1. ' MRS. QAISER IQBAL, J.---The appellant has assailed the order dated 26-1-2007 passed by the learned Single Judge in Suit No, 146 of 2006 on C.M.A. No, 2448 of 2006 under Order I, Rule 10, C.P.C.
2. And Order VII Rules 10 & 11, C.P.C., which were allowed, whereby the suit of the appellant was stayed on the ground that there exists an exclusive foreign jurisdiction clause in the agreement.
3. ' Succinctly the facts leading to the case are that the respondent No,1 is a Foreign Company incorporated under the laws of Germany having its registered office in Germany, by virtue of agreement dated 26-8-1992, appointed the appellant as his exclusive commercial agent and representative for the territory of Pakistan. In terms of the agreement negotiated for the sale of respondent No, l's products as well as services relating to the products, it was agreed that the appellant would be entitled to commission, which was paid by the respondent No,1 on quarterly basis. The appellant is alleged to have procured the sale of the equipment's of the respondent No,1 to the tune of Euro 5,843,694 and was entitled to 10% commission under the contract. The appellant claimed commission on sale of spare parts received Euro 8,781,83 whereas respondent No,1 had unlawfully deducted a sum of Euro 8,355.23 from the bills. Another sum was also claimed towards expenses creating goodwill for he respondent No,1 Company. Respondent No,1 terminated the contract with effect from 30-6-2005 and appointed another Company as an agent for Pakistan.
4. The appellant claimed a sum of Euro 1,180,572.45 from respondent No,1 towards commission arising out of contractual obligations.
5. ' Respondent No,1 filed C.M.A. No,2448 of 2006. After service of summons was effected for stay of proceedings seeking directions for the appellant to file his claim before foreign jurisdiction as per clause contained in the Agency Contract. The appellant filed counter affidavit, the matter was heard and decided against the appellant.
6. ' Learned counsel has contended that the appellant was agent of the Principal as per clause 10 sub-clauses (2) (3) and (4), contractual relation between the parties is subject to German laws and obligations of the subject contract shall be an exclusive jurisdiction of Krefeld. It is urged that sub-clause (3) is uncertain and vague clause. All the evidence is available in Pakistan and the judgment if passed would be executed at Karachi, inconvenience shall be caused to the appellant, if they shall resort for redress to the Court of foreign jurisdiction.
7. ' Adverting to sub-clause (2) of clause 10 of the Contract, it is submitted that the claim could be filed by the agent in Germany within the statutory period of six months, therefore, by any stretch of imagination claim has become time barred for the purpose of presenting the same before the Court in foreign jurisdiction, prima duty of the Court is to take into consideration convenience and inconvenience faced by the parties for implementation of the covenants of the contract. It was further contended that this Court has not only jurisdiction to adjudicate upon the matter as termination letter and other correspondence are in English language whereas German language is a language of Krefeld Court. It is urged that sale of the respondent No, l's products were procured by the appellant at Karachi and other parts of Pakistan, the courts at Karachi shall have jurisdiction to decide the controversy.
8. ' Learned counsel for the respondent No,1 has contended that by virtue of clause 10, jurisdiction of the Court at Krefeld, Germany has to be invoked, as there is no reciprocal agreement between Government of Pakistan and Germany if any decree is passed by Pakistani Court, it cannot be executed in the Court of Germany, the forum available to the appellant is in foreign jurisdiction.
9. ' We have heard learned counsel for, the parties, perused the record of the case. For the purpose of adjudication of question of jurisdiction, clause 10 of the Agency Agreement dated 26-8-1992, 1-10- 1992 is material, which is reproduced herein below:-- "Clause 10
(1) Projects which have been negotiated by ZSK before signing this contract and which can be concluded only after coming into force of this contract, are not subject to the regulations of this contract.
(2) The contractual relation is subject to German law. The direct or respective application of the obligatory determinations of the German Code for Commercial Representatives is excluded.
(3) Place of fulfilment for all obligations of this contract and exclusive jurisdiction is Krefeld ZSK is also entitled to accuse, the Agent as his competent Court.
(4) All claims resulting from the contractual relation of the Agent and ZSK will expire if they have not been claimed within a period of 6 months after being due".
10. ' The above clause specifies that contractual relation between the parties are subject to German laws, the parties have agreed to fulfil all obligations of this contract at Krefeld, which has exclusive jurisdiction.
11. ' Learned counsel for the respondent has contended that assuming of covenants of the agreement are correct, the proper place to decide the dispute would be Krefeld. Both the parties will have to bring their witnesses to Germany incur expenditure in doing so. It is difficult to say which place would be less inconvenient and more expensive. It is however, clear that the dispute would be governed by law of Germany on the basis of jurisdiction clause for preserving sanctity of the contract. In support of the above contention reliance has been placed in the case of CGM Companies General Maritime v. Hussain Akbar 2002 CLD Karachi 1528.
12. The law is required to be interpreted in such a manner that it should be saved rather than destroyed. The Courts, should. Lean in favour of upholding constitutionality of legislation and it is therefore, incumbent upon the courts to be extremely reluctant to strike down laws as constitutionally, such power should be exercised only when absolutely necessary for injudicious exercise of this power might result in grave and serious consequences as held in the case of Province of East Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854 and Multiline Associates v. Ardeshir Cowasjee 1995 SCM R 362.
13. ' We have considered arguments advanced by the learned counsel for the parties at bar.
14. The covenants in the agreement and the contract has addressed the controversy as the share are not contrary to the public policy not in contravene provisions laid down in section 28 of the.
15. Contract Act nor it violates to procedural law. In case of State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCM R 393 following observations have been reiterated in the case of Standard Insurance Company v. Pak Garments Ltd. 1998 SCM R 1239. It is observed that:- "We have considered the arguments of learned counsel for the parties. Under section 9 of the Code of Civil Procedure the Civil Courts have jurisdiction to try all suits of a civil nature excepting the suit of which their cognizance is either expressly or impliedly barred. Under section 20 of the Code of Civil Procedure every suit is to be instituted in a civil Court within the local limits of whose jurisdiction the defendant resides or carries on business or where the cause of action wholly or in part arose. Under section 28 of the Contract Act every agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary Tribunals or which limits the time within which he may, thus, enforce his rights, is void to that extent. 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.
16. 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."
17. Learned Single Judge while taking into consideration clause 10 has specifically held that contractual relation was subject to German law and both parties have agreed to fulfil all obligations of the contract in Court having exclusive jurisdiction, therefore, there was no ambiguity in the mind of contracting party.
18. Learned counsel for the appellant has relied upon the case of M.A. Chowdhury v. Messrs Misui. O.S.K.
19. Lines Ltd. PLD 1970 SC 373 and CGM Companies General Maritime (supra) that relief claimed in the suit cannot be granted by the Court of foreign jurisdiction, may deprive him from legitimate judicious advantage. In the circumstances considered above, we are of the view that the question of Inconvenience to be faced by anyone of the parties is negated on account of reciprocal agreement between two parties, if decree passed by this Court cannot be executed in the Court of Germany as foreign judgment.
20. ' For the foregoing reasons, we are of the view that the impugned order does not call for any interference. Appeal bears no merits, stands hereby dismissed. The parties bear their own costs.