' ANWAR ZAHEER JAMALI, J.---This appeal has been preferred against the order dated 4-10-2004 passed by the learned Single Judge of this Court whereby plaint in Suit No.427 of 2004 was ordered to be returned, on the ground of lack of territorial jurisdiction.
2. Briefly stated, facts relevant for the disposal of this appeal are that on 4-2-2004, appellant/plaintiff instituted a suit for declaration, injunction, cancellation and direction against the respondents, praying therein for the following reliefs:-- "(i) Declaration that the Notification dated 15-12-2003 issued by the defendant No.2 and published in Gazette on 7-1-2004 is !Void ab initio, illegal as the same is violative of fundamental rights of the plaintiff and violative of natural justice as well as violative of section 16-A of the Societies Registration Act and Articles 17, 18 and 25 of the Constitution of Islamic Republic of Pakistan, therefore, has no legal effect.
(ii) Mandatory injunction suspend the operation of impugned notification dated 15-12-2003 published in Gazette dated 7-1-2004.
(iii) Permanent injunction restrain the defendants especially defendants Nos .1 and 2, their agents, attorney, representative, authorized person(s) or any other official or officers working on their behalf from interfering in the smooth running and issuing any instructions to the Institution of Engineers Pakistan, Karachi Centre (defendant No.4).
(iv) Permanent injunction restrain the defendants especially defendants Nos .1 and 2, their agents attorney, representative, authorized person(s) or any other official or officers working on their behalf from altering amending, modifying, deleting, addition in any manner whatsoever nature the Constitution and bye-laws of Institution of Engineers Pakistan.
(v) Any other order(s) which this Honourable Court deem fit and proper may kindly be passed.
(vi) Costs of the suit."
3. Disclosing the relevant facts, in the plaint he stated that he is a highly qualified mechanical engineer having obtained degree of Dr. Of Philosophy (Ph.D) in Human Resources Management from Illford Institute, Canada and more than 34 years professional standing. Further he is life fellow of Institute of Engineers Pakistan and was also elected its president for the term 2001-03. The respondent No.4 is a registered society under the Societies Registration Act, 1960 having its constitution and bye-laws, with its head office at Lahore and local centres at Karachi, Hyderabad, Sukkur, Multan, Faisalabad, Lahore, Islamabad, Tarbela, Peshawar, Quetta etc. According to the Constitution and bye-laws of respondent No.4, election of its central council and that of local council are held concurrently for the term of three years. At the time of elections for the terms of 2004-06, which were held on 15-10-2003, appellant was president of the Institution, which office he continued to hold till 16-12-2003. Further case of the appellant is that the respondent No.2, inviolation of Societies Registration Act as well as constitution and bye-laws .Of -respondent No.4, has illegally appointed respondent No.1 as Administrator of respondent No.4, vide Notification dated 15-12-2003, which was published in Gazette on 7-1-2004. Such action was also violative of the provisions of section 16-A of the Societies Registration Act, 1860. The appointment/nomination of respondent No.1 and subsequent action taken by him disturbing the functioning of Karachi centre of respondent No.4 promoted the appellant to file present suit with the reliefs reproduced above. In paragraph 27 of the plaint, the appellant stated relevant facts regarding the cause of action accrued to him, which reads thus:-- "27. That the cause of action arose to the plaintiff on various dates and finally of 15-12-2003 when the defendant No.2 issued the illegal notification and superseded the defendant No.1 with the plaintiff and subsequently on 7-1-2004 when the above Notification was published in Gazette.
Cause of action is continuing one and is accruing day by day."
4. On service of summons of the suit, respondents Nos.1, 2 and 3 filed their parawise comments wherein, inter alia, they challenged territorial jurisdiction of this Court, precisely, on the ground that no cause of action has accrued to the appellant within the territorial limits of this Court. The learned Single Judge, after hearing the arguments of the learned counsel, passed the impugned order on 4-10-2004 wherein he concluded that this Court has no territorial jurisdiction to proceed with the suit,and consequently plaint in the suit was ordered to be returned to the appellant to enable him to present it before the Court having jurisdiction in the matter.
5. Aggrieved by the above order, the appellant has preferred this appeal wherein it has been urged by him that the provisions of section 120 and Order 49, C.P.C. Were misinterpreted by the learned Single Judge, which stipulates that section 20 C.P.C. And Order VII, rule 10 C.P.C. Are not applicable to the original civil jurisdiction of this Court. The appellant also took the ground that since respondent No.4 is a national body registered under the Societies Registration Act 1860, thus its actions relating to Karachi centre were amenable to the jurisdiction of this Court. A reference to other_ pending litigation between the parties before this Court has also been made to show that in those cases this Court has exercised its jurisdiction.
6. Mr.Kh. Shamsul Islam, learned counsel for the appellant, in his arguments, vehemently contended that the impugned Notification dated 15-12-2003 issued by the respondent No.3 has its effect not only on the functioning of respondent No.4 at its head office but also at all its centres located in various cities of the country. He urges that in such circumstances, the impugned notification, which was in clear violation of section 16-A of the Societies Registration Act 1860 and Articles 17, 18 and 25 of the Constitution, could be challenged before this Court. He further contended that by virtue of section 120, C.P.C., sections 16, 17 and 20, C.P.C. Are not applicable to the original civil jurisdiction of this Court; further, by rule 3 of Order 49, rules 10, 11(b) and (c) of Order VII were also not applicable, thus, the impugned order passed by the learned Single Judge, ignoring these important legal aspects, was liable to be set aside.
7. Mr. Kh. Shamsul Islam candidly did not dispute that the provisions of section 20(a) and (b), C.P.C.
Are not relevant for the purpose of present suit and only the scope of section 20(c) relating to cause of action needs examination with reference to the facts of the present case. He contended that the illegal actions of respondent No.1, disturbing the setup and working of Karachi centre of respondent No.4, as detailed in para. 19 of the plaint, were challenged by the respondent No.1, therefore, part of the cause of action has accrued at Karachi, and territorial jurisdiction of this Court was thus extended to entertain the present suit. He also contended that if the impugned order is not set aside and suit instituted by the appellant will be put to heavy expenditures and hardship to pursue all his cases at Lahore. Learned counsel lastly contended that for determining the fact that whether cause of action or any part thereof has accrued to a party within the territorial limits of a Court within the scope of section 20(c), C.P.C., the averments made in the plaint are to be taken as whole and presumed to be correct. He urged that contents of para. 27 of the plaint, therefore, cannot be read in isolation to the contents of para. 19 of the plaint, which discloses accrual of part cause of action at Karachi. To fortify his view that on the basis of cause of action present suit can be maintained before this Court at Karachi, learned counsel placed reliance on the following cases:--
(1) Syed Muhammad Khurshid Abbas Gardezi and 5 others v. Province of Punjab (1988 CLC 362)
(2) Anwar Textile Mills Ltd. v. Central Board of Revenue and others (1985 CLC 2799).
(3).Itehad Cargo Service, National Hotel, Lahore and .2 others v. Rana Rafaqat Ali and 3 others (PLD 2002 Karachi 420).
(4).Sardar Muhammad Sarwar Khan v. Shaukat Zaman Khan (1999 CLC 954).
(5.)Faqir Muhammad v. Pakistan (2000 SCMR 1312).
8. Mr. Nadeem Azhar, learned counsel for the defendant No.4, supported the arguments of learned counsel for the appellant and contended that the respondent No.1, after his appointment as administrator of respondent No.4, through impugned notification, has taken several steps disturbing the functioning of its local office at Karachi, thus, the cause of action has partly accrued to the appellant at Karachi within the meaning of section 20(c) C.P.C., therefore, the suit is very much maintainable.
9. Conversely, Mr. Waseem Sajjad, learned counsel for the respondent No.1, strongly supported the impugned order and contended that it is based on proper assessment of relevant facts and proper interpretation and application of relevant provisions of law, thus it is unexceptionable. He further contended that admittedly respondent No.4 is a society registered under the Societies Registration Act 1960, having its registered 'office at Lahore; the impugned Notification dated 15-12-2003 has been issued by the respondent No.2 (Province of Punjab) at Lahore and all the defendants arrayed in the plaint, against whom some relief has been sought, are also from Punjab Province, then in such circumstances how cause of action or any part thereof has accrued to the appellant at Karachi for challenging the impugned Notification dated 15-12-2003. He also contended that the question of accrual of cause of action to a party for filing a suit is to be determined by the Court with reference to the reliefs sought in the suit, while in the present suit no relief whatsoever have been sought by the appellant with reference to the facts stated in para. 19 of the plaint, therefore, such averments of the plaint cannot be taken into account to hold that part of cause of action has accrued to the appellant within the territorial limits of this Court. He lastly contended that, even otherwise, the suit instituted by the appellant challenging the Notification dated 15-12-2003 has become infructuous as the period of this notification has lapsed and another notification has been issued by the respondent No.2. To add force .To his submissions, learned counsel placed reliance on the following cases:--
(1) Mirza Abdul Rahim Baig and another v. Abdul Haq Lashari and 3 others (PLD 1994 Kar. 388).
(2) Mian Fazal Muhammad Nizam-ud-Din Baig & Co. v. The Province of West Pakistan and others (PLD 1969 Lah. 453).
(3) Haji Abdul Malik and 10 others v. Muhammad Anwar Khan and 26 others (2003 SCMR 990).
10. Mr. Bilal A. Khawaja, counsel for respondent No.2, supported the arguments of Mr. Waseem Sajjad with the addition that the territorial jurisdiction of each suit is to be determined on the basis of cause of action disclosed in the plaint of that particular suit, therefore, pendency of Suit No.1374 of 2003 and 274 of 2004 between the same parties will not ipso facto enable this Court to conclude that in the present suit also, with reference to the relief sought by the appellate jurisdiction vests with this Court.
11. We have carefully considered the arguments advanced by the learned counsel for the parties and also 'perused the case record. Indeed, it is elementary principle of law that for examining the question of maintainability of the suit with reference to or on the analogy of the provisions of Order VII, rules 10 and 11 C.P.C., the averments made in the plaint are to be taken as whole and with presumption of correctness attached thereto. But at the same time, it is also pertinent to mention that for determining the question of territorial jurisdiction with reference to the cause of action, whether accrued wholly or in part, the averments of the plaint are to be read in conjunction with the relief sought by a party in the suit and such reading of plaint should be meaningful, rational to the controversy and not merely formal. With these broad principles in mind, when the averments of the ,plaint in Suit No.427 of 2004 are perused, it is not difficult to conclude that the main relief sought in the suit is relief of declaration with reference to the Notification dated 15-12-2003 issued by the defendant No.2, to the effect that it is void ab initio illegal and violative of fundamental rights of the appellant as well as violative of the provisions of section 16-A of the Societies Registration Act and the other reliefs sought in the plaint are only consequential to such main relief of declaration.
Keeping in view this position when the facts relating to the cause of action, as stated in the plaint, are carefully examined, the only possible just and logical conclusion is that for such reliefs no cause of action or any part thereof has accrued to the appellant within the territorial jurisdiction of this Court, as the office of respondent No.2, the Issuing Authority of notification dated 15-12-2003, is at Punjab, the person nominated as administrator of respondent No.4 through this notification is resident of Punjab and the Notification has also been issued and implemented in Punjab. Moreover, the facts stated in para. 19 of the plaint relating to the alleged illegal exercise of powers by respondent No.1, allegedly disturbing the working of Karachi Centre on the basis of impugned Notification have not been questioned or challenged in the present suit so as to conclude that part of cause of action has accrued to the appellant within the territorial jurisdiction of this Court. The observations of the Honourable Supreme Court of Pakistan in the case of Haji Abdul Malik (supra) that the essential factor for the determination of jurisdiction for the purpose of entertaining the suit would be judged from the contents of the plaint and the dispute subject-matter of suit and not from the consequences flown from the suit, are quite apt to fortify this view.
12. The submission of Mr. Khawaja Shamsul 'Islam with reference to non-applicability of sections 16, 17 and 20, C.P.C. To the High Court in exercise of its original jurisdiction, by virtue of section 120, C.P.C., is without force and of no help to the appellant, as this legal aspect has been dilated in a prudent manner in the case of M/s. Muslim Commercial Bank Limited v. M/s. Nisar Rice Mills and another (1993 CLC 1627) (some relevant portion also reproduced in the impugned order) which furnishes complete answer of such submission. The other submission of the learned counsel with reference to rule 3 of Order XLIX, C.P.C. Which excludes the appliability of certain provisions of C.P.C., including Order VII rules 10 and 11 (b) and (c) C.P.C., to the ordinary or extraordinary original civil jurisdiction of the High Court, is also equally without force, as non applicability of such provisions of C.P.C. Do not deny or curtail the power of High Court either to reject or return the plaint in appropriate cases. If any case is needed to fortify this view, reference can be made to the case of Mirza Abdur Rahim Baig (supra)..
13. As to the last submission of Mr. Kh. Shamsul Islam that due to the passing of impugned order by the learned Single Judge resulting in the return of plaint, the appellant will be put to heavy expenditure pursue all his litigation against respondents at Lahore and the doors of this Court have been closed for him forever, suffice it to observe that the 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-a-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 of C each suit and no perpetual order could be passed against a party that since plaint in one suit earlier instituted by him was returned for want of cause of action then for all future times to come no other suit instituted, though having cause-of action accrued within the territorial jurisdiction of this Court could be entertained, or the findings on the point of jurisdiction recorded in the earlier suit will operate as res judicata, irrespective of distinguishable facts.
14. Coming to the case-law cited by Mr. Khawaja Shamsul Islam, it may be observed that there is no cavil to the principle of law annunciated in these cases, that if cause of action or any part thereof has accrued to a party within the territorial jurisdiction of this Court, plaint in such suit cannot be returned, but looking to the averments made in the plaint of the present suit, as discussed above, these cases are of no help for the appellant.
15. Before parting with this order, with reference to the Notification dated 15-12-2004, placed on record by Mr. Waseem Sajjad, it may be observed that before us the only controversy involved in the appeal is the legality or otherwise of the impugned order dated 4-10-2004, for return of plaint, passed by the learned Single Judge, thus, at this stage we would refrain from commenting upon the consequences of such subsequent Notification.
16. Foregoing are the reasons for our short order, dated 17-12-2004.