P L D 2021 Lahore 186 (PLP)

JAWAD HASSAN, J.

This judgment will decide the titled F.A.O which has been filed by the Appellant, Bahoo Dying Industries (Private) Limited, through its duly authorized Chief Executive under section 104 read with Order XLIII Rule 1(A) of the Code of Civil Procedure, 1908 (the "C.P.C.") to challenge the legality of order dated 08th of November, 2017 (the "Impugned Order") passed by the Gas Utility Court/Additional District Judge, Lahore (the "Gas Utility Court") and will determine the important question of territorial jurisdiction of the Gas Utility Court at Lahore regarding the cause of action, which arose in favour of the Appellant in Lahore while the utility bill for the consumption of gas was generated from District Sheikhupura by the Respondent, Sui Northern Gas Pipelines Limited (the "SNGPL") whereas all other utility bills and local government taxes are generated as well as levied against the Appellant at Lahore. I. GIST OF THE ISSUE

2. The Appellant, Bahoo Dying Industries Private Limited, is a private limited company incorporated under Companies Ordinance, 1984 (now the Companies Act, 2017), which mainly deals in dying, processing and finishing of textile industry. The Respondents were providing Industrial Gas supply facility to the Appellant Company at its official premises situated at Al-Hilal Road/Baradari Road, Shahdara Lahore since 1996 under Reference No.95037410008 through Gas Meter No.RC00843494. The Appellant instituted a civil suit against the Respondents for declaration and recovery of Rs.1,088,398/- along with the interest, which amount, according to learned counsel for the Appellant, the Respondents have received on the pretext of previous outstanding balance, without any legal justification as nothing was outstanding on behalf of the Appellant Company. The Gas Utility Court directed the Appellant Company to deposit this amount as required by section 29(1) of the Gas (Theft Control and Recovery) Act, 2016 (the "Gas Theft Act") before granting any relief on which the Appellant had deposited the said amount in order to keep its business running. Then, the Respondents filed an application under Order VII, Rule 10 of C.P.C. seeking return of the plaint of suit filed by the Appellant Company with the plea that the Gas Utility Court at Lahore has got no territorial jurisdiction to entertain and adjudicate upon the matter in issue, which was accepted by Gas Utility Court after holding that as Sheikhupura Zone of the SNGPL was providing gas facility to the Appellant Company, therefore, only the Gas Utility Court at Sheikhupura has jurisdiction to deal with the matter. II. SUBMISSIONS FROM THE APPELLANT'S SIDE

3. Mr. Ali Masood Hayat, ASC submits that the Appellant filed suit for declaration, recovery of Rs.1,088,398/- along with interest with permanent and mandatory injunction as consequential relief against the SNGPL before the Civil Court but after promulgation of the Gas (Theft Control and Recovery) Ordinance, 2014 (the "Ordinance") all the proceedings pending before the Civil Courts relating to the gas matters were remitted to the Additional District Judges/Gas Utility Courts by operation of the law. However, in the year 2015, the Ordinance lapsed and the said matters were returned back to the Civil Courts but ultimately, when the Gas Theft Act was enacted on 23rd of March, 2016, all the pending proceedings pertaining to gas matters were again referred back to the Additional District Judges/Gas Utility Courts. Mr. Ali Masood Hayat, ASC further submits that during pendency of the suit, on application filed by the SNGPL, the Impugned Order was passed by the Gas Utility Court, which, after discussing the issue of territorial jurisdiction, returned the plaint to the Appellant under Order VII, Rule 10 of C.P.C. to be presented before the Gas Utility Court at Sheikhupura. He maintains that the Appellant Company is situated in Lahore; paying its property tax to the Excise, Taxation and Narcotics Control Department, Government of Punjab at Lahore Zone; paid local license fees for Godown at T.M.A. Ravi Town Lahore for year 2014-2015, 2015-2016 and 2016-2017; paid license fee for 2015 and 2016 to the City District Government, Lahore for the very premises; and paid sanitation fee for the premises of the Company to the Lahore Waste Management Company, City District Government, Lahore for the year 2014-2015, 2015-2016 and 2016-2017. The copy of land revenue record issued on 26.11.2002 also shows that land of the Appellant Company is situated within Muhaal Jia Musa at Shahdra, which falls within the territorial limits of the Lahore City. Therefore, it is apparent that the cause of action relates to the gas connection installed at the premises which is within the territorial limits of Lahore. Hence, the Gas Utility Court at Lahore has jurisdiction to deal with the matter and mere factum that the bill for the gas consumption was generated at Sheikhupura, does not take away the jurisdiction vested otherwise by law. III. SUBMISSIONS OF THE RESPONDENT'S COUNSEL

4. On the other hand, Mr. Umer Sharif, ASC representing the SNGPL submits that the bills were issued to the Appellant at Sheikhupura, hence, only Gas Utility Court at Sheikhupura is competent to take cognizance of the matter and Gas Utility Court Lahore has rightly rescued itself from deciding the lis between the parties and returned the plaint for its presentation before the competent Court. Mr. Umer Sharif, ASC has requested for dismissal of the instant appeal being meritless and non-maintainable.

5. I have heard arguments of learned counsel for the parties and perused the record. IV. NUB OF THE MATTER

6. After hearing the learned counsel for the parties and perusing the pleadings of both sides, nub of the matter, which needs determination of the Court in the instant Appeal is as under:- I. Whether the Gas Utility Court at Lahore or the Gas Utility Court of Sheikhupura has jurisdiction to deal with the issue in hand under the Gas Theft Act? V. ANALYSIS (i) WHAT IS JURISDICTION?

7. The core issue before this Court is with respect to the territorial jurisdiction of the Gas Utility Courts established and functioning under the Gas Theft Act. The maxim "ubi jus ibi remedium" is a fundamental principle of law and of natural justice, which provides that every person, who has a right, must also have a remedy and for enforcing remedy against violation of such right, there must be a proper forum to ensure enforcement of these rights. The forum for adjudication may be a general legal forum established under a general law or may be a special forum constituted/declared and functioning under a special law, which means that such legal forum has "jurisdiction" to adjudicate upon the matter. The term 'jurisdiction' means the authority of a person/ authority/legal forum to decide a matter. It means power of the Court to hear, determine and adjudicate upon a controversy by exercising its legal/judicial power and authority. The Black's Law Dictionary has defined the term jurisdiction as under:- Jurisdiction: "A Court's power to decide a case or issue a decree .A geographic area within which political or judicial authority may be exercised. (Black's Law Dictionary, 11th Edition by Brayan A. Garner, p-1017)"

8. The concept of jurisdiction has its genesis in the physical power of a Court to issue process to persons within the reach of the Court. The jurisdiction of a legal forum/Court includes its (i) territorial jurisdiction; (ii) pecuniary jurisdiction; and (iii) subject matter jurisdiction. The jurisdiction is always conferred upon the Courts by a law and it cannot be decided by the parties inter se. The territorial jurisdiction refers to a Court's power over actions and parties within the bounds of a particular territory. If a Court does not have territorial jurisdiction over the events or persons within it, then the Court cannot give a binding decision regarding the rights of the parties. This concept was elaborated by the Hon'ble Supreme Court of Pakistan in the case of Messrs Muhammad Tufail and Company through Muhammad Tufail (deceased) through Legal Heirs (PLD 2017 SC 51) wherein it was held that "Section 20, C.P.C. confers jurisdiction on a Court in two ways. Firstly, on the basis of where a defendant(s) resides, carries on business or works for gain within its local limits. Secondly on the basis of where the cause of action wholly or in part arose within its local limits. Jurisdiction means the authority to decide. The concept of jurisdiction of a Court encompasses (i) territorial jurisdiction, (ii) pecuniary jurisdiction and (iii) subject matter jurisdiction. The concept of jurisdiction has its genesis in the physical power of a Court to issue process to persons within the reach of the Court. Shorn of all extraneous 'frills', this is the essence of jurisdiction. A Court is to decide matters when persons relating thereto are within its reach. This basic jurisdiction is then regulated by defining the limits of that 'reach' by setting pecuniary limits, or by assigning different 'subjects' within one territory to different Courts, for example, by assigning banking and environmental matters to different Courts within one territory."

9. It is settled law that whenever a challenge is made to the jurisdiction of the Court, such Court is obliged to decide the matter of its jurisdiction first by taking into account all the relevant facts. However, the Courts have inherent jurisdiction to decide the question of their own jurisdiction with respect to a specific matter and jurisdiction of a Court is initially determined by the pleadings of the parties. If the Court reaches upon the conclusion that it does not have the jurisdiction to decide the lis before it, the Court should return the plaint under Order VII, Rule 10, C.P.C. because decision will have a binding force only when same is passed by a Court of competent jurisdiction. In this case, the Appellant has challenged the order of the Gas Utility Court whereby plaint of the Appellant's suit was returned with observation that since the property is not situated within the territorial jurisdiction of the said Court and as per notification of the SNGPL for Sheikhupura Region Establishment, Shahdra falls within the Sheikhupura Zone and even in the District Judiciary System, after crossing Ravi Bridge, Tehsil Ferozwala (District Sheikhupura) start function, so, the Gas Utility Court at Lahore lacks jurisdiction. (ii) ESSENTIAL FACTORS WHICH REQUIRE CONSIDERA-TION OF THE COURT WHILE DECIDING APPLICATION UNDER ORDER VII RULE 10 OF THE C.P.C.

10. First of all, I would like to discuss the relevant provision dealing with the return of plaint i.e. Order VII Rule 10 of the Code, which is reproduced hereunder:

10. Return of plaint. (1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. (2) Procedure on returning plaint.

On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

11. The principles for return of plaint were discussed in detail by this Court in the judgment reported as Taisei Corporation v. A.M. Construction Company (Pvt.) Ltd. (PLD 2012 Lahore 455), the relevant portion of which is given as under:- "

21. The provisions of Order VII, Rule 10 of C.P.C. as reproduced above are in fact the incorporation of the fundamental principle of law that only a Court or Tribunal having the jurisdiction to entertain and adjudicate upon a matter is competent to proceed with the matter and if an objection to the competence of the institution of the suit before a Court of law under the C.P.C. is raised and the objection is sustained, the Court is to return the plaint for its presentation to the Court in which the suit should have been instituted.

22. In order to truly understand the concept of the application of the provisions of Order VII, Rule 10 of C.P.C. the case-law has settled the methodology by laying down the law that for the purposes of deciding the application under Order VII, Rule 10 of C.P.C. the contents of the plaint as presented in the Court are only to be looked into particularly if the objection qua the jurisdiction as raised is to be decided only on the basis of legal arguments addressed by the parties. If the question of jurisdiction requires probing into some disputed facts, then the matter has to be resolved after framing of necessary issue and recording of evidence of the parties.

12. Hence, the Gas Utility Court was required not only to look into the contents of the plaint but also to consider the documentary evidence annexed and filed along with the plaint, which forms its part from the date of institution of the suit, in order to form a conclusion which must have a definitive and well substantiated answer. If the Gas Utility Court was required to frame issues for determining the very question, it should have done the same. As the question of jurisdiction is a mixed question of law and fact and must not be decided lightly unless strong and convincing grounds are available on the face of the plaint coupled with attached documentary evidence so as to pass a definitive verdict thereon. It was held by the Hon'ble Supreme Court of Pakistan in the case of Bank of Credits and Commerce and others v. Asrar Hassan and others (2007 SCMR 852) that "the High Court has rightly refrained from dilating on the question relating to the territorial jurisdiction and maintainability of the suit against the Appellants in Pakistan. This may be noted that the question of fact or a mixed question of law and fact, cannot be effectively decided without recording the evidence and learned counsel for the Appellants has not been able to satisfy us that in the facts of the present case, the question relating to the jurisdiction of Courts in Pakistan to entertain the suit and adjudicate the claim of respondent against the Appellants is patently a question of law." (iii) HOW TERRITORIAL LIMITS OF A COURT/GAS UTILITY COURT ARE DETERMINED?

13. In legal parlance territorial jurisdiction means a specific area over which a Court can exercise its authority. The Black's Law Dictionary defines the term 'territorial jurisdiction' as under:- "Territorial jurisdiction.

1. Jurisdiction over cases arising in or involving persons arising in or involving persons residing within a defined territory.

2. Territory over which a government, one of its Courts, or one of its sub-divisions has jurisdiction. (Black's Law Dictionary, 11th Edition by Brayan A. Garner, p-1020)"

14. Under the Code of Civil Procedure, 1908, limits of territorial jurisdiction of a Court are provided in Sections 16 to 20 thereof. The question of territorial jurisdiction is initially determined merely by contents of the plaints, the documents attached therewith, on the basis of other relevant material and the cause of action existing at the time of institution of a suit. It is only the facts which have nexus or relevance with the issues raised in the litigation which vest the Court with the territorial jurisdiction. Moreover, Section 20 of the C.P.C. lays down general rule regarding the legal fora for institution of suits relating to personal actions. It confers territorial jurisdiction upon a Court to decide all the cases in which the defendant resides, carries on business or personally works for gain, or in which the cause of action arises wholly or partly within the local limits of such Court. (Emphasis applied). So, this provision brings forth choice for the Appellant and a right to select a forum out of the alternatives provided under this provision. It may also be observed that for determining the territorial jurisdiction of a Court wherein a suit is to be filed clause (c) of the aforesaid Section postulates that a suit can also be filed in a Court within the local limits of whose jurisdiction the cause of action wholly or in part arose. It must be remembered that even fraction of a cause of action is a part of the cause of action and, therefore, if even a fraction of the cause of action accrues within the local limits of the jurisdiction of a Court, that Court has the jurisdiction to entertain the suit. Clause (c) of Section 20 of the C.P.C. is based on broad principle to avoid multiplicity of proceedings and inconvenience to the parties. In the case of Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. (1981 SCMR 494), the Hon'ble Supreme Court has held that under section 20 of C.P.C. the Appellant has three choices of forums; "The conjunction or separates all the three clauses (a), (b) and (c) of Section

20. Subject to limitations, pecuniary or otherwise, referred in the earlier provisions of the C.P.C., Section 20 contains a general provision embracing all personal actions. The Appellant has three options thereunder to sue: where the defendant or each of the defendants actually resides, carries on business or personally works for gain (clause `a'); or, in case there are more than one defendants, any of them besides, carries oil business or personally works for gain (clause `b'); or, at the place where the cause of action, wholly or in part, arises (clause 'c').

15. Likewise Section 4 of the Gas Theft Act provides that the Court having jurisdiction under this Act shall be a Gas Utility Court having jurisdiction in the place in which the Gas Utility Company, consumer (emphasis applied), gas producer or offender, as the case may be, is situated. This Section provides that jurisdiction of a Court can be determined on the basis of four elements i.e. Gas Utility Company, consumer, gas producer or offender. So, a Court within whose jurisdiction any one of the four elements exist, has jurisdiction to deal with the matter. As in the instant case, it is the consumer who has a grievance against the Gas Utility Company, hence, the Appellant Company was entitled to file its suit in a Court where it is situated and where the gas meter was installed on its premises i.e. District Lahore.

16. From the above discussion, it is quite clear that a suit can be filed within the territorial jurisdiction of a Court, where the defendant or any of the defendants actually resides, carries on business or personally works for gain or, at the place where the cause of action arises. (iv) OVERVIEW OF THE GAS THEFT ACT

17. Before proceeding further, it will be advantageous to have a glimpse of relevant provisions of law. The preamble of the Gas Theft Act clearly provides that WHEREAS it is expedient to prosecute cases of gas theft and other offences relating to gas and to provide for a procedure for expeditious recovery of amounts due, value of gas, fines, penalties and other outstanding amounts payable and sums due to Gas Utility Companies and for matters ancillary and related thereto. Gas Utility Courts are established under section 3 of the Gas Theft Act which provides as follows:-- "

3. Constitution of Gas Utility Courts.

(1) The Federal Government may, in consultation with Chief Justice of the High Court concerned, and by notification in the official Gazette, establish as many Gas Utility Courts in a district as it may deem necessary for the purposes of this Act and appoint a Judge for each of such Courts from amongst the District and Sessions Judges in that district. Explanation.- For the purpose of this subsection, District and Sessions Judge includes Additional District and Sessions Judge. (2) Where more Gas Utility Courts than one have been established to exercise jurisdiction in the same territorial limits the Federal Government shall define the territorial limits of each such Court. (3) Where more Gas Utility Courts than one have been established in the same or different territorial limits, the High Court may, if it considers it expedient to do so in the interests of justice or for the convenience of parties or of the witnesses, transfer any case from one Gas Utility Court to another."

18. Likewise, Section 4 of the Gas Theft Act provides that a Gas Utility Court shall have exclusive jurisdiction with respect to all matters covered by this Act. As a ready reference, Section 4 of the Gas Theft Act is provided below: "

4. Exclusive jurisdiction of Gas Utility Court.

(1) A Gas Utility Court shall have exclusive jurisdiction with respect to all matters covered by this Act. (2) The Court having jurisdiction under this Act shall be a Gas Utility Court having jurisdiction in the place in which the Gas Utility Company, consumer, gas producer or offender, as the case may be, is situated."

19. Section 5 of the Gas Theft Act provides that a Gas Utility Court in the exercise of its civil jurisdiction shall have all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 and in the exercise of its criminal jurisdiction while trying offences punishable under this Act, shall have the same powers as are vested in a Court of Sessions under the Code of Criminal Procedure, 1898. Likewise, section 6 states that where a person is involved in an offence under this Act or where there are sums due or recoverable from any person, or where a consumer has a dispute regarding billing or metering against a Gas Utility Company, a consumer or Gas Utility Company, as the case may be, may file a complaint or suit, as the case may be, before a Gas Utility Court as prescribed by the Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1898. IV. DETERMINATION (i) WHETHER THE PRESENT LIS FALLS WITHIN THE TERRITORIAL JURISDICTION OF GAS UTILITY COURT AT LAHORE?

20. In order to determine its jurisdiction to entertain a lis under the Gas Theft Act, the Gas Utility Court must go through the entire facts pleaded in support of the cause of action and only then it can decide the question as to whether the Court has got the jurisdiction to decide the dispute itself or has to return the plaint for its presentation before any other competent forum by examining the provisions of Sections 3 and 4 of the Gas Theft Act.

21. It is settled law that only those facts which have a bearing upon the lis or the dispute involved in the case, give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. All other facts which have no nexus or relevance with the lis are to be ignored for the purpose of determination of territorial jurisdiction. In the present case, the facts, which have a nexus with the lis or the dispute, have all arisen in Lahore, which is within the territorial jurisdiction of the Gas Utility Court, Lahore because the consumer i.e. Bahoo Dying Industries Private Limited is situated within the precinct of the District Lahore and this fact is established from its official address i.e. Messrs Bahoo Dyeing Industries Private Limited, Al-Hilal Road/Baradari Road, Shahdara Lahore, duly mentioned on the tariff bill issued by the Respondents and annexed with the Appeal. This fact also stands corroborated from other official documents annexed with the Appeal e.g. Electricity Bill issued by LESCO, Excise and Taxation challans issued by Rating Area LHRII-Zone-11, Licence Fee issued by the Town Municipal Authority of Ravi Town, Lahore, Sanitation Fee Bills issued by the Waste Management Company of Lahore under the Control of the City District Government Lahore. So for all intent and purposes, the Appellant Company i.e. "consumer" of the Respondent Company/SNGPL is situated within the precincts of District Lahore and thus well within the territorial jurisdiction of the Gas Utility Court at Lahore as per Section 4(2) of the Gas Theft Act. (ii) WHETHER JURISDICTION OF A COURT CAN BE CURTAILED THROUGH A NOTIFICATION?

22. The Gas Utility Court Lahore has erred while deciding question of its territorial jurisdiction on the basis of a notification dated 18.08.2010 regarding establishment of Sheikhupura Division. Relevant paragraph of the Impugned Order of the Gas Utility Court is reproduced hereunder:- "Moreover, he impleaded Executive Engineering Billings (SNGPL) regional office Nabi Pura and Shahdara as defendants, it is clarified that property is not situated in territorial jurisdiction of present Court; as per Sheikhupura region establishment notification, dated 18.08.2010, the geographical spread of Sheikhupura zone will comprise:- Sheikhupura, Shahdara, Muridke, Sharaqpur, Nankana Sahib, Begum Kot, Narang Mandi, Sangla, Faroqabad, (sic), Manawala, Wqarburton etc., and the villages under these area. Interpretation as under: After crossing the Ravi Bridge, all areas fall within Sheikhupura Zone having its independent Incharge/GM/RM, who is totally separate from Lahore Zone and its GM. Even in Judiciary System, after crossing Ravi Bridge, Tehsil Ferozwala (District Sheikhupura) and Ferozwala Civil Courts start function."

23. Perusal of above-quoted paragraph of the Impugned Order establishes that on the basis of above said notification, the Gas Utility Court was swayed to pass the Impugned Order dated 08.11.2017, returning the plaint of the Appellant due to the assumed lack of territorial jurisdiction to decide the lis. Further, the Gas Utility Court has also erred in deciding the application under Order VII Rule 10 on the surmises that the jurisdiction of Gas Company over a specific area will also be detrimental factor to decide the jurisdiction of the Gas Utility Court, which is against section 4(2) of the Gas Theft Act. The said notification was neither meant nor issued for the purpose of deciding the territorial jurisdiction of the Courts but it was issued for internal management affairs of the Respondent Company and for the billing purposes only. The jurisdiction of the Court is decided through an enactment as per Sections 3 and 4 of the Gas Theft Act and the same cannot be bestowed or taken away by departmental notification issued for the purposes of internal working arrangement. In Punjab, whole Province is divided into civil districts and the Government can fix the limits of such districts and determine the headquarters of each such district. For ready reference, section 4 of The Punjab Civil Courts Ordinance 1962 is provided below:

4. Civil Districts.

For the purposes of this Ordinance, Government may, by notification, divide the province into civil districts, fix the limits of such districts and determine the headquarters of each such district. (iii) WHICH GAS UTILITY COURT HAS TERRITORIAL JURISDICTION OVER THE MATTER?

24. As far as territorial jurisdiction over the lis between the parties is concerned, perusal of the record clearly shows that the bills were issued to the Appellant Company at Lahore where its premises is situated and subsection (2) of Section 4 of the Gas Theft Act clarifies that the Gas Utility Court will assume jurisdiction where (i) the Gas Utility Company; (ii) the consumer; and (iii) the gas producer or the offender are situated (Emphasis Supplied). The Gas Utility Court could not appreciate the fact that law provides the Appellant Company a choice to seek its remedy from the Court within whose territory cause of action has arisen and likewise Section 4 of the Gas Theft Act also empowers the "consumer" to seek its remedy from the Court wherever such consumer resides/situated. It is settled law that an administrative notification cannot take away the rights conferred upon a person by a codified law. The notification cannot take precedence over the codified law and in case of any conflict between an administrative notification and a law, latter will prevail and such notification which is in conflict with, or in derogation of, the substantive provisions of the law or statute is not sustainable.

25. Accordingly, in view of the aforesaid discussion, as the consumer company, the Appellant, is situated within the territorial limits of Lahore and cause of action has also arisen in Lahore, so the Gas Utility Court, Lahore has the territorial jurisdiction to entertain and adjudicate upon the suit filed by the Appellant Company and it was not justified to return the plaint of the Appellant Company on the pretext of lack of territorial jurisdiction.

26. Hence, this appeal is allowed and the Impugned Order is set-aside. The matter is remanded to the Gas Utility Court, Lahore to decide the same on merit strictly in accordance with the relevant provisions of the Gas Theft Act within two months from the date of receipt of certified copy of this judgment. Disposed of. SA/B-13/L Appeal allowe