( 1 ) QUESTION of law referred to Division Bench by learned single Judge while hearing revision petition is as to whether a Court, which lacks jurisdiction to try a case, territorial or otherwise, can assume jurisdiction on concession of parties or on submission to the Court s jurisdiction by defendant.

( 2 ) FACTS in brief are that the second respondent filed a suit for recovery of damages against the Petitioner-Bank at visakhapatnam stating in the plaint that the court at Visakhapatnam has jurisdiction to entertain and try suit since the cause of action had arisen in Visakhapatnam. Petitioner (second defendant in the suit) filed written statement and an objection was taken that the Court has no territorial jurisdiction to entertain the suit as no transaction took place at Visakhapatnam. Thus, while filing written statement the petitioner did question the territorial jurisdiction of the Court to entertain and try the suit. Issues were framed but it appears that no issue was framed on the preliminary objection raised by the petitioner, as to whether Courts at Visakhapatnam have or have not jurisdiction try the suit. Issue as regards Court s territorial jurisdiction to entertain and try the suit was framed subsequently as an additional issue at the stage when the suit had already been set down for trial. The plaintiff was examined and was also cross-examined. At a stage when one of the witnesses was under cross-examination, which was adjourned from time to time, that on 12. 2. 2002 an application under Order XIV Rule 2 read with Section 20 of the Code of Civil procedure was filed by the petitioner praying that the additional issue framed, whether the court has got territorial jurisdiction to try the suit, be decided as a preliminary issue. By an elaborate order, the learned District judge dismissed the application on the ground that once written statement has been filed by the defendants advancing their defence, they have submitted to the jurisdiction of the Court and are prepared to take decision of the Court on merits, therefore, they are precluded to object to the courts jurisdiction. The other ground of rejection of the application was that the suit was at the stage of cross-examination of witnesses and, therefore, it was not appropriate to take up the additional issue of territorial jurisdiction as a preliminary issue. While dismissing the application, the Court also observed that it has got territorial jurisdiction. Feeling aggrieved, revision was filed in this Court, which came up before the learned Single Judge.

( 3 ) ON behalf of the respondent, judgment of this Court in F. E. S. Ship Co. v. Koika Trading Co. , 1978 (2) ALT 17, was relied in support of the impugned order that filing of written statement by the defendant amounts to submission to the jurisdiction of the Court and the defendant was precluded from raising the objection as regards territorial jurisdiction of the court. The learned Single Judge unable to agree with the view and has referred the question to the Division Bench. The reference has been made on the point, whether jurisdiction, territorial or otherwise, can be assumed by the Court merely on the concession of the parties.

( 4 ) LAW is well settled and was reaffirmed by the Supreme Court in Kiran singh v. Chaman Paswan, AIR 1954 SC 340, that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether, it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties.

( 5 ) QUESTION before us is whether Court can assume jurisdiction merely on the concession of parties. Consent or waiver can cure defect of territorial jurisdictio