P L D 1954 Sind 117 (PLP)

INAMULLAH, J.‑This is a suit for recovery of Rs. 4,792‑13‑0 against the Federation of Pakistan and arises under the following circumstances. The plaintiff entered into a contract with the Officer Commanding No. 29 Sup. Pl. R. P. A. S. C. on behalf of the Federation of Pakistan for supply of meat at Sialkot. The plaintiff contends that he had supplied meat and that he has not yet received payment for his bill for Rs. 4,792‑13‑

0. Mr. Nasiruddin, the learned Advocate for the Federation of Pakistan contended that this Court has no jurisdiction whereupon Lari, J. framed the following issue: "Has the Court jurisdiction to try the case in view of allegation made in para. 9 of the plaint and also para. 9 of the W. S.? The question at present before me is whether in view of the above this Court has jurisdiction to decide the present suit. Para. 9 of the plaint reads as under‑ "That the cause of action arose at Sialkot where fresh dressed meat was supplied and the aforesaid cheque, dated 12th July 1949 in lieu thereof in favour of the plaintiff was issued. This Hon'ble Court has jurisdiction as the defendant carries on business within the jurisdiction of this Hon'ble Court and Capital of the defendant Govern ment is situated within the jurisdiction of this Hon'ble Court and therefore the defendant is deemed to reside within the jurisdiction of this Hon'ble Court." Para. 9 of the W. S. reads as under‑ "That para 9 of the plaint is not admitted. No cause of action has accrued to the plaintiff within the jurisdiction of this Hon'ble Court. This Hon'ble Court has no jurisdiction to try the suit." Mr. Nasiruddin, the learned Advocate for the Federation has strenuously contended that the cause of action having arisen at Sialkot it cannot be said that the Federation of Pakistan actually and voluntarily resides or carries on busi ness at Karachi. He contends that the words "actually and voluntarily resides and carries on business" apply to natural persons and not to legal entities such as Government. He has taken me through the relevant case law on the point. Mr. Nathulal, the learned Advocate for the plaintiff has not cited any case law on the point in question but has generally contended that as the Capital of the Federation is at Karachi and that the Federation is carrying on all its various functions from its capital, therefore it actually and voluntarily resides and carries on business within the meaning of section 20 (a) of the C. P. C. There is no doubt that the State can be sued. The con stitutional provisions and other statutory provisions are clear on the point. Section 65 of the Government of India Act, 1858 made the East India Company liable to be sued and the same was retained in section 32 of the Government of India Act, 1915 when the administration of British India was transferred to the Crown. Section 176 of the Consti tution Act, 1935 makes similar provisions for the liability of the State to be sued in its own Courts. The only question before me is whether the Federation can be sued in the Capital of the Federation on the ground that it actually and voluntarily resides, or carries on business or personally works for gain. The Civil Procedure Code makes certain provisions where a suit can be filed. The relevant sections of the Civil Procedure Code are sections 15 to

20. The question of forum is one of procedure and the Court is bound to accept what is prescribed by the Legislature. Section 15 of the C. P. C. lays down that the suit shall be instituted in the Court of the lowest grade competent to try it. Several Courts at a particular place may have jurisdiction to try a suit but in view of section 15, C. P. C. it is the Court of the lowest grade which would have jurisdiction to try the same. Section 16 of the C. P. C. deals with insti tution of suits regarding immovable property. It lays down that the suit shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. Section 17 of the C. P. C. lays down where immovable property is situated in the jurisdiction of different Courts, the suit may be instituted in any Court within local limits of whose jurisdiction any portion of the property is situate. Section 18 deals with the question of institution of suit where‑local limits of jurisdiction of Courts are uncertain. Section 19 deals with suits for compensation for wrongs to person or moveables. It lays down that the suit can be filed within the‑ local limits where the wrong was done or where the defendant resides or carries on business or person ally works for gain. The last section is section 20 of the C. P. C. which needs consideration and which is also relevant to the issue before me. Section 20 C. P. C. reads as under:‑‑ "Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose juris diction‑ (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 person ally 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. Mr. Nathulal, the learned counsel for the plaintiff has relied on sub‑clause (a) of section 20 of the C. P. C. for his contention that this Court has jurisdiction to entertain this suit. He maintains in the first place that the defendant, the Federation of Pakistan actually and voluntarily resides in the Federal Capital, that is, Karachi and therefore this Court has jurisdiction. He contends in the next place that the Federation of Pakistan carries on its business at Karachi, the business being the various functions, executive and administrative of the Government. He has not, as already mentioned, cited any authority in support of his con tention. The question before me is whether the Government can be said to reside or carry on business within the meaning of section 20 (a) C. P. C. I have given my best consideration to this question and after perusing the various authorities I have come to the conclusion that the Government being a legal entity cannot be said either to reside or carry on business within the meaning of section 20 (a) of the C. P. C. The word "resides" refers to natural persons and not to legal entity such as Government. The word "carries on business" is intended by the section to apply to commercial business and not a business of State or Government. I have come to the conclusion that the words "resides" and "carries on business" apply to natural persons, firstly, because this is the view that has been taken by various High Courts, and secondly, the rule of interpretation being where certain words have been given a particular interpretation by Courts over a long period of time that interpretation should be accepted. The earliest case is that of 1863 Subbayaya Mudali v, Government and Cunliffee reported in (1 Mad. High Court Report 286.) which may be help ful for the interpretation of the words "resides and carries on business." In that case the question of interpreting clause 12 of the Letter Patent arose. The relevant portion of clause 12 of the Letters Patent runs as under: "Or if the defendant shall dwell or carry opt business or Personally work for gain within those limits." In that case it was held that under clause 12 of a 1w Letters Patent the Government must be considered as carry ing on business at the place where its member exercises all the functions of Government, that is in Madras. So far as the word dwell" is concerned it was considered in that case to be inapplicable to the Government. Subbuvuva Muduli's case is the only case in which the word "carries on business" has been held to be applicable to Government. I have not been cited any case by Mr. Nathulal in which this case may have been followed. That this view is not correct is clear from a series of decisions of the Indian High Courts ranging from 1886 to 1953. The earliest case which differed from this view is a Division Bench decision of the Calcutta High Court (1886) 14 Cal. 256) in which it was held that words "carrying on business" or "personally work for gain" do not refer to an institution like government. The Madras High Court itself in 1927 took a contrary view to the one taken in Subbaraya Mudali s case. This case is important, in the first place that it takes a contrary view to the view taken by the same Court and in the second place it interprets words "resides" as well as by carrying on business" in relation to Government. It was held in that case A I R 1927 Mad. 689 by Couttas Trotter, C. J. and Beasley, J. that the word "reside" must be taken to refer to natural persons and not to legal entities such as Government or limited companies and that the word "carrying on business" applies to a corporate body and limited companies and not to semi‑corporate body like Government. The learned judges further held that business means commercial business and not business of Government. Another important case is that of Lahore High Court A I R 1939 Lah. 818 in which the question of interpreting the words actually and voluntarily resides" and the word "Business in section 20 (a), C. P. C. arose. Hilton, J. held in that case that the words actually and voluntarily resides" refer only to natural persons and not to legal entities such as Government and the word "business" refers to commercial business and not to Government business. Some of the recent cases which have taken the same view was taken by the Division Bench of the Madras High Court (A I R 1927 Mad. 689) are‑ (1) A I R 1950 Cal. 208 para. 10. (2) A I R 1951 Pb. 92.(3) A I R 1953 Cal.

1. It would appear from the decisions of different High Courts from 1886 to 1953 that the words "resides" and carries or business" have been interpreted to apply to natural persons and not to legal entities such as Government. In my opinion under these circumstances it is a fit case for the application of the rule of stari decisis, as the interpretation put on these words has remained uninterrupted for the last about 70 years. This rule of stari decisris was applied in the case of Louisa Migneault v. Malo (Law Report 4 P C 136). The relevant remarks of the judicial Committee is as under "Their Lordships, however, think that they cannot con sider this matter now as res integra. They cannot disregard the practice of the Canadian Courts with respect " to it for the last seventy years, and they; have therefore, made as careful an investigation into this practice as the circumstances permit"

"Upon the whole, it appears to their Lordships that, by the uninterrupted practice and usage of the Canadian Courts of Justice since 1801, the law has received an interpretation which does not affix to the grant of probate even .in the circumstances of this case, that binding and conclusive character which it has "in England, and that according to that interpretation it was competent to the respondent to impugn the validity of this will by way of defence to the action brought by the appellant for the payment of the annuity." "Their Lordships think that they ought not to advise Her Majesty that a different construction ought now to be put upon the law." The same principle of stari decisis was applied by their Lordships of the Federal Court in Ghulam Mohi‑ud‑Dins case (P L D 1953 F. C. 1.) Mr. Nathulal, the learned Advocate for the plaintiff has not given reasons why this interpretation that has stood the test of about 70 years should be disturbed. I, therefore, for the reasons set forth above order that the plaint be rejected and returned to the plaintiff or his Advocate for presentation to the proper Court. A. H. Plaint rejected,