P L D 1964 (W (PLP)

This is an application under Order VII, rule 11, r/w section 16, C. P. C. made by the defendants. Since the jurisdic tion of this Court is questioned the proper Rule applicable will be rule 10 rather than rule I1 of Order VII. Rule 11 will not apply since want of jurisdiction is the basis of objection, and the objection is based not on any legal bar caused by rule 11.

2. The grounds of objection are : (1) that the property it dispute, namely, Talpur Textile Mills consists of extensive lands heavy machinery, looms, spindles and buildings, being immovable property situated at Tando Muhammad Khan in Hyderabad Division of West Pakistan, outside the ordinary Civil Jurisdiction of this Court and the suit could not be filed here, and (2) that the defendants‑company is registered under the Companies Act with its registered office at Kali Road, Hyderabad and all its Directors are also ordinarily residents of Hyderabad. It was therefore urged that the suit being for possession of the property in question this Court had no jurisdiction to entertain it, and therefore it was prayed that the plaint be returned to the plaintiff.

3. For the proposition that the suit was for possession the learned counsel for the defendants referred to the heading of the plaint which reads "The West Pakistan Industrial Development v. Messrs Fateh Textile Mills Ltd., a company incorporated under the Companies Act, 1913 having their registered office at Kali Road, Hyderabad and a branch office at Marriot Road, Karachi‑Defendants." He also referred to paras 15, 16, 18, 19 and 22 of the plaint. In these paras it is inter alia stated that the plaintiffs are entitled to resume the possession and management of Talpur Textile Mills (para. 16), the plaintiff's cause of action to obtain possession and management of the Talpur Textile Mills arose (para. 18) "for the purpose of jurisdiction and Court fees, the plaintiffs have valued their claim for possession of the mills at Rs. 70,00,000 . . . " (para. 19), "the plaintiffs pray for a decree in the following terms "(a) for a decree by this Honourable Court directing the defendants‑company to hand over the possession and manage ment of the Talpur Textile Mills to the plaintiffs . . . . . ." (para. 22).

4. Mr. Brohi the learned counsel for the plaintiffs argued that the suit was not for possession in the strict sense of the term but was for a resumption of management by the plaintiffs handed over by them to the defendants. For that purpose he referred me to the agreement marked B' the last para of which reads "Messrs Fateh Textile Mills Ltd. undertake to prepare the Memorandum and Articles of Association of the aforesaid public limited Company with the privity of P. I. D. C. and get it incorporated and registered within six months from the date thereof or at any time earlier than the period herein reserved, failing which, P. I. D. C. shall resume the management of Talpur Textile Mills, unless the delay information of the said public limited company is due to causes beyond the control of Messrs Fateh Textile Mills Ltd."

5. According to para 20 of the plaint This Honourable Court has jurisdiction to entertain this suit as the agreement in question between the parties were made in Karachi and the defendant‑company has an office and carries on business in Karachi.

6. The provisions regarding the "place of suing" are to be found under sections 15 to 20 of the C. P. C. Sections 17, 18 and 19 are not relevant for the purpose of this suit. The relevant sections 15, 16 and 20 are reproduced below "Section 15.‑Every suit shall be instituted in the Court of the lowest grade competent to try it. Section 16.‑Subject to the pecuniary or other limitations prescribed by any law, suits‑ (a) for the recovery of immovable property with or without rent or profits ; (b) for the partition of immovable property ; (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property ; (d) for the determination of any other right to or interest in immovable property ; (e) for compensation for wrong to immovable property ; (f) for the recovery of movable property ; actually under distraint or attachment; shall be instituted in the Court within the local limits of whose jurisdiction the property is situate, or in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen : Provided that a suit to obtain relief respecting, or compensa tion for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Section 20.‑Subject to the limitation aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction‑ (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, 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 personally work for gain provided that in such case either the leave of the Court is given, or the defendant who do not reside, or carry ion business, or personally work for gain, as aforesaid, acquiesce in such institution ; or (c) the cause of action, wholly or in part, arises."

7. The learned counsel for the defendants Mr. Ghani relying on sections 16 and 20 argued that the suit being for the recovery of immovable property had to be filed in the District Court of Hyderabad which Court had local as well as pecuniary jurisdiction to entertain it. He relied on Kunja Mohan Chakarvarty and another v. Monidra Chandra Roy Chaudhury and another (A I R 1923 Cal. 619), New Mojussil Co. Ltd. and another v. Shanker Lai Narayandas Mundade (A I R 1941 Bom. 274) and P. M. A. Vellippa Chettiar and others v. Saha Govinda Doss and others (A I R 1929 Mad. 721). In Bombay and Calcutta cases interpretation of sections 16 and 21 of the C. P. C. were involved. In the Madras case the construction to be put on clause 12 of the Letters Patent was involved. Clause 12 reads :‑ "To try and determine suits of every description, if, in the case of suits for land or other immovable property, such land or property shall be situated, or, in all other cases, if the cause of action shall have arisen, either wholly or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commence ment of the suit shall dwell or carry on business, or personally work for gain, within such limits." It will appear that clause 12 corresponds very nearly to section 16, C. P. C. without its proviso.

8. As rightly pointed out by Mr. Brohi sections 16, 17 and 20 do not apply to the High Court in the exercise of its original civil jurisdiction by virtue of the provisions of section 120, C. P. C‑1 This section reads "The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17 and 20." It is thus obvious that sections 16, 17 and 20 which prescribe the necessary conditions for giving the Court its jurisdiction and also the limitations under which such jurisdiction is given may not be available for the parties in this case.

9. So far as the jurisdiction under clause 12 of the Letters Patent is concerned it is not the case of the parties or any one pf them that this Court has any such jurisdiction to enable it to entertain the present suit. It was agreed by the learned counsel for the parties that the original civil jurisdiction of this High Court is derived under section 5 of the High Court of West Pakistan (Establishment) Order (No. XIX) of 1955. Section 5 reads "Original Civil and Criminal jurisdiction of the Bench at Karachi‑Notwithstanding anything in this Order or in any other law for the time being in force, the Bench of the High Court at Karachi shall have the same original civil jurisdiction for the civil district of Karachi and the same criminal jurisdic tion and powers of the Court of Sessions for the Sessions Division of Karachi, as were exercisable, immediately before the commencement of this Order, by the Chief Court of Sind under section 8 of the Sind Courts Act, 1926 (Sind Act VII of 1926) Provided that the Governor‑General may by notification in the official Gazette direct that as from a specified date such jurisdiction and powers as are mentioned therein shall cease to be exercisable by that Bench and as from that date that Bench shall cease to exercise that jurisdiction and powers." The original civil jurisdiction for the Civil District of Karachi was exercised immediately before the commencement of this Order (Order XIX of 1955), by the Chief Court of Sind under section 8 of the Sind Courts Act, 1926 (Sind Act VII of 1926), as later amended by clause 2 of President's Order II of 1956. As section 8 of Act VII of 1926 stands, at present, the High Court has original civil jurisdiction in respect of suits and proceedings wherein the subject‑matter in amount or value exceeds 25,000 rupees.

10. In the absence of statutory provisions, including the restrictions fixing the place and forum of suing, as provided under sections 16, 17 and 20, C. P. C. Mr. Brohi, the learned counsel for the plaintiffs requisitioned what he called the common r law right available to the plaintiffs in Equity to sue a defendant, if he resides or carries on business within the jurisdiction of the Court. For this purpose Mr. Brohi relied on the following cases (1) I L R 24 Bom. 407 Kashinath Vovind v. Anant Sitaramboa which states The Courts of Equity in England, are, and always have been, Courts of conscience, operating in personam and not in rem ; and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of con tracts and trusts as to subjects which were not either locally or ratione domicilli within their jurisdiction." The jurisdiction of Courts in India is governed and must be ascertained by the same principles except so far as they may be at variance with legislative enactments. (2) A I R 1934 Sind 123 Dev Samaj Council, Lahore v. Amritlal Motilal and others which reads "The Courts in India like the English Courts have a limited jurisdiction to entertain suits relating to foreign immovable property. These Courts have power to exercise a jurisdiction in personam, in respect of foreign immovables against person locally within the jurisdiction, in case where there is an equity between the parties arising from contract, fraud, or trust provided that the decision of title be not directly involved. But such an equity must be of a personal nature, i.e. there must be either a fiduciary relationship or privity of some other kind between the parties." (3) 46 I L R 108 (sic) (Mahadeo Govind Suktandar v. Ram chandra Govind Suktankar and another which reads "A suit to recover mesne profits of lands situated outside British India, can in accordance with general principles of English Law, be instituted in a Court in British India. Section 16 of the Civil Procedure Code (Act V of 1908) has no application in the case of land outside British India, but there is no reason for thinking that the whole of the section (including the proviso) does not follow the English Law with regard to jurisdiction in the case of suits of the nature therein described."

11. In Suit No. 81/61 I have taken the view that this Court has jurisdiction to entertain suits in respect of properties lying outside the limits of Karachi District. The relevant portion of the observation in the judgment may be quoted "Section 120, C. P. C. provides that sections 16, 17 and 20 shall not apply to the High Court in the exercise of its original civil jurisdiction. According to Mr. Nizam Ahmed section 116, C. P. C. was amended by Ordinance XXI of 1960 dated 9‑6‑60 to its present shape. Before the Ordinance the pro visions of sections 16, 17 and 20 did apply to the Sind Chief Court. Under section 8 of the Sind Courts Act (Act VII of 1926) the Sind Chief Court had original jurisdiction extending to Karachi District where the value of the subject‑matter of the suit was over Rs. 25,

000. In my view the amendment of section 116, C. P. C. by Ordinance XXI of 1960, as stated by Mr. Nizam Ahmed, would not affect the jurisdiction of this Court. It is provided under section 5 of the High Court of West Pakistan Establishment Order, 1955 that : Notwithstanding anything in this Order or in any other law for the time being in force, the Bench of the High Court Karachi shall have the same original civil jurisdiction for the civil district of Karachi and the same criminal jurisdiction and powers of the Court of Sessions for the Sessions Division of Karachi, as were exercisable, immediately before the com mencement of this Order, by the Chief Court of Sind under section 8 of the Sind Courts Act, 1926 (Sind Act VII of 1926): Provided that the Governor‑General may by notification in the official Gazette direct that as from a specified date such jurisdiction and powers as are mentioned therein shall cease to be exercisable by that Bench and as from that date that Bench shall cease to exercise that jurisdiction and powers." The above order has not been amended and the High Court shall continue to have the same jurisdiction as it had before the amendment of section

116. The High Court had jurisdiction in a case where the defendant resided or carried on business within the limits of its original territorial jurisdiction. It is admitted that the defendants Nos. 1 and 2 do reside and carry on their business at Karachi. Prima facie this Court has therefore jurisdiction to entertain the suit, although the property in respect of which damages are claimed is not situate within the jurisdic tion of this Court nor did the cause of action arise within the Court's jurisdiction. The learned counsel for the plaintiffs also relied on this Court having jurisdiction on the General Principles of common law, equity and good conscience. For this purpose he relied on I L R 24 Born. 407, remarks at page 411, which reads "The general principle is clearly stated by Lord Cottenham in Ex parte Pollard (1840 Mont. and Chit., 239) where he says (pp. 250‑1) "If indeed the law of the country where the land is situate should not permit or not enable the defendants to do what the Court might otherwise think it right to decree, it would be useless and unjust to direct him to do the act ; but when there is no such impediment the Courts of this country, in the exercise of their jurisdiction over contracts made here, or in administering equities between parties residing here, act upon their own rules, and are not influenced by any consideration of what the effect of such contracts might be in the country where the lands are situate, or of the manner in which the Courts of such countries might deal with such equities." Then again, it is laid down by Lord Selborene in Ewing v. Orr Ewing (1883) 9 A C 34 at p. 40 : "The Courts of Equity in England, are, and always have been, Courts of conscience, operating in personam and not in rem ; and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of contracts and trusts as to subjects which were net either locally or ratione doinicilli within their jurisdiction, They have done so, as to land, in Scotland, in Ireland, in Colonies, :u foreign countries." In my opinion the jurisdiction of Courts in this country is governed and must be ascertained by the same principles except so far as they may be at variance with legislative enactment.

12. Sections 16, 17 and 20 and clause 12 of the Letters, Patent prescribe the forum and the place for suing. But these sections do not apply to High Court. Section 5 of the High Court of West Pakistan Establishment Order, 1955 and also E section 8 of Sind Act VII of 1926 do not prescribe the place of suing. Section 5, only saves the jurisdiction of Karachi Bench as exercised by it under section 8 of Sind Act of 1926. It is my view that the jurisdiction of the High Court has been enlarged rather than restricted by removing altogether the restrictions contained in sections 16, 17 and

20. The Legislature could never have intended to take away the jurisdiction of the West Pakistan High Court (Chief Court of Sind) altogether, since the High Court got that jurisdiction as a place of suing through these sections. Two alternative conclusions can arise from the non‑applicability of sections 16, 17 and 20, C. P. C. to the High Courts. Firstly that the West Pakistan High Court could not entertain any suit, whatsoever, and secondly, it could entertain suits from all places within its jurisdiction. It is true that all the District Courts except Karachi District Court have no limit prescribed to their pecuniary jurisdiction. The present suit could, therefore, be filed at Hyderabad. The question for F decision, however, before me is whether it could not be instituted in the High Court at Karachi. The restrictions prescribed by sections 16, 17 and 20, C. P. C. having been removed the original jurisdiction of the High Court is enlarged and it has jurisdiction to entertain the present suit. For the reasons discussed above I hold that the High Court has got jurisdiction to entertain the suit. The application is dismissed with costs. K. B. A. Petition dismissed.