2002 PLP 3797 (YLR)

2. The facts giving rise to this Transfer Application are that the daughter of applicant No. 1 namely Mst. Farha Naz, was married with the respondent on or about 14th August, 1987, who was serving as Executive Engineer in WAPDA. She died in June, 1996 at Karachi as a result of fire accident in kitchen when they were living as tenant of the applicant No. 1 on the ground floor of House No.C‑

273. Federal 'B'. Area, Karachi whereas the applicants were living at upper storey of the said house. At the time of marriage, respondent had given golden ornaments weighing about 30 tolas to her wife Mst. Farha Naz. She had had also other golden ornaments weighing about 30 tolas given by her parents. It is further stated that besides purchasing more 20 tolas of gold by Mst. Farha Naz after her marriage, the respondent was also maintaining the complete house, having the household articles like Air Conditioner. Refrigerator, Washing Machine, Crockery. Microwave Oven, Furniture, Television and VCR etc. They used to keep their ornaments with applicant No. 1 keeping in view other safe custody. After the death of Mst. Farha Naz, the attitude and behaviour of the applicant, as stated by the respondent in his plaint filed in the Court of IInd Senior Civil, Jacobabad, altogether changed towards the respondent who, resultantly, was forced to leave the said house by the applicants without taking any of the household articles including 50 tolas golden ornaments. It is further stated that the respondent tried to settle the matter amicably with the applicants but they turned deaf ear where-after the respondent got served the applicants with the Legal Notice dated 11‑1‑1997 which was not replied. The respondent, being permanently resident of District Jacobabad, filed the above suit for recovery of Rs,5,00,000 in the Court of IInd Senior Civil Judge, Jacobabad, against the applicants.

3. The applicants, after having been served with the notice, filed an application under Order VII, rules 10 and 11 and section 151, C.P.C. in the Court of learned IInd Senior Civil Judge, praying, inter alia, for rejection of the plaint or alternatively return of plaint to presented to the competent Court on the ground that as per plaintiff's/respondent's own assertions in his memo. of plaint, the applicants/defendants are permanently residing and carrying on business or working for gain at Karachi, hence cause of action, any, did accrue to the plaintiff/respondent at Karachi. The respondent/plaintiff filed his objections to the said application stating therein that he was permanent resident of Jacobabad and stayed at Karachi in the house of the applicants/defendants as their tenant on the ground‑floor of the house requisitioned by WAPDA Authorities and now, after the death of his wife, Mst. Farha Naz, he was transferred to Hyderabad though his permanent place of residence was Jacobabad.

4. On 16‑3‑1998, the learned IInd Senior Civil Judge, Jacobabad, dismissed the application of the applicants/defendants, filed under Order VII, rules 10 and 11 read with section 151, C.P.C. holding that the plaint disclosed the cause of action at Jacobabad and since the plaintiffs/applicants had filed their written‑statement the issues of maintainability of the suit and jurisdiction would be decided after leading evidence by the parties.

5. After dismissal of the said application, the applicants/defendants have filed this transfer application, praying, as above.

6. I have heard the learned counsel, Mr. Abdul Waheed Kanjoo, appearing on behalf of the applicants and respondent, Iqbal Masood, who appeared in person. Since the matter is old of 1998, it has been agreed by both the parties that the matter shall be finally heard and decided at Katacha Peshi stage.

7. It has been contended by the learned counsel for the applicants that admittedly the applicants are permanently residing at Karachi and the movables for which compensation of Rs.5,00,000 has been claimed were allegedly given to the applicants in Karachi and non -return of the same furnished cause of action to the respondent/plaintiff at Karachi, hence the suit should have been filed at Karachi in the light of the provisions of sections 16 and 20, C.P.C. It has, further, been argued that the provisions of section 20, C.P.C. give option to the applicants/defendants to get the suit, filed against them transferred to the place of their residence. It is also argued by the learned counsel that the household) articles, allegedly retained by the applicants/defendants, were delivered to the respondent/plaintiff at Karachi who thereafter, upon his transfer to Hyderabad, took the same to Hyderabad. Accordingly to the learned counsel respondent/plaintiff has transferred the said articles to Jacobabad for creating the false and fabricated grounds for cause ‑ of action and has filed the suit at Jacobabad with malicious intention to drag the applicants from Karachi to Jacobabad.

8. The respondent, on the other hand, has opposed the transfer of case as according to him he is permanently resident of Jacobabad and the transfer of the case to Karachi would be fatal to the quick disposal of the suit since he is patient of cardiac disease.

9. I have given my anxious consideration to the arguments advanced by the learned counsel appearing on behalf of the applicants and the respondent who appeared in person.

10. A bare reading of provisions of section 19, C.P.C. reveals that undoubtedly, the respondent/plaintiff has a choice to sue the applicants/defendants but this choice is circumscribed by two conditions, firstly, the place where the cause of action has accrued and; secondly, the place where defendant resides or is carrying on business of personally works for gain. It is the case of the respondent/plaintiff that, after the death of his wife. Mst. Farha Naz, the attitude and behaviour of the applicants/defendants changed and ultimately the circumstances forced him to leave his household articles, compensation of which is claimed, at the house of the applicants/defendants at Karachi. Moreover, the address of all the applicants is that of Karachi. Consequently, the respondent/plaintiff could not legally sue the applicants/defendants at Jacobabad because neither the cause of action had arisen at Jacobabad nor the applicants/defendants reside, carry on business or personally work for gain within the local limits of the jurisdiction of the IInd Senior Civil Judge, Jacobabad. The argument of the respondent/ plaintiff that he is permanently resident and domiciled of District Jacobabad has not force because a close look into the provisions of section 19, C.P.C. reveals that in a suit for compensation for wrong done to the plaintiff or to his movable property his residence will not be determinative of the territorial jurisdiction within the meaning of section 19, C.P.C. conversely the choice available to the person suing the defendant for compensation within the purview of section 19 is restricted to the place where the wrong was done or the Court within whose jurisdiction the defendant resides or carried on business or personally works for gain.

11. In the circumstances, I am of the considered view that the Court below was not justified in its conclusion that it had the jurisdiction to try the suit. This transfer application is, accordingly, allowed and the suit is ordered to be transferred to the District Central of Karachi who is directed to send the matter to the Senior Civil Judge having jurisdiction. Transfer Application No.8 of 1998 stands disposed of alongwith listed application. H.B.T./I‑69/K Transfer application allowed.