2003 PLP 1183 (CLC)

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23. That property is situated at Hyderabad, Sindh, but, the cause of action arose partly, at Karachi on 14-6-1987, where and when, the talks with regard to sale of the bungalow took place and Mr. Bukhari the estate agent, gave to Mr. Dareshani a bogus cheque for Rs.50,000 issued by defendant No. 1 on account of advance, and on 19-6-1978, when the agreement of sale of the bungalow was got signed by the plaintiff, at Karachi, and subsequently, in the first week of July, 1978, when the above mentioned cheque was returned to the plaintiff, at Karachi, after having been dishonoured by the concerned bank and in the last week of October, 1978, when defendant No.2 and his father late Mr. Ghulam Nabi approached Mr. Dareshani at Karachi, for the purpose of a settlement, and on a number of subsequent dates, in the years following the service of notice, when defendant No.2 carried on talks for a settlement and got some documents signed by the plaintiff, at Karachi, on the basis of false promises, which he never fulfilled. Consequently this Hon'ble Court has the jurisdiction to try this suit.

24. That the reliefs claimed ate valued at Rs.800 for declaration and RS.30,00,000 for possession and at Rs.7,20,000 for mesne profits, and the maximum court-fee of Rs.15,000 is paid on the relief claimed in the suit. The admitted facts are that due to pendency of later suit in this Court the former was transferred to this Court to be tried with the latter suit on an application under section 24, C.P.C. Both suits have been amalgamated and evidence has been recorded in former suit treating it as leading suit. During the arguments, Sindh Civil Court (Amendment) Ordinance, 2002 was promulgated on 17th September, 2002, whereby sections 7 and 18(i) of Sindh Civil Courts Ordinance, 1962, were substituted by sections 2 and 3 of the amending Ordinance. The provisions of sections 7 and 18(i) now read as follows:--

7. Subject to this Ordinance or any law for the time being in force, the original jurisdiction of the Court of the District Judge in civil suits and proceedings shall be without limit of the value thereof excepting in the Karachi Districts where the original jurisdiction in civil suits and proceeding exceeding thirty lac of rupees shall be exercised by the High Court. 18.

(1) Appeals from Civil Judges.

(1) Save as aforesaid an appeal from a decree or order of a Civil Judge shall lie to the District Judge. In like manner, the words "five lac of rupees" wherever occurring in section 24 were substituted with the words "Thirty lac of rupees". By virtue of above amendments, the original pecuniary jurisdiction of District Judges and Civil Judges of Karachi have been raised to "thirty lac Rupees" instead of "five lac of rupees" and appeal from a decree or order of Civil Judges at Karachi to District Judge, value of which does not exceed "thirty lac rupees", whereas unlimited appellate jurisdiction to District Judges, other than Karachi, against the decree or order passed by Civil Judges. The Legislature intended to transfer the suits, appeals and proceedings of the value not exceeding original and appellate pecuniary jurisdiction of District Judge at and outside Karachi respectively pending in the High Court immediately before the commencement of the amending Ordinance by enacting section 5 in the amending Ordinance, which reads as follows:-- "

5. All suits, appeals and proceedings of the value of exceeding original or appellate jurisdiction of the District Judge at outside Karachi respectively pending in the High Court immediately before the commencement of this Ordinance shall stand transferred to the concerned District Judge for disposal." The combined effects of the above amendments, in the Sindh Civil Courts Ordinance by amending Ordinance, are that not only original jurisdiction of District Judges and Civil Judges has been raised up to thirty lac but the appellate jurisdiction of District Judges against the decree and order passed by Civil Judges at Karachi to that valuation and the District Judges in Sindh (except Karachi), have been conferred with appellate power against the decree or order passed by Civil Judge, without any pecuniary limitation. All suits, appeals and other proceedings of above valuations, pending in this Court including the Benches stand transferred to respective Courts conferred with the jurisdiction. Therefore, question has been raised that suits transferred by virtue of section 5 referred to above. I have heard the learned counsel for the parties. Contention of Mr. Iqbal Qazi, representing the plaintiff in Suit No.776 of 1990 was that the suits value not exceeding thirty lac rupees stand transferred by virtue of section 5 of the Amending Ordinance. The value of the Suit No.776 of 1990 exceeds "thirty lac rupees", therefore, the said suit is not affected by the amending Ordinance. His further contention was that Suit No.813 of 1992 was transferred to this Court in view of pendency of a suit in this Court on an application under section 24 of the C.P.C. and not due to lack of pecuniary jurisdiction. The Civil Courts other than Karachi, had not still have the unlimited pecuniary jurisdiction. His second contention was that the provisions of the amending Ordinance is in conflict with clause (2) of section 4 of the Karachi Courts Order, 1956 (President Order No.II of 1956) which is Federal enactment on a matter of concurrent list. Therefore, in terms of Article 143 of the Constitution, any inconsistency between the Federal and Provincial enactment, the, former has to prevail. Be that as it may, the Karachi Courts Order, 1956, is no more in the field as a consequence of repeal of Bombay Act, 1926 and the Karachi Courts Order, 1956 by Sindh Civil Courts (Amendment) Ordinance, 1981. Therefore, this plea is not available. Mr. Jhamat Jethanand, learned counsel representing the plaintiff in Suit No.813 of 1992, contention was that all the suits stand transferred under the law by virtue of section 5 and both cases stand transferred, as this Court has no jurisdiction on the basis of cause of action. His contention was that section 16 petmits that filing of suits of the nature detailed in clauses (a) to (i), subject to the pecuniary or other limitation permissible by any law, within the local limits of whose jurisdiction the property is situate except suits referred in clause (c) where the cause of action has accrued, the nature of the suits referred to in clause (c) are (1) for foreclosure, (il) sale, and (iii) redemption in case of mortgage of or charge upon immovable property. His further contention was that the present suits are not covered by clause (c) of section

16. Therefore, Karachi Court had no jurisdiction in the matter. It may be noted that the provisions of sections 16, 17 and 20, C.P.C. are not applicable to the proceedings before the High Court in its original Civil Jurisdiction by virtue of section 120, C.P.C.:-- "

120. Provisions not applicable to High Court in original civil jurisdiction.

(1) The following provisions shall not apply to High Court in the exercise of its original civil jurisdiction, namely sections 16, 17 and 20." Mr. Justice Waheeduddin Ahmed (as he then was) in Firdous Trading Corporation and others v. Japan Cotton General Trading Co. PLD 1961 Kar. 565 opined that the original civil jurisdiction of Karachi ench is not an ordinary civil original jurisdiction but of a special nature and only extends to Civil District of Karachi. The same view was approved by the apex Court in Pakistan Fisheries Ltd. v. united Bank Ltd PLD 1993 SC

109. In West Pakistan Industrial Development t v. Messrs Fateh Textile Mills PLD 1964 Kar. 11 and Messrs Agricides (Pvt.) v. Messrs Ali Argo Supply Corporation 1988 CLC 59, this Court assumed the jurisdiction for the reason that the agreement was executed between the parties at Karachi on accrual of cause of action or part thereof at Karachi. The view expressed by me in Mahboob Ali Soomro v. Sindh Road Transport Corporation 1999 CLC 1722 is based on analogy enunciated in above cases. The original civil Jurisdiction of this Court can be exercised to entertain a suit with one or more ingredients necessary to attract the jurisdiction of this Court which in view of section 120, C.P.C. has undoubtedly a very broad base, yet there should always be some rationale to attract jurisdiction. There must be some jurisdictional facts necessary to invoke jurisdiction. Same may be either the defendant residing or carrying on business or in cases plurality one of the defendants being so subject or the cause of action, wholly or in part, arising or 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. The only logical effect of section 120 of he 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. In the present c4se, the former suit not transferred from the Court of II-Senior Civil Judge due to lack of pecuniary jurisdiction but due to pendency of the later suit in this Court. The later suit's valuation is more than thirty lac rupees and the cause of action shown in para. 23 of the plaint is based on the agreement signed at Karachi, therefore, the contention of Mr. Jhamat Jethanand that this Court lacks the jurisdiction is not tenable. No doubt, suits retain their identity notwithstanding the consolidation but the fact remains that the former suit was transferred to this Court due to pendency of later suit in this Court only to avoid conflict of decisions from a Court which had and still have the unlimited pecuniary jurisdiction. Thus Suit No.813 of 1992 is not affected by section 5 of the Sindh Civil Courts (Amendment) Ordinance, 2002. Therefore, both the suits are to be tried in this Court. S.A.K./G.-139/K Order accordingly.