' NAIMUDDIN,J.--This appeal under section 12 of the Banking Companies (Recovery of Loans)
Ordinance, 1979 is from the order, dated 19-5-1981, passed by the Special Court (Banking) Karachi, whereby it returned the plaint for presentation to the Court which has jurisdiction in the matter, holding that it had no jurisdiction to entertain the suit, in the following circumstances:-
2. On 29-4-1980, the appellant filed a suit in the Special Court for recovery of Rs. 1,00,785.72 inclusive of interest up to 30-4-1980.
3. On 15-5-1981 the suit was fixed for hearing of the application for leave to appear and defend the suit and the Special Court, itself suo motu raised the question of jurisdiction and consequently passed the impugned order.
4. The reason which weighed with the learned Special Court in holding that the Court had no jurisdiction is pecuniary in nature. The special Court on examination of the certified copy of the statement of account filed alongwith the plaint found from it that it had no pecuniary jurisdiction as the total amount outstanding against the respondents as on 31-3-1980, was only Rs. 99,629.64 and an amount of Rs. 1,146.08 was added therein on account of interest up to 30-4-1980. Since the plaint was presented in the Court on 29-4-1980, the said Court therefore, concluded that the appellant could not claim interest up to 30-4-1980. It further found that under the Promissory Note the interest was to be calculated with quarterly rests and could be added therein after three months unless the account of the respondents was closed. It held that the appellant could not under the agreement, add interest before the expiry of three months after the last interest was calculated on 31-3,-1980. It reasoned that if the appellant was allowed to add interest from 1-4- 1980 to 29-4-1980 to the dues, it would under the decree be entitled to get interest even on the interest of this period which would be against the agreement, whereby the interest is to be calculated with quarterly rests and that would amount to charging interest with 29 days rest and not quarterly rests. It was, therefore, of the opinion that the amount that could be claimed by the appellant as legal dues at the time of presentation of the plaint was less than Rupees one lac, and accordingly, Court had no jurisdiction.
5. Aggrieved by the aforesaid order, as stated hereinbefore, the appellant has filed the present appeal.
6. We have heard Mr. Muhammad Saleem learned counsel for the appellant. The respondents have been called absent.
7. It is submittted by Mr. Muhammad Saleem that the Special Court (Banking) had to determine its jurisdiction on the basis of averments made in the plaint and that no doubt, the statement of account form part of the plaint, but it showed the amount outstanding as Rs.1,00,785.72. He further submitted that the question whether the amourtt_of interest of Rs. 1,146.08 for the month of April, 1980 could be claimed or not was a matter pertaining to defence if raised. It did not arise per se. He also submitted that if the amount of interest for the month of April is excluded from the month of the claim, which would be hardly about Rs. 40 the amount is still within the jurisdiction of the Special Court (Banking) for it had jurisdiction in the matter exceeding Rupees one lac.
8. We may state that it is well settled that in order to determine whether the Court has jurisdiction, the suit as originally framed and instituted has to be looked into and not the evidence led or findings arrived at during the trial. We may here refer to two pre-independence decisions of this Court in Goverdhandas Vishindas v. Mt. Rijhibai and others AIR 1930 Sind 252 and Ahmedshah s/o Fazal Rahim v. Messrs Grindlay & Co. Ltd. A 1 R 1944 Sind 98.
9. In the first named case it was held by Rupchand and Wild, A.J.C's at page 253 of the report as follows:- "0.7, r.10, Civil P.C., only applies when it is found that the suit as originally framed was wrongly instituted in that Court, but it does not apply when it is found at the trial whether as the result of admissions made by the parties or evidence led by them, that the relief which the plaintiff was really entitled to was different from that claimed in the suit and that that relief was not cognizable by the Court. In the latter case the Court cannot decline jurisdiction and order the plaint to be returned for presentation to the proper Court but should proceed with the trial to its finish either after amendment of the pleadings or otherwise and to pass such decree as the circumstances permit."
10. The Goverdhandas Vishindas's case was followed by Tayyebji, J. in Ahmedshah s/o Fazal Rahim v. Messrs Grindlay & Co. Ltd. AIR 1944 Sind 98.
11. Mr. Muhammad Saleem learned counsel for the appellant has also relied on Mir Laiq Ali and others v. Syed Muhammad Jafari PLD 1959 (W.P.) Kar. 704 and Shah Muhammad v. Khushal Muhammad and 3 others 1981 CLC.1191.
12. In the first named case it was held by Inamullah, J. that it is well-settled rule of law that in order to find out whether the Court has jurisdiction or not the allegations in the plaint alone have to be looked into.
13. In the second cited case it was ruled by Khursheed Ahmed, J. at page 1193 of the report, that so far as the question of jurisdiction is concerned it is an established proposition of law that in order to see whether the civil Courts had jurisdiction to try a suit the averments contained in the plaint without adding a single word by way of defence ought to have been taken into consideration.
Reliance was placed on another decision of Lahore High Court in Mst. Zainab and others v. Fazal Dad and others PLD 1966 Lah. 1050, wherein at pages 1052-1053, it was observed by Sardar Muhammad Iqbal, J. (as his Lordship then was), as follows: "The suits were instituted only on the basis of title and there the plaintiffs did not at all allege that the defendants were their tenants looking at the allegations in the plaint there can be no doubt whatsoever that the civil Court had the jurisdiction to try these cases because it is a well- established principle that the nature of a suit for the purpose of determining jurisdiction has to be decided on the basis of the averments in the plaint and not on the basis of any defence that may be taken up. In Cheta v. Baija and others AIR 1927 Lah. 452 it was held that in order to ascertain the nature of a suit the general rule is that the allegations in the plaint must, primarily, be looked to and that these allegations govern the question of jurisdiction. The same view was affirmed in Baru and others v. Naidar and others AIR 1942 Lah.
217. It was also held in Muhammad Yusuf v. Nek Muhammad PLD 1955 Lah. 183 that the jurisdiction of a Court is determined not by the pleas of the defendant but by the allegations in the plaint. As indicated above, the plaintiffs' suits, according to the allegations in the plaint, were only for the recovery of the possession of the land in dispute on the basis of title as owners of the land, the defendants being treated as trespassers. Their suits were against the defendants not as the tenants but as trespassers. Prima facie, therefore, the suits were cognizable by a civil Court."
14. Following the principle laid down in the above-cited case we find that the Special Court has had jurisdiction to entertain the suit on the basis of averments made in the plaint for the question whether the appellant could have claimed interest for 29 days was a question relating to defence and could be gone into at the trial of the suit, if leave was granted, otherwise it could have been considered at the time of passing the decree, and it could not prima facie be said that the amount of interest of Rs.1,146.08 included in the claim was without cause and was mala fide included to bring the suit within the pecuniary jurisdiction of the Special Court.
15. We may here refer to Khem Raj v. Durgi alias Durga Myaya (29) AIR 1942 Rang. 10, which is a Division Bench case of Rangoon High Court, wherein one learned Judge at page 10 of the report observed as follows: "the mere finding of the plaintiff's having put a higher value on the subject-matter of the suit does not per se justify an order for the returning of the plaint, for according to the answer given by the Full Bench such an order will be justified only if it is also found that the valuation is not made bona fide and has been made in order to effect an improper purpose."
' While the other Judge in a separate note ordered as follows: "If the District Court finds that the valuation was made bona fide and not in order to effect an improper purpose, it will then proceed with the suit. If it finds that it was made mala fide and in order to effect an improper purpose, it will return the plaint to be presented to the Court in which the suit should have been instituted."
16. There is no doubt that the appellant has included interest for one day i.e. 30-4-1980, though it had filed a suit on 29-4-1980, which obviously the appellant could not have included. The amount of interest is about Rs.
38. If this amount is excluded from consideration for the purposes of jurisdiction, the suit was well within the pecuniary jurisdiction of the Court.
17. While reaching the conclusion as above, we are not unmindful of the amendments incorporated by Banking Companies (Recovery of Loans) (Amendment) Ordinance No.II of 1983 in the Ordinance of 1979, whereby the Special Courts other than the High Court, have now been vested with jurisdiction to try cases in which the outstanding amount of the loan does not exceed one million rupees. Thus, in any view of the matter, the case is to be tried by the Special Court other than the High Court.
18. We, therefore, allow the appeal and remand the case to the Special Court (Banking) for trial in accordance with law. However, since the respondents have not appeared to defend the appeal and the point on which the order passed was raised by the Court suo motu we leave the appellant to bear its own costs.