' The brief facts of the suit are that the plaintiff is a limited company incorporated under Companies Ordinance, 1984 having its head office at Karachi and engaged in the sale and distribution of agrochemical etc. Throughout the country. The defendant No,1 is a proprietorship concern owned and controlled by the defendant No,2 and is engaged in the business of agrochemical and having their place of business at Permit Road, Jatoi Tehsil Alipur, District Muzaffargarh. The defendant No,3 is the business associate of the side defendants who had agreed and undertook to make the payment of the amount outstanding against the other defendants. During the period from 31-3-2001 to 28-9-2001 at the request of defendants the plaintiff sold/delivered to the defendants agrochemical worth Rs,3,889,768 on credit basis, which was duly received by the defendants who had agreed to pay the amount within 30 days of the delivery of the goods. Out of the above amount the defendants paid an amount of Rs,1,157,523 and balance of Rs,2,732,245 was payable by the defendants to the plaintiff along with mark-up/interest thereon. It is alleged that the defendants have failed to pay the said amount in spite of repeated promises made by them. On 28-2-2002 the defendant No,3 sent a letter to the plaintiff at Karachi and agreed to pay an amount of Rs,30,00,000 which amount included the above outstanding amount and mark-up/interest upto the date of said letter. On 30-10-2002 the defendant No,3 delivered a cheque of Rs,30,00,000 of his Bank viz. Muslim Commercial Bank, Alipur Branch, Muzaffargarh. The cheque was presented for payment to Muslim Commercial Bank but on 19-11- 2002 the same was dishonoured on the ground that account had been closed. The plaintiffs further claimed that they are entitled to above amount including an amount of Rs,6,37,524 on account of mark-up at the rate of 14% therefore, they have filed the suit for recovery of Rs,33,69,769 against the defendants.
2. The defendants were served but they could not file written statement within time nor leave to defend was obtained. As such the matter was fixed for final hearing. In the meantime the defendants filed an application under Order VII, rule 11, C.P.C. On the ground that this Court has no jurisdiction to try the suit as the cause of action accrued within the jurisdiction of Jatoi Tehsil Alipur, District Muzaffargarh.
3. I have heard the parties Advocates. Perused the record of this case very carefully.
4. Section 20 of the. C.P.C. Deals with the institution of suit, which reads as under:-- "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 the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, 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 places."
5. According to above section the plaintiff had three options to sue:
(a) where the defendant or each of the defendants actually resides, carries on business or personally works for gain or (b) in case there are more than one defendants any of them resides, carries on business or personally works for gain; or (c) at the place where the cause of action, wholly or in part, arises. Admittedly, the clauses (a) and (b) are not applicable in the present case as the defendants are neither residing in Karachi nor they are carrying business or having their sub-offices in Karachi. Therefore, clause (c) would be applicable under which a suit can be filed where the cause of action, wholly or in part, arises. Further, Explanation II is not applicable to case falling under clause (c) as held by the Honourable Supreme Court of Pakistan in the case Brandy & Co. (Pakistan) Ltd. v. Syed Saigal Industries Ltd. 1981 SCM R 494.
6. From the averments made in the plaint it is clear that therelB appears to be a contract between the parties for the supply of agrochemical on credit basis. 'Thus, the case is based upon the contract executed between the parties under which the cause of action will arise at the following places:--
(i) Where the contract was made.
(ii) Where the contract is to be performed or the performance thereof completed, or breach, or non-performance takes place.
(iii) Where in performance of the contract any money to which the suit relates was expressly or impliedly payable.
' Reliance is placed on the cases of Kadir Motors (Regd.) v. National Motors Ltd. 1992 SCMR 1173; Gordhandas v. Dowlatram AIR 1926 Sind 238; AIR 1942 Odisa 250 and Sundar Das Prem Singh v.
Puran Chand AIR 1933 Lah.
599.
7. During the course of arguments learned Advocate for the plaintiff has admitted that the contract was executed between the parties at Jatoi Tehsil Alipur, District Muzaffargarh. The contract was to be performed at Jatoi as demand and supply of articles were made' and the payment was also to be made at Jatoi. Thus, from the above position it is clear that-the cause of action had accrued within the jurisdiction of Jatoi Tehsil Alipur, District Muzaffargarh. This point has been further clarified from para.8 of the plaint which deals with the cause of action. The said para. Reads as under:-- "(8) That the cause of action arose to the plaintiff against the defendants first on 31-3-2001 when the defendants for the first time purchased and received the Agrochemicals from the plaintiff then on the each and every date the defendants further purchased and received the goods from the plaintiff, then on the date the defendant No,3 undertook to make payment of the outstanding amount in instalments as per schedule through his letters dated 28-2-2003, when the defendant No,3 issued cheque dated 30-10-2002 and also executed affidavit in favour of the plaintiff and again on 19-11-2002, when the said cheque was dishonoured and the. Same cause of action continued to exist on all relevant and material dates when the defendants wilfully and intentionally failed to make payment of amount due and liquidate their liabilities, hence this suit."
8. The learned Advocate for the plaintiff has contended that as the goods were delivered from Karachi Head Office to its branch at Jatoi, Tehsil Alipur for its distribution and that the defendant No,3 had sent letter to Head Office at Karachi and issued 'cheque of Rs,30,00,000, therefore, the cause of action accrued at Karachi. It is admitted position that the plaintiff is doing the business throughout country through its sub-offices. Naturally, the goods were sent to their sub-offices for running their business and to sell the goods to all their customers. However, the question is not the supply of the goods to the sub-office, but the question is of delivery of goods to the defendants.
Admittedly, the plaintiffs did not deliver the goods from Karachi to their sub-office for the purpose of delivering the same to the defendants only, but the same were .Supplied to the sub-office to be delivered to all their customers of Tehsil Alipur. From those goods, the sub-office of the plaintiffs had delivered a portion of it to the defendants. Furthermore, the perusal of the documents reveals that defendant No,3 had issued the cheque of Rs,30,00,000 from Muslim Commercial Bank, Alipur Branch. The plaintiff deposited the cheque, but the cheque was dishonoured as per letter of Muslim CommerCial Bank, Alipur Branch. Thus, payment was to be received from Muslim Commercial Bank, Alipur Branch. It is admitted position that throughout the period the money was paid in the sub-office of plaintiffs at Jatoi Tehsil Alipur. The arrangement between the parties was to receive the goods and pay the amount at Tehsil Alipur. As such, the arguments of the learned Advocate for the plaintiffs have no force.
9. The learned Advocate for the plaintiff further contended that in the documents through which the goods were supplied to the defendants it has been mentioned that in case of liability to sue the customer the suit can be filed at Karachi, therefore, the parties had agreed to the jurisdiction of Karachi Court hence this Court has jurisdiction to entertain the suit.
10. The consent of the parties to give jurisdiction to the Court will be applicable when the said Court has jurisdiction along with any other Court. The consent of the parties cannot invest or divest the Court to its D jurisdiction. Similar point was considered by the Supreme Court of India in the case of Hakim Singh v. Gammon AIR 1971 SC 740 at p.741, it has been observed as under:-- "It not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it does not possess under the Code. But where two Courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such Courts is not contrary to public policy. Such an agreement does not contravene section 28 of the Contract Act."
11. The Honourable Supreme Court of Pakistan in the case of State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCM R 393 considered the above question and observed as under:-- "It is evident from a plain reading of these provisions that there is no absolute exclusion of jurisdiction under section 9 or section 20 of the Code of Civil Procedure nor there is any violation of the provisions of section 28 of the Contract Act when two or more Courts have jurisdiction to try a suit and the parties mutually agree to choose or take their dispute to one of them. The Civil Courts exercise their jurisdiction under the Code of Civil Procedure. If they do not possess such jurisdiction under the Code it cannot be conferred on them through a mutual agreement of the parties to a dispute. But in a situation where two or more Courts have jurisdiction to try a suit under the Code of Civil Procedure, then an agreement between the parties that any dispute arising between them shall be tried only by one of such Courts could not be considered contrary to public policy as it would neither contravene the provisions laid down in section 28 of the Contract Act nor would it violate in any manner the provisions of section 9 or section 20 of the Code of Civil Procedure. "
12. The above authority has subsequently been relied upon in the case of Standard Insurance Co. v.
Pak. Garments Ltd. 1998 SCM R 1239.
13. In the present case, as no cause of action accrued within the territorial jurisdiction of Karachi Court, therefore, the parties cannot invest the jurisdiction to this Court. If this Court would have jurisdiction along with another Court then the parties could have mutually agreed to file a suit in a particular Court. Thus, the arguments have no force at all.
14. After considering the material available on record I am of the considered view that this Court has no territorial jurisdiction to try the suit, therefore, the plaint be returned to the plaintiffs for presenting it before the Court having jurisdiction in the matter.