1. ARSHAD NOOR KHAN, J. --- The plaintiff filed suit for declaration, mandatory injunction, specific performance and recovery of damages against the defendant, stating therein that land bearing Survey Nos. 255/1B, 255/1-A, 531, 532, 533, 535, 536, 537, 540, 329, 938, 255/2, admeasuring 16.2 acres and the property in land, bearing Survey Nos. 429, 429/2, 422/2, 422/4, 428/1, 428-II-A, 428-/2, 423/3 and 423/4 admeasuring 15 acres, situated in Deh Dando Adam, District Sanghar, was initially owned by M/s. Tanweer Textile Mills Ltd. The said company had availed the facility of finance and mortgaged the afore-stated property with Habib Bank Limited, because of default, were put to an auction by the Court and one Khawaja Aamir Ishaque and Muhammad Nadeem jointly purchased .The said property in auction proceedings before Official Assignee under the name and style of Bhittai Corporation. It is further stated in the plaint that subsequently both the partners, namely, Khawaja Aamir Ishaque and Muhammad Nadeem did not continue their partnership and separated their ways by distributing the 'properties of their business and executed a power- ofattorney in the name of the defendant, which was registered on 23.5.2005 before Sub-Registrar Tando Adam-it is further stated in the plaint that the plaintiff belongs to Tando Adam Town and he purchased the said property from the defendant. After one month of the execution of sale agreement, the defendant .Approached the plaintiff and requested him to change the terms of the transaction instead of sale of property he suggested to become a partner of the property to which the plaintiff agreed and another agreement was executed in-between the parties, whereby by the price of the land was reduced to Rs. 2,50,00,000/- from Rs. 4,50,00,000/- and also the payment of new price was referred in construction of the land. It was also agreed that . The defendant will obtain all the necessary permissions to convert the land into commercial and the share of profit was agreed to be 60% and 40% respectively. In pursuance of the second agreement, the plaintiff was put into possession of the property and had also applied for registered sub- power- of-attorney of original documents including registered sale-deed and original power-of- attorney of the defendant were handed over to the plaintiff. It is further stated in the plaint that in pursuance of the afore-said agreement the plaintiff spent huge amount on removing the encroachment. The plaintiff smell that the defendant has changed his attitude and behaviour and has become dishonest and has executed sale-deed in his favour through Official Assignee in respect of land, bearing Nos. 429, 429/2, 422/2, 422/4, 428/1, 428/IIA, 428/2, 423/3 and 423/4, admeasuring 15 acres. It is reiterated by the plaintiff that the defendant became dishonest and is trying to deprive the plaintiff from the fruit of the property ripped only through the efforts made by the plaintiff. The plaintiff has, therefore, filed the present suit, as stated above. The office has raised the following objections about the maintainability of this suit: "(I) It appears that the defendant is a agent/ attorney of the principals/owners of M/s. Bhatti Corporation through its Directors Khawaja Amin lshaq son of Khawaja Muhammad Razak and Malik Muhammad Ismail son of Malik Muhammad Subhan in respect of suit land which is situated at Tando Adam District Sanghar and the plaintiff has not joined the above-noted owners in the suit proceedings and the suit is hit under Section 230 and 231 of the Contract Act.
(ii) It appears that the suit land is situated at Tando Adam, District Sanghar and the alleged agreement as Annexure P/3 at pages 43 to 44 was executed at Tando Adam, District Sanghar and in suit is to be filed before the Court of Senior Civil Judge, Tando Adam, District Sanghar and the instant suit is for specific performance of contract and other consequences relief(s) having pecuniary and territorial jurisdiction and the suit land is also situated of Tando Adam, District Sanghar.
2. Learned counsel for the plaintiff has not filed any reply in writing to the objections raised by the office and has directly argued the matter.
3. Mr. Zaheer H. Minhas, learned counsel for the plaintiff vehemently contended that the defendant is the agent/attorney of M/s. Bhittai Corporation therefore, there was no necessity to implead M/s. Bhittai Corporation as defendant in the present case. He further contended that the suit is not barred under any provision of law as the Agreement (Annexure P/6) was executed at Karachi, therefore, the suit filed at Karachi is maintainable, therefore the objection may be overruled.
4. Mr. Raja Mir Muhammad, learned counsel for the defendant, supported the objections raised by the office.
5. [have considered the arguments advanced on behalf of the plaintiff.
6. The contention of the learned counsel for the plaintiff that the Agreement (Annexure P/6) was executed at Karachi, therefore, the Court has jurisdiction to procee'd with the matter seems to be devoid of any force. Admittedly, the plaintiff has filed the suit for specific performance regarding the property which admittedly is situated at Tando Adam. In paragraph 2 of the plaint, the plaintiff has well-worded that he belongs to Tando Adam Town, where the property as located and deals in .Development, sale and purchase of the 'property, therefore, the defendant approached to the plaintiff and offered him to purchase the said two properties for the purpose of launching a housing project on the property as the property is located in the heart of Tando Adam Town. The said admission of the plaintiff shows that he is residing' at Tando Adam and the property involved in the present suit is also situated within the territorial jurisdiction of Tando ,Adam. The plaintiff has filed the Sale Agreement (Annexure P/3), which also shows that the said Agreement was executed at Tando Adam, District Sanghar. The plaintiff has also filed photocopy of sale-deed executed in- between Mr. Bashir Ahmed Memon and Mr. Khawaja Aamir lshaque son of Khawaja Muhammad Razzaque and Malik Muhammad Ismail son of Malik Muhammad Subhan, being the purchasers of the, property in question through Official. Assignee and the said sale-deed (Annexure P/1) was also registered before the Sub-Registrar at Tando Adam. The general power-of-attorney (Annexure P/2) executed by M/s. Bhittai Corporation in favour of the defendant, was also registered before the,. Sub-Registrar, Tando Adam. The sub-general power-of-attorney (Annexure P/7), produced with the plaint, also shows that it was also registered before the Sub-Registrar, Tando Adam. All the said material, .Produced by the plaintiff alongwith the plaint, shows that all these documents were registered at Tando Adam and the property involved in the present case is also admittedly situated at Tando Adam. A perusal of Sale Agreement (Annexure P/3) also shows that the plaintiff and defendant are residents of Tando Adam. There is, therefore, sufficient evidence available on record to show that the parties are residing at Tando Adam and the property in dispute is also situated at Tando Adam, as such the suit ought to have been filed in Court situated at Tando Adam in view of Section 16, C.P C.. Learned counsel for the plaintiff vehemently contended that Agreement (Annexure P/6) was executed at Karachi in-between the parties, therefore, this Court has jurisdiction to proceed with the matter, but the fact remains that the Agreement (Annexure P/6) is with regard to the terms and conditions of partnership in-between the plaintiff and the defendant and the subject-matter of this suit is the property which is situated at Tando Adam and Agreement Annexure P/6 is nothing but showing the entitlement of the partners regarding share in the property in dispute and agreement regarding share-over the property which is situated a Tando.
7. Adam does not confer any power on the plaintiff to present and institute the suit at Karachi, especially when the residential address of both the parties is again mentioned in Agreement Annexure P/6 as that of Tando Adam. Since the property in dispute is situated at Tando Adam, the parties to the suit are residing at Tando Adam and are running their business for gain at Tando Adam, therein, the Court situated at Tando Adam has territorial jurisdiction to entertain and adjudicate upon the suit. This Court, therefore, cannot entertain the suit-cause of action of which has been wholly accrued at Tando Adam and the parties are residing and running their business at Tando,Adam. The office objection No. (ii) is, therefore, upheld and the plaint is. Therefore, returned to the plaintiff for proper prosecution before the proper Court in view of Section 10, C.P.C. .