Tanvir Bashir Ansari, J.--The present appeal has been filed against the judgment and decree dated 18.12.2000 passed by the learned Senior Civil Judge, Sialkot.
2. Briefly the facts are that the respondent had procured Insurance Policy from the appellant on 10.12.1985 covering liability to the tune of Rs, 54,00,000/- and was valid uptil 19.8.1996. Subsequently cover note dated 1.6.1986 to the extent of Rs, 14,00,000/- was issued by the Insurance Company. The fire in the premises of the respondent bro' 3 out on 10.6.1986. The matter was reported to the appellant and in order to assess the loss, two surveyors were appointed who submitted their report dated 5.3.1987 finding the respondent entitled to Rs, 1.5 million. The respondent brought a suit for the recovery of an amount of Rs, 42,40,000/- as the loss caused to the goods/Assets of the respondent.
3. The suit was resisted by the appellant on various legal and factual grounds and the learned trial Court framed the following issues:-- ISSUES:
1. Whether the plaintiff got no cause of action and locus standi to file this suit? OPD.
2. Whether the notice was necessary to be served upon the defendant? If so, whether the suit is pre-mature in view of preliminary Objection No, 2 of the written statement? OPD.
3. Whether the Insurance Policy in favour of the plaintiff is not enforceable, on account of any alleged mis-statement of fact on the part of the plaintiff, as he has been pointed out in the preliminary Objection No, 3 of the written statement? OPD.
4. Whether the cover Note No, 17904 dated 1.6.1986 cancelled by the defendant? If so, its effect? OPD.
5. Whether fire broke out in the premises of the plaintiff? If so, how much loss has been caused to the plaintiff? OPP.
6. Whether the survey reports (as alleged in the plaint) are not binding upon the defendants? OPD.
7. Whether the defendant has received Rs, 7,00,000/- as 25% of insurance amount from the re- insure? If so, its .effect? OPD
8. Whether the notice U/S. 70 of the Co-operative Society Act was served by the plaintiff? OPP.
8-A Whether the Civil Court at Sialkot has got no territorial jurisdiction to adjudicate upon the suit?
OPD
9. Relief.
4. The parties were put to trial. The plaintiff/respondent examined 16 witnesses and also produced documentary evidence as Ex. P1 to Ex. P23.
5. As against the above, the appellant/defendant also examined DW1 and produced in evidence the document Ex. Dl.
6. After the conclusion of the trial, the learned trial Court has passed the decree to the tune of Rs, 1.5 million, out of which, Rs, 3,00,000/- have been received by the respondent. This decree therefore, corresponds exactly to the report of the Surveyors.
7. Mr. Muhammad Hanif Niazi, Advocate for the appellant has only raised legal arguments and it is contended that in the Insurance Policy, according to Clause 22 ibid, the parties have agreed for the exclusive jurisdiction of the Civil Courts at Lahore in case of any dispute arising between them or connected with the Policy. It is further submitted that the respondent before the institution of the suit has failed to serve upon the Registrar any notice under Section 70 of the Co-operative Societies Act, 1925, therefore, on both the counts, neither the Court below has territorial jurisdiction to decide the matter nor the suit in the absence of any notice was competent and maintainable.
No arguments on the merits of the case by discussing the evidence was made. Learned counsel for the appellant placed reliance upon the case of State Life Insurance Corporation of Pakistan vs. Rana Muhammad Saleem (1987 SCMR 393) and support of the first submission and on the second proposition, he places reliance upon the case of Lahore Cantt. Cooperative Housing Society Limited vs. Messrs Builders and Developers (Put.) Ltd. and others (PLD 2002 SC 660).
8. Mr. Amjid Pervez Malik, Advocate for the respondent has controverted the above contention on the ground that the respondent who had admittedly obtained a fire insurance policy from the appellant had filed a suit for damages on account of its insurance claim. It is submitted that notice under Section 70 of the Punjab Co-operative Societies Act, 1925 was not necessary before the filing of the suit as there was no dispute between the members or other persons contemplated in Section 54 ibid and that the cause of action arising in favour of the respondent was distinct and suit under Section 9 CPC was competent even in the absence of the aforesaid notice. He further submits that Section 70 has to be read in conjunction with the objects and purposes of the Co- operative Societies Act, 1925 and in particular with the provisions of Section 54 ibid. The learned counsel has placed reliance upon the cases of Lahore Cantonment Cooperative Housing Society Limited through Secretary vs. Messrs Builders and Developers (Pvt.) Ltd. and another (PLD 1999 Lahore 305) and Muhammad Azim vs. Pakistan Employees Co-operative Housing Society Ltd.
Karachi and 4 others (PLD 1985 Karachi 481) to support his contention.
It is further submitted that in any event, the suit was filed on 2.9.1987 and according to Ex.P-23 issued by the appellant to the respondent, the claim of the respondent had been candidly admitted through the letter dated 9.3.1987 and as there was correspondence and communication between the parties upon the specific claim prior to the filing of the suit, the requirements of Section 70 of the Co-operative Societies Act, 1925 stood fulfilled even if any such requirement was mandated by law. Reliance in this respect is placed upon the case of Mrs. Naila Masood and 2 others vs.Secretary, Food and Co-operation, Government of Sindh and others (PLJ 1999 Karachi 86).
With respect to the second objection regarding territorial jurisdiction, learned counsel for the respondent has contended that the Insurance Policy brought on the record as Ex.P-3 did not contain any clause whereby the jurisdiction to'file a claim was confined to the Courts at Lahore alone. It is submitted that such a condition appearing on another document which is not exhibited on the record will not effect the jurisdiction of the Court at Sialkot if under the law the said Civil Court at Sialkot enjoyed territorial jurisdiction. Learned counsel further referred to Section 21 CPC to contend that the objection to the place of suing shall not be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice. Learned counsel has placed reliance upon the case of Renown Biscuit Co. Bombay v. Kamalanathan (AIR '1980 Madras 28) to contend that a party objecting to the territorial jurisdiction must establish that entertainment of the suit by the Court has caused failure of justice. It is urged that in the present case, no case of failure of justice has been made out by the appellant. In fact, the appellant had itself acknowledged its liability to the extent of Rs, 15,00,000/- much prior to the filing of the suit by Respondent No, 1.
9. Arguments have been heard and record perused.
10. The suit was instituted on 2.9.1987 wherein therespondent/plaintiff had claimed damages in the sum of Rs, 39,40,000/-. The suit was contested both on law and facts of the case and from the pleadings of the parties, several issues as here-in-before mentioned were framed. It shall not be necessary to re-evaluate the entire oral and/or documentary evidence produced by the parties as the learned counsel for the appellant has confined his submissions only upon Issues Nos, 8 and 8- A as framed. The said issues are reproduced as under:-
8. Whether the notice U/S. 70 of the Co-operative Society Act was served by the plaintiff? OPP.
8-A Whether the Civil Court at Sialkot has got no territorial jurisdiction to adjudicate upon the suit?
OPD.
11.The Insurance Policy Ex. P3 was produced by Zaka Muhammad Khan Manager, United Bank, Sialkot. A perusal of the said Insurance Policy makes it abundantly clear that no clause which limited the jurisdiction to the Civil Court at Lahore alone is contained therein. Such a condition under Clause No, 22 is nevertheless present in another document placed on the record but which is neither stamped nor exhibited. The question of territorial jurisdiction was earlier decided by the trial Court vide separate judgment dated 7.5.1994 wherein it was also noticed that Condition No, 22 does not find mention in the agreement Ex. P3. The other document which was not exhibited and which did contain such a Clause No, 22 was rightly ignored as the same was neither properly stamped nor exhibited.
12. Besides the above, there is considerable force in the submission made by the learned counsel for the respondent that initial jurisdiction of a Civil Court to try the suit is governed under Section 20 CPC and as the agreement was admittedly executed at Sialkot, the Civil Court at Sialkot enjoyed the territorial jurisdiction. In order that such jurisdiction is conferred upon another Court through an agreement, the party raising objection must establish that there has been a consequent failure of justice by the exercise of jurisdiction by a Civil Court nor ordained in the agreement. Section 21 CPC was specifically considered in Renown Biscuit Co. Bombay's case (supra) wherein it was held that through the objection to territorial jurisdiction might have been taken at the earliest, yet it has to be established under Section 21 CPC that the entertainment of the suit by the learned Civil Court at Sialkot has caused failure of justice. From the material on the record particularly Ex. P23 whereby the appellant had themselves agreed to pay damage in the assessed sum of Rs, 1.5 million, it cannot be urged that any failure of justice has been occasioned by assumption of territorial jurisdiction by the Civil Court at Sialkot.
13.There is no cavil with the proposition that an agreement can lawfully be executed to confer jurisdiction upon one of the two or more Courts having jurisdiction in the matter and that this course is permissible under Section 28 of the Contract Act, yet we have not been able to discover any prejudice or failure of justice by the mere fact that the suit was entertained, tried and decided by the Civil Court at Sialkot.
14.In view of the fore-going, we do not find any merit in the submissions made by the learned counsel for the appellant. As no other point is canvassed, we find no merit in this appeal which is dismissed. The parties to bear their own costs.