1. C.M.A. No.6000 of 2003.---This is an application under Order VII; rule 10, C.P.C. Filed on behalf of the defendant praying for return of the plaint as according to the defendant this Court at Karachi has no territorial jurisdiction to entertain and adjudicate upon the matter in controversy.
1. Application is supported by an affidavit of defendant Sher Afgan Khan. Niazi. Counter-affidavit has been filed by plaintiff Mazhar Valjee denying the averments and allegations made in the application and reiterating that since cause of action has also accrued at Karachi, hence this Court has jurisdiction to proceed with the case and the application for return of a plaint is liable to be dismissed. There is no rejoinder to the counter-affidavit. The facts in brief as stated in the plaint appear to be that Bairam Khan son of defendant Sher Afgan Khan Niazi tragically lost his lite on 22- 10-2002 while driving a Toyota Car in high speed on Khayaban-eQuaid-e-Azam in Islamabad when his car was hit by a Wagon bearing No.K-1985 Peshawar being driven by a person named Muhammad Sheeraz. It appears that F.I.R. Was lodged under sections 320, 337-G, 279 and 427, P.P.C. Against Muhammad Sheeraz, Driver of the wagon who was arrested by Margalla police. However, the said driver appears to have been pardoned by the defendant/father of the deceased and the case against him stood closed. It is the case of the plaintiff who is Chief Executive of Indus Motor Company Ltd. That defendant demanded exorbitant amount as compensation from the plaintiff as well as one Ali S. Habib the Chairman of the Board of Director of the Indus Motor Company Ltd. And Fujio Cho the'President of the Toyota Motor Corporation of Japan for being negligent as SRS Air Bag was not fitted in the car. On their refusal to exceed to such demand, the defendant, it is alleged that due to his political influence got amended the F.I.R. So as to involve the plaintiff and the above named two persons as accused in the said case for offences under sections 322 and 420, P.P.C. It is alleged that at the behest of the defendant police obtained NBWs of arrest of the plaintiff and the above named two persons from the Senior Civil Judge/Magistpte Islamabad on 22-11-2002 for being served at Karachi. The defendant also instituted Civil Suit No.765 of 2002 under the Fatal Accident Act for compensation/damages of US$ 25,000,000 (U.S. Dollars Twenty Five Million) against the plaintiff, Mr. Ali S. Habib and Mr. Fujio Cho. It is further alleged that notices/summons in respect of criminal/civil proceedings were received by the plaintiff including the summons at Karachi on 26-12-2002. The news of non-bailable warrants of arrest having been issued against the plaintiff and two others was widely reported in various newspapers including the Metropolitan section of the daily 'Dawn' and daily 'Jang' dated 24th November, 2002 wherein, it was mentioned that special team has been sent to Karachi for the arrest of plaintiff and Mr. Ali S. Habib. Such news item also appeared in daily 'Janbaz' Karachi of the same date alleging therein that Indus Motor Company Ltd./Toyota Motor Corporation and its/their functionaries were engaged in murder, cheating and fraud as a matter of practice. It is further stated that the plaintiff filed Writ Petition No.3491 of 2002 before Rawalpindi Bench of Lahore High Court seeking declaration that the registration of the F.I.R.
2. Against the plaintiff and above named two others of Indus Motor Company Ltd. And issuance of NBWs of arrest be declared to be without lawful authority and of no legal effect. It was further prayed in the said petition that F.I.R. And the "Zimnis" showing the plaintiff and others as accused be quashed being illegal and mala fide. On 17-12-2002 bail was granted to the plaintiff by the Rawalpindi Bench of the Lahore High Court and ultimately on 25-3-2003 the Constitution petition was allowed resulting in termination of the proceedings initiated in terms of F.I.R. (as amended) as referred to above being mala fide. The plaintiff thereafter filed this suit against the defendant in this Court at Karachi on 21-4-2003 for damages of Rs.50,000.000 (Rupees Fifty Millions) on account of loss of reputation and/or business prospects so also of the mental agony/anguish caused to the plaintiff by the defendant The cause of action is shown to have accrued on 12-11-2002 when the defendant got the F.I.R. Amended to implicate the plaintiff and the above named two others, thereafter on 22-11-2002 when S.H.O., Police Station Mar,galla, Islamabad, obtained NBWs of arrest against the plaintiff and Mr. Ali S. Habib and when notice of criminal prosecution was had by the plaintiff at Karachi.
3. At the time of admission of this plaint office had raised an objection regarding the territorial jurisdiction of this Court and after hearing the learned counsel for the plaintiff and while taking into the consideration the rule laid down in the case of Gokaldas Melaram v. Baldevdas T. Chabria AIR 1961 Mysore 188 and Alexander Brault v. Indrakrishna Kaul AIR 1933 Calcutta 706, plaint was admitted, however, the question of territorial jurisdiction was left open for final adjudication in case any objection was taken by the defendant. After service of summons, the defendant has taken the objection by filing this application under Order VII, rule 10, C.P.C. For return of the plaint on the ground that the cause of action, if any, has accrued at Islamabad and the Courts at Karachi have no jurisdiction either to entertain the suit or to adjudicate upon the matter in controversy.
4. 1 have heard Mr. Mushtaq Hussain learned counsel for the applicant/defendant and Mr. Yousaf Ali Sayeed learned counsel for the plaintiff. Indeed, it is not disputed that the accident in which the young man lost his life took place at Islamabad, F.I.R. Was initially lodged against wagon driver Muhammad Sheeraz and subsequently amendment in the F.I.R. Was also sought there. Warrants of arrest were obtained from the Senior Civil Judge/Magistrate at Islamabad for being served upon the plaintiff in Karichi. It is also not disputed that the amended F.I.R. Against the plaintiff and two others and subsequent proceedings taken in pursuance thereof have been quashed by the Rawalpindi Bench of the Lahore High Court.
5. Now, the only point which requires consideration is whether in a case for malicious prosecution, under the circumstances of the case, a plaintiff can file a suit for damages/compensation at a place other than where the defendant is residing, carries on business, or personally works for gain.
6. Mr. Mushtaq Hussain learned counsel for the applicant/defendant has vehemently urged that all the events including the issue of warrants have taken place at Islamabad and the defendant is also admittedly residing at Islamabad, and that no cause of action has accrued at Karachi, hence the Courts' at Karachi have no jurisdiction either to entertain this suit or adjudicate upon the matter in controversy. In support of his contention, learned counsel has referred to the case of Waqar Ahmed Malik v. The Commandant Armed Forces Institution of Pathology, Rawalpindi Cantt. And others PLD 1991 Peshawar 130, to show that a plaint was returned where a suit for damages was filed at a place other than where the defendant was residing/carrying on business or personally worked for gain or cause of action had accrued. Learned counsel has further referred to the case of Mirza Abdur Rahim Baig and another v. Abdul Hanif Lashari and 3 others PLD 1994 Karachi 388, to canvass the proposition of law that original jurisdiction of High Court exercisable at main seat at Karachi was not an ordinary civil jurisdiction as covered by Order XLIX, rule 3. C.P.C. And a plaint could be returned under Order VII, rule 10, C.P.C. Or even sent directly to the Court having jurisdiction. Learned counsel has further relied upon the case of Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28, to show that action for damages for malicious prosecution which is part of common law of England is no more an authority for Pakistan under its own Constitutional and legal set up. Reliance has also been placed on the case of Messrs Zeenat and 4 others v. WAPDA and others 2001 YLR 2736, where a plaint filed by the legal representatives of deceased who died in a road accident against WAPDA for damages at Rawalpindi was returned with a direction to institute the suit either at Attock where occurrence had taken place or at Islamabad where Head Office of respondent was situated. There can be no cavil with the propositions of law as laid down in the above referred reports, but the fact remains that the plaintiff has filed the suit at Karachi showing that cause of action has accrued him at Karachi as well. Lastly, the learned counsel has referred to the case of Ehsanul Haq Piracha and others v. Tajamal Hussain 1991 CLC Note 216 at p.169 whereafter examining sections 15 to 20, C.P.C. Mode for determination of the place of suing in suit for compensation has been laid down. This authority is of no help to the defendant rather it lends help to the case of the plaintiff as it has been clarified with reference to illustration (b) to section 19, C.P.C. That where defamatory statement was published in the place other than the place where defendant ordinary resided or worked for gain such suit could be filed in either of Courts. It has been 'further clarified that the word "wrong done" in section 19 of the C.P.C. Is of wide amplitude. It embraces all the facts, which are necessary to establish the plaintiff's rights to restrictive relief of compensation in relation to the loss of prestige of person wronged. It is thus quite clear that wrong may be committed at one place and its resultant injury may be caused at another place. The word "wrong done" comprises of facts starting from commission of act to its resultant effect. In such a case the plaintiff had an option to file the suit within the jurisdiction of the Court where the wrongful act was committed or in the jurisdiction of the Court wherein the resultant injury was caused or where the defendant ordinarily resided or worked for gain. It was further held that where wrongful acts were committed either at place "I" or at place "K" but resultant effect was caused at place "I" where plaintiff was working for gain, order of trial Court regarding territorial jurisdiction of Court at "I" was correctly decided and it was not open to any exception. Mr. Yousaf Ali Sayeed learned counsel for the plaintiff has argued that the case of the plaintiff stands covered under section 1Q, C.P.C. Which has clearly laid down that a suit for compensation for wrong done to the person could be filed either at the place where the wrong was done or where the defendant resides, or carries on business or personally works for gain within the local limits of jurisdiction of another Court, the suit could be instituted at the option of the plaintiff in either of the said Courts. It shall be beneficial at this stage to reproduce section 19, C.P.C. Which reads as follows:-- "Suit for compensation for wrongs to person or movables.---Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Court."
7. Learned counsel has further argued that as per para.40 of the plaint, cause of action has accrued at Islamabad as well as at Karachi where the wrong has been done to the person of the plaintiff as a result of publication in the newspapers particularly daily 'Janbaz' Karachi and the issuance of NBWs which were to be served upon the plaintiff at Karachi. Learned counsel for the plaintiff has also referred to the same two authorities as cited by him at the time of admission of this suit viz. Gokaldas Melaram v. Baldevdas T. Chabria AIR 1961 Mysore 188, wherein after examining the ingredients of section 19, C.P.C., it has been held that a suit for malicious prosecution could be instituted in a Court at Banglore within whose jurisdiction the plaintiff was served with summons in the criminal case commenced by the defendant in the Bombay Court. While examining the scope of sections 19 and 20, C.P.C. It has been held by A.R. Somnath Iyer, J., in the following words:-- "Section 19 in my opinion appears to have been .Enacted only for the purpose of elucidating the position that the place where the wrong is done to the person or movable property is the place where the cause of action arises within the meaning of section 20(c) of the Code."
8. In this context, it has further been held as under:-- "Section 19, in my opinion, is only an extension of section 20. Under the provision of section 20 of the Code which is a residuary section, any suit referred to in that section has to be instituted either in the Court within whose jurisdiction the defendant resides or carries on business or personally works for gain, or the cause of action wholly or in part arises."
9. Learned counsel has further placed reliance on the case of Alexander Brault v. Indrakrishna Kaul AIR 1933 Calcutta 706, where in a case for tort for malicious prosecution filed at Calcutta for criminal proceedings instituted by defendant against the plaintiff at ,Dhaka, it was held that Court at Calcutta had jurisdiction to entertain' the suit for damages where summons were served upon the plaintiff at Calcutta. Learned counsel has lastly relied upon the same authority as reported in 1991 CLC Note 216 to - substantiate his contention. I have given due consideration to the arguments of the learned counsel for the parties and the case-law cited at the bar. A bare reading of section 19, C.P.C. Leaves no room for any doubt that a suit for compensation for wrong done to the peron or to movable property may be instituted at the option of the plaintiff either in the Court within whose jurisdiction the defendant resides, or carries on business or personally worked for gain or where the wrong was done. It is disposal of an application for return of also weil settled that for the purpose of plaint, allegations in plaint are to he taken as true. Reference can be made to rule laid down in Messrs Agricides (Pvt.) Ltd. v. Messrs Ali Agro Supply Corporation Ltd. 1988 CLC 59 and Miss Shah Begum v. Ashraf Ali Naz PLD 1993 Karachi 151.
10. The case-law cited by the learned counsel for the applicant/defendant is of no help to him particularly when examined with reference to section 19, C.P.C., which includes a place where wrong was done. The word "wrong done" comprises of facts starting from commission of act to its resultant effect. From the perusal of plaint it appears that the plaintiff has claimed and shown in paras.33 to 40 that wrong was done to him at Karachi where he had to face mental agony and anguish as certain material was published and circulated against him through newspapers including daily 'Janbaz' Karachi and where he had the notice that the NBWs issued by the Senior Civil Judge/Magistrate at Islamabad against him were to be executed. Thus, it will be seen that the Courts at Karachi as well as Islamabad have jurisdiction to entertain the suit and adjudicate upon the matter in controversy. The up-shot of the discussion made above is that the application filed under Order VII, rule 10, C.P.C. For return of plaint for want of jurisdiction has no merits and it is dismissed accordingly.
2. C.M.A. No.7035 of 2003.---Let an additional set of plaint alongwith its annexures be sent to the learned counsel for the defendant through courier service on his address as shown in his Vakalatnama, at the cost of the plaintiff. Application stands disposed of accordingly. .