This is a suit for recovery of Rs:1,50,581.88 under Order XXXVII, rule 2, C.P.C. The case of the plaintiff, as stated in the plaint, is that the plaintiff is a private limited company and is also involved in the business of import and sale of pesticides. That the defendant was appointed as dealer by the Plaintiff for the sale of pesticides to the farmers of Kahror Pacca, Bahawalpur, Punjab and in furtherance of sale, a total sum of.Rs.2,83.230 pesticides were delivered to the defendant and after sale and return of some of the unusedpesticides, a total sum of Rs.1,71,779.74 was found due against the defendant. The defendant issued a cheque for tile said amount which was dishonoured on 8-1- 1987.
2. The plaintiff has averred in paras. 6 and 7 of the plaint that till 17-12-1987 defendant paid a sum of Rs.40,101.92 against the above said, outstanding and, therefore, the total outstanding amount came to Rs.1,31,470.10. Thereafter, the plaintiff has calculated interest at the rate of 14% per annum on the outstanding amount till filing of this suit and claimed Rs.1,50,581.88. In the above narrated circumstances, the plaintiff has filed the suit for recovery of the amount as stated earlier.
3. Summons were issued to the defendant through District Judge, Bahawalpur, by registered post and cover-in-hand. Summons were also published in daily newspaper Nawa-e-Waqt, Lahore of 16-12-1992. On 16-8-1993 this Court held service of summons on defendant as good. The defendant was declared ex parte and the matter was fixed for final disposal.
4. On 16-8-1993 when this case came up for final disposal, an objection was raised by this Court on the question of jurisdiction. It was observed that under the oral contract, apparently the goods were delivered to the defendant at Multan but according to the learned counsel for the plaintiff, the goods were sent for Karachi. Oil the statement of the learned Counsel for tile plaintiff, it was observed that the payment was to be made at Karachi. But this Court observed that the photo copy of cheque filed alognwith the plaint shows that the defendant was maintaining account at Kahror Pacca (Multan). I have heard Mr. Riaz A. Waheed, Advocate on tile merits of the case as well as on the question of jurisdiction. I have also perused case file. On the last date of hearing, learned counsel has also filed originals of Annexures 'B', 'C' and 'D' which were brought on record. Plaint is on solemn affirmation and duly administered on oath by an authorized agent of the plaintiff company. There is no rebuttal to the same. As such no alternate is left but to accept the contents of tile plaint as true and correct. Now, I will proceed to examine the question of limitation.
5. Mr. Riaz A. Waheed has invited attention of the Court to para. 8 of tile plaint wherein it is stated that the defendant was appointed dealer at Karachi, pesticides were also sent from Karachi to defendant and, therefore, in such circumstances, part if cause of action has arisen at Karachi. He has also relied upon Annexure 'D filed with the plaint which is invoice of the total pesticides sent from Karachi to Bahawalpur, Punjab. There is an endorsement on this Annexure 'D' which bears official stamp of defendant and signature of the recipient of the goods in question. The endorsement appearing on annexure 'D reads as follows:---- "All order received and executed are considered to have been contracted in Karachi and shall be under the Karachi jurisdiction for any dispute. Goods once sold cannot be returned or exchanged. "
Learned Counsel for the plaintiff has vehemently contended that under section 20(c) of the C.P.C., a plaintiff can maintain a suit at any place wherever cause of action has partly accrued. He has relied upon the case of State Life Insurance Corporation v. Rana Muhammad Saleem (1987 SCM R 393). In this case, Supreme Court has held that in a situation where two or more Courts have jurisdiction to try a suit under the Code of Civil Procedure then an agreement between the parties choosing any one Court for filing a suit is not contrary to public policy as laid down in section 28 of the Contract Act nor it is violation of section 9 or 20 of the C.P.C. In another case, Supreme Court of Pakistan while interpreting section 20, C.P.C. Held as follows:---(For reference see Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCM R 494).
".... The plaintiff has three options thereunder to sue: where the defendant or each of the defendants actually resides, carries on business or personally works for gain (clause 'a'), or, in case there are more than one defendants, any of them besides, carries on business or personally works for gain (clause 'b'), or, at the place where the cause of action, wholly or in part, arises (clause 'c'). If the situation in a particular case is not covered by clauses (a) and (b), tile suit can be instituted by virtue of clause (c), at the place where cause of action wholly or in part, arises. Explanation I is not relevant for consideration in the present case... "
6. There are several other suits filed by the plaintiff company against their dealers and agents having officers outside the Province of Sindh. Many of such suits were decreed by this Court. In those cases also, question of' jurisdiction was raised by the defendants and it was held that since cause of action was partly accrued at Karachi and in view of the endorsement on the invoice (Annexure 'D' to the plaint), this Court has jurisdiction. One of such case is the suit filed by the plaintiff against Faridi Zarie Corporation, Sahiwal (Suit No.665 of 1990). In this case, defendant filed an application under Order VII, rule 10, C.P.C. For return of plaint on the ground that the defendant is carrying oil business at Sahiwal, promissory note was also executed at Sahiwal as well as goods were also received at Sahiwal. This plea of defendant was rejected on 20-6-1992 by Mr. Abdul Rahim Kazi, J. Who observed, after following the case of State Life insurance Corporation, that in the present case, both tile Courts at Karachi as well as at Multan could exercise the jurisdiction and by choice, the parties had agreed to have a recourse to Karachi Court. In another case of Malik Muhammad Riaz v. United Distributors (J.M. No.85/93), it was held that this Court has jurisdiction to adjudicate the suit filed by United Distributors as tile head office of the plaintiff firm was situated at Karachi, dealings and dispatch of goods took place at Karachi and that in the invoice it was agreed that Karachi will be the place of litigation. In such circumstances, petition under Order 12(2), C.P.C. Was dismissed. In the case of United Distributors (Pvt.) Limited v. Hameed Islam & Co. (Suit No.779 of 1988), the identical question jurisdiction was involved and an application under Order VII, rule 10, C.P.C. Was dismissed by this Court. It was held in the said case by Mukhtar Ahmed Junejo, J.
(as he then was) as follows:--- "7. On the point of jurisdiction I do not agree with the contention raised on behalf of the defendants.
There is force in the point raised on behalf of the plaintiff that the amount in question was payable to the plaintiff at Karachi and not at a place in District Rahimyar Khan, where the goods were supplied to the defendants. The goods in question were to be sent to the defendants in District Rahimyar Khan from Karachi. Fact that the instrument in question was executed in District Rahimyar Khan, would give jurisdiction to the Civil Court at Rahimyar Khan also. But that would not take away jurisdiction of this Court, because the amount covered by the disputed instrument, was payable in consideration of the goods received by the defendants in District Rahimyar Khan from Karachi. It has been observed in the case of State Life Insurance Corporation of Pakistan (1987 SCM R 393) that there was no absolute exclusion of jurisdiction under section 9 or under section 20 of the Code of Civil Procedure nor there was any violation of the provisions of section 28 of the Contract Act, when two or more Courts have jurisdiction to try a suit and the parties mutually agree to choose or take their dispute to one of them. In the instant case the parties under invoice (copy Annexure "C") agreed that all orders received and executed by the plaintiff shall be considered to have been contracted in Karachi and shall be under Karachi jurisdiction for any dispute. In these circumstances prima facie this Court has jurisdiction in the matter. "
7. The not result of the above discussion is that this Court has jurisdiction to try the above cause as cause of action was partly accrued at Karachi as well as at Kahror Pacca. Both the Courts have jurisdiction but as the defendant has chosen Karachi as the place of jurisdiction for any dispute vide Annexure 'D' to the plaint, as such this Court has complete jurisdiction to try and adjudicate the above cause. The plaintiff has filed original documents and there is no rebuttal from the defendant, as such I decree the plaintiff's suit in the following manner:-----.
(a) decree for Rs.1,31,470.10,
(b) interest at the rate of 14% per annum from the date of suit till realization, and
(c) Costs.