P L D 1967 Lahore 1074 (PLP)

This is a revision petition against the order of the learned Additional District Judge, Multan, whereby he held that the Civil Courts of Multan had not the territorial jurisdiction to entertain the suit and be, therefore, directed that the plaint be returned to the petitioner under rule 10 of Order VII of the Code of Civil Procedure.

2. The facts of the case are that the petitioner and the respondent were married at Multan. After the marriage, they lived together as husband and wife at Bahawalpur which was the ordinary place of residence of the respondent: On the allegation that the respondent, her husband, treated her with cruelty while she lived at Bahawalpur, the petitioner filed a suit for dissolution of marriage at Multan. She also prayed for the dissolution of marriage on the basis of khula`. In the written statement, the defendant took up the plea that as the plaintiff had alleged that she had been treated with cruelty at Bahawalpur, the cause of action arose within the jurisdiction of the Courts of Bahawalpur, and the civil Courts of Multan had, therefore, no jurisdiction.. He further pleaded that the allegations made against him in the plaint were incorrect. It was held by the learned Civil Judge that he had the jurisdiction to try the suit and on merits he found that the respondent had treated the petitioner with cruelty. He dissolved the marriage of the parties on this ground and also on the basis of khula`. On appeal filed by the respondent, it was held by the learned Additional District Judge, Multan, that the civil Courts at Multan had no jurisdiction to try the suit. He, therefore, directed that the plaint be returned to the petitioner.

3. The respondent, in spite of service, is not present. He is also not represented by any counsel. I have, therefore, heard the petition ex parte.

4. The marriage was admittedly contracted at Multan. The question that arises for determination is whether a suit of dissolution of marriage can be filed by a Muslim wife at a place where the marriage had taken place. In cases of personal actions, a suit is competent section 20 of the Code of Civil Procedure where the defendant resides or carries on business or personally works for gain where the cause of action, wholly or in part, arises. A cause action is the sum total of all those allegations upon which 1h right to the relief claimed is founded. It includes every fact which it would be necessary to prove, if traversed, in order to enable a plaintiff to sustain his action. In Read v. Brown ((1888) 22 Q B D 128), Lord Master of the Rolls, explained the cause of action as, "every fact' which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact, which is necessary to be proved." In Chand Koer v. Partab Singh (15 I A 156) the Judicial Committee held,. "Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the 'cause of action', or in other words, to the media upon which the plaintiff asked the Court to arrive at a conclusion in his favour." In determining as to what is a cause of action, one is not concerned as to what is the nature of the defence that may be set up, but he has only to see what is alleged in the plaint. The facts that are alleged in the plaint and which require to be proved without proof of which the plaintiff would not be entitled to a judgment constitute the cause of action. Every such fact which it is necessary to prove, therefore, would form a part of the cause of action. It is, therefore, to be ascertained from the allegations in the plaint as to what is the cause of action in each case. In a suit for dissolution of marriage, it has always to be alleged that the plaintiff was the wife of the defendant because unless there is a marriage, there cannot be any dissolution. The factum of marriage, therefore, furnishes a part of the cause of action in such a case and a suit for dissolution is competent at a place where the marriage takes place. The lower appellate Court was clearly in error to hold that the acts of cruelty alone constituted the cause of action. It may certainly constitute a part of the cause of action, but not the whole of it. Cause of action is not only the infringement of the right at a particular moment. It is a sum total of all those allegations upon which the right to the relief claimed is founded. I am, therefore, satisfied that the judgment of the learned Additional District Judge was wrong and the learned Civil Judge of Multan had the jurisdiction to decide the suit.

5. The revision petition is accepted, the order passed in appeal is set aside and the case is remanded for decision on merits. The petitioner is entitled to costs. K. B. A. Petition accepted.