' Muhammad Askar Khan, petitioner, has challenged by this Civil Revision the findings of the learned District Judge, Mardan dated 7-10-1992 in affirmance of the findings of the learned Senior Civil Judge, Mardan dated 26-2-1992, on the issue about lack of territorial jurisdiction of the Courts at Mardan.
2. The plaintiff-petitioner filed a suit against Agha Ejaz Hussain, defendant-respondent for recovery of Rs,50,000 as damages for the alleged breach of contract, before the Senior Civil Judge, Mardan on 6-1-1991. This suit was filed on the allegations that the plaintiff by virtue of an agreement dated 8-4-1990 sold to the defendant a plot situate in, Hayat Abad, Peshawar for a sum of Rs,3,40,000. A sum of Rs,2,00,000 was paid in advance to the plaintiff in cash at the time of execution of sale agreement at Mardan. One of the stipulations agreed upon between the parties was that if the defendant failed to pay the balance of sale consideration by 10-5-1990, then, in that case, he would be liable to pay damage amounting to Rs,50,000. As the defendant had failed to pay the balance of the sale consideration by the stipulated date, the plaintiff had, therefore, claimed a decree for recovery of a sum of Rs,50,000 by way of damages.
3. The defendant-petitioner has controverted the allegations in his written statement on factual plan. He had also resisted the suit on the pleas that the plaintiff had no cause of action and further that he was estopped to bring this suit against the defendant. He did not, however, take up the objection of territorial jurisdiction in his written statement. Nonetheless, he moved an application on 26-11-1991 wherein he had challenged the territorial jurisdiction of the Civil Courts at Mardan.
This application was obviously resisted by the plaintiff both on legal as well as on factual grounds.
It was specifically pleaded in his application filed on behalf of the plaintiff that the defendant having omitted to take up the objection of territorial jurisdiction of the Courts at Mardan was debarred to raise it at the later stage.
4. The learned Senior Civil Judge, Mardan, came to the conclusion that the defendant was actually residing within the local limits of District Peshawar; that the plot regarding which the agreement was executed was situated in the territorial jurisdiction of Civil Courts at Peshawar and consequently the cause of action had arisen at Peshawar and thus he ordered the return of the plaint to the plaintiff for presentation to the Court having jurisdiction to entertain the suit.
5. Feeling aggrieved, the plaintiff tiled an appeal which too was dismissed on 7-10-1992 by the learned District Judge, Mardan.
6. Both the learned counsel appearing on behalf of the parties to this controversy had frankly conceded, and rightly so, that in a suit for damages on the basis of failure of the vendee to pay to the vendor the entire sale consideration within the stipulated period was covered by section 20(c).
7. In order to determine as to whether in the circumstances of this case the provision of section 20(c) would be attracted to ascertain the territorial jurisdiction of the Courts at Mardan, a survey of the relevant provision of the Code of Civil Procedure (V of 1908) would be appropriate.
8. Sections 16, 19 and 20 of the Code of Civil Procedure (V of 1908) regulate the territorial jurisdiction of Civil Courts. Sections 16 and 17 specify Courts in which "suits relating to immovable property and for recovery of movable property actually under distrait or attachment are to be instituted. Section 18 indicates the Courts in which suits for compensation for wrong done to the person or movable property are to be instituted, whilst section 20 is a residuary section.
9. Section 16 confers jurisdiction on a Civil Court to such immovable' property as is situate within the local limit of its territorial jurisdiction. Clauses (e) and (f) also provide for suits relating to movable property. In the instant case section 16 is not applicable, for, the suit instituted by the petitioner against the respondent is not for one or more of the reliefs specified in clauses (a) and
(e) of section 16. It is also not a suit for the determination of any other right to or any interest in the immovable property as envisaged by clause (d) of section 16, inasmuch as the relief claimed by a vendee is for damages on account of failure of the vendor to make payment to the former of the balance of sale consideration and is thus not "any other right to or any interest in the plot in dispute" for, the plot had not only been duly transferred by the former to the latter but possession had also been delivered to the latter. It is also not "a suit to obtain relief respecting, or compensation for wrong to immovable property situate within the territorial jurisdiction of different Courts", as visualized in section 17. Again section 18 can be invoked only where it is uncertain that within the local limits of the jurisdiction of which Court "the immovable property is situate". Lastly, section 19 is applicable only to suits for compensation for "wrong to the person or to movable property". Legally speaking the breach of contractual liability to pay balance of sale consideration is not wrong to person or movable property". And conceding for a while that breach of liability to pay balance of sale consideration is a wrong done to the vendor even then the breach of liability would be deemed to have occurred in Mardan, for, the agreement was executed at Mardan, and the entire amount- of sale consideration was paid at Mardan. In that case too, the suit may be instituted at the option of the plaintiff. Having considered all the provisions of sections 16 to 19, I am of the view and to which both the learned counsel for the parties subscribe that the provisions of section 20(c) would be attracted to the suit which has given rise to the instant civil revision.
10. Before referring to the arguments of the learned counsel who appeared before me reference may be made to the agreement dated 8-4-1990 which furnished a cause of action to the plaintiff- petitioner. It is not denied that the agreement of sale was scribed and executed between the parties at Mardan. The entire sale consideration for the plot amounting to Rs,3,40,000 out of which a sum of Rs,2,00,000 (two lacs) was paid to the plaintiff in cash at Mardan. It is also not denied and which is borne out from the recital at the back of the agreement that the balance of the sale consideration for the plot amounting to Rs,1,40,000 was paid by the defendant through United Bank Ltd., Cantt. Branch, Mardan, by virtue of a Bank Draft.
11. Mr. Mazullah Khan Barkandi, learned counsel for the petitioner, argued that the agreement to sell was executed at Mardan, part of the sale consideration was also paid in cash at Mardan and further that the balance of sale consideration was also paid to the plaintiff-petitioner through a Bank Draft at Mardan and that, therefore, under section 20(c) of the C.P.C. The suit had been rightly instituted at the option of the plaintiff at Mardan.
12. As against this, Mr. Muhammad Asif, learned counsel for the respondent contends that the case of action had arisen at Peshawar because the transfer of the plot in dispute took place at Peshawar. According to him the property in dispute is also situated at Peshawar, therefore, under section 20(c) of the C.P.C. The suit should have been instituted in a Court within local limits of whose jurisdiction the cause of action wholly or in part had arisen.
13. The contention of the learned counsel for the petitioner has substance. It is an admitted fact that the cause of action had arisen, in part at least,-if not wholly, at Mardan. It is also a fact that not only the agreement in dispute was scribed and executed at Mardan but also a sum of Rs,2,00,000 was paid to the petitioner at Mardan in advance. Again the balance of the sale consideration was also received by the defendant through United Bank Ltd. Cantt. Branch, Mardan. The breach of contract, if at all it is proved, prima facie took place at Mardan. In a precedent case of 'Messrs S.M.
Qasim & Co. v. Messrs Sheikh Azimuddin' PLD 1962 (W.P.) Lahore 95 a contract was executed at Karachi by Messrs Sheikh Azimuddin, a Building Contractor and Messrs S.M. Qasim & Co. a Consulting Engineer and Architect whereby Messrs Sheikh Azimuddin agreed to engage Messrs S.M.
Qasim & Co. a Consulting Engineer for all building construction works. Pursuant to the agreement, Messrs Sheikh Azimuddin started construction work at Rawalpindi. On a breach of the term of the agreement by Messrs S.M. Qasim & Co. At Rawalpindi the contract was rescinded by Messrs Sheikh Azimuddin through a notice addressed to Messrs S.M. Qasim & Co. Who had gone back to Karachi.
And Messrs Sheikh Azimuddin instituted a suit against the Consulting Engineer for cancellation of the agreement and rendition of accounts at Rawalpindi. On the question whether the Court at Rawalpindi had jurisdiction to try the suit, Late A.R. Change; J. As his Lordship then was, held that as the cause of action did arise in part at least if not wholly, at Rawalpindi the Court at Rawalpindi in view of clause (c) of section 20, C.P.C. Had jurisdiction to try the suit. In a recent judgment in the case of 'Muhammad Yasin and 2 others v. Chaudhery Abdul Aziz' PLD 1993 SC 395 their Lordships interpreted the provision of section 20(c) in the following paragraph: "Suit for recovery of amount can be instituted in a Court within the local limits of whose jurisdiction the cause of action wholly or in part arose....Plaintiff who was resident of Quetta and had his business at Quetta reached an agreement with the defendants who were residents of Faisalabad for the supply of coal... Coal was to be despatched through the Goods Company at Quetta to Faisalabad and after receiving the same payment had to be made.... Part of cause of action having accrued at Quetta suit for recovery of amount could be instituted at Quetta."
14. Having regard to the facts of this case, and the ratio deducible from the two precedent cases cited above, I am of the view that as the sale agreement has been scribed and executed at Mardan, the entire sale consideration in two instalments has also been paid at Mardan, therefore, the payment of money pursuant to a contract is also a part of the cause of action. If the place of payment is not indicated, it is to be ascertained with reference to - the intention of the parties or the rule that 'the debtor must seek the creditor' will apply and, therefore the cause of action in this case would be deemed to have accrued to the plaintiff at Mardan.
15. For the reasons stated above I am clearly of the opinion that the Civil Courts at Mardan had the jurisdiction in this case and having refused to assume jurisdiction they have committed illegality which calls for interference under section 115, C.P.C. I accordingly accept this petition with costs and quash the orders of the two Courts below and direct that the learned trial Judge should proceed with the case and decide it in accordance with law.