1987 PLP 393 (SCMR)

JAVID IQBAL, J.‑‑This appeal is directed against, the judgment of the learned Single Judge of the Lahore High Court, Lahore passed on 6th March, 1978 in Civil Revision No. 582 of 1977. The facts are that Rana Muhammad Saleem respondent instituted a suit in the Court of Additional Administrative Civil Judge Lyallpur (Faisalabad) against the State Life Insurance Corporation of Pakistan (present appellant) for the recovery of Rs_40,000 plus interest thereon insured under a Special Survival Policy jointly in the names of the respondent and his wife which matured in the event of death of either of the insured. The wife of the respondent had died on 3rd October, 1972 but the appellant had refused to pay the insurance amount to the survivor respondent. In the plaint it was inter alia contended that the wife of the respondent had died at Lyallpur where she had been subjected to medical examination by the appellant before the issuance of the disputed insurance policy, that it was at Lyallpur that the premiums had been paid by the respondent to the appellant, and that the appellant had its sub‑offices at Lyallpur and, therefore, the civil Courts at Lyallpur had the jurisdiction to try the suit where the cause of action arose. The appellant objected to the territorial jurisdiction of the civil Courts at Lyallpur in view of the agreement between the parties to get any dispute adjudicated by the civil Courts at Lahore only in case it arose out of the policy in question between them. On the pleadings of the parties 11 issues were framed including Issue No. 1 to the effect as to whether the civil Court at Lyallpur had no jurisdiction to try the suit. On the application of the appellant the Additional Administrative Civil Judge tried Issue No. 1 as a preliminary issue and vide his order, dated 4th March, 1977 overruled the said objection maintaining that he had the jurisdiction to proceed with the case. Thereupon the present appellant filed a revision in the Lahore High Court, Lahore which was rejected by a learned Single Judge of that Court vide judgment and order, dated 6th March, 1978. Hence the present appeal. The main argument of the learned counsel for the appellant is that where two or more Courts have jurisdiction to try a suit, there is nothing contrary to public policy in an agreement between the parties that the disputes between them should be tried at one place rather than the other. In the present case the respondent as well as his deceased wife and the appellant had mutually agreed that the contract arising out of the insurance policy shall be deemed to have been completed at Lahore and the dispute if any in connection with the said insurance policy shall be decided at Lahore. Reliance in this regard was placed by the learned counsel on Musa Ji Lukman Ji v. Durga Dass A I R 1946 Lah. 57 wherein it was held that in a case where two or more Courts had jurisdiction, it was lawful for the parties to enter into an agreement that a suit between them would be filed and disposed of in a particular Court. It was further submitted that the aforesaid view was approved in M.A. Chowdhury v. Messrs Mitsui O.S.K. Ltd. and others P L D 1970 S C

373. On the basis of these pronouncements it was argued that the view of the Additional Administrative Civil Judge as well as of the learned Single Judge of the Lahore High Court, Lahore that the suit of the respondent was maintainable only before the civil Court at Lyallpur was not correct. We have considered the arguments of the learned counsel for the parties. Under section 9 of the Code of Civil Procedure the civil Courts have jurisdiction to try all suits of a civil nature excepting the suit of which their cognizance is either expressly or impliedly barred. Under section 20 of the Code of Civil Procedure every suit is to be instituted in a civil Court within the local limits of whose jurisdiction the defendant resides or carries on business or where the cause of action wholly or in part arose. Under section 28 of the Contract Act every agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals or which limits the time within which he may thus enforce his rights, is void to that extent. It is evident from a plain reading of these provisions that there is no absolute exclusion of jurisdiction under section 9 or section 20 of the Code of Civil Procedure nor there is any violation of the provisions of section 28 of the Contract Act when two or more Courts have jurisdiction to try a suit and the parties mutually agree to choose or take their dispute to one of them. The civil Courts exercise their jurisdiction under the Code of Civil Procedure. If they do not possess such jurisdiction under the Code it cannot be conferred on them through a mutual agreement of the parties to a dispute. But in a situation where two or more Courts have jurisdiction to try a suit under the Code of Civil Procedure, then an agreement between the parties that any dispute arising between them shall be tried only by one of such Courts could not be considered contrary to public policy as it would neither contravene the provisions laid down in section 28 of the Contract Act nor would it violate in any manner the provisions of section 9 or section 20 of the Code of Civil Procedure. In the light of the above discussion the appeal is allowed and the order passed by the Additional Administrative Civil Judge Lyallpur, dated 4th March, 1977 as well as the judgment and order, dated 6th March, 1978 passed by the learned Single Judge of the Lahore High Court Lahore in Civil Revision No. 582 of 1977 are hereby set aside. The Additional Administrative Civil Judge, Lyallpur (Faisalabad) is directed to return the plaint to the respondent‑plaintiff so that it can be filed in the civil Court at Lahore and the Civil Judge who is seized of the matter is hereby directed to decide the case within three months of the date of the presentation of the plaint by the respondent‑plaintiff in this case. There shall be no order as to costs. S. Q. Appeal allowed.