KAUSAR SULTANA HUSSAIN, J.---The appellant/ defendant No. 1 filed present High Court Appeal No.72 of 2020 being aggrieved and dissatisfied with the impugned order dated 14.01.2020, passed by the learned Single Judge in Suit No. 1801 of 2017, whereby the plaint of the respondent No.1/Plaintif f was partly returned under the Provision of Order VII, Rule 10, C.P.C. while decid ing the objection of territorial jurisdiction in pursuance of the order dated 16.10.2018 to the extent of Mining Lease Land situated within the territorial jurisdiction of District Jamshoro (formerly District Dadu) for filing it before the competent Court at Jamshoro with direction to file amended plaint after deleting the mention area of third Mining Lease. Through filing instant H.C.A. No.72 of 2020, the appellant/ defendant No.1 has prayed that the said impugned order dated 14.01.2020 may be re-called/set aside with direction to the learned trial Court to reject/dispose of the Suit No.1801 of 2017 in accordance with law .
2. A short factual background of the case is that the Respondent No.1/Plaintif f filed a Civil Suit No 1801 of 2017 (original jurisdiction) for Declaration, Mandatory and Permanent Injunction and Recovery of Possession against the Appellant/Defendant No.1 and others. The Respondent No.1/Plaintif f was granted three Mining Lease (s) all dated 13.09.2004 for exploration of Shale Clay and Lime Stone for a period of 30 years in terms of Rule No. 47 of Sindh Mining Concession Rules, 2002 by the Government of Sindh, Directorate General Mines and Mineral Development (Respondent No.3/Defendant No.4) over the following, areas :- i. An area of 5482.7 Acres near Goth Jaman and Babar Bund Nai District Jamshoro (formerly District Dadu) and Karachi ; ii. An area of 3506.82 Acres near Goth Haji Allah Dad, District Karachi ; and iii. An area of 663.73 Acres near Goth Taj Mohammad, District Jamshoro (formerly District Dadu).
(hereinafter referred to as the "Mining Lease Land").
3. Since 2004, the Respondent No. 1/Plaintif f was in possession of the Mining Lease Land and has been utilizing the same for its business purposes. The Appellant and Respondent No.7 (Defend ants Nos.1 and 2 respectively) have encroached upon the Mining Lease Land belong to Respondent No.1/Plain tiff and started booking of their Housing Project namely "Seven Wonders City and Al-Qaim City", hence Respondent No.1/Plaintif f filed the Civil Suit against the Appellant and other Respondents.
4. The issue regarding territorial jurisdiction of this Court was initially raised by the learned counsel for the Respondent No.7/ Defendant No.2 on 16.10.2018 before learned Single Judge. On the other hand the learned counsel for Respondent No.1/Plaintif f in rebuttal had submitted that the first Mining Lease Land issued to the Plaintif f manifests that part of the land is within territorial limits of Karachi. The learned Single Judge on raising this legal plea by the learned counsel for the Respondent No.7/Defendant No.2 fixed the matter to hear the parties counsel on the point of territorial jurisdiction of this Court at Karachi.
5. Contents of the impugned order clarifies that out of three Mining Leases Land granted in favour of the Respondent No. 1/Plaintif f as mentioned above, the issue between the parties regarding territorial jurisdiction in respect of second and third Mining Lease land, located within exclusive territorial limits of District Karachi and District Jamshoro respectively had been resolved, however , the first Mining Lease Land, which is over an area of 5482,76 Acres partly falls within territorial limits of District Jamshoro (formerly District Dadu) and partly within the jurisdiction of Karachi, the learned Single Judge observed that Suit can be filed at Karachi in view of section 17 of Civil Procedure Code 1908, which provides that, where a Suit is to obtain a relief in respect of immoveable property situated within the jurisdiction of different Courts, the Suit can be brought in any one of the Court and such Court can deal with the whole of the property , though some portion of it is situated outside its jurisdiction.
6. For ready reference, section 17 of C.P .C. is reproduced hereunder:-- "17. Suits for immovable property situate within jurisdiction of different Courts. Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisd iction any portion of the property is situate: Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court."
7. The learned counsel for the parties advanced their arguments on the point of territorial jurisdiction of this Court in respect of the first Mining Lease Land in question. The learned counsel for the Appellant/Defendant No.1 argued that the learned Single Judge while passing impugned order dated 14.01.2020 did not consider the provisions of Section 7 of the Civil Courts Ordinance, 1962, (Ordinance, 1962) according to which the original jurisdiction of the High Court at Karach: is confined to the "Karachi District" only. He further argued that under the mandatory provisions of Section 7 of Ordinance, 1962: except for the territorial limits of Karachi District, no other area of Sindh can be brought under the ambit of the original civil jurisdiction of this Court, whereas civil courts falling beyond the Districts of Karachi exercises original civil jurisdiction of un-limited pecuniary limits. Per learned counsel for the Appellant/Defendant No. 1, in instant matter the crucial issue is related to construction raised by the Appellant/Defendant No.1 on the land of first mining lease land, which does not fall within the territorial limits of Karachi, therefore, this Court on original side cannot entertain the present case. Per learned counsel for the Appellant/ Defendant No.1 the question of territorial jurisdiction ought to have been determined by having recourse to the cause of action. He prayed for setting aside the impugned order of the learned Single Judge being illegal, unlawful, contrary to law and void ab initio.
8. On the other hand the learned counsel for the Respondent No.1/Plaintif f submitted that the appeal filed by the Appellant/Defendant No.1 is liable to be dismissed being time barred as the impugned order was passed on 14.01.2020, whereas the instant High Court Appeal was instituted on 02.03.202 0. Per learned counsel for the Respondent No.1/ Plaintif f, the appeal in hand is not maintainable as the suit of the Respondent No.1/Plaintif f is at pre-evidence stage and the disputed facts of the matter cannot be proved without leading documentary evidence by the parties. The learned counsel for the Respondent No.1/Plaintif f has emphasized on the legal point by arguing that according to the provision of section 17, C.P.C. the Suit may be filed in any Court within the local limits of whose jurisdiction any portion of the immoveable property is situated and in instant matter Mining Lease Land No.1 is situated partly in Karachi and partly iit Jamshoro, whereas mining Lease Land No.2 is situated exclusively within the local limits of Kara6hi, the Suit No. 1801 of 2017 of the Respondent No.1/Plain tiff, therefore to the extent of the two leases land Nos.1 and 2 is maintainable, however , the learned Single Judge through passing impugned order has already returned the 'plaint of the Plaintif f's suit, under Order VII, Rule 10, C.P.C. for the third Mining Lease Land of Jamshoro. Per learned counsel he has already complied the impugned order of the learned Single Judge by filing amended plaint in Suit No. 1801 of 2017 and also filed a separate suit in Jamshoro with respect to the third lease land situated hi Jamshoro. It is further argued by the learned counsel for the Respondent No.1/Plaintif f that section 7 of 'The Civil Courts Ordinance, 1962' did not attract to the case of the Respondent No.1/Plaintif f, because in Karachi region, the Civil Courts have limited pecuniary jurisdiction while the original civil jurisdiction of the High Court is unlimited, and in District Jamshoro Civil Courts have original unlimited civil jurisdiction in monitory terms, therefore, the question of territorial jurisdiction of the Plaintif f's suit has been finalized and instant appeal become infractious. He prayed for dismissal of present appeal.
9. After hearing arguments of both the side and perusal of the record, .we are of the view that the learned Single Judge of this Court very precisely has discussed the local limits of the three Minin g lands which are located within three different local limits i.e. Karachi, and Jamshoro and one lease land'falls within local limits of two Districts (i.e. partly in Karachi and partly in Jamshoro). The learned Single Judge has rightly returned the plaint of Suit No. 1801 of. 2020 of the Respondent No. 1/Plaintif f under Order VII, Rule 10, C.P.C. in respect of the third Mining Lease land exclusively falls within the territorial limit of District Jamshoro and per learned counsel for the Respondent/Plaintif f in compliance of the order of learned Single Judge, he has filed a suit in Civil Courts of District Jatnshoro in respect of third lease land of Jamshoro and also submitted amended plaint in. Suit No. 1801 of 2020, after deleting the third mining lease land of Jamshoro from the plaint. However , the Mining Lease Land of rest of the area which partly fall within local limits of Karachi and partly in District Jamshoro, the learned Single Judge within the purview of section 17 of C.P.C. has opined in agreement with the learned counsel for the Respondent No.1/Plaintif f that the immoveable property in question falls within the jurisdiction of two Districts and the Plaintif f is at liberty to choose any of the Courts, where disputed land is situated for filing his suit.
10. The legal plea raised by the learned Counsel for the Appellant/ Defendant No.1, under Section 7 of 'The Civil Courts Ordinance, 1962' is related with the original jurisdiction of the High Court at Karachi which according to him is confined to the "Karachi District" only. It would be beneficial to replicate here the section 7 of the. Ordinance, 1962 as under:-- Section 7: "Subject to this Ordinance or any law for the time being in force, the original jurisdiction of the Court of District Judge in civil suits and proceedings shall be without limit of the value thereof excepting in the Karachi Districts where the original jurisdiction in civil suit and proceedings of the value exceeding fifteen million rupees shall be exercised by the High Court".
11. Bare reading of the above mentioned provision of law it is clear that this section deals with the limit of the pecuniary jurisdiction of the Civil Courts Judges of Districts of original side in suits, which as per law shall be without limit of the value of suits except Karachi Districts where original jurisdiction in Civil Suits and proceedings of the value exceeding fifteen million shall be exercised by this Court.
12. The view with regard to the extent of the Powers of this High Court to exercise original civil jurisdiction in suits and proceedings is fortified from the view taken in the case of Firdous Trading Corporation v. Japan Cotton General Trading Company reported in PLD 1961 Karachi 565 authored by Mr. Justice Wahiduddin Ahmed and maintained by the Hon'ble Supreme Cour t through judgment reported in 1991 SCMR 920. Mr. Justice Wahiduddin in the said judgment held as follows:-- "The history of the establishment of the High Courts in this sub-continent shows that there were only three Courts upon which was conferred ordinary original civil jurisdiction within certain limits under their Letters Patent. No other High Court established under the High Courts Act of 1861 or under the Government of India Act, 1915 or under the Government of India Act, 1935 was invested with powers of ordinary civil jurisdiction. The Chief Court of Sindh was no doubt a High Court within the meaning of section 219 of the Government of India Act, but the jurisdiction which it exercised in the Civil District of Karachi was not that of an ordinary original civil jurisdiction of the High Court but it was only performing the duties of the principal Civil Court of Original Jurisdiction within the District of Karachi under a special statute viz., section 8 of Sindh Courts Act, 1926.
I have not the slightest doubt on the language of section 8 of Sindh Act, 1926 and the definition of 'District in section 2(4) of the Civil Procedure Code, that it was exercising District Court jurisdiction in contradistinction to the ordinary original civil jurisdiction of the High Court. In my opinion the mere fact that the Sindh Chief Court later on was included with the definition of High Court under section 219 of the Government of India Act, did not change the nature of this jurisdiction. I am fortified in this view by another circumstances, Formerly in Sindh there used to be a Court of the Judicial Commissioner . It was exercising jurisdiction in civil matters within the District of Karachi 'under section 2 of Bombay Act No.1 of 1906. It reads as under -- "There shall be for the Province a Court of the Judicial Commissioner of Sindh (hereinafter called the Court of the Judicial Commissioner) which shall be the highest Court of Appeal in civil and criminal matters in the said Province and which shall be the District Court and Court of Session of Karachi."
This position continued till 1937 although in the Government of India Act, Judicial Commissioner's Court in Sindh was deemed as a High Court. But in spite of this in civil matters it continued as District Court. In 1926 the Sindh Courts Act was passed by the Bombay Legislature; which came into force in 1940. But in this enactment, instead of treating the Chief Court of Sindh as District Court, it was designated as the principal Court of original civil jurisdiction. Thus the same position was maintained and it was not enacted that it will have ordinary original civil jurisdiction within the limits of Karachi and also did not change the nature of the jurisdiction in civil matter".
It seems to me that the jurisdiction exercised in such matters is a District Court jurisdiction and since it is exercised by the High Court it may be called as special original civil jurisdiction or extraordin ary original civil jurisdiction, but certainly cannot be described as ordinary civil jurisdiction of the High Court."
13. The further crucial contention of the learned counsel for the Appellant/Defendant No.1 is that sections 16, 17 and 20 of C.P .C. are inapplicable in the present case in view of section 120 of the C.P .C., which says as under :- "120. Provisions not applicable to High Court in original civil jurisdiction.-
(1) The following provisions shall not apply to High Court in the exercise of its original civil jurisdiction, namely sections 16, 17 and 20."
14. While perusing the section 120 of Civil Procedure Code mentioned above it is clear that firstly it makes sections 16, 17 and 20 of Civil Procedure Code inapplicable for the High Court in exercise of its original civil jurisdiction. The reason to make sections 16, 17 and 20 of C.P.C. inapplicable to a High Court is that the jurisdiction of Civil Courts under sections 16, 17 and 20 C.P.C. and the original civil jurisdiction of the High Courts under the then Letters Patent determine separate places where a civil suit and proceedings could be filed. Section 120 of C.P.C. was enacted to settle the conflict of sections 16, 17 and 20 of C.P.C. with the laws that conferred original civil jurisdiction on the High Courts and to obviate any confusion as, regards place of suing. Ordina rily a suit relating to a dispute of immovable property situated in Karachi is to be brought in the Civil Court, which under the provisions of sections 16 and 17 of Civil Procedure Code has jurisdiction to try such suit. However , if the same suit is of a value, which is more than, the value of ordinary Civil Court then by virtue of section 7 of Sindh Civil Courts Ordinance, 1962 the place of suing shifts to the Original Side of this High Court. In order to overcome this, overlapping of jurisdictions, provisions of sections 16 and 17 of C.P.C. were made inapplicable under section 120 of C.P.C. so that these provisions may not come in the way of filing a civil suit or proceedings on the Original Side of this Court. Therefore, while entertaining a suit relating to immovable property emanating in Karachi having a value of more. than pecuniary limit of ordinary civil Courts, the place of suing as determined under sections 16 and 17 of the C.P.C. becomes immaterial and is not to he considered as under section 7 of 'The Sindh Civil Courts Ordinance 1962', as such the Original Side of this High Court becomes the place of suing. Section 120 of C.P.C. can be interpreted only in this manner and not in a manner that any suit of more than the value of ordinary Civil Courts, coming from any part of the territorial jurisdiction of this Court viz. the entire Province of Sindh can be entertained on the Original Side of this Court.
15. In the case of Muhammad Naveed Aslam and others v . Mst.Aisha Siddiqui it was decided 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 irrespective of the fact that it is valued at more than three million rupees the same has to be returned back to the plaintif f for its presentation before a Court of appropriate jurisdiction under Order VII, Rule 10 of the Civil Procedure Code. It is not section 120 of the Civil Procedure Code but section 7 of the Civil Courts Ordinance, 1962 which confers original civil jurisdiction on this High Court and this jurisdiction being a special jurisdiction conferred under section 7 of the Sindh Civil Courts, 1962 Ordinance is limited for the matters that emanate from the territorial limits of the Districts of Karachi. Except for the Districts of Karachi no other territory falls under the original civil jurisdiction of this High Court."
16. The learned counsel for the appellant/defendant No.1 has also submitted an application under Section 5 of the Limitation Act read with section 151, C.P.C. along with present appeal duly supported by the affidavit of appellant requested therein that the delay in filing appeal beyond statutory period of 20 days may be condoned as neither it was deliberate nor intentional but beyond his control as during this period the appellant was sick and under medical treatment. The plea of appellant's sickness for condonation of delay has not been supported by a medical certificate even he did not disclose in his affidavit that he was suffering from such a malady and was bedridden so as to be prevented being in a position to visit his lawyer , hence, plea of his sickness cannot be believed. The appellant was supposed to file this appeal within 20 days of the impugned order dated 14.01.2020, as provided under section 4 of 'The Law Reforms Ordinance, 1972', therefore, in our view the present application is dismissed having no merits and appeal filed by the appellant is time barred.
17. The conclusion of above discussion is that in the instant matter first mining lease land partly falls within the jurisdiction of Karachi and partly Jamshoro and valued more than the pecuniary limit of ordinary Civil Courts of Karachi District, therefore, we are quite clear that the instant suit so filed by the Respondent/Plaintif f before this Court in respect of that mining lease land is quite competent and this Court is having jurisdiction to entertain it
18. In view of the facts and case laws referred to herein above, we are of the view that the impugned order dated 14.01.2020 passed by learned Single Judge of this Court in Suit No. 1801 of 2017 does not suffer from any legal or factual error, hence, does not require any interference by this Court, accordingly , instant High Court Appeal No. 72 of 2020 being devoid of merit as well as on the point of limitation as discussed above was dismissed vide our short order dated 24.08.2021 along with listed applications, and above are the reasons for such short order .