' CH. MUHAMMAD MASOOD JAHANGIR, J.--- Brief facts of the case are that the petitioner is engaged in a business of manufacturing of different articles. The respondents vide distribution agreements dated 15.2.1999 and 30.10.2002 became distributors of the petitioner. The respondents filed a suit for recovery of Rs,1,62,98,232.00 in the Civil Court at Faisalabad which was contested by the petitioner by filing written statement and raised a preliminary objection with regard to lack of territorial jurisdiction of the Civil Court at Faisalabad. In this regard, the petitioner filed an application under Order VII, rule 10, C.P.C. For the return of the plaint, which was, however, dismissed by the learned trial court vide order dated 07.2.2007. The petitioner assailed the said order by filing a Writ Petition No,19467/2010 which was dismissed as withdrawn vide order dated 15.9.2010 upon the request of the learned counsel for the petitioner to approach the learned trial court with a request for framing of an issue regarding territorial jurisdiction and treating the same as a preliminary issue.
Thereafter, the petitioner moved an application under Order XIV, rule 2 of C.P.C. To the effect that issue No,3 being an issue of law should be treated a preliminary issue and decided before going into the merits of the case. The learned trial court dismissed the said application vide order dated 25.6.2011 which has been assailed by the petitioner through the instant civil revision.
2. The learned counsel for the petitioner has argued that the parties through distribution agreements dated 15.2.1999 and 30.10.2002 had chosen a competent legal forum at a particular place and, therefore, the respondents/plaintiffs could not be allowed to resile therefrom. That the alleged dispute between the parties has arisen out of the agreements referred to above; that the learned trial court has erred in law while coming to the conclusion that under Section 28 of the Contract Act the parties were debarred either to confer or oust jurisdiction upon the court; that earlier order dated 7.2.2007 was not a hurdle before the learned trial court to decide the application of the petitioner under Order XIV, rule 2, C.P.C. And that the learned trial court has dismissed the application of the petitioner on erroneous premises of law.
3. Conversely, the learned counsel for the respondents has refuted the arguments advanced by the learned counsel for the petitioner and has argued that the order dated 7.2.2007 passed by the learned trial court which is still intact, is a barrier before the petitioner and petitioner cannot be allowed to re-agitate the same matter rather the said order has already attained finality; that even otherwise by the consent of the parties jurisdiction of court cannot be created. Learned counsel for the respondents/plaintiffs while relying upon 2006 CLD 210 and 2011 SCM R 806 has prayed for dismissal of the instant civil revision.
4. Arguments heard and record perused.
5. The issue of jurisdiction of the court being a question of law can be raised by any party at any stage of the trial and even the court itself while proceeding with the case is required to examine that whether it has jurisdiction in law to seize with the matter or not, but merely because a party to the proceedings has not taken an objection relating to the jurisdiction, shall not debar a party from taking such an objection at any stage of proceedings and even otherwise they cannot confer a jurisdiction on a court which is not vested in it in law. The question of jurisdiction goes to the very root of the case which renders the entire proceedings coram non judice and thereby vitiated the same.
6. It is an admitted fact that the respondents/plaintiffs started business with the petitioner/defendant on the basis of distribution agreements, the existence of which is not denied.
Clause 46 of the said agreement reads as under:- "46. This agreement shall be governed by the laws of Pakistan and an action shall be instituted in the courts at Lahore. "
' A perusal of the said Clause reveals that for the resolution of the disputes arising out of the agreement inter se the parties the court at Lahore will be the competent court whereas the respondents/plaintiffs instituted the said suit against the petitioner for recovery of disputed amount at Faisalabad.
7. The only question for resolution in the instant case is that as to which court out of the Civil Courts set up at Lahore or Faisalabad would have jurisdiction to adjudicate upon the us between the parties. The legislature has inducted specific provisions under section 20 of the Civil Procedure Code, which deal with the jurisdiction of the Court and for ready reference the same is reproduced as under: "20. Other suits to be instituted where defendants reside or cause of action arises.-- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction:-
(a) the defendant, or each of the defendants where there are more than one at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business; or personally work for gain, as aforesaid, acquiesce in such institution; or the cause of section, wholly or in part, arises. "
8. However, to avoid the aforesaid clause of the agreement the learned counsel for the respondents/plaintiffs has referred to section 28 of the Contract Act, 1872, which provides that every agreement in restraint of legal proceedings is void. For ready reference the said provision is reproduced as under:--
28. Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent.
' Exception 1.-- This section shall not render illegal a contract by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amour awarded in such arbitration shall be recoverable in respect of the dispute so referred.
' Exception 2.-- Nor shall this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration.
9. The perusal of the provisions of section 20, C.P.C. Provides that every suit will be filed in a civil Court within whose local limits or jurisdiction the defendant resides or carries on business or where the cause of action wholly or in part occurred whereas section 28 of the Contract Act lays down that every agreement. By which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals or which limits the time within which he may thus enforce his rights, is void to that extent. From a bare perusal of the aforesaid provisions there does not appear any complete elimination of jurisdiction under section 20 of the Code of Civil Procedure and there is also no violation of the provisions of section 28 of the Contract Act. The civil Courts exercise their jurisdiction under the Code of Civil Procedure and if they do not possess such jurisdiction under the Code, it cannot he conferred on them through a mutual agreement of the parties to a dispute. However, in a situation where two or more Courts have jurisdiction to try a suit under the Code of Civil Procedure, the parties can select a particular Court having territorial and pecuniary jurisdiction for the determination of their dispute and there does not appear anything wrong or illegal in it or opposed to public policy. In arriving at this view I am fortified by the judgment reported as State Life Insurance Corporation of Pakistan v.
Rana Muhammad Saleem (1987 SCM R 393), which has further been affirmed by the august Supreme Court of Pakistan in Messrs Kadir Motors (Regd.), Rawalpindi v. Messrs National Motors Ltd., Karachi (1992 SCM R 1174). The case law referred to by the learned counsel for the petitioner runs on different footing and is not applicable in the instant case. The learned trial court while dealing with a matter has to determine first that whether jurisdiction vests on it or not. The impugned order has been passed without lawful authority and in derogation of the verdict rendered in above said judgments. The learned counsel for the petitioner has made out a case with full strength that the impugned order passed by the learned trial court is without jurisdiction, which cannot be sustained in the eye of law. By allowing this Civil Revision, the said order is set aside with direction to learned trial court to treat issue No,3 as preliminary issue and decide the same prior to the decision of other issues.