' This civil revision is directed against the order, dated 21-10-1997 passed by the learned Civil Judge, Lahore; whereby the application of the petitioners under Order VII, Rules 10/11, C.P.C. Seeking rejection or return of the plaint was disposed of and issues were settled in regard to pleas forming subject-matter of the said application.
2. Some relevant facts are that the respondents filed a suit against the petitioners for the recovery of 50000 Sterling Ponds equivalent to Pak Rs,35,00,000 as damages for the respondent No,1 stated to have suffered because of contaminated food served during the flight from Lahore to London.
The plaint in the suit filed by the respondents proceeded on the ground that respondent No,1 is a minor, therefore, suing through respondent No,2 i,e, her real mother, who has no interest adverse to that of the minor. The petitioner No,1 is a foreign airline commonly known as Saudia which has its registered office at 60-Shahrah-e-Quaid-e-Azam. Both the respondents afore-referred along with their family members obtained booking of tickets for their travel from Lahore to London and back and boarded the flight which reached Heathrow Airport in the morning of 16-8-1996. It is asserted in the plaint that the family was in good health and during flight food and refreshments was provided to the passengers who were contaminated, therefore, respondent No,1 fell sick and after leaving the airport she became serious for she got fever and was ultimately checked by a local doctor in Slough (United Kingdom). She was put on liquids but the health of respondent No,1 deteriorated with the result that an emergency call was given to the health authorities and on the advice of the doctor she was got hospitalized to Waxham Pak Hospital Trust Slough, London. She was discharged on the next day and although she was discharged from the hospital, yet the after effects of the food poisoning resulted in loose motions and vomiting for about 15 days. It was the case of the respondents that they had gone to United Kingdom for recreation tour but they could not enjoy the same because of serious sickness of respondent No,1 and above all, the husband of respondent No,2 had to leave the country and respondent No,2 was left alone facing linguistic and social problems. Thus, the respondent No,2 suffered a lot because of the sickness. In the scenario noted above, the total tour of the respondents was ruined because of contaminated food served during the flight with the result that the respondents have claimed damages as aforesaid.
3. The suit was contested by the petitioners on various grounds including the objection to the territorial jurisdiction of the Civil Court at Lahore to entertain and decide the suit. Apart from the various objections forming subject-matter of the written statement, the petitioners also filed an application under Order VII, Rules 10/11, C.P.C. On the ground that the Civil Court at Lahore had no jurisdiction to entertain and try the suit for no cause of action had arisen at Lahore and that the Sandia Airline has a registered office at Jaddah and since statedly the cause of action had arisen at London, therefore, the suit was either triable at London or at Jaddah but not at Lahore. The added grounds were to the effect that the plaint in the suit is not properly signed and verified and that the respondents have also failed to pay the proper court-fee.
4. The application was resisted by the respondents who proceeded to deny the averments contained therein and it was submitted that the cause of action had arisen at Lahore, therefore, the Civil Court at Lahore has the jurisdiction to try the suit. As for the objection that the plaint has not been properly signed and verified and that the proper court-fee has not been paid, the same was denied with the rider that the court-fee as required by law had been paid.
5. The learned trial Court having made certain observations proceeded to dispose of the application of the petitioners and simultaneously settled issues on the total controversy between the parties including the pleas forming subject-matter of the application under Order VII, Rules 10/11, C.P.C. Vide his order, dated 21-10-1997. The said order has been assailed in the present revision petition.
6. The respondents did not opt to appear in the case resultantly they were proceeded against ex parte vide order, dated 29-9-1998.
7. Learned counsel for the petitioners argued the case as if the objection as to the territorial jurisdiction had been finally determined by the learned trial Court. He had probably a reason for so doing because certain observations had been made by the learned trial Court while disposing of the application under Order VII, Rules 10/11, C.P.C. A minute reading of the impugned order, however, reveals that the said observations were meant only to prima facie appreciate the contentions raised by the contesting parties while the real matter in the controversy substantially formed subject-matter of Issues Nos.3 and 5 which may be reproduced hereunder to understand as to what was the real intent of the order disposing of the application under Order VII, Rules 10/11, C.P.C.
The said issues are as follows:- Issue No,1 ..
Issue No,2 ......................
Issue No, 3 Whether this Court has got no territorial jurisdiction to entertain the suit? OPD Issue No,4 ......................
Issue No,5 Whether the plaintiffs have got no cause of action and locus standi to bring the instant suit? OPD Issue No .6 ........................................................................................
Issue No,7. Relief.
' It would thus be appreciated that the questions as to the bar of territorial jurisdiction and lack of cause of action were entertained along with other issues on merits on the reasoning that to avoid double trial, the objection as to territorial jurisdiction and lack of cause of action should also be tried along with the issues on merits. This reasoning of the learned trial Court may not be correct for the pertinent reason that if the Court finally comes to the conclusion that it lacks territorial jurisdiction, the total effort for deciding the case may ultimately become futile. The objection as to the territorial jurisdiction is definitely a root question, which should have been decided at the earliest without taking a step further in the proceedings. Incidentally, the question of jurisdiction as raised in the proceedings of the suit is so mixed up with the cause of action that the decision on one is bound to reflect on the other for according to the petitioners, the present case is to be governed by explanation (ii) added to section 20 of C.P.C. For it is ordained therein 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."
' The question being raised was mixed question of fact and law which could definitely not be decided otherwise than recording evidence, therefore, one reasonable conclusion would be that the learned trial Court had not committed any illegality while framing issues on the said questions but had definitely committed illegality in the exercise of its jurisdiction while' proposing to decide the said issues along with the issues on merits. As observed earlier, the two questions forming subject-matter of the petitioners' application under Order VII, Rules 10/11, C.P.C. Being the root questions should be tried at the earliest without taking any further step in the proceedings. The plea that the court-fee has not been paid or that the plaint was not properly signed and verified may not be of any consequence for the reason that the court-fee on the suit is stated to have been paid and the same shall be deemed to have been paid on the date of filing of the plaint. Needless to add that signing or verification of the plaint is minor irregularity, which could be cured by obtaining proper signatures on the plaint.
In result, this petition is dismissed with the direction that the Issues Nos.3 and 5 as framed by the learned trial Court shall be tried' as preliminary issues. It may also be observed here that the learned trial Court while deciding the two issues aforenoted shall not in any manner be influenced by any observation made in the impugned order, dated 21-10-1997 for they are held to be tentative in nature. Since the respondents have not opted to contest the present petition, therefore, there shall be no order as to costs.