2017 C L C 1671

[Sindh]

Before Aqeel Ahmed Abbasi and Zafar Ahmed Rajput, JJ

HABIB BANK LIMITED and another----Appellants

Versus

Haji RIAZ AHMED and another----Respondents

High Court Appeal No.204 of 2011, decided on 26th August, 2015.

(a) Civil Procedure Code (V of 1908)---

----Ss. 120, 16, 17 & 20 & O. VII, R. 10---Original jurisdiction of High Court in civil matters---
Scope---Contention of defendant was that cause of action had accrued at place 'A' and plaint
should be returned for filing the same in the court having jurisdiction---Validity---Restrictions
contained in Ss.16, 17 & 20, C.P.C. were not applicable to the High Court in the exercise of its
original civil jurisdiction---Defendant was having its head office at place 'B' Jurisdiction in the
present matter could not be questioned merely on the ground that Ss.16, 17 & 20, C.P.C. were
not applicable to the present proceedings---Accrual of cause of action even partly within the
territorial jurisdiction of a court would create jurisdiction to grant relief to the plaintiff---Appeal
was dismissed in circumstances.
Muhammad Bachal v. Province of Sindh through Home Secretary and 12 others 2011 CLC
1450; Majeed A. Tahir v. United Bank Limited through President and 3 others 2008 CLD 1162;
Abdur Rahim Baig and anther v. Abdul Haq Lashari and 3 others PLD 1994 Kar. 388; M/s.
Merck Marker (Pvt.) Ltd. v. M/s United Pakistan (Pvt.) Ltd. and another 2010 MLD 573; Wajid
Hussain Faruqui v. Shahida Shahnawaz and another SBLR 2007 Sindh 858 and M/s Sh.
Muhammad Amin & Co. v. The Provincial Industrial Development Corporation 1991 CLC 684
ref.

Muhammad Naveed Aslam and others v. Ayesha Siddiqui and others 2011 CLC 1176 and M/s
West Pakistan Industrial Development Corporation v. Fateh Textile Mills Limited PLD 1964
W.P. Kar.11 rel.

(b) Civil Procedure Code (V of 1908)---

----Ss. 16, 17, 20 & 120---Civil jurisdiction of High Court---Classes and scope.

The Civil jurisdiction of the High Court is divided into four classes (i) ordinary, (ii) original, (iii)
appellate and (iv) those special matters which are the subject of special provision. Ordinary
jurisdiction embraces all such jurisdiction as is exercised in the ordinary course of law without
any additional steps being necessary to assume it, as opposed to extraordinary jurisdiction which
the Court may assume in its discretion upon special occasions and by special order. C.P.C. is
applicable in exercise of civil jurisdiction by the High Court except the exercise of civil original
jurisdiction. Restrictions contained in sections 16, 17 and 20 are not applicable to the High Court
in the exercise of its original civil jurisdiction.

Nabeel Kolachi for Appellants.

Raja Muhammad Maroof Khan for Respondent No.1.

Date of hearing: 28th May, 2015.

JUDGMENT

ZAFAR AHMED RAJPUT, J.--- This High Court Appeal under section 15 of the Code of Civil
Procedure (Amendment) Ordinance, X of 1980, read with section 104, C.P.C. read with section
151, C.P.C. is directed against the Order dated 25.11.2011 passed by the learned Single Judge of
this Court, whereby application filed by the appellants/ defendants Nos.1 and 2 under Order VII,
Rule 10 read with Order VII, Rule 11, C.P.C. was dismissed.

2. Briefly stated the facts of the case are that the respondent No.1/ plaintiff filed Civil Suit
No.751 of 2009 in original civil jurisdiction of this Court for recovery of Rs.1,86,65,325/-
against the appellants/ defendants Nos.1 and 2 and respondent No.2/defendant No.3, alleging
therein that the respondent No.1/ plaintiff is a businessman and running his business of
"hardware shop" at Panjgur, Balochistan for last 20 years and he is also a working partner in the
business in the name and style of "M/s Goods Forwarding Agency" at Karachi and is a corporate
client. He is maintaining Current Account No.1675-15 in the name and style of "Haji
Muhammad Riaz"' since long with the appellant/defendant No.2 i.e. H.B.L. Panjgur Branch
Balochistan. It is case of the respondent No.1 that in the month of December, 2009 it came into
his knowledge that an amount to the tune of Rs.1,86,65,325/-, deposited by him under 65 deposit
receipts/slips and duly received under stamp and sign of the concerned staff of appellant No.2
was not credited in his said account, thus misappropriated. The respondent No.1 then approached
the appellant No.2 but he could not satisfy him for the fraud committed with him and did not
take him seriously to rectify the irregularities of the highest magnitude; as such, cause of action
accrued to him for the filing of a civil suit against the appellants.
3. In pursuance of the summons issued by this Court, the appellants filed their written statement
jointly denying the claim of the respondent No.l. They also filed an application under Order VII,
Rule 10 read with Order VII, Rule 11, C.P.C. and the learned Single Judge of this Court after
hearing the counsel for the parties dismissed the said application vide order dated 25.11.2011.
Aggrieved thereby, the appellants have preferred this High Court Appeal.

4. Heard the learned counsel for the parties and perused the material available on record.

5. Mr. Nabeel Kolachi, learned counsel for the appellants/ defendants Nos.1 and 2 has mainly
contended that the learned Single Judge of this Court has only dealt with one part of the
application i.e. Order VII, Rule 10, C.P.C. while the provisions of Order VII, Rule 11, C.P.C.
have not been adverted to in the impugned order. He has also contended that the plaint of the
subject suit clearly states in the title that it was filed under original civil jurisdiction of this Court
at Karachi ignoring the fact that this Court has no territorial jurisdiction with regard to the
alleged cause of action referred to in para.14 of the plaint and if any cause of action has accrued
to him that has accrued to him in Panjgur, Balochistan, therefore, the plaint being barred by law
should have been returned to the plaintiff for its presentation in the Court having jurisdiction to
entertain the same. He has also contended that Section 120, C.P.C. provides that Sections 16, 17
and 20, C.P.C. would not be applicable to the High Court of Sindh at Karachi in the exercise of
its original and the cause of action and/or transaction involved does not pertain to any district of
Karachi thus, the suit is not maintainable within the original civil jurisdiction of High Court of
Sindh at Karachi and in this regard the learned Single Judge of this Court while passing the
impugned order has not followed the cases of Muhammad Naveed Aslam and others v. Ayesha
Siddiqui and others (2011 CLC 1176) and Muhammad Bachal v. Province of Sindh through
Home Secretary and 12 others (2011 CLC 1450). Lastly, the learned counsel has contended that
the impugned order is contrary to law as the learned Single Judge of this Court has held that
since the head office of the appellant No.1 is at Karachi, the suit under original civil jurisdiction
can be filed before this Court notwithstanding that the cause of action appears to have been
accrued entirely at "Panjgur, in Balochistan". In support of his contentions, the learned counsel
has also relied upon the cases of Majeed A. Tahir v. United Bank Limited through President and
3 others (2008 CLD 1162) Abdur Rahim Baig and another v. Abdul Haq Lashari and 3 others
(PLD 1994 Karachi 388).

6. Conversely, learned counsel for the respondent No.1/plaintiff has maintained that the
impugned order is legal and does not suffer from any irregularity and illegality. While referring
para No.15 of the plaint, he has contended that the appellants have their principal office at
Karachi and branches throughout the country; therefore, this Court has jurisdiction to adjudicate
the matter. The learned counsel has further contended that the appellants have raised objection
on the territorial jurisdiction of this Court refereeing the provisions contained in Section 20 of
C.P.C. and Order VII, Rule 10, C.P.C. which are not applicable to this Court while exercising its
original civil jurisdiction as section 120, C.P.C. does not in any way restrict the original civil
jurisdiction of this Court but on the contrary it enlarges the same and removes restrictions
imposed under Sections 16, 17 and 20 on the jurisdiction of this Court. In support of his
contentions, the learned counsel has relied upon the cases of M/s. Merck Marker (Pvt.) Ltd. v.
M/s United Pakistan (Pvt.) Ltd. and another (2010 MLD 573), Wajid Hussain Faruqui v. Shahida
Shahnawaz and another (SBLR 2007 Sindh 858), M/s Sh. Muhammad Amin & Co. v. The
Provincial Industrial Development Corporation (1991 CLC 684) and M/s West Pakistan
Industrial Development Corporation v. Fateh Textile Mills Limited (PLD 1964 W.P. Karachi-11)

7. We have given due consideration to the contentions of learned counsel for the parties.

8. In order to appreciate the contentions of the learned counsel for the parties, it would be
advantageous if the provisions of sections 16, 17, 20 and 120 of C.P.C. are reproduced:-

16. Suits to be instituted where subject-matter situate. Subject to the pecuniary or other
limitations prescribed by any law, suits;
(a) for the recovery of immovable property- with or without rent or profits;

(b) for the partition of Immovable property;

(c) for foreclosure, sale or redemption In the case of a mortgage of or charge upon immovable
property,

(d) for the determination of any other right to or Interest in immovable property;

(e) or compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distrait or attachment;

shall be instituted in the Court within the local limits of whose jurisdiction the property is
situated or, in the case of suits referred to in clause (c), at the place where the cause of action his
wholly or partly arisen:--

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable
property held by or on behalf of the defendant may, where the relief sought can be entirely
obtained through his personal obedience, be instituted either in the Court within the local limits
of whose jurisdiction the property is situate or, in the case of suits referred to in clause (c), at the
place where the Cause of action has wholly or partly arisen or in the Court within the local limits
of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or
personally works for gain.
Explanation. In this section 'property" means property situate in Pakistan.

17. Suits for immovable property situate within jurisdiction of different Courts. Where a suit is to
obtain relief respecting, or compensation for wrong to immovable property situate within the
jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of
whose jurisdiction any portion of the property is situate:

Provided that, in respect of the value of the subject-matter of the suit, the entire claim is
cognizable by such Court.

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 of the Court is given, or the defendants who reside, or carry on
business, or personally work as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Explanation I.- Where a person has a permanent dwelling at one place and also a temporary
residence at another place, he shall be deemed to reside at both places in respect of any cause of
action arising at the place where he has such temporary residence.

Explanation II.- A corporation shall be deemed to carry on business at its sole or principal office
in Pakistan or, in respect of any cause of action arising at any place where it has also a
subordinate office at such place.

120. Provisions not applicable to High Court in original civil jurisdiction. (1) The following
provisions shall not apply to the Court in the exercise of its original civil jurisdiction, namely,
sections 16, 17 and 20.

9. It appears that the question raised by the appellants in their application for return/rejection of
plaint is essentially concerned with section 120, C.P.C. and the learned Single Judge of this
Court after dilating upon its scope, by referring conflicting views extended by our two Division
Benches in the cases of Muhammad Naveed Aslam and Sh. Muhammad Amin (supra) dismissed
the said application of appellants by impugned order holding that the Head office of the appellant
is at Karachi, therefore, plaintiff could bring his suit here and file it on the original side of this
Court. The relevant portion of the impugned Order reads as under:

11. .... The original civil jurisdiction of the Court cannot in any manner be regarded as less than
the jurisdiction available under the statutory rules. As presently relevant, the statutory rules can
be regarded as conferring jurisdiction in at least two situations. Firstly, the civil court will have
jurisdiction if the cause of action arises, in whole or in part, within its local limits. This is, in fact,
Muhammad Amin rule as clarified by Naveed Aslam, Secondly, the civil court will have
jurisdiction if the defendant ordinarily works for gain or resides within the local limits of the
court's jurisdiction and this is so irrespective of where the cause of action has accrued. This
statutory rule has of course, to be read and applied in conjunction with the two Explanations to
section 120. In my view therefore, the original civil jurisdiction of this Court must also be
regarded as extending to the situation where the defendant ordinarily resides, or work for gain, in
Karachi. Equally, in the case of a corporation, if it has its principal office at Karachi this Court
would also have jurisdiction. This would be so regardless of whether the cause of action has
accrued at Karachi or not. Any other view would necessarily result in a loss and curtailment of
the Court's jurisdiction and in my view that is not a result that the law countenanced by applying
section 120 to the High Court.

13. Since in the present case there can be no dispute that the head office of the defendant bank is
at Karachi, it therefore, necessarily follows that the plaintiff could bring his suit here and file it
on the original side of this Court notwithstanding that the cause of action appears to have entirely
at Panjgur.

10. The Civil jurisdiction of the High Court is divided into four classes (i) ordinary, (ii) original,
(iii) appellate and (iv) those special matters which are the subject of special provision. Ordinary
jurisdiction embraces all such jurisdiction as is exercised in the ordinary course of law without
any additional steps being necessary to assume it, as opposed to extraordinary jurisdiction which
the Court may assume in its discretion upon special occasions and by special order. C.P.C. is
applicable in exercise of civil jurisdiction by the High Court except the exercise of civil original
jurisdiction. Restrictions contained in sections 16, 17 and 20 are not applicable to the High Court
in the exercise of its original civil jurisdiction.

11. It is an admitted position between the parties that the appellant is having its Head Office in
Karachi. Needless to mention here that Section 120, C.P.C. is a complete answer to the point
raised by Mr. Nabeel Kolachi. This section unequivocally postulates that sections 16, 17 and 20
shall not apply to High Court in the exercise of its original civil jurisdiction. The jurisdiction, in
the present matter, therefore cannot be questioned merely on the ground that sections 16, 17 and
20, C.P.C. are not applicable to the present proceedings. The accrual of cause of action, even
partly, within the territorial jurisdiction of a court creates jurisdiction to grant relief to plaintiff.
The aforesaid provision of law was interpreted by this Court in the case of West Pakistan
Industrial Development Corporation v. M/s Fateh Textile Cotton Mills [PLD 1964 (W.P.)
Karachi 11]. The relevant observation is as follows:-

"12. Sections 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 suit. Section 5, only saves the jurisdiction of Karachi Bench as exercised
by it under Section 8 of Sindh Act of 1926. It is my view that the jurisdiction of the High Court
has been enlarged rather than restricted by removing altogether the restrictions contained in
Sections 16. 17 and 20. The Legislature could never have intended to take away the jurisdiction
of the West Pakistan High Court (Chief Court of Sindh) altogether since the High Court got that
jurisdiction as a place of suing through these sections. Two alternative conclusions can arise
from the non-applicability of Sections 16, 17 and 20, C.P.C. to the High Courts. Firstly that the
West Pakistan High Court could not entertain any suit, whatsoever and secondly, it could
entertain suits from all places within its jurisdiction. It is true that all the District Courts except
Karachi District Courts have no limit prescribed to their pecuniary jurisdiction. The present suit
could, therefore, be filed at Hyderabad. The question for decision, however, before me is
whether it could not be instituted in the High Court at Karachi. The restrictions prescribed by
Sections 16, 17 and 20, C.P.C. having been removed the original jurisdiction of the High Court is
enlarged and it has jurisdiction to entertain the present suit."

12. The aforesaid provision of law was subsequently considered by this Court and reaffirmed in
the case of Dr. Muhammad Shabbir Khan v. M/s Abu Dhabi Petroleum Co. Ltd. Karachi (PLD
1975 Karachi 138) and laid down the following principles.

"In the absence of statutory provisions regarding the place and forum of suing applicable to the
High Court, the general principle of law was applicable according to which the plaintiff has no
right to sue a defendant in a personal action except when he resides or carries on business within
the jurisdiction of the Court."

13. Section 120,C.P.C. was also interpreted by this Court in the case of Syed Muhammad Anwar
Iqbal v. M/s Bangladesh Shipping Corporation (1991 CLC 473) and M/s Agricides (Pvt.) Ltd. v.
M/s Ali Agro Supply Corporation Ltd. (1988 CLC 59) wherein it has been held that the
provisions of Section 120, C.P.C. do not in any manner restrict jurisdiction of High Court, on the
contrary, enlarges the same. The aforesaid provision of C.P.C. was again interpreted by this
Court in the case of M/s Muslim Commercial Bank Ltd. v. M/s Nisar Rice Mills (1993 CLC
1627). The relevant observation is as follows:-

"These, on principle, may be either the defendant's residing or carrying on business or in cases of
plurality one of the defendants being so subject or the cause of action, wholly or in part, arising
or a property, subject-matter of the suit, being situate or a defendant-firm or company having
main or branch office within the jurisdiction, which can attract the Original Civil Jurisdiction of
this Court. In the absence of at least one of these aspects the jurisdiction would not be attracted.
The presence of Section 120 on the statute book cannot mean and was never meant to mean that
a High Court covered by that section could exercise jurisdiction merely for the asking without
any jurisdictional fact being pleaded or shown. The only logical effect of Section 120 of the
Code seems to be that, subject to discretion of the Court itself, the technicalities in Sections 16,
17 and 20 cannot be pressed into service to divest a High Court of its Original Civil Jurisdiction
if such, on general principles, is otherwise attracted."

14. In view of hereinabove facts and circumstances of this case and following the dictum as laid
down in the above cited judgments, we do not find any substance in the instant High Court
appeal, which is hereby dismissed; however, with no order as to cost.

ZC/H-12/Sindh Appeal dismissed.