The main legal point established is that the issue of territorial jurisdiction should be treated as a preliminary issue, and deciding jurisdiction in the first instance is essential.

Viney Mittal, J.

1. In view of the law laid down in the case of Shiv Shakti Coop. Housing Society Nagpur v. Swaraj Development and Ors., J.T. 2003(4) S.C. 255 the revision petition filed by the petitioner under Section 115 CPC is not maintainable.

2. Faced with this difficulty, the learned counsel submits that the present revision petition be treated as petition under Article 227 of the Constitution of India. The prayer made by the learned counsel is allowed.

3. The present petition has been filed by defendant No. 2 M/s Modern Food Industries (India) Ltd. The order dated April 21, 1994 passed by the learned trial Court has been impugned.

4. A suit for permanent injunction was filed by plaintiff-respondent No. 1 for restraining defendant No. 1 from releasing the amount of Rs. 1,94,000/- to defendant No. 2 on the basis of specimen bank guarantee dated January 27, 1992. It was claimed that the aforesaid bank guarantee could not have been encashed by defendant No. 2.

5. The defendants appeared. A separate written statement was filed by defendant No. 2. In the written statement filed by defendant No. 2, the territorial jurisdiction of Ludhiana Court was challenged. It was submitted by the said defendant that in fact cause of action, if any, had arisen to the plaintiff at Delhi and, therefore, Ludhiana Court had no territorial jurisdiction.

6. The learned trial Court framed a number of issues. Issue No. 3 read as follows;

"Whether this Court has no territorial jurisdiction to try the present suit."

7. Subsequently, two applications were filed by defendant No. 2 before the learned trial Court. One application was under Order 14 Rule 5 CPC to the effect that the onus of issue No. 3 had wrongly been placed upon defendant No. 2 and the same should have been placed upon the plaintiff. This application was not contested by the plaintiff. Accordingly, the onus of proving issue No. 3 was shifted from defendant No. 2 to the plaintiff. Another application was filed claiming that since issue No. 3 pertained to the territorial jurisdiction of the Civil Court at Ludhiana, therefore, the same should be treated as a preliminary issue. This application was contested by the plaintiff. The plaintiff claimed that the aforesaid issue required evidence and, therefore, could not have been treated as a preliminary issue. The learned trial Court vide its impugned order dated April 21, 1994 rejected the prayer made by defendant No. 2 and held that the said issue No. 3 could not be treated to be a preliminary issue.

8. Shri I.K. Mehta. the learned senior counsel for the petitioner has submitted that in para No. 13 of the plaint, the following averments had been made by the petitioner in the plaint:

"That the specimen bank guarantee was deposited at Ludhiana, the cause of action accrued to the plaintiff at Ludhiana; the plaintiff works for gain and its registered and Admn. Office is situated at Ludhiana, hence, this Honble Court had the exclusive jurisdiction to entertain and try the present suit."

9. On the basis of the aforesaid averments, Shri Mehta has submitted that from the case set up by the plaintiff himself it was clear-that it could not be stated that the cause of action or any part thereof had arisen to the plaintiff at Ludhiana and, therefore, apparently, the civil Court at Ludhiana had no jurisdiction to deal with the matter. Shri Mehta has further maintained that even if some evidence was required to be led by the plaintiff to support his plea that the civil Court at Ludhiana had the jurisdiction, still the said issue should have been treated as preliminary issue since it concerned the jurisdiction of the Court. According to Shri Mehta after the trial of the suit, it the learned trial Court came to the conclusion that the civil Court at Ludhiana has no territorial jurisdiction then the entire effort and expenses incurred by the parties would go waste.

10. In support of his contention Shri Mehta has relied upon judgments in the cases of M