1. GULZAR AHMED, J.--- This CMA No. 8876/2001 under Order 7, Rule 11, CPC has been filed by the defendants Nos. 1 to 4 making two payers one of rejection of plaint or in the alternative to return the plaint under Order 7, Rule 10, CPC for filing it in the appropriate Court at Rawalpindi. The application has been filed on the ground that the parties have specifically agreed to submit to the jurisdiction of the Courts at Rawalpindi and also the cause of action for the suit has accrued at Rawalpindi and the Court at Karachi has no jurisdiction in the matter. Plaintiff has filed objections to this application. I have heard the arguments of Mr. Faisal Kamal, learned counsel for the plaintiff and Mr. Muhammad A.I Mazhar, learned counsel appearing for defendants Nos. 1 to 4.
2. Mr. Muhammad A.I Mazhar, learned counsel for the defendants Nos. 1 to 4 referred to the agency agreement made between the parties and its second recital and stated that the plaintiff was appointed as Distributor for the territory of Rawalpindi/Islamabad and Clause-12 of the agreement specifically provided that in case of any dispute only the Courts at Rawalpindi shall have jurisdiction to deal with the dispute. He has stated that the plaintiff has filed the present suit against the termination of the agency agreement and for publication of advertisement in daily Jang Karachi, Lahore and Rawalpindi all dated 1.8.2000. He further stated that the real grievance made in the suit by the plaintiff is with regard to the termination of the agreement and in consequence whereof the plaintiff has also made a claim for damages. He has stated that the suit filed by the plaintiff at Karachi is not maintainable as the Court at Karachi has no jurisdiction. He has relied upon the case of State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem (1987 SCMR 393), Messrs Qadir Motors (Regd.) Rawalpindi v. Messrs National Motors, Karachi (1992 SCMR 1174), M/s. E.F.U. General Insurance Limited v. Fahimul Haq (1997 CLC 1441) and Masroor Asif v. United Bank Ltd. (2001 CLC 479).
3. Mr. Faisal Kamal appearing for the plaintiff on the other hand stated that plaintiff and defendants Nos. 1 to 4 are all residents of Karachi and cause of action for the suit has partly arisen at Karachi.
4. He further contended that the agreement does not oust the jurisdiction of this Court to deal with the matter. He has further contended that both the Courts at Karachi as well as at Rawalpindi has concurrent jurisdiction and plaintiff entitled to select the Court for filing the suit. He has relied upon the case of Bankers Equity Limited v. Messrs Bentonite Pakistan Ltd. (2003 PCTLR (Lah) 884) and Mehboob A.I Soomro v. Sindh Road Transport Corporation (1999 CLC 1722).
5. I have considered the arguments of the learned counsel and have gone through the record.
6. The plaintiff has made the following prayer in the plaint:-- Declare that the plaintiffs have been unlawfully dispossessed from their family concern M/s. N.D.N.
7. By the defendants Nos. 1 to 4 and are entitled to be put in possession and continue the operations of the said firm.
(ii) Declare that the two Agency Agreements dated 15.4.2000 have been un-authorizedly and wrongfully terminated by the defendants on 8.6.2000 and hence the news agency of the plaintiffs M/s. N.D.N. Is still subsisting in respect of the publications of defendant No. 2 specified in the said two agreements.
(iii) Mandatory Injunction by directing the defendant No. 5 Bank to freeze the A/c No. CD-1095-8 with further directions to the employees, servants and assigns of defendants Nos. 1 and 4 not to transfer funds, transact and/or deal with the bank Account in any manner whatsoever with such bank account.
(iv) Permanent Injunction restraining the defendants Nos. 1 and 2, their servants, agents, employees including defendants Nos. 3 and 4 and/or subordinates from further recovering, collecting the amounts referred to in para 21 of the plaint and re-produce herein under form any of the salesmen, hawkers, Federation of hawkers and/or any other person;
(a) Excess amount deposited from April, 1997 to 8th June, 2000; Rs.7,794,786/-;
(b) Total amount recoverable from the market/hawkers; Rs. 12,570,061/-;
(c) Amounts receivable from different salesmen, currently: Rs.18 lacs;
(d) Amount deposited as security: -Rs.36,000,00/-.
(v) Direct the defendants Nos. 1 to 4 to submit detailed accounts of the amounts recovered to-date before this Hon'ble Court.
(vi) Declare the publication made on 1.8.2000 in daily "Jang" was defamatory of plaintiff No. 1.
(vii) Permanent injunction restraining the defendants Nos. 1 and 2, their servants, agents, employees including defendants Nos. 3 and 4 and/or subordinates from publishing any advertisement and/or material whatsoever of defamatory in nature so as to adversely effect and/or damage the reputation of the plaintiffs and their business good-will.
(viii) Permanent injunction by restraining the defendants Nos. 1 and 2, their servants, agents, employees including defendants Nos. 3 and 4 and/or subordinates from taking any other adverse action to the detriment of plaintiff's interest in any manner whatsoever.
(ix) Direct the defendants, either jointly or severally, to pay to the plaintiffs a sum of Rs.5 Crores/50 million towards the damages for the loss of reputation and mental agony caused to them on account of the defamatory advertisement published in the four issues of Daily Jang of Karachi, Lahore, Quetta and Rawalpindi on 1.8.2000.
(x) Grant compensation to the tune of Rs.5 lacs per month for unlawfully terminating the news agency of and causing economic loss to the plaintiffs from the date of termination of the news agency, that is, 8th June, 2000 till realization and dispossessing him from his office, non-payment of the amount of not commission to the plaintiffs and further running their business by revoking other business arrangements.
(xi) Recovery of the amount to the tune of Rs.2,57,64,847/- from defendants Nos. 1 to 4 jointly and severally on account of the breakdown given in para 21 of the plaint in respect of the recoveries including that of security deposit but excluding the compensation for, economic loss.
(xii) Declare that defendants Nos. 1 to 4 are neither owners, nor can run the business unlawfully taken over by them from the plaintiffs under the name of M/S. N.D.N.
(xiii) Cost of the suit.
(xiv) Any other relief this Hon'ble Court deems proper in the circumstances of the case."
8. Clause 12 of the Agency Agreement copy of which has been filed as annexure "B" to the plaint is as follows:- "12. That in case of any dispute only the Courts at Rawalpindi shall have the jurisdiction to deal with the dispute."
9. "We have considered the arguments of the learned counsel for the parties. Under Section 9 of the Code of Civil Procedure the Civil Courts have jurisdiction to try all suits of a civil nature excepting the suit of which their cognizance is either expressly or impliedly barred. Under Section 20 of the Code of Civil Procedure every suit is to be instituted in a Civil Court within the local limits of whose jurisdiction the defendant resides or carries on business or where the cause of action wholly or in part arose. Under Section 28 of the Contract Act every agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract by usual legal proceedings in the ordinary Tribunals or which limits the time within which he may thus enforce his rights, is void to that extent. It is evident from a plain reading of these provision that there is no absolute exclusion of jurisdiction under Section 9 or Section 20 of the Code of Civil Procedure nor there is any violation of the provisions of Section 28 of the Contract Act when two or more Courts have jurisdiction to try a suit and the parties mutually agree to choose or take their dispute to one of them. The Civil Courts exercise their jurisdiction under the Code of Civil Procedure. If they do not possess such jurisdiction under the Code it cannot be conferred on them through a mutual agreement of. The parties to a dispute. But in a situation where two or more Courts have jurisdiction to try under the Code of Civil Procedure, then an agreement between the parties that any dispute arising between them shall be tried only by one of such Courts could not be considered contrary to public policy as it would neither contravene the provisions laid down in Section 28 of the Contract Act nor would it violate in any manner the provisions of Section 9 or Section 20 of the Code of Civil Procedure." .