The lack of jurisdiction is a fatal issue and must be resolved before proceeding further.

JUDGEMENT/ORDER :

1. Petitioners have come up before this Court through the medium of instant petition challenging the order dated 30.10.2012 passed by the learned Additional District Judge, Jammu (for short, trial Court) where by learned trial Court while framing the issues also decided a preliminary issue relating to jurisdiction of the trial Court to hear and decide the suit which has been decided against the petitioners-defendants holding that the same was mixed question of fact and law. A prayer has been made for setting aside the said order dated 30.10.2012 passed by the trial Court.

2. Facts leading to the institution of the suit before the trial Court, in short, are that the respondent-plaintiff came to be appointed as Medical Representative of the defendant company with Headquarter at Shimla, in the year 1988 and as per the terms of appointment, all or any dispute arising with regard to employment of respondent-plaintiff was subject to the restricted jurisdiction of the Courts/Tribunals at Ahmedabad (Gujarat). It is alleged that the services of respondent-plaintiff were terminated vide order dated 30.07.2004 and aggrieved of the same, he filed a civil suit before the trial Court seeking declaration to the effect that the order of termination dated 30.07.2004 is null and void, in operative, in effective and against law that is required to be set aside; with a consequential relief of mandatory injunction directing the petitioners-defendants to reinstate the respondent-plaintiff on the post of Area Business Manager. The respondent-plaintiff has also sought alternative relief of award of compensation from the petitioners-defendants.

3. Written statement was filed by the petitioners-defendants raising preliminary objection challenging the jurisdiction of the Court to hear and decide the suit in view of the Clause 9-XXII of Agreement of Appointment, which laid restrictive jurisdiction of the Courts at Ahmedabad (Gujarat) in case of any dispute. Learned counsel for the petitioners-defendants has submitted that the trial Court vide impugned order dated 30.10.2012 while deciding the preliminary issue of jurisdiction has fallen in error by holding that the same was mixed question of fact and law whereas under Clause 9-XXII, it has been specifically mentioned that all the disputes arising out of appointment/ employment shall be governed under the said clause and the Courts/Tribunals at Ahmedabad (Gujarat) only have the power and jurisdiction to adjudicate upon the said disputes. Therefore, the respondent-plaintiff, by virtue of agreement of appointment is restricted to approach the Court elsewhere except Ahmedabad (Gujarat). Learned counsel further submitted that once the parties are governed by an agreement and there is a stipulation contained therein which specifically lays down the jurisdiction of a particular Court, it no longer remains the issue of fact and the trial Court should have considered this fact and decided the preliminary issue in accordance with the terms of contract. Thus, the findings returned by the learned trial Court on the issue of jurisdiction is not only contrary to the agreement of appointment, but, also is against the settled proposition of law which is not sustainable in the eyes of law. It is urged by learned counsel for the petitioners-defendants that the findings of the learned trial Court that the issue of jurisdiction requires evidence is misplaced and without any merit because the contract in question is neither hit by Section 28 of the Contract Act nor oust the jurisdiction of the Court which the Court otherwise has. It does not even vest the jurisdiction upon the Court which the Court lacks. To buttress his arguments, learned counsel for the petitioners-defendants has relied upon the following judgments:-

(i) 1971 (1) SCC 286 titled Hakam Singh v. Gammon India Limited;

(ii) (2002) 9 SCC 613, Shriram City Union Finance Corporation Ltd. v. Rama Mishra;

(iii) (2005) 10 SCC 704, titled Shree Subhlaxmi F