2012 C L C 1988
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
Mir MITHA KHAN ----Petitioner
versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and another ----
Respondents
Civil'Revision No.35 of 2012, decided on 4th July, 2012.
(a) Civil Procedure Code (V of 1908) ---
----S. 20(c) & O. VII, R. 11 ---Specific Relief Act (I of 1877), S.42 ---Suit for declaration
calming right of the plaintiff t o be eligible for appointment at place "I" ---Rejection of plaint --
-Territorial jurisdiction ---Cause of action ---Plaint was rejected on ground of lack of
territorial jurisdiction of Trial Court ---Validity ---Cause of action for the purpose of the
present cas e would mean the legal demand of a right for which the suit was filed ---
Advertisement appeared for the post in newspaper published at place "Q"; and in response
thereof, the plaintiff submitted his application for the post through proper channel from place
"Q"---Cause of action, therefore, partly accrued at place "Q", and the suit was rightly filed
before the Trial Court ---Courts below had erred while arriving at the conclusion that there
was a lack of territorial jurisdiction.
(b) Specific Relief Act (I of 1877) ---
----S. 42---Suit for declaration claiming right of the plaintiff to be eligible for appointment
and refraining the authorities from appointing any other person to the post ---Maintainability --
-Plaintiff had to show that he had some legal char acter, whereby he was entitled for relief as
claimed in the suit to cover it within the ambit of section 42 of the Specific Relief Act, 1877;
but he failed ---Exclusive authority vested with the authorities advertising the post seeking
appointment of a pers on in the service ---No violation of law was pointed out, and the plaintiff
may have been a candidate, but such fact did not create any legal character in his favour to
file a suit for declaration ---Suit was not maintainable ---Revision was dismissed, in
circumstances.
Manzoor Ahmed Rehmani for Petitioner.
Rauf Atta, Standing Counsel and Amanullah Tareen, Addl. A. -G. for Respondents.
Date of hearing: 11th April, 2012.
ORDER
MRS. SYEDA TAHIRA SAFDAR,, J. --- Feeling aggrieved of the judgment dated 2 8th
October, 2011 of Senior Civil Judge -II, Quetta whereby the suit filed by the petitioner was.
rejected under provisions of Order VII, Rule 11, Civil Procedure Code (C.P.C.) for lack of
territorial jurisdiction in the matter, and judgment dated 13th Febr uary, 2012 of Additional
District Judge -II, Quetta, who arrived to the same decision. It was contended that the courts
below made error while holding that no cause of action accrued within the territorial
jurisdiction of the court, thereby arrived to the c onclusion that the suit was not maintainable.
It was contended that under section 20, C.P.C. the suit was very much maintainable before
the court, as part of cause of action accrued at Quetta therefore, the application under Order
VII, Rule 11, C.P.C. was liable to dismissed. The petitioner prayed that the suit be remanded
to the trial court for proceeding with matter in accordance with law, after setting aside of both
the impugned orders.
2. Brief facts of the case are that the petitioner filed a suit wi th the prayer that: ---
"(i) to declare that, plaintiff is entitled, deserving and qualified for the post of
Microform Technician (B -12) in the National Assembly Secretariat Islamabad on the
basis of Provincial Reserved Quota,
(ii) to restrair the defen dant No.2 from re -advertising the post of Microform
Technician (B -12) in the National ' Assembly Secretariat Islamabad. Further he
defendant No.2 may be restrained from making appointment any other person on the
same post,
(iii) to direct the defendant N o.2, to make appointment of the plaintiff on the post of
Microform Technician (B -12) in the National Assembly Secretariat Islamabad on the
reserved quota of the province of Balochistan, as well as qualification of the plaintiff,
(iv) Any other relief whi ch this Hon'ble Court may deem fit and proper may also be
awarded, in the interest of justice. "
The record reveals that after effecting of service, respondent No.1/defendant No.1 instead of
filing written statement filed an application under provisions of Order VII, Rule I1, C.P.C.,
thereby sought dismissal of the suit on ground that as no cause of action accrued against the
respondent No. 1. Further as the matter pertains to National Assembly Secretariat, Islamabad
therefore, the court has no jurisdicti on in the matter. This application was strongly contested
by the petitioner, by way of filing reply. The trial Court through order dated 20th October,
2011 arrived to the conclusion that no cause of action accrued within the territorial
jurisdiction of the court therefore, the court had no jurisdiction to entertain the suit which was
rejected. Feeling aggrieved of the order the petitioner approached the appellate court, who
concurred with the findings of the trial Court through order dated 13th February, 20 12. Still
feeling aggrieved the instant petition had been filed.
3. Learned counsel for the petitioner while arguing the'matter was of the view that the
decision made by the courts below only pertains to territorial jurisdiction of the court which
was wr ongly decided. According to him a part of cause of action accrued within the territorial
jurisdiction of the trial Court, therefore, the suit was very much maintainable. It was further
contended that until and unless respondent No.l was party to the 'suit, the jurisdiction vest
with the trial Court. Further, admittedly a part of cause of action accrued within the local
limits of the trial Court, therefore, the jurisdiction vests with it to entertain the suit. The
learned counsel made reference to section 20 of C.P.C. In reply to the arguments the learned
Standing Counsel was of the view that apart from of territorial jurisdiction, the suit in present
form was not maintainable. Because the petitioner had no legal character to file the suit as
required under p rovisions of section 42 of Specific Relief Act, '1877. Learned counsel
referred to Article 212 of the Constitution of Pakistan with contention that a complete bar has
been provided therein for filing a suit pertaining to matter relating to services. He fur ther
referred to section 16, C.P.C., with assertion that territorial jurisdiction was to be determined
as provided therein. It was contended that the suit was rightly dismissed by the courts below.
While arguing his case the learned Additional Advocate -General contended that no cause of
action accrued to the petitioner against respondent No.1, therefore, the suit was not
maintainable in present form. It was further contended that in the matter in hand the
constitutional petition was required to be filed ins tead of filing a suit. Learned counsel further
pointed out that there was contradiction in the pleadings and the relief claimed by the
petitioner. He also made reference to section 16, C.P.C., being applicable in the matter. The
learned counsel for the pet itioner in reply only stated that section 20, C.P.C. was relevant in
the matter in hand.
4. The Courts below without going into merits of the case only recorded findings in respect of
territorial jurisdiction of the court thereby arrived to the conclusio n that there is lack of
territorial jurisdiction in the matter, as no cause of action accrued in its local limits. It was
finding of the trial Court that though the advertisement was published in local newspapers at
Quetta, and the application was submitte d from Quetta, but the publication was got effected
in the newspaper on behalf of National Assembly, Islamabad and the application was also
submitted to Islamabad, while the test was held at Islamabad, therefore, no cause of action
accrued within the local limits of the court at Quetta. The appellate court instead of
independently assessing the material, simply made reproduction and arrived to the
conclusion, thereby concurred with the findings of the trial Court. It was observed that the
respondents/ defen dants instead of filing written statements, respondent No.1 filed an
application for rejection of the plaint. It was not proper, rather the trial Court may have
obtained written statement of the defendants, where after decided the objection taken in
respec t of jurisdiction of the court, which was not done. But it was mere an irregularity made
by the courts below. It can be overlooked.
5. The learned Additional Advocate -General, and learned Standing Counsel placed reliance
on section 16, C.P.C., with conte ntion that the court at Quetta had no jurisdiction in the
matter, as no cause of action accrued within the local limits of the court. The contents of the
section 16, C.P.C. described the jurisdiction of a court pertaining to cases whereby the
subject -matte r of the suit is an immovable property, and whereby its recovery, partition, sale,
foreclosure, redemption of mortgage or 'any other right or interest claimed thereon. This
section further includes the matter pertaining to compensation of wrong done for im movable
property, and recovery of movable property. In view of the provisions contained therein this
section shall apply to the suit wherein the matter in dispute is some property either movable
or immovable or any right attached thereto. But in present ca se the matter in issue pertains to
the right of appointment on a specific post in service of Pakistan. Therefore, section 16,
C.P.C. will not be attracted. Rather section 20, C.P.C. will cover the matter in hand. Clauses
(a) and (b) of the section will not be applicable, as the Provincial Government, and National
Assembly Secretariat are party to the suit. Therefore, the Clause (c) of the section will be
helpful in determining the territorial jurisdiction of the court. The Clause (c) provides that
every sui t shall be instituted in the court within local limits of whose jurisdiction the cause of
action wholly or in part arisen. There is no hard and fast rules for the purpose, but the accrual
of cause of action is to be seen independently in each and every cas e, keeping in view the
facts of the case.
6. In present case the petitioner claimed his right, and sought declaration in respect of his
eligibility, and thereby appointment for the post of Microform Technician (B -12) in National
Assembly Secretariat Isl amabad on the basis of quota reserved for Province of Balochistan.
Therefore, in view of the facts so stated, in the case in hand the cause of action initially
accrued to the petitioner on publication of advertisement' in the newspaper, whereby he
applied for the post by way of submitting an application, where after, his appearance in test
and interview, and lastly refusal on part of the respondent. Though as per contents of the
plaint the advertised post pertains to Islamabad, while the advertisement so ma de by the
Secretary National Assembly Secretariat, Islamabad, and test was also held at Islamabad. To
determine the point it is to be seen where the cause of action arise whole or in part. The cause
of action for the purpose would mean the legal demand of a right for which a suit was filed.
Therefore, in order to assess the accrual of cause of action only those facts are to be
considered, as described in the plaint, which are necessary to prove the order to obtain a
judgment. In present case the advertiseme nt appeared for the purpose in newspaper published
at Quetta, and in response thereof he submitted an application, thereby applying for the post
through proper channel from Quetta. Therefore, cause of action partly accrued at Quetta
within the local limits of the trial Court situated at Quetta. Therefore, the suit was rightly filed
before the trial Court. But the trial as well as the appellate court made errors while arriving to
the conclusion that there is lack of territorial jurisdiction.
7. Apart from the territorial jurisdiction of the court during course of arguments keeping in
view the nature of the suit, it was asked from the counsel for the petitioner that whether a suit
of such a nature, whereby the appointment on a specific post claimed as matter of right and a
declaration to the effect, with issuance of injunction, can be filed before a court of general
jurisdiction and the relief claimed therein can be granted by the court. The learned counsel for
the petitioner failed to reply the query. While the learned Standing Counsel was of the view
that the suit in present form was not maintainable, because no legal character vest with the
petitioner to file a suit of such a nature as required under visions of section 42 of Specific
Relief Act, 1877. The l earned Additional Advocate -General was of the same view, with
further addition that the suit was not maintainable; rather a Constitutional Petition may have
been filed for the purpose.
8. The learned Standing Counsel during course made reference to Artic le 212 of the
Constitution. This Article pertains to formation of Administrative Courts, and Tribunal,
having exclusive jurisdiction pertaining to the matters mentioned therein Clause (a) of sub -
Article (1) of the Article describe constitution of Tribunal having jurisdiction pertaining to
the matters relating to the terms, and condition of persons (who are or have been) in the
service of Pakistan including the disciplinary matters. Though this Article pertains to the
matter related to service, but not attra cted in the instant case. Because till present the
petitioner had not been appointed, nor entered in service of Pakistan or province. Rather he
can only be treated as a candidate contesting for the post advertised by respondent No.2,
therefore, he cannot a pproach the Service Tribunal constituted under Article 212 of the
Constitution. Therefore, the petitioner had to show that he had some legal character, thereby
he is entitled for the relief as claimed in the suit, to cover his case within the ambit of sect ion
42 of Specific Relief Act, 1877. But he failed. The petitioner failed to disclose existence of
any legal character in his favour, which entitled him for the relief claimed in the suit. Rather
in view of the narrated facts the exclusive authority vest w ith the Authority advertising the
post seeking appointment of a person in the service. Though the observance of relevant law
and rules are mandatory in each case. And if there is any violation of the same, the person
aggrieved thereof can approach the rele vant authority for the purpose. But it was not the case
of the petitioner, as no violation of law had been pointed out. The petitioner may be a
candidate, thereby made appearance in the test but these facts did not create any legal
character in his favour, to file a suit for declaration and obtain an order for his appointment
on the post. If any fundamental right of the petitioner is being violated by act of some
government authority, he may approach the forum available to him. No suit can he filed for
the purpose before a court of general jurisdiction nor any declaration can be made to the
effect.
9. In view of the above discussion though territorial jurisdiction vest with the courts below,
but the suit was not maintainable being hit by section 42 of Spec ific Relief Act. 1877,
therefore, not maintainable and was liable to be dismissed. Therefore, rightly dismissed.
In view of the above discussion the petition being without merits is hereby dismissed.
There shall be no orders as to costs.
KMZ/65IQ Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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