An objection to the place of suing under an agreement between the parties is covered by Section 21(1) of the CPC and is not maintainable in an appellate court unless there has been a consequent failure of justice.

( 1 ) THE suit against the carrier for compensation in respect of the goods consigned, which has given rise to this appeal, was filed by the plaintiff in the City Civil Court of Calcutta and has been decreed by learned Judge of that Court, notwithstanding an agreement between the parties to the effect that "the contract shall be deemed to have been entered and made with the Administrative and Head Office of the Company at Bombay and that "the Courts in Bombay alone shall have jurisdiction in respect of all claims and matters arising under the consignment or of the goods entrusted for transport". The Head Office of the defendant carrier Company being in Bombay and the goods having been consigned for delivery in Calcutta, the Courts both in Bombay and Calcutta would ordinarily have jurisdiction to try the suit. The law is now well settled, and more so after the decision of the Supreme Court in Hakam Singh v. Gammon (India) Ltd. , AIR 1971 SC 740, that when two or more Courts have under the law jurisdiction to try a suit or proceeding, an agreement between the parties that the dispute between them shall be tried only in one of such Courts is a valid agreement being neither hit by S. 28 of the Contract Act nor opposed to public policy under S. 23 of the Act. Such an Agreement is of so much efficacy that if any suit is filed in any other-court in violation of such agreement and the aggrieved party successfully pleads and proves such agreement, the Court would have to order return of plaint for presentation to the proper Court.

( 2 ) THE learned Judge, however, thought that the plaintiff was not a party to the agreement as he was neither the consignor nor the consignee, but received the consignment notes through a Bank to which these were sent by the consignor and was, therefore, not bound by the agreement. The learned Judge failed to note that the goods were sent by the consignor as the agent and at the direction of the plaintiff and the plaintiff was, therefore, bound by the agreement as the consignor was. In that view of the matter, and under the law as noted hereinbefore, the learned Judge ought to have held that the suit was to be instituted only in a Court in Bombay.

( 3 ) BUT as already noted, the suit has been fully tried and disposed of by the Calcutta court notwithstanding the agreement that it was to be tried in Bombay. And this at once gives rise to the pertinent question that even assuming that the Calcutta Court was wrong in ignoring the contract and in holding the said to be inapplicable, is the decree liable to be reversed or varied by the appellate Court solely on the ground that the Calcutta Court was wrongly chosen as the place of suing in violation of the agreement to file the suit in a Court in Bombay? To put it differently, is the decree of a competent Court liable to be set aside solely on the ground that the suit was not filed in a Court wherein it was to be filed according to the agreement between the parties to the suit?

( 4 ) THE question in our view would be fully covered by the provisions of S. 21 (1) of the Civil P. C. , and would have to be answered in the negative if the expression "place of suing" in S. 21 (1) would also mean a place of suing as agreed upon by agreement between the parties. The point, however, does not appear to have been directly decided in any reported decision of this Court or the Supreme Court. S. 21 (1) runs thus :-"no objection as to the place of 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".

( 5 ) THEREFORE, as pointed out by the Supreme Court in Pathumma v. Kuntalan, AIR 1981 SC 1683 at p. 1684, no objection as to the place of suing can be entertained by an appellate or revisional Court unless the following