SUIT NO. 1542 of 2008
Date of hearing 10.3.2011
Plaintiff : Muhammad Bachal
Defendants : Province of Sindh and others.
1. For order on office objection at flagged “A”
2. For hearing of CMA No. 10715/2008.
3. For hearing of CMA No. 11035/2008
4. For hearing of CMA No. 11487/2008
5. For issues .
Mr. Muhammd Jamil Advocate for the plaintiff
Mr. Qazi Majid A.A.G
Mr. Asif Ali Pirzada Advocate for the defendant No. 3 to 9, 11 & 12.
Muhammad Ali Mazhar, J.- The plaintiff has filed this suit for declaration, permanent injunction & recovery of damages with the following prayers:-
1. Declare that the action of defendants to bulldozed/demolish the six shops and school building consisted over six rooms constructed over the plot admeasuring about 8000 square feet in village Lal Bux Lund near Sindh Colony, situated at Deh Kur Hassan, Taluka & District Naushahro Feroze, owned by plaintiff is illegal, mala fide unlawful and unconstitutional.
2. Award damages of Rs.8 Million on account of demolishing of building to the plaintiff to be paid by the defendants jointly or severally in proportion of their personal liability.
3. Award damages of Rs. 10 Million to the plaintiff on account of his loss of reputation and honour for the defamatory act of the defendants to be paid by the defendants jointly or severally in proportion to their personal liability.
4. Order recovery of articles of various natures amounting to Rs. 1 Million from the defendants taken forcibly from the shops and building/school of the plaintiff or in lieu thereof pay Rs. 1 Million to the plaintiff.
5. Permanently restrained the defendants, their agents, assigns, employees’ attorneys or any body acting on their behalf from interfering in the possession of the plaintiff or removing any articles/building material from the site or harassing the plaintiff and his family in any manner whatsoever.
6. The defendants also restrain from creating any third party interest in the suit property.
7. Any other relief this Honourable Court deems proper and appropriate.
8. Grant cost of the suit.
2. The facts forming the background of the present suit are that the plaintiff owns a plot admeasuring about 8000 square feet in village Lal Bux Lund near Sindh Colony, situated at Deh Kur Hassan, District Naushahro Feroze. The defendant No.3 is MPA from District Naushahro Feroze and defendant No. 11 and 12 are political opponent of the plaintiff and his family. On 4.11.2008, suddenly the defendants No. 3 to 12 along with Police and Rangers officials/Mobiles came at the land of the plaintiff and they called Mr. Zameer Vistro, the Principal of the School situated at the land of the plaintiff and issued threats to vacate the School/shops immediately otherwise they will destroy/ruin the property, thereafter, they demolished/bulldozed the plaintiff’s property without notice and without permission/approval or intimation to the plaintiff.
3. It is further stated that the defendants No. 3 to 8 on the instigation of the defendants No. 11 and 12 served their political purposes at the cost of their posting. The cause of action arose to the plaintiff firstly on 4.11.2008 when the defendants No. 3, 11 and 12 came at the suit property and issued threats to vacate the land and secondly on 5.11.2008, when the defendants No. 3 to 12 along with their staff on police mobiles and bulldozers came at the land in question and bulldozed the property of the plaintiff.
4. The plaint was instituted in this Court on 11.11.2008 on which date, the Additional Registrar (O.S) raised the following office objection:-
“It appears that the suit land is situated at Deh Kur Hassan Taluka and District Naushahro Feroze, as averred in para-1 of the plaint and the suit to be filed before the court of learned Senior Civil Judge Naushahro Feroze”.
5. The matter was placed in court for orders on miscellaneous application along with aforesaid office objection on 12th November 2008. The learned Single Judge of this Court passed the orders on office objection as under:-
“Learned counsel for the plaintiff submits that the suit property is ancestral property of the plaintiff and due to political victimization the defendants are trying to deprive him of his lawful rights in the said property. He states that though the suit property is situated in another District, but, in view of provisions of section 120, CPC, this Court in exercise of its original civil jurisdiction, can entertain this suit. He has relied on the reported case of Wajid Hussain Faruqi v. Shahida Shahnawaz (2007 CLC 394). For the time being, the office objections are deferred and will be considered at the time of hearing of the injunction application, office is directed to register this suit and assign a number to it”
6. The record shows that since 12th November 2008 the office objections are intact and have not been disposed of by this Court. When the matter was fixed for hearing before me on 10.3.2011, the office objections raised by the Additional Registrar of this Court were listed at S.No.1 and the learned counsel appearing for the defendants argued that before further proceeding in this matter, the office objection may be disposed off.
7. The learned counsel for the plaintiff has candidly admitted that the property in question is situated at District Naushahro Feroze and the prayer clauses are also showing that the plaintiff has sought the declaration that the action of defendants to bulldoze/demolish the six shops and school building constructed over the plot of the plaintiff situated at District Naushahro Feroze and also claimed the damages on account of demolishing the building and also recovery of articles of various nature amounting to Rs. 1 Million from the defendants which were forcibly taken away from the shops and building of the plaintiff. Besides above relief, the plaintiff has also prayed that the defendants be permanently restrained from interfering in the possession of the plaintiff or removing any articles and further be restrained from creating any third party interest in the suit property but conversely, the learned counsel for the plaintiff argued that notwithstanding the fact that the property is situated outside the territorial jurisdiction of original side of this court, even then, this court has jurisdiction to try the suit on its original side keeping in view Section 120 CPC which excludes the applicability of Section 16, 17 and 20 CPC therefore, the learned counsel for the plaintiff argued that section 120 CPC in fact has enlarged the jurisdiction of this Court on original side rather than curtailing it. The learned counsel further averred that the plain reading of Section 120 CPC would show that this section does not in any way restrict the original civil jurisdiction of a High Court but it on the contrary enlarges the same. This section on the other hand removes the restrictions imposed under section 16, 17 and 20 CPC on the jurisdiction of the High Court. The accrual of cause of action even partly gives jurisdiction to this Court to proceed with the suit. He further averred that due to political rivalry and victimization, the plaintiff has filed the suit directly in this Court. In support of his arguments, learned counsel for the plaintiff has relied upon the following case law.
(1) 2007 CLC 394 (Wajid Hussain Farooqui v. Shahida Shahnawaz). In this matter, the learned Single Judge held that undisputedly the land is at Hyderabad and the agreement was also executed at Hyderabad. The plaintiff in para 12 of the plaint submits that defendant No.2 resides at Karachi and part payment of sale consideration was made at Karachi and this Court has jurisdiction to entertain the suit. Section 16 of CPC provides that suits relating to immovable properties to be instituted where subject matter situate subject to the pecuniary or other limitation prescribed by any law. Section 16 of CPC regulates the territorial jurisdiction of civil Courts. However, section 120 of CPC provides that section 16, 17 and 20 shall not apply to High Court in the exercise of its original civil jurisdiction. Since sections 16, 17 and 20 is not applicable to High Court in exercise of its original jurisdiction the High Court can entertain all suits where cause of action had arisen within its local limits of jurisdiction.
(2) PLD 1975 Karachi 944 (Haji Razak v. Usman). In this matter, the learned divisional bench of this court held that the question before us is of the meaning of the words “ordinary original civil jurisdiction”, and even the learned Advocate General, who was appalled by the possible loss of revenues to the State, had to concede that a suit pertains to the civil jurisdiction of a Court, and not to its criminal jurisdiction. Then, as to the word “original”, it can only refer to the jurisdiction of a Court to decide a matter as a court of the first instance, therefore this means that a suit decided by this Court is decided in the exercise of its original jurisdiction, just as a Constitutional Petition is decided in the exercise of its original jurisdiction. The learned Advocate General feebly pointed out that Waheeduddin Ahmed J, had taken a contrary view in the Firdous Trading Corporations’ case on the basis of some Indian rulings. But this view must be rejected, as it is contrary to the judgment of the Supreme Court in Ahmed Khan v. The Chief Justice and Judges of the High Court of West Pakistan (1). Therefore, the controversy before us turns really on the meaning of the word “ordinary”. The learned Advocate General bypassed this question and would not explain what the meaning of the word was, and, although it is obvious, I would quote the meanings from the ‘Oxford Dictionary’. These are “regular, “normal”, “customary”, “usual”, “not exceptional”. As, subject to rules of valuation and for the accrual of the cause of action, suits are filed as of right on the Original Side of this Court, it follows that they are filed in the regular, normal, usual and customary course. Hence my earlier observation that, the meaning of the said exception is very clear. But assuming, without conceding, that there is any ambiguity about this provisions, the section itself removes all possibility of doubt. Thus, the first clause of section 4 refers to cases coming before a High Court “in the exercise of its extraordinary original civil jurisdiction”. This expression, which is to be found in the Letters Patent of all the High Courts, refers to the power of such a High Court, “when the High Court shall think proper to do so”, to transfer to itself a suit pending a Court subject to its superintendence. And because the word ‘extraordinary’ refers to this special power, the word “ordinary” in the same section can only have reference to the jurisdiction of a High Court, which a plaintiff, filing a suit is entitled to invoke as of right.
(3) PLD 1964 (WP) Karachi 11 (West Pakistan Industrial Development Corporation v. Fateh Textile Mills Ltd). In this matter, the learned Single Judge of this Court held that section 16, 17 and 20 and Clause 12 of the Letters Patent prescribed the forum and the place for suing but these sections do not apply to High Court. Section 5 of the High Court of West Pakistan Establishment Order 1955 and also Section 8 of Sindh Act VII of 1926 do not prescribe the place of suing. Section 5 only saves the jurisdiction of Karachi Bench as exercised by it under section 8 of Sindh Act, 1926. The jurisdiction of the High Court has been enlarged rather than restricted by removing altogether the restrictions contained section 16, 17 and 20. The legislature could never have intended to take away the jurisdiction of West Pakistan High Court (Chief Court of Sindh) altogether, since the High Court got that jurisdiction as a place of suing through these sections.
(4) 1988 CLC 59 (Agricides (Pvt). Ltd v. Ali Agro Supply Corporation Ltd). In this case, the learned single Judge of this Court held that provisions of Section 120 CPC has in no way restricted jurisdiction of High Court but on contrary, enlarge the same by removing restrictions, imposed under section 16, 17 and 20 CPC on original jurisdiction thereof, High Court in exercise of its original civil jurisdiction could entertain all suits value whereof exceeded Rs. 1,00,000/-. Part of cause of action having accrued within jurisdiction of High Court and such court having pecuniary jurisdiction to entertain claim of plaintiff, would as assume jurisdiction on original side.
(5) PLD 1994 Karachi 388 (Mirza Abdur Rahim Baig and another v. Abdul Haq Lashari and 03 others). In this matter, the learned Single Judge held that the original civil jurisdiction, exercised at the principal seat of High Court Karachi might or might not be the ordinary original civil jurisdiction of High Court, it, nonetheless and in spite of its special character, was original civil jurisdiction of the Court. Provision of section 120 CPC, 1908, excludes applicability of section 16, 17 and 20 therefore, in exercise of that jurisdiction viz. original civil jurisdiction.
8. The learned AAG argued that the suit is not maintainable in this Court as the property is admittedly situated outside the territorial jurisdiction of this Court. The learned AAG invited attention to paragraph 18 of the plaint which pertains to the accrual of cause of action. He argued that it is an admitted position that the property in question is situated at Naushahro Feroze and it is also evident from the contents of the plaint that the cause of action accrued to the plaintiff in the district Naushahro Feroze, therefore, the plaint is liable to be returned to the plaintiff for institution in the competent court at Naushahro Feroze. The learned counsel for the defendant No.3 to 9 & 11 adopted the arguments of learned AAG and submitted that the plaint is liable to be returned to the plaintiff.
9. After hearing the pros and cons of the matter, I have reached to the conclusion that the entire controversy is roaming around the jurisdiction of this Court at original side and the application and implication of section 120 CPC read with order 49 Rule 3 CPC. For the convenience and ready reference, Section 120 CPC and Order 49 Rule 3 CPC are reproduced as under:-
Section 120, C.P.C.
Provisions not applicable to High Court in original Civil Jurisdiction. (1) The following provisions shall not apply to High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17 and 20.
Order 49 Rule (3) C.P.C
3. Application of rules. The following rules shall not apply to any High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:
(1) rule 10 and rule 11, clauses (b) and (c), or Order VII ;
(2) rule 3 of Order X ;
(3) rule 2 of Order XVI ;
(4) rules 5,6,8,9,10,11,13,14,15 and 16 (so far as relates to the manner of taking evidence) of Order XVIII ;
(5) rules 1 to 8 of Order XX ; and
(6) rule 7 of Order XXXIII (so far as relates to the making of a memorandum) ;
and rule 35 of Order XLI shall not apply to any such High Court in the exercise of the appellate jurisdiction.
10. Before adverting to the aforesaid provisions of CPC, it would be advantageous to trace out the history of original jurisdiction exercised by the Karachi bench of Sindh High Court in Civil Suits in the Civil District of Karachi and for that history, paragraph 5 of the establishment of West Pakistan High Court Order 1955 is quite relevant which reads as under:-
Para 5 of the Establishment of West Pakistan High Court Order, 1955
“Original civil and criminal jurisdiction of the Bench at Karachi– Notwithstanding anything in this Order or in any other law for the time being in force, the Bench of the High Court at Karachi shall have the same original civil jurisdiction for the civil district of Karachi and the same criminal jurisdiction and powers of the Court of Session for the Sessions Division of Karachi, as were exercisable, immediately before the commencement of this Order, by the Chief Court of Sindh under section 8 of the Sindh Courts Act, 1926 (Sindh Act VII of 1926):
Provided that the Governor-General may by notification in the official gazette direct that, as from a specified date such jurisdiction and powers as are mentioned therein shall cease to be exercisable by that Bench and as from that date that Bench shall cease to exercise that jurisdiction and powers.”
11. The establishment of West Pakistan High Court Order came into effect in the year 1955. The original civil jurisdiction of this Court was further strengthen and reinforced under section 7 of Sindh Civil Courts Ordinance 1962 which defined and clarified the jurisdiction of the Court of District Judge without the limit of value thereof excepting in the Karachi Districts where the original jurisdiction in Civil Suits and proceedings of the value exceeding 30 lacs of rupees shall be exercised by the High Court. Section 7 of Civil Court Ordinance, 1962 is reproduced hereunder:-
Section 7 of Sindh Civil Courts Ordinance, 1962
7. Original jurisdiction of the Court of District Judge. Subject to this Ordinance or any law for the time being in force, the original jurisdiction of the Court of the District Judge in civil suits and proceedings shall be without limit of the value thereof excepting in the Karachi Districts where the original jurisdiction in civil suits and proceedings of the value exceeding thirty lacs of rupees shall be exercised by the High Court.
(N.B. By virtue of a latest amendment made under Section 7 of Sindh Civil Court Ordinance 1962 on 2.3.2011, the pecuniary jurisdiction of the original side of this Court at Karachi has been enhanced from 30 lacs to 15 million).
12. The similar controversy was raised in another Suit No.1122/2009 filed in this court in which the land was situated at Thano Bula Khan, District Jamshoro. The objection was raised and the learned single judge returned the plaint. The order returning the plaint is reported in PLD 2010 Karachi 261, (Muhammad Naveed Aslam Versus Mst.Aisha Siddiqui). The order of the learned single judge was challenged in the High Court Appeal No.62/2010 (Muhammad Naveed Aslam versus Mst. Aisha Siddiqui). The said HCA was heard and vide judgment dated 21.4.2001, it was dismissed and the order passed by the learned single in judge in Suit No.1122/2009 was affirmed. Since, in the above HCA, the judgment was authored by me, therefore, I would like to rely the same in this judgment also and take the opportunity to quote the excerpt from my own divisional bench judgment.
13. In the divisional bench judgment, plethora of case law has been discussed including the judgments cited by the learned counsel for the plaintiff in this case. In fact, the case of Firdous Trading Corporation, Haji Razaq case and the case of Province of Sindh v. Haji Razaq reported in 1991 SCMR 920 are quite relevant to settle down the controversy involved in this case also. The main case on the subject is the Firdous Trading Corporation, reported in PLD 1961 (W.P) 565 in which the learned Single Judge of this Court traced out the history and held that the Karachi Bench of Sindh High Court is functioning or exercising the powers and performing the duties as the principal civil court of original jurisdiction in the civil district of Karachi and further held that the original civil jurisdiction in respect of civil suits in Karachi was not conferred on the High Court as a whole but only to the bench at Karachi. The nature of this jurisdiction is clarified under para 7 of part A of the Schedule of Karachi Courts Order 1956. The scheme of the establishment of West Pakistan High Court Order 1955 clearly shows that as a special measure Karachi bench was allowed to continue to perform the duties of the principal civil court of original jurisdiction in Karachi which is a special jurisdiction and by no stretch of arguments can be considered the ordinary original civil jurisdiction of the West Pakistan High Court. Though in the case of Firdous Trading Corporation, the main dispute was pertaining to the payment of court fee as the appellant only paid a court fee of Rs.4 and on the office objection, the appellant in that case contended that since it is letters patent appeal against the judgment passed in exercise of the ordinary civil jurisdiction of the court, section 4 of the Court fees Act does not apply and no court fee was payable thereon but while deciding the question of court fee the learned single Judge discussed in detail the nature of jurisdiction being exercised by this Court at its original side at Karachi.
14. The main issue before the learned Single Judge in Firdous Trading Corporation case was to determine what is the nature of original jurisdiction exercised by the Karachi Bench of Sindh High Court in Civil Suits in the Civil District of Karachi. Is it the Ordinary Civil jurisdiction of the High Court or some other jurisdiction? which was only dependent upon the interpretation of paragraph 5 of the Establishment of West Pakistan High Court Order 1955 in which it is clearly provided that the bench of High Court at Karachi shall have the same original civil jurisdiction for the civil district of Karachi. Similar question was raised in case of Haji Razaq reported in PLD 1975 Karachi 944 in which the learned Divisional Bench of this Court disagreed with the judgment passed in the Firdous Trading Corporation case and took the contrary view. The case of Haji Razaq was based on the office reference in High Court Appeal 61 of 1974 in which the learned Division Bench held that court fees act is not applicable to 3 unnumbered suits i.e. Suit No. Nil/74, M/s. Haji M. Zakaria and Co. V. Pakistan, Suit No. Nil /75 Hameedul Haq ch. V. National and Grindlays Bank and another and Suit No. Nil/75, Burney States and others v. Mst. Gul Bibi. The office objection in these suits was rejected. The reference was made to resolve the conflict of authority between the judgment in the Firdous Trading corporation case and the judgment in W.P.I.D.C. v. Fateh Textile Mill and the learned divisional bench held that the view taken in the Firdous Trading Corporation case was not correct and the view taken in W.P.I.D.C’s case was affirmed. Though the decision delivered in Firdous Trading Corporation case was overruled by the Divisional Bench of this Court but on appeal filed by the Province of Sindh in case of Haji Razaq, the honorable Supreme Court upheld and affirmed the decision of Firdous Trading Corporation case reported in PLD 1961 Karachi 565. In another case reported in PLD 1991 S.C. 985 (Mian Akbar Hussain v. Mst. Aisha Bai and others), the question was raised whether in execution of decree passed by High Court of Sindh in Civil Suits Article 181 or 182 of the Limitation Act will apply or Article 183 will be applicable. The honorable Supreme Court held that as is obvious from the judgment reported in 1991 SCMR 920 whereby it was held that the view taken in Firdous Trading Corporation case was correct and consequently the judgment in Razak v. Usman case was set-aside, it was held that while entertaining and trying civil suit, the High Court of Sindh is exercising district court jurisdiction in contradistinction to the ordinary original civil jurisdiction of High Court. Article 183 provides a period of limitation of six years for enforcing a judgment and decree or order from any High Court in the exercise of its ordinary original civil jurisdiction and in the light of the judgment quoted above Article 183 cannot be applied, therefore, Article 181 will be applicable and in which the period of limitation is three years. Finally it was held in this case that the execution application should have been filed within a period of three years from the date of judgment and decree.
15. Though in this judgment reported in PLD 1991 SC 985, it is printed that the Firdous Trading Corporation case was not a correct law and the case of Haji Abdul Razaq v. Usman reported in PLD 1975 Karachi 954 was said to have been approved but in the body of the judgment, in fact, the honorable Supreme Court relied upon a judgment reported in 1991 SCMR 920, “Province of Sindh v. Haji Razaq” in which it was held that the judgment in Firdous Trading Corporation case was correct and consequently the judgment in Razaq v. Usman was set aside.
16. The powers conferred under Order 7 Rule 10 can only be exercised where the suit is pending before the Court and it may be exercised at any stage of the suit even in appeal and or revision. The bare look of the plaint in this case undisputedly shows that the plaintiff instituted the suit for the determination of the right to or interest in the immovable property and for compensation for wrong to immoveable property and recovery of movable property. The relief claimed in the suit and its nature falls within the purview of Section 16 of CPC which provides that such kind of suits shall be instituted in the court within the limits of whose jurisdiction the property is situated. Though Section 120 CPC provides that section 16, 17 and 20 shall not apply to High Court in exercise of its original civil jurisdiction but it does not mean that by virtue of this section the jurisdiction of original side of this court extended to all territories of Province of Sindh no matter the property in question is situated at Karachi or not. The jurisdiction of this Court at original side is only limited and confined to the districts of Karachi and if the arguments of the learned counsel for the plaintiff is accepted to be true, it will tantamount to the extension of original side jurisdiction of this Court to the entire province of Sindh subject to its pecuniary limits of jurisdiction.
17. The non applicability of Sections 16, 17 and 20 read with Order 49 Rule 3 is only applicable and limited to the original side jurisdiction for the districts of Karachi and when it is found that the property is situated outside the territorial jurisdiction of Karachi then section 16 and 17 will automatically come into operation. The initial guiding principles for institution of various suits is provided under section 16 to 19 CPC whereafter section 20 has been provided for other suits to be instituted where the defendant resides or cause of action arises. In the present matter Section 16 is applicable therefore, the suit should have instituted where the property is situated and since the claim of damages is not an independent relief but arising from the alleged wrong done committed by the defendants in the suit, therefore, this relief can also be easily claimed in the same suit along with other reliefs. The honorable full bench of this court in case “Rimpa Sunbeam co-operative Housing Society Ltd. v. Karachi Metropolitan Corporation” reported PLD 2006 Karachi 444 already held that Jurisdiction of Sindh High Court to entertain suits is basically neither the ordinary nor the extraordinary original civil jurisdiction of the High Court but simply a District Court jurisdiction, the jurisdiction of Sindh High Court to try Civil Suits is confined to matters where the pecuniary value of the subject-matter exceeds Rs.30,00,000/-. All other suits are liable to be tried by the District Courts. In another judgment reported in 2005 MLD 1506 in the case of (Murlidhar P. Gangwani v. Engineer Aftab Islam Agha), the learned divisional bench held that territorial jurisdiction of the Court cannot be extended or curtailed on compassionate grounds or looking to the financial position of a party and the expenses which he might have to incur in pursuing the litigation before the proper Court having jurisdiction in the matter. Further, the question of maintainability of a suit with reference to the territorial jurisdiction, vis-à-vis cause of action accrued to a party for institution of such suit, is to be judged on the basis of averments made in the plaint.
18. It is pertinent to state that Order 2 Rule 2 CPC provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Section 19 of CPC provides that where a suit is for compensation for wrong done to the person or to the moveable property, if the wrong was done within the local limits of jurisdiction of one court and the defendant resides or carries on business, or personally works for gain, within the local limits of jurisdiction of another court, the suit may be instituted at the option of plaintiff in either of the said courts. Order II Rule 2 C.P.C is devised to prevent a party from splitting up claims and remedies arising out of same cause of action against the same party. This provision is based on the principle that the defendant should not be vexed twice for the same cause of action. It is penal in nature and precludes the plaintiff to sue for the portion of claim or remedy so omitted.
19. The case law relied upon by the learned counsel for the plaintiff are distinguishable. In the case reported in 2007 CLC 394, the learned single judge of this Court held that undisputedly the land is situated at Hyderabad and the agreement was also executed at Hyderabad but the defendant was residing at Karachi and part payment of sale consideration was also made at Karachi therefore, it was held that this court had jurisdiction to entertain the suit. The learned Single Judge only considered the section 20 (c) CPC and held that this court in its original civil jurisdiction can entertain all suits where cause of action had arisen within its local limits of jurisdiction but did not consider an important aspect that the jurisdiction of this court on original side is only confined to Karachi district which cannot be extended to the entire province of Sindh. In the next case reported in PLD 1975 Karachi 944, the learned divisional bench of this Court disagreed with the judgment passed in the Firdous Trading Corporation case and took the contrary view but on appeal filed by the Province of Sindh in case of Haji Razaq, the honorable Supreme Court upheld and affirmed the decision of Firdous Trading Corporation. In the case reported in PLD 1964 W.P Karachi 11, the learned single Judge held that this court at Karachi has got jurisdiction to entertain the suit irrespective of the fact that the same could be filed in another district. In this matter the property in dispute was situated at Tando Muhammad and Hyderabad, outside the jurisdiction of this Court. The learned counsel appearing for the plaintiff in that case argued that the suit was not for possession in the strict sense of the term but was for resumption of management by the plaintiffs handed over to them by the defendants and in order to distinguish the facts of the case he further referred to an agreement which was executed at Karachi and the defendant company had also an office and carried on business at Karachi. In another case cited by the learned counsel for the plaintiff is reported in 1988 CLC 59, the facts were distinguishable as this was a simple suit for recovery and the agreement between the parties was executed at Karachi for the supply of pesticides by the plaintiff to the defendants which had to become effective on the defendants furnishing irrevocable insurance guarantee accepted to the bankers of the plaintiff. In the next judgment reported in PLD 1994 Karachi 388, the cause of action had accrued at Sanghar in a suit for damages for wrongful detention. Though the learned Single judge of this Court discussed in detail sections 16, 17, 19, 20 and Order 7 Rule 10 CPC but in the end the suit was sent to the court of Civil Judge Sanghar. In this case, the learned single Judge further observed that surely section 24 CPC is very much on the statue book for seeking transfer of the suit, if warranted. But that can only be if and when the suit comes to pend in a Court of competent jurisdiction.
20. The provisions of Order 7 Rule 10 are mandatory. An adjudication by a Court without jurisdiction is a determination coram non judice and not binding. When the Court lacks pecuniary or territorial jurisdiction, in such cases, the plaint must be returned for presentation to the proper Court and Court cannot pass any judicial order except that of returning the plaint. The cause of action has been described by the plaintiff in paragraph 18 of the plaint which clearly shows beyond any shadow of doubt that no cause of action accrued to the plaintiff within the territorial limits and jurisdiction of this court.
21. For the foregoing reasons, the plaint is returned to the plaintiff for institution before the court of appropriate jurisdiction