1986 PLP 2173 (CLC)

2. The brief facts of the case which gave rise to this revision petition are that petitioner filed a declaratory suit in the Court of Sub‑Judge, Rawalakot on 29th May, 1983 to the effect that he was given a contract for repairing and widening of Kotli‑Tattapani Road on 27th March, 1980 and under the direction of defendant (respondent No. 2), he did not only carry out the work entrusted to him but in fact he did more work and stopped the execution of it under the direction of the department because the scope and nature of the work had undergone tremendous change. The respondent No. '3 did not make the payment for the excess work done by the plaintiff‑‑petitioner i.e 117, 250 Cft. stone cutting and earth filling and instead of it issued a demand notice through Deputy Commissioner Poonch for payment of Rs.61,663 as costs of the unfinished work allegedly left by the plaintiff /petitioner. He prayed for a decree to the effect that the defendants were not entitled to demand the payment of any amount from him and were under obligation to pay him the costs of work done by him, after rendition of the accounts. A temporary injunction to stop the realization of 'a sum of Rs.61,663 as arrear of the land revenue till the decision of the case was prayed for.

3. The learned Sub‑Judge after hearing the petitioner rejected the application moved for issuance of a temporary injunction through order, dated 19th November, 1983. He held that the cause of action arose to the plaintiff‑petitioner at Mirpur, therefore, he had no jurisdiction to try the suit, as such, the application for temporary injunction and maintenance of status quo was incompetent. ,

4. The plaintiff‑petitioner thereafter, took the matter to the Court of District Judge Poonch (Rawalakot) by way of an appeal but his appeal was also rejected through order, dated September 19, 1984 and this order of the lower Court is the subject‑matter of the present revision petition.

5. The learned counsel for the petitioner assailed the impugned order and stated that keeping in view the provisions of section 20, C.P.C. the learned Sub‑Judge had the jurisdiction to try the suit and was competent to grant the relief for stay order, but he fell in error to refuse it. To elaborate his point of view, he urged that there are three defendants in this case, namely, the A.K. Government Executive Engineer P.W.D. (Highway Division), Mirpur and Deputy Commissioner Poonch (Rawalakot). The respondent No. 1 has established its offices at Rawalakot where it works through its officers and the principal seat of respondent No. 3 is at Rawalakot and the money is also being realized from the petitioner at Rawalakot, therefore, keeping in view the provisions of section 20, C.P.C. the petitioner has the right to institute the suit at Rawalakot and the view taken by the lower Court was incorrect. He cited cases reported in P L D 1962 S C 384, P L D 1969 Lah. 453, P L D 1975 Kar. 1059, P L D 1978 B.J. 22 and 1983 CLC 1369.

6. The learned counsel for the respondents, on the other hand, did not seriously contest the stand taken by the learned counsel for the petitioner.

7. I have paid anxious thought over the matter, have gone through the judgments delivered by the Courts below, have perused the letter, dated March, 26, 1983 sent by respondent No. 2 to respondent No. 3 and have also studied the aforesaid authorities cited at the Bar.

8. The case reported in P L D 1962 S C 384, dealt with a case of recovery of the amount as arrears of land revenue when no show‑cause notice was issued to the defaulter before proceeding to recover the amount and it was held that such an action was bad in the eye of law.

9. In the case reported in P L D 1969 Lah. 453, the implication of the word and phrases used in the explanation of section 20, C . P. C . vis‑a‑vis the jurisdiction to try the suit against the Government was seen and it was found that the Government was not covered by it.

10. The case reported in P L D 1975 Kar. 1059, dealt with a case of a contractor who did not complete the work within the stipulated time and was proceeded against without being first heard and it was held that keeping in view the dictates of natural justice, hearing was necessary.

11. The land owners who paid the land revenue to an unauthorized persons when asked to pay the same by the agent of the Government, agitated the recovery of the land revenue and it was found in the case reported in P L D 1978 B.J. 22 that the Government was competent to recover the land revenue from the land‑owners leaving them to recover it from the person to whom they had paid it.

12. In the case reported in 1983 C I. C 1369, it was held that the suit should be instituted in the Court where the whole or a part of cause of action arose to the plaintiff.

13. The authorities referred to above, do not lend any support to the petitioner who seeks payment of the outstanding dues and rendition of accounts from the XEN, P.W.D. Mirpur. The A.K. Government has been impleaded through Chief Secretary A . K . Government whose principal seat is at Muzaffarabad and the Deputy Commissioner Poonch is acting at the request of XEN, P.W.D. Mirpur and has no power to examine the legality of the letter of the request sent to him. He is at the best an executant of the request to recover the amount as arrears of the land revenue with no authority to go behind it.

14. The perusal of the plaint filed by the petitioner in the Court of Sub‑Judge, Rawalakot would show that an effort to give colourful jurisdiction to Sub‑Judge, Rawalakot was made but it was an unsuccessful attempt, however, a colourful jurisdiction given to a Court, could not empower it to try a suit when in fact it had no jurisdiction.

15. The authority cited by the learned counsel for the petitioner and reported in P L D 1969 Lah. 453, lays down that the suit against the Government can only be instituted at place where the cause of action, wholly, or partly, arose to the plaintiff and not at any other place.

16. Section 20, C.P.C. allows that institution of the suits at the place where a defendant or each of them, when there are more defendants in a suit, at the time of filing the suit, actually and voluntarily resides) or carries or personally works for gain.

17. The word "resides" should be taken to refer to natural persons because this word donotes living of a person where he dwells, sleeps and eats, therefore, it shall be taken to refer to natural persons and not to legal entities such a Government. The word "carries on business" as used in section

20. C.P.C. apply to a commercial concern which has its principal office at one place and branches at various places but all of those do the business for profit. These words cannot be extended to apply to the Government, which spends lacs of rupees for its servants who are posted at verious places to maintain law and orders, to adjudicate upon the case between the parties, to provide medical aid and essential food commodities to the public. The word "works" has been qualified with the word "gain", therefore, it also refers to those persons who on their free will work to earn gains and it excludes those who work to promote the interest of others and are not entitled to share the return of their labour such as convicts who, during the term of their sentence, do a lot of labour which fetches an handsome money to the jail authorities but not a penny to them.

18. The Madras High Court in a case reported in A I R 1927 Mad. 689, held that the word "resides" an section 20, C.P.C. must be taken to refer to only natural persons and not to legal entities such as limited companies and Government and further that the business intended by this section is a commercial one and not the business of the Government. So far as the word "resides" is concerned, the case is even stronger under this section in which the words used are "actual and voluntarily resides".

19. As in the instant case, the cause of action arose to the plaintiff at Mirpur, therefore, it was required for him to file the suit at Mirpur. Even otherwise, the perusal of the plaint shows that the petitioner seeks relief only against respondent No. 2 and he did not seek any substantial relief against rest of the defendants.

20. I think that the lower Courts took the view of the matter. I, therefore, hereby dismissed revision petition with costs. A.A. Revision dismissed.