1. ' MUHAMMAD ALI MAZHAR, J.---Brief facts of the case are that the plaintiff carries on business under the name and style of Messrs Haq Safety Packers, Nazimabad, Karachi. The defendant runs its glass factory having one factory at Hub Chowki, Baluchistan and another factory at Shaikhupura, Punjab. The defendant had negotiated the plaintiff for the supply of manpower in the units as per terms and conditions settled in the agreements dated 1-5-2003 and 2-5-2003. The plaintiff further submits in the plaint that the cause of action was accrued on 1-8-2004 when the defendant disallowed the plaintiff to work, and subsequently when the plaintiff demanded the clearance of his outstanding bills and the payment of the amount in question, and lastly on 17-5-2007 when the plaintiff served the defendant with a legal notice calling upon it for such payment.
2. ' The defendant has filed listed application under Order VII, Rule 10, C.P.C. In which it has stated that suit is based upon agreements dated 1-5-2003 and 2-5-2003. The agreement dated 2-5-2003, was executed at Shaikhupura and pertains to the engagement of contractor for various loading, unloading and cleaning at plant site and under clause 10 of the said agreement, it is clearly mentioned that agreement has been entered into at Shaikhupura and the parties are agreed that the courts at Shaikhupura shall have exclusive jurisdiction in any and all litigation arising from or in connection with this agreement.
3. ' In response to the defendant's application, the plaintiff in his counter affidavit has submitted that the defendant's application is misconceived and incompetent, which is liable to be dismissed. Both the agreements were executed between the parties at the Head Office of defendant in Karachi and per terms of the agreement dated 1-5-2003, the plaintiff had supplied manpower to the defendant in the Unit No,1 situated at Hub Balouchistan, while as per terms of the agreement dated 2-5-2003, he had supplied manpower at Unit No,2 at Shaikhupura. Plaintiff further stated in his counter/affidavit that the defendant used to issue cheques in his favour from its Head Office at Karachi and all the money transactions/payments were made by the defendant at Karachi, and the cause of action had accrued at Karachi, where the Head Office of the defendant is located. This Court has jurisdiction to proceed the matter and the office objection dated 19-5-2007 was already over ruled by this Court.
4. ' Learned counsel for the defendant argued that the agreement dated 2-5-2003 was executed at Shaikupura and under clause 10, it is clearly mentioned that agreement has been entered into at Shaikhupura and the parties are agreed that the courts at Shaikhupura shall have exclusive jurisdiction in any and all litigation arising from or in connection with this agreement, therefore, the plaintiff cannot file any suit in this court on the basis of agreement dated 2-5-2003, hence, the present suit for the purpose of claim mentioned in above agreement is liable to be rejected/returned and if the plaintiff has any cause of action on the basis of aforesaid agreement, he should have filed the suit in the court at Shaikupura, which has exclusive jurisdiction to entertain and decide the matter. In support of his arguments, he relied upon the following case-laws:--
(1) 1992 SCM R 1174 (Messrs Kadir Motors (Regd.) Rawalpindi v. Messrs National Motors Ltd., Karachi).
5. In this case, the Hon'ble Supreme Court has held that every agreement in restraint of legal proceedings is void. There is nothing in the provision to restrain the parties from entering into an agreement to get their disputes decided by a particular court of competent jurisdiction for their convenience and avoidance of unnecessary objections to the territorial jurisdiction of courts. The intention, behind section 28 of the Contract Act, 1872 is that all the agreements which restrain a person to enforce his rights under a contract by usual legal proceedings in the ordinary Tribunals are void. It obviously implies that a party cannot be restrained to enforce his right in ordinary court of law but if by mutual agreement between the parties a particular court having territorial and pecuniary jurisdiction is selected for the determination of their dispute, there appears to be nothing wrong or illegal in it or opposed to public policy Such agreement is legal and-not hit by section 28 of the-Contract Act and the parties are bound to follow it.
(2) 2004 M LD 662 (Ch Mehtab Ahmed and another v. Mir Shakeelur-Rehman and 4 others). In this case learned Single Judge of this court has held that parties through such agreement agreed that in case of any dispute, only court at place "R" would have jurisdiction to deal with same. Parties were required to abide by terms of their agreement and submit their dispute to Courts at place "R".
6. Plaint was returned for its presentation before the proper court.
(3) 2010 M LD 1015 (Saleem Mehtab v. Messrs Rafhan Best Food Ltd. Company). This is my own judgment in which I have dealt with the similar controversy raised in the present case. In this matter there was a Distributor's Sale Agreement dated 21-1-2002 and clause 46 of that agreement clearly provided that the agreement shall be governed by laws of Pakistan and actions shall be instituted in the courts at Lahore. It was held that if the parties had agreed that suit was to be filed in a particular court and the suit was filed in another court, the proper course for the court was to return the plaint for presentation to the court agreed upon by the parties. Had the parties not chosen the territorial jurisdiction of particular court in the agreement, the territorial jurisdiction could have been determined in view of section 20(c), C.P.C., which provided a right to sue at any place on account of cause of action in whole or in part. Adjudication by a court without jurisdiction was a determination coram non judice. Where parties are at issue regarding jurisdiction, it is necessary that court should decide the question first in order to determine whether the court had jurisdiction.
7. ' Learned counsel has concluded his arguments that in view of the aforesaid judgments, the plaintiff has no cause of action to institute the suit at Karachi on the basis of an agreement dated 2-5-2003 entered into for Shaikupura unit.
8. ' In rebuttal, the learned counsel for the plaintiff has referred to an order 27-8-2007, which was passed on the office objection and argued that this objection was duly considered and over ruled by this court, he further argued that since the Head Office of the defendant is situated at Karachi hence, this court has territorial jurisdiction to decide the matter. He further argued that section 28 of the Contract Act does not create any bar for the jurisdiction of this court to proceed with the matter. He further tried to distinguish the case of Messrs Kadir Motors (Regd) Rawalpindi v. Messrs National Motors Ltd., Karachi, reported in 1992 SCM R 1174 and relied upon section 20 of C.P.C.
9. Learned counsel for the plaintiff further invita the attention of the court to a balance confirmation certificate dated 30-6-2005 issued by the defendant to the plaintiff and also pointed out that the defendant in this balance confirmation certificate has shown a-joint amount in the sum of Rs,2,721,847.00 which is--in fect the claim of the plaintiff against the defendant and he argued that thii balance confirmation certificate provides ample jurisdiction to this court to deal and decide the matter in relation to an agreement in which parties have mutually agreed the jurisdiction of court at Shaikhupura, Punjab. In support of his arguments the learned counsel relied upon the following case-laws:--
(1) 1992 SCM R 2375 (Alam Khan v. Pir Ghulam Nabi Shah and Company). This judgment pertains to Punjab Pre-emption Act (I of 1913). Section 15 and Order II, Rule 3, C.P.C. In which the Hon'ble Supreme Court has held that on behalf of different persons and finalized through two different mutations were sanctioned on the same date. In suit for Pre-emption, pre-emptor and vendee were the only necessary parties, therefore, plaintiff could join against same vendee several , causes of action. Plaintiff had rightly joined two sale transactions in a single suit for if he had filed separate suits even then they had to be consolidated as common questions of law and fact regarding right of preemption of parties and determination of market value would have been involved. Provisions of Order II, Rule 3, C.P.C., permitted plaintiff to join both transactions in one suit, therefore, he availed of such remedy and there was nothing illegal or material irregularity in the course adopted by him.
(2) PLD 1993 SC 395 (Muhammad Yasin v. Ch. Muhammad Abdul Aziz). In this judgment, the Hon'ble Supreme Court has considered section 20(c), C.P.C. And held that 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 arose. 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.
(3) 2007 SCM R 933 (Province of Punjab through District Collector Mianwali and others v. Mehmood- ul-Hassan Khan). This judgment pertains to the determination of arrears of land revenue and its recovery. The plaintiff was declared to be defaulter. The District Collector of the District where the plaintiff was residing initiated the proceedings against the plaintiff on such order. Plaintiff assailed the recovery proceedings before civil courts in the District of his residence. Authorities filed application Order VII, rule 11, C.P.C. On the ground that trial court had no territorial jurisdiction over the cause of action which application was allowed and plaint was rejected. Order passed by the trial Court was maintained by the lower appellate court but High Court in exercise of its revisional jurisdiction set aside the orders passed by both the courts below and directed the trial court to decide the case in accordance with law. Hon'ble Supreme Court held that as cause of action had partly arisen at the district of residence of plaintiff, therefore, High Court was justified to reverse the orders of the courts below. Judgment passed by the High Court was in accordance with section 20(c) and settled law. Hon'ble Supreme Court, while exercising power under Article 185 (3) of the Constitution, declined to interfere with finding of fact recorded by High Court and leave was refused.
10. ' After hearing the arguments of both the learned counsel, I have reached to the conclusion that in the present controversy two different provisions of law are involved, one is section 28 of the Contract Act and another is section 20(c), C.P.C., which provides that every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or partly arise.
11. There is also no dispute between the parties that the plaintiff claim is based on two different agreements in one suit. The first agreement was executed on 1-5-2003 in which there is no specific clause for particular territorial jurisdiction of any court to sue while in another agreement dated 2- 5-2003, it is clearly mentioned that the agreement was executed at Shaikhupura and clause 10 of the same agreement clearly provides that this agreement has been entered into at Shaikhupura and parties were agreed that the courts at Shaikhupura shall have exclusive jurisdiction in any and all litigations arising from or in connection with this agreement. So in my view, there is no doubt that in the agreement of Shaikhupura the parties have mutually agreed the jurisdiction of the court. Reliance of the learned counsel on the balance confirmation certificate issued on 16-8-2005 has no relevance as the dispute is to be resolved through a manner and mechanism agreed upon in the agreement itself, mere balance confirmation certificate dated 16- 8-2005 annexure P-8 to the plaint does not confer any right or territorial jurisdiction to this court.
12. Learned counsel for the plaintiff in its counter affidavit placed reliance on the case of Messrs Kadir Motors (Regd) Rawalpindi v. Messrs National Motors Ltd., Karachi (supra) which is in fact support the case of the defendant. In the above judgment, the Hon'ble Supreme Court has already reproduced clause 27 of the agreement in which the territorial jurisdiction of Karachi was opted by mutual agreement and the other side had argued that since part of cause of action also accrued at Rawalpindi, therefore, Civil Court at Rawalpindi also had jurisdiction because the delivery is to be made there and defendant No,1 was also maintaining sub-office. After minutely considering section 28 of the Contract Act, the honourable Supreme Court held that section 28 of the Contract Act does not restrain the parties from entering into an agreement to get their dispute decided by a particular court of competent jurisdiction for their convenience and avoidance of necessary objection to the territorial jurisdiction of the court. The intention behind the said provision of law that all those agreements which restrain a person to enforce his rights under a contract by usual legal proceedings in the ordinary tribunals are void. It obviously implies that a party cannot be restrained to enforce his right in ordinary court of law but if by mutual agreement between the parties a particular court having territorial and pecuniary jurisdiction is selected for the determination of their dispute, there appears to be nothing wrong or illegal in it or opposed to public policy. The Hon'ble Supreme Court held that agreement is legal and not hit by section 28 of the Contract Act and the parties are bound to follow it. The judgments relied upon by the defendant are fully applicable in the present circumstances of the case in which also the parties had mutually agreed the choice of forum and territorial jurisdiction of the particular court, therefore, in all cases, the choice of forum opted by the parties were given preference over section 20(c), C.P.C. I have already held in the judgment reported in 2010 M LD 1015 (supra) that the provision of Order VII, rule 10, C.P.C. Are mandatory in nature and adjudication by a court without jurisdiction was a determination coram non judice and in such case the plaint is to be returned for presentation to the proper court and the court cannot pass any judicial order except that of return of plaint. Where parties are at F issue regarding jurisdiction, it is necessary that court should decide the question first in order to determine whether the court had jurisdiction and the suit Was rightly instituted or not. If the parties have agreed that suit is to be filed in a particular court and the suit is filed in another court, the proper course for the court is to return the plaint for presentation to the court agreed upon by them.
13. ' There is nothing mentioned in the order of this court dated 27-8-2007 which may demonstrate that the objection to the territorial jurisdiction raised by the office was overruled but it shows that the office objection was over ruled for the time being with clear observation that the said objection will be examined in detail, therefore, in my view, the objection to the territorial jurisdiction raised by the defendant has not attained finality but open to debate. The validity of an agreement by which the parties preferred one of two courts depends upon the fact that both the courts must have jurisdiction to decide the matter. If the parties have not chosen the territorial jurisdiction of a particular court in the agreement the territorial jurisdiction could have been determined in view of section 20(c), C.P.C., which provides right to sue at any place on accrual of cause of action in whole or in part. The judgments cited by the learned counsel for the plaintiff are quite distinguishable to the facts of the present case. In the judgment reported in 1992 SCM R 2375, no question of agreement was involved in which the parties opted a particular jurisdiction of the court and no matter was under discussion relating to section 28 of the Contract Act. The matter was simply based upon right of pre-emption and the plaintiff in that case joined two sale transactions in a single suit and another judgment cited by the plaintiff's counsel which is reported in PLD 1993 SC 395, the Hon'ble Supreme Court has discussed the applicability of section 20(c) which is totally different to the facts and circumstances of this case. Again in this case the Hon'ble Supreme Court had not come across to a situation in which section 28 of Contract Act was involved or the parties raised objection to the territorial jurisdiction on the basis of mutual agreement in which they agreed to a choice of forum. Last judgment reported in 2007 SCM R 933, the facts of this case are also not attracted to the case in hand, as this matter was simply related to the determination of arrears of land revenue and recoveries. District Collector initiated recovery proceedings in the District where the plaintiff was residing. The plaintiff in that case assailed the recovery proceedings in the District of his residence which was opposed by the authorities on the ground that the trial court did not have territorial jurisdiction over the cause of action, therefore, the Hon'ble Supreme Court held that as cause of action had partly arisen at the district of residence of the plaintiff, therefore, High Court was justified to reverse the orders of the courts below. The judgment passed by the High Court was found in accordance with section 20(c), C.P.C. Again this judgment is also not helpful to the case of the plaintiff as neither any agreement was involved nor there was any choice of forum agreed between the parties.
14. ' Since the claim of the plaintiff is based upon two different agreements which provide separate cause of action, -therefore, the plaintiff should have easily split his claims into two different territorial jurisdiction and in such cases, the bar contained in Order II, Rule 2, C.P.C. Does not apply.
15. Since the claim of the plaintiff is based on two different agreements for two different services out of which one is specifically provides choice of jurisdiction, therefore, joinder of cause of action in one suit is not possible. Order II, Rule 2, C.P.C. Provides that the suit shall include whole of the claim which the plaintiff is entitled to make in respect of the cause of action but a plaintiff may relinquish any portion of his claim in order to bring suit within the jurisdiction of any court. Since there are two different agreements, the plaintiff should have filed two separate suits for two different cause of actions and joinder of cause actions and joint trial is not possible or permissible for the Shaikhupura agreement for recovery of money which should have been filed in the competent court having territorial jurisdiction at Shaikhupura, hence, this court has no territorial jurisdiction to try the same in view of the agreement executed between the parties. Whilst the code permits the joinder of several causes of action, but the court has power to order the separate trial when it appears that such causes of action can not be conveniently tried or disposed of together. In order to handle, overcome and deal such type of situation, C.P.C. Itself provides a solution in Order II, Rule 6 which applies where cause of action joined in the same suit is essentially of a different character.
16. Since in the agreement, a specific clause has been agreed for the territorial jurisdiction of the court, and both agreements are also related to different services for different units, hence the cause of action for both suits have different nature and character.
17. ' The bare bones of the matter lead to me a conclusion that the suit for the agreement dated 1-5- 2003 may be tried by this court in view of section 20(c), C.P.C, however, for theaim germane to the agreement dated 2-5-2003, the plaintiff may institute a suit at Shaikhupura, according to clause 10 of the agreement. Since in this case, the whole plaint cannot be returned back, therefore, the plaintiff is directed to file amended plaint within two weeks and delete the averments relating to Shaikhupura agreement and also modify the prayer clause. On filing amended plaint, the defendant shall have right to file amended written statement if any. The plaint on the cause of action based on Shaikhupura agreement is hereby returned. The application is disposed of in the above terms.
18. ' It is clarified that this order will be without prejudiced to the right of the plaintiff to present the plaint in the competent court at Shaikhupura for the recovery of money if any due by virtue of an agreement dated 2-5-2003.