IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
Present:  
Mr. Justice Mushir Alam 
Mr. Justice Sajjad Ali Shah 
 
Civil Petition No.80 of 2018 
Against 
the 
judgment 
dated 
13.11.2017 passed High Court of 
Baluchistan, 
Quetta 
in 
Civil 
Revision No.109 of 2015.  
 
Malik Khan Muhammad Tareen 
Petitioner(s)  
VERSUS 
M/s Nasir & Brother Coal Company thr. its 
proprietor & others 
Respondent(s) 
 
 
For the Petitioner(s)   
: Mr.Sardar Muhammad Aslam, ASC 
 
 
 
For the Respondent  
: Mr.Tariq Mehmood, ASC 
 
 
 
Date of Hearing 
: 03.10.2018 
 
 
JUDGMENT 
 
Mushir Alam, J-. Petitioner, has impugned the judgment dated 
13.11.2017 whereby the learned Bench of High Court of Baluchistan, 
at Quetta set aside the concurrent orders dated 25.03.2015 and dated 
30.4.2015 passed by the learned Civil Judge (Judicial Magistrate-IX), 
Quetta and the learned District Judge, Quetta, respectively whereby 
Petitioner’s/ Defendant No.3  objections as to the territorial jurisdiction 
of the Civil Judge at Quetta as sustained were set aside and the case 
was directed to proceed by the learned trail Court, in accordance with 
law. 
2. 
 
In brief facts appears to be that the Respondent 
No.1/Plaintiff claimed to be in permissive possession of the mining 
lease, of the area situated in Duki, Loralai as detailed in the Plaint. 
Pursuant to various assignment and agreements some shown to have 
been executed at, Duki, Killa Saifullah, Loralai and Quetta. Plaintiff 
Civil Petition No.80 of 2018.  
 
 
 
 
 
 
 
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filed a suit No.59/2012 on 14.11.2012 before learned Civil Judge-IX at 
Quetta, seeking declaration and directions against the official 
respondents stationed at Quetta for assignment and transfer of rights 
in respect of mining lease, restraining orders against the defendants 
including officials not to carry out joint survey of the subject mining 
leases, not to carry out mining activity, suspension of letter dated 
2.11.2012 issued by the official respondents stationed at Quetta 
notifying on 13.11.2012 as date of joint survey.  
3. 
 
It appears that on an application under Order XXXIX, Rule 
1 & 2, CPC ad-interim injunction staying joint survey was granted on 
24.11.2012, against which Petitioner/ Defendant No.3 filed Civil Appeal 
No.53 of 2012, same was dismissed on 13.12.2012, which was 
challenged in Civil Revision No.376 of 2012, before the High Court, 
wherein by consent of the contesting parties, joint survey was carried 
out. Parties accepted the Commission’s survey report, which 
culminated into a compromise order dated 11.01.2013, parties were 
directed to proceed with the suit before the trial Court. However, 
instead of proceeding before the learned trial Court at Quetta, parties 
again engaged into number of contempt proceedings, review of the 
consent order, and at least four Constitution Petitions being C.P. No.61 
of 2013, C.P. No.483 of 2013, C.P. No.638 of 2013 and C.P. No.178 of  
2013, filed in the High Court and one Criminal Petition No.68 of 2013 
two Civil Petitions being No.1110 of 2013 and No.162 of 2014 in this 
Court, including remand order in Civil Revision by this Court to the 
High Court.  
4. 
 
It appears that when parties were left with no ammunition 
in their arsenal to continue their battle before the High Court and 
Civil Petition No.80 of 2018.  
 
 
 
 
 
 
 
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Supreme Court, locked their horns before the learned trial Court.  
From record, of the learned trial Court it appears that the official 
respondents were proceeded ex-parte. Written statement was 
ultimately 
filed 
by 
the 
Petitioner/private 
defendant 
No.3 
on 
12.03.2014, wherein issue of territorial jurisdiction of the learned trial 
Court at Quetta, was raised and decided as preliminary issue.  
5. 
 
Learned Civil Judge, at Quetta, in consideration of fact that 
mining lease is situated in Duki, vide order dated 25.3.2015 returned 
the plaint to be presented before the Court having territorial 
jurisdiction, which order was maintained, as noted above by the 
learned District Judge, Quetta on 30.4.2015. 
6. 
 
Through impugned judgment, learned Bench of the High 
Court, taking stock of the entire facts and circumstances of the case 
concluded that “the matter in issue pertained to an area of some 
mining lease and rights thereon, thus it did not directly relate to right 
and interest in the immoveable property, rather covered by the later 
part, thus suit could be filed at the place where the cause of action 
whole or in part arisen” and in paragraph 11 of the impugned 
judgment, Learned Bench relying on section 21 CPC and on the case 
reported as Faqir Muhammad versus Pakistan through Secretary, 
Ministry of Interior and Kashmir Affairs Division, Islamabad (2000 
SCMR 1312) observed that the objection as to territorial jurisdiction 
was not timely pressed, and such conduct of the Defendant No.3 
amounts to waiver. Consequently, orders dated 25.3.2015 and  
30.4.2015 passed by the learned Civil Judge, Quetta and District 
Judge, Quetta were set aside. Learned trial Court was directed to 
proceed with the matter in accordance with law.   
Civil Petition No.80 of 2018.  
 
 
 
 
 
 
 
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7. 
 
Contentions of Sardar Muhammad Aslam, learned senior 
counsel for the Petitioner, is indeed correct that the objections as to 
territorial jurisdiction cannot be raised before the appellate and or 
revisional Court. According to him, objections as to territorial 
jurisdictions were raised before the Court of first instance, that is trial 
Court as required under section 21 CPC and before striking out issues. 
Therefore, impugned judgment, having overlooked such aspect of the 
matter, cannot be sustained. He conceded that after filing of the suits 
on 14.11.2012 parties engaged in legal battle before High Court and 
Supreme Court. Written statement raising objections as to territorial 
jurisdiction, was filed on 12.2.2014. It is also conceded that joint 
survey of mining lease was carried by consent of the parties and based 
on such survey and demarcation, consent order was passed in Civil 
Revision No.376 of 2012 on 13.01.2013, “and as regards the suit the 
parties” were directed to “proceed the same before the trial Court” 
One of the prayers in the suit as regards survey of the area of “mining 
lease”, by the official defendants, at Quetta, by consent of the parties, 
was set at rest.     
8. 
 
In contrast to explicit conferment of jurisdiction on 
Criminal Courts (See Section 28 read with second schedule of the Code 
of Criminal Procedure, 1898) to try various offences under Pakistan 
Penal Code. Jurisdiction of the Civil Courts is not as explicitly defined in 
CPC. Section 9 CPC confers plenary jurisdiction, subject to part I of the 
Code, on Civil Courts to try “all cases of civil nature”, except suits of 
which cognizance is either expressly or impliedly barred. Jurisdiction of 
Civil Courts to try civil cases may be classified into a) territorial 
jurisdiction, b) pecuniary jurisdiction and c) jurisdiction over subject 
matter. Jurisdiction over subject matter of suit of civil nature is most 
Civil Petition No.80 of 2018.  
 
 
 
 
 
 
 
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pivotal and determinative as regard assumption and exercise of 
jurisdiction by any civil Court. It is through special enactments and 
statute, like for instance Provincial and Islamabad Capital Territory and 
Cantonment Rent Restriction Laws, Federal and Provincial Service 
Laws, Excise and Taxation Laws, Customs Acts, Banking Laws, 
Company Laws etc.; subject matter jurisdiction is sliced and or carved 
out of the otherwise plenary jurisdictions possessed by ordinary Civil 
Court and is conferred on special Courts, Tribunals and forum through 
special statute some which are noted herein (see Section 9 CPC).     
 
9. 
 
In order to regulate place of suing and institution of civil 
proceedings, same is to be instituted in the Civil Court of lowest grade 
competent to try it (section 15 CPC) and in the Court where the 
defendant or one of the defendants resides or work for gain, or where 
the cause of action occurs, or where it relates to right to or interest in 
immovable property, is required to be instituted within the local limits 
of whose jurisdiction the immoveable property is situated. It could also 
be the Court in whose jurisdiction action or inaction of any State or 
public authority/ functionary is involved. (see section 15 to 20 CPC).  
 
10. 
 
In instant case controversy as to mining lease, is involved. 
In a case from Australian jurisdiction, Queensland Supreme in a case 
reported as Sojitz Coal Resources Pty Ltd v. Commissioner of 
State Revenue [2015] QSC 9 held “that mining leases did not 
constitute an ‘estate or interest in land’ according to ordinary 
concepts” Position in Pakistan is no different, mining lease means 
rights and interest in mines and minerals in and on the surface of 
earth or land, mines and minerals are regarded as moveable property. 
Rights and interest in mines and mineral on or in the surface of land is 
Civil Petition No.80 of 2018.  
 
 
 
 
 
 
 
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separate and distinct from “rights to or interest in immoveable 
property” within the contemplation of clause (d) of section 16 CPC, 
mines and minerals are moveable property and in terms of Article 172 
and 173  of the Constitution of Pakistan read with section 49 of the 
Land Revenue Act, 1967 and Provincial Mining Rules (in instant case 
Baluchistan Mineral Rules, 2002) all mines and minerals shall be and 
shall always be deemed to have been the property of Government, 
irrespective of fact that title to surface land vests in an individual, 
Forest Department or any other authority or even the Government 
itself. It is the relevant Government that exercise powers necessary for 
the proper enjoyment of its rights thereto, which is regulated under 
the Mineral Development (Control) Act, 1948 read with respective 
Provincial Mining Concession Rules (see Water and Power Development 
Authority and another versus Assistant Director Mines and Minerals, 
Attock and others (PLD 2012 Lahore 83), Messrs National Highway 
Authority through Duly Authorized Director (Legal versus The Chief 
Secretary, Government of the Punjab, Lahore and 5 others (PLD 2017 
Lahore 390) and Fateh-ul-Mulk Ali Nasir and 4 others versus 
Government of Khyber Pakhtunkhwa through Secretary Mines and 
Minerals and 6 others (2015 CLC 1762 [Peshawar]). 
11. 
 
In instant case as elaborately discussed by the learned 
Bench of the High Court, and rightly held that no rights and interest in 
the immoveable property is involved, and since the objections as to 
territorial jurisdiction was not raised promptly before the very civil 
Court seized of the matter as required under section 21 CPC, and no 
prejudice is shown to have been caused to the defendant, therefore 
Court of Civil Judge, Quetta has jurisdiction. 
Civil Petition No.80 of 2018.  
 
 
 
 
 
 
 
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12. 
 
Section 21 CPC, makes exception as to general rules 
contained in sections 15 to 20 CPC in respect of place of suing as 
regards territorial and pecuniary jurisdiction, as opposed to subject 
matter jurisdiction or very competence of the Court to take cognizance 
is concerned, unless it is shown that the objections as to territorial 
jurisdiction was raised in the Court of first instance at the earliest 
possible opportunity and there has been a consequent failure of justice 
on such count, jurisdiction of Civil Court, unless expressly or impliedly 
barred, would be competent to try and adjudicate the civil claim.  
Section 21 CPC reads as follows: 
“21. 
Objections to jurisdiction. No objection as to the 
place suing shall be allowed by any appellate or revisional 
Court unless such objection was taken in the Court of first 
instance at the earliest possible opportunity and in all 
cases where issues are settled at or before such settlement, 
and unless there has been a consequent failure of justice.”   
13. 
 
On the bare reading of section 21 ibid; it is manifestly 
clear that the objections as to territorial jurisdiction unless raised 
before the Court of first instance “at the earliest possible opportunity” 
are not even considered by the appellate or Revisional Court. The 
Appellate or Revisional Court would only consider such objections 
provided all three conditions as set down in section 21 CPC are met viz 
firstly, objection as to territorial jurisdiction was raised in the Court of 
first instance, secondly such objection is raised at the earliest 
opportunity and in case the issues are settled, before settlement of 
issue and most importantly and thirdly, there has been consequent 
failure of justice. In the case of Pathumma v. Kuntalan Kutty (AIR 
1981 Supreme Court 1683), it was held that, it is necessary that 
the above mentioned three conditions must co-exist.  In the case of 
Faqir Muhammad (Supra) it was held that this section provides 
statutory recognition that an objection about territorial jurisdiction can 
Civil Petition No.80 of 2018.  
 
 
 
 
 
 
 
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be waived and objections as to competence of the Court cannot be 
ignored.    
14. 
 
In the instant case, it is matter of record that the 
Petitioner instead of raising objections as to territorial jurisdiction of 
the Court, engaged into long drawn battel in High Court and Supreme 
Court. He was ultimately driven to trial Court to contest the suit on 
merits. Written statement was filed by the petitioner/defendant with 
considerable 
delay 
on 
12.3.2014, 
raising 
issue 
of 
territorial 
jurisdiction. Issue of territorial jurisdiction though raised before 
settlement of issues but, not at the earliest opportunity. Learned 
counsel when confronted as to what prejudice has been caused or will 
be caused to him, Sardar Aslam, learned ASC, candidly conceded that 
no prejudice or failure of justice has been caused or will be caused to 
the Petitioner if suit is tried by the learned Civil Judge, Quetta. Since 
we have noted that the learned Civil Judge at Quetta, seized of the 
matter is otherwise competent to decide the controversy subject 
matter of the suit.  
15. 
 
In this view of the matter, we do not see any merit in the 
instant petition. Therefore, this petition is dismissed and leave to 
appeal is refused.          
 
 
 
 
 
JUDGE 
 
 
 
Islamabad, the 
3rd of Oct., 2018 
Syed Farhan Ali 
 
Approved for Reporting 
JUDGE 
 
