An agreement between the parties that the dispute between them shall be tried in one of the Courts otherwise having jurisdiction to do so is not against public policy, and such an agreement is binding between the parties. However, the Court has the discretion to examine whether the agreement is oppressive or not, and the Court will not enforce the agreement if it is found to be oppressive.

Jurisdiction to try a case is derived by the courts from a statute; parties cannot confer the same by agreement. The question is : Can they oust the same totally by mutual agreement? If so, when?

2. This poser has arisen in the two suits at hand as the defendant, a common carrier and its partners, has taken the stand that as per cl.16 of the Consignment Note, the Court in Malda alone has jurisdiction to entertain suits in respect of "all claims and matters arising under the consignment or of goods entrusted for transport." The suits being for recovery of compensation due to non-delivery of goods booked through the petitioner, the clause is otherwise attracted. The question is whether such a term can prevent any of the parties to approach a Court, other than the one specified, even if that court otherwise has jurisdiction?

3. To clear the deck, let it be said that undisputably the Court of learned Munsiff at Nowgong before whom the suits were filed has jurisdiction to entertain the same, as a part of the cause of action had arisen there, and the defendant has its branch office at Hojai, wherefrom the plaintiff also hails. Then though it has been urged by the plaintiff in his counter that the aforesaid agreement is not binding on him, as the same had been entered into by one Baisnab Saha who had booked the goods at Calcutta through the defendant there is no force in this contention, as Shri Saha has to be regarded as an agent of the plaintiff for this purpose, as the latter had got his goods booked by the former in his name.

4. The main question is the effect of the agreement like the above. The learned Munsiff has rejected the contention of the defendant as according to him the enforcement of the agreement would be oppressive on the plaintiff who shall have to incur more expenditure, if he were to approach the Malda Court then what has been claimed by him. In coming to this conclusion, reliance has been placed mainly on Snehal Kumar Sarabhai v. E. T. Organisation, AIR 1975 Guj 72. The defendant has challenged the correctness of the view.

5. As the matter relates to the jurisdiction of the Court the question comes within the fold of section 115 par excellence. Shri Bhattacharjee, however, submits by referring to Renown Biscuit Co. v. Kamalanathan, AIR 1980 Mad 28, that as entertainment of the suit at Nowgong would not cause any failure of justice, the Court may not interfere with the order. This view was taken by a learned single Judge in the aforesaid case by referring to Snehal Kumar (supra) and Nanakchand v. T. T. Electric Supply Co., AIR 1975 Mad 103. Learned Advocate General, Meghalaya, appearing for the petitioners has challenged the correctness of the view expressed in Snehal Kumar, which has been arrived at by missing what has been held by the Supreme Court in Hakam Singh v. Gammon (India) Ltd., AIR 1971 SC 740, wherein such an agreement has been held as binding. As to Nanak Chand, it is submitted that that case had dealt with this matter on appeal from a decree. Though this is correct but in view of S.21, Civil P.C. question of failure of justice has to be examined by a revisional court before whom objection as to place of suing is raised. In any case, this aspect, or question of irreparable injury has to be borne in mind in view of the proviso added to S.115, Civil P.C. by the amending Act of 1976, inasmuch as cl.(a) of the proviso has no application, as the suits would not be finally disposed of even if the order is reversed.

6. I do not, however, propose to decide the revision only by examining the question of failure of justice, or irreparable injury, as the point being of importance, the legality of the order merits to be gone into especially when there is said to be no decision of this Court on this aspect. First of all, it has to be seen whether such a contract is void or unlawful in any way. Section 28 of the Contract Act makes any agreement in restraint of legal proceedings as void. But in Hakam Singh, the