The main legal point established in the judgment is that the issue of territorial jurisdiction can be tried as a preliminary issue under Order XIV Rule 2 of the Civil Procedure Code.

JUDGMENT :

1. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.

2. By the present petition, petitioner challenges order dated 14.07.2015 passed by the Civil Judge Senior Division, Aurangabad directing that the issue No. 2 relating to jurisdiction shall be tried as a preliminary issue.

3. Petitioner-plaintiff has filed Spl. C. S. No. 276 of 2009 for recovery of amount of Rs. 652.06 Lakhs along with interest. In para No. 32 of the plaint, following averments are made with regard to territorial jurisdiction.

32. The Plaintiff says that the Plaintiff resides at Aurangabad, the contractual work was to be executed near Sawangi village at Aurangabad-Jalgaon Road, which is within the territorial jurisdiction of this Hon’ble Court and the Defendant No. 2 being the local head at Aurangabad of the Defendant No. 1, as such, this Hon’ble Court has got territorial jurisdiction to try and entertain the suit.

4. Defendants have resisted the suit by filing their written statement. They have challenged the territorial jurisdiction of the Civil Court at Aurangabad by relying upon Clause 8.2 of the offer document, which reads thus :

“The contract shall be governed and construed in accordance with the law of India. No suit or other proceedings relating to this offer, its conditions and performance of breach of contract shall be filed or taken in any Court of Law except Principal Court of Ordinary Civil Jurisdiction at Mumbai, which shall have exclusive jurisdiction to the exclusion of any outside court.”

5. The Trial Court has framed following issues by its order dated 17.02.2011.

Issues

1. Whether plaintiff construction company prove that due to the unilateral change made in toll rates it sustained loss as alleged ?

2. Whether the defendant corporation proves this court has no jurisdiction to try and decide present suit ?

3. Is suit barred by limitation ?

4. Is plaintiff company entitled to get suit amount ?

5. Is plaintiff company entitled to get interest on suit amount ?

6. Is defendant corporation entitled to get compensatory costs, if yes, details ?

7. What order, decree and costs ?

6. It is the contention of the petitioner-plaintiff that without there being any application by any party and without hearing the petitioner-plaintiff, the Trial Court all of a sudden passed order dated 14.07.2015 directing that the issue No. 2 relating to jurisdiction shall be tried as a preliminary issue. Therefore, present petition is filed challenging order dated 14.07.2015.

7. Appearing for petitioner Mr. Gawali, learned counsel would first take an objection about manner in which the impugned order has been passed. He would submit that after having framed issues as far back on 17.02.2011 and after commencement of the Trial, there was no occasion for the Trial Court to direct that the issue No. 2 relating to jurisdiction being tried as a preliminary issue. He would further submit that the petitioner-plaintiff had filed affidavit of examination in chief in the year 2014 itself and the defendants avoided to cross examine the petitioner-plaintiff and suddenly made an oral request to the Trial Court, which has led to passing of the impugned order. He would further submit that the issue of jurisdiction in the present case is a mixed issue of fact and law and that therefore same cannot be tried as a preliminary issue.

8. Referring to the provisions of Order XIV Rule 2 of the Code of Civil Procedure (for short “Code”), Mr. Gawali would contend that the provisions under Sub Rule 2 of Rule 2 of Order XIV of the Code can be invoked only if the Court forms an opinion that determination of particular issue would dispose of the suit itself. He would submit that since the objection raised is about territorial jurisdiction, even if the objection is upheld, the same would not terminate the lis between the parties and that the Court will have to at the most return the plaint under the provisions of Order VII Rule 10 of the Code. Since the suit wi