' FAZAL ELAHI KHAN, C.J.--This First Appeal assails the order dated 16th December, 1990 passed by the learned Civil Judge 1st Class, Peshawar wereby the plaintiff/appellant's plaint was returned under Order VII, Rule 10, C.P.C. Alongwith documents for presentation to the proper forum.
2. The appellant sued the defendants/respondents for damages to the tune of Rs.14,22,500 in toto by way of liquidated damages and compensation. The allegations in the plaint are that due to failure of his kidney the appellant approached the Armed Forces Institute of Pathology, Rawalpindi Cantt. For his tests and that of his sister for kidney transplant wherein it was testified that the latter could donate to the appellant for transplant. In pursuance of the said report, it is further alleged, the appellant alongwith his sister proceeded to London for surgery and transplant and got admission in the Hospital. The Hospital at London, it is averred, repeated the tests which revealed that the results given by the Armed Forces Institute of Pathology, Rawalpindi Cantt. Were absolutely incorrect and even the blood group was not correctly identified. In consequence the appellant and his sister had to return home and thereafter had to go again for kidney transplant. In this exercise, it is claimed, the appellant sustained loss of Rs.14,22,500 and, therefore, he sued the defendants/respondents for the recovery of the amount aforesaid by way of liquidated damages, expenditure, costs and compensation for mental, physical and psychological torture suffered by him and his sister.
3. It appears that perhaps suo motu the learned trial Judge held that he has no jurisdiction to entertain the suit and passed the impugned order.
4. Mr.Riaz ihmad Khan, learned counsel for the appellant, relied upon Haveli Shah and another v.
Khan Saheb Shaikh Painda Khan AIR 1926 Privy Council 88 to contend that the plaintiff/appellant had a choice to sue the respondents in the Court within the territorial jurisdiction whereof his place of residence fell.
5. We are inclined to concede that section 20 of the Code of Civil Procedure, 1908 is not attracted to the case of the appellant but it is section 19 which would determine the territorial jurisdiction of the Court. Since the interpretation of section 19, C.P.C. Is involved in this case, it is reproduced verbatim hereunder:- "19. Suits for compensation of wrongs to person or movables.--Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts."
' Illustration.--(a) A, residing in (Karachi), beats B in Quetta. B may sue A either in Quetta or in Karachi. (b) A residing in (Karachi) publishes in Quetta statements defamatory of B, B may sue A either in Quetta, or in Karachi.
6. A bare reading of section 19 ibid would show that undoubtedly the plaintiff/appellant has a choice to sue the defendants/respondents but this choice is circumscribed by two conditions: firstly, the place where the cause of action has accrued and: secondly, the place where defendant resides or is carrying on business or personally works for gain. In arriving at this conclusion, we are further fortified by the illustrations given under section 19 ibid. It is the case of the appellant that his tests were carried out at the Armed Forces Institute of Pathology, G.T. Road, Rawalpindi Cantt. The addresses of all the three defendants are also of Rawalpindi Cantt. Consequently, the appellant could not legally sue the defendants at Peshawar because neither the cause of action had arisen at Peshawar nor the defendants reside, carry on business or personally work for gain within the local limits of the jurisdiction of the Civil Judge Ist Class, Peshawar. A close look into section 19 would reveal that in a suit for compensation for Wrong done to the plaintiff or to his movable property his residence is not determinative of the territorial jurisdiction within the meaning of section 19, C.P.C. Conversely, the choice available to the person suing the defendant for compensation within the purview of section 19 is restricted to the place where the wrong was done or the Court within whose jurisdiction the defendant resides, or carries on business or personally works for gain. Even in the case of Haveli Shah cited above by the learned counsel, when the wrong was committed in Persia, the Consular Court for the district of Sistan was held to have got the territorial jurisdiction on it and the Court at Quetta was held to have got no territorial jurisdiction where the appellant had resided at the relevant time. In P.M. Govindan Nair v. M. Atchutha Menon AIR 1915 Madras 1206 it was held as under:- "The wrongs contemplated may therefore be referred to as 'personal torts'. Section 19 however assumes that the tort is committed within British India, in such a case, if (a) the tort is committed within the local limits of the jurisdiction of one Court and (b) the defendant resides or carries on business or personally works for gain within the local limits of another Court, then both Courts have jurisdiction. Section 19 is not directly applicable, as the tort here was not committed within the local limits of any Court in British India. But it indicates that the fact that the defendant resides in British India is sufficient to give the Court, within whose local limits he resides, jurisdiction over suits in tort of the nature referred to, thciugh the tort may have been committed outside the local limits of the jurisdiction of the Court in which the suit is brought. This indication is strengthened by section 20 (a), which fixes the residence of the defendant as one of the determining factors for the choice of the Court in a suit on a personal tort, and this ground is independent of the place where the cause of action arises.'"
6-A. We are of the opinion that the Court below was right in coming to the conclusion that it had no jurisdiction to try the suit. This appeal is accordingly dismissed in limine.