' Let it be considered as admitted case.
5.
2. Brief facts of the instant Civil Revision are that a suit for recovery of Rs,15 million as damages was filed by the respondent on 25-9-1996. This suit was contested by the petitioner/defendant through filing written statement on 7-4-1997. On 30-4-1997 on the pleadings of parties issues were formulated, out of these issues, issue No,1 is as follows:- "Whether this Court has got no jurisdiction to entertain the instant suit? O.P.D.
' The case is fixed for, evidence on 19-11-1998, the petitioner filed an application objecting the jurisdiction of the Court under Order 7, Rule 10, C.P.C. For the return of plaint to the Court at Karachi as envisaged in clause 19 of the American Express Card Member Agreement. This application was contested by the adverse party. Learned Civil Judge vide order, dated 5-1-1999 dismissed the application under Order 7, Rule 10, C.P.C. On the ground that the petitioner/defendant has failed to produce the original record in the Court and without examining such original record it is not possible to decide the point of jurisdiction. The learned trial Court left it open for the parties to produce evidence on this point. Review application against the said order was moved to the learned Court on 1-2-1999. Written reply was filed by the respondent/ plaintiff stating therein that the petitioner/ defendant miserably failed to produce the original contract of the Card No,3769- 836693-31004 and the record enclosed with the review application was not relevant to the Card in dispute. This review application was dismissed with costs of Rs,10,000 on 13-2-1999. The instant revision petition challenges the orders, dated 5-1-1999 and 13-2-1999.
3. Contentions of learned counsel for the petitioner are that the impugned orders passed by the learned appellate Court suffer from material irregularity, based on misreading of documents, real issues raised in the application under Order VII, Rule 10, C.P.C. In the instant case learned trial Court has to decide a very crucial point of jurisdiction which was material to determine the fate of the case but it has failed to decide the question of jurisdiction vide the impugned orders and wrongly decided that the card received by the respondent in 1995 was without any terms and conditions while the fact was that new card issued to the respondent/plaintiff was only upgraded facility of the original card which was issued in 1991. The terms and conditions of the original card were applicable to the new gold cars1 as well. The jurisdiction clause was therefore applicable to the new card inasmuch as it was applicable to the original card. Vide Clause 19 of the Amex Card Agreement the ordinary jurisdiction at Lahore is debarred and the Courts at Karachi have got the exclusive jurisdiction. Further contended that :the respondent mislead the Court that card was issued by the petitioner in 1995, while original card was issued in 1991 after application was received by the applicant. The terms and conditions were enclosed with the application which stated that before you sign or use the American Express Card, read this thoroughly because by signing, using or accepting the Card you will be agreeing with us to everything within here." Your use of the Card will be governed by this agreement and in this way the learned Courts misread the documents on record which has resulted in an erroneous conclusion through dismissal of the application under Order VII, Rule 10, C.P.C. And that of the review application. In this way material irregularity has been committed by the learned trial Court while not considering the sanctity of the contract embodied in the agreement arrived at between the petitioner and respondent. The suit filed at Lahore is in breach of the terms of the agreement, therefore, the orders under revision are liable to be set aside.
He has relied on State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393 where it is held that if two or more Courts have jurisdiction to try a suit and there has been an agreement between parties, that any dispute arising between them shall be tried only by one such Courts, it could not be considered contrary to public policy as it would neither contravene provisions laid down in section 28 of the Contact Act, 1872, nor violate in any manner provisions of section 9 or 20, C.P.0 In this context he placed reliance on Messrs Kadir Motors (Regd.) Rawalpindi v.
Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1172, if by mutual agreement between the parties a particular Court having territorial and pecuniary jurisdiction, is selected for the determination of their dispute, there appears to be nothing wrong or illegal in it or opposed to public policy. In A.B.C. Aminart (Pvt.) Ltd. And another v. A.P. Agencies, Saleem 1990 MLD 1344 (SC of India), it is held that when the Court has to decide the question of jurisdiction pursuant to an ouster 'clause it is necessary to construe the ousting expression or clause properly. In Messrs M.G. Brothers Lorry Service v. Messrs Prasad Textiles 1984 PSC 301 (SC of India) it is held that two or more Courts having jurisdiction to try suit---agreement between parties that any dispute arising between them would be tried only by one of such Courts---Such agreement could not be considered contrary to public policy for same would neither contravene section 28 of the Contract Act, 1872 nor would same violate provisions of sections 9 and 20, C.P.C. He has further relied on Messrs Rupali Polyester Limited v. Dr. Nael G. Bunni and others PLD 1994 Lah. 525 where it was held that it was well-settled that the jurisdiction of the Courts is not dependent upon residence of defendants but also upon other considerations, like accrual of cause of action or part thereof.
4. Learned counsel for the respondent has argued that learned Civil Judge dismissed the application rightly under Order VII, Rule 10, C.P.C. On the ground that the defendant failed to produce the original documents in the Court and without examining such original record it was not possible to decide his contention thus the learned trial Court left it open for the defendant to produce evidence on that point. Petitioner moved a review application to set aside the order, dated 5-1-1999. The assertions made by the petitioner in the review petition were not accepted by the learned trial Court for the reason that he failed to produce the original contract and the record enclosed With the review petition was not relevant to the card in dispute. Learned trial Court not only, dismissed the review petition but also burdened the petitioner to cost of Rs,10,000. This cost has not been paid. The instant Civil Revision is not competent because the learned Civil Judge has not decided the matter but has left it open for the reason that document to decide the point of jurisdiction was not with him even in review petition where the learned Civil Judge said that original document along with terms and conditions has not been placed on record, therefore, he was not in a position to decide the same. An issue regarding jurisdiction has been formulated by the Civil Judge, in the first instance he must decide the question on the basis of evidence and while deciding the review application learned trial Court was pleased to fix the matter for recording evidence of the respondents and the order passed on the review application is not a "case decided", therefore, this revision petition is not maintainable. Acceptance of revision petition at this stage will mean stifling of the case of the plaintiff/respondent, which is not the intention of law.
Plaintiff must be given full opportunity to prove his case. On several occasions the case was fixed for evidence of plaintiff but the same could not be recorded on account of delaying tactics of the petitioner. He has relied on S. Zafar Ahmad v. Abdul Khaliq PLD 1964 Kar. 149 and Bashir Ahmad Khan v. Qaiser Ali Khan and others PLD 1973 SC 507. In Aziz-urRehman v. Government of N.-W.F.P.
And others PLD 1996 Pesh. 51, it was held that essentials for exercise of revisional jurisdiction--- jurisdiction vested in High Court under section 115, C.P.C. Being discretionary in nature, it would not interfere to correct every irregularity in exercise of such jurisdiction except where grave injustice or hardship would result on account of its non-interference---where petitioner had failed to show that appellate Court had no jurisdiction to decide the appeal or that its decision was against some mandatory provision of law and, thus, nullity, no case was made out for exercise of revisional jurisdiction. Further relied on Waheed Gul v. Mst. Saida Jan 1998 MLD 3 where it was held that the petitioner was not able to point out any jurisdictional defect in impugned judgment nor he could show any misreading of relevant evidence or over-looking of any important evidence--- interference in revisional jurisdiction was not warranted in the circumstances. Any agreement/terms and conditions imposed later on do not create any liability or obligation whatsoever on the parties. Further, relied on 01ley v. Marlborough Court Limited (1949) 1 KB 532, where it was held that a contract was made at a hotel reception desk. In the hotel room upstairs there was a notice excluding the hotel's responsibility for articles lost or stolen unless they were deposited for safe custody. When the plaintiffs' coat and jewellery was stolen she brought a suit for damages against the hotel authorities. The Court of appeal held that since the contract was made at the reception desk, the terms of the notice in the bed room came too late and were not incorporated. In Thornton v. Show Lane Parking Ltd. (1971) 2 QB 163 the plaintiff went to park his car in the automatic car park. He obtained ticket from the machine. On the ticket it was printed that it is issued subject to conditions displayed on the premises. Due to the negligence of the defendants, plaintiff was injured. He brought a suit for damages, the defendants relied on the exemption in the ticket, it was held that the ticket came too late since the contract was concluded when the motorist drove up to the machine. The condition contained in the ticket did not matter. Further relied on L'Estrange v. F. Graucob Ltd. (1934)2 KB 394 (Divisional Court), where_ the plaintiff laid bought an automatic cigarette machine from the defendants, she had signed an order which contained all the terms and conditions of the contract. When the machine was delivered, it did not work properly, the plaintiff filed a suit for damages but it was held that as the plaintiff had signed the written contract, she was bound by its terms. And finally that the petitioners/defendants having once submitted to the jurisdiction of the Civil Court and having himself invoked its jurisdiction through an application under Order VII, Rule 10, C.P.C. And under section 114, C.P.C. Read with Order 47. C.P Z."..
Cannot now turn around to den; its jurisdiction. Moreover, the learned Civil Judge has duly exercised his jurisdiction on an application of the petitioner and an issue regarding jurisdiction has already been framed. The trial Court should decide this matter in the first instance, the present revision petition is only meant to delay the trial of the main suit. The revision petition is liable to be dismissed.
5.I have heard the learned counsel for the parties and carefully perused the judgments of the subordinate Court. The learned trial Court vide judgment, dated 5-1-1999 dismissed the application on the score that the petitioner/defendant was directed to produce the original :record which has not been produced in the Court and without examining such original record it is not possible to decide the contentions raised by the plaintiff. The application under Order VII, Rule 10, C.P.C. Is hereby dismissed for non-production of original record of the petitioner/defendant. The order, dated 13-2-1999 by deciding the review application is very detailed order and it has discussed all the conditions of the card membership and the relevant portions and the learned Court reiterated that no original record pertaining to Card bearing No,3769- 836693-31004 along with conditions thereof duly signed by the respondent/plaintiff has been placed on file as required in paragraph given in the American Express Card application, the application for review of order, dated 5-1-1999 is without force and has been filed without placing the original record- with the same pertaining to respondent/plaintiff, therefore, the same is hereby dismissed with costs of Rs,10,000. Both these judgments rejected the application under Order VII, Rule 10, C.P.C. And did not conclude that the learned trial Court has jurisdiction to deal with the matter.
6.The settled proposition of law is that the Courts are within their discretion to decide the question of jurisdiction, lack of cause of action or limitation even without evidence. Both these judgments suffer from infirmity that the point of jurisdiction was left open. It can easily be understood from these judgments that point of jurisdiction was left open and issue regarding the jurisdiction was framed by the learned Court and when the parties are at controversy regarding the point of jurisdiction it is incumbent upon the Court either to decide the question of jurisdiction after giving an opportunity of hearing to the parties and then proceed on to the other issues regarding merits of the case or when the Court has formulated issues on the pleadings of the parties and the controversy relates to issue of jurisdiction, the Court can treat the point of jurisdiction as preliminary issue and direct the parties to lead evidence after examining" the evidence, decide the issue of jurisdiction, and proceed on with remaining evidence and pronounce the judgment on the other issues.
7.In the present case I am in complete agreement with the learned counsel for the respondent that issue regarding jurisdiction has already been formulated by the learned Civil Judge and he must decide the question on the basis of evidence.
8.As an objection is made by the learned counsel for the respondent to the maintainability of instant Civil Revision, his contention is that both the judgments under challenge of instant Civil Revision cannot be termed as a case decided, therefore, question of interference of this Court under section 115, C.P.C. Does not arise. He has relied on S. Zafar Ahmad v. Abdul Khaliq PLD 1964 (W.P.) Kar. 149 (Full Bench judgment), Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others PLD 1973 SC 507 and Amanullah Khan A. Khan v. Chotey Khan 1978 SCMR 14.
9.I have perused the judgment cited by learned counsel for the petitioner S. Zafar Ahmad v. Abdul Khaliq PLD 1964 (W.P.) Kar. 149, this judgment has given general rules of practice for exercise of power under section 115, C.P.C. These are as under:- 'The High Court cannot exercise this power if that same matter could have been brought before it by way of appeal.
' When a complaint is made to the High Court that a Court subordinate to it has acted in any of the four ways mentioned in the first proposition and the High Court is of the opinion that the Court appears to have acted as complained, it may send for the record relevant for the purpose of ascertaining whether the complaint is correct or not, but is not bound to send for the record, if it Can satisfactorily ascertain by other means, the facts necessary for a decision of the point raised.
' A few guiding rules of practice which are liable to be overlooked when dealing with particular cases are:--
(a) Interruption of pending proceedings should be avoided as far as possible. If it is found necessary to stay proceedings, the case should be disposed of as a whole, instead of first having a full dress debate on the question of stay only
(b) Since the power conferred by section 115, C.P.C. Is meant for correcting errors made by subordinate Courts in relation to the existence or the exercise of their jurisdiction, no occasion arises to exercise it in relation to a matter which is within the discretion or authority of the subordinate Court concerned. This power should, therefore, never be exercised so as to usurp the discretion or authority of a subordinate Court."
10. This judgment goes against learned counsel for the respondent. It is provided in this judgment that section 115, C.P.C. Would be attracted after a Court subordinate to High Court has given a decision in respect of any state of fact after judiciously considering the same. The decision need not necessarily dispose of the whole matter, or the, suit pending before the subordinate Court. The application for amendment of plaint dismissed by the trial Court, dismissal held amounted to a case decided.
11. On the other hand learned counsel for the petitioner has relied on Muhammad Naseer etc. v.
Additional District Judge etc., 1986 CLC 2158, this judgment is based on the famous judgment Bashir Ahmad Khan v. Qaisar Ali PLD 1973 SC 507, where it is held that section 115, C.P.C. Would be attracted if the Court subordinate to High Court has given decision in respect of any state of facts after judicially considering the same, Saif-ud-Din Malik v. The Government of West Pakistan PLD 1969 Lah. 506 and Muhammad Swaleh and another v. Messrs United Grain and another PLD 1964 SC 97 have been followed. He has further relied on Abdul Jalil and another v. Mansoor Ahmad 1980 of 1815 where the case decided --- in broadest and most ordinary sense includes a part of case or issue or an interlocutory. Order and does not necessarily refer to an order determining whole case or all matters in dispute, as in case of a decree but to any state of facts judicially considered ultimately affecting rights of parties even though considered in course of trial of suit and consequently includes a step in aid Of determination of controversy. He has also placed reliance on Syed Arif Shah v. Abdul Hakim PLD 1986 Kar. 189 section 115, C.P.C. And Order XLII, Rule 1, C.P.C., revision against review application held revision would lie from order rejecting review application provided order sought to be revised was without jurisdiction or Court had failed to exercise jurisdiction vested in it or had acted in exercise of jurisdiction illegally or with material irregularity and also whether the terms and conditions annexed with the American Gold Card are applicable or not applicable. So far as the bar of jurisdiction is concerned although an issue had already been framed by the learned Court but still they elaborately discussed the documents annexed with revision petition concerning the issue of jurisdiction. Both the judgments have dismissed the application filed by the petitioner. It has not only discussed but judicially considered a state of facts and including a step in aid of determination of controversy between the parties in the course of trial of suit, therefore, I am not convinced by arguments addressed by learned counsel for the respondent that this Court cannot interfere in the impugned orders in exercise of jurisdiction under section 115, C.P.C. As it is not a case decided. It is a case decided and this Court has jurisdiction to look into this matter.
12. Each case stands on its own facts and circumstances, the instant suit is a suit for recovery of Rs,15 million as damages. An application under Order VII, Rule 10, C.P.C. For return of plaint on the ground that clause '19 of the American Express Card membership debars the jurisdiction of Civil Court at Lahore was dismissed on the ground that the defendant failed to produce the original record in the Court and without examining such original record it is not possible to decide the contention of the petitioner/defendant. It is also notable that the plaintiff denied the signatures on any such agreement.
13. When both the parties were at controversy to the signatures of the respondent on the agreement in question which provided bar of ordinary jurisdiction of Civil Court at Lahore, then it was impossible for the trial Court to reach to the conclusion of jurisdiction through bare perusal of the document, only way open to the Court was to that issue jurisdiction as preliminary one, direct the parties to lead evidence give them an opportunity, examine and cross-examine the real matter in issue and decide C the point of jurisdiction and then proceed on with the remaining case. Both the impugned orders are futile exercise by the trial Court without resolving the question of jurisdiction and intervention by this Court.
14. The _ impugned orders, dated 5-1-1999 and 13-2-1999 having lack of exercise of jurisdiction by the learned trial Court, being totally ambiguous and inconclusive are set aside. Learned trial Court is directed to treat the issue of jurisdiction a preliminary issue, direct the parties to lead evidence and after evaluating the same decide the point of jurisdiction within two months from appearance of parties.
15. Parties are directed to appear before the leaned trial Court on 19-6-1999. y