' The plaintiff has filed a suit for recovery of his wages against the defendant. According to the allegations in the plaint, the plaintiff was employed with the defendant as a Chief Engineer on terms and conditions mentioned in his letter of appointment. He signed the article and resumed his duty on m.v. Banglar Asha on 10-44983 and remained there on board the vessel till 20-4-1983.
When the ship was in Bremen (West Germany), the plaintiff fell ill and went on leave. On 8-14984 the plaintiff sent a telex to the defendant that he could join duty after 21-1-1984 and after failing to receive a reply from the defendant sent another telex on 1-2-1984 seeking further instructions. The defendant sent a telex to the plaintiff through Pakistan National Shipping Corporation, its local agent in Pakistan, dated 2-2-1984 terminating the plaintiff's services, and hence the suit.
2. It is pertinent to point out that the defendant raised a preliminary issue, viz., whether this Court has jurisdiction to entertain the suit and an order for recording of evidence on the said issue was passed. Thereafter, the parties have led evidence on the preliminary issue.
3. It is not denied that the defendant has been carrying on business in Pakistan through National Shipping Corporation as its shipping agent. In fact the said Corporation had originally been impleaded in the suit as the defendant No,2 but its name was subsequently struck off from the plaint vide order of this Court dated 9-3-1986 as no relief had been sought against the said corporation. It is, however, pertinent to point out that Pakistan National Shipping Corporation is not the defendant's exclusive agent. A copy of the general agency agreement dated the 10th August, 1976 which has been filed as Exh.7/1 shows that the said Corporation was to provide for all customary and necessary services required for the husbanding of the owner's vessels at the port of Karachi in Pakistan and the agents were further authorised to appoint stevedors and other contractors with the approval of the owner and the said Corporation was further made responsible for safeguarding the owner's interest in all respect including attending to Custom House work, port health, immigration and other jobs connected with the liaison with the port and other authorities.
The agent was also to make best efforts for soliciting and securing cargo and to protect the owner's interest at all time. The said Corporation was also made responsible with regard to the import, export and transhipment of all cargoes in accordance with the custom of the port and recognized maritime practice. The Corporation was also made responsible for attending to all claims within their jurisdiction in respect of all the vessels of the owners, etc.
4. Mr. Shaiq Usmani, learned counsel for the defendant has argued that neither does the defendant carry on its business in Karachi nor the contract between the parties was entered into or executed in Karachi, consequently, this Court has no jurisdiction to try the present suit. No doubt, the defendant was also carrying on business in Pakistan through its agent Pakistan National Shipping Corporation but, according to the learned counsel, the Corporation is not the defendant's exclusive agent. Mr. Mohammad Ashraf Bhatti, learned counsel for the plaintiff, on the other hand, has contended that according to the averments made in the plaint the defendant was carrying on business through its local agent in Pakistan within the jurisdiction of this Court and the cause of action also accrued to the plaintiff within Karachi as the telegram terminating the plaintiff's services was received by him at Karachi, therefore, this Court has jurisdiction to try the present suit.
5. At the very outset it may be pointed out that Section 20 of the Code of Civil Procedure provides that: "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
(c) the cause of action, wholly or in part, arises."
' However, reference is necessary to Section 120, C.P.C. As it provides that:- "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."
It would thus be seen that the restrictions placed by the Code in respect of the jurisdiction of the Courts are not applicable to the High Court in the exercise of its original civil jurisdiction. In West Pakistan Industrial Development Corporation v. Messrs. Fateh Textile Mills Ltd. (PLD 1964 (W.P) Kar.
11) a learned Judge of this Court while referring to section 120 of the Civil Procedure Code observed: "12. Sections 16. 17 and 20 and clause 12 of the Letters Patent prescribe 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, 1955 and also section 8 of Sindh 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 Sindh Act of 1926. It is my view that the jurisdiction of the High Court has been enlarged rather than restricted by removing altogether the restrictions 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 Sindh) altogether, since the High Court got that jurisdiction as a place of suing through these sections. Two alternative conclusions can arise from the non-applicability of sections 16,17 and 20, C.P.C. To the High Courts. Firstly that the West Pakistan High Court could not entertain any suit, whatsoever and secondly, it could entertain suits from all places within its jurisdiction. It is true that all the District Courts except Karachi District Court have no limit prescribed 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 sections 16, 17 and 20, C.P.C. Having been removed the original jurisdiction of the High Court is enlarged and it has jurisdiction to entertain the present suit."
' The above case was once again relied upon by another learned Single Judge of this Court in the case of Dr. Muhammad Shabbir Khan v. Messrs Abu Dhabi Petroleum Co. Ltd., Karachi (PLD 1975 Kar. 138) and it was held that in the absence of statutory provisions regarding the place and forum of suing applicable to the High Court, the general principle of law was applicable according to which the plaintiff has no right to sue a defendant in a personal action except when he resides or carries on business within the jurisdiction of the Court.
6 . It may be pointed out that from the dictum laid down in the cases just referred to by me in this judgment it clearly follows that although the provisions of sections 16, 17 and 20, C.P.C. Are not applicable to this Court but since only the restrictions imposed by such sections are removed in respect of the High Court and general principles of law otherwise applicable would still govern the question of jurisdiction, this Court would exercise jurisdiction not only in cases where the defendant resides or carries on business within the local limits of the jurisdiction of the High Court but even in cases where the cause of action has accrued within such territorial limits. Merely because section 120 excludes the provisions of section 16, 17 or 20 of the Code of Civil Procedure from application to the High Court would not mean that the general principles governing section 20 of the C.P. Code would cease to apply in cases before the High Court. Mr. Shaiq Usmani, has placed reliance upon the case of Sirdar Gurdyal Singh v. The Rajah of Faridkote 21 (1894) I.A. 171 wherein a somewhat similar question came up for determination before the Privy Council. In this case the respondent, the Rajah of Faridkote, obtained in the Civil Court of that native State, two ex parte judgments in two suits instituted by him against the appellant for different sums of money. Two actions, founded on these judgments were brought by the Rajah against the appellant in the Court of Assistant Commissioner of Lahore which were dismissed by that Court on the ground that the judgments were pronounced by the Faridkote Court without jurisdiction as against the appellant, Faridkote was a native State, the Rajah of which has been recognized by Her Majesty the Queen of England as having an independent civil, criminal and fiscal jurisdiction. The judgments of its Courts were regarded by Her Magesty's Courts of British India as foreign judgments. The Privy Council in the appeal filed by Sirdar Gurdyal Singh observed as follows:-- "Under these circumstances there was, in their Lordships' opinion, nothing to take this case out of the general rule, that the Plaintiff must sue in the Court to which the Defendant is subject at the time of suit (`Actor sequitur forum rei') which is rightly stated by Sir Rober Phillimore (International Law, vol.5, S. 891) to lie at the root of all international, and of most domestic, jurisprudence on this matter.' All jurisdiction is properly territorial, and 'extra territorium just dicenti, impune non paretur'
Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory, and it may be exercised over movables within the territory; and, in questions of status or succession governed by domicile, it may exist as to persons domiciled, or who when living were domiciled, within the territory. As between different provinces under one sovereignty (e.g., under the Roman Empire) the legislation of the sovereign may distribute and regulate jurisdiction; but no territorial legislation can give jurisdiction which may foreign Court ought to recognise against foreigners, who owe no allegiance or obedience to the power which so legislates."
' Although there can be no cavil with the view expressed by the Privy Council but the facts of the present case are clearly distinguishable. In the present case, admittedly, the telegram dated 2-2- 1984 upon which the cause of action in the present suit is based was received by the plaintiff at Karachi. Therefore, clearly the Court exercising jurisdiction over the local limits of Karachi would have jurisdiction in the matter. Apart from this Mr. Mohammad Ashraf Bhatti has argued that even otherwise, admittedly, the defendant was carrying on business in Karachi through its agent M/s. Pakistan National Shipping Corporation. Reliance in this regard has been placed upon the agency agreement (Ex.7/1). It is a matter of record that written statement in the matter has been filed by the defendant through Pakistan Shipping Corporation. The suit has also been defended by it both as agent of the defendant and even security in the sum of Rs,1,83,777 in pursuance of the orders of this Court passed in this suit was furnished by the said Corporation on behalf of the defendant.
Although there is no controversy I regard to the fact that the said Corporation was the defendant's agent in Pakistan and the defendant was doing business in Pakistan through the said Corporation but Mr. Shaiq Usmani further contends that the defendant was not the exclusive agent of the defendant in Pakistan. He has placed reliance upon the observation made by the High Court of Bombay in AIR 1952 Born.
361. It was observed in this case by the Bombay High Court that: "The test of carrying on business is that the man who carries on business must be in a position to contract debts in relation to that business so a to make himself personally liable, liable in such a way that he can b personally sued on those debts which he has contracted. It may be that, in certain cases the defendant may not personally contract the debts because he may not be personally and physically carrying on the business within jurisdiction. He may carry on the business through an agent; but even so, the agent through whom he carries on the business must be such an agent as to be in a position to contract debts on behalf of the petitioner which would make the petitioner personally liable for those doubts. If business is carried on through an agent, the agent must be a special agent who attends exclusively to the business of the petitioner and carries it on in name of the petitioner and not a general agent who does business for anyone that pays him."
It may be pointed out that Pakistan National Shipping Corporation cannot be equated with the type of agent referred to in the above judgment. There is no controversy in the present case as to the fact that the defendant was carrying on business in Pakistan through Pakistan National Shipping Corporation who acted as its sole agents in this country. There is also no controversy on the point that after receiving letter of appointment the plaintiff signed the article of agreement at Karachi. Thereafter, the telegram upon which the cause of action is based was received by the plaintiff at Karachi. Consequently, I am unable to agree with Mr shaiq Usmani that this Court has no jurisdiction to try the present suit. The reasons for which have already been enumerated in this judgment. In the result, he preliminary issue of jurisdiction is decided in favour of the plaintiff and it is that this Court has jurisdiction to try the suit.