2010 PLP 198 (MLD)

ARSHAD MAHMOOD, J.

This civil revision calls in question order, dated 6-4-2009 passed by the learned Additional District Judge Sahiwal dismissing application of the petitioner under Order VII Rule 10, C.P.C. for return of the plaint.

2. Facts of the case necessary for disposal of the civil revision are that respondent purchased 1000 metric ton of refined sugar for consideration of Rs.13,600 million, Payment was made on 16-5-2005. In case of non-supply of sugar, petitioner issued seven cheques in favour of respondent against the amount given by the respondent. On failure of petitioner to perform his part of contact the respondent presented cheques which were dishonoured on 12-4-2006. Consequently the respondent brought suit No. 26 of 2007 under the provisions of Order XXXVII, C.P.C. After receipt of notices/summons petitioner filed an application under Order VII Rule 11, C.P.C. which was dismissed being premature. Simultaneously petitioner moved an application for leave to appear and defend which was allowed and petitioner was granted conditional leave to appear and defend the suit. Instead of complying with the conditional order petitioner once again resorted to an application under Order VII Rule 10, C.P.C. Respondent filed reply thereto and the learned trial Court after hearing counsel, for the parties proceeded to dismiss the application vide impugned order, dated 6-4-2009. Hence this revision petition.

3. Learned counsel for the petitioner contended that the impugned order is illegal and unlawful. He went on to argue that the learned trial Court had no jurisdiction to entertain the suit, therefore, the condition imposed through the leave granting order is not binding on the petitioner. He maintained that question of jurisdiction should have been settled on the basis of admitted facts instead of imposing condition of bank guarantee. While referring to the provisions of section 20 of C.P.C. the learned counsel vehemently argued that in view of the fact that the agreement was executed at Karachi, the cheques were issued and dishonoured at Karachi, therefore, the Court at Sahiwal had never ever any jurisdiction to entertain suit of the respondent/plaintiff. The learned counsel emphasized that the learned trial Court did not bother even to peruse the documents annexed with the plaint which clearly substantiate the cause of action if any arose at Karachi, therefore, the Court at Sahiwal lack territorial jurisdiction. In support of his contentions the learned counsel heavily relied upon. "United Distribution Pakistan Ltd. v. Al Syed Agrochemical Services and others" (2005 CLC 1659), "Bashir Ahmad v. Meer Aslam Jan" (2007 CLC 1544) and "S. Raza Quli v. Miss Hyderi Quli and 13 others" (2001 CLC 1494).

4. I have given due considerations to the arguments advanced on behalf of the petitioner and examined the available record.

5. In the application petitioner did not controvert the claim of the respondent and raised the core ground of jurisdiction. Conditional leave was granted to consider this question. Petitioner having submitted to the jurisdiction of Court as also questioning its jurisdiction in the application for leave to defend, which was appreciated and conditional leave was granted, now is estopped by its conduct to behave in a hasty manner. According to the assertion of petitioner in the application of leave to appear and defend the issues of law and fact require detailed consideration, but instead of waiting for their adjudication by the learned trial Court petitioner resorted to the provisions of Rule 10 of Order VII, C.P.C., praying for return of plaint. Dismissal of application by the learned trial Court is, therefore, not open to any exception.

6. Leave to appear and defend the suit was conditional, therefore, without fulfilling the condition, petitioner could not move a step forward much less questioning jurisdiction of the Court. There is yet another fact of the case. Question of jurisdiction is the pivotal question before the learned Additional District Judge and any finding on the question in revisional jurisdiction by this Court would amount to usurp the jurisdiction of learned trial Court. The precedents preferred by learned counsel are distinguishable on facts.

7. It is well settled exposition of law that remedy of revision does not confer any substantive right which is merely a privilege. Revisional proceedings being between a higher Court and a lower Court the discretion cannot be exercised where the matter can subsequently be challenged in proceedings against the ultimate order. In the present case, petitioner will be at liberty to urge the question of jurisdiction in the written statement. The impugned order, being not whimsical, arbitrary, perverse or capricious, cannot be interfered in revisional jurisdiction, therefore, this petition having no merits is dismissed in limine. H.B.T./T-39/L????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.