A court has no territorial jurisdiction to try a suit if the cause of action did not arise within its jurisdiction and the defendants reside outside its jurisdiction.

S. C. MOHAPATRA, J.

( 1 ) PLAINTIFF is the petitioner in this Civil Revision. It has assailed the order of the trial court answering two issues against it preliminarily.

( 2 ) PLAINTIFF is a company having its registered office at Hyderabad in Andhra Pradesh. It carries on its business in Orissa having established factory area at Rourkela for manufacture of explosives. It entrusted execution of some of the Civil Construction work in the factory area at Rourkela to defendant No. 6 B. R. Patel. At that stage, the Income-tax Officer, Ward-A, Rourkela issued a notice dt. 15-6-1971 purporting to be under S. 226 (3) of the Income-tax Act, 1961 for withholding payments of certain amount to Defendant No. 6 towards the arrear tax of Defendant No. 7 M/s. East West Construction Company. Plaintiff sent a reply that Defendant no. 7 is not connected with it in any manner. Defendant No. 2 intimated the plaintiff that Defendant No. 6 is a partner of the Firm, Defendant No. 7, in his letter dt. 4-9-1971. However, thereafter even Defendant No. 6 did not execute any further work and the liability of the plaintiff is in accounting stage. In June, 1973, Defendant No. 8, the power of attorney holder of Defendant No. 6, produced a tax clearance certificate of the Income Tax Department on which basis accounts were settled at Rs. 8,973. 32 paise to be paid to defendant No. 6. Long four years thereafter, plaintiff received an order of attachment of Rs. 43,181/- from the Income Tax Recovery Officer (Defendant No. 1) directing the plaintiff to pay the arrear by 29-1-1977. Under such coercion, plaintiff had to pay the amount and thereafter it tried to explain the situation to the various authorities requesting for refund of the amount illegally extracted. When the plaintiff did not get hope of any result, it filed the suit for recovery of the amount on 29-1-1980 in the Court of the Subordinate Judge, Bhubaneswar, which was registered as O. S. No. 5 of 1980-III.

( 3 ) IN the joint written statement on behalf of the Defendants Nos. 1 to 5 apart from disputing the claim on merits, the defendants' challenged the territorial jurisdiction of the Court since Defendants Nos. 1 to 4 hold their office beyond the jurisdiction of the Court. It was also stated that the relief prayed for by the plaintiff is not enforceable.

( 4 ) ON the pleadings, seven issues were framed by the Court. On 9-11-1981, an application was filed by the plaintiff that issue No. 3 "whether the Court has jurisdiction to try the suit" to be decided first. In the said petition, it was also stated that in the event it is found that the Court would have no territorial jurisdiction, the plaint has to be returned to be filed in proper Court. This application was allowed by the trial court which decided to hear the issue No. 3 first. Before the issue was heard, on 12-2-1982 plaintiff filed an application for leave to pursue the suit in the trial court at Bhubaneswar. This application was purported to be one under S. 20 (b), Civil P. C. On the same the preliminary issue relating to jurisdiction heard and the impugned order was passed on 25-2-1982.

( 5 ) THE issue of jurisdiction involved two questions : (A) territorial jurisdiction and (b) bar of suit under S. 9, C. P. C. in view of R. 9 of Second Schedule to the Income-tax Act, 1961. Both the questions were answered against the plaintiff by the trial court.

( 6 ) MR. B. K. Mohanti, the learned Advocate for the plaintiff-petitioner assailed the order both on merits and propriety. He submitted that, the learned Subordinate Judge ought to have first decided whether the court has territorial jurisdiction and then it should have considered the application filed on 12-2-1981 to grant leave under S. 20 (b), Civil P. C. and in case it would have refused leave, it should have given opportunity to the plaintiff to take return of the plaint to present the same in proper court. Mr. Mohanti next submitted that once the Court came to the conclusion that it ha