This judgment will decide First Appeal from Order No. 186 of 1997 and Civil Revision No. 1025 of 1997, as the same arise from the common facts.
2. Respondents filed a suit for recovery of damages to the tune of Rs.40,000,000 (Four crore) against the appellants/petitioners. Alongwith the suit an application under Order 39, Rules 1 and 2 of C.P.C. Was filed for temporary relief. Appellants/petitioners contested the application and also moved an application under Order 7, Rule 11 of C.P.C. For rejection of plaint on the ground that the plaint did not disclose any cause of action and that the Court at Lahore had no jurisdiction, as no part of alleged cause of action had accrued, within the territorial jurisdiction of the Courts in Pakistan.
3. Learned Civil Judge vide order, dated 18-1-1997 allowed the application for temporary injunction and disposed of the application filed under Order 7, Rule 11 of C.P.C., with the observations that it could be decided after framing issues and recording evidence.
4.First Appeal from Order No. 186 of 1997 has been filed to challenge the order for grant of temporary injunction while civil revision has been filed to challenge the order by which application under Order 7, Rule 11 of C.P.C was dismissed.
5. Learned counsel for the appellants/petitioners submitted that the appellants had challenged the jurisdiction of civil Court, maintainability of the suit and also the locus standi of respondents to maintain the suit. It was added that the plaint, as it is, did not disclose any cause of action and, therefore, it could be rejected at the preliminary stage. Regarding temporary injunction. It was argued that the respondents had no prima facie, case for the grant of temporary injunction and that the suit was a counterblast to the criminal case registered against the respondents and also an attempt to create defence in a suit for recovery of money filed by the bank against the respondents.
6. In reply, learned counsel for the respondents submitted that the plaint raised definite allegations against the appellant and, therefore, its resection, at this stage could not be asked for, It was added that the appellants/petitioners were foreign companies and, therefore, it would be difficult for the respondents to realize the decretal amount, if the order of injunction is recalled or the surety is released.
7. In the course of hearing of appeal and revision, learned counsel for the appellants/petitioners was confronted with the contents of the plaint wherein specific allegations had been raised against the appellants. Reference was made to paragraphs Nos.5 and 6 of the plaint in which the respondents had specifically placed responsibility upon the appellants and had claimed damages by raising allegations for breach of the contract. For the purposes oft rejection of plaint. The facts as given in the contents thereof are to be looked into and nothing extraneous can be seen. The facts alleged in the plaint are to be admitted as correct and if the same do not make out a cause of action, the plaint can be rejected. Looking the plaint, as it is, it cannot be said that the same does not disclose any cause of action. It's a different matter that the respondents may not be able to prove the averments made in the plaint but this itself will not be a ground for rejecting the plaint.
8. Faced with this situation, learned counsel for the appellants/petitioners submitted that the main objections of the appellants are that the Civil Court at Lahore had no jurisdiction and that the suit is not maintainable and if these issues are treated as preliminary issues and decided expeditiously, then the appellant will be satisfied.
9. The case of the respondents is that in terms of letter of credit, certain commitments were made by the appellants/petitioners and that the consignment was changed, outdated, transshipped and also that less than 50% cotton was available on the alleged arrival of goods in Pakistan. On these allegations, damages and compensation were claimed. Pending decision of the suit, request for stopping release of surety was claimed, which was allowed by the learned Civil Judge vide impugned order. In the light of allegations made in the plaint, it will not be possible to reject the plaint at this stage and, therefore, the learned Civil Judge did not commit any error in postponing the decision of the points raised in the application under Order 7, Rule 11 of C.P.C., till the framing of issues and recording of evidence.
10. Even otherwise, the injunctive order appears to have been passed in the interest of justice to protect the alleged claim of the respondents to which no exception can be taken. Again keeping in view the fact that the appellants/petitioners are foreign companies and that there are reasonable apprehensions that there will be no assets to realize the suit amount, in case of any decree, it was just and proper to stop release of surety till decision of the suit. The orders of injunction to this extent does not suffer from any error of law.
11. There is, however, substance in the submission of the learned counsel for the appellants/petitioners (in -appeal and revision) that the objection raised by the appellants being legal in nature should be decided as preliminary issue and shall not be postponed till decision of the other issues on merit. Learned counsel for the respondents has not opposed the decision of two objections raised by the appellant as preliminary issue. It is also a settled rule that if a suit or part thereof can be decided on the decision of legal issues, then the trial of legal issues shall be segregated from the trial of issues on merit. It is also a rule that the objection of jurisdiction shall be treated as preliminary issue as it goes to the very root of the case. In this view of the matter, while upholding the impugned orders, it is directed that the learned Civil Judge shall frame two preliminary issues, on the question as to the jurisdiction and maintainability of suit, accelerate the proceedings and decide the preliminary issues within three months, from today, with intimation to the Deputy Registrar (Judicial) of this Court.
12. First Appeal from Order No.186 of 1997 and Civil Revision No. 1025 of 1997 are disposed of with the above direction.