Premadib Pictures v. New Sound Pictures — 1955 DIGILAW 7 (MP)

JUDGEMENT : CHATURVEDI, J. 1. This is first appeal by the defendants from a decree for Rs.11,588 passed by the District Judge, Ujjain, against them in favour of the plaintiffs. The defendants are film producers known as Messrs. Prem Adib Pictures of Bombay. Defendant 2 Prem Adib is the sole proprietor of Messrs. Prem Adib Pictures. The defendants produced a film 'Dehati' and wanted that this film be distributed in Madhya Bharat, Madhya Pradesh, Berar and Rajputana through the plaintiffs, who are proprietors of New Sound Pictures, Madho Nagar, Ujjain. So by an agreement dated 2-7-1947 (Ex. P.3) the plaintiffs were appointed as agents of the defendants for the distribution of the cinema film 'Dehati'. The main terms of the agreement were that the plaintiffs as agents would give to the principal the sum of Rs.45,000 as minimum guarantee in several instalments; the first instalment of Rs.5,000 was to be paid on signing the agreement; then Rs.7,500 on or before 15-7-1947, for advance publicity materials; then Rs.20,000 on the delivery of prints and publicity materials on or before 21-8-1947 in Bombay; and then the last instalment of Rs.12,500 was to be paid within sixty days from the date of the receipt of the prints. Then, there were other terms in the contract, out of which only two material for the purposes of this appeal, are embodied in clauses 11 and 14 of the agreement. The first is that in case the principal sold the said picture in the said territories on outright sale basis to any other party the agents would be entitled to 5% commission on the sale price. The second was that any dispute arising out of the agreement would be settled in Bombay. The plaintiffs' case is that on 2-7-47 they paid Rs.5,000 but the advance publicity material was not ready with the defendants till 23-7-1947. Therefore, plaintiff 4 Baboolal Sarda met on that date Prem Adib in Bombay and paid Rs.4,000 and agreed that the remaining sum of Rs.3,500 could be realised by the defendants by sending the publicity material to Ujjain either by V.P.P. or through a Bank. The said material was not sent to the plaintiffs by the defendants who on 6-9-47 rescinded the contract and the defendants before this date had already made an outright sale of 'Dehati' film to another firm for a sum of Rs.75,000. The said material was not sent to the plaintiffs by the defendants who on 6-9-47 rescinded the contract and the defendants before this date had already made an outright sale of 'Dehati' film to another firm for a sum of Rs.75,000. The plaintiffs, therefore, claimed the sum of Rs.9,000 which they had paid to the defendants plus Rs.3,750 on the basis of 5% commission and Rs.88 as interest on Rs.9,000 at the rate of 8 annas p.c. per month. The plaintiffs thus filed a suit for Rs.12,838 as stated above. The Court below has decreed the suit for Rs.11,588. 2. The defendants resisted the suit on several grounds; according to them, on behalf of the New Sound Pictures, Madho Nagar, the agreement was entered into by Baboolal Sarda, plaintiff 4 and one Narendra Dheer. But Narendra Dheer was not joined as a plaintiff and so there was non-joinder of necessary party. The defendants further alleged that the two persons represented to them that they were the only representatives of the New Sound Pictures, Madho Nagar, and plaintiff 2 Laxmansingh and plaintiff 3, Ram Prasad could not have been plaintiffs and the suit was, therefore, bad for misjoinder of parties. It was, further, alleged that the Ujjain Court had no jurisdiction as, according to the terms of the contract, the suit could be filed only at Bombay. The defendants also alleged that the contract was broken not by them but by the plaintiffs, that the plaintiffs were bound to pay them Rs.7,500 on 15-7-47; that on their failure to pay this amount on the said date a telegram was sent to them on 22-7-1947, and the contract was cancelled. On 23-7-1947 Plaintiff 4 Baboolal Sarda then came to Bombay, paid them Rs.4,000 and assured them that the remaining sum of Rs.3,500 would be paid the next date but that money was not paid on 24-7-1947 and so the defendants after waiting for some time cancelled the contract on 9-8-1947. They further maintained that the plaintiffs themselves were responsible for the breach of the contract and the sum of Rs.9,000 paid to the defendants was liable to be forfeited. It was, further, alleged that the film had not been sold to anybody on outright sale basis and therefore the plaintiffs were not entitled to any commission. 3. They further maintained that the plaintiffs themselves were responsible for the breach of the contract and the sum of Rs.9,000 paid to the defendants was liable to be forfeited. It was, further, alleged that the film had not been sold to anybody on outright sale basis and therefore the plaintiffs were not entitled to any commission. 3. On these pleadings several issues were framed by the Court below which dealt with the questions of jurisdiction, non-joinder and misjoinder of parties and about the new contract to pay the sum of Rs.3,500 on 24-7-1947; whether advanced publicity material was ready with the defendants whether there was outright sale of 'Dehati' film to some one else and whether the sum of Rs.9,000 was liable to be forfeited. 4. In my opinion the question regarding the jurisdiction of the Ujjain court to try this case was important and ought to have been decided by the District Court as a preliminary issue. This would have saved much of the waste of time and energy of the Court and the parties. As I have formed my opinion upon the question of jurisdiction I do not think it proper to express any opinion on other points. 5. So the first question relates to the interpretation as well as to the validity of clause 14 of the agreement dated 2-7-1947. It provides that "any dispute or misapprehensions arising out of this agreement shall be settled in Bombay". 6. It was contended that a "dispute" or a 'misapprehension' cannot include a 'suit'. In my opinion this contention is untenable. Amicable settlement of disputes by the parties can be made at any place and there could be no need for expressing it in the contract. Settlement of disputes mean that the disputes can be settled either by arbitration or by resort to courts of law and, whatever the method of settlement the clause fixes the forum for such settlements. If the settlement of the dispute is sought by the institution of a suit the forum for the suit, according to clause 14, is Bombay, Court at places other than Bombay may have jurisdiction but the parties to the agreement made their choice at the time of the agreement and restricted themselves to Bombay. I am fortified in this view by a decision reported in - 'Balwant Singh v. S.H. Mir Mohammad', AIR 1947 Pesh 48 (A). 7. I am fortified in this view by a decision reported in - 'Balwant Singh v. S.H. Mir Mohammad', AIR 1947 Pesh 48 (A). 7. The position then is that both courts, the one at Ujjain (where the contract was to be performed) and the other at Bombay (where it was entered into), had ordinary jurisdiction to the suit but that the parties contracted to sue only at Bombay. The learned counsel for the respondent argued that such a contract is void under S.28, Contract Act, which says that a party's right to resort to legal proceedings to enforce a claim under a contract in courts of ordinary jurisdiction shall not be absolutely taken away by a term of that contract. There has been wide divergence of judicial opinion on the interpretation of the word 'absolutely' in S.28, Contract Act, and there is no ruling of the Supreme Court or of the Privy Council on the point. Most of the High Courts in India have held that unless a right to sue in ordinary course was altogether taken away by a contract, that contract was not illegal and that restricting the choice of place of suing out of several, permissible under the law, does not amount to deprivation of right to sue altogether and that such restriction is legally enforceable. The opposite view was held in - 'Kidri Prashad v. K.R. Khosla', AIR 1923 Lah 425 (2) (B), which held that the litigants cannot by agreement inter se divest a Court of its inherent jurisdiction over the subject matter of a suit as they cannot confer jurisdiction on it by consent where it has none. A Full Bench of the Lahore High Court in - 'Musaji Lukmanji v. Durga Das', AIR 1946 Lah 57 (FB) (C), overruled this decision. Mahajan J. (as he then was) delivering this judgment of the Full Bench referred to AIR 1923 Lah 425 (2) (B) and observed as follows : "The doctrine of conferring jurisdiction on or depriving Courts of jurisdiction by consent only applies to cases of inherent jurisdiction of a court over the subject matter of a suit. This proposition had been conceded in this decision, but the question of territorial jurisdiction of a court is not a question of inherent jurisdiction. This proposition had been conceded in this decision, but the question of territorial jurisdiction of a court is not a question of inherent jurisdiction. An objection as regards the territorial jurisdiction of a Court can be waived by a party and if it is not raised at earlier stages of a case it cannot be raised in a Court of appeal". 8. It was pointed out in this case that S.28 makes void only those agreements which absolutely restrict a party to a contract from enforcing the rights under that contract in ordinary tribunals. But this section has no application when a party agrees not to restrict his right of enforcing his rights in the ordinary tribunals, but only agrees to a selection of one of those ordinary tribunals in which ordinarily a suit would be tried". 9. This view is supported by a considerable body of judicial opinion (See - 'Achratlal Kesavlal Mehta and Co., v. Vijayam and Co.,' AIR 1925 Mad 1145 (D); - K. Raghvayya v. E. Vasudevayya Chetty', AIR 1944 Mad 47 (E); - 'A. Milton and Co., v. Ojha Automobile Engineering Co., AIR 1931 Cal 279 (F); - Haji Abdulla Haji Cassum v. George Reginald Stamp', AIR 1924 Bom 381 (G); - 'Tilakram Chaudhuri v. Kodumal Jethanand Wadha', AIR 1928 Bom 175 (H); - 'Khandesh Lakshmivilas Mills Co. v. Vinayak Atmaram', AIR 1935 Bom 198 (I); - 'Gopal Das v. Hari Krishna Das', AIR 1936 All 514 (J); - 'Firm, Bichcha Ram Babu Ram v. Firm Baldeo Singh Sahai Surajmal', AIR 1940 All 241 (K); - 'National Petroleum Co., Ltd. v. Meghraj Ramkaranji', AIR 1937 Nag 334 (L); AIR 1947 Pesh 48 (A); - 'Unique Motor and General Insurance Co. Ltd. Bombay v. Rayma Isa Abbu', AIR 1950 Kutch 32 (M); and - Messrs. Gulab Chand Dhanraj v. P. Anandan', AIR 1954 Mad 11 (N). 10. The Calcutta High Court however in recent cases has been alone in holding the opposite view. In - 'Ramnicklal Chhaganlal v. Vivekanand Mills Co. Ltd.' 49 Cal WN 58 (O), Gentle, J. held that although such agreement is not void it could not have the effect of taking the jurisdiction away from a Court possessing it under the provisions of the law. The other decision in - 'Dhanmal v. Jankidas', 49 Cal WN 123 (P), referred to another point. Ltd.' 49 Cal WN 58 (O), Gentle, J. held that although such agreement is not void it could not have the effect of taking the jurisdiction away from a Court possessing it under the provisions of the law. The other decision in - 'Dhanmal v. Jankidas', 49 Cal WN 123 (P), referred to another point. But so far as the present point was concerned Latifur Rahman, J. expressed the definite opinion that whereof two Courts both have jurisdiction to try a suit, an agreement between the parties that the matter will be litigated in one of the courts only to the exclusion of the other is valid. Biswas, J. did not express a final opinion. A different view was however expressed by Henderson, J. in - 'Chittaranjan Guha v. Parul Rani Nandi', AIR 1946 Cal 112 (Q), where his Lordship observed that when a right to sue even in one out of several courts was taken away it was absolutely taken away as far as that part of the right to sue was concerned and as such it falls within the mischief of S.28. 11. Very recently in AIR 1954 Mad 11 (N), it has been held by Ramaswami J. that contract between the parties that all the causes of action arising between them relating to the transaction between them should be agitated in Cannanore and nowhere else is a valid contract and so where the suit in respect of the cause of action was entertained in Calcutta, the result of the suit would not operate as res judicata, the reason being that by reason of the contract the Calcutta Court would have no jurisdiction to entertain the suit at all and, therefore, when the Court could not entertain the suit the question that it had the privilege to decide rightly or wrongly and that in such a case the decision would be binding on the parties and that it would operate as res judicata would not arise at all. It was further held that the court at Cannanore would therefore have jurisdiction to entertain the suit filed subsequently on the same cause of action between the same parties. 12. With great respect I am of opinion that the judgment of Calcutta High Court in AIR 1946 Cal 112 (Q), does not seem to lay down the correct rule. It was further held that the court at Cannanore would therefore have jurisdiction to entertain the suit filed subsequently on the same cause of action between the same parties. 12. With great respect I am of opinion that the judgment of Calcutta High Court in AIR 1946 Cal 112 (Q), does not seem to lay down the correct rule. The correct view has been expressed by other High Courts and therefore I hold that clause 14 of the agreement restricting the right of the parties to institute suits for the settlement of their disputes arising out of the agreement between them only in the Courts of Bombay is perfectly valid and enforceable. In my opinion it is unfair that any one of the party should be allowed by a Court to resile from the contract entailing hardship and inconvenience to the other party. If the clause in the agreement is valid and legally enforceable it must be enforced and the Court at Ujjain should be held to have no jurisdiction to try the suit. 13. It was contended that the decree of the Court below cannot be considered to be a nullity. As this court is not a court of execution so the question whether it is a nullity or not has no material bearing. This court is a court of first appeal and has to see whether in view of the terms of the contract the court at Ujjain can grant a decree in favour of the plaintiff when they had agreed not to press any dispute arising out of the contract at any place other than at Bombay. There is no question here about the place of suing and so the decisions reported in - 'Kishori Lal v. Firm Lajja Ram Ram Sarup', AIR 1951 Punj 375(R) and - 'Murari Lal v. Madanlal', AIR 1952 Punj 265 (S) are not relevant. The simple question in the present case is whether the plaintiffs are bound by the terms of the contract to sue in a court at Bombay and nowhere else, and, if it is held that the contract was a valid one and must be enforced the decree passed by the District Court at Ujjain must be set aside. 14. The simple question in the present case is whether the plaintiffs are bound by the terms of the contract to sue in a court at Bombay and nowhere else, and, if it is held that the contract was a valid one and must be enforced the decree passed by the District Court at Ujjain must be set aside. 14. It is true that in 1947 Gwalior State was foreign territory qua Bombay and it would have been disadvantageous to the plaintiffs to run to Bombay every now and then for settling disputes arising out of the agreement. But there is no question here of the plaintiffs acting under pressure or duress or under the stress of economic necessity. Both parties to the agreement were on terms of bargaining equality with each other and if it is the bargain into which the plaintiffs freely entered and if they voluntarily accepted the risk, they must abide by the terms of the contract and must file a suit if they so desire only at Bombay. 15. I am therefore of opinion that this appeal be allowed and the decree passed by the Court below be set aside and the Court be directed to return the plaint for presentation to the proper court. The respondents will be entitled to half of their costs both here as well as in the court below. DIXIT, J.:- 16. I regret, I do not find myself able to agree with the conclusion reacher by my learned brother. The contract in the suit was concluded in Bombay; it was to be performed at Ujjain and the disclaimer of the contract was communicated to the plaintiffs at Ujjain. Both the Bombay Court and the Ujjain Court had, therefore, jurisdiction to entertain the plaintiffs' suit on a plain reading of S.28, Contract Act and the authorities referred to by my learned brother, there can be no doubt, but clause 14 of the Contract, by which the parties agreed in effect to prefer one of these two competent Courts to suit the Bombay Court, is not void under S.28. But from the fact that the parties agreed amongst themselves that a suit would be brought in one of those Courts, it does not follow that if in violation of the claim, a suit is brought in the other Courts, the proceedings held by that other court are invalid and its decision is a nullity. It is one thing to say that by reason of the agreement between the parties the Ujjain Court could not entertain the suit. It is quite different to say that it had no jurisdiction to try the suit. Indeed having held that an agreement as to the selection of one of the competent Courts to settle any dispute is not void under S.28, Contract Act, for the reasons that such an agreement does not involve the conferment of jurisdiction upon a court which has none or the ouster of the jurisdiction a court has, it is contradictory to say but the decision of the court which tried the suit is a nullity because of inherent court of jurisdiction. To my mind the observations of Mahajan J., (as he then was) in AIR 1946 Lah 57 (C) pointing at the distinction between "a question of territorial jurisdiction" and "a question of inherent jurisdiction" are very pertinent here. He said "The question of territorial jurisdiction of the court is not a question of inherent jurisdiction. An objection as regards the territorial jurisdiction of a court can be waived by a party and if it is not raised at earlier stages of a case it cannot be raised in a court of appeal; see in this connection the provisions of S.21, C.P.C. and S.99 of the same Code. The judgment or decree of a court having no territorial jurisdiction over the subject matter of a suit is not a nullity but is a judgment of a competent court". The decisions in 'AIR 1946 Cal 112 (Q)' and 49 Cal W.N. 58 (O)' also recognise the principle that a suit instituted in the court excluded by an agreement of the type under consideration, cannot be dismissed and the decision of such a court is not a nullity. The decisions in 'AIR 1946 Cal 112 (Q)' and 49 Cal W.N. 58 (O)' also recognise the principle that a suit instituted in the court excluded by an agreement of the type under consideration, cannot be dismissed and the decision of such a court is not a nullity. The objection that the court is trying or have tried the suit in breach of an agreement between the parties is really an objection to the place of suing; it is not an objection going to the nullity of the proceedings on the ground of want of jurisdiction. Now under S.21, C.P.C., an objection to territorial jurisdiction must be taken in the original court at the earlier opportunity and before settlement of issues; and even if this is done and the objection is wrongly disallowed, the appellate or revisional court will not entertain the objection unless there has been a consequent failure of justice. In this case the defendants specifically raised the objection as to the place of suing before the settlement of issues but the lower court did not try and decide the question as a preliminary issue. The defendants without any demur allowed the proceedings to be carried to completion, without the question of place of suing being decided first. As to the important element of consequent failure of justice, none has been shown by the appellants. In fact the appellants claim that their objection as to the place of suing must be given effect to, for the sole reason that the plaintiffs' suit has been instituted in Ujjain and decided by the lower court in breach of the agreement between the parties. In my opinion to uphold the objection on the ground urged by the appellants, would be to ignore the distinction between an inherent want of jurisdiction and the bar to the institution of a suit in a competent court because of contractual obligation and could constitute a violation of S.21, C.P.C. I am, therefore, of the view that the objections as to the place of suing must be disallowed and this appeal must be disposed of on merits. BY THE COURTS : - 17. BY THE COURTS : - 17. As we differ in opinion on the question whether the decree passed by the Court of District Judge Ujjain is liable to be set aside on the sole ground that suit was tried by the Court of District Judge in contravention of clause 14 of the agreement between the parties, the appeal must now be heard first upon this point only by a third judge. So the papers be placed before my Lord the Chief Justice for the nomination of the Judge. SHINDE, C. J.:- 18. This reference under S.30 of the High Court of Judicature Act is an outcome of the difference of opinion between my brothers Dixit, J. and Chaturvedi, J. who constituted the division Bench to hear this appeal. The material facts of this case are that the New Sound Pictures Madho Nagar, Ujjain and others filed a suit against M/S Premadib Pictures, Bijali Cottage, Andheri Bombay and another for the recovery of Rs.12,838 on the basis of a contract in the court of the District Judge, Ujjain. The trial court decreed the suit of the plaintiff to the extent of Rs.11,588. Against that judgment and decree the defendants filed an appeal in this court. When that appeal came up for the hearing before Dixit, J. and Chaturvedi J., Chaturvedi, J. held that under clause 14 of the contract, the parties agreed to file a suit at Bombay. Consequently as the clause in the agreement is valid and legally enforceable it must be enforced and hence the court at Ujjain should be held to have no jurisdiction to try the suit. Dixit, J. agreed with Chaturvedi, J. that clause 14 of the contract, not being hit by the provisions of S.28 of the Contract Act, is perfectly valid and enforceable. But he further held that the objection that the court is trying or has tried the suit in breach of an agreement between the parties is really an objection to the place of suing. Consequently under S.21 of the Civil P.C., an objection as to the place of suing cannot be entertained by an appellate court except under the circumstances mentioned in the section. Consequently under S.21 of the Civil P.C., an objection as to the place of suing cannot be entertained by an appellate court except under the circumstances mentioned in the section. He, therefore, came to the conclusion that as the defendants without any demur allowed the proceedings to be carried to completion, without the question of place of suing being decided first, and as there was no failure of justice, the objection regarding the place of suing could not be allowed. It is thus clear that the difference of opinion lies within a narrow compass. Dixit, J. is of the opinion that the objection regarding the choice of forum in breach of an agreement between the parties is really an objection to the place of suing as contemplated by S.21 of the Civil P.C. While Chaturvedi J. is of the opinion that S.21, Civil P.C. is not attracted in such a case. The question for consideration, therefore is: "Where in breach of an agreement between the parties a forum is selected and an objection is taken on that account, is that objection governed by the provisions of S.21 of the Civil P.C?" 19. Mr. Sanghi the learned counsel for the appellant contends that the bar imposed by the terms is against the party and not agaist the court. Sections 16 to 20 of the Civil P.C., on the other hand, impose a bar against the court. Consequently S.21 only applies when there is a contravention of any of the provisions mentioned in Ss.16 to 20 of the Civil P.C. Alternatively he contends that even if it be held that S.21 is applicable, there is a failure of justice as, by entertaining the suit the trial court has permitted abuse of the process of the court. Mr. Chitale learned counsel for the plaintiff-respondent contends, on the other hand, that no jurisdiction can be conferred or ousted by an agreement between the parties. Where, however, more courts than one have jurisdiction over the subject-matter of the suit, the parties can, by a contract, limit their choice to one of the courts having jurisdiction. But it is only territorial jurisdiction that can be limited by a contract and as S.21 refers to territorial jurisdiction, S.21 is applicable to the present case. Where, however, more courts than one have jurisdiction over the subject-matter of the suit, the parties can, by a contract, limit their choice to one of the courts having jurisdiction. But it is only territorial jurisdiction that can be limited by a contract and as S.21 refers to territorial jurisdiction, S.21 is applicable to the present case. He further contends that the defendants should have insisted on the preliminary issue regarding the place of suing being decided first or should have filed a suit in the court in Bombay and prayed for the issue of an injunction to the court at Ujjain. As the defendants failed to take recourse to any of these steps and as there is no failure of justice in the present case, appellant is precluded from raising the objection regarding the place of suing. He also contended that the expression "failure of justice" refers to the merits of the case and not to the abuse of the process of court. 20. Before proceeding to determine the question as to whether S.21 is applicable to the present case or not, I would like to make it clear that I do not agree with Chaturvedi J. when he says that the court at Ujjain should be held to have no jurisdiction to try the suit. It is one thing to say that the court has no jurisdiction and quite another to say that the Court should not entertain the suit because of the agreement of the parties to file a suit in the court in Bombay in case of any dispute. In the former case the court lacks the necessary jurisdiction. In the latter case the court retains its jurisdiction; but refuses to entertain a suit in order to give effect to the valid stipulation of the contract between the parties. To say that the court has no jurisdiction because the parties agreed to file a suit in another court of competent jurisdiction is to lay down a proposition that the parties can, by an agreement, oust the jurisdiction of the court a proposition which is not tenable in law. It is now well settled that the parties cannot, by consent, confer or oust the jurisdiction of a court. The leading authority for the proposition is - 'Ledgard v. Bull', 9 All p.191 (PC) (T). It is now well settled that the parties cannot, by consent, confer or oust the jurisdiction of a court. The leading authority for the proposition is - 'Ledgard v. Bull', 9 All p.191 (PC) (T). Their Lordships of the Privy Council in this case observed as follows: "When a suit has been tried by a Court having no jurisdiction over the matter, the parties cannot, by their mutual consent, convert the proceedings into a judicial process." The same principle is laid down in - 'Raghubir Saran v. Hori Lal', AIR 1931 All 454 (U) and - 'Mahomed Haji v. Jute and Gunny Brokers Ltd.', AIR 1932 Bom 42 (V)-'Radha Kishan v. Bombay Co. Ltd.', AIR 1943 Lah 295 (W) - 'National Petroleum Co. Bombay v. F.X. Rebello', AIR 1935 Nag 48 (X) and - 'Raja Ram v. Chhotay Lal', AIR 1931 All 332 (Y) are other authorities in support of this proposition. In - 'Ram Bahadur Thakur and Co. v. Devidayal (Sales) Ltd.', AIR 1954 Bom 176 (Z) Chagla, C.J. observed as follows: "It is almost elementary that parties by their agreement cannot confer jurisdiction upon a court which has no jurisdiction, nor can they by their agreement oust the jurisdiction of the court when the court possesses jurisdiction." I, therefore, do not agree with the view of Chaturvedi, J. that the court at Ujjain should be held to have no jurisdiction to try the suit. 21. Coming now to the consideration of the main question involved in the case, we have to see whether section 21 has any bearing on the present case. The parties by their contract, no doubt, agreed that in case of dispute a suit should be filed in the Court at Bombay. The plaintiff in breach of this stipulation filed a suit in the court of the District Judge Ujjain which admittedly has the jurisdiction to try the suit. The defendant demurred to the place of suing, on the ground that according to the agreement the forum should have been the court at Bombay. In a sense it is no doubt an objection as to the place of suing. The defendant demurred to the place of suing, on the ground that according to the agreement the forum should have been the court at Bombay. In a sense it is no doubt an objection as to the place of suing. But what we have to consider is whether such an objection is included in the objections contemplated by S.21 of the Civil P.C. The answer to this question depends upon the interpretation that can be put on the expression "objection as to the place of suing" used in S.21 of the Civil P.C. Section 21 appears in Part I under Sub-heading "Place of suing". Section 15 lays down that a suit shall be instituted in the court of the lowest grade competent to try it. Section 16 lays down that the suits are to be instituted where subject-matter is situate. Section 17 lays down the principle regarding suits to be filed when immovable property is situated within the jurisdiction of different courts. Section 18 lays down the principle that is to be followed in the institution of suits where local limits of jurisdiction of courts are uncertain. Section 19 lays down the principle for the institution of suits for compensation for wrong done to the person or movable property and S.20 lays down the principle regarding institution of other suits. Then follows S.21 which reads as follows : "No objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice." In the context of this section there can be only one interpretation that can be put on the expression "objection as to the place of suing" and that is an objection based on the alleged infringement of any of the provisions of Ss.16 to 20 of the Civil P.C. This view is also fortified by several decisions of the various High Courts. In - 'Zamindar of Ettiyapuram v. Chidambaram Chetty', AIR 1920 Mad 1019 (Z1), a Full Bench of the Madras High Court held as follows : "The provisions of S.21 apply to all objections based on the alleged infringement of the provisions of Ss.16 to 18, as regards the institution of suits relating to immovable property." The same view was taken in Ramani v. M. Narayanswami', AIR 1924 Mad 697 (Z2). With the exception of some observations made by Mahajan J. (as he then was) in AIR 1946 Lah 57 (C), no other authority has been cited in support of the view that the expression "Objection as to the place of suing" is used in a generic sense and not in a specific sense. If the expression be construed in a comprehensive manner then all objections regarding the place of suing are to be governed by the provisions of S.21. Objection on the ground that the court has no jurisdiction over the subject-matter of the suit is also an objection as to the place of suing in a sense. Similarly, an objection on the ground of want of pecuniary jurisdiction is also an objection as the place of suing. But it is not suggested that such objections are governed by S.21 of the Civil P.C. In - 'Dev Samaj Council, Lahore v. Amritlal Motilal', AIR 1934 Sind 123 (Z3), it was held that the point of jurisdiction as involving the question whether a matter in dispute is within the jurisdiction of a British India Court at all, could be raised, notwithstanding S.21, Civil P.C. Again in - 'Marjad Singh v. Bhagwati Prasad', AIR 1931 Oudh 411 (Z4), it was held that the question whether a suit is triable on small cause or original side is not governed by S.21; in - 'Sitaram Singh v. Tika Ram Singh', AIR 1942 Oudh 481 (Z5), it was held that the objection as to the want of pecuniary jurisdiction can be taken at any time. It is thus clear that the expression "objection as to the place of suing" cannot be construed in a comprehensive manner. Section 21 refers to what is generally known as territorial or local jurisdiction and the objections contemplated by S.21 are the objections based on the alleged infringement of the provisions of Ss.16 to 20 of the Civil P.C. 22. It is thus clear that the expression "objection as to the place of suing" cannot be construed in a comprehensive manner. Section 21 refers to what is generally known as territorial or local jurisdiction and the objections contemplated by S.21 are the objections based on the alleged infringement of the provisions of Ss.16 to 20 of the Civil P.C. 22. In AIR 1946 Lah 57 (C), Mahajan, J. at page 60 made the following observations: "With great respect to the observations made in this case, I respectfully record my dissent. The doctrine of conferring jurisdiction on or depriving courts of jurisdiction by consent only applies to cases of inherent jurisdiction of a court over the subject matter of a suit. This proposition has been conceded in this decision, but the question of territorial jurisdiction of a court is not a question of inherent jurisdiction. An objection as regards the territorial jurisdiction of a court can be waived by party and if it is not raised at earlier stages of a case it cannot be raised in a court of appeal; see in this connection the provisions of S.21, Civil P.C. and S.99 of the same Code." From these observations it is sought to infer that the learned Judge was of the opinion that S.21 applied to a case of this kind. If it be so, then with very great respect I find myself unable to subscribe to this view. Abdur Rahman, J. who was one of the Judges constituting the Full Bench in that case, made the following observations : "The parties did not thus deprive any court of its inherent or even territorial jurisdiction but themselves of their right of exercising it partially in one out of the two or three courts. Jurisdiction is one thing, right to exercise it another. In view of this it appears to be unnecessary to enter into the controversy regarding the territorial or inherent jurisdiction to which a passing reference has been made by my learned brother." It is clear from the observations of Abdul Rahman, J. that he did not agree with the view that the question involved in the case was one of territorial jurisdiction. Section 21 imposes a bar against the court itself. It lays down that the court has no jurisdiction to entertain a suit if any of the provisions of Sections 16 to 20 be contravened. Section 21 imposes a bar against the court itself. It lays down that the court has no jurisdiction to entertain a suit if any of the provisions of Sections 16 to 20 be contravened. In the present case the defendant does not object to the jurisdiction of the court at Ujjain to try the suit. His objection is that the plaintiff is debarred from filing the suit at Ujiain on account of a valid agreement entered into between the parties. In other words, he states that the bar is against the plaintiff and not against the court. All that he wants is to enforce the agreement which is perfectly valid. In these circumstances S.21 of the Civil P.C. can have no application whatsoever to the present case. Mahajan, J. in the case referred to above, makes this abundantly clear in the following observations: "It was not argued that the case was simply one where the plaintiff who had the choice of forum had by agreement with the other party limited his choice and had not thereby affected or ousted the jurisdiction of any civil court. Both the courts retained their jurisdiction to try the suit." 23. It is clear from the above discussion that the objection of the defendant is not an objection as to the place of suing as contemplated by S.21 of the Civil P.C. Territorial jurisdiction of the court has not been challenged by the defendant. All that he prays for is that an effect be given to the stipulation in the contract which is perfectly valid and enforceable. 24. Mr. Chitale referred to 'AIR 1936 All 514 (J)'. This case is not of much avail to the plaintiff respondent. Bajpai, J. observed in that case as follows : "The object of parties entering into a contract of this nature is to afford facility or convenience either to both the parties or to one of the parties, and it is unfair that any one of the parties should resile from the contract entailing hardship and inconvenience to the other party. Bajpai, J. observed in that case as follows : "The object of parties entering into a contract of this nature is to afford facility or convenience either to both the parties or to one of the parties, and it is unfair that any one of the parties should resile from the contract entailing hardship and inconvenience to the other party. At the same time it is common ground that the other court also has jurisdiction and when it is found that the court below, holding that it has jurisdiction has tried the merits of the case between the parties it would not be proper for the revisional court to interfere and to entail fresh hardship on both parties. This was the view taken by this court on the former occasion, and I find that wisdom of this view is all the greater now, when on two occasions the merits have been discussed by the Subordinate court. I, therefore, refuse to accede to the plea taken by the defendant that the plaint should be returned to the plaintiff for presentation to the proper court." It is clear from these observations that the court refused to return the plaint on the ground of hardship likely to be caused to both the parties. Being a court of revision it exercised its discretion and refused to return the plaint as the merits had been gone into on two occasions. This case does not discuss the question as to whether S.21 is applicable to such a case or not. The case before us is in appeal and consequently different considerations would apply. Another case cited by Mr. Chitale learned counsel for the respondent is - 'Union of India v. Adam Haji Peer Mohammed Essack', AIR 1954 Trav-C. 362 (Z6). In this case the question was of territorial jurisdiction. Consequently it was held that as there was no failure of justice, no objection as to the place of suing can be entertained in appeal. This case, therefore, has no bearing on the present case. 25. Having come to the conclusion that S.21 has no application to the present case, it is not necessary to deal with the second question raised by Mr. Sanghi learned counsel for the appellant. But as the point has been argued at the Bar, I would like to express my opinion. 25. Having come to the conclusion that S.21 has no application to the present case, it is not necessary to deal with the second question raised by Mr. Sanghi learned counsel for the appellant. But as the point has been argued at the Bar, I would like to express my opinion. The expression "failure of justice" refers to the merits of the case. In - 'Firm Kanshi Ram Roshanlal v. Firm Mokham Chand Chela Ram', AIR 1934 Lah 233 (Z7) Bhide, J. held that the prejudice must be on the merits of the case. 'Gajendra Shah v. Sunder Singh', AIR 1934 All 549 (Z8) and - Abdul Rahman v. Salamat Ullah', AIR 1939 All 163 (Z9) lay down the same principle. In 'AIR 1954 Trav-C.362 (Z6)', a Division Bench of the Travancore High Court held: "The question whether the trial in the wrong court has led to a failure of justice will have to be decided on a consideration of the merits of the case". Consequently the argument that the abuse of' the process of court amounts to failure of justice cannot be accepted. 26. In the result, I agree with Chaturvedi, J. that the appeal be allowed and setting aside the decree, the lower court be directed to return the plaint for presentation to the proper court. I also agree that the respondents will be entitled to half of their costs both here as well as in the court below. Appeal allowed.