' MUNIB AKHTAR, J.---By means of this application, the defendant seeks to have the plaint returned under Order VII, Rule 10, C.P.C. For presentation in a court of competent jurisdiction. The application arises in the following circumstances. The defendant is a banking company and the plaintiff is its customer, having his account at the Punjgur branch of the defendant, which is in Balochistan. As presently relevant, the plaintiffs case is that he has been defrauded of a large sum of money, amounting to almost Rs,2 crores, as a result of the defalcations and illegal acts of the employees and staff of the defendant-bank at the Punjgur branch during the course of their employment. The plaintiff contends that the defendant bank is liable for the loss and injury that he has suffered and the present suit has been filed to recover the amount allegedly due and payable to him.
2. Learned counsel for the defendant-bank submitted that section 120, C.P.C. Provides that sections 16, 17 and 20 thereof do not apply to a High Court in the exercise of its original civil jurisdiction, and that therefore, those sections did not apply in relation to suits filed on the original side of the Court.
Relying principally on the judgment of a learned single Judge reported as Muhammad Naveed Aslam and others v. Ayesha Siddiqui and others PLD 2010 Kar. 261 (hereinafter referred to as Waveed Aslam I'), learned counsel submitted that this Court had no territorial jurisdiction to entertain the present suit, and that the plaint was therefore liable to be returned to be presented in a court of competent jurisdiction, which would appear to be the relevant civil court in Balochistan. It may be noted that a High Court Appeal was preferred against the decision relied upon by learned counsel, which appeal was dismissed by a learned Division. Bench by means of a judgment reported as Muhammad Naveed Aslam and others v. Ayesha Siddiqui and others 2011 CLC 1176 (hereinafter referred to as "Naveed Aslam II).
3. In reply, learned counsel for the plaintiff opposed the present application and submitted that the suit was within the competence of the Court. He submitted that there could be no dispute that the head office of the defendant bank was located at Karachi. Thus, learned counsel for the plaintiff, in effect, based his case squarely on section 20(b), C.P.C. Read with Explanation II thereto, which provides that a corporation shall be deemed to carry on business at the place where its principal office is located.
4. I have heard learned counsel as above and .Examined the cases referred to and relied upon by them. The principal decision relied on by learned counsel for the defendant bank was Naveed Aslam I. Since that case was considered in appeal by a learned Division Bench of this Court, it will be necessary to examine the decision in Naveed Aslam II in some detail. As is clear, the question raised by means of the present application revolves around section 120, C.P.C. This is of course, not the first time that the question of the applicability of this section has arisen, and there are a number of decisions in relation thereto, almost all of which have been considered in Naveed Aslam
5. Section 120 falls in Part IX of the Code of Civil Procedure, which is titled "SPECIAL PROVISIONS RELATING TO HIGH COURTS". As is well known, when the Code was originally enacted in 1908, Part IX only applied to "Chartered" High Courts, i,e, to High Courts set up by and under letters patents granted from time to time by the British Crown under various statutes of the Imperial Parliament (as the UK Parliament was known when legislating in relation to the Empire). As is also well-known, neither this court nor its predecessor courts were established by letters patent. Thus, as originally enacted, and for several decades thereafter, Part IX of the C.P.C., and therefore section 120, did not apply at all to the predecessor courts of this Court. Of these, the court principally relevant for present purposes is the erstwhile Sindh Chief Court ("the Chief Court"). At Partition, the only Chartered High Court that fell to Pakistan was the Lahore High Court and the letters patent of that High Court did not confer any original civil jurisdiction. In fact, as is well known, it was only the High Courts of Bombay, Calcutta and Madras, all of which were established by letters patents in or around 1861, that were conferred and exercised original civil jurisuiction. Therefore, when the C.P.C.
Was enacted, and up to Partition, section 120 only applied to, and was relevant for, the High Courts of Bombay, Calcutta and Madras. The reason why the jurisdictional rules laid down in sections 16, 17 and 20 were not to apply to these High Courts was because their letters patents expressly laid down jurisdictional rules for the exercise of original civil jurisdiction (which was of two types, ordinary and extraordinary). Insofar as the Chief Court was concerned, the applicable jurisdictional rules relevant for the exercise of original civil jurisdiction were the statutory rules embodied in sections 16 to 20.
6. It was only after Partition that the position was altered, and it is important to keep in mind how the change came about. In 1960, by Ordinance XXI of that year ("the 1960 Ordinance"), a number of laws were, inter alia, amended in consequence of the establishment of the Province of, and High Court for, West Pakistan. The High Court of West Pakistan, which assimilated all the existing High Courts including the Chief Court in what was then known as the "western wing" of the country, had come into existence on 14-10-1955, and the relevant provisions of the 1960' Ordinance were given retrospective effect to this date. Once the Lahore High Court stood merged in the High Court of West Pakistan, there no longer existed any Chartered High Court in the country. One of the laws amended by the 1960 Ordinance was the C.P.C., and as presently relevant, Part IX of the Code was so amended that all references therein to "Chartered" were removed. In other words, Part IX became applicable to the High Courts in the country, which at that time were the High Courts of West Pakistan and East Pakistan. As is well known, the Order whereby the High Court of West Pakistan was constituted provided that its Karachi Bench would continue to exercise the original civil jurisdiction that had vested in the Chief Court. Thus, the effect of the changes brought about by the .1960 Ordinance was that Part IX of the Code became applicable to the High Court of West Pakistan and consequently, section 120 became applicable to the exercise of original civil jurisdiction by the Karachi Bench thereof. It should however be kept in mind that although the 1960 Ordinance was given retrospective effect to 14-10-1955, that obviously did not affect the original civil jurisdiction already exercised by the Karachi Bench during the period 1955 to 1960. Thus, even for these five years, when Part IX of the C.P.C. Was in fact not applicable to the High Court of West Pakistan (it not being a Chartered High Court), the jurisdictional rules applicable to the exercise of original civil jurisdiction by the Karachi Bench continued to be those laid down in sections 16 to 20 of the Code.
7. Once section 120 becomes applicable to the exercise of original civil jurisdiction, the question of the nature and scope of its applicability naturally arose, and as is attested by the numerous decisions of the Karachi Bench and subsequently of this Court, this question has not proved easy to resolve. In my respectful view, two fundamental questions arise in relation to section 120. The first question is whether section 120 is at all applicable to the original civil jurisdiction of this Court (or was applicable to the Karachi Bench of the West Pakistan. High Court), notwithstanding the changes brought about by the 1960 Ordinance. As far as I am aware, this question, which in my respectful view is fundamental and goes to the very root of the matter, has not been explored in the case-law. However. I expressly leave this question open, to be taken up in an appropriate case.
The second question, assuming that section 120 does apply, is of course as to its scope and extent.
For purposes of the present case, I proceed on the basis that section 120 applies and therefore consider the second question in the context of the facts and circumstances of the present case.
8. In the ordinary course, the jurisdictional rules that apply to a court exercising original civil jurisdiction are the statutory rules laid down in sections 16 to 20, C.P.C. Since section 120 has displaced the statutory rules in relation to a High Court a gap has obviously been created, as no court can function without having any rules at all as to how its jurisdiction is to be exercised. The gap has perforce had to be filled in by judicially evolved jurisdictional rules. The question therefore is what jurisdictional rules are discernable from the case-law as having been developed by this Court for the exercise of its original civil jurisdiction. The relevant judgments are conveniently gathered in Naveed Aslam II (at pp. 1185 to 1194 (paras 11. And 14)). Most of these are single bench decisions of the Court. In my view, when the cases are analyzed, the primary rule that appears to have been evolved and applied by the Court is that if the cause of action has arisen, either wholly or in part, at Karachi, then the original civil jurisdiction of the Court can be invoked. As is at once obvious, the jurisdictional rule developed by the Court is no different from the statutory rule embodied in section 20(c), C:P.C. The rule was applied in a number of single Bench decisions, and expressly recognized by a Division Bench of the Court in Shaikh Muhammad Amin and CO. v.
Provincial Industrial Development Corporation 1991 CLC 684, (herein after referred to as "Muhammad Amin"') where it was held as follows:-- "Although the provisions of sections 16, 17 and 20 of the Code of Civil Procedure do not apply to the High Court in exercise of its original Civil jurisdiction, the Court will have jurisdiction to entertain a suit if the cause of action has arisen within its local limits of the jurisdiction." (at pg. 688)
This decision was distinguished on the facts in Naveed Aslam II (at pg.1199). In my respectful view, for reasons that will presently be stated, the decision in Naveed Aslam II can in fact be regarded as a clarification of the rule laid down in Muhammad Amin.
9. One question that immediately arises is whether the judicially evolved jurisdictional rule noted above. Is the only jurisdictional rule that is, or ought, to apply to the High Court for the exercise of its original civil jurisdiction. (The rule is hereinafter, for convenience, referred to as the "Muhammad Amin rule" since that is a Division Bench decision, although it has of course, been applied even before that case was decided.) Now, it is also clear from the case-law that the effect of section 120 has been seen as enlarging the scope of the Court's jurisdiction, and not curtahing it, although it must also be said that it is not entirely clear as to what exactly this amounts to in practice. In one sense, the Muhammad Amin rule does seem to expand the jurisdiction of the Court, since all that is required is that the cause of action should have accrued at Karachi, either in whole or in part. Two single Bench decisions, being West Pakistan Industrial Development Corporation v. Fateh Textile Mills Ltd. PLD 1964 Kar. 11 and Wajid Hussain Farouqui v. Shahida Shahnwaz and others 2007 CLC 394, can serve to illustrate the point. In, these cases, it was held that the Court had jurisdiction even in respect of a dispute regarding immovable property that was situated outside Karachi if the cause of action had accrued at Karachi in whole or in part. (These decisions have in fact now been overruled by Naveed Aslam II: see at pp.1199 (para 23) and 1200 (para 25) respectively. I will shortly revert to this aspect of the matter). In another sense however, the Muhammad Amin rule would seem to curtail and reduce the jurisdiction of the High Court, as compared with the statutory rules, if it is the only jurisdictional rule that applies. This is so because, for example, section 20(b), C.P.C.
Provides that a suit can be instituted in the court exercising jurisdiction over the place where the defendant ordinarily resides or works for gain, and this is so even if the cause of action has not at all arisen within the territorial limits of the court. If the Muhammad Amin rule is the only rule applicable to the High Court, then obviously, such a suit could not be instituted on the original side.
The point can perhaps be illustrated by a simple example. If A has a cause of action against B, which arises partly at W and partly at X, and B ordinarily resides at Y but works for gain at Z, then under the statutory jurisdictional rules, A can bring his suit against B at any one of the aforementioned places. The civil courts of W, X, Y and Z each would have jurisdiction to try the suit.
As is obvious, if the Muhammad Amin rule is the only rule that applies to the High Court, then its jurisdiction to try civil suits on the original side would be significantly less than that of the civil courts. This would hardly seem consistent with the position of the High Court, and would be flatly contrary to the generally accepted view as to the effect of section 120, namely, that it has enlarged the scope of the Court's jurisdiction.
10. In Naveed Aslam II, the case of the appellant (who was also the plaintiff) was that the cause of action had accrued at least in part at Karachi and that therefore this Court had jurisdiction, notwithstanding that the dispute was in relation to immovable property that was situated outside Karachi. This contention was repelled by the learned Single Judge in Naveed Aslam I and his decision was affirmed in appeal by the learned Division Bench, which held as follows:- "31.- The bare look of the plaint in this case undisputedly shows that the plaintiff instituted the suit for the determination of the right to or interest in the immovable property and for compensation for wrong to immovable property and the recovery of movable property. The relief claimed in the suit and its nature falls within the purview of section 16 of C.P.C. Which provides that such kind of suits shall be instituted in the court within the limits of whose jurisdiction the property is situated. Though section 120, C.P.C. Provides that sections 16, 17 and 20 shall not apply to High Court in exercise of its original civil jurisdiction but it does not mean that by virtue of this section the jurisdiction of original side of this court extended to all territories of Province of Sindh no matter the property in question is situated at Karachi or not. The jurisdiction of this Court at original side is only limited and confined to the districts of Karachi and if the arguments of the learned counsel for the appellants are accepted to be true, it will tantamount to the extension of original side jurisdiction of this Court to the, entire Province of Sindh subject to its pecuniary limits of jurisdiction." ,
32. The non-applicability of sections 16, 17 and 20 read with Order XLIX, Rule 3 is only applicable and limited to the original side jurisdiction for the district of Karachi and when it is found that the property is situated outside the territorial jurisdiction of Karachi then sections 16 and 17 will automatically come into operation. The initial guiding principles for institution of various suits is provided under sections 16 to 19, C.P.C. Whereafter section 20 has been provided for other suits to be instituted where the defendant resides or cause of action arises. In the present matter section 16 is applicable therefore, the suit should have instituted in Thana Bola Khan where the property is situated and since the claim of damages is not an independent relief but arising from the alleged wrong done committed by the defendants in the suit, therefore, this relief can also be easily claimed in the same suit at Thana Bola Khan along with other reliefs including the declaration as to the ownership, permanent and mandatory injunction." (Naveed Aslam II at pg. 1204).
In my respectful view, the learned Division Bench in Naveed Aslam H has, in effect, clarified the rule laid down by the earlier learned Division Bench in Muhammad Amin, and the point is made clear by the fact that the learned Division Bench has expressly overruled the two single Bench decisions noted in para 9 herein above. These two decisions brought disputes relating to immoveable property situated outside Karachi within the jurisdiction of the Court by applying the Muhammad Amin rule, and indeed in the Wajid Hussain case (supra), the learned single Judge expressly cited and relied on Muhammad Amin. The learned Division Bench in Naveed Aslam II has now made clear that the rule does not extend that far. Indeed, the position has been made analogous to that obtaining under the statutory jurisdictional rules, since those rules also provide that if there is a dispute regarding immovable property, the suit must be filed in the court exercising territorial jurisdiction over the property in question. Finally, I may also note that the learned single Judge in Naveed Aslam I has observed, inter alia, at pg. 268, that a suit would not fall, within the original civil jurisdiction of the Court if "it does not pertain to a dispute relating to any of the four Districts of Karachi", and at pg. 273, that "whenever any suit is filed in this High Court and is found that it does not relate to any of the Districts of Karachi then... The same has to be returned back to the plaintiff for its presentation before a Court of appropriate jurisdiction....". The last mentioned observation in particular, was relied on by learned counsel for the defendant bank. In light of the rule recognized and applied by the learned Division Bench in Muhammad Amin (which is of course binding on all single Benches) the reference to the suit or dispute "relating" to Karachi can only mean, and be a reference to, the cause of action having arisen, in whole or in part, at Karachi.
11. In my respectful view, the combined effect of the two Division Bench decisions can be stated as follows. Muhammad Amin has expressly articulated, recognized and laid down the primary jurisdictional rule judicially evolved and applied by the Court, namely; that a suit will lie on the original side if the cause of action has accrued wholly or partly at Karachi. Naveed Aslam II has clarified that this rule does not extend as far as some single Bench decisions have taken it, namely, even in respect of disputes relating to immovable property located outside Karachi if it could be said that the cause of action arose here, in whole or in part. Those decisions have been expressly overruled, and it is now clear that a suit will not lie in this Court on its original side in such a situation. The position that therefore emerges from the case-law is that notwithstanding the displacement of the statutory jurisdictional rules by section 120, the judicially evolved rules have developed, and are continuing to develop, in the same direction as the statutory rules. In other words there is, at the very least, a convergence of the two sets of rules. When the widely accepted principle that section 120 has served to enlarge and not to curtail the jurisdiction of the Court is also taken into consideration, the result, in my view, is clear. The original civil jurisdiction of the Court cannot in any manner be regarded as less than the jurisdiction available under the statutory rules.
As presently relevant, the -statutory rules can be regarded as conferring jurisdiction in at least two situations. Firstly, the civil court will have jurisdiction if the cause of action arises, in whole or in part, within its local limits. This is, in effect, the Muhammad Amin rule as clarified by Naveed Aslam II.
Secondly, the civil court will have jurisdiction if the defendant ordinarily works for gain or resides within the local limits of the court's jurisdiction and this is so irrespective of where the cause of action has accrued. This statutory rule has of course, to be read and applied in conjunction with the two Explanations to section 20. In my view therefore, the original civil jurisdiction of this Court must also be regarded as extending to the situation where the defendant ordinarily resides, or works for gain, in Karachi. Equally, in the case of a corporation, if it has its principal or head office at Karachi this Court would also have jurisdiction. This would be so regardless of whether A the cause of action has accrued at Karachi or not. Any other view would necessarily result in a loss and curtailment of the Court's jurisdiction and in my view that is not a result that the law countenanced by applying section 120 to the High Court. A similar point was made by a learned single Judge in Gulfam and others v. Bibi Qudsia Begum and others 2003 CLC 1183, where it was held as follows:-- "The original civil jurisdiction of this court can be exercised to entertain a suit with one or more ingredients necessary to attest the jurisdiction of this court which in view of section 120, C.P.C. Has undoubtedly a very broad base, yet there should always be some rationale to attract jurisdiction.
There must be some jurisdictional facts necessary to invoke jurisdiction. Same may be either the defendant residing or carrying on business or in cases plurality one of the defendants being so subject or the cause of action, wholly or in part, arising or property: subject-matter of the suit being situate or a defendant-firm or company having a main or branch office within the jurisdiction which can attract the original civil jurisdiction of this Court. The only logical effect of section 120 of the Code seems .To be that, subject to discretion of the Court itself the technicalities in sections 16, 17 and 20 cannot be pressed into service to divest a High Court of its original civil jurisdiction." (at pg. 1188)
These observations must of course, be read and applied in the light of Muhammad Amin and Naveed Aslam would also, with respect, express my reservations with regard to the reference to the discretion of the Court in the passage cited. In my view, one of the key requirements of jurisdictional rules is that they must be certain, and this must be so whether they are statutory in nature or judicially evolved. This is so because such rules affect, regulate and control the exercise of judicial power at the most fundamental level. Leaving matters to the discretion of the court introduces, in my view, an unacceptable, uncertainty in the law. (All rules must of course be interpreted, but that is an entirely different matter.)
12. Learned counsel for the plaintiff relied on WAPDA and others v Mian Ghulam Bari PLD 1991 SC 780 and Agricides (Pvt.) Ltd. v. Ali Agro Supply Corporation Ltd. 1988 CLC 59. The first mentioned decision did not arise, or raise any issue, in relation to section 120, C.P.C. The second decision is also reported at 1988 CLC 59, and was noted in Naveed Aslam IL In this case, a learned single Judge applied the.
Muhammad Amin rule, which has been considered above. This decision therefore does not require detailed scrutiny. Learned counsel for the defendant bank also relied on Muhammad Bachal v.
Province of Sindh and others 2011 CLC 1450 (SHC; SB). Since that order was made by the same learned Judge who was party to (and indeed, the author of) the decision in Naveed Aslam II, it is not necessary to consider the single Bench decision in any detail.
13. Since in the present case there can be no dispute that the head office of the defendant-bank is at Karachi, it therefore, necessarily follows that the plaintiff could bring his suit here and file it on the original side of this Court, notwithstanding that the cause of action appears to have accrued entirely at Punjgur.
14. In view of the foregoing, since the Court has jurisdiction in present matter, the plaint need not be returned. Accordingly, this application fails and is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.