Parties cannot confer jurisdiction on a court which it does not possess under the Code.

JUDGMENT :

Dr. A.K. Rath, J. - This application under Article 227 of the Constitution of India challenges the order dated 23.9.2009 passed by the learned Civil Judge (Jr. Division), Ist Court, Cuttack in C.S.No.39 of 2007. By the said order, the learned trial court allowed the application filed by the defendant under Order 14, Rule 2 C.P.C. and held that the Court has no territorial jurisdiction to try the suit and simultaneously directed the plaintiff to value the suit properly and pay the proper court fees.

2. The petitioner as plaintiff instituted C.S.No.39 of 2007 in the court of the learned Civil Judge (Jr. Division), Ist Court, Cuttack for specific performance of contract, mandatory injunction and certain ancillary releifs impleading the opposite party as defendant. Pursuant to issuance of summons, the defendant entered appearance and filed written statement challenging the territorial jurisdiction of the Court. While the matter stood thus, the defendant filed an application under Order 14, Rule 2 C.P.C. to decide the question of jurisdiction of the Court as preliminary issue. It is stated that by virtue of Clause 27 of the Agreement dated 21st August, 2004, the Courts at Bhubaneswar only be the competent Court of jurisdiction in case of any dispute that may arise from out of the said agreement. Further, the plaint has not been properly valued and the Court fees have not been paid. The plaintiff filed an objection to the same. It is stated that the issue of jurisdiction is a mixed question of fact and law and the same cannot be decided as a preliminary issue. The plaintiff has never agreed to submit the jurisdiction of the Court at Bhubaneswar. The agreement is oppressive and unfair. Further the Court at Bhubaneswar has no jurisdiction to adjudicate the suit and jurisdiction cannot be conferred on the said court. By order dated 23.9.2009 the learned trial court came to hold that in view of the agreement between the parties, the competent Court at Bhubaneswar has got jurisdiction to try the suit. Simultaneously the learned trial court directed the plaintiff to value the suit properly and pay the proper court fees.

3. Heard Mr. Gopal Krishna Mishra, learned counsel for the petitioner and Mr. Harisankar Mishra, learned counsel for the opposite party.

4. The question does arise as to whether it is open to the parties to a confer jurisdiction on a Court which it does not possess under C.P.C.?

5. Clause 27 of the Agreement is quoted hereunder:-

"27. That the Courts at Bhubaneswar only shall be the competent courts of jurisdiction in case of any dispute that may arise from and out of this agreement in respect of the said Demised Portion."

6. Hakum Singh v. Gemmon (India) Ltd., AIR 1971 S.C. 740, is the first leading decision of the apex Court on this point. In the said case, the contract was entered into between the parties for construction of work. An agreement provided that notwithstanding where the work was to be executed, the contract shall be deemed to have been entered into at Bombay and Bombay Court alone shall have jurisdiction to adjudicate the dispute between the parties. The question before the Court was whether the Court at Bombay alone had jurisdiction to resolve such dispute. The Supreme Court held thus:-

"By Clause 13 of the agreement it was expressly stipulated between the parties that the contract shall be deemed to have been entered into by the parties concerned in the city of Bombay. In any event the respondents have their principal office in Bombay and they were liable in respect of a cause of action arising under the terms of the tender to be sued in the Courts of Bombay. It is not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it does not possess under the Code. But where two Courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding on agreement between the parties that the dispute between them shall be tried in one of such Courts is