The main legal point established is that the jurisdiction clause in an agreement can determine the appropriate court for filing a suit, and the proper legal remedy for seeking relief under the Civil Procedure Code should be followed.

1. Heard learned counsel for the parties.

2. The petitioner is one of the defendants in Title Suit No. 90/2000, which was filed by opposite party no. 1 for declaration that the plaintiff was entitled to get the amount mentioned in Schedules I and II as authorised dealer of Hindustan Lever Product and for an order of injunction restraining the defendants from changing the dealership for Lalganj area and also for other ancillary reliefs.

3. The defendant-petitioner is aggrieved by order dated 3.9.2003 passed in the aforesaid suit, by which the learned Sub-Judge I, Vaishali had rejected his petition under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity) dated 5.12.2001 and the petition under Section 21 of the Code dated 20.8.2002.

4. Learned counsel for the petitioner submits that the plaintiff was the sole proprietor of Maha Laxmi Traders and was appointed as a Redistribution Stockist by virtue of written agreement dated 19.7.1996 (Annexure 1), clause 23 of which specifically stated that the agreement had been signed and executed in Calcutta and the Redistribution Stockist agrees that the place of payment for all goods sold or supplied to him by the Company under the agreement was in the city of Calcutta and that any suit to enforce the rights of either party under or in respect of this agreement shall be instituted in and tried by a competent court only in the city of Calcutta and in no other court and the Redistribution Stockist further expressly agrees to submit to the jurisdiction of such court. Learned counsef for the petitioner further submits that since the aforesaid suit was specifically in respect of the aforesaid agreement, the plaintiff-opposite party should have instituted the suit at Calcutta and the suit filed at any other place was not maintainable there.

5. Learned counsel for the petitioner also contends that labelling of his petition dated 5.12.2001 under Order VII Rule 11 of the Code was a bona fide mistake and the learned court below should have considered it to be a petition under Order VII Rule 10 of the Code as in the subsequent petition filed under Section 21 of the Code dated 20.8.2002 specific prayer had been made for return of the plaint to the, plaintiff for filing it before a proper and competent court. He further contends that from the aforesaid clause of the agreement it was quite clear that the agreement took place and was signed at Calcutta and both the parties agreed to raise objection, if any, only at Calcutta. Hence the learned counsel for the petitioner submits that the impugned order of the learned court below was illegal and unjustified as it had neither considered the relevant clause of the agreement nor had considered the specific provision of law and had merely misled itself due to the provision of law mentioned in the petition without appreciating that labelling of a petition does not effect the points raised and the relief claimed.

6. On the other hand, learned counsel for the opposite party vehemently opposes the said contention of the learned counsel for the petitioner. He claims that the revision was not maintainable in view of the decision of the Apex Court in the case of Shiv Shakti Coop. Housing Society, Nagpur V/s. Swaraj Developers and others reported in (2003)6 Supreme Court Cases 659 in which it was specifically held that Section 115 of the C.P.C. was confined only to the jurisdiction and will not be applicable where the lis was not decided and the proper remedy for the defendant against the said order was to file a petition under Article 226 of the Constitution of India. Hence he claims that the revision is not rhaintainable. Learned counsel for the plaintiff-opposite party further submits that by a so called agreement no jurisdiction could be conferred on the Calcutta court much less to the exclusion of the jurisdiction where the cause of action had arisen. In this context he relies upon a decision of thi