2010 PLP 389 (CLC)

TUFAIL H. EBRAHIM, J.

For hearing of C.M.A. No.6666 of 2006: This application under Order VII, rule 10, C.P.C. read with section 151, C.P.C. has been filed on behalf of the defendant with the prayer that this Court may be pleased to return the plaint to the plaintiff to be presented to the Court in which the suit should have been instituted on the grounds of lack of territorial jurisdiction of this Court. The learned counsel for the defendant submits that the defendant actually resides and carries on business at Faisalabad (Punjab) which fact is evident from the title of the plaint as well as the documents annexed to the plaint. The defendant does not have any place of business or residence at Karachi. The defendant has not purchased any cotton from the plaintiff, no cotton has been supplied by the plaintiff to the defendant and no payment has been made by the defendant to the plaintiff as alleged in the plaint. The learned counsel for the defendant further submits that both residential and business addresses of the defendant shown in the plaint are of Faisalabad. The alleged notices have been addressed by the plaintiff to the defendant at Faisalabad. The alleged delivery orders and gate passes annexed with the plaint are in respect of the Mills situated at Muzaffargarh. Learned counsel for defendant has argued that no evidence has been provided by the plaintiff in respect of payment of cheques or sale tax challans (statutory requirements) in respect of the alleged transactions. He has argued that from the averments of the plaint and the annexure it can be reasonably and rationally concluded that no cause of action has accrued at Karachi and prays that his application may be allowed as prayed as this Court lacks' the territorial jurisdiction to grant the relief prayed by the plaintiff and the plaint may be returned to the plaintiff to be presented in the Court within the local limits of whose jurisdiction the defendant actually resides and is doing business. Learned counsel for the plaintiff has contended that the registered office of the plaintiff's company is situated in Karachi and has place of business at Punjab. It has been further contended that the defendant has been doing business with the plaintiff since 2001 and has obtained different quantities of cotton from the plaintiff and the plaintiff in good faith delivered the cotton yarn of cumulatively amounting to Rs.350 millions and as on 20-7-2004 a sum of Rs.71,55,045.45 is outstanding against the defendant. Learned counsel further submits that notices have been issued by the plaintiff from the registered office of the Company, situated at Karachi, delivery orders and gate passes were also issued from the Head Office situated in Karachi and payment by the defendant was made to the plaintiff at Karachi. The learned counsel for the plaintiff has vehemently argued that part of cause of action had arisen at Karachi and this Court has jurisdiction 'and or at least concurrent jurisdiction to try this suit and, therefore, this application of the defendant should be dismissed. The learned counsel of the plaintiff has also argued that sections 16, 17 and 20, C.P.C. as well as Order VII, rule 10 and Order XLIX, rule 3, C.P.C. are not applicable in Original Civil Jurisdiction in view of section 120, C.P.C. and this Court has inherent territorial jurisdiction to try this suit and in support to his contentions he has relied on the following reported cases:

(i) 2007 CLC 394, (ii) 2007 YLR 21, (iii) 2007 YLR 2724, (iv) PLD 1997 Lah. 643, (v) PLD 2002 Kar. 420, (vi) 1997 SCMR 1874; and (vii) 1985 SCMR

758. The learned counsel for the defendant has argued that no cause of action has arisen to the plaintiff and just having registered office at Karachi or place of business from where the plaintiff had issued notices or delivery orders and gate passes are not relevant factors in determining the territorial limits of jurisdiction within the meaning of the law. The plaintiff cannot pick and choose the territory to proceed with the suit. The learned counsel vehemently argues that no cause or any part of cause of action has accrued to the plaintiff within the territorial jurisdiction of this Court. As to the legal contentions raised by the learned counsel of the plaintiff, the learned counsel of the defendant has relied on the following reported cases: (i) 1993 CLC 1993 1627 (Karachi) and (ii) 2005' MLD 1506 (Karachi). My lordships Justice Anwar Zaheer Jamali and Justice Ali Aslam Jafri, in the above cited case of Murlidhar P. Gangwani (Engineer) versus Engineer Aftab Islam and others, reported in 2005 MLD 1506 Karachi, after fully discussing the legal issue and after discussing and all the relevant cases referred therein were pleased to observe as under:

"The submissions of Mr. Khawaja Shamsul Islam with reference to non-applicability of sections 16, 17 and 20, C.P.C. to the High Court in exercise of its original jurisdiction, by virtue of section 120 C.P.C., Is without force and of no help to the appellant as this legal aspect has been dilated in a prudent manner in the case of Messrs Muslim Commercial Bank. Limited v. Messrs Nisar Rice Mills and another 1993 CLC 1627, (some relevant portion also reproduced in the impugned order) which furnishes complete answer of such submission. The other submission of the learned counsel with reference to rule 3 of Order XLIX, C.P.C. which excludes the applicability of certain provisions of C.P.C. including Order VII, rules 10 an 11 (b) and (c) C.P.C. to the ordinary or extraordinary original civil jurisdiction of the High Court, is also equally without force, as non applicability of such provisions of C.P.C. do not deny or curtail the power of High Court either to reject or return the plaint in appropriate cases. If any case is needed to fortify this view reference can be made to the case of Mirza Abdul Rahim Baig (supra)." Learned counsel for the plaintiff has vehemently argued that for determining the fact that whether cause of action wholly or any part thereof has accrued to a. party within the territorial limits of a Court within the scope of section 20(c) C.P.C. the averments made in the plaint should be taken as whole and presumed to be correct. Admittedly that there being no cavil to this proposition that the averments of the plaint are to be read with the relief sought by a party in the suit in determining whether any or part of cause of action has accrued, but such reading of plaint should be meaningful and rationale to the controversy. After hearing the arguments of both the counsel and going through the judgments as relied by them, I am of the view that this Court does not have territorial jurisdiction to hear this suit as the defendant is not residing or doing any business in Karachi. Prima facie the alleged agreement was not arrived at Karachi and neither any goods have been delivered to the defendant at Karachi, nor any payment was made at Karachi. The issuance of alleged notices to defendant and preparation of delivery/gate passes from the registered office of the plaintiff at Karachi cannot be considered as accrual of cause of action to the plaintiff within the territorial limits of this Court. In such circumstances, the listed application, filed by the defendant, is allowed and it is hereby ordered that the plaint should be returned to the plaintiff to be presented to the Court in which the suit should have been instituted. Accordingly C.M.A. No.6666 of 2006 stands disposed of. M.H./A-163/K Plaint returned.