2017 PLP 97 (CLCN)

MAHMOOD A. KHAN, J.

C.M.A. No. 14095/16. This is an application under Order VII, Rule 10 read with section 151, C.P.C. filed by defendant No.1 praying for return of plaint on the ground that the cause of action has accrued to the plaintiff within the territorial limits of District Jamshoro as such the plaint be returned. Counter affidavit to the same has been filed in opposition wherein it is contending that the application is based upon mala fide, the proceedings are at the final stage and that the objection was liable to be taken up at the initial stage which is absent as such statutory waiver is present. It is further contended that this court has jurisdiction in the matter as the defendant No.1 is having Registered Office at Karachi and that this court is having extra ordinary original jurisdiction. It is further contended that the location of immoveable property cannot be the sole criteria to decide territorial jurisdiction for cases filed before High Court at Karachi and that prejudiced is liable to be caused to the plaintiff, if the application is allowed. It is contended by the learned counsel for the defendant No.1 that the jurisdiction in the matter is required to the ascertained on the basis of the location of the immovable property for which the prayer is made. The subject property is located within the limit of District Jamshoro and this court lacks territorial jurisdiction and in such plaint is required to be returned. Learned counsel has relied upon the reported cases 2007 CLC page 1848, 2005 CLC page 988, 1993 MLD 1253 and 2001 MLD 1154 and 1988 CLC page

59. Learned AAG has referred paragraph Nos. 1 and 12 of the plaint wherein the jurisdiction has been specified and has further referred to prayer of declaration. It is also contended on his part that the jurisdiction in the matter is at District Jamshoro on account of the prayer/s made in the matter. Learned counsel for the plaintiff contends that the objection as to the jurisdiction has come up after about 30 years at the final stage as such as the same is mala fide. The learned counsel relied upon section 21 and Order XLIX, Rule 3, C.P.C. and referred to PLD 1968 Lahore page 144, PLD 1984 Quetta page 1992, PLD 2003 SC page 930 and 1994 SCMR page 1893. It is further contended that the plaint in the matter has been amended and severe prejudice is liable to be caused to the plaintiff and not the defendant or to the interest of justice if the plaint is returned as the matter will have to be heard afresh and in this regard the learned counsel has relied upon PLD 1981 Karachi page 277, 1984 CLC page 1401, PLD 1983 Karachi page 151 and 2009 CLD page 1671. In rebuttal the learned counsel for defendant No.1 has further relied upon 2011 CLC page 1450 and contended that the plaint is liable to be returned. I have heard learned counsel and gone through the record. The suit is for declaration injunction recovery of possession in respect of land bearing Survey Nos 783 847 and 849 to 988 measuring in all 774 acres or thereabouts situated in chak No. 3 Deh Kalo Kohar, Tapo Kalo Kohar, Taluka Thana Bhula Khan. In the written statement no objection to territorial jurisdiction has been taken consequently no any issues is present in this regard also. Referring to section 21, C.P.C. quoted hereunder: "Section 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 case where issues are settled at or before such settlement and unless there has been a consequent failure of justice." The section is however held to be directory in its nature and not mandatory in the case of Aftab Muhammad v. Novartis Pharma Pakistan Limited reported as 2016 SCMR page

90. In my humble understanding enriched by the discussion of the relied upon cases by the learned counsel a distinction is present for entertainment of this objection as to jurisdiction before and after the final decision of a trial court, consequently as in this case the final decision has not taken place, while considering and aware of the proceedings having been initiated in 1997 return to the plaint at this final stage seems to be harsh, but considering the exposure of further time for the parties and even an ultimate failure for the plaintiff the same is found in consequential. In the circumstances, where the absence of territorial jurisdiction is present on account of situate of the subject property the plaint is ordered to be returned for presentation before the proper court. It is always open to the parties to attempt adoption of the record as is present before this Court in order to save their time and effort but such shall be for the trial Court to determine. Let the plaint be returned to the plaintiff and a copy thereof be kept on record. ZC/N-2/Sindh Plaint returned.