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    19 views6 pages

    2011 CLC 981

    Uploaded by

    Asif Nawaz

    Copyright:

    © All Rights Reserved
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    ~ “[vol. XXXII after following officer, to take, behalf of the it or contract on enue process, or r affecting the ike, authenticate interests of the ny law for the jovernment, and - Government or formance of any of the ~ above ypointed by. the his Court in the counsel for the: sspondents Nos.2 icerned, it is now ion investigation/ blic functionary, not be hampered. respondent Nos,2 sary action in this} tile exercising the| éd, may join the] - Jicers/respondents| view and proceed no merit in this ?etition dismissed. 2011) Atta Muhammad Panhwar v. Faisal Mughal 981 (Munib Akhtar, J) 2011C LC 981 [Karachi] Before Munib Akhtar, J ¥ Dr. ATTA MUHAMMAD PANHWAR through Attorney----Applicant versus FAISAL MUGHAL and 2 others----Respondents R.A. No.101 of 2010, decided on 21st February, 2011. Civil Procedure Code (V of 1908)--- ~---O. VII, Rr.2, 10 & S.20---Suit for recovery of amount---Territorial Jurisdiction of court---Return of plaint---Plaintiff filed suit for recovery of amount against defendants in court at place ‘H’--Case of contesting defendants was that none of the defendants resided or work for gain within territorial limits of the courts at place ‘H’; and that the cause of action alleged: by the plaintiff arose entirely within the limits of the ‘courts at place ‘I’---Defendants prayed that plaint be returned to the plaintiff for filing it before a court of competent jurisdiction, which according to them was court at place ‘I’---Trial Court allowed application by the defendants to return the plaint, but on filing appeal by the plaintiff, Appellate Court set aside order of the Trial Court and remanded the suit to Trial Court for further proceedings, including consideration of the issue of territorial jurisdiction after framing a Proper issue with regard thereto---Validity---If there was a refusal or Sailure to repay any money lent, either in whole or part, that would constitute part of the cause of action of any suit; and it would be regarded as having arisen at the place where the amount lent was to be repaid---Courts of that place would have territorial jurisdiction over the -matter under S.20(c); C.P.C.---If the agreément between the parties did’ not indicate as to where the money was to be paid; and the relevant facts and circumstances also did not so indicate, then the principle that the debtor must seek his creditor would become applicable and the courts at placé where the creditor resided or worked for gain, would have territorial jurisdiction~-In the present case- neither written agreement existed, nor there appeared to be any stipulation as to where the money lent by the plaintiff to the defendants was to be returned-- Part of the cause of action in the case had arisen at place ‘H’---Suit filed by the plaintiff, in circumstances, was within the territorial Jurisdiction of court at place ‘H’---Appellate Court had arrived at the correct conclusion, in holding that civil court at place ‘H’ did have ac 982, CIVIL LAW CASES [Vol. XXXII territorial jurisdiction in the matter---Order passed by Appellate Court did not suffer from any illegality or irregularity which would require interference by High Court in exercise of its revisional jurisdiction. Ip. 982, 984, 985] A, B& C Apollo Textile Mills Limited v. Mian Farhat Iqbal 2010 CLC 389; Muhammad Kashif and another v. Talat Mujeeb Ranjha 2008 YLR 56; Muhammad Hassan and another v. Zubair Ahmed and another 1988 CLC 1914; Shahzad Humayoun v. Muhammad Akram 1991 MILD 530; Nasim Saleem and Company v. M. Barkatullah PLD 1967 Lah 928; Mst. Fazlan Bibi v. Muhammad Azam PLD 1952 Lah. 227 and Sh. Imam Ali y. Ch. Muhammad Shafi PLD 1956 Lah. 341 ref. Ejaz Ali Hakro for Applicant. Imdad Ali Unar for Respondents. ORDER MUNIB AKHTAR, J.--- This revision application arises in the following circumstances, The respondent No.1 (hereinafter referred to as ‘the plaintiff") filed a suit, being F.C. Suit No.23 of 2009, in the court of Ilrd Senior Civil Judge, Hyderabad, impleading therein the present applicant (hereinafter referred to as “the contesting defendant") and tlie respondents Nos.2 and 3. Briefly stated, the case of the plaintiff as made out in the plaint was that he had lent a sum of Rs.20,00,000 to the contesting defendant who had promised to return the same within a period of one year. The amount lent.was sent by the plaintiff to the contesting defendant's bank account in Islamabad. According to the plaintiff, the contesting defendant thereafter, from time to time, returned certain amounts totalling 9,00,000, but the balance Rs.11,00,000 was'not returned and remained payable upto the date of the filing of thé suit. The plaintiff claimed that he had also suffered loss and injury on account of the failure of the contesting defendant to return the aforesaid balance amount, and claimed Rs.50,00,000'by way of damages in this’ regard. The aforesaid suit was filed for judgment and decree against the contesting defendant for Rs.61,00,000. 2. The contesting defendant filed an application under Order VI, Rule 10, C.P.C. before the trial Court. His case was that none of the defendants resided or work for gain within the territorial limits of the courts at Hyderabad, and that.the cause of aétion alleged by the plaintiff| (which of-course was denied on the miezits) arose entirely within the|4-4 limits of the courts at Islamabad. Thus, according to the contesting, defendant, the civil courts at Hyderabad lacked territorial jurisdiction, ‘and he prayed that the plaint be returned to the plaintiff for filing before a court of competent jurisdiction, which according to the contesting ac 2011) defendant wa: of the order d: the applicatio plaint. 3. Being which was dis) The learned a aside its orde: further procee jurisdiction af aggrieved by i present revisio 4. Learn submitted that order of the 1 Hyderabad cle: to him, even defendants imp present within if at all the sui be under sectic had accrued w that the’amoun Islamabad and with Hyderaba resided at Hyd the plaint had | Apollo Textile single Bench d v. Talat Muje another v: Zub the Lahore Hig 5. - Learne His case was t C.P.C. and tha of the non-pay had occurred at Muhammad Al Court. 6. In my and circumstan section 20 all ae, _. + (ol. XXXII Appellate Court ch would require mal jurisdiction.” Iqbal 2010 CLC Ranjha 2008 YLR and another 1988. 4 1991 MILD 53 67 Lah 928; Mst, ” and Sh. Imam Ali ition arises in the fter referred to as 1009, in the court lerein the present fendant") and the plaintiff as made 20,00,000 to the + e same within a e plaintiff to the According to the :! to time, returned -1,00,000 was'not ig of the suit. The ary on account of aforesaid balance 2s in this regard. ‘cree against the under Order VI, that none of the orial limits of the] : 2d'by the plaintiff} ' stirely within the} o the contesting,| | orial jurisdiction, f for filing before} to the contesting]: § 2011] Atta Muhammad Panhwar v. Faisal Mughal. 983 (Munib Akhtar, J) defendant was the. appropriate civil court at ‘Islamabad. By means of the order dated 9-7-2009, the learned trial Court was pleased to allow the application moved by the contesting defendant and returned the plaint. 3. Being aggrieved by this order, the plaintiff preferred an appeal, which was disposed of by means of the impugned order dated 26-1-2010. lA The learned appellate court disagreed with the learned trial court, set aside its order returning the. plaint and remanded the suit back to it for further proceedings, including consideration of the issue of territorial jurisdiction after framing a propel issue with regard thereto. Being aggrieved by impugned order, the contesting defendant has preferred the present revision application. 4. ‘Learned counsel appearing for the ‘contesting defendant submitted that the learned appellate court had erred in setting aside the: order of the learned trial Court. He submitted that the civil courts at Hyderabad clearly lacked territorial jurisdiction in the matter. According. to him, even a bare: perusal of the plaint itself showed that all the defendants impleaded therein resided or work for gain or were otherwise Present within the territorial limits of the courts at Islamabad. Therefore, if at all the suit could competently be filed at Hyderabad, that could only be under section 20(c), C.P.C, i.e. on the basis that the cause of action had accrued wholly or partly at’ Hyderabad. Learned counsel submitted that the amount Jent to the contesting defendant had been given to him at Islamabad and there was no connection or nexus of any aspect of the suit with Hyderabad. He pointed’ out that the mere fact that the plaintiff resided at Hyderabad was. of no consequence. Thus, according to him, the plaint had been rightly returned. Learned counsel placed reliance on Apollo Textile Mills Limited v. Mian Farhat Iqbal 2010 CLC 389, a single Bench decision of this court, and Muhammad Kashif and’ another v. Talat Mujeeb Ranjha ,2008 YLR 56 and Muhammad Hassan and another v. Zubair Ahmed and another 1988 CLC 1914, both decisions of the Lahore High Court. : 5. - Learned counsel for the plaintiff defended the impugned order. His case was that the matter also came within the ambit of section 19, C.P.C. and that the loss and damage suffered by the plaintiff on account of the non-payment of the balance amount. by the contesting defendant had occurred at Hyderabad. He placed reliance on Shahzad Humayoun v. Muhammad Akram 1991 MLD 530, a decision of the Lahore High Court. 6. In my’ view, section 19, C.P.C. has no application in the facts and circumstances of the case, as set forth in the plaint. As regards section 20 all the defendants, including in particular the contesting cue. : hs . 984 . CIVIL LAW CASES [Vol. XXXII > 2011) i defendant, reside or work for gain or otherwise have their presence at lent, either in wv Islamabad. As pointed out by learned counsel for the contesting cof any suit,.and defendant, the amount lent was admittedly made available to the latter by | the amount ler the plaintiff at Islamabad. However, in my view these factors, though of territorial jurist course relevant, are not determinative of the matter. In the Lahore High 4. agreement betw Court decision relied. on by learned counsel for the plaintiff, reference repaid, and the has been made to the well-known principle that the debtor must follow - | then the princij the creditor and that, in appropriate cases, the courts where the creditor 1 applicable, ané resides or works for-gain will also have territorial jurisdiction. In my | works for gain view, the real question is whether, and if so how, this principle is attracted to the facts and circumstances of the present case, The principle plaint provides was explained as follows by the Lahore High Court in Nasim Saleem and "4. That t Company v. M. Barkatullah PLD 1967 Lah 928:--- ener 8.5, "12. The rule of Common Law requires that in the absence of | again : contract to the contrary a debtor is bound to seek his creditor on 7-7 and to pay him where he is. The fact that this rule is applicable online to Pakistan also is borne out by more than one decision of Nabi? : superior Courts of this Sub-Continent including the Privy months Council. It was applied by S.A. Rehman, J. (as he then was) in 4 reques Mst. Fazlan Bibi v. Muhammad Azam PLD 1952 Lah. 227 Decem which arose out of a suit for dissolution of marriage on the | Rs.11, ground of non-maintenance. The suit had been filed by the wife = i it is fl at a place other than that where the defendant resided and where the marriage took place. It was held by his Lordship that the rule of English Law-was attracted to the facts of the case andthe | Courts within the jurisdiction of which the plaintiff resided could ~, referred to in the contesting plaintiff's fathe entertain and dispose of a suit like the one out of which that ‘is of no mome appeal had arisen. the paint 2 It: 13, In still another case Sh, Imam Ali v. Ch. Muhammad Shafi PLD. «| ° "te @mounts 1956 Lah. 341, BZ. Kaikaus, J. (as he then was) observed:--- { 8. Inthe “This is how acceptance of the rule grants jurisdiction jo-the aa Civil Courts to entertain a suit at the place where the creditor | Rs.9,00,000) a resides, As regards the extent to which the rule is to be In ‘my view 't accepted. I may state that it is really a matter of inference as to creditor would intention of parties or as to the necessary implication of an i works for gain agreement to pay. As their Lordship of the Privy Council have non-payment 0 explained in Soniram Jeetmull v. Tata & Co. AIR 1927 PC 156 contesting defi if a person says he will pay money to another, it will ordinarily creditor, anda . mean that he would pay where the latter is. However, the 4 oisintitt to ret circumstances of a particular case may negative any such place where t! intention or implication, and the rule is not one of universal ntion place where p: application.--- admittedly Hy: 7. Obviously, if there is a refusal or failure to repay any money[B

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