Applicability of the order of refusal in trying objection as preliminary issue.

The appeal is against an order of our learned brother, Singaravelu J. dated 7-8-1983, made in C. S. No. 44 of 1977, in and by which the learned Judge declined the request of the appellant to try the issue relating to jurisdiction as a preliminary issue.

2. In order to appreciate the controversy between the parties it is necessary for us to note the following few facts :

O. S. No. 44 of 1977 is a suit filed by Neyveli Lignite Corporation Ltd. (first respondent herein) against defendants 1 and 2. The second defendant, Mitsubishi France (SA) is having its head office at Paris, while the first defendant has its branch at Madras. The suit was laid for the recovery of a sum of Rs. 33,21,784.27 being the damages for breach of contract, with future interest. When the second defendant was served with the suit summons, it entered appearance on 13-10-1977 under protest and contested the jurisdiction of the Court stating that the plaintiff had no jurisdiction to institute the suit, because the second defendant is situated outside the territorial limits of India. The matter came up for decision before our learned brother, Shanmukham J. He, by his order posted the issue relating to the jurisdiction as a preliminary issue and ultimately concluded by his order dated 8-12-1980 as follows:

"It cannot be disputed that the place of delivery of the goods is a material fact constituting a cause of action. Thus in this case, part of cause of action arose at Madras as per the allegations in the plaint. Then as leave of this court was obtained in Appln. No. 372 of 1979, on the above basis also I have no hesitation to hold that this court has jurisdiction" *

Presently after the issues were framed, one such issue (being an additional issue) is framed, which is as follows-

"Has this court no jurisdiction to entertain suit as against the second defendant?" *

This was necessitated in view of the written statement filed by the second defendant that the suit contract itself envisages the dispute to be settled by the courts having jurisdiction over Neyveli and in cl.18 in relation to jurisdiction, it is so specifically stated. The request before our learned brother Singaravelu, J. was that the issue relating to jurisdiction be tried as a preliminary issue. The learned Judge inter alia held that the question of jurisdiction is a mixed question of fact and law and the long practice of this court is to try the suit as a whole. Besides, the learned Judge has also relied upon the order of Shanmukham J. to which we have made a reference just now. Accordingly he declined the request to try the issue relating to jurisdiction as a preliminary issue. Therefore, the appeal before us.

3-4. Mr. S. Govind Swaminathan, learned counsel for the appellant, urges that the learned Judge has not correctly appreciated the prayer of the appellant, what was earlier raised was in relation to the territorial jurisdiction of this court in that the second defendant being a foreigner the courts in India could not pass a decree. At that stage appearance was entered under protest as otherwise if the suit had been contested after entering regular attendance and filing written statement that would amount to submission of jurisdiction to this court. Such a plea as to want of jurisdiction in courts of India would not have been available to the appellant. No doubt that plea was negatived by this court, when Shanmukham J. passed the order on 8-12-1980. The present plea, however, is totally different. After having accepted the finding of the learned Judge concerning the, jurisdiction of Indian courts, a written statement seems to be filed, to which inter alia it is contended that in view of clause 18 of the suit contract, the suit could not be entertained on the original side of the High Court. This is entirely a different one. No question of the earlier order being binding on the appellant would arise. This issue as to whether the original side of the High Court will have jurisdiction or