ORDERSYED ABDUL REHMAN, J.- This is an application under Order 7 Rule 10 C.P.C, praying for an order to return the plaint in the suit for presentation before the Court of competent jurisdiction in Sanghar District.
2. The plaintiff claims to be the owner of a piece of abandoned water course measuring 1.4 acress in the Muhag of Survey Nos.39/B and 40/A of deh Barani Taluka Tando Adam which Was granted to him by Barrage Mukhtiar kar and necessary qabuliat and other documents were executed in his favour. The possession of the land was also handed over to him. The plaintiff alleges that on 25.3.1987 the Health Department of Government of Sind has trespassed over that piece of land and has constructed upon it a Rural Health Centre under the Prime Minister's 5 points programe. The plaintiff filed a writ petition (C.P.No.306/87) before this Court but had to withdraw the same as it was contended that the land on which the Rural Health Centre, was constructed was a piece of land other than the piece of land which is granted to the plaintiff. However, the plaintiff after ascertaining that it was his piece of land on which construction was made has filed this suit for declaration that the Rural Health Centre was constructed on the piece of land owned by him and that the same could not be done without acquiring the piece of land and without paying the compensation to the plaintiff. A prayer is also made for mesne profits.
3. The suit was fixed for final disposal as the AA.G. Did not file any written statement. Affidavit was filed by the plaintiff as evidence in ex-parte proof.
4. On 28.3.1988 my learned brother Mr. Justice Nasir Aslam Zahid not being satisfied with the affidavit alone called upon the plaintiff to lead oral evidence. Perhaps this has been necessitiated by the fact that the stand of the Government in the writ pettition was that the Rural Health Centre was situated on a piece of land other than the piece of land which has been granted to the plaintiff as alleged in the plaint. The State Counsel however, insisted on the disposal of this application first.
5. In support of this application the learned AA.G. Has filed an affidavit of Hakim working in the Health Department that the suit ought to have been filed at Sangher because the land is situated there and the cause of action has also accrued to the plaintiff in that district.
6. Mr.Muhammad A.I Shaikh submitted that Order 7 Rule 10 and Sections 16-17 and 20 of CPC do not apply to the High Court in exercise of its original Civil Jurisdiction. The High Court of Sind can entertain in exercise of original jurisdiction a suit value whereof exceeded Rs. On lac when the defendant resides at Karachi notwithstanding the restrictions contained under Sections, 16-17 and 20 CPC when the cause of action or a part of cause of action has accrued at Karachi irresspective of the fact whether the land is situated in Karachi or not. He has relied upon the case of N/s. Apricides fpvtl Limited Vs. A.I Aero Supply Corporation Limited reported in 1988 CLC 59 in which in somewhat similar circumstances it is held that this Court had jurisdiction to entertain the suit.
7. The position of Sind High Court is unique in this respect in the Sub-continent and therefore it will be necessary if the brief history of the civil jurisdiction of this Court is traced out. Formerly in Sind there used to be a Court of Judicial Commissioner. It was exercising civil jurisdiction within the District of Karachi which was conferred upon it by section 2 of Bombay Act 1 of 1906, which reads as under:-"There shall be for the province a Court of the judicial commissioner of Sind (hereinafter called the Court of the judicial commissioner) which shall be the highest Court of appeal in civil appeals and crimnal maters in the said province and which shall be the District and Sessions Court of Karachi."
In 1926 the Sind Courts Act was passed by Bombay legislature, as Sind was a part of Bombay till 1937. This Act came into force on 15.4.1940. Section 3 of this Act provided for establishment of a Chief Court for Sind on and from the commencement of the said Act. Section 8 of this Act gave the original civil jurisdiction to the Chief Court. It reads as follows:- 'The Chief Court shall be highest civil Court of appeal and revision and the highest Court of ciriminal appeal and revision for Sind and the principal civil Court of original jurisdiction for the civil District of Karachi shall be the Court of Sessions and shall exercise the powers and perform the duties of a Sessions Judge in the sessions revision of Karachi."
In the case of Firdous Trading Corporation reported in PLD 1961 Karachi 565 Wahiduddin. J (as he then was) considered the special position of this Court and held that it was exercising the powers of principal civil Court of original jurisdiction in Karachi, which is a special jurisdiction and was not exercising ordinary original civil jurisdiction of a chartered High Court.
8. This original civil jurisdiction was continued by Section 5 of High Court of West Pakistan (establishment) Order No. XIX of 1055 which reads as under:- "Original civil and criminal jurisdiction of the Bench at Karachi-Notwithstanding anything in this Order or in any other law for the time being in force, the Bench of the High Court at Karachi shall have the same original Civil jurisdiction for the civil district of Karachi and the same criminal jurisdiction and powers of the Court of Sessions for the Sessions Division of Karachi, as were exercisable immediately before the commencement of this Order, by the Chief Court of Sind under section of the Sind Courts Act, 1,926 (Sind Act VII of 1926): Provided that the Governor-General may by notification in the official Gazzette direct that as from a specified date such jurisdiction and power as are mentioned therein shall cease to be exercisable by that Bench shall cease to exercise that jurisdiction and powers." and by sub-section
(2) of Section 4 of karachi Court Order 1956 which provides as under: -
(2) "Unless the central Government by order under the proviso to sub-section 2 of section 22 of Sind Courts Act 1926 (Bombay Act VII of 1926) otherwise directs the Court of District Judge shall not have jurisdiction in original civil suits and proceedings wherein the subject matter exceeds twenty five thousands rupees in amount of value."
This original civil jurisdiction continued to be exercised by Karachi Bench of the West Pakistan High Court and subsequently by this Court which was its successor so far as the province of Sind was concerned. Section 120 C.P.C, reads 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."
9. The plain reading of this section would show that the section does not in any way restrict the original civil jurisdiction of a High Court but it on the contrary enlarges the same. This section on the other hand removes the restrictions imposed under Sections 16,17, and 20 C.P.C, on the jurisdiction of the High Court.
10. In short, original civil jurisdiction was initially granted to this Court when it was established as judicial commissioner's court and then as Chief Court, by section 8 of Sind Courts Act 1926 (Sind Act VII of 1926) and was continued by section 5 of High Court of West Pakistan Establishment Order 1955 and subsequent legislation in this behalf with respect to suits exceeding a particular limit in value (presently Rs.100,000/-) It also finds its origin in the general principles of common Law, equity and good conscience granting original civil jurisdiction to the High Court referred to in ILR 24 Bombay 407 which reads thus:- "The general principle as clearly stated by Lord Conttenham in Ex-parte (1840 Mont, and Chit., 239) where he says (PP.250); "If indeed the law of the country where the land is situated should not permit or not enable the defendants to do what the Court might otherwise think it right to decree, it would be useless & unjust to direct him to do the act; but when there is no such ipediment the Courts of this country, in the exercise of their jurisdiction over contracts made here, or in administering equities between parties residing here, act upon there own rules, and are not influenced by any consideration of what the effect of such contracts might be in the country where the lands are situate, or of the manner in which the Courts of such countries might deal with such equities." Then again it is laid down by Lord Sellborne in Ewing v. Orr Ewing (1883) 9 A C 34 at p.40: "The Courts of equities in England, are and always have been Courts of conscience, operating in personam and not in rem; and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of contracts and trusts as to subjects which were not either locally or ratione domicilii within their jurisdiction. They have done so, as to land in Scotland, in Ireland in Colonies, in foreign countries."
Reference may also be made to (PLD 1964 W.P.) Karachi 11, W.P.I.D.C.V. Fateh Textile Mills Ltd. This rulling was in suit for possession of Talpur Textile Mills which was situated at Tando Muhammad Khan in District Hyderabad out-side the ordinary civil jurisdiction of civil courts of District Karachi.
Section 16 CPC provided for filing of such suit at the place where such immovable property was situated. Abur Rahim Kharil, J. After taking into consideration the various statute governing the jurisdiction of this Court came to the conclusion that the provisions of Section 120 of CPC were enacted for enlarging the jurisdiction of this Court rather than restricting the same. It will be useful to reproduce the following passage from the said judgment:- "12. Sections 16,17 and 20 and clause l2 of the letters patent prescribed the forum and the place for suing. But these Sections do not apply to High Court. Section 5 of the High Court of West Pakistan Establishment Order, 1959 and also Section 8 of Sind Act VII of 1926 do not prescribe the place of suing. Section 5, only saves the jurisdiction of Karachi Bench as exercised by it under Section 8 of Sind Act of 1926. It is my view that the jurisdiction of the High Court has been enlarged rather than restricted by removing altogether the rstrictions contained in Sections 16, 17 and 20. The Legislature could never have intended to take away the jurisdiction of the West Pakistan High Court (Chief Court of Sind) al-together since the High Court got that jurisdiction as the place of suing through these Sections. Two alternative conclusions can arise from the non- applicability of sections 16, 17 and 20 CPC to the HighCourts. Firstly, that the West Pakistan High Court could not entertain any suit, whatsoever, and secondly, could entertain suits from all places within its jurisdiction is true that all the District Courts except Karachi District Court have no limit prescribe to their pecuniary jurisdiction. The present suit could, therefore, be filed at Hyderabad. The question for decision, however, before me is whether it could not be instituted in the High Court at Karachi. The restrictions prescribed by Section 16, 17 and 20, CPC having been removed the Original Jurisdiction of the High Court is enlarged and it has jurisdiction to entertain the present suit".
11. Under these circumstances I do not think it proper to return the plaint to proper Court. Hence I dismiss C.M.A. No.4435/1987 and direct that the suit be fixed for final disposal by the office on a date in office as already ordered. The defendant is however at liberty to press this point at the time of final disposal.