' A suit for recovery of Rs,63,884,212 was filed by the respondent in the Court of learned Civil Judge, 1st Class, Burewala on account of alleged loss suffered by it due to the fire which broke out on 30- 9-1997 damaging the building machinery and stocks of the respondent. The suit was based on policies of insurance, issued by the petitioners. In response to the summons, the petitioners made an application under Order VII, Rule 10 of C.P.C. Before the learned trial Court at Burevvala that in view of the jurisdiction clause in the policies of insurance the Court at Burewala had no jurisdiction in the matter and that the plaint was liable to be returned for presenting to the Court of competent jurisdiction.
2. The application was contested by the respondent asserting that the Court at Burewala had jurisdiction to try the suit in view of sections 15, 19 and 20 of C.P.C. The agreement regarding the choice of the Court at Lahore, Karachi and Rawalpindi for settlement of the dispute was denied. The learned trial Court after hearing the parties vide its order, dated 3-6-1998 dismissed that application, filed by the petitioners, taking the view that since the fire broke at Burewala and the cause of action had arisen there, therefore, under section 20, C.P.C. The Civil Court at Burewala had jurisdiction and that the relevant clause "cannot be applied against the plaintiff stricto senso", as the alleged condition of adjudication is not signed by the plaintiff. This order of the learned trial Court has given rise to the present petition.
3. It is submitted by the learned counsel that the insurance policies contained a clause that the Court at Lahore, Karachi and Rawalpindi will have jurisdiction in the matter and that by virtue of agreement between the parties the jurisdiction of the Court at Burewala stood excluded. He relies upon clause 21 of one of the policies which is as under-- "It is hereby declared and agreed that in the case of any claim arising in respect of the property hereby insured the same shall be settled and paid in Karachi/Lahore and the entire cause shall also be deemed to arise in Karachi/Lahore, and further that all legal proceedings in respect of any such claim shall be instituted in a competent Court in the city of Karachi/Lahore only."
' In support of his contention learned counsel relies upon State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem (1987 SCM R 393) and Messrs Kadir Motors (Regd.,)
Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others (1992 SCM R 1174).
4. As against this, the learned counsel for the respondent contends that the policy which contains the jurisdiction clause is not signed by the plaintiffs/respondents, therefore, respondent cannot be bound down by the same. It is contended that, undoubtedly, the cause of action had arisen at Burewala, therefore, under section 20 of C.P.C. The said Court had jurisdiction in the matter. He supports the order of the learned trial Court on the aforesaid premises.
5. It is undeniable that the cause of action in favour of the respondent/plaintiff and against the petitioners/defendants qua their liabilities rests upon the policy of insurance. In paragraph 4 of the plaint the case of the respondent is set out as follows:-- "That the plaintiffs were carrying on their business successfully when on 30-9-1997 fire occurred in their Mills accidentally . The said fire spread widely and severely damaged/ destroyed the building, machinery accessories and stocks of Ghee as well as oil resulting in a loss of Rs,6,38,84,212 to the plaintiff. Therefore, the defendant insurance companies are liable to compensate the plaintiff for their loss under the covet, of insurance policies and, thus, the amount in question is recoverable from all the defendants jointly and severally."
' Thus, there cannot be any manner of doubt whatsoever that the policy of insurance has given rise to the cause of action for filing of the suit. Now one of the clauses of the policy as reproduced above defines the Court which would have jurisdiction in the matter. This is one of the terms of the contract which cannot be avoided by saying that the same is not signed by the respondent/plaintiff. If that assertion of the respondents is to prevail then the question which immediately occurs to be considered is that how the claim of the respondent/plaintiff for compensation would be sustainable which is also based on the same instrument. The contention to avoid the jurisdiction clause of the policy in a way cuts the very root of the claim of the respondent. Thus, the inescapable conclusion is that the respondent is bound by the terms of the agreement including the jurisdiction clause.
6. Now the question arises as to whether such an agreement is permissible and is enforceable in the presence of section 28 of the Contract Act and section 20 of the C.P.C. The answer to this question does not pose much difficulty in view of the pronouncements by the apex Court in the case of State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem (1987 SCM R 393).
In this case the suit was filed at Lyallpur (now Faisalabad) for the reason that the premiums had been paid at that place, the State Life had its sub-office at Lyallpur and that the assured had also died there. An objection was raised before the Court that it lacked territorial jurisdiction in view of the agreement between the parties "to get their disputes adjudicated by the Civil Court at Lahore".
The objection was over ruled by the learned trial Court and the order was upheld by the High Court in revision. Their Lordships of the Supreme Court referring to the case of Musa Ji Lukman v. Durja Das (AIR 1946 Lahore 57) took the view that in case where two or more Courts had jurisdiction it was lawful for the parties to enter into the agreement that a suit between them would be tiled and disposed of in a particular Court. Resultantly the Civil Court at Lyallpur was directed to return the plaint so that it could be presented in the Civil Court at Lahore.
7. In the case of Messrs Kadir Motors (Regd.), Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others (1992 SCM R 1174) the case of State Life Insurance Corporation (supra) was considered and reproduced in extenso. Clause 27 of the agreement which is more or less to the same effect as clause 21 in the policy of insurance was given effect to and it was observed that "in view of the dictum of this Court in case of State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem (1987 SCM R 393) the matter is clinched, the agreement is legal and not hit by section 28 of the Contract Act and the parties are bound to follow it."
8. The learned counsel for the respondent did not dispute the proposition laid and the view taken by their Lordships in the aforesaid two cases. However, submitted that since the agreement of insurance which contains the jurisdiction clause was not signed by the' respondent/plaintiff the said clause cannot be given effect to. This aspect has already been dealt with in the earlier part of the judgment but it is to be observed that since after the issuance of the policy till the application under Order VII, Rule 10, C.P.C. Was made by the petitioners/defendants at no stage this was protested or raised by the respondent. The respondent cannot now take this position which as observed above is not only inconsistent but also damaging to his own case.
9. The principle of law applicable in such-like situation is stated by M. Munir in Principles and Digest of the Law of Evidence, Vol.II, page 1245:-- ' Estoppel by accepting benefit under a judgment, order, decree, agreement or other arrangement- - "Where a deed confers on a person certain benefits burdened with certain obligations that person has the right to elect whether he would take the benefits under the deed or not. If he does elect to take the benefits under the deed, he must also, bear the burdens created thereby. The law does not permit him to retain the benefits and to repudiate the burden": ' In AIR 1933 PC 167, it was enunciated as follows:-- "It is a well-accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honeyman, J. In Smith v. , Baker, at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage."
10. In view of this state of the law, I am left with no manner of doubt whatsoever that the parties having chosen the venue for adjudication of their dispute at Lahore, Karachi and Rawalpindi, they are bound by their choice and agreement and that the learned trial Court at Burewala acted with material illegality in not rejecting the application filed by the petitioner under Order VII, Rule 10 of C.P.C. The order of the trial Court cannot be upheld.
11. This revision petition accordingly succeeds. The learned Civil Judge, 1st Class, Burewala is directed to return the plaint to the respondent/plaintiff for presentation of the same to the Court competent to try and adjudicate the dispute.
' No order as to costs.