' KH. IMTIAZ AHMAD, J.---This Civil Revision is directed against the order dated 3-7-2009 passed by learned Senior Civil Judge, Rawalpindi, whereby, he dismissed the petition moved under Order VII, Rule 10 read with section 151, C.P.C. For the return of the plaint.
2. Brief facts forming the background of this Civil Revision are that the Federation of Pakistan through Director Defence (Purchase) Rawalpindi filed a suit against the petitioner No,1 for the recovery of Rs,1,67,39,091 only. The claim of the plaintiff was that the plaintiff was a department, whose responsibilities were to purchase general items for Army in general. There was a need of rice in January, 2004 to May, 2004 and in this respect, the plaintiff invited tenders and amongst others, the defendant's firm also applied and submitted a tender, which was accepted and Contract No,21-0366-2-1 dated 27-10-2003 was signed between the parties. It was further alleged that the supply could not be made according to the schedule and did not fulfill the contractual obligations and after the cancellation of the contract with the defendant's firm, the plaintiff called tenders for supply of store on the pecuniary fluctuation at the risk and costs of the defendant's firm. It was in this background that the suit for the recovery was filed at Civil Court, Rawalpindi. The defendant's made appearance and filed a petition under Order VII, rule 10 of C.P.C. Read with section 151, C.P.C.
For the return of plaint to the Court at Karachi on the ground that the defendant was a permanent resident of Karachi and was carrying on business there; that the defendant neither carries on business at Rawalpindi nor works for gain at Rawalpindi; that the defendant has no office or sub office at Rawalpindi; that the offer for supply of goods was made from Karachi, the contract was signed at Karachi, the delivery of goods was to be received at Karachi so no cause of action has accrued to the plaintiff at Rawalpindi; that the performance bond/bank guarantee was executed at Karachi and the alleged breach of contract was committed at Karachi. It was further alleged that Clause-23 of the contract giving jurisdiction to the Court at Rawalpindi was not legal, because the contract filed with the plaint does not constitute an agreement, because it was not stamped as required by Article-5(d) of the Stamp Act, 1899 and consent of the parties do not confer jurisdiction in a Court which it does not possess. The said application was resisted by the plaintiff, wherein it was maintained that the contract was executed at Rawalpindi and according to Clause-23 of the contract, the Civil Court at Rawalpindi had exclusive jurisdiction to try the matter.
3. After hearing the parties, the learned Trial Court while relying on Special Condition No,23 of the contract, dismissed the petition, hence, this Civil Revision.
4. Learned counsel for the petitioner contended that under section 20 of C.P.C., the Civil Court at Rawalpindi had no jurisdiction, since, the defendant does not carry on business at Rawalpindi, nor cause of action had arisen at Rawalpindi. He contended that the consent of the parties could not confer jurisdiction to the Court, which otherwise has no jurisdiction. In this respect, he has placed reliance upon PLD 1996 SC 292, 1983 CLC 1369, 1986 CLC 6. He further contended that the cause of action also accrued at Karachi and not at Rawalpindi, so, the Civil Court at Rawalpindi had no jurisdiction at Rawalpindi. He placed reliance upon 1981 CLC 6, 2000 SCM R 1312, 1983 CLC 1378 and 2008 CLC 1618.
5. On the other hand, learned counsel for the respondent supported the impugned order and placed reliance upon 1992 SCM R 1174, 2000 SCM R 1312, PLD 1993 SC 395, 1993 M LD 1031.
6. Arguments heard, record perused.
7. First of all, it would be appropriate to reproduce section 20 of C.P.C. For convenience:-- "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 acqiesce in such institution or
(c) The cause of action, wholly or in part arises.
Explanation-1.---Where a person had 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 place.
'It is also appropriate to mention the terms of the contract, the copy of which is available on the record. This contract had been executed by Government of Pakistan, Ministry of Defence, Directorate of Defence Purchase, Rawalpindi through President of Islamic Republic of Pakistan and the defendant's firm as purchaser and supplier respectively. In the contract, the consignment for Stations, is Multan, Sahiwal, Okara, Gujranwala, Sheikhupura, Narowal, Lahore, Narang Mandi, Mandi Baha-ud-Din and Chicha Watni. The delivery schedule was also mentioned. The Inspection Authority was C.I.T.A. Lab Chaklala and at Lahore. According to Clause-11 of the Contract, the supplier i,e, the defendant was to submit the bills duly signed by him directly through bank account number to CMA(DP) Rawalpindi. Similarly the delivery of BIUs, in which, it was provided that 100% payment of stores would be made by CMA(DP) Rawalpindi. According to Clause 16 of the Contract, the first sample was to be sent to AFIN, Lahore/CITD Laboratory, Chaklala (In case of stock tendered within the jurisdiction of Peshawar and Rawalpindi Log Areas). Clause 19 of the said Contract, which deals with the bank guarantee/cash security deposit, it was provided that the bank guarantee would be endorsed in favour of CMA(DP) Rawalpindi and it further provided that if the bank guarantee would not be revalidated, the same is liable to be encashed by the CMA(DP) Rawalpindi.
Clause 23 of the Contract provided as under:-- "Jurisdiction of Court-Civil Suits.---In case of any dispute only Court of competent jurisdiction at Rawalpindi shall have the jurisdiction to decide the matter."
8. The first determining factor is that whether the Civil Court at Rawalpindi had no jurisdiction in spite of the fact that there was a consent of both the parties. After going through the case-law cited by learned counsel for the petitioner and the respondent, it cannot be denied that merely the consent of the parties do not give jurisdiction to the Court, which had no jurisdiction. However, the proposition would be different, if there are many Courts having jurisdiction and the parties consent to invoke the matter before a particular. Court which had the jurisdiction, then, whether besides the said Court, before the other Courts, which had the jurisdiction, the matter can be agitated or not.
This fact was taken into consideration in case-law reported in 1987 SCM R 393, in which, it was observed as under:-- "We have considered the arguments of the learned counsel for the parties. Under section 9 of C.P.C., the Civil Courts have jurisdiction to all suits of a civil nature excepting the suit of which their cognizance is either expressly or impliedly barred. Under section 20 of the C.P.C. 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 C.P.C. Nor there is any violation of the provisions of section 28 of the contract, when two or more Courts have jurisdiction to try a suit and the parities mutually agree to choose or take their dispute to one of them. The Civil Courts exercise their jurisdiction under the C.P.C. 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 C.P.C., 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 C.P.C."
' This case was also followed in a subsequent case-law reported in 1992 SCM R 1174.
9. In view of the above said case-law, it is to be seen that whether the Civil Court at Rawalpindi had the jurisdiction and whether the cause of action wholly or in part has arisen there. If answer is in affirmative, then, the Clause 23 of the Contract is fully applicable. It is not denied that the contract was signed at Rawalpindi and the payment was also to be made from Rawalpindi. Even the bank guarantees were also to be encashed from Rawalpindi, thus, the violation of the contract if any does give cause of action to the plaintiff at Rawalpindi. In a case reported in PLD 1993 SC 395, captioned Muhammad Yasin and two others (appellants) v. Ch. Muhammad Abdul Aziz (respondent), it was observed as under:-- "Suit for recovery of amount can be instituted in a Court within the local limits of whose jurisdiction the cause of action wholly or in part arise. Plaintiff who was resident of Quetta and had, his business at Quetta reached an agreement with the defendants, who were residents of Faisalabad for the supply of coal. Coal was to be dispatched through the Goods Company at Quetta to Faisalabad and after receiving the same payment had to be made---Part of cause of action having accrued at Quetta suit for recovery of amount could be instituted at Quetta."
10. Thus, after going through the record and the case-law cited by both the parties, it stands established that the cause of action does accrue to the plaintiff at Rawalpindi and the Clause 23 of the contract is a legal clause, so the Civil Court at Rawalpindi had exclusive jurisdiction to entertain the matter. No illegality is found in the impugned order of the learned Trial Court. Hence, this Civil Revision has no force and same stands dismissed.