P L D 1973 Azad J & K 21 (PLP)

No evidence was led on any of the issues and the learned Advocates for the parries agreed to submit their arguments on these issues only on the basis of the documents already on the file. Mr. Mobashar Latif Ahmed did not press issues Nos. 2 and 3 at the time of arguments. He stated that the objections on the basis of which these issues have been framed were purely technical. He did not point out what is the defect in verification. Even if there be any defect in verification that would be only an irregularity in procedure and could not be fatal to the case of the plaintiff: Hence issues Nos. 2 and 3 are decided against the defendant. On issue No. 1 lengthy arguments were addressed by the Advocates for the parties. Section 20, C. P. C. states the rules as to the forum in case of personal action. A Court gets jurisdiction under the provisions of this section if‑ (1) the defendant resides or carries on business or personally works for gain within the local limits of its jurisdiction, or (2) the cause of action arises, wholly or in part within such local limits. The plaintiff in his suit has based reliance on two facts to show that this Court has jurisdiction to entertain the suit. Firstly the defendant carries on business within the local limits of this Court as the defendant has established a Divisional Office at Mirpur. Secondly the cause of action arose at Mirpur where under the contract of service the plaintiff: had been functioning as Divisional Manager. There is no dispute as regard to the fact that the defendant's Divisional Office is functioning at Mirpur. However, it was urged by the learned Advocate for the defendant that the Court has no jurisdiction in the matter to bear the case as neither the cause of action wholly or in part arose at Mirpur nor the defendant would be deemed to carry on business at Mirpur in view of Explanation 11 to section 20, C. P. C. inasmuch as the defendant being a corporation would be presumed to carry on business only at its Head office at Karachi or the Regional office at Rawalpindi. In support of his contention based on Explana tion II, he cited A I R 1929 Mad. 347 and A I R 1937 All.

208. The decisions in the first sight appear to support his contention but on closer examination it will be found that they relate to the different circumstances. The law laid down in these cases has reference to recovery of money due on life insurance and not on contract of service for performing functions as an employee at a particular place. In A I R 1929 Mad. 347 the facts were that the agency in Madras on behalf of Like Insurance Company was doing nothing but acted only as a Post Office forwarding proposals and sending money and did not have any discretion in the matter either to conclude contracts or to vary them, or to enter into them. The dispute in that case related to the policy amount which had become due and payable on account of the death of the ensured person. In these circumstances it was held :‑ "Where a Life Insurance Company has agency in Madras but the agency does nothing, but acts as a post office forward ing proposals and sending money and not having any discretion in the matter either to conclude contracts or to vary them or enter into them, it does not carry on business at Madras." The present case is not for recovery of insurance amount .due and payable on Life Insurance Policy. Therefore, A I R 1929 Mad. 347 has no bearing so far as the facts of the present case are concerned. Moreover, death of the insured person at a certain place whether formed a material part of cause of action was neither pressed nor decided in that case which event uality, in an action for recovery of Insured amount, according to authorities, forms a material part of cause of action. In A I R 1937 All. 208 it was held that :‑ "As the contract was accepted at Calcutta, a part of cause of action arose at Calcutta and a suit therefore could have been brought at Calcutta." This case also related to the recovery of Insurance amount regard ing certain ornaments ensured with the defendant‑company against loss by burglary and house‑breaking It was not a case of the service contract and therefore would have no application to the facts of the present case. It is not disputed that, the Company has not only an agency ac Mirpur but it has a Divisional Office at Mirpur. Functions that were to be performed by the Divisional office are detailed in the letter of appointment as employee, Issued by the defendant -company, under No. 16782/ELI/69. The duties are detailed in para. 4 of the letter. The plaintiff' was required to establish and organise, develop and expand the Life Insurance business in the territory allotted to him. He was to recommend for recruit ment to the company as many agents as possible with the object of expanding the business of the Company. He was to render continuous service to the policy‑holders and was required to pay full and undivided attention to the Life Insurance business of the Company etc. The examination of the duties detailed in the appointment order clearly shows that the office of the defendant at Mirpur was not to act merely as post office but was to perform substantial functions in the territory. It would therefore be contrary to the facts to say that the Company is not carrying on any business at Mirpur. When it is proved that a corporation has got a branch office at any place and It also does a substantial business at that place and has permanent employees to run the business it cannot be said that the Company does not carry on business at such a branch office. Once it is proved that a corporation or a company has a branch office at certain place it will be deemed that such a company carries on its business at that place too. A 1 R 1943 Cal. 199 and A I R 1944 Cal. 1 are the authorities for the view. The facts of A I R 1943 Cal. 199 were that the defendant Insurance Company with registered office at Lahore had a branch office at Bangla Bazar, Dacca. One Bidu Boshan of District Dacca ensured his life with defendant‑company for a sum of Rs. 2,

000. After pading certain number of instalments the ensured person died at his native village in District Dacca. There after the heirs of the ensured person instituted a suit in the Court of Sue‑Judge, Dacca against defendant‑company for recovery of the money due on the insurance policy. The defendant‑company resisted the suit contending among other things that the Court at Dacca had no territorial jurisdiction to hear the suit. After considering ell the relevant case law it was held :‑ "Once ft is established that a corporation has got a branch office at any place it shall be (Teemed in the eye of law to carry on its business at that place Irrespective of the nature of the work that is actually carried On there." Respectfully agreeing with the above view I hold that on proof of the fact that the defendant‑company has a Divisional office at Mirpur it would be said that it carries on business at Mirpur irrespective of the nature of the work that is actually being carried out. Moreover, the language of section 20, C. P. C. is wide enough so as to entitle a plaintiff to sue in a Court in which his cause of action wholly or in part arose. There is nothing in that section which makes an exception by virtue of Explanation II as regard to a corporation, If other conditions are fulfilled Courts would not renounce j4risdiction against a corporation having its principal office outside territorial limits of Azad Kashmir provided the plaintiff's cause of action, wholly or in part arose within its jurisdiction. "Cause of action" is bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed in a vase. "The term comprise every material fact to be proved and includes assertion of the right infringed and the manner of its violation". The dispute is clearly between the employer and the employee for recovery of money due as arrear of pay for the period of service rendered to the defendant‑company at Mirpur. The learned Advocate for the defendant stated that there is no evidence on record to show that the agreement was delivered to the plaintiff at Mirpur or his remunerations were ever paid to him by his employers at Mirpur. His contention is that the agreement was made at the Tonal office, Rawalpindi and the plaintiff used to draw his monthly remuneration from Zonal office, Rawalpindi, but there is rio evidence on record to show that the plaintiff used to receive his salary at Rawalpindi. He stated that it is a normal practice in defendant's company that its Divisional Managers receive their pay at Zonal office. No evidence about this practice has been led before this Court. It is a contract of service. The contract of service too is silent on the point and it is not stated where the employee has to receive his salary. It is a common sense principle that an employee stationed at a particular station is entitled to receive his monthly salary or remuneration at the place of his posting. "Debtor must seek out creditor" is a general principle which determines the forum in case of employer and employee as well. In many cases the place of performance will be determined by the course of the business ID which the contract relates or by the nature of the act to be done under the contract. "Thus in a t contract of service the salary is payable at the place of work". For this proposition C. P. C. by Chitaley, Vol. I, page 38, foot note 14 under note 19 and 30 Mad. 438 and 2 Born. L R 514 may he referred to. In Madras case which was a D. B. case the service was at 'H'. Suit for salary at Madras was held to be incom petent. In 2 Bom. L R 514 it was held that the suit for salary would lie at the place where the plaintiff was serving. In the present case there is nothing in the contract that the plaintiff would receive his pay at any other place than the place of his service. It would be assumed that he was receiving his salary at the place of his service namely Mirpur which place is within the territorial jurisdiction of this Court. A refusal by the master to pay the wages of the service may be a part of cause of action but in case of a service contract the employee must prove performance of his duties at the place of his posting before he can enforce his claim against the employer for arrear of his salary as promised. Consequently the perfor mance of the duties at the place of posting is in this way a material part of cause of action. The plaintiff is bound to prove about the discharge of his duty, as this fact is formally denied by the defendant. If the plaintiff fails to prove the due perfor mance of his part of the contract, his action is bound to fail. Under a contract of service an employee is under an obligation to perform his part of the contract that is to render those services G for which he is employed. It is only on proof of the performance of his part that he can enforce his claim for remuneration against the employer and not the refusal to pay the salary. If an employee does not do the work he is obliged to do under the contract or remains absent from his duty he may disentitle himself to a decree. Place of making a contract of service and refusal to pay wages as promised may be part of the cause of action but perfor mance of the duty at a place of posting is also a material part of the cause of action. Therefore, it would be said that the cause of action for the suit for recovery of the arrears of the salary would lie in the Court having jurisdiction at Mirpur. For the foregoing reasons issue No. 1 is decided in favour of the plaintiff and it is held that the Court has jurisdiction to hear this case. S. Q. Order accordingly.