1. ARSHAD NOOR KHAN, J. --- This appeal has been filed under Section 3 of the Law Reforms Ordinance, 1972 read with Section 15 of Code of Civil Procedure (Amendment) Ordinance, 1980 against the order dated 30.9.2004 passed by the learned Single Judge of this Court in suit No 568/2001 whereby the plaint has been returned to the appellant under Order VII, Rule 10, CP.C.. For presentation before the proper Court.
2. The facts leading rise to the present petition in brief are that the appellants are running their business at Karachi having their Head office at first floor, Stock Exchange Building, Stock Exchange Road, off. II Chundrigar Road, Karachi. The respondents were incorporated in Pakistan on March, 1.900 as private limited company and were converted into public limited company in December, 1993. It is further stated in the memo. Of appeal that the respondent having its registered office at Plot No 15, Phase-3, Industrial State, NWFP and the company has a liaison office at Karachi situated at 11/139, Jamaluddin Afghani Road, Sharafabad, near Bahadurabad, Karachi in the year 1995-96.
3. The appellants entered into a memo. Of understanding with the respondents and agreed to provide Rs. 52 millions as a finance for manufacturing Jam, Jelly, Ice cream syrups, custard powder, pickles, essence, juices and other food products and were further agreed in-between them that the 'finance provided by the appellant would be sold and delivered to the appellants and would be repurchased from him at a higher purchase price, which would be the profit (Badla) and the respondents would pay the amount of repurchase price and profit (Badla) to the appellant. The memo. Of under,was executed on December 26, 1995 and for the case of security of the finance, provided to the respondents, the respondents handed over five postdated cheques to the appellant, out of five, two cheques when presented were bounced, thereafter the appellants filed summary suit against the respondents. The respondents appeared and filed application under Order 37, Rule 3, CPC for leave to defend the suit and also filed application under Order VII, Rule 11, CPC (CMA. No. 3215/2008) for rejection of plaint.
4. The appellant also resisted the said application. Learned Single Judge heard the arguments on behalf of the respondents and instead of grant of the application under Order VII, Rule 11, CPC,. The plaint was returned under Order Vlt, Rule 10, CPC to the appellant for proper presentation before the proper Court, hence the present appeal.
5. We have heard Mrs. Erum Yaqoob, advocate for the appellant and Mr. Sardar Muhammad Yousuf, advocate for the respondents.
6. Learned counsel for the appellant vehemently contended that the respondents are also running their business through their branch office at Karachi and the memo. Of understanding was also executed at Karachi and that the cheques presented for encashment were also bounced at Karachi, therefore under Section 20, C.P.C. This Court is competent to entertain and adjudicate upon the matter in-between the parties. In support of her contention, she has relied upon the case of M/s. Brady and Company ' (Pakistan) Limited v. Syed Saigol Industries Limited, ' reported in , 1981 SCM R 494; the case of National Investment Trust Ltd. v. Lawrencepur Woolen Textile Mills Ltd., reported in 2002 CLD 527.
7. Mr. Sardar Muhammad Yousuf, Advocate for the respondents while controverting the arguments advances by the learned counsel for the appellants has contended that the learned Single Judge had no territorial jurisdiction to entertain the suit and rightly returned the case to the plaintiff and the suit filed by the appellant was barred under Article 64-A of the Limitation Act and that the factory of the respondent and respondents company is situated at N.W.F.P. And also the cheques were issued at Islamabad ) and two of them were dishonored in Islamabad, therefore the whole transaction was completed either at Islamabad or at NWFP, therefore the suit at 'Karachi could not be filed.
8. We have considered the arguments advanced on behalf of the parties and. Have gone through the "Material available before us.
9. At the very outset, we have gone through the, order dated 30.9.2004 passed by the learned Single Judge and we observed that while hearing the argument on application under Order VII, Rule 11, CPC, the learned Single Judge returned the plaint to the appellant for proper presentation before the proper Court. The relevant para of the order impugned is usefully quoted herein below for the sake of convenient:--- "I have examined contentions of the learned counsel for the defendant. There is nothing in rebuttal, 'contentions of the learned counsel for the defendant are based on the documents filed by the plaintiff alongwith the plaint Under these circumstances, I have no hesitation to hold that this Court has no territorial jurisdiction and the plaint is liable to be returned for filing before the Court having jurisdiction. Orders accordingly.
10. I am refraining from passing any order on the point of limitation because I have already taken a view that this Court has no territorial jurisdiction, hence no such order is required under the circumstances: The learned Single Judge has, therefore, returned the plaint by observing that this Court has no territorial jurisdiction. For the purpose of ascertaining, as to whether this Court has territorial jurisdiction or not to entertain and adjudicate upon the matter in-between the parties, it is to be examined as to whether the respondents are running their business wholly in NWFP or are running their business at Karachi through their branch office, as Section 20, CPC postulates about filing of the suit at both places where the defendants are running their business wholly or partly or the place where the cause of action accrued wholly or partly. In the present case, the appellant are claiming the execution of memo. Of understanding on 26th December, 1995 at Karachi vide para 19 of the plaint. Para 19 of the plaint wherein plaintiff stated that memo. Of understanding was executed between them and five cheques were also handed over to them at Karachi and the respondents are running their branch office at Karachi, therefore this Court has jurisdiction to entertain and adjudicate upon the matter, which has not been satisfactorily controverted by the respondent in his objections.
11. There is therefore, sufficient averment contained in the plaint, which speak about the execution of memo. Of understanding in the month of December, 1995 .At Karachi where also five post dated cheques allegedly were issued and passed on to the appellants by the respondents and that the respondents are also running their business at Karachi through ,their branch Office and the three cheques, out of five cheques speak out M.C.B. FTC Branch, Karachi as such there is sufficient material available on record to infer that the respondents are running their business wholly or partly at Karachi and the cause of action also accrued to the, plaintiff to file the suit at Karachi and the learned Single Judge while dealing with this aspect of the matter did not examine the averment contained in the plaint. There is sufficient material available on record to hold that the cause of action wholly or partly accrued at Karachi, therefore, this Court is competent to entertain and adjudicate upon the matter.
12. Apart from the aforesaid discussion, it is also emerged out from the face of the impugned order that the plaintiff was not heard by the learned Single Judge at the time of passing the impugned order as the presence of the counsel for the appellant is marked on the top of the order which 'also shows that the appellant has been condemned unheard before passing the order impugned which is also a violation of the principle of natural justice.
13. All the aforesaid reasons and circumstances show the order impugned is not liable to be sustained. Appeal is, therefore, allowed. The order dated 30.9.2004 passed by the learned Single Judge is hereby set 'aside and the matter is remanded to the learned Single Judge for decision afresh on other aspects of the matter including the point of ' limitation.
14. Appeal was allowed by short order dated 42.2009 for the reasons to be recorded later on. The above are the reasons of the same. .