Order Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 1673 of 2006
_________________________________________________________________________
Date Order with signature of Judge .
Mr. Shahenshah Hussain, advocate for the plaintiffs.
Mr. Khalid Imran, advocate for defendant No.1.
Mr. Masaud Ghani, advocate for defendant No.2.
Mr. Ashfaque Qazi, Assistant Advocate General, Sindh.
Date of hearing : 12.11.2013.
ORDER ON C.M.A. No. 1033 / 2007
NADEEM AKHTAR, J. : This application has been filed by defendant No.2 under Order VII Rule 11 of the Code of Civil Procedure, 1908, for rejection of the plaint, on the grounds that this Court has no territorial jurisdiction to adjudicate upon this Suit, and that this Suit is barred by limitation.
2. The subject matter of this Suit is agricultural lands bearing Survey No.6 (3 acres), Survey No.2 (4-10 acres), Survey No.350 (4-21 acres), Survey No.139 (8-34 acres), and Survey Nos.7 and 8 (10-20 acres) in Deh Sujawal, Tehsil Sujawal, District Thatta, as well as agricultural lands bearing Survey Nos.397, 398, 399, 400, 401, 403, 404, 461, 462, 463, 464, 451, 452, 453, 450, 160, 164, 165, 166, 168, 167, 169 and 170 (measuring 102-37 acres) in Deh Mullan, Tappo Mullan, Taluka Jati, District Thatta (“the Suit lands”). Mr. Masaud Ghani, learned counsel for defendant No.2, contended that the Suit lands are admittedly situated in District Thatta, which is outside the territorial jurisdiction of this Court. He further contended that defendants 2 to 6 are admittedly residents of District Thatta ; and the cause of action, as alleged in the plaint, had accrued in District Thatta, as the plaintiffs have sought cancellation of sale deed dated 10.08.2004 in favour of defendant No.2 in respect of the Suit lands, which was registered before the Sub-Registrar, Sujawal, District Thatta. It was urged that in view of the above admitted position, the Suit ought to have been filed before the Senior Civil Judge, Sujawal, who has the exclusive jurisdiction to adjudicate upon this Suit under Section 16 of the Code of Civil Procedure, 1908. It was further urged that the plaint is liable to be rejected as this Suit before this Court is barred under Section 16 (ibid), or in the alternative, the plaint is liable to be returned to the plaintiffs for presentation before the aforementioned court.
3. In support of his submissions, the learned counsel for defendant No.2 cited and relied upon the cases of Pakistna Fishries Ltd., Karachi and others V/S United Bank Limited, PLD 1993 Supreme Court 109, Town Committee, Gakhar Mandi V/S Authority under the Payment of Wages Act, Gujranwala and 57 others, PLD 2002 Supreme Court 452, Khyber Tractors (Pvt.) Ltd. Through Manager V/S Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad, PLD 2005 Supreme Court 842, Ghulam Fareed V/S Shahid-ud-din Tughalaq, PLD 2008 Karachi 536, Muhammad Naveed Aslam and 3 others V/S Mst. Aisha Siddiqui and 2 others, PLD 2010 Karachi 261, and Ismat Asad V/S Pakistan Oxygen Limited and another, 2010 CLC 1226.
4. On the other hand, Mr. Shahenshah Hussain, learned counsel for the plaintiffs, vehemently opposed this application by submitting that the same is misconceived and not maintainable. He contended that the Suit lands were sold by defendant No.1 to defendant No.2 through the aforementioned registered sale deed dated 10.08.2004 on the basis of a registered declaration of oral gift dated 10.11.2000 executed in favour of defendant No.1 by late Syed Altaf Hussain, the predecessor-in-interest of the plaintiffs. By referring to paragraphs 5, 6 and 7 of the plaint, he submitted that the plaintiffs have specifically pleaded therein the fraud committed by defendant No.1 by fabricating and manipulating a bogus and forged declaration of oral gift in respect of the Suit lands in his favour. The learned counsel further submitted that the entire basis of this Suit is the said bogus and forged registered gift dated 10.11.2000, which was admittedly executed and registered at Karachi, and as such the cause of action had mainly arisen at Karachi. He relied upon Section 120 of the Code of Civil Procedure, 1908, and submitted that the said Section specifically excludes the applicability of Section 16 of the Code of Civil Procedure, 1908, to the original civil jurisdiction of High Court. It was urged that the Suit is competent and maintainable before this Court in its original civil jurisdiction. In support of his submissions, the learned counsel for the plaintiffs cited and relied upon the cases of West Pakistan Industrial Development Corporation V/S Messrs Fateh Textile Mills Ltd., PLD 1964 (W.P.) Karachi 11 and Gulfam and others V/S Bibi Qudsia Begum, 2003 CLC 1183.
5. I have heard the learned counsel, perused the record, and have also examined the law cited by them at the bar. I would like to discuss here the case of Muhammad Naveed Aslam (supra) relied upon by the learned counsel for defendant No.2, pertaining to return of the plaint, wherein the issue in hand was scholastically examined and discussed by a learned single Judge of this Court, Mr. Justice Faisal Arab. The history of original civil jurisdiction of this Court was traced, and the questions as to the effect of Section 120 of the Code of Civil Procedure, 1908, which provides that in exercise of original civil jurisdiction by the High Court, the provisions of Sections 16, 17 and 20 of the Code of Civil Procedure, 1908, shall not be applicable ; and, whether the effect of Section 120 (ibid) is to confer powers on this High Court to entertain Suits and proceedings of civil nature on its Original Side if the same pertain to any area falling within its territorial limits, were examined in profundity in the cited case. It may be noted that the plaintiff in the cited case had strongly opposed the defendant’s plea for the return of his plaint, on the ground that the cause of action had accrued partly at Karachi. After considering the said objection relating to accrual of the cause of action partly at Karachi, it was held inter alia by my learned brother that since the year 1906 the Highest Court of this Province has been exercising powers of original civil jurisdiction by functioning as the Principal Civil Court for the District of Karachi (presently covering all districts of Karachi), where Suits and proceedings of civil nature relating to any territorial limit of Karachi are entertained always subject to the pecuniary limit that is prescribed for such cases from time to time ; to function as the Principal Civil Court for Karachi, Original Side was created in this Court at its principal seat where civil Suits and proceedings are filed, heard and decided ; except for the territorial limits of Karachi, no other area of Sindh was ever brought under the ambit of the original civil jurisdiction ; it is for this reason that the Civil Courts falling beyond the districts of Karachi continue to exercise original civil jurisdiction of unlimited jurisdiction, whereas the Civil Courts in the districts of Karachi exercise jurisdiction only to the extent which is lesser in value than that conferred on the Original Side of this High Court ; conferment of original civil jurisdiction on this High Court throughout its history was confined to the territorial limits of Karachi provided always that the cause was of a prescribed amount and value ; if a Suit is filed in this Court which does not fall within the original civil jurisdiction of this Court, that is, it does not pertain to a dispute relating to any of the four Districts of Karachi, then certainly the provisions of Sections 16, 17 and 20 shall be attracted, and the plaint shall be returned for its presentation to a court of appropriate jurisdiction ; and, Section 120 (ibid) only renders ineffective provisions of Sections 16, 17 and 20 (ibid) to Suits which can be entertained by this High Court in the exercise of its original civil jurisdiction which is confined to civil Suits and proceedings pertaining to the Districts of Karachi only and not for any other area falling within the jurisdiction of this High Court. In view of the above findings, the plaint was returned to the plaintiff in the aforementioned Suit for its presentation before the court of appropriate jurisdiction.
6. The above order passed by the learned single Judge in the case of Muhammad Naveed Aslam (supra) was upheld by a learned Division Bench of this Court in Muhammad Naveed Aslam and 3 others V/S Mst. Aisha Siddiqui and 14 others, 2011 CLC 1176. The learned Division Bench was further pleased to hold that the non-applicability of Sections 16, 17 and 20 read with Order XLIX Rule 3 of the Code of Civil Procedure, 1908, 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 Sections 16 and 17 (ibid) will automatically come into operation ; the provisions of Order VII Rule 10 of the Code of Civil Procedure, 1908, are mandatory in nature ; adjudication by a court without jurisdiction is coram non judice ; when any court lacks pecuniary or territorial jurisdiction, the proper course is to return the plaint for presentation to the proper court ; and, such court cannot pass any judicial order except that of returning the plaint.
7. In the above context, I would like to refer to an authority of the Hon’ble Supreme Court ; namely, Haji Abdul Malik and 10 others V/S Muhammad Anwar Khan, 2003 SCMR 990, wherein it was held that under Section 16 of the Code of Civil Procedure, 1908, a suit for declaration relating to the rights and interest in an immovable property is instituted in a court within local limits of which the property is situated. The cases of West Pakistan Industrial Development Corporation (supra) and Gulfam (supra) relied upon by the learned counsel for the plaintiffs, having been authored by learned single Judges, do not have the binding effect on me. Whereas, the Hon’ble Supreme Court’s authority Haji Abdul Malik (supra), and the case of Muhammad Naveed Aslam (supra), decided by a learned single Judge and upheld by a learned Division Bench of this Court, are not only fully applicable in the facts and circumstances of this case, but are also binding on me.
8. In the case of Town Committee, Gakhar Mandi (supra), the Hon’ble Supreme Court was pleased to hold inter alia that jurisdiction of any forum, court or tribunal holding any proceedings is always the core question, and it is obligatory for such forum to determine the question of its jurisdiction whenever some doubt exists or is expressed about it, irrespective of the stage of the proceedings at which such an objection is raised. In Khyber Tractor (Pvt.) Ltd. (supra), it was held inter alia by the Hon’ble Supreme Court that the question of jurisdiction of a forum is always considered to be very important and any order passed by a court or a forum, having no jurisdiction, even if found to be correct on merits, is not sustainable ; and, the jurisdiction of a court lays down a foundation stone for a judicial or quasi-judicial functionary to exercise its powers / authority, and no sooner the question of jurisdiction is decided in negative, the whole edifice, built on such defective proceedings, is bound to crumble down.
9. In this Suit, the plaintiffs have prayed for declarations that they are the owners of the Suit lands ; the declaration of oral gift in respect of the Suit lands by their predecessor-in-interest in favour of defendant No.1, is forged, fabricated, bogus and of no legal effect ; and, the sale of the Suit lands by defendant No.1 in favour of defendant No.2 is illegal, void and of no legal consequence. The plaintiffs have also sought cancellation of the aforesaid sale deed in favour of defendant No.2. They have also prayed for possession of the Suit lands, mense profits and permanent injunction. Sections 16 and 17 of the Code of Civil Procedure, 1908, specifically provide that Suits should be instituted where the subject matter is situated, and Suits seeking relief in respect of an immovable property or for compensation for the wrong committed in relation to an immovable property, must be instituted in such court within the local limits of whose jurisdiction any portion of the property is situated. The question of jurisdiction is always construed strictly, so much so that the parties cannot confer jurisdiction to a court even by consent. In my humble opinion, the contention of the learned counsel for the plaintiffs that by virtue of Section 120 (ibid), Section 16 (ibid) is inapplicable in the instant case, is not tenable. The provisions of Section 16 (ibid) would not be attracted under Section 120 (ibid) only in such civil Suits and proceedings which are initiated before this High Court in its original civil jurisdiction relating to immovable properties falling within the territorial limits of any of the districts of Karachi, and not otherwise. It is an admitted position that the Suit lands are situated in District Thatta. Therefore, this Court, having original civil jurisdiction in respect of Suits and proceedings relating to immovable properties falling only within the districts of Karachi, has no territorial jurisdiction to adjudicate upon this Suit. After having held so, the other ground of limitation urged for rejection of the plaint, cannot be considered by this Court.
10. The plaint cannot be rejected for lack of pecuniary or territorial jurisdiction. The Code of Civil Procedure, 1908, provides Order VII Rule 10 especially for such situations, whereby plaint is returned to the plaintiff for presentation before the court having appropriate jurisdiction. The plaint in the instant Suit, therefore, is liable to be returned to the plaintiffs for presentation before the court of appropriate jurisdiction. During the course of hearing, learned counsel for the plaintiffs pointed out that defendant No.2 has filed Suit No.1306/2007 before this Court in respect of the Suit lands against the present plaintiffs, present defendant No.1 and the official defendants, which is sub judice. To this, the learned counsel for defendant No.2 submitted that defendant No.2 has no objection if the plaint of his said Suit be returned to him for presentation before the court of appropriate jurisdiction.
11. In view of the above discussion, this application is disposed of by directing the office to return the plaint to the plaintiffs for presentation before the court of appropriate jurisdiction, and to retain copies of the pleadings for record purposes.
J U D G E