IMPORTANT POINT
Issue of territorial jurisdiction – When suit is ripe for trial and it is posted for evidence of Plaintiff, adjudication of issue of territorial jurisdiction of Court will certainly be a piece-meal trial of suit.

JUDGMENT

K.R. Mohapatra, J.—This matter is taken up through hybrid mode.

2. Order dated 11th October, 2012 (Annexure-5) passed by learned 1st Additional Civil Judge (Senior Division), Cuttack in Civil Suit No.175 of 2008 is under challenge in this writ petition, whereby an application filed by the Defendant No.1-Petitioner to hold that the said Court lacks territorial jurisdiction to try the suit, was dismissed.

3. Opposite Party as Plaintiff filed the suit for realization of Rs.11,78,000/- from the Defendant-Petitioner along with an interest at the rate of 12% per annum. The Defendant No.1-Petitioner filed written statement denying its liability to pay the amount. The Petitioner also filed an application (Annexure-3) to decide the issue of territorial jurisdiction of learned trial Court to try the suit at the threshold on the ground that Clause-26 of the agreement, which was mutually agreed upon by the parties and basing upon which the suit is filed, clearly stipulates that ‘all disputes that may arise with regard to this agreement shall be subject to Chittor (A.P.) Court jurisdiction only.’ Thus, learned trial Court lacks jurisdiction to try the suit. Learned trial Court without deciding the issue at the threshold held that the issue of territorial jurisdiction can be taken up simultaneously along with other issues in the suit for effective adjudication. It, accordingly, rejected the petition filed by the Defendant-Petitioner vide order under Annexure-5. Assailing the said order, this writ petition has been filed.

4. Mr. Pattnaik, learned counsel for the Petitioner submitted that the suit is filed by the Opposite Party for realization of money, which is allegedly due to her as per the terms and condition of the agreement, as aforesaid. Thus, the present dispute arose from the agreement and hence, only competent civil Court at Chittor (A.P.) has territorial jurisdiction to try the suit. As such, learned Civil Judge (Senior Division), Cuttack has no jurisdiction to try the suit. This material aspect could not be appreciated by learned trial Court. It is his submission that no evidence is required to be adduced by the parties for adjudication of the issue of territorial jurisdiction in the instant case. As such, learned trial Court has committed gross error of law in not considering the issue of territorial jurisdiction of the Court to try the suit at the threshold. He, therefore, prayed for setting aside the order under Annexure-5 and remit the matter to learned trial Court to adjudicate the issue of territorial jurisdiction of that Court to try the suit at the threshold. In support of his submission, Mr. Pattnaik, learned counsel relied upon the case of New Moga Transport Company -v- United India Insurance Co. and others, reported in AIR 2004 SC 2154, wherein it is held as under:—

“14. By a long series of decisions it has been held that where two courts or more have jurisdiction under CPC to try a suit or proceeding, an agreement between the parties that the dispute between them shall be tried in any one of such courts is not contrary to public policy and in no way contravenes Section 28 of the Indian Contract Act, 1872. Therefore, if on the facts of a given case more than one court has jurisdiction, parties by their consent may limit the jurisdiction to one of the two courts. But by an agreement parties cannot confer jurisdiction on a court which otherwise does not have jurisdiction to deal with a matter. [See Hakam Singh v. Gammon (India) Ltd. [(1971) 1 SCC 286: AIR 1971 SC 740] and Shriram City Union Finance Corpn. Ltd. v. Rama Mishra [(2002) 9 SCC 613: AIR 2002 SC 2402].

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19. The intention of the parties can be culled out from use of the expressions “only”, “alone”, “exclusive” and the like with reference to a particular court. But the intention to exclude a court’s jurisdiction should be reflected in clear, unambiguous, explicit and specific terms. In such case only the accepted notions of contract wo