Section 28 : Agreement in restraint of legal proceedings void
2022 MLD 1363 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD KHALID VS ADDITIONAL DISTRICT JUDGE
S.12—Civil Procedure Code (V of 1908), O. VII, R.11—Contract Act (IX of 1872), Ss.11 & 28—Suit for specific performance—Rejection of plaint—Agreements in restraint of legal proceedings void—Competence of minors to contract—Scope—Petitioners assailed the concurrent rejection of plaint of their suit for specific performance—Courts below had formulated two questions to decide the fate of the plaint filed by the petitioners; first one was regarding the restraints imposed by the petitioners to avail the legal remedy available in the law and the second was the execution of the agreement by the minors—Validity—No restriction could be imposed on any party from enforcing their rights provided by the law—Contents of the agreements revealed that respondents were barred from availing the remedy of appeal or revision, etcetera provided in the law—Minors were not competent under S. 11 of the Contract Act, 1872 to enter into any type of the contract but in accordance with law—Even otherwise, it looked very ludicrous, that on one hand executants/sellers were being restrained from enforcing their legal rights in case of any dispute and on the other hand, petitioners had knowingly allowed the minors to execute the agreement—Petitioners themselves were responsible for creation of an invalid document—Revision petition was dismissed.
2022 MLD 1363 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD KHALID VS ADDITIONAL DISTRICT JUDGE
S.28—Agreements in restraint of legal proceedings void—Scope—Document must be construed and read as a whole and S.28 of Contract Act, 1872, applies where there is absolute restraint against the enforcement of rights.
2022 MLD 1363 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD KHALID VS ADDITIONAL DISTRICT JUDGE
S.28—Agreements in restraint of legal proceedings void—Scope—Section 28 of Contract Act, 1872, declares any contract to be void restricting “absolutely” the parties from enforcing their rights under or in respect of any contract.
2021 PLD 108 KARACHI-HIGH-COURT-SINDH
Syed ASADUL HAQ VS BALOCHISTAN GLASS LIMITED
28—Agreements in restraint of legal proceedings void—Principles—Nature and concept of voidability of agreements in restraint of legal proceedings, and exceptions thereto—Scope—When parties mutually agree that although an action arising out of a contract, could be brought before courts in multiple jurisdictions but a particular court which had otherwise jurisdiction to try such cause, was mentioned in such contract for purpose of adjudicating disputes, then such clause of agreement was not adversely affected by S.28 of Contact Act, 1872 as same could not be construed a restraint to legal proceedings—Such established legal principle may not be applicable in every case where there existed distinctive features which made said case(s) fall in exception to said legal principle.
2019 CLC 887 ISLAMABAD
TELECOM SERVICES AND CONSULTANTS (PVT.) LTD. VS OOREDOO Q.S.C.
28—Civil Procedure Code (V of 1908), O. VII, R. 10—Return of plaint—Jurisdiction of court—Forum selection—Maintainability—Dispute between parties was with regard to utilization of forum selection clause in contract—Defendant company sought return of plaint on grounds that courts situated in Pakistan did not have jurisdiction in the matter—Validity—Upholding sanctity of contractual bargain was pivotal—Court was to give effect to ‘exclusive’ jurisdiction clauses unless plaintiff was able to discharge heavy burden of satisfying court that circumstances existed, not foreseen at time of execution of contract containing such a clause, that proceedings be allowed in a non-contractual forum—Plain language of ‘forum selection clause’ was precise, unambiguous and clear and there was no doubt that parties had intended jurisdiction of English courts to be ‘exclusive’—Clause covered adjudication of grievances or cause of action disclosed and asserted in plaint—Refusal of instant application would tantamount to enable plaintiff to circumvent binding obligation, which it had undertaken at time of accepting two process letters including forum selection clause contained therein—Parties had also chosen English law as governing law and plaintiff had not raised any ground so as to justify refusal in giving effect to exclusive jurisdiction clause—Plaintiff had accepted exclusive forum selection clause voluntarily and out of free will—High Court allowed application under O. VII, R. 10, C.P.C. as it was just and proper to give effect to exclusive clause contained in respective process letters—Application was allowed in circumstances.
2018 CLC 511 QUETTA-HIGH-COURT-BALOCHISTAN
ZARGHOON SHAH VS DILAWAR KHAN
12(2) & O.XIV—Transfer of Property Act (IV of 1882), S. 107—Registration Act (XVI of 1908), Ss. 17(d) & 49—Contract Act (IX of 1872), S.28—Petitioner was aggrieved of order passed by two courts below whereby judgment and decree passed in his favour was set aside by Trial Court in exercise of powers under S.12(2), C.P.C. and order was maintained by Lower Appellate Court—Validity—Lease agreement in question was not registered and such agreement for purpose of tenure was to be binding upon initially for a period of 11 months whereafter relationship between parties was to be regulated in terms of the Transfer of Property Act, 1882—Trial Court as well as Lower Appellate Court failed to consider the case in view of S.107 of Transfer of Property Act, 1882 read with Ss.17(d) & 49 of Registration Act, 1908 as well as S.28 of Contract Act, 1872—Trial Court without framing issues and providing opportunity to parties with regard to legal and factual aspects related to lease in question decided application under S.12(2), C.P.C. filed by respondents—High Court set aside the orders passed under S.12(2), C.P.C. as same required determination by Trial Court accordingly—High Court remanded the matter to Trial Court for decision afresh—Constitutional petition was allowed in circumstances.
2017 MLD 1707 PESHAWAR-HIGH-COURT
Syed NAIMAT SHAH VS MUSHTAQ ALI TAHIR KHELI
28—Agreement in restraint of legal proceedings—Scope—Agreement/contract that no fee would be charged for conducting cases would be void.
2016 PLD 199 SUPREME-COURT
PAKISTAN RAILWAYS through AGM(Trafic), Lahore VS FOUR BROTHERS INTERNATIONAL (PVT) LTD
2(e) & Chap. II [Ss.10 to 30-C]—Agreement, rescission of—Agreement between the parties had the status of a statute and unless it was shown that any term of the agreement was violative of the law, it could not be rescinded by a party.
2016 CLC 1197 LAHORE-HIGH-COURT-LAHORE
RAFHAN BEST FOODS LIMITED VS RASHID AND BROTHERS
28—Agreement in restraint of legal proceedings—Validity/ effect—Under S.28, Contract Act, 1872 every agreement by which any party thereto was restricted absolutely from enforcing his rights under or in respect of any contract by legal proceedings in the ordinary tribunals or which limited the time within which any party may enforce his rights was void to that extent.
2016 CLC 1197 LAHORE-HIGH-COURT-LAHORE
RAFHAN BEST FOODS LIMITED VS RASHID AND BROTHERS
20, O.XXXVII, R.2, O.VII, R.10 & O.XIV, R.2—Contract Act (IX of 1872), S.28—Recovery suit—Territorial jurisdiction—Agreement in restraint of legal proceedings—Defendant raised objection to the jurisdiction of the court and sought decision on the issue of jurisdiction before decision on merits—Validity—Issue of jurisdiction of court being a question of law could be raised by any party at any stage of the trial, even court itself was required to examine whether it had jurisdiction to seize with the matter or not—Merely because a party to the proceedings had not taken objection relating to jurisdiction, such a party would not be barred from taking such objection at any stage of proceedings—Parties could not confer jurisdiction on a court where the court was not vested with jurisdiction—Proceedings without jurisdiction were coram non judice—Question of (absence of) jurisdiction vitiated the entire proceedings—Section 20, C.P.C. provided that every suit would be filed in a civil court within whose local limits or jurisdiction the defendant resided or carried on business or where the cause of action wholly or in part occurred—Under S.28 of the Contract Act, 1872 every agreement by which any party thereto was restricted absolutely from enforcing his rights under or in respect of any contract by legal proceedings in the ordinary tribunals or which limited the time within which any party may thus enforce his rights was void to that extent—Civil courts exercised jurisdiction under Civil Procedure Code, 1908, where such courts did not have jurisdiction under the Civil Procedure Code, 1908, jurisdiction would not be conferred on civil courts by mutual agreement of parties to a dispute—Where two or more courts had jurisdiction to try a suit under Civil Procedure Code, 1908, parties could select a particular court having territorial and pecuniary jurisdiction for the determination of their dispute—Trial Court had to determine first whether it had jurisdiction or not—Revision was allowed with direction to Trial Court to treat the issue of jurisdiction as preliminary and decide the same prior to decision of other issues.
2016 CLD 1481 KARACHI-HIGH-COURT-SINDH
MUHAMMAD IRFAN GHAZI VS IZO SPA
XXXIX, Rr. 1 & 2, O. VII, R. 10 & S. 20—Contract Act (IX of 1872), S. 28—Specific Relief Act (I of 1877), S. 42—Suit for declaration—Maintainability—Foreign company—Agreement for distribution of foreign products in Pakistan—Agreement to settle dispute in foreign country—Stay of proceedings—Scope—Plaintiff engaged in business of imports, distribution, marketing and selling of defendant’s (foreign company) products in the local markets in Pakistan—Contention of plaintiff was that defendant (foreign company) had terminated agreement to deprive him from the fruits of the same and to cause irreparable loss—Validity—Defendant was a company established and functional in a foreign country and manufacturing it’s product there—Parties were in notice and knowledge of their status and place of residence/business—Interpretation of agreement, words used therein or conduct of the parties had to be examined keeping such fact in view—Plaintiff had nowhere challenged the legality of the Court of foreign country nor it was his case that issue involved/raised by him could not be determined by such court or plaintiff’s right could not be determined by such court—Status of plaintiff was that of ‘distributor’ of defendant-foreign company for products supplied through shipment—Such was a series of events—Every breach thereof would give a right to the plaintiff but every such right would be subject to ‘arising from or in connection with the agreement’—Plaintiff had right to sue at the place where cause of action had accrued which would be in a foreign country—Civil Procedure Code, 1908 did explain the ‘jurisdiction’, ‘try all suits unless barred’, ‘rejection of plaint or return thereof for presentation before proper forum’ but nowhere permitted the courts to stay proceedings of the suit—Once a lis was brought to a file of courts then law would provide mechanism for disposal of the same but it did not include an order of stay proceedings for an indefinite period—Procedure in courts in a foreign country might be different from one provided in Civil Procedure Code, 1908—Returning of plaint for presentation before proper forum would not meet the requirement of law rather result in causing prejudice to plaintiff—Suit before High Court in Pakistan was not maintainable which was dismissed in circumstances—High Court observed that dismissal of suit would not prejudice the rights of plaintiff to institute proper proceedings for adjudication of its grievances/claims as per applicable limitation of law if any.
2016 YLR 1583 KARACHI-HIGH-COURT-SINDH
MUHAMMAD IRFAN GHAZI VS IZO SPA
XXXIX, Rr. 1 & 2, O. VII, R. 10 & S. 20—Contract Act (IX of 1872), S. 28—Specific Relief Act (I of 1877), S. 42—Suit for declaration—Maintainability—Foreign company—Agreement for distribution of foreign products in Pakistan—Agreement to settle dispute in foreign country—Stay of proceedings—Scope—Plaintiff engaged in business of imports, distribution, marketing and selling of defendant’s (foreign company) products in the local markets in Pakistan—Contention of plaintiff was that defendant (foreign company) had terminated agreement to deprive him from the fruits of the same and to cause irreparable loss—Validity—Defendant was a company established and functional in a foreign country and manufacturing its product there—Parties were in notice and knowledge of their status and place of residence/business—Interpretation of agreement, words used therein or conduct of the parties had to be examined keeping such fact in view—Plaintiff had nowhere challenged the legality of the Court of foreign country nor it was his case that issue involved/raised by him could not be determined by such court or plaintiff’s right could not be determined by such court—Status of plaintiff was that of ‘distributor’ of defendant-foreign company for products supplied through shipment—Such was a series of events—Every breach thereof would give a right to the plaintiff but every such right would be subject to ‘arising from or in connection with the agreement’—Plaintiff had right to sue at the place where cause of action had accrued which would be in a foreign country—Civil Procedure Code, 1908 did explain the ‘jurisdiction’, ‘try all suits unless barred’, ‘rejection of plaint or return thereof for presentation before proper forum’ but nowhere permitted the courts to stay proceedings of the suit—Once a lis was brought to a file of courts then law would provide mechanism for disposal of the same but it did not include an order of stay proceedings for an indefinite period—Procedure in courts in a foreign country might be different from one provided in Civil Procedure Code, 1908—Returning of plaint for presentation before proper forum would not meet the requirement of law rather result in causing prejudice to plaintiff—Suit before High Court in Pakistan was not maintainable which was dismissed in circumstances—High Court observed that dismissal of suit would not prejudice the rights of plaintiff to institute proper proceedings for adjudication of its grievances/claims as per applicable limitation of law if any.
2016 PLD 169 KARACHI-HIGH-COURT-SINDH
GLOBAL QUALITY FOODS PVT. LTD. VS HARDEE’S FOOD SYSTEMS, INC.
28—-Civil Procedure Code (V of 1908), Ss. 9 & 20-Agreement in restraint of legal proceedings void—Saving of contract to refer to arbitration disputes that may arise—Suit barred by such contracts saving to contract to refer questions that have already arisen—Jurisdiction of court—Exclusive jurisdiction clause-Choice/selection of forum—Principles—Exclusive jurisdiction clause in an agreement cannot be ignored lightly merely at the whims of one of the parties to the contract, unless there is strong cause to displace the forum that the parties have agreed to resolve their dispute—Choice of forum and/or selection of forum have much significance—All local and foreign agreements containing choice or selection of forum clause are to be seen minutely—Two or more courts having jurisdiction to try a suit and agreement between the parties, any dispute arising between them shall be tried only by one of such courts, is not contrary to public policy, as the same would neither contravene provisions laid down in S.28 of Contract Act, 1872 nor violate in any manner provisions of Ss.9 or 20, C.P.C.
2014 PLC 278 LABOUR-APPELLANT-TRIBUNAL-BALOCHISTAN
MOULA DAD VS GENERAL MANAGER (MARKETING), NABI QASIM INDUSTRIES (PVT.) LTD.
28—Object of S.28, Contract Act, 1872—Parties cannot be restrained from entering into an agreement to get their disputes decided by a particular court of competent jurisdiction for their convenience and avoidance of unnecessary objections to the territorial jurisdiction of courts—Such an agreement would be legal and not hit by S.28, Contract Act, 1872 and parties were bound to follow the same.
2014 PLC 278 LABOUR-APPELLANT-TRIBUNAL-BALOCHISTAN
MOULA DAD VS GENERAL MANAGER (MARKETING), NABI QASIM INDUSTRIES (PVT.) LTD.
Ss. 41 & 54—Civil Procedure Code (V of 1908), O.VII, R.10—Contract Act (IX of 1872), S.28—Application under O.VII R.10, C.P.C.—Direction was issued to present the appeal to Civil Court at K—Question of determination of employee as worker/workman was not raised in appeal—Specific term had been incorporated in the contract executed between the parties to the effect that “in case of a dispute any legal proceedings shall be initiated at K”—Plea taken by the employee was that terms and conditions of contract of his initial appointment were not applicable after his promotion and that under S.28 of Contract Act, 1872 such condition was void—Extent and scope of S.28 of the Contract Act, 1872 regarding the ouster of jurisdiction of courts by the consent of the parties and the question of interpretation of a clause in the agreement which related to the ouster of jurisdiction of the courts by consent—Said provision provided two exceptions, which relate to an agreement with regard to arbitration—Word “absolutely” in S.28, Contract Act, 1872 was very clear which in ordinary sense meant unconditionally/unquestionably i.e. completely restraining a person to avail legal proceedings—In suit based on breach of contract a part of the cause of action arise at the place where the contract were to be carried out, in other words were according to the facts stated in the agreement the cause of action was to be deemed to have arisen could not be held to be illegal—Contract entered into between two parties the cause of action partly arose at one place and partly in the contract that in case of any dispute arising out of the contract same shall be litigated only wherein the jurisdiction of one particular court and in the present case, the courts in both places had jurisdiction such an agreement was valid one and enforceable under the law and the parties were bound by it—If cause of action had arises at the principal office as well as at the subordinate office and parties entered into an agreement and by consent conferred jurisdiction on the particular court in order to avoid the unnecessary raising of objection to jurisdiction which would will not be either against the public policy or violation of S.28 of Contract Act, 1872—Order of Labour Court was upheld—Appeal was dismissed in the circumstances.
2013 YLR 2769 LAHORE-HIGH-COURT-LAHORE
PAKISTAN STATE OIL COMPANY LTD. VS Malik HADI HUSSAIN
28—Agreement between parties to refer their dispute to a particular court having jurisdiction— Legality— Any agreement between parties agreeing to refer their dispute arising between them to a court having jurisdiction could not be considered contrary to public policy as the same does not contravene the provisions of S. 28 of Contract Act, 1872—Any such agreement would be considered lawful and parties would be bound to follow the same.
2013 YLR 2769 LAHORE-HIGH-COURT-LAHORE
PAKISTAN STATE OIL COMPANY LTD. VS Malik HADI HUSSAIN
28—Agreement in restraint of legal proceedings—Scope—Section 28 of Contract Act, 1872 declared any contract void which restricted “absolutely” the parties from enforcing their rights under or in respect of any contract by approaching ordinary Tribunals or which limited the time within which any of the parties to the agreement might enforce its rights.
2013 YLR 2769 LAHORE-HIGH-COURT-LAHORE
PAKISTAN STATE OIL COMPANY LTD. VS Malik HADI HUSSAIN
28—Civil Procedure Code (V of 1908), O. VII, R. 10—Agreement between parties to refer their dispute to a particular court having jurisdiction—Legality—Plaintiffs had filed a suit against the defendant-company in civil court at place “L”—Defendant-company filed an application before said civil court under O.VII, R. 10, C.P.C. contending that as per an agreement between the parties, only civil court at place “K” was conferred jurisdiction to adjudicate upon any dispute between the parties , therefore, plaintiffs were estopped and debarred from invoking jurisdiction of civil court at place “L”—Civil court at place “L” declined said application on the ground that agreement between parties regarding conferring of jurisdiction on civil court at place “K” was against the mandate of S. 28 of the Contract Act, 1872—Validity—Any agreement between parties agreeing to refer their dispute arising between them to a court having jurisdiction could not be considered contrary to public policy as the same does not contravene the provisions of S.28 of Contract Act, 1872—Any such agreement would be considered lawful and parties would be bound to follow the same—Agreement between the plaintiff and defendant-company admittedly conferred jurisdiction on civil court at place “K” to entertain and decide the lis in order to settle the dispute between the parties—Revision petition was allowed in circumstances, impugned order was set aside and application of defendant-company under O. VII, R. 10, C.P.C. was accepted with the direction to civil court at place “L” to return the plaint to the plaintiff for its presentation before the court of competent jurisdiction.
2012 CLD 464 PESHAWAR-HIGH-COURT
NATIONAL HIGHWAY AUTHORITY VS PUT SARAJEVO GENERAL ENGINEERING COMPANY
Ss. 2(c), 14(2), 17, 31 & 39—Civil Procedure Code (V of 1908), S.20(c)—Contract Act (IX of 1872), Ss. 23 & 28—Making award rule of court—Territorial jurisdiction of court—Award having been announced by the sole arbitrator, contractor company moved the court for making the award rule of the court—Court at place ‘P’ allowed the petition by partially making the award rule of court—Appellant had raised objection with regard to jurisdiction of the court, contending that as the contract/agreement was executed at place “I” and Head Office of the appellant as well as respondent company being located at place “I” and “L”, the court at “P” had no territorial jurisdiction over the matter—Plea of respondent company was that relevant clause of the agreement had merely fixed the venue at place “I” for the purpose of arbitration only, which had nothing to do with conferring of an exclusive jurisdiction in the court at place “I”—Agreement between the parties was executed at place “I” for a work to be done within District “P” and “N”—Agreement provided a clause for referring the dispute to adjudicator and then to the sole arbitrator—Agreement further provided that arbitration between the parties would be made at place “I”—Where there were many courts having the jurisdiction to entertain the dispute between the parties under the agreement, and the parties with their mutual consent agree to refer their dispute to any such court or courts, such consent agreement between the parties was not against the provisions of S.23 or 28 of the Contract Act, 1872—In the present case no such clause of agreement conferring jurisdiction in any one court except the one that the arbitration would be held at place “I”; in given circumstances, dispute between the parties could be referred to the court having the jurisdiction under the general law—Head Office of respondent company being at place “L”, suit regarding any dispute against respondent could be filed at place “L”—Work being done was within the territorial jurisdiction of the court at place “P” and dispute between them also cropped up there—Sub-offices of both the parties were also situated at place “P”—Such a dispute between the parties regarding the subject matter situated within the territorial jurisdiction of courts at place “P” could well be referred and agitated before the court at place “P” as cause of action wholly or partly, within the meaning of S.20(c), C.P.C. arose there—No bar existed in the agreement that the courts at place “P” would have no jurisdiction—Court at place “P” could well entertain the dispute— Findings of the courts below were set aside directing the office to send both the cases to the court of Senior Civil Judge at place “P”, who would decide the matter between the parties at its earliest.
2012 CLC 463 PESHAWAR-HIGH-COURT
NATIONAL HIGHWAY AUTHORITY VS PUT SARAJEVO GENERAL ENGINEERING COMPANY
Ss. 23 & 28—Civil Procedure Code (V of 1908), S.20(c)—Arbitration Act (X of 1940), Ss.2(c), 14(2), 17, 31 & 39—Making award rule of court—Territorial jurisdiction of court—Award having been announced by the sole arbitrator, contractor company moved the court for making the award rule of the court—Court at place “P” allowed the petition by partially making the award rule of court—Appellant had raised objection with regard to jurisdiction of the court, contending that as the contract/agreement was executed at place “I” and Head Office of the appellant as well as respondent-company being located at places “I” and “L”, the court at “P” had no territorial jurisdiction over the matter—Plea of respondent-company was that relevant clause of the agreement had merely fixed the venue at place “I” for the purpose of arbitration only, which had nothing to do with conferring of an exclusive jurisdiction in the courts at place “I”—Agreement between the parties was executed at place “I” for a work to be done within Districts “P” and “N”—Agreement provided a clause for referring the dispute to adjudicator and then to the sole arbitrator—Agreement further provided that arbitration between the parties would be made at “I”—Where there were many courts having the jurisdiction to entertain the dispute between the parties under the agreement, and the parties with their mutual consent agree to refer their dispute to any such court or courts, such consent agreement between the parties was also not against the provisions of S.23 or 28 of the Contract Act, 1872—In the present case no such clause of agreement conferring jurisdiction in any one court except the one that the arbitration would be held in “I” in given circumstances, dispute between the parties could be referred to the courts having the jurisdiction under the general law—Head Office of respondent-company being at place “L”, a suit regarding any dispute against respondent could be filed at place “L”—Work being done was within the territorial jurisdiction of the court at “P” and dispute between them also cropped up there—Sub-offices of both the parties were also situated at place “P”—Such a dispute between the parties regarding the subject-matter situated within the territorial jurisdiction of courts at “P” could well be referred and agitated before the court at “P” as cause of action wholly or partly, within the meaning of S.20(c), C.P.C. arose there—No bar existed in the agreement that the courts at “P” would have no jurisdiction—Court at place “P” could well entertain the dispute—Finding of the courts below were set aside directing the office to send both the cases to the court of Senior Civil Judge at place “P”, who would decide the matter between the parties at its earliest.
2011 CLC 294 KARACHI-HIGH-COURT-SINDH
Syed ASADUL HAQ VS BALOCHISTAN GLASS LIMITED
28—Scope of S.28, Contract Act, 1872—Section 28 of the Contract Act, 1872 did not restrain the parties from entering into an agreement to get their dispute decided by a particular court of competent jurisdiction for their convenience and avoidance of necessary objection to the territorial jurisdiction of the court—Intention behind the said provision of law was that all those agreements which restrained a person to enforce his rights under a contract by usual legal proceedings in the ordinary tribunals were void—Party could not be restrained to enforce his right in ordinary court of law but if by mutual agreement between the parties a particular court having territorial and pecuniary jurisdiction was selected for the determination of their dispute, there appeared to be nothing wrong or illegal in it or opposed to public policy—Such agreement was legal and not hit by S.28 of the Contract Act, 1872 and the parties were bound to follow the same.
2011 CLC 294 KARACHI-HIGH-COURT-SINDH
Syed ASADUL HAQ VS BALOCHISTAN GLASS LIMITED
20(c)—Contract Act (IX of 1872), S. 28—Territorial jurisdiction—Validity of an agreement by which the parties preferred one of the two courts depended upon the fact that both courts must have jurisdiction to decide the matter—If the party had not chosen the territorial jurisdiction of a particular court in the agreement the territorial jurisdiction could have been determined in view of S.20 (c), C.P.C. which provided right to sue at any place on accrual of cause of action in whole or in part.
2010 SCMR 478 SUPREME-COURT
MUHAMMAD ASHRAF JAVAID VS ALLAH RAKHA
13—Contract Act (IX of 1872), S.28—Ejectment petition—Bona fide personal need of landlord, ground of—Tenancy agreement containing a stipulation to the effect that landlord on receipt of Rs.80,000 would not eject tenant on ground of personal need–Ejectment petition accepted by Rent Controller and first Appellate Court was dismissed by High Court on the ground that such amount paid by. tenant to landlord was in consideration of such stipulation—Plea of landlord that such stipulation debarring him from seeking eviction of tenant was in violation of statutory provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 and Contract Act, 1872, thus, impugned order of High Court was not sustainable—Validity—Tenant had not controverted such plea of landlord—Rent Controller and first Appellate Court on basis of evidence on record had found personal need as bona fide—High Court had not attended to such aspect of the case—Supreme Court set aside order of High Court and restored order of ejectment concurrently passed by Rent Controller and first appellate Court while directing landlord to refund such amount to the tenant.
2010 CLC 1267 LAHORE-HIGH-COURT-LAHORE
UNITRADE IMPEX VS FEDERATION OF PAKISTAN
Ss. 9 & 20—Contract Act (IX of 1872), S.28—Accrual of cause of action to file suit within jurisdiction of different courts—Contract between parties containing a clause to take dispute before a particular court having jurisdiction—Validity—Mere consent of parties would not give jurisdiction to a court not having jurisdiction—Such clause of contract was a legal clause—Where there were many courts having jurisdiction and parties mutually consented to take their dispute before a particular court having jurisdiction, then such particular court would have exclusive jurisdiction to entertain the matter—Principles.
2009 CLD 1340 KARACHI-HIGH-COURT-SINDH
LIGHT INDUSTRIES (PVT.) LTD. Through Chief Executive VS ZSK STICKMASCHINEN GMBH through Attorney
S.28—Civil Procedure Code (V of 1908), Ss.20 & 9—Principal and agent—Suit of plaintiff (agent) was stayed on the ground that there existed an exclusive foreign jurisdiction clause in the agreement—Covenants in the agreement and the contract had addressed the controversy as the same were not contrary to the public policy nor contravened the provisions laid down in S.28 Contract Act, 1872 nor the same violated procedural law—In view of relevant clause of the agreement, contractual relations being subject to foreign law and both the parties having agreed to fulfil all obligations of the contract in foreign court having exclusive jurisdiction, there was no ambiguity in the mind of contracting party—Contention was that relief claimed in the suit could not be granted by the court of foreign jurisdiction which may deprive plaintiff from legitimate judicious advantage—Held, question of inconvenience to be faced by anyone of the parties was negated on account of reciprocal agreement between two parties, decree passed- by High Court in Pakistan could not be executed in the foreign country as foreign judgment; there being no reciprocal agreement between the two governments to execution of such decrees–Appeal was dismissed.
2009 CLC 1113 KARACHI-HIGH-COURT-SINDH
LIGHT INDUSTRIES (PVT.) LTD. through Chief Executive VS ZSK STICKMASCHINEN GmbH through Attorney
28—Civil Procedure Code (V of 1908), Ss.20 & 9—Principal and agent—Suit of plaintiff (agent) was stayed on the ground that there existed an exclusive foreign jurisdiction clause in the agreement—Covenants in the agreement and the contract had addressed the controversy as the same were not contrary to the public policy nor contravened the provisions laid down in S.28 Contract Act, 1872 nor the same violated procedural law—In view of relevant clause of the agreement, contractual relations being subject to foreign law and both the parties having agreed to fulfil all obligations of the contract in, foreign court having exclusive jurisdiction, there was no ambiguity in the mind of contracting party—Contention was that relief claimed in the suit could not be granted by the court of foreign jurisdiction which may deprive plaintiff’ from legitimate judicious advantage—Held, question of inconvenience to be faced by anyone of the parties was negated on account of reciprocal agreement between two parties, decree passed by High Court in Pakistan could not be executed in the foreign country as foreign judgment; there being no reciprocal agreement between the two governments to execution of such decrees—Appeal was dismissed.
2008 CLD 1217 KARACHI-HIGH-COURT-SINDH
TRADESMEN INTERNATIONAL (PVT.) LTD VS FEDERATION OF PAKISTAN through Secretary, Ministry of Food, Agriculture and Livestock
S.28—Civil Procedure Code (V of 1908), O.VII, R.10, Ss.19 & 20—Return of plaint—Territorial jurisdiction—Determination—Contention of defendant was that according to a specific clause in agreement between the parties, dispute between the parties could only be entertained by Courts at place “L” having the exclusive jurisdiction, therefore, suit filed at place “K” should have been returned to plaintiff—Validity—Such clause in the agreement did not restrict either of the parties to take up the matter to the Court or ordinary tribunals while according to Ss.19 and 20, C.P.C. the suit could be filed at place where the cause of action had arisen or the defendant voluntarily resided or carried on business—By virtue of this clause in agreement, only venue of jurisdiction had been chosen but no restriction in respect of legal remedy was imposed nor there was any limitation in such respect from S.28 of Contract Act, 1872—Jurisdiction could be stretched to either place at “K” or “L” keeping in view the contention of plaintiff but sanctity of agreement had restricted both the parties to avail remedy at place “L” by virtue of its clause—High Court directed the office to return the plaint to plaintiff—Application was allowed accordingly.
2008 CLD 1217 KARACHI-HIGH-COURT-SINDH
TRADESMEN INTERNATIONAL (PVT.) LTD VS FEDERATION OF PAKISTAN through Secretary, Ministry of Food, Agriculture and Livestock
S.28-Restraint of legal proceedings—Scope—Either of the parties to agreement, is prohibited under S.28 of Contract Act, 1872, from restricting other from taking matter to the ordinary tribunals but it does not provide any restriction in respect of consensus between the parties to refer the matter to arbitration or to take up their dispute in a particular Court or tribunal exclusive to other Courts even if they have jurisdiction.
2008 CLC 1618 KARACHI-HIGH-COURT-SINDH
TRADESMEN INTERNATIONAL (PVT.) LTD VS FEDERATION OF PAKISTAN through Secretary and another
VII, R. 10, Ss.19 & 20—Contract Act (IX of 1872), S.28—Return of plaint—Territorial jurisdiction—Determination—Contention of defendant was that according to a specific clause in agreement between the parties, dispute between the parties could only be entertained by Courts at place “L” having the exclusive jurisdiction, therefore, suit filed at place “K” should have been returned to plaintiff-Validity–Such clause in the agreement did not restrict either of the party to take up the matter to the Court or ordinary tribunals while according to Ss.19 and 20, C.P.C. the suit could be filed at place where the cause of action had arisen or the defendant voluntarily resided or carried on business–By virtue of this clause in agreement, only venue of jurisdiction had been chosen but no restriction in respect of legal remedy was imposed nor there was any limitation in such respect from S.28 of Contract Act, 1872—Jurisdiction could be stretched to either place at “K” or “L” keeping in view the contention of plaintiff but sanctity of agreement had restricted both the parties to avail remedy at place “L” by virtue of its clause—High Court directed the office to return the plaint to plaintiff—Application was allowed accordingly.
2008 CLC 1618 KARACHI-HIGH-COURT-SINDH
TRADESMEN INTERNATIONAL (PVT.) LTD VS FEDERATION OF PAKISTAN through Secretary and another
28—Restrain of legal proceedings—Scope—Either of the party to agreement, is prohibited under S.28 of Contract Act, 1872, from restricting other from taking matter to the ordinary tribunals but it does not provide any restriction in respect of consensus between the parties to refer the matter to arbitration or to take up their dispute in a particular Court or tribunal exclusive to other Courts even if they have jurisdiction.
2008 PLD 48 ISLAMABAD
SEZAI TURKES FEYZI AKKAYA CONSTRUCTION COMPANY (STFA) through Regional Representative STFA, Islamabad VS EKON YAPI ONARIM TICARET VE SANAYI LTD. through Managing Director
28—Any contract entered into with a foreign national giving jurisdiction to a foreign court and ousting jurisdiction of courts in Pakistan, would be an invalid contract.
2007 CLC 209 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD ASGHAR VS STANDARD INSURANCE COMPANY LIMITED through Managing Director, Standard Insurance Company Ltd.
—-Ss. 2(b), (e) & 28—Civil Procedure Code (V of 1908), O.VII, R.10—Specific Relief Act (I of 1877), S.55—Constitution of Pakistan (1973), Art.199—Constitutional petition—Suit for mandatory injunction—Question of jurisdiction—Clause in Insu
2006 PLD 418 SUPREME-COURT
RASHEEDUR REHMAN KHAN VS Mian IQBAL HUSSAIN
—-S. 28—Negotiable Instruments Act (XXVI of 1881), S.4—Promissory note—Condition prescribed in the document to forego his right of appeal brings the document outside the purview of the provisions of Negotiable Instruments Act, 1881 and it falls un
2006 PLD 418 SUPREME-COURT
RASHEEDUR REHMAN KHAN VS Mian IQBAL HUSSAIN
–S.28—Scope of S.28, Contract Act, 1872—Section 28 applies where there is absolute restraint against the enforcement of rights.
2005 PTD 2355 PESHAWAR-HIGH-COURT
Messrs UNIVERSAL INSURANCE CO. LTD. VS COLLECTOR, CUSTOMS, CENTRAL EXCISE & SALES TAX, PESHAWAR
—S. 202—Contract Act (IX of 1872), Ss.126 & 28—Insurance guarantee—Such guarantee, as a matter of fact, is a contract of guarantee in terms of S.126, Contract Act, 1872 and as such is subject to all the incidents which a contract can possibly be u
2005 PLD 416 LAHORE-HIGH-COURT-LAHORE
RASHID-UR-REHMAN VS Mian IQBAL HASSAIN
—S. 28—Civil Procedure Code (V of 1908), O.XXXVII, R.2–ÂNegotiable Instruments Act (XXVI of 1881), S.4—Suit for recovery of amount on the basis of promissory note- –Promissory note revealed that the sum was agreed to be paid, to forego the rights
2005 PLD 335 LAHORE-HIGH-COURT-LAHORE
Messrs COOPERATIVE INSURANCE SOCIETY VS Messrs LONG VIEW TRADERS
–Ss. 20 & 21—Contract Act (IX of 1872), S.28—Cooperative Societies Act (VII of 1925), Ss. 70 & 54—Suit by insured against insurance company, (a Cooperative Society) for recovery of amount as loss caused to the goods/assets of insured by fire—Obje
2005 CLD 978 LAHORE-HIGH-COURT-LAHORE
RASHID-UR-REHMAN VS Mian IQBAL HUSSAIN
—-S. 28—Civil Procedure Code (V of 1908), O.XXXXVII, R.2–ÂNegotiable Instruments Act (XXVI of 1881), S.4—Suit for recovery of amount on the basis of promissory note—Promissory note revealed that the sum was agreed to be paid, to forego the right
2005 CLC 1659 KARACHI-HIGH-COURT-SINDH
UNITED DISTRIBUTION PAKISTAN LTD. VS AL-SYED AGROCHEMICALS SERVICES
—-S. 20—Contract Act (IX of 1872), S.28—Suit to be instituted where cause of action arises—Plaint, in the present case, showed that there was a contract between the parties for the supply of agrochemical on credit basis—Case being based upon the
2005 CLC 1659 KARACHI-HIGH-COURT-SINDH
UNITED DISTRIBUTION PAKISTAN LTD. VS AL-SYED AGROCHEMICALS SERVICES
—Ss. 20, 9 & O.VII, R.10—Contract Act (I of 1872), S.28—Jurisdiction—Consent of the parties to give jurisdiction to the Court will be applicable when the said Court has jurisdiction along with any other Court—Consent of the parties cannot invest
2004 CLD 1081 SUPREME-COURT
Mst. KHAIR-UN-NISA CHANNA VS FEDERATION OF PAKISTAN
—-S. 18—Contract Act (IX of 1872), S. 28—Execution proceedings—Auction of mortgaged property—Statement by judgment debtor that she would pay decretal amount as per schedule, which if accepted, then she would not seek remedy against auction of pr
2004 SCMR 1714 SUPREME-COURT
Mst. KHAIR-UN-NISA CHANNA VS FEDERATION OF PAKISTAN
—S. 18—Contract Act (IX of 1872), S. 28—Execution proceedings-Auction of mortgaged property—Statement by judgment-debtor that she would pay decretal amount as per schedule, which if accepted, then she would not seek remedy against auction of prope
2004 YLR 2503 LAHORE-HIGH-COURT-LAHORE
RAVI GLASS MILLS LIMITED VS I.C.I. PAKISTAN POWERGEN LIMITED
—-Ss. 23 & 28—Agreement executed between the parties in violation of substantive law” is void—No man can exclude himself from the protection of Courts by contract.
2004 YLR 482 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD IMTIAZ VS NASIR ALI
—-S. 5 & Form II, Column 18—Contract Act (IX of 1872), Ss.23, 26, 28 & 29–Contract of marriage (Nikah)—Registration of such contract—Restriction on the right of husband to divorce wife—Object and scope—Object of contract of marriage .(Nikah)
2004 CLD 334 KARACHI-HIGH-COURT-SINDH
Messrs HASAN ALI RICE EXPORT CO VS FLAME MARITIME LIMITED
—-S.28, Exception 2—Arbitration Act (X of 1940), S.2(a)–Arbitration agreement is exception to general rule that any agreement in restraint of legal proceedings is void.
2004 MLD 662 KARACHI-HIGH-COURT-SINDH
Chaudhry MEHTAB AHMAD VS Mir SHAKEEL-UR-REHMAN
—-S.28—Civil Procedure Code (V of 1908), S.20 & O.VII, R.10–Territorial jurisdiction of Court—Suit between principal and agent instituted at place “K”—Agency agreement between parties was made at place “R”, which was also place of their business-
2002 CLD 1528 KARACHI-HIGH-COURT-SINDH
CGM (COMPAGNIE GENERAL MARITIME) VS HUSSAIN AKBAR
Contract Act 1872 —-S.28—Arbitration Act (X of 1940), S.34—Foreign jurisdiction clause in a contract—Burden to satisfy Court as to justification for staying its proceedings lies on person, seeking stay of proceedings and reference of dispute to foreign forum.
2001 YLR 1213 LAHORE-HIGH-COURT-LAHORE
BANKERS EQUITY LIMITED (BEL) VS APEX FABRICS LIMITED
—-Ss. 9, 20 & O. VII, R.10—Contract Act (IX of 1872), S.28—Parties on their own volition and consent and in particular the plaintiff keeping in view its convenience had exercised choice as to the Court at Karachi for all matters arising out of or un
2001 CLC 479 KARACHI-HIGH-COURT-SINDH
MASOOD ASIF VS UNITED BANK LIMITED
10—Contract Act (IX of 1872), S.28—Leave to defend the suit–Recovery of damages from Bank—Jurisdictional clause in the agreement–Agreement between the parties was executed in England and both the parties agreed to the adjudication of their disputes by the Courts in England–Plaintiffs filed the instant suit against the Bank for the reason that the Head Office of the Bank was in Pakistan—Bank had already invoked the jurisdiction of English Courts according to the agreement—Effect—Where the parties had agreed to a forum for adjudication of their dispute they were directed by the High Court to resort to that forum and proceedings in the suit were stayed—Bank having raised serious and bona fide dispute, leave to defend the suit was granted to it.
1999 CLC 755 KARACHI-HIGH-COURT-SINDH
QUETTA TEXTILE MILLS LTD. VS FEDERATION OF PAKISTAN
Ss. 81 & 202???Contract Act (IX of 1872), S.28???Constitution of Pakistan (1973), Art. 199???Constitutional petition???Demand for enhancement of Bank guarantee beyond period of its validity???Validity???Goods imported by petitioner were released against Bank guarantee after provisional assessment???Bank stood surety for a period of one year???Customs Authorities made demand for encashment of guarantee after 15 years???Demand for payment of the amount of Bank guarantee raised by the Customs Authorities was neither valid nor justified by law???Bank stood relieved of its liability arising under the Bank guarantees in circumstances.
1999 PLC(CS) 615 SUPREME-COURT-AZAD-KASHMIR
HABILULLAH GANNAIE, DEPUTY SECRETARY/DEPUTY DRIECTOR, EHTISAB CIMMISSION, LOWER PLATE, MUZAFFARABAD VS WAJAHAT RASHID BIG
Contract Act 1872 —-S. 28—Agreement restricting a person from enforcing his right to move a Court of Law, was void.
1998 SCMR 1239 SUPREME-COURT
STANDARD INSURANCE CO. VS PAK GARMENTS LTD.
—-Ss. 9 & 20—Contract Act (IX of 1872), S. 28—Constitution of Pakistan (1973), Art. 185(3)—Suit against insurance company—Insurance policy contained specific clause whereby suit against Insurance Company could be filed only at ‘K’ in Court of co
1997 SCMR 1928 SUPREME-COURT
SEZAI TURKES FEYZI AKKAYA CONSTRUCTION COMPANY, LAHORE VS CRESCENT, SERVICES, LAHORE
—-S. 20—Contract Act (IX of 1872), S. 28—Agreement for sub-contract–Termination of such agreement—Original agreement of sub-contract contained arbitration clause—Clauses of termination agreement showed that the same could only be understood and
1997 CLC 1441 QUETTA-HIGH-COURT-BALOCHISTAN
E.F.U. GENERAL INSURANCE LIMITED VS FAHIMUL HAQ
Ss. 23, 28 & 2(h)—Limitation Act (IX of 1908), S. 3—Civil Procedure Code (V of 1908), S. 100—Clause in contract limiting period of Insurance Company’s liability—Validity—Clause in contract stipulated that if claim of party was made against insurance company and same was rejected, suit against rejection of such claim must commence within three months after such rejection—Such clause in contract between parties was valid and it did not contravene provisions of Ss.23 & 28 of Contract Act, 1872—Respondent’s claim having been rejected on 10-11991, suit filed by him after more than 12 months was time-barred and not maintainable.
1993 PLC(CS) 1443 SERVICE-TRIBUNAL-PUNJAB
AKHTAR ALI MONGA VS THE CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE AND 2 OTHERS
—-Ss. 17 & 18—Constitution of Pakistan (1973), Art. 24—Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R. 6—Charge of misconduct against civil servant to the effect that he failed to prefer appeal against a decree of Civil Court whi
1992 SCMR 1174 SUPREME-COURT
KADIR MOTORS (REGD.), RAWALPINDI VS NATIONAL MOTORS LTD., KARACHI
Contract Act 1872 —-S. 28—Object of S:z8, Contract Act, 1872—Parties cannot be restrained from entering into an agreement to get their disputes decided by a particular Court of competent jurisdiction for their convenience and avoidance of unnecessary objections to the territorial jurisdiction of Courts—Such an agreement would be legal and not hit by S.28 and parties were bound to follow the same:
1991 CLC 1591 KARACHI-HIGH-COURT-SINDH
ABDUL RAZZAK VS KARACHI DEVELOPMENT AUTHORITY
R.10—Contract Act (IX of 1872), S.28—Auction bid—Agreement, whereby defendant Authority reserved to itself right to reject any bid or offer during or after auction whether void—Such agreement far from violating provisions of S.28, Contract Act or any other law, was in fact intended to give effect to the provisions of R.10, Karachi Development Authority (Disposal of Land) Rules, 1971–Agreement or any clause thereof, was thus not void.
1990 MLD 1344 SUPREME-COURT-INDIA
A.B.C. LAMINART (Pvt.) Ltd. VS A.P. AGENCIES, SALEM
—Ss. 23 & 28—Contract to vest jurisdiction in one of Courts within whose jurisdiction cause of action arises is not against public policy—Civil Procedure Code (V of 1908), S.20 (c).
1990 PLD 116 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD ITBAR KHAN VS FAZAL HUSSAIN
XXIII, R. 3 & S.95 — Contract Act (IX of 1872), S.28 — Where the parties agree to be bound by the conclusion/decision of the Court in accordance with the deviated procedure agreed upon by them, then the Court assumes the role of the arbiter between them and its decision tantamounts to a consent judgment and there could be no appeal against it — Provision of S-.28, Contract Act, 1872 would not apply and it would not be necessary that such an agreement should be considered to be an adjustment within meaning of OXXIII, C.P.C.
1989 PLD 390 LAHORE-HIGH-COURT-LAHORE
ALI PIPE INDUSTRIES FAISALABAD VS UNIVERSAL INSURANCE COMPANY LTD.
28 Limitation Act (IX of 1908), Art. 86 Fire insurance Policy, Cls.13, 18 & 19 Clauses in Fire or Lightning Insurance Policies which provide for forfeiture of benefits or non liability under the policies after specified period are not void under S.28 of the Contract .act, 1872 Provisions of Art.86, Limitation Act, 1908 do not apply to CIs.13, 18 & 19 of the Fire or Lightening Insurance Policy and these clauses are not in conflict with Art.86.
1987 SCMR 393 SUPREME-COURT
STATE LIFE INSURANCE CORPORATION OF PAKISTAN VS MUHAMMAD SALEEM
—Ss. 9 & 20–Contract Act (IX of 1872), S. 28–Jurisdiction of civil Courts–Two or more Courts having jurisdiction to try a suit–Agreement between parties, that any dispute arising between them shall be tried only by one of such Courts, held, could no
1986 PLD 138 KARACHI-HIGH-COURT-SINDH
ECKHARDT & COMPANY MARINE GMBH WEST GERMANY VS MUHAMMAD HANIF
28-Arbitration Act (X of 1940), S. 34-Law Reforms Ordinance (XII of 1940), S. 3-High Court Appeal-Application for stay of proceedings in suit for recovery for breach of contract and recourse to arbitration as per. arbitration clause in contract Petitioner-applicant contending that in commercial contracts effect must .be given to obvious intention in agreement of parties-Contention not accepted-Held, such a clause was given effect to as an arbitration clause which fell within Exceptions to S. 28, Contract Act, 1872.
1985 PLD 745 KARACHI-HIGH-COURT-SINDH
ASLO MARINES LTD. VS M. T. MAGDA
34-Contract Act (IX of 1872), S. 28–Application for stay of action-Foreign jurisdiction or .exclusive jurisdiction clause in agreement-Burden of proof to satisfy Court as to justification for staying proceedings-Burden of proof, held, was on person wishing to alter jurisdiction of Court and on person wishing to overcome jurisdiction clause-Unless defendant had shown something to satisfy Court, proceedings could not be stayed.
1985 MLD 402 KARACHI-HIGH-COURT-SINDH
MODERN TRADERS VS PROVINCE OF SIND
—S.20–Contract Act (1X of 1872), S.28–Petitioner invoking arbitration clause failed to refer matter within period stipulated in contract–Plea that restriction imposed by agreement curtailing period of limitation provided by law was void, repelled–Wh
1984 SCMR 1 SUPREME-COURT
JALIL ASGBAR VS ATLAS INDUSTRIES & TRADING CORPORATION
–S. 23-Consideration or object of agreement is lawful unless Court regards same as immoral or opposed to public policy Presumption of law in favour of legality of contract but public policy requires that Court should not ignore illegality brought to its
1982 PLD 627 KARACHI-HIGH-COURT-SINDH
SARGODHA CENTRAL CO-OPERATIVE BANK LTD. VS NEW HAMPSHIRE INSURANCE CO.
28 and Limitation Act (1X of 1908)-Relevant clause of Insurance Policy not providing that no suit can be filed for any lesser damage after expiration of 12 months but providing that in no case whatever shall company ,be liable for any loss or damage after expiration of 12 months from happening of loss or damage unless claim be subject of pending action or arbitration–Clause; held, does not contravene S. 28 of Contract Act, 1872.
1981 CLC 638 KARACHI-HIGH-COURT-SINDH
MESSRS NAWAB BROTHERS LTD, KARACHI–PLAINTIFF VS PROJECT DIRECTOR
28, Explanation I-Arbitration-Contention that arbitration clause having placed restraint on parties to avail legal remedies in ordinary Courts by way of civil suits, become void-Held: Without force and agreement between parties to refer disputes to arbitration perfectly valid and not coming within mischief of S. 28.-[Arbitration].
1978 PLD 475 LAHORE-HIGH-COURT-LAHORE
UNIVERSAL LIFE & GENERAL INSURANCE CO. LTD VS EJAZ MAHMOOD
34 read with Civil Procedure Code (V of :908′, S. 9, Contract Act (IX of 1872), S. 28 and Specific Relief Act (I of 1887), S. 21Apreement to refer existing or future disputes to arbitration-Does not oust jurisdiction of Courts to entertain a suit relating to such disputes Section 34, Arbitration Act, however, permits defendant to apply to Court to stay suit so as to enable parties to obtain a reference to arbitrators-Burden lies on plaintiff to make out sufficient reasons why matter should not be referred to arbitration and not on defendant to show that no such reasons exist.-(Burden of proof]
1978 PLD 273 KARACHI-HIGH-COURT-SINDH
MERCANTILE FIRE & GENERAL INSURANCE CO. (PAKISTAN) LTD.,KARACHI VS ARCEPEY SHIPPING CO. U.S.A.
28 Jurisdiction Clause in bill of lading providing that any dispute arising thereunder shall be governed by certain foreign law and decided by particular foreign Court Pakistan Court, held, possessed of jurisdiction to entertain such suit notwithstanding exclusive jurisdiction clause contained in bill of lading. [Jurisdiction].
1973 PLD 131 LAHORE-HIGH-COURT-LAHORE
JAM KHURSHID KHAN VS PROVINCE OF WEST PAKISTAN
-Arbitration agreement fixing time during which reference may be made to arbitration-Valid-Clause in contract limiting time, within which a reference to arbitration could be made, to a period of one month only from date of expiry of agreement-Neither void
1971 PLD 93 PESHAWAR-HIGH-COURT
FEDERATION OF PAKISTAN, KARACHI VS MESSRS MUHAMMAD SHAM & SONS, PESHAWAR CANTT
Contract Act 1872 Ss. 28 & 23–Clause in contract curtailing period of limitation to enforce rights arising under contract-Void.
1970 PLD 373 SUPREME-COURT
A. CHOWDHURY VS MESSRS MITSUI O. S. K. LINES LTD.
Contract Act 1872 —-S. 28–Clause in bill of lading, providing that any dispute arising thereunder shall be governed by certain foreign law and decided by particular foreign Court -Whether such a jurisdiction clause could lawfully oust jurisdiction of Courts in Pakistan-Leave granted by Supreme Court to consider question since there existed divergence of opinion on such point between High Courts of East and West Pakistan.
1969 PLD 313 PESHAWAR-HIGH-COURT
ISLAMIC REPUBLIC OF PAKISTAN THROUGH
DEFENCE SECRETARY, GOVERNMENT OF PAKISTAN
VS NAZAR DIN KHATTAK & SONS
Contract Act 1872 Ss. 23 & 28 read with Limitation Act (IX of 1908), S. 3 & First Schad.-Contract prescribing limitation period for institution of legal proceedings contrary to provisions of Limitation Act, 1908-Void to such extent-Terms of contract prescribing limitation to sue within three months of breach of contract-Such term in contract, held, void and statutory period of limitation, in circumstances, 3 years in terms of S. 3 & First Sched. of Limitation Act, 1908.
1969 PCRLJ 1414 SUPREME-COURT-AZAD-KASHMIR
Sardar MUHAMMAD YASIN KHAN VS Raja FIROZE KHAN
Contract Act 1872 S. 28-Agreement in restraint of legal proceedings- Agreement by implication preventing person torn resorting to criminal Court—Not absolutely restricting such person from resorting to Court of justice-Agreement, held, trot hit by section 28 and therej6re not void.
1966 PLD 481 DHAKA-HIGH-COURT
NASIRABAD PROPERTIES LTD. VS CHITTAGONG DEVELOPMENT AUTHORITY
Contract Act 1872 S. 28-Agreement in restraint of legal proceedings-Clause in bill of lading laying down (i) that claim arising out of contract would be adjudicated at Osaka in Japan; and (ii) that law governing transaction would be law of Japan-Provision contained in clause not such absolute prohibition as to attract provisions of S. 28-Civil Procedure Code (V of 1908). S. 20.
1953 PLD 400 LAHORE-HIGH-COURT-LAHORE
CANTONMENT BOARD, SIALKOT CANTONMENT, THROUGH EXECUTIVE OFFICER, CANTONMENT BOARD VS SHEIKH NAZIR AHMAD
Contract Act 1872 Ss. 23, 28-Agreement opposed to public policy—In restraint of legal proceeding-Clause in agreement providing that the right to interpret terms of contract would lie exclusively in one of the parties-Void.
1952 PLD 249 LAHORE-HIGH-COURT-LAHORE
MALIK ALI AKBAR VS METRO GOLDWYN MAYER INDIA LTD
Contract Act 1872 —-S. 28-Contract providing that legal proceedings in respect of claims arising out of it shall be instituted only in Court of a foreign country-Also, that disputes arising out of contract shall be referred at the option of one of the parties, to the arbitration of a certain body in that foreign country-:,Jurisdiction of local Courts, held, not ousted–Question of stay of suit in face of arbitration clause depends upon circumstances of case-Arbitration Act (X of 1940), S. 34.