PLJ 2008 SC (AJ&K) 36
[Appellate Jurisdiction]
Present: Muhammad Reaz Akhter Chaudhry, C.J. and Khawaja Shahad Ahmed, JJ.
GHULAM NABI KHAN--Appellant
versus
MUHAMMAD ALTAF KHAN--Respondent
Civil Appeal No. 91 of 2005, decided on 8.6.2007.
(On appeal from the judgment of the High Court dated 20-05-2005 in C.A No 10/2005)
Civil Procedure Code, 1908 (V of 1908)--
----S. 20 & O. VII, R. 11--Rejection of plaint--Suit for recovery of due arrears decreed of--Jurisdiction--Determining--Plaintiff was working in abroad who executed a power of attorney in favor of the defendant to recover the amount of decree--Refused to make payment of the recovered amount--Defendant raised objection to jurisdiction--Held : While determining the question of jurisdiction the Court has only to look into the averments of plaint--Defence of defendant in the written statement or any attitude of defendant with regard to demand made by plaintiff is irrelevant for consideration, while determining the question of jurisdiction--Defendant had to pay the money because the plaintiff was unable to go to out of country--Defendant shall handover the amount to plaintiff, therefore, the cause of action accrued at Dhirkot, Civil Court at Dhirkot has the jurisdiction to try the suit.
[Pp. 40 & 42] A, B & C
PLJ 1987 SC (AJK) 118 and PLJ 1991
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIII, Rr. 5 & 15--Purpose and scope---Pauper suit--Dismissal of application to file pauper suit--Effect of--Status of suit after rejection of--Power of Court--Held : If the application for permission to file pauper suit is rejected, even then the plaint still remains in existence and Court can in its discretion, while rejecting the application, allow the plaintiff to pay the requisite fee, in such case the suit shall be deemed to have been instituted on the date of presentation of the application--Where the application to sue informa pauperous was filed within the period of limitation and the Court fee was permitted to be paid beyond the period of limitation, then the plaint must be treated as the one having been filed on the date of application--Provisions of Order XXXIII of the Code of Civil Procedure are beneficial in nature and are designed to ameliorate the hardships faced by those who are not in a position to pay the Court fee, therefore if at all one cannot pay the Court fee, rather he files an application for permission to file the pauper suit, then even if his application is turned down, he can be allowed to pay the Court fee and his application can be considered as a suit--The basic spirit is to dwindle the hardship faced by those who are not in a position to pay the Court fee--When the application for permission to file suit was yet pending before the Court, the Court could entertain the Court fee on the suit already pending before it--Appeal dismissed.
[Pp. 43 & 44] D, E & F
PLJ 1988 Kar. 59 and PLJ 1991 Lah. 482, ref.
Sardar Atta Ellahi Khan Abbasi, Advocate for Appellant.
Raja Khaliqdad Khan, Advocate for Respondent.
Date of hearing: 27.4.2007.
Judgment
Muhammad Reaz Akhter Chaudhry, C.J.--This appeal, with the leave of Court, is directed against the judgment of the High Court dated 20.5.2005, whereby the appeal filed by the plaintiff-respondent against the judgment of the Additional District Judge Dhirkot was accepted.
2. The succinct
facts, forming the background of the instant appeal, are that the
plaintiff-respondent brought a suit for recovery of Rs.2 lac in the Court of
Additional District Judge Dhirkot. It was averred by him that he went to
3. During the pendency of suit, the defendant moved an application under Order VII, Rule 11 of the Code of Civil Procedure, stating therein that all the affairs and transactions between the parties took place abroad. Therefore the Civil Court of Dhirkot has no jurisdiction to adjudicate upon the subject-matter of suit. It was further stated that on 22.11.2003 a permission was granted to the plaintiff for filing the Pauper suit, upon which the defendant filed his objections. In the light of objections, on 19.4.2004 the trial Court cancelled the registration of case and the suit was dismissed. The suit of plaintiff was dismissed on 19.4.2004, while on 14.6.2004 the plaintiff had affixed the Court fee on a dismissed suit, which is illegal because the suit had already been dismissed. When no suit was lying in the Court, then how the Court fee could be entertained by the Civil Court. The suit of plaintiff is therefore liable to be dismissed. It was craved that the plaint may be rejected while invoking the powers under Order VII, Rule 11 of the Code of Civil Procedure.
4. This application was contested by the plaintiff-respondent, Muhammad Altaf Khan. The trial Court accepted the application of the defendant vide order dated 24.12.2004 and rejected the suit on the ground that the transaction between the parties took place abroad, therefore, the Civil Court at Dhirkot has no jurisdiction to try the suit. Feeling aggrieved from the said order, the plaintiff-respondent filed an appeal in the High Court of Azad Jammu and Kashmir which was accepted by the learned single Judge of the High Court vide judgment dated 20.5.2005. A petition for leave to appeal was filed against the aforesaid judgment of the High Court. Leave was granted, thus the instant appeal is against the aforesaid judgment of the High Court.
5. The learned counsel for the appellant, Mr. Atta Ellahi Abbasi, argued that the decree was passed by the Civil Court in Dubai, therefore, the amount was to be received from the Civil Court in Dubai. The power-of-attorney was executed at Karachi which nowhere contained that after receiving the amount same was to be paid to the respondent. He submitted that in the instant case when the power-of-attorney was executed at Karachi and the amount was to be received from Dubai, then the Civil Court at Dhirkot has no jurisdiction to adjudicate upon the subject matter of suit. In this respect he referred the cases reported as Abdul Ghafoor & Brothers Contractors vs. Natural Food and Beverage (Pvt.) Ltd. and others [2000 SCR 606], Muhammad Mumtaz Malik vs. SHO Police Station Kotli and others [2003 SCR 84] and AKMIDC vs. Akber Ali Malik [1999 SCR 476]. It was further argued by the learned counsel that in the instant case no application for permission to file Pauper suit was moved, but in the plaint it was stated that the plaintiff is a poor man and has no sources to pay the Court fee, therefore, he may be allowed to file the Pauper suit. The trial Court did not allow the plaintiff to file the Pauper suit. A detailed order was passed by the trial Court on 19.4.2004, whereby the registration of the case of plaintiff was ncelled. In this way no case of plaintiff remained subjudice in the Court of Additional District Judge Dhirkot. Subsequently the plaintiff deposited the Court fee and the Court started the proceedings on the same suit which had already been disposed of. After the rejection of the suit, the Court was not competent to restart the same. The learned counsel referred Order XXXIII, Rules 5 and 15 of the Code of Civil Procedure and contended that when once it was decided by the Court that the plaintiff could not be allowed to file Pauper suit, then there was no suit in existence and the plaintiff had to file a fresh suit before the trial Court. No Court fee can be entertained on a suit which has already been rejected by the Court. The learned counsel further submitted that the judgment of the High Court is illegal. The learned Judge of the High Court has failed to consider the important aspect of the case that all the affairs and the transactions between the parties took place abroad. Moreover the power-of-attorney was also executed in Karachi, therefore, the Civil Court at Dhirkot has no jurisdiction to adjudicate upon the subject-matter of suit.
6. While controverting the arguments of the learned counsel for the appellant, Mr. Khaliqdad, the learned counsel for the respondent, argued that the judgment of the High Court is based on sound, cogent and solid reasonings. It does not require any interference by this Court. He submitted that Section 20 of the Code of Civil Procedure clearly contains that every suit shall be instituted in a Court within the local limits of whose jurisdiction the defendant or each of the defendants actually and voluntarily resides or caries on business or personally works for gain and in the instant case the defendant resides within the jurisdiction of the Civil Court Dhirkot. Moreover the cause of action arose in Dhirkot. It was promised by the defendant at Dhirkot that after receiving the amount he shall handover the same to plaintiff. Therefore the cause of action arose at Dhirkot. In this respect he referred the cases reported as Muhammad Hussain vs. Mst. Fatima [PLJ 1991 Lahore 482] and ESSO Eastern Ins. And another vs. Ark Navigation Company and others [1987 SCMR 2097].
7. We have heard the learned counsel for the parties, perused the relevant record and have given our utmost consideration to the respective arguments advanced by the learned counsel for the parties. The primary question requiring determination in the instant case is whether the Civil Court at Dhirkot has jurisdiction to adjudicate upon the subject-matter of suit? it is well settled principle of law that while determining the question of jurisdiction the Court has only to look into the averments of plaint. The defence of defendant in the written statement or any attitude of defendant with regard to demand made by plaintiff is irrelevant for consideration while determining the question of jurisdiction. This view finds support from a case reported as Muhammad Hussain Khan and 3 others vs. Muhammad Din and 6 others [PLJ 1987 SC (AJK) 118] wherein it has been observed as under:
"On the above premises of the reasoning we hold that the question whether the suit lies in the Civil Court or its jurisdiction is ousted, ordinarily depends upon the construction of the plaint only. What the defence of the defendant in his written statement will be or what attitude the defendant assumes with regard to the demand made by the plaintiff is really an irrelevant consideration in the determination of this question."
This view also finds support from another case titled Mrs. E. Williams and another vs. Vallabhdass [AIR 1962 Andhra Pradesh 447] wherein it has been held as under:--
"I, therefore, hold that the jurisdiction of the Civil Court is not ousted merely because the defendants pleaded in their written statement that they are the tenants and that the plaintiff is their landlord. Initially, it is the allegations in the plaint that determine the jurisdiction of the Court and not the averments in the written statement."
In this report it has been clearly laid down that while determining the question of jurisdiction of Court, the Court has to look into the allegations of the plaint. It is only the allegations in the plaint that determine the question of jurisdiction, not the averments in the written statement. It is also pertinent to note that while determining the question of jurisdiction, the Court has to assume the averment of the plaint as correct. This view further finds support from a case reported as [PLD 1966 (W.P.) Lahore 1050], wherein it has been observed as under:-
"....It is a well established principle that the nature of a suit for the purpose of determining jurisdiction has to be decided on the basis of the averments in the plaint and not on the basis of any defence that may be taken up. In Cheta vs. Baija and others [AIR 1927 Lah. 452] it was held that in order to ascertain the nature of a suit, the general rule is that the allegations in the plaint must, primarily, be looked into and that these allegations govern the question of jurisdiction."
This view further finds support from another case reported as Labhua Sao vs. Chetan and another [AIR 1924 Nagpur 275].
8. In the instant case in Para No. 2 of the plaint, it has been elearly stated by the plaintiff that he had come to his house from Dubai due to some exigency. He could not go to Dubai, so while reposing on the defendant, he executed a power-of-attorney in his favour and authorised him to receive the amount of decree from the Civil Court at Dubai and hand over to him. In the aforesaid averment, it has been clearly stated by the plaintiff that he came back to his house from Dubai and executed a power-of-attorney in favour of defendant for receiving the amount. It was also agreed that the defendant shall handover the money to him after receiving the same. This averment is clear that it was agreed upon by the defendant at the house of plaintiff, as stated in the aforesaid para of the plaint.
9. It would not be out of place to mention here that the plaintiff was unable to go to Dubai, as stated in the plaint, therefore, he authorized the defendant to receive the money from the Civil Court at Dubai and handover the same to plaintiff. Thus it is quite clear that the defendant had to pay the money at Dhirkot because the plaintiff was unable to go to Dubai. As it was agreed upon between the parties at the house of plaintiff that the defendant shall handover the amount to plaintiff, therefore, the cause of action accrued at Dhirkot. The Civil Court at Dhirkot has the jurisdiction to try the suit.
10. As far the power-of-attorney is concerned, no doubt it was executed at Karachi but let us make it clear that this power-of-attorney was executed only for the purpose of receiving the amount from the Civil Court at Dubai. We have minutely gone through the power-of-attorney. It nowhere contains that after receiving the amount at Dubai, the defendant shall pay the same to plaintiff at Karachi. As stated in Para No. 2 of the plaint, the plaintiff had come back to Dhirkot from Dubai. He authorized defendant to receive the amount from the Civil Court at Dubai and handover the same to him. It clearly indicates that the amount was to be paid to plaintiff by the defendant at Dhirkot because the plaintiff was not capable to go to Dubai. Thus, the Civil Court at Dhirkot has the jurisdiction to try the suit. It would also not be out of place to mention here that in the instant case only the plaint contains that after receiving the amount, the defendant shall pay the same to plaintiff. The power-of-attorney is silent on the subject where the amount shall be paid. Therefore in this case Section 20 of the Code of Civil Procedure shall apply which clearly contains that every suit shall be instituted in a Court within the local limits of whose jurisdiction the defendant or each of the defendants actually and voluntarily reside. In the instant case, at the time of filing of suit, the defendant was residing in Dhirkot. Moreover he is a permanent resident of Dhirkot and living within the jurisdiction of Civil Court Dhirkot. He has gone to Dubai only for earning livelihood. Therefore the Civil Court at Dhirkot has the jurisdiction to try the suit.
11. As far the contention of the learned counsel for the appellant is concerned that when the permission for filing the Pauper suit was not granted by the Additional District Judge Dhirkot, then he was not competent to entertain the Court fee on the same suit which was dismissed by him, it has no substance for the reason that an application along with the suit was filed on 22.11.2003 for declaring the plaintiff as Pauper and for permission to file the Pauper suit. This application was accompanied by an affidavit. So on 22.11.2003 the plaintiff was declared as Pauper subject to objections from the other side and conditionally he was allowed to file the Pauper suit. On this application a notice was issued to the defendant. When the defendant appeared before the Court, he stated that the plaintiff is a rich man and he cannot be declared as a Pauper. On his objections, the conditional permission for filing the Pauper suit was withdrawn and the registration of suit was cancelled. The proceedings were initiated on the application for filing Pauper suit, so it could not be said that the suit was dismissed or the application of plaintiff for filing Pauper suit was turned down but that remained under the inquiry. Only the conditional permission of filing Pauper suit was withdrawn.
12. As far the contention of the learned counsel for the appellant is concerned that when once the registration of suit has been cancelled from the register of trial Court and it has been dismissed, then the Court fee could not be entertained on the same suit but a fresh suit was to be filed by the plaintiff, it has no substance. If the application for permission to file Pauper suit is rejected, even then the plaint still remains in existence and the Court may in its discretion, while rejecting the application, allow the plaintiff to pay the requisite fee. In such case the suit shall be deemed to have been instituted on the date of presentation of the application. Where the application to sue informa pauperous was filed within the period of limitation and the Court fee was permitted to be paid beyond the period of limitation, then the plaint must be treated as the one having been filed on the date of application. This view finds support from a case reported as Ark Navigation Company of Pakistan Ltd. and another vs. ESSO Pakistan and another [PLJ 1988 Karachi 59]. It is pertinent to note that the provisions of Order XXXIII of the Code of Civil Procedure are beneficial in nature and are designed to ameliorate the hardships faced by those who are not in a position to pay the Court fee. Therefore if at all one cannot pay the Court fee, rather he files an application for permission to file the Pauper suit, then even if his application is turned down, he can be allowed to pay the Court fee and his application can be considered as a suit. This view finds support from a case reported as Muhammad Hussain etc. vs. Mst. Fatima etc. [PLJ 1991 Lahore 482] wherein it has been observed as under:--
"5. In the present case, the trial Court proceeded under Rule 5 of Order XXXIII of the Code of Civil Procedure to reject the application of the petitioner holding that he was not a pauper. The question which arises for consideration, therefore, is as to whether the trial Court, while rejecting the application, could have allowed Respondent No. 1 to affix proper Court fee and to treat it as plaint as having been filed on the day when the application was presented.
6. Although there appears to be a divergence of opinion on this question, but some of view that the judgment of the Sindh High Court in Ark Navigation Company's case supra enunciates the correct legal position. In that case, it was held that the Court
while rejecting the application for leave to sue as pauper under Rule 5 may, if it is satisfied that the application was not mala fide, permit the applicant to make good the deficiency in Court fee under Section 149 of the Civil Procedure Code and on such Court fee being paid, within the time allowed by the Court, the application can be treated as a plaint deemed to have been presented on the day when the application was filed.
7. It is to be noticed that the provisions of Order XXXIII of the Code of Civil Procedure are beneficial in nature and are designed to ameliorate the hardship faced by those who are not in a position to pay Court fee. Although the proceedings commence by filing an application for permission to sue as a pauper, Rule 1 of Order XXXIII requires that the application for permission to sue as a pauper shall contain the particulars requisite in regard to plaint in a suit."
13. The basic spirit of Order XXXIII is to dwindle the hardship faced by those who are not in a position to pay the Court fee. Therefore when the application for permission to file Pauper suit was yet pending before the Court, the Court could entertain the Court fee on the suit already pending before it. No illegality has been committed by the trial Court while entertaining the Court fee.
The nub of the above discussion is that finding no force in this appeal, it is hereby dismissed with the aforesaid observation.
(W.I.B.) Appeal dismissed