' IJAZ AHMED CHAUDHRY, C.J.---- By means of this application the petitioners have sought transfer of suit titled "Hamayun Khan v. Mst. Malka etc." filed by the respondent against them under Order XXXVII, rule 2, C.P.C. For recovery of Rs,7,00,000 from the court of District Judge Jhang to any court of competent jurisdiction at Rawalpindi.
2. Succinctly, the facts of the case, as unfolded in this application, are that the respondent filed a suit under Order XXXVII, rule 2, C.P.C. Against the applicants for recovery of Rs,7,00,000 on the basis of a Promissory Note executed by their predecessor-in-interest in his favour. The suit was decreed vide ex parte judgment and decree dated 18-9-2008. In execution proceedings of the said ex parte judgment and decree warrants of arrest of the applicants were issued on 20-4-2009.
Consequently, the applicants filed two applications, one for setting aside of the ex parte judgment and decree and the other for cancellation of warrants of arrest issued against them. In addition thereto, they also filed an application for leave to appear and defend the suit on 14-10-2009.
However learned trial Court dismissed all the three applications filed by the applicants vide order dated 6-4-2010 against which the applicants moved an appeal before this Court which was disposed of on 21-10-2010 and the case was remanded back to the trial Court. During post-remand proceedings the applicants raised an objection before the trial Court that the said court has no jurisdiction to hear the suit for the reason that the applicants/defendants are residents of District Rawalpindi, therefore, the District Judge there has the jurisdiction to adjudicate upon the matter.
The learned trial Court spurned the objection raised by the applicants vide order dated 18-2-2011; hence this application.
3. Learned counsel for the applicants contends that the applicants never signed the Promissory Note, therefore, the respondent has no cause of action to file suit against the applicants under Order XXXVII, C.P.C.; that the applicants reside at Rawalpindi, therefore, only the District Judge Rawalpindi has the jurisdiction to try the suit; that applicants Nos.1 to 3 are female, therefore, it is not possible for them to pursue the suit filed by the respondent against them at Jhang and that in number of cases it has been held that in money suits, the court within whose jurisdiction the defendants are putting up is exclusively competent to try such suits. In addition to his oral submissions learned counsel has also relied upon the case-law reported as "Khawaja Mehmood Hassan and another v. Zubair Ahmad and another" (1988 CLC 1914).
4. Conversely, while defending the impugned order, learned counsel appearing on behalf of the respondent argues that since the cause of action arose in favour of the respondent at Jhang as the Promissory Note was executed there, therefore, the suit has competently been filed at Jhang; that according to section 20, C.P.C. It is the choice of the plaintiff either to file the suit where the cause of action arose or at the place where defendants are residing or have their ordinary place of business; that Promissory Note was executed by the predecessor-in-interest of the applicants, therefore, they are liable to clear the liability of the said Promissory Note; that this application has been filed just to delay the matter and that in case this application is accepted, the respondent is bound to suffer irreparable loss as he would have to engage a new counsel at Rawalpindi in addition to incurring huge amount on account of travelling etc. Learned counsel has also relied upon the cases reported as "Pakistan Kuwait Investment Company (Pvt.) Ltd. v. Saadullah Khan and Brothers and 14 others" (2010 CLD 760), "Messrs Pak Suzuki Motor Co. Ltd. v. Muhammad Jumshad Saeed" (2009 CLD 503) and "Shehzad Hamayun v. Muhammad Akram" (1991 M LD 530).
5. I have given my anxious consideration to the arguments put forth by the learned counsel for the parties in addition to going through the case-law cited at the bar. The applicants have mainly sought transfer of the suit on the ground that the same is not competent before the learned trial Court at Jhang rather the District Court Rawalpindi has the jurisdiction to adjudicate upon the matter for the reason that they (applicants/defendants) reside within the territorial jurisdiction of District Rawalpindi. To better appreciate the said contention, a glance of section 20 of the C.P.C.
Would be more beneficial, therefore, the same is reproduced herein 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."
' According to sub-clause (c) quoted above, the suit should be instituted when the cause of action wholly or in part arises. The applicants do not deny that the Promissory Note was executed by their predecessor-ininterest at Jhang. Thus, one thing is clear that cause of action firstly arose in favour of the respondent at Jhang. Further, a perusal of Illustration (a) under section 20 supra renders it crystal clear that in money suits it is choice of the plaintiff to file suit either at the place where the cause of action, as a whole or in fraction, accrued or before the court in whose jurisdiction the defendant resides. There is no cavil to the proposition that in certain cases the suit should be instituted where the defendant is putting up or has ordinary place of business but in money cases the said restriction is not binding.
6. Considering from another angle, a bare reading of the Promissory Note annexed with this petition brings it to light that the witnesses of the said Promissory Note are residents of District Jhang and it will be much inconvenient for the respondent/plaintiff to produce them at Rawalpindi in the event the request of the applicants is acceded to. Moreover, the respondent who earlier succeeded to get an ex parte judgment and decree in his favour, which later on was set aside, is going from pillar to post to recover the money which he gave to the predecessor-in-interest of the applicants in the year 2003. According to the applicants themselves, the respondent is pursuing the matter since the year 2006 but despite lapse of more than five years he has not succeeded to recover the amount. In said scenario, he cannot be further burdened by transferring the suit from Jhang to Rawalpindi.
7. Now coming to the case-law cited by the learned counsel for the parties at the bar, I am of the view that the case cited by the learned counsel for the applicants is of no help to them as in the said case, it has been observed that without going into the question whether such suits were maintainable at any other place or not, the High Court felt it proper and convenient that the same should be tried at that place where defendant resided. On the other hand, the case-law cited by the learned counsel appearing on behalf of respondent is not only later in time but also covers the instant case from all corners and the same is in line with the true spirit of section 20 of C.P.C. In the case of Shehzad Hamayon referred Supra, his lordship, the author Judge, has observed that in money cases the jurisdiction of the Courts can be determined while taking into consideration the place of occurrence cause of action. Likewise, in the case of Messrs Pak Suzuki Motor Company Limited, relied upon by learned counsel for the respondent, it has been held that suit for recovery of amount can be instituted in a Court in whose jurisdiction the cause of action, wholly or in part arises. Similarly, in the case of Pakistan Kuwait Investment Company (Pvt.) Ltd., mentioned above, it has been held that any fraction of cause of action would be a determining feature for jurisdiction of a court.
8. The discussion made in the foregoing paragraphs leads me to indubitable conclusion that in the money suits it is the choice of the plaintiff either to sue the defendant in the court in whose jurisdiction he resides or has ordinary place of business or where the cause of action accrued.
Thus, the observation of the learned trial Court while rejecting the objection of the applicants regarding lack of jurisdiction is totally in consonance with the law on the subject and no exception can be taken thereto. Even otherwise, the instant application seems to be a leverage to prolong the proceedings, which practice cannot be encouraged at any cost rather the same deserves to be deprecated at all levels as the same runs contrary to the spirit of National Judicial Policy launched by the Hon'ble Supreme Court of Pakistan for expeditious disposal of the lis between the parties.
Further, the respondent is wandering here and there since the year 2006 for the recovery of the amount advanced by him to the predecessor-in-interest of the applicants and in case this application is accepted, his difficulties would further multiply. Consequently, I see no merits in this application which is accordingly dismissed.
9. Before parting with the order, in view of the fact that the plaintiff is facing the agony of litigation since the year 2006, I deem it imperative to direct the learned trial court to decide the matter within the shortest possible time without caring for the technicalities etc.