' MUNIB AKHTAR, J.---By C.M.A. 986/2014 the plaintiffs seek interim injunctive relief against the defendant No.3. The defendants Nos.4, 6 to 10 and 12 support the plaintiffs' case (and herein after referred to as the "supporting defendants"). The suit was filed on 27-1-2014 and on the same day, the application was presented for ad interim orders. The matter came up before me and I granted certain ad interim relief in terms as stated in the order of that date. The application was thereafter heard over the several dates noted above, when it was reserved. The ad interim order had been renewed from time to time, and when the matter was reserved on 30-4-2014, it was directed that the said order would continue till announcement.
2. The plaintiffs, the supporting defendants and the defendants Nos.3 and 11 are all long distance and international licensees, referred to as "LDI operators". They hold licenses under the Pakistan Telecommunication (Re-organization) Act, 1996 ("Act") to "establish, maintain and operate a public fixed switched network for the provision of nation-wide long distance and international telephony service". The defendant No.2 ("PTA") is the regulatory authority under the Act. Exercising its powers under the Act, the PTA issued a policy directive on or about 13-8-2012. It was directed towards the LDI operators and other licensees under the Act. As presently relevant, the directive noted that with the consent of all the stakeholders, it had been agreed to: "... Establish one gateway for termination of international traffic in the form of International Clearing House (ICH) Exchange thereby all incoming traffic would be monitored and accounted for within the framework as provided in Deregulation Policy, 2003. For the said purpose all LDI's operators have agreed to form a consortium to be headed/led by PTCL [the defendant No.12], and to establish the ICH Exchange to provide an integrated setup for monitoring of incoming traffic at a unified location."
3. The directive required the LDI operators to, inter alia, enter into an agreement to give effect to the ICH Exchange mechanism. This agreement, referred to as the ICH Agreement was entered into at Islamabad on 30-8-2012. The plaintiffs, the supporting defendants and the defendants Nos. 3 and 11 are all party to this agreement ("Agreement"). Briefly stated, the plaintiffs' case is that all the LDI operators are and remain bound by the Agreement and must comply with its terms including, especially and in particular, the operation of the ICH Exchange. The supporting defendants take the same view. The grievance is that the defendant No.3 is now attempting to resile from the Agreement and essentially to walk away from it. The plaintiffs claim that even if one of the LDI operators were to do so, the entire mechanism and scheme envisaged by the policy directive and given effect to by and in the Agreement would unravel. They therefore seek declaratory and injunctive relief against the defendant No. 3, seeking to prevent it from acting in breach of or violating the policy directive or the Agreement. While the suit remains pending, they also seek interim injunctive relief by means of the present application.
4. The defendant No. 3 strongly contests the case sought to be made by the plaintiffs. Its case is that the Agreement has ceased to be of binding effect but that in any case any of the parties thereto can, in effect, terminate the same insofar as it applies to said party by giving due notice. It is averred that that notice was given or must be deemed given, and the defendant No. 3 is therefore not bound by the Agreement. The effect, admittedly, would be that this party would exit the ICH Exchange mechanism.
5. As noted above, the application presently before me was argued at length over several dates.
Without intending any disrespect to the very able and comprehensive submissions that were made by all the learned counsel on the merits of the dispute, I will not touch upon or even set out those submissions herein. I will confine myself to a preliminary objection that was taken by learned counsel for the defendant No.3. This was based on clause 12 of the Agreement, which provides as follows: "The construction, interpretation and enforcement of this Agreement shall be governed by the laws of Pakistan. The courts of Islamabad shall have jurisdiction over any action arising out of or connected with this Agreement."
' Learned counsel contended that this Court lacked jurisdiction to entertain the present suit, and therefore to consider and decide the present application for interim injunctive relief. It was submitted that the plaint had to be returned to be presented at the courts of Islamabad, which, it was pointed out, in the present case would mean the Islamabad High Court in the exercise of its original civil jurisdiction under section 4 of the Islamabad High Court Act, 2010. Since this objection goes to the very root of the present proceedings, I intend to take it up without considering the dispute on the merits. The objection in any case raises an important question of law that requires close examination. Before doing so, I may note that learned counsel for the parties made submissions both on the merits of the dispute and the preliminary objection in a certain sequence of appearance. To a certain extent the objection was anticipated by some of the learned counsel and submissions made on it before learned counsel for defendant No. 3 formally took it up.
However, I will start with the submissions of learned counsel for defendant No. 3 and then set out those of learned counsel for the plaintiffs and the supporting defendants.
6. Learned counsel for defendant No. 3 read out clause 12 of the Agreement and referred to section 21, C.P.C. He referred in particular to two judgments of the Supreme Court, State Life Insurance Co.
Of Pakistan v. Rana Muhammad Saleem 1987 SCM R 393 and Kadir Motors v. National Motors Ltd.
And others 1992 SCM R 1174. Learned counsel submitted that in view of the jurisdiction clause, the jurisdiction of all courts other than the specified one stood excluded. That court alone had jurisdiction, which vested solely in it. Elaborating the point, learned counsel submitted that a jurisdiction clause of the nature of clause 12 did not merely regulate the exercise of jurisdiction; it divested the excluded court of jurisdiction altogether. (Of course, there could be more than one excluded court. However, for convenience, I will use the singular.) It therefore followed, according to learned counsel, that there could no question of any purported exercise of jurisdiction by, e.g., making any ad interim orders or hearing an application of an interlocutory nature. All that the excluded court could do was to return the plaint for presentation before the nominated court.
Referring to a submission made earlier by other learned counsel (see below), it was submitted that the position was fundamentally different from that obtaining when a suit was filed contrary to an agreement to arbitrate. Even if an application under section 34 of the Arbitration Act, 1940 was granted, the /is nonetheless remained with the court so that it could, e.g., consider an application for interim relief. It had, in other words, a residual jurisdiction that could be exercised in appropriate circumstances. However, in the case of an objection of the sort under consideration, the excluded court stood wholly denuded of any jurisdiction: Since the matter had to be sent to the nominated court, no /is could possibly remain with the excluded court. It neither had nor retained any jurisdiction that it could exercise.
7. Referring to the position in India, learned counsel relied on a recent decision of the Indian Supreme Court, Swastik Gases P. Ltd. v. Indian Oil Corp. Ltd. [2013] INSC 637, (2013) 9 SCC 32 ("Swastik Gases"). The decision was of a three member Bench, and the appeal was unanimously dismissed. Two judgments were delivered, one by Lodha, J. (with whom Joseph, J. Agreed) and the other by Lokur, J. Learned counsel submitted that the jurisdiction clause before the Indian Supreme Court was in the same terms as the present clause 12. Reliance was placed in particular on para 31 of the Lodha, J's judgment. Since this case was also cited by the other side, and is of importance in explaining the position in India, it will be appropriate to set out para 31 to the extent presently relevant: "31. In the instant case, the appellant does not dispute that part of cause of action has arisen in Kolkata. What appellant says is that part of cause of action has also arisen in Jaipur ... The question is, whether parties by virtue of clause 18 of the agreement have agreed to exclude the jurisdiction of the courts at Jaipur ... For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement the words like 'alone', `only', 'exclusive' or 'exclusive jurisdiction' have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties - by having clause 18 in the agreement - is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction.
It is so because for construction of jurisdiction clause, like clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary.
This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend section 28 of the Contract Act in any manner."
' Learned counsel submitted that Lokur, J. Also came to the same conclusion, and referred to paras 9 and 28 of his judgment. It was submitted that since the jurisdiction clause in the present case was in the same terms, the cited decision was on all fours. This Court had no jurisdiction to entertain or continue with the suit in any manner whatsoever. The jurisdiction lay only with the Islamabad High Court. Learned counsel referred to the plaintiffs' claim that since they sought relief not merely on the basis of the Agreement but also the policy directive issued by PTA, this Court had jurisdiction. Referring to Lahore Stock Exchange Ltd. v. Frederick, J. Whyte Group (Pakistan) Ltd. PLD 1990 SC 48, learned counsel submitted that the words used in clause 12 were of wide amplitude and had to be broadly construed and applied. It was submitted that the plaint ought to be returned for presentation before the Islamabad High Court and the ad interim order vacated and recalled as being an order without jurisdiction.
8. Learned counsel for defendant No.12, one of the supporting defendants, submitted that this Court had the jurisdiction to try the Suit, notwithstanding clause 12. It was submitted that the clause did not use any words such as "only", "exclusively" or the like as would indicate that the nominated court was the only forum where the action could be brought. Learned counsel submitted that jurisdiction clauses were sometimes inserted into contracts by way of abundant caution and were not intended to have the effect as contended by learned counsel for defendant No.
3. The present clause 12 was of such a nature, i.e., it merely made clear and explicit what was even otherwise the case, namely that the Islamabad courts had jurisdiction (because the Agreement was executed there). Had the parties so intended, they would have used suitable language in the clause confirming exclusivity but they had patently chosen not to do so. In the alternative, learned counsel submitted that the purpose of a jurisdiction clause such as the one at hand were merely to regulate jurisdiction. It could not oust jurisdiction, and this Court therefore could continue hearing the matter. Learned counsel emphasized that the Islamabad High Court would not be in any better position to try the suit and hear any applications made therein than this Court and there was no reason to allow the objection that had been taken. Learned counsel also submitted that Order VII, Rule 10, C.P.C. Had no application to the case at hand and that the plaint ought not to be returned in terms thereof.
9. In support of his submissions, learned counsel relied on M.A. Chowdhury v. Mitsui O.S.K. Lines Ltd.
PLD 1970 SC 373. The contracts were for the carriage of goods by sea and the bills of lading had a jurisdiction clause that conferred exclusive jurisdiction on a foreign court. The question was whether the jurisdiction of Pakistani courts was thereby ousted? Learned counsel relied in particular on the observations at pg. 389, and then to the conclusion on pg. 394, where the Supreme -Court held that foreign jurisdiction clauses: "...Are really in the nature of arbitration clauses which come within the exceptions to section 28 of the Contract Act and, therefore, should be dealt with in the same manner as other arbitration clauses. In the case of an arbitration it has to be remembered that the jurisdiction of the Courts is not altogether ousted, for, the Courts merely stay their hands to allow the parties to resort to the form of adjudication to which they have previously agreed. By only staying the actions before them the Courts still retain to themselves the jurisdiction to resume the case if the arbitration, for any reason, fails or the parties find it impossible to comply with the form of adjudication to which they had agreed."
' Learned counsel contended on the foregoing basis that the jurisdiction of the excluded court (which, in the present case, would be this Court) was, likewise, not ousted and it retained the jurisdiction to hear and decide (among other matters) the present application. Learned counsel also referred to Indian decisions, being those of the Supreme Court, in some detail. Reference was made, in particular, to A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem AIR 1989 SC 1239. The jurisdiction clause before the Indian Supreme Court did not use any words of exclusivity. It was observed as follows (pp. 1246-7): "21. ... From the foregoing decisions it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other Courts. ...As regards construction of the ouster clause when words like 'alone', 'only ', 'exclusive' and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim 'expressio unius est exclusio alterius'expression of one is the exclusion of another may be applied.
What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed.
22. ... The question then is whether it can be construed to have excluded the jurisdiction of the Court at Salem. In the clause 'any dispute arising out of this sale shall be subject to Kaira jurisdiction' ex facie we do not find exclusive words like 'exclusive', 'alone ', 'only' and the like. Can the maxim 'expressio unius est exclusio alterius' be applied under the facts and circumstances of the case? ...
Under the facts and circumstances of the case we hold that while connecting factor with Kaira jurisdiction was ensured by fixing the situs of the contract within Kaira, other jurisdictions having connecting factors were not clearly, unambiguously and explicitly excluded. That being the position it could not be said that the jurisdiction of the Court at Salem which Court otherwise had jurisdiction under law through connecting factor of delivery of goods there at was expressly excluded."
' Reliance was also placed on R.S.D. V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd. AIR 1993 SC 2094, where it was observed as follows (pg. 2098): "The endorsement 'Subject to Anand jurisdiction' does not contain the ouster clause using the words like 'alone', 'only', 'exclusive' and the like. Thus the maxim 'expression unius est excusio alterius' cannot be applied under the facts and circumstances of the case and it cannot be held that merely because the deposit receipt contained the endorsement 'Subject to Anand jurisdiction' it excluded the jurisdiction of all other Courts who were otherwise competent to entertain the suit."
' Learned counsel also referred to the latest decision, Swastik Gases. Reference was made to the relevant paragraphs from both judgments. Learned counsel submitted that in the present case, clause 12 also did not use any words of exclusivity. While the Agreement was obviously connected to Islamabad, it also had "connecting factors" with Karachi, and the clause did not "clearly, unambiguously and explicitly" exclude those connecting factors. This Court therefore had the jurisdiction to hear the matter and, it was contended, in the facts and circumstances of the case, ought to do so. It was prayed that the preliminary objection be rejected.
10. Learned counsel for defendants Nos. 4 and 6 to 10 (who were all supporting defendants) also prayed that the objection be dismissed. Referring to the prayer clause in the plaint, learned counsel submitted that one of the reliefs sought (in relation to the MTR-I rate) was peculiar to the policy directive and relatable exclusively to it. ("MTR-I" is an acronym for "mobile termination rate- international".) The Agreement had nothing to do with it. Therefore the plaint dealt with matters other than and in addition to the Agreement and was not merely confined to the latter. These matters were integral and essential to the plaintiffs' case. The jurisdiction clause on the other hand was limited in scope only to the Agreement. It therefore had no application in the facts and circumstances of the case. Learned counsel submitted that a jurisdiction clause like the one at hand was merely permissive in nature and did not have the effect of ousting the jurisdiction of the other court(s). Reliance was placed on M.A. Chowdhury v. Mitsui O.S.K. Lines Ltd. PLD 1970 SC 373 to submit that the excluded court retained a jurisdiction akin to that exercised by a court staying proceedings before it under section 34 of the Arbitration Act. It was emphasized that words of exclusivity had not been used. Learned counsel also submitted that the principle of forum non conveniens, developed in relation to private international law, applied in the same manner in the present case, i.e., even when both forums were domestic courts. For this reason as well, the plaintiffs ought not to be referred to the courts at Islamabad. It was submitted that the clause had been inserted in the Agreement merely to ensure that should a suit be brought at Islamabad by any of the parties, the defendants to such an action would not be able to take the plea of forum non conveniens. But this, it was contended, was a different matter from ousting the jurisdiction of the other courts. Reliance was placed on a decision of the US Court of Appeals for the 2nd Circuit, Global Seafood Inc. v. Bantry Bay Mussels Ltd. 659 F.3d 221 (2011).
11. Learned counsel for the plaintiffs naturally took a stand in strong opposition to the preliminary objection. While adopting the submissions by other learned counsel, it was submitted that the conduct of the party raising the objection (i.e., the defendant No. 3) also had to be kept in mind. It appears that after the Agreement had been entered into, certain proceedings in relation thereto had been started by the Competition Commission of Pakistan on the ground that it violated competition law. Those proceedings had been challenged before this Court in Suit 271 of 2013, and the defendant No. 3 had been one of the defendants therein. No objection to the jurisdiction of this Court had then been taken. Learned counsel also emphasized that the prayer clause was not restricted to the Agreement, but related to matters beyond and in addition thereto. The jurisdiction clause did not therefore come in the way. It was further submitted that the instant suit had been filed because of the urgency and nature of the case and that this Court was therefore fully competent to hear and decide the interim application.
12. Exercising his right of reply, learned counsel for defendant No.3 submitted that the decision in M.A. Chowdhury v. Mitsui O.S.K. Lines Ltd. PLD 1970 SC 373 was not applicable since there a foreign court was involved whereas in the present case the matter related to the jurisdiction of domestic courts. Referring to the Indian cases, learned counsel submitted that the Islamabad courts had the closest "connecting factor" with the Agreement and was therefore the proper forum even on the basis of the principles enunciated by the Indian Supreme Court. Equally, even if the principle of forum non conveniens were applicable in the context of domestic litigation, the proper forum was again Islamabad. As regards the earlier suit filed against the Competition Commission, learned counsel submitted that that related to an entirely separate matter, which was of a fundamentally different nature. Learned counsel reiterated that the plaint had to be returned to be presented at Islamabad and since this Court was divested of jurisdiction altogether, the ad interim order had to be vacated and recalled. On the presentation of the plaint at the proper forum, the proceedings would be begun afresh and the matter dealt with by the nominated court in such manner as it deemed appropriate.
13. I have heard learned counsel as above, examined the record with their assistance and considered the case-law. The first point to be noted may seem obvious but its importance is perhaps somewhat overlooked: a jurisdiction clause such as clause 12 is part of a contract. It is a simply a contractual term, rooted in the contract itself. English law, in line with its treatment of arbitration clauses, appears to regard a jurisdiction clause as a separate agreement in its own right (see Dicey, Morris & Collins on The Conflict of Laws, 15th ed., 2012, para 12-112). I do not find it necessary to consider whether the law in this country ought to travel the same path. A jurisdiction clause is therefore subject to the same considerations, in accordance with contract law, as any other provision of the contract. It stands or falls with the main contract. In addition, jurisdiction clauses are also subject to all the rules of substantive law applicable to contracts. One such rule, important in the present context, is as follows: "no one can by consent either vest a Court with jurisdiction which it does not otherwise possess or take away its jurisdiction which it does possess"
(M.A. Chowdhury v. Mitsui O.S.K. Lines Ltd. PLD 1970 SC 373, 389). In my view, this rule puts paid to the submission by learned counsel for defendant No. 3 that a jurisdiction clause divests the excluded court of all jurisdiction in respect of disputes under, relating to or arising out of the contract, and vests it absolutely and solely in the nominated court. This would conflict directly with the rule just stated and the jurisdiction clause therefore cannot possibly have any such effect. The position of a jurisdiction clause was explained thus in State Life Insurance Co. Of Pakistan v. Rana Muhammad Saleem 1987 SCM R 393: "The civil Courts exercise their jurisdiction under the Code of Civil Procedure. If they do not possess such jurisdiction under the Code it cannot be conferred on them through mutual agreement of the parties to a dispute. But in a situation where two or more Court have jurisdiction to try a suit under the Code of Civil Procedure, then an agreement between the parties that the dispute arising between them shall be tried only by one of such courts could not be considered contrary to public policy as it would neither contravene the provisions laid down in section 28 of the Contract Act nor would it violate in any manner the provisions of section 9 or section 20 of the Code of Civil Procedure." (pg 395)
' The substantive rule of law that underpins jurisdiction clauses is therefore simply this: a jurisdiction clause does not offend against any substantive rule of law. But this is so because the purpose of a jurisdiction clause is strictly limited: it is only to select. The contracting parties are permitted to choose, from amongst two or more courts that otherwise possess jurisdiction (and can never be divested of it by their agreement), the forum where any dispute is to be brought. It is to be emphasized that what the court thus gives effect to is not some A substantive rule of law; it simply honors the sanctity of the contract by enforcing a contractual term.
14. In my view, an objection raised by a defendant on the basis of a jurisdiction clause must, on its proper analysis, be regarded as having a two-fold nature. Firstly, it amounts to an allegation that there has been a breach of contract. This flows from the contractual nature of the clause. The parties have selected the nominated court and in breach of the agreement, the plaintiff has sued in the (or an) excluded court. But secondly, in contending that the plaintiff cannot sue in the excluded court what the defendant seeks, in effect, is specific performance of the contractual term.
This point requires elucidation. An injunction is intended (as presently relevant) to prevent a breach of contract. Normally, the threatened or anticipated breach or the act that amounts to the breach is anterior to the suit. The suit is brought to, as it were, keep or restore the contractual balance. But in the present context, it is the very act of suing in the excluded court that constitutes the breach. It cannot now be "prevented" by the court: the breach has occurred by reason of the very proceedings that are before it. An injunction cannot therefore be the proper remedy. Nor can the suit be dismissed. A suit can of course be dismissed for a reason other than a decision on the merits. This could be on account of some rule of law, e.g., the suit being barred by limitation or not disclosing a cause of action, etc. Now, the jurisdiction clause, though part of the contract, is not concerned with its substantive terms. It is therefore unconnected with the merits of the dispute. A dismissal of the suit may adversely affect the plaintiff's substantive rights. It may even preclude him from pursuing his claim before the nominated court. A dismissal would therefore be beyond the scope and rationale of a jurisdiction clause. Nor can the return of the plaint always be the proper remedy. This is a point to which I will return later in the judgment. What, in my view, will always be the proper remedy for the objecting defendant, and which will give effect to the jurisdiction clause as a contractual term, is its specific performance. This is necessarily therefore the second aspect of an objection taken by the defendant on the basis such a clause.
15. Since a jurisdiction clause is but a contractual term, the question that arises is whether specific performance can be granted of only this part? The answer to this lies in section 16 of the Specific Relief Act, 1877, which provides as follows: "16. Specific performance of independent part of contract.--When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part."
' In William Graham v. Krishna Chander Dey AIR 1925 PC 45, the Privy Council observed as follows (pg. 46): "Sections 14 to 17 inclusive of the Specific Relief Act, 1877, are both positive and negative in their form. Taken together they constitute a complete code, within the terms of which relief of the character in question must be brought, if it is to be granted at all. Although assistance may be derived from a consideration of cases upon this branch of English jurisprudence, the language of the sections must ultimately prevail."
' With specific reference to section 16, the Board observed that it appeared to be "novel in the width of the power which it confers" (ibid). Ninety years on, the novelty still has not worn off. In my view, this section is perfectly applicable to jurisdiction clauses. A jurisdiction clause is a contractual term which, taken by itself, can and ought to be specifically performed. It stands on a separate and independent footing from the rest of the contract. It will invariably be the case either that the other part (or parts) of the contract cannot be specifically enforced, or the substantive dispute would be centered on whether those part(s) of the contract ought to be specifically performed, the plaintiff seeking an affirmative and the defendant a negative answer. The three requirements of the section will therefore almost always apply.
16. Now, the contractual nature of the jurisdiction clause also means that, like any other such provision, it can be waived. A party can choose not to claim or exercise a right it has under a contract or forbear from taking issue with the breach of a term by the other. The defendant may choose not to raise any objection to a breach of the jurisdiction clause, and be content to contest the dispute before the excluded court. The fact that the jurisdiction clause can, and may, be waived has, in my view, certain important consequences. Firstly, the excluded court is not bound to recognize and give effect to the jurisdiction clause until and unless the objection is taken by the defendant. This would be so even if the court is otherwise aware of the clause. The jurisdiction being exercised by the excluded court vests in it as a matter of substantive law. The selection made through the jurisdiction clause does not take away this jurisdiction, because it cannot. The filing of the suit in the excluded court may be a breach of the contract, but unless and until the breach is alleged and the contractual right claimed, it is not for the court itself to stay its hand. This means that, e.g., and as is the case here, the court can deal with the suit and all matters arising from it and/or ancillary thereto, including applications of an interlocutory nature, in the same manner as it would in the ordinary exercise of jurisdiction. Once the objection is taken, then it must be dealt with immediately and preferably to the exclusion of all other matters. But till then the court remains unaffected by the jurisdiction clause. Secondly, since the institution of the suit in the excluded court is itself the alleged breach of contract, the objection must be taken by the defendant at the earliest (though not necessarily the first) opportunity. If the defendant delays taking the objection that may, in law, amount to a waiver, especially if he has in the meanwhile taken other steps in the proceedings. It is well established that once a waiver has occurred, in law or in fact, it is absolute and irrevocable. The innocent party will not subsequently be allowed to insist upon performance of the contractual term that was breached. If therefore there has been a waiver of the jurisdiction clause, the defendant would not then be allowed to object to the suit proceeding before the excluded court. This means, inter alia (and thirdly), that section 21, C.P.C.
Cannot apply in relation to a jurisdiction clause. This is so because the objection to the "place of suing" can be postponed till the framing of issues (even though the section does envisage it being taken at the earliest opportunity). However, by then any number of steps may have been taken by the defendant in the proceedings, which may amount to a waiver. Furthermore, even if the objection is taken belatedly, the appellate or revisional court can, in appropriate circumstances, still consider and allow it under section 21. A waiver of a contractual term, being absolute and irrevocable, cannot be set aside in such manner. In my view, the objection to the "place of suing" in section 21 is limited to an objection taken on the basis of some statutory rule or provision, and not a contractual term like the jurisdiction clause.
17. The analysis and discussion so far may be briefly recapitulated. A jurisdiction clause is simply a contractual term whereby the parties have selected one particular court out of two or more that have jurisdiction over disputes arising out of the contract. This selection is not contrary to any substantive rule of law and is permitted and enforced by the courts to uphold the sanctity of contracts. Conceptually, the filing of the suit in an (or the) excluded court is the breach of contract, and in objecting to the same the defendant alleges such breach and, in effect, seeks specific performance of the jurisdiction clause. Such performance of part of the contract is permissible under section 16 of the Specific Relief Act. However, the defendant can waive the breach of the jurisdiction clause, just like any other contractual term. Once a waiver has occurred, in law or in fact, it is absolute and irrevocable. Therefore, a defendant who wishes to take the objection must do so at the earliest (though not the first) opportunity. The excluded court, where the suit constituting the breach of contract has been brought, is not itself bound to stay its hand or otherwise give effect to the jurisdiction clause. Once the objection is taken, then the court ought to take it up at the earliest, and preferably to the exclusion of all other matters. However, up till such time it can continue to deal with the suit and all matters relating thereto, including interlocutory applications, in the ordinary exercise of its jurisdiction.
18. I can now turn to the point partially addressed in para 14 above, i.e., whether a return of the plaint would be the proper remedy once the defendant objects to the breach of the jurisdiction clause and the objection is upheld. An order directing that the plaint be returned can be approximated to a specific performance of the jurisdiction clause: the excluded court is forcing the plaintiff to fulfill his contractual obligation. However, it may not be the appropriate remedy in all circumstances. As already noted, the excluded court need not give effect to the jurisdiction clause until and unless the objection is taken by the defendant. The defendant may either never take that objection or the court may conclude that he has, as a matter of law or in fact, waived the breach.
The court may, in the meanwhile, have made orders or given directions in the ordinary exercise of its undoubted jurisdiction. A return of the plaint may have an effect in relation to such orders or directions. Having considered the matter, in my view a balance must be struck between the court honoring the sanctity of the contractual term and any exercise by it of its undoubted jurisdiction that, at a fundamental level, can never be affected by the term. If the court concludes that the ends and interest of justice will be met simply by returning the plaint (with the jurisdiction clause being, in effect, specifically enforced) it should do so. However, if it concludes that the ends and interest of justice require otherwise, it ought then to direct that the record of the suit before it be transmitted to the nominated court, thereby preserving (if only temporarily) all acts done by the court and any directions given and orders made. The nominated court would, in such circumstances, take up the proceedings from the point where the excluded court has left them and of course, be entitled to deal with the suit in the exercise of its own jurisdiction. In deciding which "option" to exercise, the excluded court must have regard to all the circumstances. Learned counsel for defendant No. 3 relied on the direction given by the Supreme Court in State Life Insurance Co. Of Pakistan v. Rana Muhammad Saleem 1987 SCM R 393 when, while allowing the appeal, it directed that the plaint be returned by the excluded court for presentation before the nominated court. In my respectful view, this direction ought not to be read (as contended by learned counsel) as meaning that this is the only option available to the excluded court. Insofar as the cited decision is concerned, it was obviously the proper remedy. The suit was simply for the recovery of money. On the pleadings the learned trial court (which was the excluded court) framed issues, of which the first was in respect of the objection on the basis of the jurisdiction clause. This was treated as a preliminary issue and decided accordingly. The objection appears to have been taken by the defendant at the earliest (the filing of the written statement) and the court took it up to the exclusion of all other matters. This is in line with what I have said herein above. It would seem that the suit never got beyond that stage since the defendant filed a revision before the Lahore High Court against the finding recorded on the preliminary issue and, such revision having failed, took the matter further to the Supreme Court where, as noted, the appeal was allowed. It is obvious from this narrative that a return of the plaint sufficed and that was the direction made by the Supreme Court. However, with the utmost respect, it cannot be concluded from the foregoing that no other option is available to the excluded court. In my respectful view, the correct position is otherwise and is as stated herein above.
19. Since a jurisdiction clause is but a contractual term for which, in my view, defendant in effect seeks specific enforcement by raising the objection, it follows that section 22 of the Specific Relief Act could apply in appropriate circumstances. Certain submissions made by learned counsel for the plaintiffs and the supporting defendants can be conveniently taken up in this context. Section 22 comprises of several paragraphs and I start with the first: "22. Discretion as to decreeing specific performance.--The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal."
' The principles enunciated in this paragraph are of course well established and hardly require elaboration. Certain points must however be made in the specific context under consideration. In my view, once breach of the jurisdiction clause has been established, the opposite party (here the plaintiff) would have to establish a strong case to satisfy the court that specific performance be refused (i.e., the objection rejected). The threshold must be regarded as being very high and it would be a rare case in which such relief is refused. Learned counsel for the plaintiff and the supporting defendants argued that the suit raised issues beyond the Agreement, which were rooted in the policy directive itself. It was also submitted that PTA and the Federation (the defendant No. 1) were necessary parties to the suit and neither was party to the Agreement. These submissions cannot, with respect, be entertained. Both the Federation and PTA can of course always be sued in the courts at Islamabad. Therefore even if they are necessary parties, the suit can proceed there. Furthermore, the Islamabad courts (which in the present case would mean the Islamabad High Court) are obviously fully capable of dealing with the issues that might arise in the litigation, whether in relation to the Agreement or the policy directive. One general point may be made here. The excluded court must be alert to an attempt by the plaintiff to "dress up" the suit by embellishing it and, e.g., including defendants other than parties to the contract, in order to defeat specific performance of the jurisdiction clause. Such attempts must he firmly dealt with. The excluded court must look at the substance of the real dispute and if its locus is found to lie in the contract, then it ought not to be distracted by extraneous or subsidiary factors. Specific performance must not be refused on any such ground. I emphasize that the observations just made do not apply in the facts and circumstances of the present case. Nonetheless, these are factors that may, in appropriate cases, need to be kept in mind.
20. I turn to consider another submission made by learned counsel for the plaintiffs and the supporting defendants, namely, that the courts at Islamabad are a forum non conveniens. This doctrine has been developed in the context of the conflict of laws and in order to appreciate it fully, a fundamental aspect of this branch of the law must be kept in mind. This is stated as follows in a standard treatise, Morris' The Conflict of Laws, 7th ed., 2009 (of course with reference to English law): "In the conflict of laws, a foreign element and a foreign country mean a non-English element and a country other than England. From the point of view of the conflict of laws, Scotland and Northern Ireland are for most (but not all) purposes as much foreign countries as are France or Germany.
More generally, a state in the political sense, or as understood in public international law, may or may not coincide with a country (or "law district" as it is sometimes called) in the sense of the conflict of laws. Unitary states such as Sweden, Italy and New Zealand, where the law is the same throughout the state, are "countries" in this sense. England or Scotland, New York or California, although merely component parts of the United Kingdom and the United States, are each a country in the sense of the conflict of laws, because each has a separate system of law." (pg. 3)
' Pakistan, though a federal republic, is in this context both a state and a "country". The position in India is likewise. Thus, the basic premise of the conflict of laws, that there should be two "countries", does not (at least at the present at any rate) hold true for Pakistan. Courts in different parts of our state are all within one "country". The doctrine of forum non conveniens on the other hand postulates (indeed, requires) the respective courts to be in two different "countries". Even in the case cited by one of the learned counsel (though not under this head), Global Seafood Inc. v.
Bantry Bay Mussels Ltd. 659 F.3d 221 (2011), the courts involved were US and Irish courts.
Furthermore, a plea that the suit be stayed on grounds of forum non conveniens is distinct from a plea on the basis of a jurisdiction clause that the proceedings have been brought in an excluded court. It would seem therefore that the doctrine of forum non conveniens may not as such apply in a context where both the courts are in the same "country". Where it may have some limited applicability is in terms of one of the other paragraphs of section 22. This, without the illustrations, is as follows: "The following are cases in which the Court may properly exercise a discretion not to decree specific performance:--...
II. Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff."
' In the foregoing, reference to "contract" must of course be read as referring to "part of the contract", i.e., the jurisdiction clause that, in my view, can be specifically enforced under section 16.
Furthermore, since the issue would arise on the defendant's objection, the roles would be reversed: it is the defendant who would be seeking specific performance and the plaintiff who would be resisting such a plea. Therefore, references to the parties would also need to be reversed: in the present context, for "defendant" read "plaintiff" and vice versa. In other words, if the plaintiff could demonstrate that specific performance of the jurisdiction clause would involve some hardship on him that he did not foresee, whereas if such performance were refused the defendant would be under no such hardship, then the court in its discretion may refuse specific performance (i.e., reject the objection). It may be in this context that the factors usually considered when a plea of fourm non conveniens is taken may be relevant. The principle itself would not apply but the considerations entertained by the court could have relevance. Of course, as is clear, there would be only a limited applicability even in the present context. In my view, no such grounds have been shown in the present case. The suit can proceed just as easily before the Islamabad High Court as before this Court. It would involve no hardship for the plaintiffs or the supporting defendants and certainly none that they did not foresee.
21. I turn to consider another submission by learned counsel for the plaintiffs and the supporting defendants, namely that clause 12 of the Agreement does not use any words of exclusivity such as "only", "alone" or the like, and that therefore the jurisdiction clause does not affect the continuation of the suit in this Court. The Pakistani decision cited in support of this submission was M.A.
Chowdhury v. Mitsui O.S.K. Lines Ltd. PLD 1970 SC 373. It has already been noted that that case involved courts in two "countries" in the conflict of laws sense. It is clear from the judgment that this was the primary issue before the Supreme Court, which was treated at great length. In my respectful view, this is the fundamental distinguishing feature between the cited authority and the facts of this case and therefore the decision is not, as such, directly applicable. Insofar as the Indian decisions are concerned, the extracts from the most important ones have already been set out above. The Indian Supreme Court has approached the problem by referring to the maxim expressio unius est exclusio alterius and the existence (or otherwise) of so-called "connecting factors". There appear to be a great many decisions of the Indian Supreme Court on the point: learned counsel for defendant No. 12 cited no less than 15. In Swastik Gases Lokur, J. Asked (if I am allowed to put it so) with some justifiable exasperation: "is it really necessary for this Court to repeatedly affirm the legal position ad nauseam" (para 2 of his judgment). His Lordship stated his view right at the beginning: "In my opinion, 'the T very existence of the exclusion of jurisdiction clause in the agreement would be rendered meaningless were it not given its natural and plain meaning. The use of words like "only", "exclusively", "alone" and so on are not necessary to convey the intention of the parties in an exclusion of jurisdiction clause of an agreement." (para 4)
' The various decisions were then analyzed and his lordship concluded by reiterating what had been said in the beginning: 46 ... The parties intended the implementation of the exclusion clause as it reads notwithstanding the absence of the words "only", "alone" or "exclusively" and the like. The reason for this is quite obvious. The parties would not have included the ouster clause in their agreement were it not to carry any meaning at all. The very fact that the ouster clause is included in the agreement between the parties conveys their clear intention to exclude the jurisdiction of Courts other than those mentioned in the concerned clause. Conversely, if the parties had intended that all Courts where the cause of action or a part thereof had arisen would continue to have jurisdiction over the dispute, the exclusion clause would not have found a place in the agreement between the parties."
(para 26)
I put very much the same point as a question to learned counsel for the plaintiffs and the supporting defendants. With respect, no satisfactory answer was forthcoming. In my respectful view, there is no need to refer to the maxim relied upon by the Indian Supreme Court nor to ascertain the existence (or otherwise) of any so-called "connecting factors". The very existence of the jurisdiction clause speaks for itself. Exclusivity is inherent in the clause. Absent such effect, it loses all meaningful sense. The fact therefore that clause 12 of the Agreement does not use words of exclusivity is irrelevant. The US decision cited in the present context, Global Seafood Inc. v. Bantry Bay Mussels Ltd. 659 F.3d 221 (2011), is also, with respect, not relevant. English and US decisions on the exclusivity or otherwise of jurisdiction clauses must be read with some caution. The reason is that the common law rules of jurisdiction are in many ways fundamentally different from the statutory rules that apply in Pakistan. Thus, Dicey, Morris and Collins on The Conflict of Laws (op. Cit.) states the "general principle" that "in England service of the process is the foundation of the court's jurisdiction to entertain a claim in personam" (para 11-003). Whether or not the summons can be served provides no basis at all for determining the jurisdiction of Pakistani courts. Similarly, Rule 39 (set out in para. 12R-098) states in material part as follows: "Rule 39-(1) Where a contract provides that all disputes between the parties are to be referred to the jurisdiction of English courts, the court normally has jurisdiction to hear and determine proceedings in respect thereof.
(2) ... Where a contract provides that all disputes between the parties are to be referred to the exclusive jurisdiction of a foreign tribunal, the English court will stay proceedings instituted in England in breach of such agreement ... Unless the claimant satisfies the court that strong cause exists to allow them to continue.
(4) An English court may restrain a party over whom it has personal jurisdiction from the institution or continuance of proceedings in a foreign court in breach of a contract to refer disputes to an English ... Court...."
' As is readily apparent, clause (1) of Rule 39 is directly contrary to the basic rule applicable in Pakistan (see para 13 herein above). The question of exclusive or non-exclusive jurisdiction (or "hybrid" forms) flow from these rules. Any such considerations are inapplicable in Pakistan (subject, possibly, to some exceptions, which certainly would not apply to the case at hand). It seems that the substantive rules of jurisdiction in the US are essentially along the same lines as apply in England and are likewise inapplicable in this country. In my view therefore, nothing turns on the fact that clause 12 does not use words of exclusivity. The mere inclusion of such a clause in the contract is sufficient.
22. It is to be emphasized that in giving effect to the jurisdiction clause and, e.g., directing that the suit be sent to the nominated court, the excluded court is doing nothing other than specifically enforcing the relevant part of the contract. It is the very nature of the contractual term, the manner in which it is breached and the remedy that is available in terms of section 16 that leads to this result. I 'am cognizant of the fact that ordinarily the transfer of cases between Provinces, and especially from one High Court to another, may be subject to certain provisions, limitations and requirements. However, those provisions deal with the matter on a different plane, which is distinct from the issue as raised by an objection taken on a jurisdiction clause. The specific enforcement of the jurisdiction clause in terms as explained above ought not therefore to be regarded as or equated with a "transfer" simpliciter of the suit from one court to another. Some consideration must, for completeness, be given to the "transfer" provisions. Reference may be made to sections 22 and 23 of the Code of Civil Procedure. Section 22 provides that when a suit may be instituted in two or more courts and is instituted in any one, the defendant may apply to have the suit transferred to any one of the other courts. The application must be made at the earliest opportunity and in any case by or before the settlement of issues. Section 23 provides that the application must be made to any one of the courts (each superior to the trial court) as therein identified and to the extent presently relevant provides that "where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits. Of whose jurisdiction the Court in which the suit is brought is situate". At first sight these sections seem to provide an alternate remedy for a defendant raising the objection. The interesting question is why these sections have, apparently, not been invoked in this context, either at all or at any rate with any degree of regularity. Several reasons suggest themselves. Firstly, the application must be made to the relevant superior court: the sections cannot be invoked before the court where the suit is brought. Secondly, the case-law (and much of it is several decades old) indicates that the courts have hitherto given a rather narrow and restricted interpretation to these sections. Finally, the sections do not apply where one of the concerned courts is the High Court. Thus, it has been held that a single Judge exercising jurisdiction on the original side is not a court subordinate to the High Court for purposes of section 23: see, inter alia, Hindustan Assurance and Mutual Benefit Society Ltd. v. Rail Mulraj and others AIR 1915 Madras 608 and Hyat Muhammad and others v. Shaikh Mannu and others AIR 1927 Calcutta 290. It has also been held that a High Court has the power, though in the exercise of inherent jurisdiction, to transfer a suit pending in a court subordinate to it to another High Court exercising original civil jurisdiction: see Datt Singh v. Tejdatt Singh and others AIR 1934 Allahabad 14. (Although the Indian Supreme Court has since held, in Durgesh Sharma v. Jayshree AIR 2009 SC 285, that a transfer of cases between courts subordinate to different High Courts is only possible if the Supreme Court so orders, this is on the basis of section 25, C.P.C. As substituted and applicable in India. This section was omitted in Pakistan in 1960, with effect from 14-10-1955.)
Reference must also be made to Article 186-A of the Constitution, whereby the Supreme Court may, if it considers it expedient to do so in the interest of justice, transfer a case, appeal or other proceeding pending in one High Court to another. The Supreme Court has indicated that this is an extraordinary power that will be exercised sparingly and "only in cases of extreme hardship to avert failure of justice": Mohtarma Benazir Bhutto v. The State 1999 SCM R 759 (at para 13). The Court cited its earlier decision in Muslim Commercial Bank Ltd. Employees' Union v. Muslim Commercial Bank Ltd. 1994 SCM R 1031, where it had been observed that "a very strong case is to be made out to demonstrate that the transfer sought will advance the cause of justice". Interestingly, an argument was made that the power under Article 186-A ought to be exercised on the ground of fourm non conveniens, and the Supreme Court was referred to one of the leading English authorities, Spiliada Maritime Corp v. Cansulex Ltd. [1986] 3 All ER 843 (HL). The submission was however not accepted (para 16). In my respectful view, the specific issue that arises before me, the context in which it arises and the conclusions reached by me do not at all trespass on or conflict with the jurisdiction of the Supreme Court under Article 186-A.
23. In view of the foregoing analysis and discussion, I conclude as follows. The objection taken by the defendant No. 3 on the basis of clause 12 of the Agreement has been taken at the earliest opportunity. Although it was heard along with submissions made on the merits of the case in C.M.A.
986 of 2014, I have taken it up separately. I conclude that by filing the present suit in this Court, the plaintiffs have prima facie breached the Agreement in respect of the jurisdiction clause. In terms of section 16 of the Specific Relief Act, this part of the contract can and ought to be specifically enforced. Nothing has been shown as would establish that the defendant No. 3 is not entitled to such relief, whether in terms of section 22 or otherwise. Taking into account all the circumstances of the case, in my view the proper manner of granting the remedy would not be by way of directing that the plaint be returned but by transmitting the suit to the Islamabad High Court, with the result that (subject to what is stated below) the interim order dated 27-1-2014 made on C.M.A. 986 of 2014 shall continue to hold the field and that application itself shall also be deemed to be pending. I may note here that section 8 of the Islamabad High Court Act, 2010 provides, inter alia, in subsection (2) that the rules with respect to the practice and procedure of this Court (including the SCCR) shall apply with the necessary modifications to the Islamabad High Court unless and until varied or revoked by that Court.
24. Accordingly, the preliminary objection taken by the defendant No. 3 is allowed and upheld. The Registrar of this Court is directed to immediately transmit this suit (i.e., the entire record of the present proceedings) to the Islamabad High Court with the request to that Court to register the suit, according to the applicable practice and procedure, as proceedings to be dealt with in the exercise of its original civil jurisdiction. It is further requested that the High Court, if it so considers convenient, direct the listing of the suit, at the earliest on account of the pending application for interim relief and the order made by this Court on 27-1-2014. The interim order so made shall continue for a period of 45 days or the date on which the suit is first listed for hearing by the Islamabad High Court, whichever is earlier.