' RAJA SAEED AKRAM KHAN, J.---This R.S.A. Has been directed against the judgment and decree dated 13-3-2006, passed by Mr. Muhammad Tariq Abbasi, Addl. District Judge, Islamabad, whereby he dismissed R.F.A. No,164 of 2004 filed by the appellant.
2. Brief facts forming background of this R.S.A, are that respondent No,1 filed a suit for specific performance of the agreement against the appellant, alleging that on 17-3-2002 the appellant entered into an agreement with him, in respect of Plot No,30-A, measuring 1-Kanal, situated in Gulzar-e-Quaid, Rawalpindi, wherein the appellant agreed to sell the said plot to respondent No,1 for consideration Rs,12,70,000, out of which Rs,25,000 were paid as earnest money on the same day, whereas, the remaining amount was required to be paid according to the following schedule:--
(a) Rs,1,75,000 on 20-3-2002.
(b) Rs,10,70,000 on 20-4-2002.
'The respondent No,1, as per schedule, on 19-3-2002 got prepared pay order of Rs,1,75,000 but when he visited the appellant to deliver the same, she refused to receive the same without any justification/reason. At this, respondent No,1 issued legal notice to her, but she did not give any response. The respondent No,1 alleged that he was ready to perform his part of agreement, but the appellant was avoiding the same without any reason/ cause.
3. On the other hand, the appellant not only contested the above suit, through filing written statement, on factual as well as legal grounds and denying averments of the plaint, but also filed a suit "Mst. Tabina A. Moiz v. Tahir Abbasi etc" for declaration and permanent injunction by stating therein that on 17-3-2002 she orally agreed to sell her residential Plot No,30-A, measuring 1-Kanal situated at Housing Scheme Gulzar-e-Quaid, Rawalpindi to Muhammad Tahir Abbasi through Asghar Ali Cheema for a consideration of Rs,12,70,000. Tahir Abbasi paid an amount of Rs,25000, but he failed to pay the balance sale consideration up to stipulated date i.e, 19-3-2002, therefore, she terminated the contract between the parties and now Muhammad Tahir Abbasi and Asghar Ali Cheema are illegally pressurizing her to transfer the plot in the name of Tahir Abbasi, for which they have no right.
4. Both the respondents (defendants in the said suit) contested the suit, through written statement, raising preliminary objections and denying averments of the plaint.
5. During trial, to avoid conflicting judgments and for convenience of the parties, both the above suits were consolidated and out of divergent pleadings of the parties, following consolidated issued were framed:--
(1) Whether the plaintiff (Muhammad Tahir) is entitled to get decree for specific performance of the contract and permanent injunction as prayed for? OPP
(2) Whether the suit is not maintainable in view of preliminary objections Nos. 1, 2, 4 and 5 of the written statement? OPD
(3) Whether this Court lacks jurisdiction to entertain the present suit? OPD
(4) Whether the suit is false, frivolous and defendant (Mst. Tabinda) is entitled for special costs under section 35-A, C.P.C? OPD
(5) Whether the defendant (Mst. Tabina) is entitled to get decree for Declaration and permanent injunction in the other suit titled "Mst. Tabina v. Tahir Abbasi" as prayed for? OPD
(6) Whether the other suit is liable to be rejected under Order VII, Rule 11 of C.P.C? OPP
(7) Whether the other suit is not maintainable in view of preliminary objections Nos. 2, 3 & 4 of the written statement? OPP
(8) Whether the other suit has not been valued properly for the purposes of court-fee and jurisdiction, if so, its effects ? OPP
(9) Whether the other suit is false and frivolous and plaintiff (Muhammad Tahir Abbas) is entitled to special costs? OPP
(10) Relief.
6. Both the parties adduced their respective evidence. Learned trial Court, after hearing arguments advanced by the both sides, decreed the suit filed by respondent No,1, whereas dismissed suit filed by appellant vide judgment and decree dated 29-6-2004.
7. The appellant being aggrieved, filed R.F.A., before Honourable Lahore High Court, Rawalpindi Bench, which was transferred to learned District Judge Islamabad, as a result of changes in pecuniary appellate jurisdiction of District Court. The said R.F.A. Was sent for hearing to Mr. Muhammad Tariq Abbasi, learned Addl. District Judge, Islamabad, who dismissed the same vide judgment and decree dated 13-3-2006. Hence, this R.S.A.
8. Learned counsel for the appellant has submitted that although learned trial Court has not attended the question of jurisdiction, but admittedly the property in question is situated in Rawalpindi and jurisdiction lies with the Court at Rawalpindi, stressing that the appellant raised jurisdiction point at every stage of the proceedings, even at the time of pleadings, whereas, respondent while appearing as P.W.-1 admitted that the plot is situated in Rawalpindi. He has further argued that learned trial Court was not having inherent jurisdiction and even consent of the parties could not confer jurisdiction upon the Court, as jurisdiction on the basis of consent of parties is barred under section 16 of C.P.C. It was duty of the Court to decide its jurisdiction at first, before trying the suits. He has added that an application under Order VII, rule 10, C.P.C. Was moved before the learned trial Court that the suit of respondent was liable to be returned on the ground that the Court was having no jurisdiction to try the same, but the Court even did not touch the point of jurisdiction while deciding the application. He did not apply his independent mind, but only followed his predecessor. In First Regular Appeal, the appellant also raised the objection of jurisdiction. The main thrust of his arguments was upon the jurisdiction of Court. He argued that the learned trial Court as well as appellate Court have badly failed to appreciate the question of jurisdiction, inspite of the fact that both sides admitted that the suit property is situated in Rawalpindi, therefore, the judgments passed, without jurisdiction, by both the Courts below, are nullity and not sustainable in the eye of law.
9. Learned counsel for the appellant, has further argued that if there was any breach of contract, respondent could only avail the remedy of filing suit for compensation instead of filing suit for specific performance. Even otherwise, the document on which much reliance has been made i.e, Exh.P-1 (Receipt of earnest money) no suit for specific performance can be filed on the basis of that document, which does not come under the definition of an agreement and maximum suit for recovery under section 74 of Contract Act could be filed. Learned counsel for the appellant has further stressed that such document cannot be enforced through the suit for specific performance, but both Courts below have overlooked this aspect of the case while deciding the suits. He has lastly argued that respondent is a property dealer and he indulges in the business of property, therefore, remedy for him in case of any violation, is to file suit for compensation and not suit for specific performance. He supported his arguments, while relying on the case laws, reported as 2003 CLC 163 (Paryal and others v. Sher Muhammad and others), 2004 SCMR 1947 (Muhammad Hussain and another v. Muhammad Shafi and others), 2004 SCMR 1622 (Maulvi Aziz-ur-Rehman v.
Ahmad Khan and others), PLD 2001 Supreme Court 514. (Land Acquisition Collector, Nowshera and others v. Sarfraz Khan and others) and 2005 SCMR 1388 (Munawar Hussain and 2 others v. Sultan Ahmad).
10. On the other hand, learned counsel for the respondents, has argued that this appeal has been filed incompetently by an attorney, who has no proper authorization to engage a counsel, therefore, learned counsel, who is appearing for the appellant cannot argue the appeal. He has raised objection on the power of attorney, which was filed before the learned trial Court on the ground that the same was photocopy and that is not admissible in the eye of law. According to him, photocopy is required to be proved through production of original document, which has not been done in this case. He has stressed that all the proceedings before the Courts below were conducted by an authorized person, on the basis of document which was a photo copy and that is inadmissible in evidence under sections 75 & 76 of Qanoon-e-Shandat Order, 1984. He supported his arguments on this point by relying on the case-law reported as PLD 1993 Karachi 520 (Syed Sajid Ali Asif through legal heirs v. Mumtaz Ahmed and 3 others). He has further added that by way of fraud and tampering with record of Court, later on original power of attorney was placed on the record, whereas, no date was mentioned, when this document was produced before the Court. The said power of attorney was never exhibited in evidence. He has further argued that appeal can only be filed against the decree and admittedly two decrees were passed in the matter, but in the present appeal only one decree has been attached, therefore, appeal can be dismissed on this sole ground. In this regard he relied upon the case-laws reported as 1991 MLD 506 (Tahir and 2 others v. Ahmad Bakhsh) and 1996 CLC 1611 (Ata Muhammad and others v. Sultan and an other).
Adverting to the point of jurisdiction, learned counsel for the respondents has contended that the appellant/defendant herself filed a suit before the trial Court at Islamabad, which shows that she admits the jurisdiction of learned trial Court. However, she while filing a suit regarding the same property before the civil Court at Islamabad, on one hand, accepts jurisdiction of the Court at Islamabad, but on the other hand she while filing written statement in the suit filed by respondent No,1, she denies the jurisdiction of same Court in respect of same property. He further argues that admittedly the appellant filed application under Order VII, rule 10, C.P.C. Before the learned trial Court and the same was attended properly and dismissed by the Court, on the ground that both the parties have admitted jurisdiction of the Court. The said order has never been challenged before any Court in any appeal/revision and has attained finality. He has submitted that no prejudice has been caused to the appellant. Learned counsel for the respondent has also drawn attention of the Court on prayer clause of the appeal and pointed out that decree of civil Court has not been challenged in this appeal. He has further contended that both suits filed by the parties inter se, were consolidated and consolidated issues were framed, wherein issue No,3 was regarding jurisdiction and learned trial Court decided the same with cogent reasons/findings. He has further contented that there are concurrent findings of the Courts below and cannot be interfered unless order is illegal. Both the Courts below have properly evaluated evidence of both sides, while dismissing the suit and appeal of appellant. He has further argued that there is no lapse on the part of respondent to fulfil the commitment. He was always ready to make the remaining payment according to the schedule mentioned in receipt Exh.P-1. The respondent No,1, in this regard, got prepared a pay-order from the Bank, which is available on the record. Learned counsel for the respondents, in this respect, has also relied upon the statement of Bank Manager (DW-3), who categorically stated that pay order is still intact. On query, that whether a suit for specific performance can be filed on the basis of receipt (Exh.P-1), which is receipt of earnest money, learned counsel for the respondents submits that there was oral agreement between the parties and receipt is regarding payment of earnest money and after payment of Ist instalment, formal agreement was yet to be executed. This position was also clarified by the P.W.-2, on a question put to him from the respondents side. He has further contended that no objection at the time of execution of that document was ever raised, therefore, at this stage, this plea cannot be raised. There was no mala fide on the part of respondent No,1 and his amount is lying with the appellant since 17-3-2002.
11. In reply to the arguments of learned counsel for the respondents, Mr. F.K. Butt Advocate, learned counsel for the appellant has replied that Dr. Samina Sohail was duly authorized, by owner of the property, which itself is clear from para No,1 of the suit. The document Mark-A was registered document and before registration, notice to public-at-large was issued and no one has ever raised this point during the whole proceedings before the Courts below. Even existence of the document, was not ever challenged. He further submits that clause 12 of the document, is very clear, according to which the attorney has all powers including appointment of counsel. He further contends that appeal is continuation of suit, therefore, there was no need to challenge the decree of civil suit, separately. Even execution has been filed on the basis of one decree, therefore, there was no need to file second decree along with this appeal.
12. I have heard arguments advanced by learned counsel for the parties, at length and have gone through the record as well as case laws referred by learned counsel for the parties.
13. Admittedly, the property in dispute is situated in Rawalpindi. It is also an admitted fact that the appellant herself filed a suit at Islamabad, but she has raised the objection regarding jurisdiction of learned trial Court while filing written statement in the suit of respondents. Even after the decree of that suit, when R.F.A. Was filed before honourable High Court, the point was raised. Then it is also transpired from the record, that application under Order VII, rule 10, C.P.C. Was filed by the appellant, that the Court at Islamabad has no jurisdiction, therefore, the plaint is liable to be returned. Jurisdiction is a crucial point in this case, which was required to be determined first. Time and again Honourable Supreme Court as well as this Court held that consent of the parties does not confer jurisdiction upon the Court. An order/decree passed by the Court, having no jurisdiction, is nullity in the eye of law. It is mandatory upon the Court to decide at first instance the question of jurisdiction, even though such question is not raised by the parties. An objection to the jurisdiction can be raised at any subsequent stage. Non-fulfilment of mandatory conditions for exercise of jurisdiction before the Court would render illegal its entire proceedings. In re: Muhammad Mushtaq and another v. Bashir Ahmed Chaudhry and another, reported as PLD 1991 Lahore 400, the Honourable Division Bench of Lahore High Court, discussing jurisdiction of document affecting immovable property, not situated within the limits of Sub District, where it was registered, under section 28, rules 116 A and 119 of the Registration Act, and held the same being invalid, while observing as under:-- "The section provides for the territorial jurisdiction of the Sub-Registrar. In the administrative law, jurisdiction means legal authority or power and, territorial jurisdiction is the power of a tribunal or authority considered with reference to the territory within which it was to be exercised. It means, the geographical limits within which that authority must act. The general principal is that a Court created within and for a particular territory is confined in the exercise of its powers to the limits of such territory."
"The authority of every judicial Tribunal and the obligation to obey it were circumscribed by the limits of the territory in which it was established." That is equally true of the power of an executive or administrative officer like a Sub-Registrar. It must necessarily follow, therefore, that a statutory authority created within a (sic) for particular territory would act without jurisdiction, if it exercised jurisdiction beyond the geographical limits set for it."
14. However, coming back to the case in hand, I am also guided by the case law reported as 2008 SCMR 240 (Izhar Alam Farooqi Advocate v. Sheikh Abdul Sattar Lasi and others), wherein it was held that it is duty of the Court to determine its jurisdiction at the first instance, which has not been done in this case. Although, the appellant/defendant filed herself suit at Islamabad, but it does not mean that filing of suit by the parties confers jurisdiction upon the Court. Reliance can also be placed on PLD 2008 Lahore 175 (Water & Power Development Authority through Chairman, WAPDA and 4 others v. Abdul Shakoor through Legal Heirs).
15. For what has been discussed above, I am of the considered view, that the point of jurisdiction has not been properly dealt by both the Courts below. Therefore, this R.S.A. Is hereby accepted and impugned judgment and decree are hereby set aside. The matter is remitted to learned Senior Civil Judge, Islamabad, who after summoning the parties, shall return the plaints, to the plaintiffs of their respective suits, in order to file the same in the Court of competent jurisdiction. It is expected that, if the parties file their respective suits to the Court of competent jurisdiction , the said learned Court, keeping in view long litigation between the parties, shall decide the same as soon as possible.