' This judgment will dispose of Civil Revisions Nos. 840 and 661 of 1976,. Since the facts and points of law involved therein are common.
2. The plaint in the suit filed by the petitioner in Civil Revision No, 661 of 1976 and respondent in Civil Revision No, 840 of 1976, was returned by the Civil Judge, Wazirabad, on the 7th April, 1976, for presentation to a Court having territorial jurisdiction. On an appeal filed by the plaintiff this order was set aside by the learned Additional District' Judge, Gujranwala, and the case was remanded to the learned Civil Judge, Wazirabad, to decide it in accordance with law. This order has been challenged by Civil Revision No, 840 of 1976 by the defendant. While disposing of the appeal the learned Additional District Judge refused to pass an order of injunction in favour of the plaintiff. The plaintiff has therefore come up in revision by way of Civil Revision No, 661 of 1976.
3. It is unnecessary to give the facts in detail whether as stated in the plaint or as stated by the learned counsel for the defendant-petitioner. The relevant facts are that Abdul Ghafoor who is said to be a partner of the plaintiff-Firm booked an order of supply of 140 tons of Sulphate Resistant Cement which was supplied to him. He alleged subsequently that the cement supplied by the defendant on this order was not according to the standard. Ultimately, he served a notice of demand of considerable amount of damages incurred by him on account of the supply of defective cement. The Managing Director in view of this notice entered into a settlement and agreed on the 12th July, 1974, to grant a cement agency at Gakhar Mandi to the plaintiff with effect from the Ist December, 1974. For several months the supply of cement to the agency was regular, but it ceased after October, i975, and all efforts of the plaintiff to get the supply restored failed. The plaintiff, therefore, filed a suit for a decree for a specific performance of the agreement dated the 12th July, 1974, and prayed that the defendant be ordered to resume the supply according to this agreement for an indefinite period. Paragraph No, 8 of the plaint which deals with the cause of action reads as follows:- "That the defendant by the agreement was bound to make the supplies of cement to the plaintiff at Gakbar Mandi and as the supplies at Gakhar Mandi have been refused to be made, therefore, this Hon'ble Courts has the jurisdiction to try the suit. As the term 'wrong' refers also to infringement of a legal right and legal right of the plaintiff has been infringed by the defendant, therefore, this learned Court has the jurisdiction to entertain and adjudicate upon the matter."
' The defendant raised objections to the territorial jurisdiction of the Court. The learned Civil Judge came to the conclusion that the delivery of goods was to be made to the plaintiff at Lahore at the buyer's risk and as such no part of the cause of action accrued to the plaintiff at Gakkhar. He further held that even the principal office of the defendant was situated at Lahore. As such he had no territorial jurisdiction. While deciding this matter the learned Court took into consideration the form of contract for supply in addition to the plaint.
5. In appeal the learned Additional District Judge in view of clause (7) of the terms recorded in the form of agreement for supply which is indicative of the fact that a part of the contract was to be performed within the jurisdiction of the Court at Wazirabad, reversed the finding of the Civil Judge on question of jurisdiction. In regard to the application for grant of temporary injunction the learned Additional District Judge held that since the injunction was of a mandatory nature it could not be issued. Moreover, the injunction would cause great inconvenience and hardship to the defendant, but it would not cause any such injury to the plaintiff since the amount of loss was calculable in terms of money.
6. Mian Arshad Mahmood, learned counsel for the defendant, argued Civil Revision No, 840 of 1976, while Ch. Hafeez Ahmad argued Civil Revision No, 661 of 1976. Mian Arshad Mahmood urged that clause (c) of section 20 will not apply to the case of a limited Company unless it is found that the subofce of the Company was situated at a place where the part of cause of action arose. He referred in this connection to explanation to section 20, C. P. C. This argument has the support of a case recently decided by the Sind & Baluchistan High Court in Registered Firm Sheikhan Industries v. West Pakistan Induarial Development Corporation, Karachi (I).
7. I do not agree with this proposition. I bad taken a different view in Civil Revision No, 754 of 1970, "The General Tractors & Machinery Company Limited, Karachi v. Rana Abdul Aziz and 2 others, decided on the 16th April, 1976.
8. Section 20 of the Code of Civil Procedure reads as follows:- "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 carries on business, or personally works for gain provided that in such case either the leave of the Court is given, or the defendants
(1) PLD 1976 Quetta 94 who do not reside, or carry on business, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
' Explanation I.-Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence.
' Explanation 11.-A corporation shall be deemed to carry on business at its sole or principal office in Pakistan or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."
' This section provides for three contingencies. Clause (a) allows the suit to be filed within the local limits of the jurisdictions of the Court in which the defendant or each of the defendants where there are more than one, actually and voluntarily resides, or carries on business, or personally works for gain. Under clause (b) the suit can be filed within the local limits of the jurisdiction of a Court, where any of the defendants, where there are more than one, 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, acquiesce in such institution. The last clause (c) allows the suit to be instituted within the local limits of the jurisdiction of a Court where the cause of action wholly or in part arises. Explanation II has been added only to clarify at which place a corporation can be deemed to carry on business. It provides that it can be deemed to carry it only either at its sole or principal office in Pakistan or at the place of its subordinate office provided in the latter case the cause of action arises at the place where the subordinate office is situated. The explanation does not qualify clause (c). It only provides as to where the Corporation can deemed to carry on its business. Since the carrying on of business is the material fact for determining territorial jurisdiction of the Court in clauses (a and (b) of section 20, the explanation has to be read as pertaining to these 4 clauses only and not to clause (c) which is independent. The mere fact that according to the explanation a Company can be said to carry on business, even at a subordinate office provided the cause of action arises there cannot mean that this is an explanation of clause (c) also.
9. The High Court of Sind & Baluchistan has not considered the case from this point of view and has held that : ' To my mind, therefore, clause (c) and Explanation II have to be read together and given a consistent meaning. So read the law appears to be that if the defendant is a Corporation then it can be sued at the place where its sole or principal office is situate and it can be sued elsewhere only if a part of the cause of action had arisen at that place and the Corporation has also subordinate office at such place."
I am in respectful disagreement with the ratio of this case. In my view if the cause of action arises in whole or in part of any place the Court's jurisdiction B under clause (c) can be invoked against a Corporation irrespective of the fact whether the Corporation has its subordinate office at that place.
10. The second argument of Mian Arshad Mahmood is that no part of cause of action arose at Gakkhar in view of the contract which made it incumbent upon the plaintiff to pay the defendant at Lahore for the cement supplied to him particularly when this payment obliges the defendant only to consign at Gharibwal, District Jhelum the cement to the carrier of the defendant, whether railway or truck. In that case the freight is payable by the plaintiff. He relied upon section 39 of the Sale of Goods Act which is as follows:- "(1) Where, in pursuance of a contract of sale, the seller is auhorised or required to send the goods to the buyer, delivery of goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, or delivery of the goods to a wharfinger for safe custody, is prima facie deemed to be a delivery of the goods to the buyer.
(2) Unless otherwise authorised by the buyer, the seller shall make such contract with the carrier or wharfinger on behalf of the buyer as may be reasonable having regard to the nature of the goods and the other circumstances of the case. If the seller omits so to do, and the goods are lost or demaged in course of transit or whilst in the custody of the wharfinger, the buyer may decline to treat the delivery to the carrier or wharfinger as a delivery to himself, or may hold the seller responsible in damages.
(3) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, in circumstances in which it is usual to insure, the seller shall give such notice to the buyer as may enable him to insure them during their sea transit and if the seller fails so to do, the goods shall be deemed to be at his risk during such sea transit."
' He also relied upon Indo-Pakistan Corporation Ltd. v. Sher Afzal Khan (1) and The Firm Nand Lal Das Mal of Amritsar v. The Firm Mian Muhammad All Bhai (2) for the proposition that when the consignment is to be consigned to the carrier, the cause of action arises only at the place where the consignment is handed over to the carrier of the consignee. The learned counsel for the plaintiff on the other hand argued that this question can be decided only on the basis of the averments in the plaint.
11. It is unnecessary to consider the relevant clause in the form of agreement since no evidence has been produced by the patties. The case should be decided on the basis of averments in the plaint.
The cause of action in the plaint is the grant of agency for Gakkhar and the failure of the defendant to continue the agency. The notion of agency presuppose the supply of goods to that agency whatever the machinery be adopted for such supply. The award of agency at Gakkhar presupposes that the agency will be fed by the defendant at that place. Part of the cause of action, therefore, must be deemed to have arisen at Gakkhar. The finding of the learned Additional District Judge to this effert is, therefore, correct.
12. Ch. Hafeez Ahmad laid much stress upon the right of the plaintiff to the temporary injunction although he conceded that the said agency had been revoked by the defendant and no supply had been made since at leas November, 1975. I agree, in the circumstances, with the learned Additional D District Judge that the injunction prayed for will have to be made in the form of a mandatory injunction, which cannot be issued under Order XXXIX,
(1) PLD 1952 Lah 470 (2) AIR 1922 Lah. 474 rules 1 and 2, C. P. C. I am also in agreement with him that plaintiff will not suffer an irreparable loss and injury since the damages can be assessed m terms of money and the plaintiff can file a suit for such damages.
13. Both the petitions are, therefore, dismissed. I leave the parties to bear their own costs.