' NISAR MUHAMMAD SHAIKH, J.---These two Appeals of similar nature are directed against the common type of order dated 21-9-2000 passed by the learned Judge, Banking Court-H, Karachi, whereby the plaints of two identical Suits Nos.68 and 69 of 1999 were returned under Order VII Rule 10, C.P.C. For presentation in the Court having territorial jurisdiction to try the same. The relevant part of such order is as under:-- "So far as territorial jurisdiction is concerned, plaint revealed that the plaintiffs being customer having theirs joint foreign currency account at Multan Branch. Defendants Nos.2 and 3 with whom allegedly negotiated for opening account took place are putting up and holding office in Multan and Lahore Head office. This situation is affirmed through the legal notice filed by the plaintiffs themselves together with plaint statement, of account annexed with the plaint are also issued from plaintiff Bank at Multan and on account of these documents, cause of action has accrued to the plaintiff however, too at Multan Branch, so to my, mind, it will be appropriate not to proceed with the matter due to lack of jurisdiction therefore, I return the plaint to the plaintiff for its presentation in the proper court having jurisdiction in the matter under Order VII Rule 10, C . P. C .
' There is no order as to cost. Accordingly application for leave to defend is also disposed of."
2. According to learned counsel for appellants, the impugned orders are liable to be set aside on two grounds, firstly that the defendant No, 1/respondent No,1 being the Principal office/Head office of the bank is situated at Karachi where it also carries on business and secondly, the cause of action in part had also arisen at Karachi. Whereas the contention of counsel for the contesting defendant No,1/respondent No,1, namely Platinum Commercial Bank Limited which was then renamed as Khadim Ali Shah Bukhari (KASB) Bank Limited, is that the negotiations and transactions were held at Multan where the accounts of plaintiffs/ appellants were being operated and maintained by them at Multan Branch of the bank of defendant No,1, therefore, the cause of action was wholly accrued at Multan and not at Karachi.
3. Since the question of territorial jurisdiction of the Court can be decided on the basis of the case made out by the plaintiffs/ appellants and not the defence set up by the defendants/respondents, therefore, the averments of the plaint are required to be seen for the purpose. Accordingly, the relevant contents of the plaint, in brief, are that the plaintiffs are the customers and they, on the assurance and offer of defendants Nos.2 and 3 for certain incentives in respect of the rates of profits and markup, opened their Foreign Currency account and Pak Rupees account in the year 1995 at Multan Branch of defendant No,
1. As the plaintiffs reside at Karachi having their business at Karachi and they used to arrange payment through 'defendant No,2 in respect of purchase of cotton to export, therefore, it was agreed by defendants Nos.2 and 3 that the plaintiffs' accounts will be operated from Karachi under mailing instructions through the Principal Office/I.I. Chundrigar Road, Karachi of the defendant's bank and for this purpose, the negotiations with plaintiff; were finalized by defendants Nos.2 and 3 on behalf of defendant No,
1. As such the defendants Nos. 2 and 3 have been impleaded as party to the Suit in their capacity of negotiating, dealing and business development officers of defendant No,
1. It was further stated by plaintiffs in their plaint that in compliance of verbal commitment, the defendant No,1 used to pay profit and charge mark up regularly but during 1996, they suddenly discontinued payment of profits and charging of markup according to verbal agreed rates without the knowledge and consent of plaintiffs, who therefore served the defendants a Legal Notice on 12-10-1998 but the same was not responded. The plaintiffs also stated that the parties have their offices and residents at Karachi and the transactions also took place directly and indirectly at Karachi. They, thus, filed their respective Suits at Karachi on 12- 5-1999 for decree against the defendants, jointly and severally, for payment of the amount as mentioned in the prayer of their plaints.
4. On service of summons the defendants Nos.1 to 3/respondents Nos.1 to 3 jointly filed their leave to Defend Application, in which they also raised the objection on the jurisdiction of the trial Court as mentioned above. After hearing the parties advocates, the learned Judge of the Banking Court, returned the plaints of both Suits under Order VII, Rule 10, C.P.C., vide order dated 21-9-2000, which have been impugned by way of present Appeals.
5. We have heard learned counsel for the parties and perused relevant record including the R&Ps of the Suits.
6. The suits as well as the present appeals were filed by plaintiffs/appellants under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 which, with certain modifications, was re-enacted by promulgation of the Financial Institutions (Recovery of Finances)
Ordinance, 2001. However, the relevant provisions of sections 7(1)(a) and (2), remained the same in both these statues, which read as under:-- "(7) Power of Banking Courts. (1) Subject to the provisions of this Act/Ordinance, a Banking Court shall:--
(a) in the exercise of its civil jurisdiction have all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908);
(b) .....
(2) A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Act/Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898);
(3) .........
7. Accordingly, the relevant provisions of section 20, C.P.C. Having not been ousted by the special laws of the Banking continue to be applicable to the Banking Courts for which no corresponding provision exists to deal with the question of territorial jurisdiction. Therefore, this section 20, C.P.C.
Being relevant on the subject, is reproduced below:-- "20. 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, acquiesce in such institution; or
(c) the cause of action, wholly or in part arises.
Explanation I---Where a person has a 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."
8. In the light of the above provisions of section 20, C.P.C., the learned counsel for the appellants has rightly contended that the Banking Court at Karachi has got territorial jurisdiction to try the instant Suits Principal Office/Head Office of defendants' bank is situated at Karachi where it also carries on its business, and besides this, its Branch through whose mailing instructions, the account was being operated by the plaintiffs/appellants, is also situated at Karachi and thus, the cause of action in part also accrued at Karachi. Such contention which also gets support from the very plaint, is however sufficient, in circumstances of this case, to confer jurisdiction on the Banking Court at Karachi to try the Suits of the plaintiffs/appellants.
9. Since the court, for the purpose of jurisdiction, was required to accept the contents of plaint as correct and the pleas, raised in rebuttal, could not be considered to decline the assumption of such jurisdiction, therefore, on the basis of the averments made in the plaint the trial Court, of course, had jurisdiction to proceed with the Suits as per the B law. Nevertheless, the objection on territorial jurisdiction of the trial Court as raised by defendants/respondents is not patently a question of law but the same, in circumstances of this case, is a mixed question of law and facts, therefore, the same can be decided effectively by recording such evidence.
10. In view of the above, the impugned orders are not sustainable in law and it was therefore, we allowed the appeals vide short orders dated 30-9-2010 and these are the reasons for the same.