The rejection of the plaint for lack of territorial jurisdiction was deemed to be an order for return of the plaint, enabling the plaintiff to file a suit in a Court of competent jurisdiction. The court held that such an order did not adjudicate any of the rights of the parties and was appealable under Order 43 Rule 1(a) of the Code.

Hemant Gupta, J.

1. The challenge in the present petition is to the order passed by the learned trial Court on 14.5.2010 whereby an application filed by defendant No.2 under Order 7 Rule 11 of the Code of Civil Procedure, 1980 (for short "the Code") for rejecting the plaint was allowed holding that the Court has no territorial jurisdiction to try the present suit and in consequence thereof the plaint was ordered to be returned to the plaintiff.

2. Plaintiff-respondent No.] filed a civil suit No. 193 of 2010 for declaration alleging that the Development Agreement dated 4.1.2006, Annexure P-16, is a false, forged and fabricated document and is void ab initio. The plaintiff also claimed a decree for mandatory injunction in respect of Collaboration Agreement for Development of Property dated 4.1.2006, Annexure P-3. As per plaintiff, it was the Collaboration Agreement for Development of Property dated 4.10.2006 (Annexure P-3) which was executed between the parties in respect of commercial office spaces purchased by the plaintiff and defendants No.10 to 41 in a building proposed to be constructed at Mumbai whereas the defendant relies upon Development Agreement dated 4.1.2006 in respect of building proposed to be constructed on the land in Mumbai. It is not necessary to refer to other terms of agreement and the averments in the suit except to the extent that Clause 28 in Collaboration Agreement, Annexure P-3, is that the said agreement shall be subject to jurisdiction of Courts in Mumbai alone. Similarly, in Development Agreement, Annexure P-16, Clause 28 is that this Development Agreement shall be subject to the jurisdiction of the Court at Mumbai alone.

3. The plaintiff-respondent has filed a suit claiming multiple reliefs arising out of agreement Annexure P-3 in respect of property situated in Mumbai and challenging the legality and validity of the agreement Annexure P16. Defendant No.2 moved an application under Order 7 Rule 11 of the Code to the effect that Gurgaon Courts have no territorial jurisdiction to entertain the suit, inter alia, for the reason that the subject matter of the suit i.e., the immovable property, is situated in Mumbai and, therefore, in terms of Section 16 of the Code, it is the Mumbai Court alone which has the jurisdiction to entertain the suit. Reliance was also placed upon Clause 28 of the Agreement to contend that Mumbai Court alone has the jurisdiction to entertain the suit.

4. The said application was allowed by the learned trial Court, inter alia, holding that the plaintiff has not disclosed how the cause of action has arisen at Gurgaon and in terms of Clause 28 in both the Agreements, the jurisdiction is of Courts at Mumbai alone and, therefore, the Gurgaon Court has no territorial jurisdiction to try and entertain the present suit.

5. Learned counsel for the petitioner has vehemently argued that though the agreement pertain to purchase of immovable property situated in Mumbai but part of cause of action has arisen in Gurgaon as agreements were entered into at Gurgaon and some of the defendants are residing in Gurgaon. It is contended that the primary dispute is in terms of agreement as to whether such terms were entered upon and, therefore, the Gurgaon Court has the territorial jurisdiction to entertain the suit.

6. On the other hand, learned counsel for the respondent has vehemently argued that the impugned order is appealable and, therefore, the present revision petition is not maintainable. It is contended that the order passed by the learned trial Court is of rejection of plaint and such rejection of plaint is a decree within the meaning of Section 2 (2) of the Code. Therefore, the petitioner has a right to file first appeal against the decree. Such appeal is maintainable before the learned District Judge. Reliance was placed upon R. Shanmughavelu Pillai v. R. Karuppannan Ambalam, AIR 1976 Madras 289. Alternatively, it is contended that since the plaint has been ordered to be returned,