Civil Revision Application No.179 of 2005

8th February, 2007

Petitioner Counsel: Shri. VIJAY SHARMA
Respondent Counsel: Shri. R. R. SHAIKH

Cases Cited:
Hakam Singh Vs. M/s. Gammon (India) Ltd., AIR 1971 SC 740 [Para 6,10]
Man Roland Druckimachinen AG Vs. Multicolour Offset Ltd., (2004)7 SCC 447 [Para 7]
Hanil Era Textiles Ltd. Vs. Puromatic Filters (P) Ltd., 2004(5) ALL MR 534 (S.C.)=(2004)4 SCC 671 [Para 8]

JUDGMENT

JUDGMENT :- Heard learned Counsel for both the parties. Perused record.

2. The petitioner has filed this revision petition against the order dated 5-1-2005 passed by the 4th Jt. Civil Judge, J.D., Aurangabad holding that the Civil Court at Aurangabad may have territorial jurisdiction to entertain the suit between the parties and excluding the jurisdiction of Civil Court, Hyderabad, which was the contention of the present petitioner.

3. The plaintiff filed R.C.S. No.878 of 2004 against the petitioner and respondent no.2 for declaration and perpetual injunction before the C.J.J.D., Aurangabad contending that he had entered into an agreement of Hire purchase with the petitioner in respect of a truck No.MH-20-AA-7188 and obtained the said vehicle. As per the agreement, Respondent no.1 was expected to pay to the petitioner a sum of Rs.8,750/- per month being hire installment and to repay total amount of Rs.1,75,000/- in 20 equal monthly instalments. He paid all installments from 13-8-2002 upto November, 2003 and due to unsatisfactory business and financial difficulties, he could not pay further instalments and five instalments had remained to be paid. Therefore, on 19-6-2004, the petitioner, without giving any notice to him, had illegally seized the vehicle from parking place in M.I.D.C., Waluj, Aurangabad. He also showed his willingness to pay the due amount but, in vain. Hence, the suit came to be filed.

4. In the course of the suit, the application under Section 9(A) of the Code of Civil Procedure for framing preliminary issue regarding territorial jurisdiction was made and accordingly, the learned trial Judge, after hearing both the parties, passed orders to the effect that Civil Court at Aurangabad was the proper Court of jurisdiction to entertain and try the suit as against the contention of the present petitioner that by agreement between the parties, the Civil Court at Hyderabad had jurisdiction to try the suit.

5. The pivotal factor with regard to the determination of question of jurisdiction is the hire-purchase agreement. The document shows that the petitioner is located at Hyderabad whereas, the respondent is resident of Aurangabad. According to the respondent, all the documents were executed at Aurangabad. It is further contention of the respondent that clause (a) of Column 31 of the contract between the parties shows that the word "Hyderabad" was subsequently written and therefore, it is the question of dispute between the parties. However, it is seen that the word "Hyderabad" was inserted as no other word was mentioned therein. However, it is also to be noted that the witnesses have signed the document and have mentioned word "Hyderabad" below their signatures. Moreover, the document is notarized at Hyderabad. Therefore, there is no doubt whatsoever that the agreement came to be executed on 13th August, 2002 at Hyderabad.

6. Once this position is clear, the finding recorded by the trial Court on the basis of ruling in the case of Hakam Singh Vs. M/s. Gammon (India) Ltd., (AIR 1971 SC 740) appears to be wrong, in the sense that the trial Court had misconstrued the ratio of the Apex Court ruling. The Apex Court has observed in the said ruling as follows :

"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."

7. This ratio is clearly not applicable in the present case in the sense that the jurisdiction to entertain and try the dispute between the parties involved in this case obviously lies in the Civil Court, Hyderabad as well as Civil Court, Aurangabad as the defendant is residing within the jurisdiction of this Court. In other words, part of cause of action occurred at Hyderabad as well as at Aurangabad. Therefore, both the Courts have jurisdiction to try the suit in this dispute. If this is the position, then the jurisdiction determined by agreement between the parties must prevail, which is clearly at Hyderabad. The learned Counsel for the petitioner put reliance on the ruling of the Apex Court in the case of Man Roland Druckimachinen AG Vs. Multicolour Offset Ltd., and another (2004)7 SCC 447) wherein, the Apex Court proceeded to observe thus :

"9. Undoubtedly, when the parties have agreed on a particular forum, the courts will enforce such agreement. This is not because of a lack or ouster of its own jurisdiction by reason of consensual conferment of jurisdiction on another court, but because of the court will not be party to a breach of an agreement. Such an agreement is not contrary to public policy nor does it contravene Section 28 or Section 23 of the Contract Act. This has been held in Hakam Singh Vs. Gammon (India) Ltd., (1971)1 SCC 286 : AIR 1971 SC 740), A.B.C. Laminart (P) Ltd. Vs. A.P. Agencies (1989(2) SCC 163), and Modi Entertainment Network Vs. W.S.G. Cricket Pvt. Ltd., (2003)4 SCC 341), SCC at P. 351. The decision of the Delhi High Court in Rajendra Sethia Vs. Punjab National Bank (AIR 1991 Del 285) relied on by the Commission which holds to the contrary is, therefore, clearly erroneous."

8. Similarly, my attention was also invited to the ruling of the Apex Court in the case of Hanil Era Textiles Ltd. Vs. Puromatic Filters (P) Ltd. (2004)4 SCC 671 : 2004(5) ALL MR 534 (S.C.)) wherein it was observed that restriction regarding place of suing by agreement was permissible where two or more courts have jurisdiction under CPC and agreement restricts place of suing to any one of them. Such an agreement is not contrary to public policy and does not contravene Section 28 of Contract Act, 1872. It is also made clear that parties cannot by agreement confer jurisdiction on a court which it does not possess under CPC.

9. In the present case, the position is very clear as noted above that the Civil Court at Aurangabad as well as Civil Court at Hyderabad will have jurisdiction to entertain and try the suit and as such, it cannot be said that Civil Court at Hyderabad has no jurisdiction to try the suit.

10. In view of this position, the order dated 5-1-2005 passed by the 4th Jt. Civil Judge (J.D.), Aurangabad is hereby set aside as it is based on wrong interpretation of the Apex Court judgment in the case of Hakam Singh Vs. M/s. Gammon (India) Ltd. (AIR 1971 SC 740) and the revision application is allowed in terms of prayer clause (C) with no order as to costs.

Revision application allowed.