Civil Revn. Appln. No. 384 of 1975

18th August, 1978.

Petitioner Counsel: G.G. Modak, for Opponent.

Cases Cited:
AIR 1977 Bom 299,1977 Mah LJ 365 [Para 7]
AIR 1971 SC 740 [Para 9]

JUDGMENT

ORDER :-This is a Revision Application filed by the original defendant against an order passed by the Civil Judge, Junior Division, Nagpur, on 12th March 1975 answering the preliminary issue against him and in favour of the plaintiff.

2. The plaintiff, Kisanlal Mataprasad carrying on business under the name and style of "Shciram Kavelu Bhandar" having his place of business in Gandhibag Nagpur filed the present suit against the applicant defendant M/s. Hindustan Tiles Corporation, having its place of business at Ollur in Kerala State. The suit was filed for recovery of a Rs. 5,500/- for breach of a contract. In the plaint itself it was alleged by the plaintiff that he had entered into the suit agreement with the defendant's representative on the assurance that the condition about the jurisdiction of Trichur Court on the reverse of the contract form is merely a printed condition and not binding on him. It was also contended that the condition mentioned in the order form restricting the jurisdiction to Trichur Court only cannot restrict the ordinary jurisdiction of the Civil Court at Nagpur and, therefore, the Court at Nagpur has jurisdiction to try the suit inasmuch as the cause of action for the suit arose at Nagpur.

3. The defendant in its written-statement denied this allegation and submitted that the Nagpur Court had no jurisdiction to try the present suit and, therefore, the suit will have to be dismissed on that count alone.

4. On the basis of these pleadings of the parties, the learned Judge of the trial Court framed a preliminary issue in the following terms :

"Has this Court territorial Jurisdiction to try this suit ?"

5. In support of this preliminary issue the parties adduced their evidence. The defendant examined his witness at Ex. 17. He supported the defendant's version that by conditions Nos. 9 and 10 on the order form in Ex. 18, which is an agreement arrived at between the parties consciously and duly executed by the plaintiff, only Trichur Court in Kerala State has got jurisdiction to try the suit and the Court at Nagpur has no jurisdiction. The plaintiff examined himself at Ex. 19 and stated that the Court at Nagpur has jurisdiction to try the suit.

6. After appreciating the evidence on record the learned Judge of the trial Court came to the conclusion that it was not disputed before him that both the Courts had jurisdiction to try the suit as part of the cause of action has taken place within the jurisdiction of Trichur Court as well as the Nagpur Court. However, while answering the question as to whether the parties to the agreement can restrict themselves to the jurisdiction of Tirchur Court, the learned Judge did not agree with the proposition that such a restriction can take away the original jurisdiction of Nagpur Court. He also observed that the learned counsel for the defendant also could not convince him on that point. Therefore,

according to the learned Judge, in view of this legal position and the evidence on the point, it was not possible for him to hold that the Nagpur Court had no jurisdiction to entertain and try the suit. It is this order which is challenged before me in this Civil Revision Application.

7. Shri Bhonsule, the learned counsel appearing on behalf of the applicant-defendant, contended before me that the learned Judge of the trial Court committed an error apparent on the face of the record in coming to the conclusion that there cannot be any agreement between the parties to restrict the territorial jurisdiction of a particular Court. In support of this proposition he has relied upon a decision of this Court in Ghatge and Patil (Transport) Ltd. Kolhapur v. Madhusudan (1977 Mah LJ 365) : (AIR 1977 Bom 299) as well as the decision of the Supreme Court in Hakam Singh v. Gammon (India) Ltd. (AIR 1971 SC 740). So far as the factual position is concerned, Shri Bhonsule contended that the learned Judge of the Trial Court has not considered the evidence adduced by the parties at all. Therefore his order is wholly vitiated because of the non-application of mind.

8. On the other hand, it is contended by Shri Modak, the learned counsel for the opponent, that by an agreement of parties, the parties can themselves restrict to the jurisdiction of a particular Court. In the present case there was no such agreement. According to Shri Modak the plaintiff in this case did not know English. His signature was taken on a printed form. On this printed form on the reverse such a condition is printed, vide condition No. 9. The said condition was never explained to the plaintiff and, therefore, in fact there was no conscious agreement between the parties to restrict the jurisdiction to Trichur Court alone.

9. So far as the first question is concerned, as to whether by an agreement between themselves the parties can restrict the jurisdiction to try the dispute in one of the Courts having such jurisdiction, in my opinion, the said question is by now well settled. (See Hakam Singh v. Gammon (India) Ltd. (cit. supra) (AIR 1971 SC 740) as well as Ghatge and Patil (Transport) Ltd. Kolhapur v. Madhusudan. (cit supra). (AIR 1977 Bom 299). Therefore, it is by now well settled that where more than one Courts have jurisdiction to try a suit, the parties can by agreement restrict a forum to try the suit. So far as the finding recorded by the learned Judge on the merits of the matter concerned obviously the said finding also cannot be sustained.

10. It is really unfortunate that the learned Judge has not made a detailed reference to the evidence adduced by the parties on the preliminary issue. Practically, therefore, the whole evidence has been omitted from consideration. Thus the finding recorded by the learned Judge in this behalf is vitiated by non-application of mind, which could be termed as an error apparent on the face of the record. In the plaint itself the plaintiff has averred as under :-

"The plaintiff signed this agreement form with an express oral instruction to the representative of the defendant that the condition regarding Trichur jurisdiction is not binding on him and only on assurance that it was merely a printed condition that this plaintiff agreed to sign the said form."

Therefore, obviously it was the case of the plaintiff, at least in the plaint, that he was aware of this term of agreement, but he had signed the agreement because it was waived, or he was told that it is not going to be binding upon him, whereas in evidence before the Court he has come with an altogether different story. In the evidence before the Court he has stated that he does not know English and the relevant condition in Ex. 18, that is, the order form, was not explained to him. He has further stated that if he has known about the said term, he would not have placed an order with defendant. However, in the cross-examination he admitted that he dictated to the defendant's agent, he wrote it and then he explained it to him. According to him, there was no talk on the conditions Nos. 9 and 12 between himself and the defendant's agent. When his attention was drawn towards the averments made in paragraph 3 of the plaint, he stated that the said averments are correct. He further stated that he cannot assign any reason as to why he did not ask to score out the conditions Nos. 9 and 12 on the reverse of Ex. 18. Therefore, obviously the evidence adduced before the Court is at variance with the plea raised in the plaint From the bare persual of the order form Ex. 18 it is quite clear that the plaintiff has signed it in English. Even the Vakalatnama filed before the trial Court bears his signature in English. In view of this position, in my opinion, the evidence adduced on behalf of the defendant deserves to be accepted. According to the defendant's witness, these conditions Nos. 9 and 12 were shown to the plaintiff, though it was not possible for this witness to give the details as to in whose presence these conditions were explained. From the evidence of the defendant, it is further clear that a price list was given to the plaintiff

and the plaintiff could point out the price in the price list. He could also point out the quantity referred to in Ex. 18. In these circumstances, it is really difficult to believe the word of the plaintiff before the Court that he does not know English at all and he has signed the order form without understanding its implication. The signature on the order form is not disputed by the plaintiff. The entries made in this order form are in English and the plaintiff has also signed in English. In these circumstances, it is difficult to believe the word of the plaintiff, more so in view of the fact that his testimony before the Court is wholly at variance with the plea raised by him in the plaint itself. Therefore it will have to be held that the parties had agreed by an agreement incorporated in Ex. 18 that the contract in dispute was subject to Trichur jurisdiction and, had, therefore, chosen to restrict the jurisdiction of the Court to try the suit arising out of the said contract at Trichur. It is not disputed before me that Trichur Court also had jurisdiction to try the suit because part of the cause of action had arisen within the territorial jurisdiction of the said Court. In view of this, the order passed by the trial Court cannot be sustained.

11. In the result, therefore, this revision application is allowed. The order passed by the Civil judge, Junior Division, is set aside and the matter is remitted back to the trial Court to pass an appropriate consequential order in accordance with law. However, in the circumstances of the case there will be no order as to casts.

Revision Application Allowed