2005 PLP 952 (CLC)

SHAHZAD AKBAR KHAN, J.

By way of this appeal, Muhammad Amin, appellant/plaintiff, has called in question the order, dated 7-6-2003 passed by the learned Ilaqa Qazi Malakand at Batkhela, whereby the plaint was returned to the plaintiff under Order 7, rule 10, C.P.C.

2. The learned counsel appearing on behalf of the appellant has vehemently argued that the return of the plaint by the learned trial Court was not warranted in law. On such submission, he made reference to some writings which are executed on the letter pad of Diamer Forest Company Dargai, Malakand Agency and urged that these documents were executed at Dargai, therefore, partial cause of action had accrued to the appellant within the jurisdiction of Civil Court situated at Dargai. He further argued that defendant No.5 is undisputedly stationed at Dargai and, as such, under section 20 of C.P.C., the jurisdiction could competently be assumed by the learned Judge, Dargai. He further argued that no objection to the jurisdiction was raised before the learned trial Court. In support of his contentions, reliance was placed on the case reported as 2000 SCMR 1312.

3. On the other hand, the learned counsel for the respondent No.1, Haji Khaista Gul, has endeavoured to defend the impugned order on the arguments that as respondent No.1 being the actual contestant does not reside within the territorial jurisdiction of the Court which returned the plaint, therefore, the plaint was rightly returned.

4. We have considered the arguments of the learned counsel for the parties and examined the available record.

5. Perusal of the impugned order indicates that the learned trial Court abdicated his jurisdiction chiefly on the reason that defendants Nos.2 to 4 who were shown to be the resident of Dargai had been deleted vide order, dated 29-10-2002. Such order obtained finality, as it was never challenged by the petitioner/plaintiff in any forum. Thus, it appears that the learned trial Court by way of a legal compulsion arising out of the deletion of defendants Nos.2 to 4 made a resort to return the plaint. However, we have noticed that still there is defendant No.5 who on the deletion of defendants Nos.2 to 4 has become defendant No.2 in the case. The said defendant is Range Forest Incharge Dargai Timbers Market, Dargai. The relevant provision of law governing the instant situation is section 20 of the C.P.C. which is reproduced below:--

20. Other suits to be instituted where defendants reside or cause of action arises.

Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution.

6. As per clause (b) quoted above where, out of several any of the defendant resides within the territorial jurisdiction of the Court, the Court can assume jurisdiction either on leave granted by it or when the non-resident defendants acquiesce in such institution. The instant case shall have to be looked into in perspective of clause (b) quoted above. When the Range Forest Incharge is residing within the territorial jurisdiction of the Court, the Court could assume jurisdiction on grant of leave. The grant of leave would undoubtedly be based on convenience of the parties. It is the job of the trial Court to weigh convenience. The impugned order indicates that this legal aspect of the case escaped the attention of the learned trial Court. It is also felt that till the return of the plaint, no objection was raised from the opposite side which, in the circumstances, could be considered as acquiescence. The situation would certainly be changed if any objection comes from other defendants. When the learned counsel for the respondents was confronted with this unattended dimension of the matter, he readily stated that he would have no objection if the case is sent back to the trial Court to look into the matter in terms of clause (b) referred above. He, however, urged that the respondents would be within their right to raise any objection available to them. Certainly such right cannot be denied to the respondents and they would be at liberty to raise any objection before the trial Court available to them under the law.

7. In the circumstances, we allow this appeal, set aside the impugned judgment of the learned lower Appellate Court and send the case back to the learned trial Court which shall consider the question of jurisdiction in the light of the above quoted law, as the grant or refusal of the leave is the job of the trial Court, therefore, the question of granting leave is left for determination by the trial Court. The parties are directed to appear before the learned trial Court on 18-4-2004 and record of the case shall be sent thereto forthwith. H.B.T./359/P Appeal allowed.