P L D 2026 Balochistan 50 (PLP)

MUHAMMAD AYUB KHAN TAREEN, J.

This petition is directed against the order and decree dated 19th December 2022, passed by the learned Civil Judge-V, Quetta in Civil Suit No.82/2021, whereby, the petitioner s suit was returned to him under Order VII Rule 10, C.P.C, for presentation before the proper forum. Assailed in Civil Appeal No.02/2023, but dismissed, vide judgment and decree dated 25th August 2023, passed by the learned Additional District Judge-X, Quetta; hence, this petition with the prayer to set aside the impugned, order, judgment and decrees passed by the courts below and to remand the matter to the trial court for its decision on merits.

2. Facts of the case are that the petitioner (plaintiff) filed a suit for declaration and permanent injunction against the respondents (defendants) with the averments that he is representing Balochistan Squash Association (BSA), which is affiliated with the Pakistan Squash Federation (PSF) and Balochistan Olympic Association. The basic concept of the Federation and Association is to select good players from different parts of the Province and District in order to bring good name to the country. It is the petitioner s case that he remained on the positions of General Secretary, President and Chairman of the BSA. After amendment in the Constitution of Balochistan Squash Association, the petitioner participated in the meetings held by the Federation as Chairman BSA. The petitioner s grievance is that the PSF called 43rd Annual General Meeting, which was not circulated/intimated to the petitioner; besides, the Honorary Secretary, PSF (respondent No.2) introduced a parallel Squash Association by electing Saiful Islam Kakar (respondent No.4) as President and Muhammad Arshad (respondent No.5) as General Secretary of BSA. Finally on 1st August 2018, ban was imposed on the petitioner to contest the election of BSA or participate in any activity of Squash in Balochistan; hence, this suit with the following prayer: A. Declaring that minutes of dated 31.07.2018 and Annual General Meeting held on 01.08.2018 at Islamabad is illegal and unlawful; B. Declaring the election of President PSF as illegal and unlawful as per Constitution of PSF and Sports Policy of Pakistan; C. Declaring that the Election of defendants Nos.4 and 5 is illegal and unlawful as per Sports Policy; D. By means of permanent injunction defendants Nos.1, 2 and 3 not contact the defendants Nos.4 and 5 and defendants Nos.4 and 5 not to pose themselves to be a President and Secretary of Balochistan Squash Association; E. Any other relief which deems fit and proper in the circumstances of the case may also be awarded in favour of the plaintiff, in the interest of justice.

3. On service of notices, the respondents Nos. 1 and 2 (defendants) filed their written statements, wherein they raised various legal objections regarding the maintainability of the suit and contested the same on merits as well.

4. Out of the pleadings of the parties following issues were framed:

1. Whether this court has jurisdiction to entertain the instant case?

2. Whether the instant suit does not come into the purview of Section 42 of Specific Relief Act?

3. Whether the election for President PSF, as well as the election of defendants Nos. 4 and 5 were illegal in terms of Sports Policy of Pakistan Squash Association?

4. Whether the plaintiff is entitled for the relief claimed for?

5. Relief? Additional Issues:

1. Whether the defendant No.2 on dated 31.07.2018 and 01.08.2018 can impose life time ban on plaintiff or no as per law?

2. Whether Balochistan Squash Association Constitution was amended the Constitution of BSA by General Council?

5. The learned trial court (Civil Judge-V, Quetta), after hearing the arguments, returned the petitioner s suit under Order VII Rule 10, C.P.C. on the ground that the impugned minutes have been passed at Islamabad, which does not fall within the territorial jurisdiction of the trial court. Assailed in civil appeal, but dismissed by the appellate court (Additional District Judge-X, Quetta). Hence this petition with the prayer mentioned above.

6. I have heard the learned counsel for the parties and gone through the record with their assistance, which reflects that the petitioner instituted a suit for declaration and permanent injunction with the averments that the PSF in violation of the Sports law, has imposed ban on petitioner to participate in any activity of squash in Balochistan. The court after framing of issues, returned the suit by holding that the petitioner had failed to exhaust the remedy before proper forum. Appeal filed by the petitioner was dismissed. The trial court after considering that controversy was required to decide the suit by recording of evidence, the provisions of Order-VII, Rule-10A, C.P.C. could not be pressed into service to non-suit the petitioner. When an action of a public authority is stated to be without jurisdiction and void, then plaintiff is within his rights to maintain suit before civil court under section 9 of the Civil Procedure Code, 1908. The concept of jurisdiction has its genesis in the physical power of a Court to issue process to persons within the reach of the Court. The jurisdiction of a legal forum/Court includes its (i) territorial jurisdiction; (ii) pecuniary jurisdiction; and (iii) subject matter jurisdiction. The jurisdiction is always conferred upon the Courts by a law and it cannot be decided by the parties inter se. The territorial jurisdiction refers to a Court's power over actions and parties within the bounds of a particular territory. If a Court does not have territorial jurisdiction over the events or persons within it, then the Court cannot give a binding decision regarding the rights of the parties. This concept was elaborated by the Hon'ble Supreme Court of Pakistan in the case of Messrs Muhammad Tufail and Company through Muhammad Tufail (deceased) through Legal Heirs (PLD 2017 SC 51) wherein it was held that, Section 20, C.P.C. confers jurisdiction on a Court in two ways. Firstly, on the basis of where a defendant(s) resides, carries on business or works for gain within its local limits. Secondly on the basis of where the cause of action wholly or in part arose within its local limits. Jurisdiction means the authority to decide. The concept of jurisdiction of a Court encompasses (i) territorial jurisdiction, (ii) pecuniary jurisdiction and (iii) subject matter jurisdiction. The concept of jurisdiction has its genesis in the physical power of a Court to issue process to persons within the reach of the Court. Shorn of all extraneous 'frills', this is the essence of jurisdiction. A Court is to decide matters when persons relating thereto are within its reach. Reliance is placed to the case titled Bahoo Dying Industries (Private) Limited v. Sui Northern Gas Pipelines Limited and others (PLD 2021 Lahore 186). In the case of Dr. Raees M. Mushtaque through General Attorney v. Province of Sindh through Secretary Food and 3 others (2018 MLD 918), the Sindh High Court, in the last paragraph, has held as under: "As observed above, in this matter issues have already been framed and matter is ripped for evidence as stated by the parties counsel, we have perused the pleading of the parties showing that parties are seriously at issue, therefore, the court instead of rejecting the plaint could decide the dispute by referring to the evidence. Order of rejection of plaint was not warranted in the circumstances."

7. The principles for return of plaint were discussed in detail in the judgment reported as Taisei Corporation v. A.M. Construction Company (Pvt.) Ltd. (PLD 2012 Lahore 455), the relevant portion of which is given as under: "

22. In order to truly understand the concept of the application of the provisions of Order VII, Rule 10 of C.P.C. the case-law has settled the methodology by laying down the law that for the purposes of deciding the application under Order VII, Rule 10 of C.P.C. the contents of the plaint as presented in the Court are only to be looked into particularly if the objection qua the jurisdiction as raised is to be decided only on the basis of legal arguments addressed by the parties. If the question of jurisdiction requires probing into some disputed facts, then the matter has to be resolved after framing of necessary issue and recording of evidence of the parties. The question of fact or a mixed question of law and fact, cannot be effectively decided without recording the evidence. It has been settled throughout that where a statute provides an alternate remedy or forum, then, if the act of public functionary is statedly mala fide, void or without jurisdiction, then the general jurisdiction of a civil court under section 9 of the Code is not barred. With regard to bar of jurisdiction contained in any statute, it is settled that if in any statute, there is a bar of plenary jurisdiction of civil court, the bar will be applicable if the authority acts in accordance with the said statute and its acts, orders do not violate the jurisdiction conferred upon that authority under the said statute then the bar of jurisdiction contained in the said statute applies and if the authority acts or passes any order in violation of the jurisdiction vested in it under the said statute and transgresses jurisdiction or the orders or action if scrutinized keeping in view the jurisdiction available under the said statute and the orders or action is found without jurisdiction then certainly the bar contained in the said statute on the plenary jurisdiction of the civil court is not applicable and the suit would be competent. When an action of a public authority is stated to be without jurisdiction and void, then plaintiff is within his rights to maintain suit before civil court under section 9, C.P.C. Reliance is placed on the case titled Muhammad Nazir Khan v. Ahmad and 2 others (2008 SCMR 521) and Fehmida Kiran v. Chairman House Allotment Committee/Secretary S&GAD and others (2023 MLD 659).

8. The courts below failed to appreciate the facts of the case in light of relevant law provisions. Thus, the petition is allowed, the order dated 19th December 2022 and judgment and decree dated 25th August 2023, respectively passed by the Civil Judge-V, Quetta and the Additional District Judge-X Quetta are set aside, and the matter is remanded to the learned trial court for affording an opportunity of leading evidence to the parties and decision thereon purely on merits. UN/104/Bal. Petition allowed.