' The F.A.O. No,18 of 2000 and F.A.O. No,19 of 2000 are being disposed of through this judgment as common questions of law and facts are involved in both the appeals.
2. The appellant in these appeals have challenged the orders, dated 1-5-1999 passed by Civil Judge 1st Class, Rawalpindi, whereby the appellants plaints have been returned to them under Order VII, rule 10, C.P.C., on the ground of lack of territorial jurisdiction with an observation that the plaintiffs have the option either to institute the suits at District Attock where the occurrence took place and the cause of action arose or at Islamabad where the respondents Head Office is situated.
3. These appeals arise out of two suits for damages instituted by the appellants against the respondents/defendants WAPDA and its officials/employees.
4. The appellants in F.A.O. No,18 of 2000 are legal representatives of deceased Laghdres and the appellants in F.A.O. 19 of 2000 are legal representatives of deceased Muhammad Idrees. Both the above said deceased were employed as Linemen in WAPDA, Rawalpindi, and both of them died {{blur page}} - on 29-7-1997 in a road accident. Their legal . representative/plaintiffs instituted two suits for recovery of damages under Fatiti Accidents Act, 1855 and under the generial law in the Civil Court at Rawalpindi. Pt* appellants in F.A.O. No,18 of 2000 the suit on 4-5-1998 for the recoverrof damages of Rs,15,00,000. The snit" Wad contested by the respondent/d6fetiaaiki through written statement dated'116-9498-: Issues were framed on the same day defendants moved an application tificki' der VII, rule 10, C.P.C. 'on L'14-14409. Similarly, the appellants/plaiikiffs No,19 of 2000 instituted the'iiiiftoiqedAt of damages of Rs,50,71,2951:416- 411/498:1( was contested by the through written statedidiedited Issues were framed oti thg respondents move& = Order VII, rule r1V1.P.(0.
Both these applicatifRiV4retVieititteited-bif appellants thigli)itiAviltiViiq &Oleg. '-'41i4 learned Civil iJudge-dll after havingliiiirdollie 4gditientgfland,iftt having perusee the9glised4d aeti*d th& respond *neat:kills tliiiikiglix1iniiiigneif orders atei 4.54o994h-ti field4geth6e1V111 Court aeitittlifiinffla& bo further Itild;c4k theASpiitth a .014iintiffs tithePtilignflt4 the tattittiq abiliDistiitrAttbek '44/hdti 441 win) hotter; 'took lake xandiltaniet*AicliOfil arose or at Islamabad, where the WAPDA's Head Office is situated and accordingly returned the plaints to the plaintiffs under Order VII, rule 10, C.P.C. {{BLURE PAGE}}
5. The impugned orders were assailed by the plaintiff through appeals dated 31-5-1999 before the District Judge, Rawalpindi, which were entrusted to Additional District Judge, Rawalpindi, who was thereafter transferred without any substitute. The appellants, therefore, moved an application before the District Judge, Rawalpindi, for the transfer and entrustment of the appeals to some other Court. The learned District Judge accepted the applications on 27-10-1999 and entrusted the appeals to the Court of Malik Safdar Hussain, the Additional District Judge, Rawalpindi, for the disposal of the appeals, who vide his orders, dated 27-1-2000 accepted both the appeals, set aside the impugned orders, dated 1-5-1999 and remanded the suits back to the learned trial Court for proceedings in accordance with law. However, the learned Additional District Judge, on the same day i,e, 27-10-2000 passed another order whereby it was recorded by him that it had transpired that the damages claimed exceeded Rs,2,00,000 (Rupees two lacs) and it was observed by him that the point of pecuniary jurisdiction had not been discussed before by the parties. Notices were, therefore, issued to the parties and their counsel for 9-2-2000 for hearing them on the question whether the appeals under Fatal Accidents Act claiming damages for more than Rs,2,00,000 were competent before the District Judge or not. On 11-2-2000 the learned counsel for the appellants made statements before the said learned Court that all the appeals in the said Court had been filed due to misconception and prayed for their return for the presentation in the High Court. The Additional District Judge, Rawalpindi, vide his order, dated 11-2-2000 granted the prayer and returned the memos. Of appeals for their presentation in the High Court. The appeals were thereafter filed in this Court (the present appeals) on 14-2-2000 along with the application under sections 5 and 14 of the Limitation Act for the condonation of delay and these appeals were refiled on 18-2-2000 after removal of the office of objection within the time given by the office of this Court.
6. I have heard the learned counsel for the parties and have also seen the record, the copy of which has been produced by the learned counsel for the appellants. Nobody as turned up for respondent/defendant No,4 Muhammad Yar Aasi, who according to the office report has refused to accept the service. He is, therefore, proceeded ex parte.
7. It is contended by the learned counsel for the appellants that the respondent WAPDA has a sub- office at Rawalpindi and the address given in the plaint of respondents/defendants Nos. 2, 3 and 4 are of Rawalpindi, they accepted the service on this very address, joint written statements by all the defendants were submitted in the trial Court with signatures and stamp and the stamp on the written statement is of a sub-office of WAPDA, situated in. Rawalpindi. It is further submitted that it is in the plaints, that the deceased were employees of the respondents at Rawalpindi, that it was the respondents vehicle in which the deceased were going from Rawalpindi to Fateh Jhang, District Attock, that the said vehicle was defective and that it was being driven by respondent/defendant No,2 when it met the fatal accident near Fateh Jhang, District Attock in which the deceased, the predecessors of the plaintiffs/appellants, died' and these facts show that the appellants' case is covered under section 20(c) of the C.P.C. It is elaborated that the arguments from the other side that the Head Office/Principal Office of WAPDA is situated at Islamabad, therefore, the Civil Court at Rawalpindi has no jurisdiction to try the suit, would have force and would be relevant if the appellants suits were directed only against WAPDA and not others whereas defendants Nos.2 to 4 in these suits are employed in Rawalpindi and are residents of Rawalpindi. It is also submitted that although accident took place near Fateh Jhang, District Attock but it has been alleged by the plaintiffs that the cause of action partly arise at Rawalpindi as the deceased in negligent manner were put in a defective vehicle belonging to the defendants, at Rawalpindi and, therefore, the case of plaintiffs is covered by clause (c) of section 20 of the Code of Civil Procedure. It is further submitted that the respondent/ WAPDA has a subordinate office at Rawalpindi, therefore, Explanation II of section 20 of the above Code is also applicable which provides that, a corporation shall be deemed to carry on business at its sole or principal office in Pakistan or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. - In support of his argument learned counsel has placed his reliance on Messrs Brady & Co. (Pakistan)
Ltd. v. Messrs Sayed Saigol Industries Ltd., (1981 SCM R 494) wherein it was held that when a party chooses to institute a suit at place where only a subordinate office of Corporation exists (and not a sole or principal office as mentioned in Explanation II of section 20 of the Code of Civil Procedure) it would be under obligation initially to show that cause of adution wholly or in part arose at the said place where the branch office is situated and where no part of cause of action arose at the place of branch office, Corporations would not be said to transact business at such place and the suit against Corporation at such place would not be competent.
8. Learned counsel for the respondents while opposing these appeals, has submitted that the suits fall under section 20(b), C.P.C. And the respondent/defendant No,1 is WAPDA which is a Corporation and its sole or principal office is situated in Islamabad and not in Rawalpindi, it does not have any subordinate office in Rawalpindi and, therefore, the Civil Court at Rawalpindi does not have the territorial jurisdiction to try the suits. It is argued that the cause of action wholly arose near Fateh Jhang, District Attock and no part of it arose in Rawalpindi. Learned counsel for the respondents has placed his reliance on WAPDA and 2 others v. Mian Ghulam Bari (PLD 1991 Supreme Court 780).
In this case also the apex Court defined the scope of Explanation II of section 20, C.P.C. In the similar manner as in Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. (supra) and held that the Corporation shall be deemed to carry on a business at its sole or principal office as well as at any place where it has a subordinate office but in the latter case the cause of action should also have arisen at that place.
9. The argument of the learned counsel for the respondents that the cause of action did not arise at Rawalpindi has no force because the perusal of the plants shows that the cause of action partly arose at Rawalpindi as it is alleged by the plaintiffs that the vehicle in which the deceased were being transported from Rawalpindi to Fateh Jhang was defective and the damages have been partly claimed for this negligence also and as the journey started in the said defective vehicle from Rawalpindi, therefore, the cause of action partly arose at Rawalpindi. The argument of the learned counsel for the respondents that the WAPDA does not have a subordinate office at Rawalpindi, has also no force. The stamp available on the respondents joint written statement itself shows that WAPDA has a subordinate office at Rawalpindi where the cause of action arose in part.
10. The above mentioned shows that the plaintiffs suits are covered under clause (c) of section 20 of the said Code and the argument that some of the defendants do not reside at Rawalpindi is of no avail to the respondents because the cause of action partly arose at Rawalpindi. The Civil Court at Rawalpindi, therefore, has the jurisdiction to try the suits.
11. In regard to the issue of limitation, it is submitted by the learned counsel for the appellants that the delay in filing the present appeals in this Court occurred because the appeals were filed in wrong Court and the delay merits condonation under section 5 of the Limitation Act, 1908 as the appellants and their counsel acted with due care and caution and their conduct did not smack of negligence. It is submitted that since the court-fee on the original suits was Rs,15 and on the appeals also, it was of Rs,15, therefore, the appeals were mistakenly filed 'in the District Court instead of filing them in the High Court.
12. The facts narrated above in para. 5 show that the appellants throughout acted with care and caution and engaged a counsel for filing of the appeals. Their conduct does not smack of negligence. The appeals were tiled in the wrong Court on account of mistaken advice. It is, however, observed had their counsel been vigilant and more careful, the mistake would have been avoided. There is no allegation that the appellants stood to gain by filing the appeals in the wrong Court or were guilty of any mala fide conduct. The delay in the decisions of their suits for the recovery of damages is against their interests and by having gone to the wrong Court, the decision of their suits, have further been delayed. However, I am of the view that the omission on the part of the District Judge to take timely action was the major cause of delay in re-filing of the appeals by the appellants in. The High Court. The impugned orders were passed by the learned trial Court on 1- 5-1999, and the appeals were filed before the District Judge, Rawalpindi on 31-5-1999 a period of two months was still available to the appellants for filing the appeals in the High Court. The appeals remained pending in the Court of Additional District Judge, Rawalpindi for about eight months. Had the District Judge applied his judicial mind to the record before him and returned the memorandum of appeals to the appellants,. Without undue delay, they could have easily filed the appeals in the High Court within the period of limitation. The Hon'ble Supreme Court in Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCM R 584) held such omission on the part of the District Judge to take timely action as "sufficient cause", under section 5 of 'the Limitation Act, 1908 for condonation \ of delay. The appeals were returned to the appellants on 11-2-2000 and were presented in the High Court on 14-2-2000. Consumption of three days' time in presenting the appeals to the High Court cannot be held as negligent conduct. It may be mentioned here that the office of this Court raised certain objections on these , appeals on 15-2-2000 and the same were promptly removed by the appellants and the appeals were re-filed within the given time on 18-2- 2000. The delay, in filing the appeals is, therefore, condoned on the touchstone o 'sufficient cause'.
13. In view of the above mentioned, theft appeals are allowed, the impugned orders passed by the learned trial Court-are set aside, the appellants' suits shall be deepened to be pending in the Civil Court of Rawalpindi where their plaints in original are still lying and the learned trial Court is directed to proceed with the suits and decide the same in accordance with law. The parties are directed to appear before the Senior Civil Judge, Rawalpindi on 8-6-2001 and the learned Senior Civil Judge, Rawalpindi after summoning the record shall either proceed with the suits himself or entrust them to any other Court of competent jurisdiction. The suits were instituted in April/May, 1998. They are still at the initial stages, therefore, the learned trial Court seized of the suits is directed to proceed with them speedily and dispose them of expeditiously. The parties are left to bear their own costs. The appellants have not been awarded the costs because they initially instituted the appeals in the wrong Court which must have caused additional burden to the respondents. / order accordingly.