1. ' MUHAMMAD ALI MAZHAR, J.---This CMA No,3300 of 2008 has been filed by the defendant No,2 under Order VII, Rule 11, C.P.C. In which the defendant No,2 has stated that the subject property is situated in the Province of Punjab, therefore under section 16, C.P.C., this Court has no territorial jurisdiction to try the suit. The plaint is liable to be rejected with cost as it has failed to disclose any cause of action and that no valid and concluded agreement/contract was ever executed or concluded between the plaintiff and defendant No,
1. The cause of action allegedly accrued to the plaintiff on 27-9-1981 as per annexure P-3, which contained stipulation that "in case of failure to pay the balance sale consideration of Rs,22,50,000 within a period of 4-1/2 months from the date of the said letter, the balance sale consideration shall be forfeited", thus cause of action started to run from 27-09-1981 while the suit was filed in the month of August 2005, which is barred by Article 113 of the Limitation Act. The period of limitation for filing suit for Specific Performance commenced from the month of September 1981 and expired in the month of September 1984 while the socalled legal disability suffered by plaintiff commenced from the month of November 1988, therefore after expiry of limitation period, plaintiff is not entitled for the benefit of the provisions of the Limitation Act. The socalled illness was never agitated in the plaint and even if it is assumed that the plaintiff was suffering from alleged illness, the same does not entitle her to claim legal disability as according to section 6 of the Limitation Act, the alleged illness does not constitute "a legal disability". The plaintiff is not entitled for the relief of damages against the defendant No,2 as no loss was ever occurred to the plaintiff for the acts and deeds of the defendant No,2 and that nothing has been alleged in the entire plaint against the said defendant. The suit is also barred by Articles 27 and 36 of the Limitation Act. The plaintiff has also not approached this Court with clean hands and her bonafides are highly doubtful. She has concealed the material facts from this Court and has raised false and incorrect statement in the plaint to justify her false, baseless and time barred claim. Finally it was prayed that the suit be dismissed which is also bad for multifariousness of cause of action. The plaintiff has sought such reliefs, which are mutually destructive and the main relief sought by the plaintiff is for the specific performance of an agreement, which is hopelessly time barred.
2. ' Counter affidavit to the above application was filed by the plaintiff wherein she stated that the application under Order VII rule 11, C.P.C. Is not maintainable and denied all the adverse averments made therein. The contents of the plaint disclose sufficient cause of action and the suit is very much competent and maintainable under the law. She paid/deposited an amount of Rs,2,25,000 to the defendant No,1 pursuant to an advertisement got published by the defendant No,1 in Daily Dawn, Karachi for the sale of Suit plot in the year 1981 but she was kept on waiting for the formal draft of the sale agreement and the same could not be executed as the property was not free from dispute for the reasons that the shareholders had got injunction order from the Court at Islamabad. It was further stated that the plaintiff had suffered from complete insanity since April 1982 and has regained sanity in the year in 2004, therefore her case squarely falls within the purview and ambit of Section 6 of the Limitation Act. The period of three years for filing the suit will start from 2004. Since the earnest money was paid at Karachi, hence this Court has territorial jurisdiction to proceed the matter. A sum of Rs,2,25,000 was paid by her in 1981 to the defendant No,1 which is still lying with them as the same has been retained without signing any formal agreement, understanding, reason and/or any justification and the same is being utilized by the defendant No,
1. The suit is well within time therefore, at this stage without recording evidence, the application under order 7 rule 11, C.P.C. Is incompetent, misleading and not maintainable which may be dismissed.
3. ' I have heard the learned counsel for the parties and gone through the material available on record.
4. ' The plaintiff has filed the present suit for specific performance, ,cancellation of documents, declaration, permanent injunction and damages with the following prayers:--
(a) Direct the defendant No,1 to execute the sale deed in respect of an Industrial plot of land measuring nearly 42 Kanals, with frontage on Peshawar Road, close to Golra Chowk, next to WAPDA Grid Station near Milepost 8, on main Rawalpindi, Peshawar Road, or in the alternative direct the Nazir of this Hon' ble Court to execute the aforesaid Sale Deed and pass a judgment and Decree to this effect.
(b) Declare that property, an Industrial plot of land, measuring nearly 42 Kanals, with frontage on Peshawar Road, close to Golra Chowk, next to WAPDA Grid Station near Milepost 8, Rawalpindi is the exclusive property of the plaintiff who has purchased the same from the defendant No,1 who has received Rs,2,45,000 as part payment of the sale consideration of the said property at Karachi in the year 1981, and also directed the plaintiff to deposit the balance sale consideration amounting to Rs,22,50,000 with the Nazir of this honourable Court and pass judgment and decree to this effect.
(c) Award damages to the tune of Rs,60,000,000 to the plaintiff.
(d) Declare any instrument of transfer/sale deed executed by the defendant No,1 in favour of defendant No,2 in respect of suit property as cancelled and delivered-up and direct the defendants to deliver up the same in Court.
(e) Grant permanent injunction restraining the defendants or anyone of them, or anyone working through or under them, from transferring the aforesaid property i,e, an Industrial plot of land measuring nearly 42 Kanals, with frontage on Peshawar Road, close to Golra Chowk, next to WAPDA Grid Station near Milepost 8, Rawalpindi in anyone's name and pass a judgment and decree to this effect.
5. (0 Pronounce judgment that the said property has been sold by the defendant No,1 to the plaintiff and the plaintiff is the only person who is entitled to have the same transferred in his or her nominee's name, and pass judgment and decree to this effect.
(g) Award cost of the Suit.
6. ' The defendant No,2 in his application has focused two grounds. The initial ground is related to the non-availability of territorial jurisdiction to this Court and secondly the suit is barred by Article 113 of the Limitation Act. So far as the first ground regarding the territorial jurisdiction of this Court is concerned, it has to be seen whether the present suit is hit by section 16, C.P.C. Or not, however the next ground of limitation in this particular case is a mixed question of law and facts as the plaintiff has claimed that immediately upon accrual of cause of action to her she was incapacitated and gone into insanity and after recovering from her ailment, she filed the suit, therefore her Suit. Is within time and she is entitled to claim the benefit of Section 6 of the Limitation Act. The object of this Section is to make special concession in favour of minors and the persons labouring disability.
7. Section 6 of Limitation Act relates to period of limitation for filing suits with respect to persons suffering under a legal disability. It is clear from this section that minority or lunacy would not prevent limitation from running as against the minor or lunatic. It simply gives to the minor or lunatic an extended period for filing Suit or application. The burden of proving that the suit is within time rests heavily upon the plaintiff which means that she must affirmatively prove that the cause of action arose within the prescribed period of limitation. Since in this present suit, the plaintiff has clearly mentioned the ground of insanity, therefore for the purpose of rejection of plaint only the contents'of plaint should be looked into. In paragraph 13, the plaintiff has clearly mentioned that she suffered serious attack of insanity and completely lost her balance of mind since April, 1982 and she further added in paragraph 14 that due to reason of suffering from legal disability, the plaintiff could not file the suit for Specific Performance promptly and after regaining sanity upon receiving prolonged treatment in the year 2004, she filed the suit for protection of her rights in respect of the suit land. The plaintiff has relied upon her medical certificate dated 1-10-2004, which is attached as annexure "M" to the plaint. This Certificate was issued by Dr. Abdul Samad in which he has certified that the plaintiff was under his treatment from October 1981 to 2004 and she was brought to him in an insane condition. Unless specific issue is framed and evidence is recorded, this cannot be adjudicated at this stage whether the plaintiff was entitled to avail concession of section 6 of the Limitation Act or not. So on the ground of limitation, I am not convinced to reject the plaint. However, the next point is crucial which is related to the territorial jurisdiction of this Court.
8. From the contents of the plaint as well as its nomenclature, it is clear that the plaintiff has filed the Suit for Specific Performance with other ancillary and incidental reliefs. This is also an admitted fact that the property is situated at Rawalpindi. The only cause of action allegedly accrued to the plaintiff is an advertisement of sale which was published in Daily Dawn at Karachi and the plaintiff had paid token money at Karachi. For the ready reference, it would be expedient to reproduce section 16, C.P.C. As under:--
16. Suits to be instituted where subject-matter situate.---Subject to the pecuniary or other limitations prescribed by any law, suits:--
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption, in the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate or in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen: ' Provided that a suit to obtain relief respecting, or compensation for wrong to immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or, in the case of suits referred to in clause (c), at the place where the cause of action has wholly, or partly arisen, or in the Court within the local limit of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.
9. ' Explanation.---In this section "property" means properly situate in Pakistan.
10. ' It is clear from the prayer clauses that the plaintiff has claimed declaration as to ownership, and execution of sale deed in her favour on the basis of an agreement entered into in the year 1981.
11. Along with the prayer for specific performance, she has also claimed the cancellation of sale deed executed by the defendant No,1 in favour of the defendant No,2 in respect of suit property. The gist of relief (s) claimed by the plaintiff clearly transpires that she has claimed right and interest in the immovable property, which is situated at Rawalpindi. Section 16, C.P.C. Provides some instances as guiding principle for institution of suits. Section 16(d) has been provided for the suits relating to the determination of any other right to or interest in the immovable property. The word "any other right" means and denotes the cause of action to sue not provided or covered under clauses (a) to (c) and (e) and (f) of section 16, C.P.C. So in my view, the suit for specific performance is a suit relating to right and interest in the immovable property, hence it is covered under section 16(d), C.P.C. The determination of right and interest to any immovable property can only be adjudicated by a Court within the local limits of whose jurisdiction the property is situated. The learned counsel for the defendant No,2 relied upon a judgment reported in 1990 CLC 991 (Hamill Hasan v. Mst. Saleha Begum) in which the learned Judge of this Court has held that suit for determination of any right or interest in an immovable property cannot be instituted in a Court other than the Court within the local limits of whose jurisdiction the property is situated. Provisions of section 20, C.P.C. Would not help the plaintiffs so long as there was a prayer for recovery of possession of an immovable property with or without rents for the determination of any right or interest therein which can be adjudicated only by the Court within the local limits of whose jurisdiction the property is situated.
12. Court at Karachi has thus no jurisdiction to entertain a suit for possession of land situated in Punjab. The learned counsel for the defendant No,2 next relied upon a judgment reported in 2003 SCMR 990 (Haji Abdul Malik v. Muhammad Anwar Khan) in which it has been held that suit relating to the rights and interest in an immovable property shall be instituted in a Court within local limits of which the Property is situated. Suit for the purposes of determining the rights or interest in the property being different to that of the suit in which the relief claimed does not relate to the rights in an immovable property, can be filed at the place at which the cause of action fully or partially arose. Suit relating to the rights in the immovable property would lie before the Court within the local limits of which the property is situated and if the property is situated outside the territorial jurisdiction of the Court and the relief being sought in the suit relates to the property, the suit would not be maintainable before any other Court except the one within territorial jurisdiction of which property is situated. Essential factor for determination of jurisdiction for the purposes of entertaining the suit is judged from the contents of the plaint and the dispute which is subject- matter of the suit and not from the consequences flown from the suit. Finally the learned counsel for the defendant No,2 relied upon a judgment reported in 1979 CLC 186 (Muhammad Jewan v.
13. Syed Abdul Qasim) in which it was held that provisions of section 20, C.P.C. Can be pressed into service only if a suit is not hit by limitations laid down in earlier provisions including section 16. Suit cannot be dismissed on account of its having been instituted before a wrong forum, plaint in such case to be returned for being filed before the competent Court.
14. ' The nutshell of the arguments advanced by the learned counsel for the defendant No,2 was that the property is situated within the territorial jurisdiction of Rawalpindi, therefore the suit should have been filed at Rawalpindi and not in this Court.
15. ' In rebuttal, the learned counsel for the plaintiff argued that since the advertisement to sell the plot was published in Daily Dawn, Karachi and the defendant No,2 also received Rs,2,45,000 as part payment of the sale consideration in Karachi, therefore the plaintiff has rightly instituted the suit in this Court on the basis of cause of action accrued to the plaintiff by virtue of advertisement to sell and the part payment made at Karachi. However, the learned counsel has not denied the fact that the property in question is not situated at Rawalpindi and at present it is owned by the defendant No,2 by virtue of conveyance deed registered on 27-8-2003 at Islamabad. The learned counsel for the plaintiff has also not denied that for this very sale deed, which was executed at Islamabad, he has prayed for cancellation of the same document in this suit. No plausible or cogent justification was offered by the learned counsel for the plaintiff as to why the plaintiff did not file the suit in the competent court at Rawalpindi in view of section 16, C.P.C. At last, the learned counsel for the plaintiff argued that the plaintiff has also claimed damages, which can be awarded by this Court.
16. There is no rational to entertain the claim of damages, which is not a separate or independent entity but it is flowing from the main reliefs and the alleged breach of agreement. The suit pertain to specific performance, declaration and cancellation of conveyance deed executed by defendant No,1 in favour of defendant No,2. Even from the contents of plaint, it is clear that the plaintiff has not claimed damages as an alternative relief but it is in addition to the relief claimed for specific performance, declaration, cancellation and permanent injunction. In support of his arguments, the learned counsel for the plaintiff has relied upon a judgthent reported in PLD 2003 Karachi 45 (Haji Riaz Ahmed Mir v. Brig. (Retd.) Ch. Muhammad Shari. In this reported case, the facts and circumstances we totally different. The suit was filed at Karachi for recovery of sale consideration paid for the purchase of property situated at Gujranwala. Since the oral agreement for refund of sale consideration was made between the parties at Karachi, therefore 'the learned Judge of this Court held that cause of action spread over component facts relating to payments of money made by the plaintiff at several times. This was a case of simple recovery of money without claiming any right or interest in the immovable property situated at Gujranwala. The matter was related to forfeiture of sale consideration by vendor, therefore this Court held that vendor was not permitted to forfeit sale consideration, unless such condition was specifically recorded in the agreement itself. When initial terms of agreement for forfeiting earnest money stood relaxed from time to time by consent, then vendor would not be justified in forfeiting amount paid to him as sale consideration. The next judgment relied upon by the learned counsel for the plaintiff is reported in 2008 UC 75 (Karachi Development Authority v. City District Govt. Karachi). In this judgment, it was held that in case where relief prayed for cannot be granted for any reason and from facts and circumstances of the case it appears that party is entitled to some other relief, High Court can, to advance cause of justice and to avoid multiplicity of proceedings, grant such other relief as justice may demand. This judgment is not applicable in the present facts and circumstances of the case for the simple reason that the judgment was passed in an exercise of Constitutional Jurisdiction under Article 199 and matter was related to "invitation to offer" in which conduct of public functionaries was questioned. Neither the case was related to declaration, or specific performance nor it was related to any right or interest in the immovable property nor it was related to the issue of territorial jurisdiction. The learned counsel for the plaintiff has further relied upon another judgment of this Court reported in 2007 CLC 163 (Muhammad Yousaf v. Ume /Oman and others) in which it was held by the learned Division Bench of this Court that for examining question of rejection of plaint only the averments made in the plaint are to be taken into consideration. There is no cavil to this well settled proposition of law. However, I am of the view that this judgment is not helpful to the plaintiff rather it is in the favour of the defendants as from the contents of the plaint, it is clearly demonstrating that the plaintiff has claimed the right and interest in an immovable property which is situated at Rawalpindi and this fact is clearly reflecting from the plaint itself.
17. Finally, the learned counsel for the plaintiff has relied upon a judgment reported in PLD 2005 Azad J&K 9 (Feroz-ud-Din v. Muhammad Aziz) In this judgment also, the learned Judge has discussed the provisions of Order VII, rule 7, C.P.C., which pertains to the relief with further observation that plaintiff would state specifically either simply or in the alternative the relief he claimed. Not necessary for the plaintiff to ask for general or other relief which could always be given by the Court if it would think same just and equitable in view of pleadings and evidence thereon. This judgment is also not helpful to the plaintiff as the possibility of allowing general or alternative relief will only arise when this Court will assume the exercise of its jurisdiction over this cause. No relief can be granted by the Court unless it has a pecuniary or territorial jurisdiction to entertain the suit.
18. ' Mr. Haider Waheed, learned counsel for defendant No,1 also supported the arguments advanced by the learned counsel for the defendant No,2 and relied upon the same judgments. He also argued that the present suit is for specific performance with other ancillary and incidental relief(s) which can be only decided and entertained by the Court at Rawalpindi in whose territorial jurisdiction the subject property is situateu.
19. ' The general principle for the enforcement of specific performance is that every contract creates not only a right but also corresponding obligation in another. Every contract entails an obligation on each of the contracting parties to perform such terms of the contract as covenanted, failing which the other party has right to insist on the actual performance of the contract or to obtain satisfaction for the nonperformance. In order to invoke specific performance, the following things are necessary:--
(i) There should be a contract enforcement of which is not barred in the Act;
(ii) The act to be done is in respect of trust;
(iii) There is no standard for ascertaining the actual damages caused;
(iv) Pecuniary compensation is not adequate relief;
(v) The Court deems it fit to exercise its discretion in favour of the plaintiff.
20. ' In suit for specific performance of contract, principles of equity apply though the relief is the creation of statute. Section 12 of the Specific Relief Act provides that the specific performance of the contract may be enforced in the discretion of the Court. Explanation to section 12 of the Act clearly states that unless and until the contrary is proved, the Court shall presume the breach of contract to transfer immovable property cannot be adequately relieved by compensation in money. By reading section 12 of the Specific Relief Act in conjunction with section 16, clauses (a) and (d), C.P.C., it is clear that only the Courts in whose territorial jurisdiction the suit property is situated can entertain and decide the suit. Mere publication of an advertisement to sell or alleged payment of token money does not give any cause of action to decide this suit for specific performance in which many reliefs) have be claimed including declaration. Section 16, C.P.C. prescribed different eventualities and rights for institution of suits where subject matter situate and in clauses (a) to (0 certain rights have been mentioned. For the purposes of clause (d), it is clear that for the determination of any other right or interest in immovable property, the suit shall be instituted in the Court within local limits of whose jurisdiction the property situate. The suit for declaration, specify performance, cancellation and mandatory injunction are covered unde clause
(d) of section 16, C.P.C. The judgments cited by the learned counsel for the defendant No,2 are fully applicable in this case. I would also like to rely on a judgment reported in A.I.R. 1941 Bombay 247 (New Mofussil Co. Ltd. v. Shankerlal Narayndas Mudade) in which also section 16(d) was under discussion and it was held that suit for specific performance and possession can be filed in Courts within whose jurisdiction property is situated though the defendant and property are situated at different places. The brief facts of the case were that a joint stock company which had its registered office in Bombay, owned a factory at Dhulia. The Company was in liquidation and its liquidator who resided in Bombay, wanted to sell the factory. Negotiation opened between the parties at Bombay. The vendee who was resident of Dhulia engaged an agent to complete the transaction. Before the transaction was completed, the liquidator put an end to the negotiations.
21. He then subsequently sold the same factory to other persons. The vendee sued company and subsequent purchasers of the factory for specific performance to the agreement and for possession of the factory. It was held that Dhulia Court alone had jurisdiction to try the suit against the company as well as the subsequent purchasers under section 16(d) of the Code and than the proviso to section 16 did not apply. The facts of the present case are also same as the property is situated at Rawalpindi, the office of the defendant No,1 is situated at Karachi and even the office of the defendant No,2 is situated at Karachi but the subject matter is situated at Rawalpindi, therefore under section 16 clause (d) CPC, suit could only be filed at Rawalpindi Court in whose jurisdiction the property is situated.
22. ' The provisions of rule 10 are mandatory. An adjudication by Court without jurisdiction is a determination coram non judice and not binding. When the Court lacks pecuniary or territorial jurisdiction, in such cases, the plaint must be returned for presentation to the proper Court and Court cannot pass any judicial order except that of returning the plaint.
23. ' For the foregoing reasons, the plaint is returned for institution of the same in the competent Court at Rawalpindi.
24. Plaint returned.