The suit out of which this revision petition has arisen., was filed by the petitioner, against the respondent, for recovery of Rs.10,375. The petitioner's case is that it placed an order on the respondent for the supply of bailing press and paid it a sum of Rs.4,375 in advance through a cheque.. It is asserted that the respondent failed to perform its part of the contract, in delivering the goods to the petitioner by 25th January, 1972 and thus rendered itself liable to pay Rs.6,000 to the petitioner as damages, in addition to the refund of advance payment. It appears that the order was placed at Karachi which was the ordinary place of the respondent's business, and .The cheque was also encashed there. The petitioner, however, works for gain at Lyallpur (now Fasialabad).
2. The respondent did not enter appearance before the learned trial Court despite service and was, therefore, proceeded against ex parte and the petitioner allowed to produce its evidence. After perusal of the material on the file the learned trial Court came to the conclusion that at the time of institution of the suit, neither the respondent resided at Faisalabad nor the cause of action arose at that place and, therefore, the Civil Court at Faisalabad had no jurisdiction to hear the suit.
Accordingly, by its order dated 11th Jun!, 1975, the learned trial Court decided that the plaint be returned to the petitioner, for its institution before a Court of competent jurisdiction.
3. In appeal the learned Additional District Judge who was seized of the case, shared the same view and held that section 20, C. P. C. Was correctly applied by the learned trial Court. The petitioner's appeal was thus dismissed by him on 3rd June, 1976, The unsuccessful plaintiff has now come to this Court on its revisional side.
4. The learned counsel for the petitioner argued that because of his failure to supply the goods, the respondent was bound to refund to the petitioner the amount paid to it in advance and further to pay the damages for the loss suffered by the petitioner-Mill. It was further argued that the rule that a debtor must seek, the creditor is fully attracted in this case and that, therefore, the Civil Courts at Faisalabad have the jurisdiction to hear the suit. For his thus submission he relied on M/s. Nasim Saleem 8c Co. v. Barkat Ullah (PLD 1967 Lah. 928). He also referred to section 21, C. P. C. To contend that since the respondent did not contest the suit and failed to raise objection to the territorial jurisdiction of the Court, the suit could not be thrown away by the learned trial Court for want of territorial jurisdiction. It was also urged that the respondent was duly served, but did not appear, the learned trial Court should have proceeded under Order IX, rule 6. C. P. C. And decreed the suit without recording evidence.
5. A registered (A.D.) notice was sent to the respondent for to-- date. But as usual no one has entered appearance on its behalf, ex parte proceedings therefore, have been conducted against the respondent.
6. The submissions made by the learned counsel for the petitioner are not without merit. I understand that the goods were to be supplied by the respondent to the petitioner at Faisalabad and thus it being a case of breach of contract, a part of cause of action would be deemed to have arisen at Faisalabad. The rule that a debtor must seek the creditor, essentially concerns the territorial jurisdiction of a Court and involve the performance of the contract, as to the repayment of money due to the creditor at a place where he resides. It is well settled that section 21 makes an exception to the rule laid down in section 20, C. P. C. And passing of a decree in violation of section 20 by a Court not having territorial jurisdiction, is not fatal to its validity. It is open to a party, not to raise any objection to the place of suing or the territorial jurisdic--tion of the Court. Thus the respondent having declined to appear in the trial Court, despite service would be deemed to have waived of its objection to the territorial jurisdiction of the Court. It was thus no necessary for the learned Courts below who have suo motu determined the question of their territorial jurisdiction and under Order VII, rule 10, C. P. C., return the plaint to the petitioner. In the ruling cited by the learned counsel, the common law principle that a debtor must seek the creditor, which finds recognition in section 49 of the Contract Act, has ..~ been highlighted.
7. For all these reasons this revision petition is accepted. Impugned judgment is set aside and the case remanded to the learned trial Court for its decision on merits, in accordance with law.