An agreement between the parties to confer jurisdiction on a Court not possessed by it under the Code is not contrary to public policy and does not contravene Section 28 of the Contract Act.

This Rule has been obtained by the defendant against the order made by the Assistant District Judge, Cachar, in Money Suit No. 23/72, by which he has decided a preliminary objection raised in the suit, namely, whether his Court has got the jurisdicdiction to try the suit, in favour of the plaintiff. The plaintiff-opposite party filed the suit for a decree of Rs. 22,500/- against the defendant petitioner as damages for breach of a contract for sale of 750 bags of sugar inclusive of an amount of Rs. 7,500/- paid as advance. The plaintiff alleged in the plaint that the sugar was to be delivered to the plaintiff at Silchar and so the cause of action in the suit arose at Silchar.

2. The defendant by filing a verified petition raised a preliminary objection as to the jurisdiction of the Court at Silchar. It was alleged in the petition that in terms of clause 3 (b) of the contract all suits arising out of any dispute in respect of the transaction covered by the contract would be subject to the jurisdiction only in the District Court at Saran (Bihar) and as such the Court at Silchar has got no jurisdiction to try the suit. The defendants filed the copies of three sale contracts covering 750 bags of sugar, as Annexures A, B and C to the petition. It appears from the record that the plaintiff did not challenge the genuineness of these documents by filing any counter affidavit. On hearing arguments advanced on behalf of the parties, the learned Assistant District Judge rejected the contention of defendant with the following observation:-

"The plaintiff has sued the defendant whose office is at Calcutta and with whom the plaintiff made a contract for purchase of sugar. As such the parties cannot by an agreement take away the jurisdiction of this Court to Bihar. I find that the Court at Saran cannot have any jurisdiction to try this suit. As such I find that there is no force in the contention of the learned Advocate for the defendant. Accordingly the prayer of the defendant is rejected."

3. Mr. S. K. Senapati the learned counsel for the opposite party, took a preliminary objection that as the petitioner has not yet filed its written statement in the suit, it cannot be allowed to take the plea that the Court at Silchar has got no jurisdiction to try the suit, at this stage. According to him the defendant can take such a plea in the written statement and when so taken, the Court may decide such an issue as a preliminary issue and not at any earlier stage. This contention is not well founded. Under Section 21 of the Civil P. C. such an objection is to be taken in the Court of first instance at the earliest possible opportunity. There is nothing in the Code that such objection cannot be taken at any stage before filing of the written statement. If it is held by the Court that it has no jurisdiction, there will be no necessity to file any written statement setting out the case of the defendant. Be that as it may, the plaintiff-opposite party did not raise any such objection in the Court below. He cannot, therefore, be allowed to take such an objection at this stage after the order of the Court below went in his favour.

4. There can be no dispute that the parties cannot by agreement confer jurisdiction on a Court not possessed by it under the Code. But when under the Code more than one Court has jurisdiction to try a suit it is a settled law that an agreement between the parties that the suit should be instituted in one of these Courts is not contrary to public policy and does not contravene Section 28 of the Contract Act. If any authority is needed on this proposition reference may be made to the decisions in Hakam Singh v. Gammon (India) Ltd., AIR 1971 SC 740; Continental Drug Co. Ltd. v. Chemoids Industries Ltd., AIR 1955 Cal 161 and Musaji Lukman Ji v. Durga Dass, AIR 1946 Lah 57 (FB). The only question for determination, therefore, is whether the District Court at Saran has got any jurisdiction to try the suit under the Code.

5. Claus