2015 PLP 662 (MLD)

ZAFAR AHMED RAJPUT, J.

By this order, I intend to decide the issue of maintainability of the suit filed in original civil jurisdiction of this High Court by the plaintiff for declaration, permanent injunctions and damages of Rs.2,00,00,000.

1. Briefly stated the facts of the case, as narrated in the memo of plaint, are that the plaintiff is a transporter and doing his business under the route permit issued by the competent authority. He is also authorized to supervise the vehicles of transporters to ply on the routes permitted by the authority under route permits. While, the defendants are the government officials; they are responsible to facilitate and manage the affairs of public and transporters for plying public transports by classification, demarcation of routes and schedule of timing of up and down journey. It is also averred by the plaintiff that on 7-11-2001, the defendant No.3 (Secretary, Regional Transport Authority, Hyderabad) vide order bearing No. RTA/2001/1122/2001, Hyderabad set-up a "Time Schedule" for vehicles plying on routes, Mithi, Noukot, Judho, Tando Jan Muhammad, Digri, Tando Ghulam Ali, Matli and Hyderabad and the defendant No.4 (District Regional Transport Authority, Hyderabad) without any lawful authority and jurisdiction started revising the said Time Schedule by order one after the another; and revised the Time Schedule ten times from 3-1-2014 to 14-2-2014, and lastly he revised the Time Schedule on 14-2-2014, vide order No. DRTA/HYD/ 790/-2014. Against the said illegal revision of the Time Schedule, the plaintiff also lodged the complaints on 25-2-2014 and 4-3-2014 with defendant No.1 (Province of Sindh through Secretary Transport/Chairman Provincial Transport Authority, Karachi). It is the case of the plaintiff that the one after the other change in Time Schedule has caused him loss of thousands of rupees, damage to his reputation among public and relatives so also the mental torture and agony. Therefore, the plaintiff has maintained instant suit, with the following prayers:-- (i) "To set aside and declare that the Time Schedule bearing Order No. DRTA/HYD/790/-2014, dated 14-2-2014 is illegal, unlawful and without lawful authority and of no legal effect. (ii) To declare that the Time Schedule bearing No. RTA/2001/ 1122/2001, Hyderabad dated 7-11-2001 is legal, lawful and with lawful authority and is operative under the law. (iii) To direct the defendants and their official not to issue fresh Time Schedule. (iv) To direct the defendant No.4 to pay the damages Rs.2 crores only to the plaintiff with immediate effect. (v) To restrain the defendants and their officials for issuing Time Schedule without giving opportunity and adopting procedure of law. (vi) Decree the suit in favour of the plaintiff with cost. Any other relief which this Hon'able Court may deem fit and necessary in favour of the plaintiff in the interest of justice".

2. On 18-4-2014, the learned A.A.G. for the State filed an application under Order VII, Rule 10 C.P.C. On 21-4-2014, Mr. Z, K, Jatoi, advocate filed an application under Order I, Rule 10, C.P.C. (CMA No.5265/2014) on behalf of two applicants/interveners, namely, (i) Ali Muhammad Memon and (ii) Mubarak Ahmed. Thereafter, on 9-5-2014, Mr. Moula Bux Khoso, advocate filed an application under Order I, Rule 10(2) C.P.C. (CMA No.6167/2014) on behalf of four applicants/interveners, namely, (i) Raj Kumar, (ii) Maqsood Ahmed, (iii) Shahzad Khan and (iv) Zafar Hussain.

3. On 20-5-2014, Mr. Moula Bux Khoso, advocate for interveners raised the issue of maintainability of the suit in view of territorial jurisdiction of this Court. Therefore, the matter was fixed for hearing of all pending applications as well as on the issue of maintainability of the suit.

4. I have heard the learned counsel for the parties and perused the material available on record.

5. Mr. Mehmood Habibullah, the learned counsel for the plaintiff, has contended that although the subject matter pertains to outside civil district of Karachi and in district Hyderabad and Mirpurkhas, but the defendants Nos.1 and 2 are residing at Karachi; therefore, this Court has jurisdiction to entertain the suit. He has further contended that even otherwise restriction contained in sections 16, 17, and 20, C.P.C. do not apply to the High Court in exercise of its regional civil jurisdiction in view of section 120, C.P.C. In support of his contentions, the learned counsel has placed his reliance on the case of West Pakistan Industrial Development Corporation v. Messrs Patch Textile Mills Ltd. (PLD 1964 (W.P.) Karachi 11).

6. Conversely, Mr. Z.K. Jatoi, learned counsel for the interveners, has contended that all the defendants are government officials, out of them; the defendants Nos.1 and 2 are formal parties as the plaintiff has neither claimed any relief against them nor he pleaded any cause of action against them. He has also contended that the most if from the contents of the plaint any cause of action has accrued to plaintiff to maintain the present suit, that has accrued against the defendants Nos. 3, 4 and 5, who are the government officials, posted at Hyderabad and Mirpurkhas. He has further contended that the order bearing No. DRTA/ HYD/790/-2014, dated 14-2-2014, which is subject matter of the present suit, was issued by the defendant No.4, for Time Schedule to ply public vehicles/transport between Hyderabad and Mirpurkhas; therefore, no cause of action has accrued to the plaintiff within civil district of Karachi and on this score, the plaint is liable to be returned to plaintiff for its presentation to the Court having jurisdiction in the matter.

7. Mr. Moula Bux Khoso, the learned counsel for the interveners, while approving the contentions of Mr. Z. K. Jatoi, advocate has asserted that the plaintiff has not come with clean hands and he has attempted to get a decree from this Court behind the interveners by misrepresentation and suppressing the real facts of the matter.

8. I have given my anxious consideration to the contention of learned counsel for the parties and material available on record.

9. It is an admitted position that the subject Time Schedule has been issued by the defendant No.4 (District Regional Transport Authority Hyderabad) and the plaintiff is supervising the vehicles in Hyderabad and Mirpurkhas districts, which does not come within civil jurisdiction of Karachi. The absolute rule for the institution of civil suits should be to institute such suits in the Court where the cause of action, wholly or in part, arises. Such suits may also, at the option of plaintiff, be instituted in a Court within the local limits of whose jurisdiction the defendant resides or carries on business or personally works for gain. Therefore, in the instant suit despite fact that the cause of action for filing suit has arisen to plaintiff at Hyderabad or Mirpurkhas districts, it could be instituted at Karachi if defendants were/are residing or carrying on their business or personally work for gain within civil district of Karachi.

10. However, in the present suit, manifestly, the defendant No.1 (Province of Sindh) can neither be said to reside nor to carry on business nor work for gain within the jurisdiction of this Court, because this qualification applies to only natural person. Reliance in this regard is made on the case of Master Mehboob Ali Soomro and another v. Sindh Road Transport Corporation through Chairman and 2 others (1999 CLC 1722). As far as the defendant No.2 (Secretary, Provincial Transport Authority, Karachi) is concerned, the plaintiff has not pleaded against the defendant No.2 and therefore, no cause of action has accrued to plaintiff against him. Therefore, defendant No.2 has been added deceptively in the suit solely to create an impression of jurisdiction of this Court in the matter, which it does not otherwise possess.

11. The defendants Nos. 3, 4 and 5 are serving out of civil district of Karachi; hence, neither the cause of action has accrued to plaintiff for filing of the instant suit within the civil district of Karachi nor are the main defendants Nos.3, 4 and 5 residing in Karachi. The case-law cited by the learned counsel for the plaintiff is distinguishable so far the facts of the instant case are concerned.

12. For the foregoing facts and circumstances of the case, I am of the view that this Court has no jurisdiction in the matter. As a result, the plaint is liable to be returned to the plaintiff for presentation to the Court having jurisdiction in the matter. Office is directed to return the plaint to the plaintiff after retaining photocopy of the same on record. MH/J-15/Sindh Plaint returned.