' This revision petition is directed against the judgment and decree of the learned District Judge, Mardan dated 29-10-1995, whereby he while maintaining the judgment and decree of the learned Senior Civil Judge, Mardan date( 29-3-1993 dismissed the appeal of the petitioner.
2. Succinctly stated the facts of the case are that the Abdul Halim plaintiff respondent instituted a suit against the defendants for recovery of Rs,2,65,620 (Rs,1,65,620 as price of the G.I. Pump/Pipes allegedly purchased by thi plaintiff from defendant No,1 and Rs,1,00,000 as damages for mental torture and the amount spent by the plaintiff); that in January, 1991 the plaintif purchased G.I.
Pump/Pipes from the defendant No,1 and he paid an amount of Rs,1,65,620 in advance, but defendant No,1 failed to supply the goods to the plaintiff; that according to defendant No,1, G.I.
Pump/Pipe and other good. Were booked vide bilty No,9840 dated 27-1-1991, but the same did not reach the plaintiff due to which the plaintiff also suffered mental torture and as such he I entitled for the recovery of Rs,1,65, 620 as the amount paid to him and Rs,1,00,000 (one lac.) as damages for mental torture.
3. The suit was resisted by the defendants, and in view of the pleadings o the parties the following issues were formulated;-- ISSUES.
(1) Whether the plaintiff has got a cause of action?
(2) Whether the suit is within time?
(3) Whether the suit is incompetent in its present form?
(4) Whether the plaintiff is estopped to sue?
(5) Whether the suit is bad for non joinder of necessary parties?
(6) Whether the plaintiff has handed over the goods to the defendar Nos.2 and 3, if so its effect?
(7) Whether this Court has got the jurisdiction to entertain the present sui
(8) Whether the suit is bad for the purpose of court-fee?
(9) Whether the suit is instituted just to harras the defendants and defendants are entitled to the special costs?
(10) Whether the plaintiff is entitled to the recovery of Rs,2,65,620 prayed for?
(11) Relief.
' Both the parties produced their evidence in support of their respective claims. At the conclusion of the trial, a decree in favour of the plaintiff against the defendants for recovery of Rs,1,65,620 was passed and regarding the damages of Rs, One lac the suit was dismissed, vide judgment and decree dated 29-3-1993, whereagainst appeal filed by the petitioner before District Judge, Mardan was dismissed vide judgment and decree dated 29-10-1995. Hence the revision petition in hand.
4. Learned counsel for the petitioner contended that the trial Court had no territorial jurisdiction to entertain and adjudicate the suit as the cause of action arose at Lahore and the defendants are also permanent residents of Lahore who are carrying on business. There, thus under section 20 of C.P.C. The Court at Mardan had no jurisdiction at all, to entertain and to try the suit, therefore, the impugned judgments and decrees are without jurisdiction and lawful authority and deserve to be set aside on this score alone. He further submitted that the statement of Abdul Haleem is self- contradictory and is not worth reliance. The plaintiff failed to prove advance payment to the defendants as in cross-examination he has admitted that the whole amount was outstanding.
Shamsul Haq (P.W.2) in his cross-examiantion has stated that payment was not made to defendant No,1 by the plaintiff in his presence while plaintiffs has stated that payment was made in his presence. Usman Shah (P.W. 3) is not dependable as he is an interested witness being the servant of the plaintiff.
5. On the other hand, learned counsel for the respondent No,1 argued that though the sale of goods took place at Lahore yet the goods were despatched to Mardan and when the goods did not reach Mardan due to cancellation of bilty by the plaintiff, the cause of action accrued at Mardan where the Courts had the jurisdiction to try the suit. He referred to section 54 of the Sale of Goods Act, 1930 and argued that a contract of sale cannot be rescinded by an unpaid seller by exercising his right of lien or stoppage in transit. He further argued that the revisional jurisdiction of this Court under section 115 of the Civil Procedure Code is very limited and the concurrent finding of facts cannot be interfered with in revisional jurisdiction unless the same are injudicaious and fanciful.
6. I have duly considered the arguments of .The learned counsel for the parties and have gone through the record of the case. To ascertain whether the Courts at Mardan had the jurisdiction to try the suit, reference has to be made to sections 20 and 21, C.P.C. Which read as under:-- "20. Other suits to be instituted where defendants reside or cause of action arises....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, 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, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises.
21. Objections to jurisdiction.---No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice."
The plain reading of the above would show that a suit has to be instituted in a Court within the local limits of whose jurisdiction either the defendant actually and voluntarily resides or carries on business or personally works for gains or the cause of action wholly or partly arise, The scheme of the law for the purposes of territorial jurisdiction appears to be based on the maxim of 'actor acquitur forum rai' i.e, the plaintiff shall follow the Court of the defendant, whereas under section 21, C.P.C. The objection to jurisdiction has to be raised before the first Court and the party cannot at a subsequent stage raise objection with regard to jurisdiction before the appellate Court or the revisional Court. The plaintiff in his plaint has himself given the addresses of the defendants to be that of Lahore which goes to show that they are permanent residents of Lahore. According to the averments of the plaint, the plaintiff placed an order for the supply of G.I. Pipes at Lahore for which the alleged advance payment of Rs,1,65,620 was made. The despatch receipt (bitty) was given to the plaintiff but the goods did not reach the plaintiff. Defendants Nos.2 and 3 in their written statement have stated that they do not know the plaintiff and the consignment was never delivered to them for onward transportation to Mardan. It has been stated that defendant No,1 got bilty No,8940 which at his instance was cancelled as he was not paid the price of the goods.
Admittedly, the defendants are permanent residents of Lahore who are residing and carrying on business there, where transaction took place, as such, cause of action accrued to the plaintiff at Lahore and not within the limits of Courts in Madran, therefore, the Court at Mardan had no jurisdiction under section 20, C.P.C. To try and adjudicate the case. The defendant No,1 and defendants Nos.2 and 3 in their separate written statements have specifically raised the objection to the jurisdiction of the Court at Mardan stating that disputed transaction was processed at Lahore, therefore, Court at Lahore alone has the jurisdiction to try the suit. Respondents Nos.2 and 3 have also refuted the allegations of the plaintiff that the defendant No,1 had delivered any goods against despatch receipt No,8940, which was subsequently cancelled at his instance. Since objection to the jurisdiction was raised in the Court of first instance at the earlier possible opportunity, therefore, the 'requirements of section 21, C.P.C. Have been complied with. Learned trial Court has not properly attended to the issue of jurisdiction. Issues Nos.3, 4, 7 and 9 were jointly taken up together and were disposed of with the following finding:-- ' "These issues were not stressed by the learned counsel for both the parties, however, the suit is competent in its present form, plaintiff is not estopped to sue, this Court has got the jurisdiction to entertain the present suit and the suit has been properly valued for the purpose of court-fee. All the issues are decided in favour of the plaintiff against the defendants."
' However, the appellate Court discussed the question of jurisdiction in para. 6 of its judgment which reads as under:-- ' "It is embodied in section 20, C.P.C., that suits can be filed in a Court within the local limits of whose jurisdiction the cause of action arises in whole or in part. Needless to say, that that the term 'cause of action means a proceedings in which a legal demand of a right is made. In the present case the goods were purchased at Lahore, and contract was also made there, but the consignment was to be received at Mardan. When the consignment was not received at Mardan, the cause of action accrued here, and the suit was instituted. Moreover, under section 21, C.P.C., objection regarding jurisdiction must be taken in the Court of first instance at the earliest possible opportunity, and before the settlement of issues. In the Lower Court though issue was framed in this regard, but the matter was not taken at the earliest possible opportunity one even at the time of arguments.
Hence, the objection at the Appellate stage was also not sustainable."
The Appellate Court held that the goods were purchased at Lahore and the contract also took place there but when the goods were not received at Mardan, the cause of action accrued to the plaintiff at Mardan. This conclusion is not B maintainable in view of law on the subject. The place where proposal and acceptance are exchanged and contract is entered into, the Court within the local limit of whose jurisdiction such a contract takes place shall have the jurisdiction to try the suit.
Under section 46 of the Sale of Goods Act, 1930 the unpaid seller of goods has the lien on the goods for the price while he is in possession of; and has a right of withholding delivery and stoppage in transit where the property has passed to the buyer and under section 54 of the Act (ibid) the buyer by tendering or paying the price of goods can remove the clog of lien and stoppage and become entitled to the delivery of goods. The demand of purchase of G.I. Pipes was made at Lahore and the alleged advance payment thereof could not be proved by the plaintiff, hence defendant No,1 had the lien to stop the goods.
' The defendants are the residents of Lahore and the despatch receipt (bilty) was also prepared there. According to the plaintiff himself the goods never reached at Mardan. Since nothing regarding the transaction has happened at Mardan, therefore, the Court at Mardan had no territorial jurisdiction to entertain the suit at Mardan and to adjudicate it. As far the objection to the jurisdiction of Court at Mardan was concerned, the defendants in their written statement had categorically raised objection to the jurisdiction of the Court at Mardan and it was incumbent upon the Court to have first determined whether it would proceed with the case or not under section 20, C.P.C. The trial Court failed to apply its mind to such a vital question which has rendered the proceedings without jurisdiction and lawful authority, whereas the Appellate Court arrived at the conclusion which is unsustainable in view of the facts and law applicable to the case.
7. Adverting to the evidence on the record, the plaintiff has stated that he purchased G.I.
Pump/pipes from the defendants and paid them in advance an amount of Rs,1,65,620 through a receipt Exh.PW1/1. The payment was made in presence of Usman Shah, Khushmir and Shamsul Haq.
Later on the bilty was concelled and the goods were not delivered to him. In cross-examination he stated that it is correctly written on Exh.WP1/1 that the total amount was outstanding to the defendants on 27-1-1991. According to P.W.1, the disputed amount of Rs,1,65,620 was allegedly passed on to defendant No,1 in presence of Shamsul Haq, but he has denied this fact in his cross- examination and stated that the payment was not made to defendant No,1 by the plaintiff in his presence. As far the statement of Usman Shah is concerned, his statement is not worth credence as he is plaintiff's servant and his statement is 'his master's voice'. The defendant's statement is that the plaitniff came to Lahore and placed demand of G.I. Pipes valuing Rs,1,65,620. He was asked that if he makes the payment of Rs,1,50,000 in cash, then the goods shall be despatched to him.
The plaintiff showed his inability to make payment and requested him to send him the consignment on credit basis and he after selling the goods would make the payment, but on this condition supply of goods was refused. He requested him that he should give him the bill showing that he has placed an order and should also give him the despatch receipt (bilty), Accordingly he gave him the bill and the bilty but he failed to honour his promise to make the payment, therefore, the 'bilty' was cancelled. He in cross-examination stated that the bill and bilty was prepared on the request of the plaintiff but since he failed to make any payment towards the same, therefore, the 'bilty' was cancelled. He stated that he does not owe any amount to the plaintiff, rather the plaintiff is in debt to him. The onus of proof heavily lies on the plaintiff to substantiate his claim but he failed to prove the alleged advance payment to the defendants, therefore, he was not entitled to the decree even on facts of the case.
8. The contention that this Court in exercise of revisional jurisdiction under section 115, C.P.C. Should not interfere into the concurrent findings of the two Courts below, is also without any force, as the jurisdiction question goes to the very root of the case and a Court without jurisdiction cannot pass any order muchless a valid order. Both the Courts have acted without any jurisdiction, therefore, the impugned judgments are coram non judice, which are not sustainable. This Court in revisional powers under section 115, C.P.0 has to see whether the subordinate Courts have acted with or without jurisdiction and where it is found that jurisdictional error has been committed, such orders/judgments/decrees require to be set aside for correcting the wrong. In this case both the Courts have acted without jurisdiction, as such, their judgments and decrees are without lawful authority and, thus, have to be struck down.
Consequently, this revision petition is accepted with costs, the judgments and decrees of both the Courts below are set aside and the suit of the plaintiff is dismissed.