2004 PLP 662 (MLD)

(iv) Permanent injunction restraining the defendants Nos.1 and 2, their servants, agents, employees including defendants Nos.3 and 4 and/or subordinates from further recovering, collecting the amounts referred to in para. 21 of the plaint and re-produce hereinunder from any of the salesmen, hawkers, Federation of hawkers and/or any other person; (a) Excess amount deposited from April, 1997 to 8th June, 2000: Rs.7,794,786. (b) Total amount recoverable from the market/hawkers Rs.12,570,061. (c) Amounts receivable from different salesmen, currently: Rs. 18 lacs. (d) Amount deposited as security: Rs.36,00.000. (v) Direct the defendants Nos. l to 4 submit detailed accounts of the amounts recovered to-date before this Hon'ble Court. (vi) Declare the publication made on 1-8-2000 in daily "Jang" was defamatory of plaintiff No. 1. (vii) Permanent injunction restraining the defendants Nos.1 and 2, their servants, agents, employees including defendants Nos.3 and 4 and/or subordinates from publishing any advertisement and/or material whatsoever of defamatory in nature so as to adversely effect and or damage the reputation of the plaintiffs and their business goodwill. (viii) Permanent injunction by restraining the defendants Nos.1 and 2, their servants, agents, employees including defendants Nos.3 and 4 and/or subordinates from taking any other adverse action to the detriment of plaintiff's interest in any manner whatsoever. (ix) Direct the defendants, either jointly or severally, to pay to the plaintiffs a sum of Rs.5 crores/50 millions towards the damages for the loss of reputation and mental agony caused to them on account of the defamatory advertisement published in the four issues of Daily Jang of Karachi, Lahore Quetta and Rawalpindi on 1-8-2000. (x) Grant compensation- to the tune of Rs.5 lacs per month for unlawfully terminating the news agency of and causing economic loss to the plaintiffs from the date of termination of the news agency, that is, 8th June, 2000 till realization and dispossessing him from his office, non-payment of the amount of net commission to the plaintiffs and further running their business by revoking other business arrangements. (xi) Recovery of the amount to the tune of Rs. 2,57,64,847 from defendants Nos. l to 4 jointly and severally on account of the breakdown given in para. 21 of the plaint in respect of the recoveries including that of security deposit but excluding the compensation for economic loss. (xii) Declare the defendants Nos.1 to 4 are neither owners, nor can run the business unlawfully taken over by them from the plaintiffs under the name of Messrs N.D.N. (xiii) Cost of the suit. (xiv) Any other relief this Hon We Court deems proper in 'the circumstances of the case." Clause 12 of the Agency Agreement copy of which has been filed as Annexure "B" to the plaint is as follows:-- "

12. That in case of any dispute only the Court at Rawalpindi shall have the jurisdiction to deal with the dispute." In the case of State. Life Insurance Corporation (supra), the Hon'ble Supreme Court of Pakistan at page No.395 has observed as follows:-- "We have considered the arguments of the learned counsel for the parties. Under section 9 of the Code of Civil Procedure the civil Courts have jurisdiction to try all suits of a civil nature excepting the suit of which their cognizance is either expressly or impliedly barred. Under section 20 of the Code of Civil Procedure every suit is to be instituted in a civil Court within the local limits of whose jurisdiction the defendant resides or carries on business or where the cause of action wholly or in part arose, under section 28 of the Contract Act every agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by usual legal proceedings in the ordinary Tribunals or which limits the time within which he may thus enforce his rights, is void to that extent. It is evident from a plain reading of these provisions that there is no absolute exclusion of jurisdiction under section 9 or section 20' of the Code of Civil Procedure nor there is any violation of the provisions of section 28 of the Contract Act when two or more Courts have jurisdiction to try a suit and the parties mutually agree to choose or take their dispute to one of them. The civil Courts exercise their jurisdiction under the Code of Civil Procedure. If they do not possess such jurisdiction under the Code it cannot be conferred on them through a mutual agreement of the parties to a dispute. But in a situation where two or more Courts have jurisdiction to try under the Code of Civil Procedure, then an agreement between the parties that any dispute arising between them shall be tried only by one of such Courts could not be considered contrary to public policy as it would neither contravene the provisions laid down in section 28 of the Contract Act nor would it violate in any manner the provisions of section 9 or' section 20 of the Code of Civil Procedure." In the case of Qadir Motors (supra) the rule laid down in the case of State Life Insurance Corporation of Pakistan (supra) is reiterated. In the present case the agency agreement between the parties was made at Rawalpindi and the business for which the agreement was made was also in respect of territorial limits of Rawalpindi/Islamabad. The parties have agreed in Clause 12 of the agreement that in case of any dispute only the Court at Rawalpindi shall have jurisdiction to deal with the dispute. Mr. Faisal Kamal, learned counsel for the plaintiff has contended that the 'Court at Karachi and Rawalpindi have concurrent jurisdiction in the present case. In view of this submission of the learned counsel where it is admitted that Court at Rawalpindi has jurisdiction in the matter, the parties are required to abide by the terms of their is agreement and to submit their dispute to the Courts at Rawalpindi which Courts they have themselves chosen to resolve their dispute and which Courts admittedly also have jurisdiction in the matter. The dictum laid down by the Hon'ble Supreme Court of Pakistan in the above cited two cases is applicable in this matter. Therefore the defendants alternative prayer under Order 7, rule 10, C.P.C. in the application is granted and the plaint is returned for presentation before the proper Court. S.A.K./M-3/K Plaint returned.