1. This is a suit for declaration with regard to the binding nature of the agreement between the parties, dated 1-1-1996, further that the Memorandum, dated 5-11-1996 was malafidely caused to be issued by the defendant Company as a result, therefore, damages in the sum of Rs.2,27,36,625 have been prayed for. A written statement was filed by the defendant Company in which all the adverse allegations have been denied and in which a preliminary objection has been taken that this Court has no jurisdiction. So also an Application has been moved on behalf of the defendant Company being C.M.A. No.9665 of 1998 under section 20, C.P.C. challenging the jurisdiction of this Court.
2. On the basis of the parties pleadings a preliminary issue was framed on 15-3-1999 regarding the jurisdiction of this Court and both the parties were allowed to lead evidence on this aspect of the matter. Accordingly on 3-5-1999 when the matter was fixed for issues Mr. Z.U. Ahmed learned counsel for the defendant pointed out that it should have been fixed for evidence/arguments on the issue of jurisdiction alone. He requested for one days time for the purpose of producing evidence on behalf of the defendant and accordingly on 4-5-1999 the Vice-President of the defendant Company was examined as D.W.1 and thereafter learned counsel closed his side. The said defendant produced a photocopy of his passport as Exh.4/1 and a photocopy of the agreement between the parties, dated 1-1-1996 as Exh.4/2. Thereafter, the matter was adjourned to 18-5-1999 when also none appeared for plaintiff and Mr. Z.U. Ahmed argued the matter.
3. Regarding the issue of jurisdiction learned counsel has submitted that as per the deposition of Camille Tam Nasrallah, Exh.4/1 which is the photocopy of his passport, he was never present in Karachi on the date when Exh.4/2 was signed which is the agreement between the parties upon which the plaintiff's cause of action is based. Learned counsel further submits that as per the deposition of the said witness he had only come to Karachi on 15th September, 1997 and left on 17th September, 1997 in order to file two suits against the plaintiff company based on dishonoured cheques. The said witness has either deposed that the business relationship between the parties consisted of the plaintiff sending their letters/packages to the defendant at Dubai whereafter the same were despatched by the defendant throughout the world. The Defendant Company used to receive payment from the plaintiff for these services through cheques at Dubai. As some of these cheques were dishonoured, he had filed the suits against the plaintiff Company. In the circumstances learned counsel submits that as the defendant Company never carried on business in Pakistan in terms of section 20 of C.P.C., therefore, this Court has no jurisdiction to entertain the suit. He has further submitted that as per the 'defendants witnesses' statement on record, which has gone unrebutted, Exh.4/2 was also never executed at Karachi. In support of his contentions learned counsel has relied upon Messrs Bubna More & Co. v. Modern Trading Co. PLD 1960 Dacca 668, Messrs Brady & Co. v. Sayed Saigal Industries PLD 1981 SCMR 494, Rehmania Trading Co. v.
4. Messrs Eagle Star Insurance Co. Ltd. PLD 1960 SC 202, Muhammad Farooque v. Province of Punjab PLD 1993 Lah. 56 and WAPDA v. Ghulam Boyi PLD 1991 SC 780.
5. I have heard learned counsel. In my view the scope of section 20 is very wide as it not only provides that the suit should be filed in the jurisdiction of the Court where the defendant actually resides, carries on business or voluntarily works for gain (which aspect of section 20 has only been addressed in the cases cited at the Bar) but subsection (c) also allows the plaintiff to file a suit where the cause of action accrues. Although it may be correct that the defendant Company never carried on any business in Pakistan within the meaning of Explanation II to section 20, it has to be considered hether in term of subsection (c) to section 20 of the C.P.C. any cause of action accrued to the plaintiff in Karachi. In this regard it would be seen that the term 'cause of action' has not been defined in the code, however, it has been held in a number of cases decided by the Superior Courts that it consists of every fact if traversed it should be necessary for the plaintiff to prove in order to support his right to judgment and if not proved gives the defendant a right to judgment. In this regard the defendant ts witness has stated in his deposition that the agreement between the parties Exh.4/2 which formed the basis of their business dealings was prepared by him at Dubai and then sent to the plaintiff Company at Karachi who after signing it had sent it back to Dubai whereafter he had affixed his signature to the same.
6. In this connection it would be seen that the essentials of a binding and valid contractare an offer, its acceptance and consideration. It is not disputed by the defendant that there was a concluded contract between the parties viz Exh.4/2. Consequently in my opinion the despatch of Exh.4/2 from Dubai would amount to an offer and its return by the plaintiff after execution thereof to the defendant at Dubai and affixation of its signature thereafter would be an acceptance by the defendant of such offer. In these circumstances I am quite clear in my mind that the contract between the parties was made at Karachi as it was accepted in this City by the plaintiff and accordingly this Court would have jurisdiction to entertain the suit as the cause of action for filing the same also accrued at Karachi to the plaintiff. In this regard reference can be made to I.T.O.
7. Mardan v. Sanaullah Khan 1976 SC 790 and Lahore Development Authority v. Sanbean Corporation PLD 1984 Lah. 430.
8. It would also be seen that the contract between the parties consisted of the plaintiff sending packages etc., from Karachi to the defendant at Dubai for transmission to locations all over the world. It has been specifically stated in the plaint in paragraph 3 thereof that in accordance with such arrangements the plaintiff start sending its packages to the defendant Company at Dubai for this purpose. As per paragraph 4 this business relationship progressed satisfactory for the first few months after execution of Exh.4/2 but thereafter when the defendant-company came to acquire knowledge about the plaintiff-company's contacts in Pakistan it (the latter) malafidely started to solicit business with the plaintiff Company's customers directly. Similarly it is stated in paragraph 5 of the plaintiff that the. Defendant Company caused the impugned Memorandum, dated 5-11-1996 to be circulated through Messrs O.C.S. (Pvt.) Limited to the effect that the defendant-company had stopped dealing with the plaintiff company and advising all concerned not to take up airway bills issued by the plaintiff company on the defendant company thereby terminating the contractual arrangements between the parties. These allegations viz contained in paragraphs 3 to 5 are categorically denied by the defendant company in its written statement and a different another version of the events has been narrated whereby counter-allegations have been levelled against the plaintiff company. Be as it may it would be seen from the allegations levelled by the plaintiff against the defendant company and vice versa in the pleadings which , is supported by the evidence on the record that the plaintiff company used to despatch its packages to the defendant company from Karachi to Dubai for onward distribution throughout the world and also that due to the plaintiff company's failure to send such packages to the defendant company the business relationship between the parties came to an end. It would this be seen that the contract between the parties had to be performed both at Karachi and at Dubai and for that matter at every destination where the packages were ultimately delivered. As per settled law the Courts where the contract had to be performed and indeed those where it was breached would have the jurisdiction to entertain suits concerning the rights and obligations of the parties in terms of their undertaking.
9. In this connection reference can be made to S.M. Qasim & Co. v. Azimuddin PLD 1962 Lah. 95.
10. For all the foregoing reasons the issue of jurisdiction is decided in the positive and it is held that this Court would have the jurisdiction to entertain the suit. Accordingly C.M.A. No.9665.of 1998 is dismissed. The matter be listed for issues in due course.