written statement has taken the plea of jurisdiction and states that the suit at Karachi is not maintainable as the transaction took place at Multan. In this matter the cheques were dishonoured at Karachi and the cause of action has accrued at Karachi. According to section 20, C.P.C. the suit can be filed where defendant reside or cause of action arises. The objection of jurisdiction has no relevance."

9. In Hamid Shehzad, Managing Director v. Muhammad Sohail Saeed (2005 YLR 3226), Hon'ble Peshawar High Court has held as under:- "

4. The Code of Civil Procedure lays down in unambiguous terms that the suit shall be filed in the Court where cause of action has wholly or partly arisen. The dispatch of cheque by the Petitioner to the Respondent to D.I. Khan and the communication of the fact of dishonor by the Bank at D.I. Khan was a major cause of action and therefore, the Court at D.I. Khan shall have the territorial jurisdiction in this matter. It has been held in several precedents that the jurisdiction of a Civil Court extends to any matter where even a fraction of cause of action has accrued within its territorial jurisdiction."

10. In Riaz Hussain Shahid v. Additional District Judge, Multan and 2 others (2005 YLR 266(2)), the Hon'ble Lahore High Court has held as under:- "

7. The relevant para of the plaint where the factum of accruing of cause of action is disclosed is para 6, which is reproduced for ready reference:- "In this para, the respondent has not specifically pleaded that the disputed cheques were issued to her within the territorial jurisdiction of Multan Civil Courts, therefore, the argument being put forward by the learned counsel for the respondent is an afterthought. Otherwise, the property in dispute situates in Mailsi, the Bank for which the cheques were issued is also situated in Mailsi, the said cheques were dishonoured by the said Bank in Mailsi. Therefore, for all practical purposes, the cause of action, if any, had arisen to the respondent within the territorial jurisdiction of Civil Courts at Mailsi and not at Multan."

11. The perusal of Sections 20 and 21, C.P.C., and the principles laid down in the judgments reproduced above lead to the legal position that jurisdiction to decide a suit between the parties vests in the court in district, (i) within the local limits of whose jurisdiction the defendant or each of the defendants where there are more than one at the commencement of suit actually and voluntary reside or carry on business or personally work for gain; and (ii) where the cause of action wholly or in part arises.

12. The contention of the appellant that the petitioner/defendant is a resident of Tehsil Mailsi, District Vehari and lease agreement between the parties was executed in the same tehsil/district and the cheques, subject matter of the suit, were also issued and drawn on the Bank situated there, hence, recovery suit can only be filed in Tehsil Mailsi, District Vehari, does not appear to be very convincing in the present case as the cheques issued by the appellant were presented for encashment and dishonoured at Habib Bank Limited, Main Branch, Jamia Masjid Road, District Khanewal, therefore, cause of action has partly arisen in District Khanewal. In similar situation, where cheques were issued in one district and dishonoured in other district, the suit can not only be filed at the place where the defendant resides or carries on business or works or has a branch office where cause of action has accrued but the same can also be filed in the district in the territorial jurisdiction of which the said cheques were presented in the other Bank by the plaintiff for encashment and were dishonoured as courts at both the places would have concurrent jurisdiction. In such situation, the respondent would have the option of choice of forum for filing recovery suit on the basis of doctrine of election, which not only is applicable to the available remedies but also to the available forums, if they have concurrent jurisdiction to try a matter within its jurisdiction subject to exception of mala fide choice of forum which has to be established by pleading details of such mala fide whereas in the present case the appellant has not pointed out any such mala fide of the respondent to file recovery suit at District Khanewal. It is settled by now that question of territorial jurisdiction would be decided on the basis of case set up by the plaintiff and not on the basis of defence taken by the defendant. The dishonour of cheques in the bank situated in district Khanewal where the respondent presented it for encashment was a major cause of action for filing of the instant recovery suit, therefore, the courts at Khanewal had concurrent jurisdiction with the courts at Tehsil Mailsi, District Vehari to entertain the recovery suit filed by the respondent.

13. In view of the foregoing, as it is held that the courts in both the districts have concurrent jurisdiction to entertain the suit and the respondent had option to choose the forum for filing the said suit in any one of the districts having concurrent jurisdiction to entertain the suit which exercise of choice of forum by the respondent cannot be objected to by the appellant except on the ground of mala fide to be established by him which has not been done, therefore, there was no reason to allow the application of the appellant to return the plaint of the suit filed in District Khanewal to be presented before courts at Tehsil Mailsi, District Vehari. Consequently, the application for return of plaint filed by the appellant has rightly been declined by the learned Additional District Judge, Khanewal which order being well within the jurisdiction of the Court based on proper appreciation of record, besides being in accordance with law, does not suffer from any illegality, error of law or jurisdictional defect, hence the same is not liable to be interfered by this Court.

14. For what has been discussed above, this appeal being devoid of merits is dismissed in limine. MH/A-25/L Appeal dismissed.