Point of Law : A Suit can be instituted in a place where the cause of action wholly or part arises.

JUDGMENT :

The 2nd defendant in O.S.No.202/2013 pending before the Additional Sub Court, Kottayam, has preferred this Original Petition under Article 227 of the Constitution of India, challenging the order in I.A.No.2/2020 in the above Suit (Ext.P3), whereby the learned Sub Judge posted the petition filed by the defendants to hear the issue of territorial jurisdiction of the Sub Court.

2. The respondents herein are the plaintiff and the 1st defendant respectively.

3. Heard the learned counsel for the petitioner as well as the 1st respondent in detail. Perused the materials placed along with the Original Petition, counter affidavit and reply affidavit.

4. The learned counsel for the petitioner argued that the petitioner herein filed I.A.No.2/2020 contending that the Sub Court, Kottayam, has no jurisdiction to entertain the Suit since no cause of action for the Suit arose within the jurisdiction of Kottayam district. It is submitted further that even though the issue of territorial jurisdiction shall be tried and decided as a preliminary issue, the Sub Court posted the said petition along with the Suit for considering the said question. According to the learned counsel for the petitioner, the said procedure adopted by the trial court is erroneous and, therefore, the same requires interference with direction to the trial court to consider and pass orders on merits in the petition treating the same as a preliminary issue.

5. In this connection, the learned counsel placed a decision reported in [AIR 1993 Kerala 210], Femina Handloom of India, Cannanore v. M/s. M.R. Verma & Sons. In the said decision it was held as under :

“Where the defendant alleged that the court has no jurisdiction to try the case and an issue is framed regarding jurisdiction, for the convenience of the parties same should have been tried as preliminary issue and if the court finds that it has no jurisdiction the plaintiff can very well proceed the litigation in the proper court. The finding regarding jurisdiction at the final stage would only cause undue hardship to parties.”

6. Similarly, the learned counsel for the petitioner placed another decision reported in [2017 (4) KLT 468], Prasad v. Travancore Devaswom Board, to contend that where issues of law and facts are framed in a Suit, those relating to law, if it relates to jurisdiction and bar to suit, be tried first. In this case, strangely, no issue was framed with regard to law and the court below proceeded to try the issues of facts but to dismiss the Suit on a question relating to jurisdiction, though no such issue had been framed at all.

7. Per contra, the learned counsel for the 1st respondent submitted that the question of territorial jurisdiction raised by the petitioner herein is without bona fides. He submitted further that the defendants herein filed written statement in this case of 2013 as early as on 03.09.2013 and no plea as regards to the teritorial jurisdiction seen raised therein. He also submitted that in the written statement, there is wilful admission by the defendants to the effect that part of the transaction led to the Suit arose on different dates within the jurisdiction of Kottayam. The relevant paragraph in the counter affidavit is as under :

“4. The petitioner filed written statement in the suit in which it is admitted that the petitioner purchased the rubber from the first respondent from the factory at Kottayam and the godown at Erattupetta. The relevant portion of the written statement in paragraph 4 of the written statement is extracted hereunder:

“4. …........ It is admitted that the defendants used to purchase rubber from the plaintiff on different dates from different factories at Kottayam and from the godown at Erattupetta. The defendants used to take delivery of the rubber dispatched in their favour and immediately they used it for manufacturing solid tyres...........”

In these circumstances territorial jurisdiction is not an issue which arises for consideration in the suit. ….”

He a