S. H. SHETH, J. ( 1 ) THIS appeal is directed against the judgment of the learned single Judge in Appeal from Order No. 60 of 1969. ( 2 ) THE facts of the case briefly stated are as under The plaintiff-M/s Mohanlal Khimjibhai and Sons-a firm carrying on business at Chalala in Dhari Taluka of Amreli District filed in the Court of the Civil Judge Senior Division at Amreli Special Civil Suit No. 5 of 1967 against three defendants for recovering a sum of Rs. 50 0 on account of damages arising out of breach of contract. Nahan Foundry of Nahan in Himachal Pradesh is the first defendant to the suit. Union of India is the second defendant to the suit and the Government of Himachal Pradesh is the third defendant to the suit. The defendants raised a preliminary contention that by virtue of the agreement Ex. 28 executed between the parties the Court exercising jurisdiction over Nahan in Himachal Pradesh alone had the jurisdiction to try the suit and that the Court at Amreli had no such jurisdiction. ( 3 ) THE learned Trial Judge tried the preliminary objection and held that he had no jurisdiction to try the suit. He therefore ordered the plaint to be returned to the plaintiff for presentation to proper Court. ( 4 ) THAT order was challenged by the plaintiff in Appeal From Order No. 60 of 1969. The learned single Judge who heard the appeal recorded the conclusion that the Trial Court had the jurisdiction to try the suit. He therefore allowed the appeal set aside the order of the Trial Court and directed it to proceed with the suit further and to decide it according to law. ( 5 ) THAT order of the learned single Judge is challenged by the defendants Nos. 1 and 3 in this Letters Patent Appeal. ( 6 ) THE following contentions have been raised in this appeal. The first contention is that the appeal under Clause 15 of the Letters Patent is not maintainable and the second contention is that the learned single Judge has erred in recording the conclusion that the Trial Court has the jurisdiction to try the suit. The first contention has been raised by Mr. K. S. Nanavaty appearing on behalf of the respondent No. 1 in order to have this Letters Patent Appeal dismissed in limine. The first contention has been raised by Mr. K. S. Nanavaty appearing on behalf of the respondent No. 1 in order to have this Letters Patent Appeal dismissed in limine. The second contention has been raised by Mr. J. R. Nanavaty who appears for the appellants original defendants Nos. 1 and 3. ( 7 ) IN support of the first contention raised by Mr. K. S. Nanavaty reliance has been placed upon sub-sec. (2) of sec. 104 of the Code of Civil Procedure. The Appeal from Order which the learned single Judge decided and out of which this Letters Patent Appeal has arisen was filed in this Court under clause (i) of sub-sec. (1) of sec. 104 read with clause (a) of Rule 1 of Order 43. Under that clause an appeal from an order made under rule 10 of Order VII returning a plaint for being presented to the proper Court is appealable under the provisions of sec. 104. Sub- sec. (2) of sec. 104 which is material provides as under:" No appeal shall lie from any order passed in appeal under this section. "relying upon sub-sec. (2) of sec. 104 it has been argued by Mr. K. S. Nanavaty that the bar created by it to any further appeal from an order passed in appeal under sec. 104 hits the present Letters Patent Appeal. The question which we are therefore called upon to decide is whether the expression No appeal used in sub-sec. (2) of sec. 104 means no appeal under the Civil Procedure Code or no appeal under any law whatsoever. ( 8 ) OUR attention has been invited by Mr. K. S. Nanavaty to the decision of the Supreme Court in The Union of India v. Mohindra Supply Co. A. I. R. 1962 Supreme Court 256. It was a case in which an award made under the Arbitration Act was filed in the Court of the Subordinate Judge First Class Delhi. It was an award against the Government of India. On behalf of the Governor General an application was made for setting aside that award on certain grounds which are not material for the purpose of the present decision. It was an award against the Government of India. On behalf of the Governor General an application was made for setting aside that award on certain grounds which are not material for the purpose of the present decision. The Court of first instance refused to set aside the award on the grounds set up against it and rejected the application On behalf of the Governor General an appeal against the order refusing to set aside the award was preferred to the Lahore High Court. It was ultimately heard by the Circuit Bench of the East Punjab High Court at Delhi after the partition of the country. Mr. Justice Falshaw who heard the appeal set aside the order because in his view the dispute in question in that case could not be referred to arbitration under the contract which gave rise to the dispute. Against that appellate order recorded by Mr. Justice Falshaw an appeal was preferred under Clause 10 of the Letters Patent of the High Court of Lahore read with High Court (Punjab) Order 1947 That appeal was heard by a Division Bench of that Court. It was contended on behalf of the Governor General in that appeal that by virtue of the provision of sub-sec. (2) of sec. 39 of the Arbitration Act 1940 a Letters Patent Appeal was incompetent. Since it was a contention of very great importance it was referred to the Full Bench of the High Court. The Full Bench of the High Court expressed the opinion that an appeal from an order made by a single Judge under sub-sec. (1) of sec. 39 of the Arbitration Act was competent under Clause 10 of the Letters Patent. After Full Beach expressed its opinion a Division Bench of that High Court considered the appeal on merits and set aside the order of Mt. Justice Falshaw. the Union of India appealed against that decision to the Supreme Court. ( 9 ) HAVING construed sub-sec. (2) of sec. 39 of the Arbitration Act which uses the expression No second appeal shall lie from an order passed in appeal under this section. . . the Supreme Court has held that the expression second appeal does not mean an appeal under sec. 100 of the Code of Civil Procedure but that it means a further appeal from an order passed in appeal under sec. 39 (1 ). . . the Supreme Court has held that the expression second appeal does not mean an appeal under sec. 100 of the Code of Civil Procedure but that it means a further appeal from an order passed in appeal under sec. 39 (1 ). It has been further observed by the Supreme Court in that decision that the expression second appeal used in sub-sec. (2) of sec. 39 means a second appeal numerically. It has next observed that the Arbitration Act does not have any provision corresponding to sec. 4 of the Code of Civil Procedure which protects special jurisdictions and powers conferred upon courts under special statutes ( 10 ) MR. K. S. Nanavaty has contended that the expression used in sub-sec. (2) of sec. 104 is wider in connotation and coverage than the corresponding expression used in sub-sec. (2) of sec. 39 of the Arbitration Act. Whereas sub-sec. (2) of sec. 104 uses the expression No appeal shall lie. . . . sub-sec. (2) of sec. 39 of the Arbitration Act uses the expression No second appeal shall lie. Since the contention raised by Mr. K. S. Nanavaty has prima facie some substance we proceed to examine it closely. Mr. J. R. Nanavaty has invited our attention to sec. 4 of the Code of Civil Procedure sub-sec. (1) whereof provides as under:" In the absence of any specific provision to the contrary nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force. "according to Mr. J. R. Nanavaty sub-sec. (1) of sec. 4 removes any bar to an appeal under Letters Patent if sub-sec. (2) of sec. 104 appears to create one. He has argued that so far as the Arbitration Act 1940 is concerned it contains no provision corresponding to sub-sec. (1) of sec. 4 of the Code of Civil Procedure. According to him therefore since there is no provision in the Arbitration Act which corresponds to sub-sec. (1) of sec. 4 the bar created by sub-sec. (2) of sec. 39 of the Arbitration Act may hit an appeal under Letters Patent. He has further tried to argue that the bar which sub-sec. (2) of sec. According to him therefore since there is no provision in the Arbitration Act which corresponds to sub-sec. (1) of sec. 4 the bar created by sub-sec. (2) of sec. 39 of the Arbitration Act may hit an appeal under Letters Patent. He has further tried to argue that the bar which sub-sec. (2) of sec. 104 of the Code of Civil Procedure appears to create is removed by sub-sec. (1) of sec. 4 thereof. We find considerable substance in this argument raised by Mr. J. R. Nanavaty. Sub-sec. (1) of sec. 4 expressly saves special jurisdiction and power conferred under any other law for the time being in force. Clause 15 of the Letters patent indeed provides for a special jurisdiction for entertaining within the High Court an appeal against the decision of as learned single Judge in certain cases. It may be noted that in The Union of India v. Mohindra Supply Co. (supra) the Supreme Court has specifically observed that the Arbitration Act does not have any provision corresponding to the provision of sub-sec. (1) of sec. 4 of the Code of Civil Procedure. In paragraph 14 of the report this is what the Supreme Court has observed in that behalf:" The intention of the legislature in enacting sub-sec. (1) of sec. 104 is clear: the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasised by sec. 4 which provides that in the absence of any specific provision to the contrary nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right to appeal against judgments (which did not amount to decrees) under the Letters Patent was therefore not affected by sec. 104 (1) of the Code of Civil Procedure 1908 ( 11 ) IN Mt. Sabitri Thakurain v. Savi and another A. I. R. 1921 Privy Council 80 one of the questions which arose was whether the right to appeal expressly given by Clause 15 of the Letters Patent could be taken away by sec. 588 of the Code of Civil Procedure 1882 corresponding to sec. 104 of the Code of Civil Procedure 1908 In the absence of any express provision to that effect the question was answered in the negative. 588 of the Code of Civil Procedure 1882 corresponding to sec. 104 of the Code of Civil Procedure 1908 In the absence of any express provision to that effect the question was answered in the negative. The material observations which the Privy Council has made are as follows. " Thus regulations duly made by Orders and Rules under the Code of Civil Procedure 1908 are applicable to the jurisdiction exercisable under the Letters Patent except that they do not restrict the express Letters Patent appeal. "following their own decision in Hurrish Chunder v. Kalisunderi 10 Indian Appeals 4 it has been observed by the Privy Council that the right to appeal given by Clause 15 of the Letters Patent was not interfered with by sec. 588 of the Code of Civil Procedure 1882 corresponding to sec. 104 of the Code of Civil Procedure 1908. ( 12 ) IN Vaman Ravji Kulkarni v. Nagesh Vishnu Joshi and others A. I. R. 1940 Bombay 216 a similar question arose before a Division Bench of the High Court of Bombay. In that case a suit for accounts and redemption of a mortgage was filed under the Dekkhan Agriculturists Relief Act. It was dismissed by the Trial Court. The plaintiffs appealed to the District Court. The District Court set aside the decree of dismissal and remanded the suit to the Trial Court. There was an appeal to the High Court from the order of remand. Mr. Justice Norman confirmed the order of remand subject to certain remarks which he made. A Letters Patent Appeal was filed against the order of Mr. Justice Norman. In the Letters Patent Appeal contention against its maintainability was raised. It was contended that since the appeal decided by Mr. Justice Norman was filed under sub-sec. (1) of sec. 104 a further appeal under Letters Patent was barred by sub-sec. (2) of sec. 104. After having discussed the statutory provisions and the case law on the subject the High Court of Bombay negatived the contention for two reasons. Firstly sec. 104 of the Code of Civil Procedure 1908 appears in Part VII of the Code of Civil Procedure which deals with appeals to High Courts from Courts subordinate to it and not with appeals from a single Judge of the High Court to a Bench. Firstly sec. 104 of the Code of Civil Procedure 1908 appears in Part VII of the Code of Civil Procedure which deals with appeals to High Courts from Courts subordinate to it and not with appeals from a single Judge of the High Court to a Bench. The Code of Civil Procedure contains no provision for an appeal from the decision of a single Judge to a Bench. Such appeals are provided for only by Clause 15 of the Letters Patent. Therefore unless such appeals are expressly excluded by any provision in the Civil Procedure Code the mere general provision in sub-sec. (3) of sec. 104 with regard to appeals under the Code cannot be regarded as controlling appeals which are not provided for by the Code. Secondly the legislature has provided otherwise by enacting sec. 4 of the Code of Civil Procedure which inter alia saves special jurisdictions. The following observation made by Mr. Justice N. J. Wadia in his separate but concurring judgment is apposite for the purpose. " The appeal provided by Cl. 15 of the Letters Patent from a decision of a Judge of the High Court sitting singly to a Bench of the High Court is a special jurisdiction within the meaning of sec. 4 of the Code and cannot be affected by the provisions of sec. 104 which deal only with appeals under the Code that is appeals to the High Court from decisions of Courts subordinate to it. A Judge of the High Court sitting singly is not a Court subordinate to the High Court. "it has been observed in that decision that the provision made by Cl. 15 of the Letters Patent for appeal from the decision of a single Judge of a High Court to a Division Bench of the same Court is entirely foreign to the provisions of the Civil Procedure Code relating to appeals from one Court to another. In recording this conclusion the High Court of Bombay has placed reliance principally upon the decision of the Privy Council in Hurrish Chunder v. Kalisunderi 10 Indian Appeals 4. It has been further observed in that decision that the Code deals with appeals from certain Courts to the High Court and not with appeals within the High Court from the decision of one Judge to two judges of that Court. Mr. It has been further observed in that decision that the Code deals with appeals from certain Courts to the High Court and not with appeals within the High Court from the decision of one Judge to two judges of that Court. Mr. Justice Lokur in his separate concurring judgment has made the following observation which is worthy of notice. " Sub-sec. (2) of sec. 104 Civil P. Code does not refer to the Letters Patent and say that inspite of Cl. 15 of the Letters Patent no appeal lies from any order passed in an appeal under sub-sec. (1 ). Sub-sec. (2) is in no way inconsistent with Cl. 15 of the Letters Patent and the two can stand together the former applying to appeals under the Code and the latter to special appeals within the High Court. " ( 13 ) IN light of these two decisions we now turn to the decision of the Supreme Court in Gulab Bai and another v. Puniya A. I. R. 1966 Supreme Court 637. In that case an appeal under sec. 47 of the Guardians and Wards Act 1890 was heard and decided by a single Judge of the High Court. A second appeal was taken to the Division Bench under sec. 18 (1) of the Rajasthan High Court Ordinance 1949 The question which arose was whether sec. 48 of the Guardians and Wards Act 1890 which attached finality to the orders passed by the Trial Court subject to the provisions of sec. 47 of the Guardians and Wards Act 1890 and sec. 145 of the Civil Procedure Code barred a further appeal under the said Ordinance. In that context the Supreme Court has considered the scheme of appeals under the Letters Patent. Having referred to their own decision in The Union of India v. Mohindra Supply Co. (supra) it has been observed by the Supreme Court in this decision that the effect of the said earlier decision is that by enacting sec. 34 (2) the Arbitration Act has prohibited an appeal under the Letters Patent against an order passed under sec. 39 (1 ). It has next been observed by it that that decision turned upon the specific words used in sub-secs. (1) and (2) of sec. 39 of the Arbitration Act. 34 (2) the Arbitration Act has prohibited an appeal under the Letters Patent against an order passed under sec. 39 (1 ). It has next been observed by it that that decision turned upon the specific words used in sub-secs. (1) and (2) of sec. 39 of the Arbitration Act. Thereafter the question which they proceeded to consider was whether an appeal permitted by Clause 15 of the Letters Patent can be taken away by implication. A paragraph from the decision of the Privy Council in Hurrish Chunder v. Kali Sundari 10 Indian Appeals 4 has been quoted by the Supreme Court with approval. The quotation reads as follows. " It only remains to observe that their Lordships do not think that sec. 588 of Act X of 1877 which has the effect of restricting certain appeals applies to such a case as this where the appeal is from one of the Judges of the Full Court. "the Supreme Court thereafter noted that following the above quoted observation the High Court of Calcutta in Toolsee Money Dassee v. Sudevi Dassee I. L. R. 26 Calcutta 361 the High Court of Madras in Sabhapathi Chetti v. Narayanasami I. L. R. 25 Madras 555 and the High Court of Bombay in Secretary of State for India in Council v. Jehangir Maneckji Cursetii 4 Bombay Law Reporter 342 had held that sec. 588 of the Code of Civil Procedure 1882 did not take away the right of appeal given by Cl. 15 of the Letters Patent. They also noted the different view taken by the Allahabad High Court in Banno Bibi v. Mehdi Hussein I. L. R. 11 Allahabad 375 and in Muhammad Naim-ul-lah Khan v. Ihsan-Ullah Khan I. L. R 15 Allahabad 226 (FB ). Thereafter sec. 104 of the Code of Civil Procedure 1908 the Supreme Court has proceeded to observe replaced sec. 588 of the earlier Code. According to the Supreme Court sec. 104 gives effect to the view taken by the Calcutta Madras and Bombay High Courts. That is why according to them the Allahabad High Court has taken the same view in one of its later decisions-in L. Ram Sarup v. Mt. Kaniz Ummehani A. I. R. 1937 Allahabad 165. Having referred to all the aforesaid decisions the Supreme Court has summed up the position in the following terms. That is why according to them the Allahabad High Court has taken the same view in one of its later decisions-in L. Ram Sarup v. Mt. Kaniz Ummehani A. I. R. 1937 Allahabad 165. Having referred to all the aforesaid decisions the Supreme Court has summed up the position in the following terms. " We have referred to these decisions to emphasise the fact that even where the relevant provision of sec. 588 of the earlier Code made certain appellate orders final the consensus of judicial opinion was that the said provision did not preclude ak appeal being filed under the relevant clause of the Letters Patent of the High Court. " ( 14 ) IN light of the reasoning contained in the aforesaid decisions we are of the opinion that the appeal under Clause in of the Letters Patent is not barred by sub-sec. (2) of sec. 104 firstly because the Code of Civil Procedure does not deal with appeals within the High Court from the decision of a single Judge to two Judges but deals with appeals only from one Court to another and secondly because the bar which sub-sec. (2) of sec. 104 would probably have otherwise attracted to appeal under Clause 15 of the Letters Patent on the strength of the principle laid down by the Supreme Court in The Union of India v. Mohindra Supply Co. (supra) is removed by sub-sec. (1) of sec. 4 of the Code. In our opinion therefore this Letters Patent Appeal is competent and is not barred by sub-sec. (2) of sec. 104 of the Code of Civil Procedure. ( 15 ) IT has next been argued by Mr. K. S. Nanavaty that an appeal under the Letters Patent is not competent because the decision of the learned single Judge is not a judgment within the meaning of Clause 15 of the Letters Patent. A similar question arose before the Supreme Court in Radhe Shyam v. Shyam Behari Singh A. I. R. 1971 Supreme Court 2337. It arose in the context of Clause 10 of the Letters Patent of the Allahabad High Court under which an appeal lies to a Division Bench from the decision of a single Judge if it is a judgment. Clause 15 of the Letters Patent with which we are concerned uses the same language. It arose in the context of Clause 10 of the Letters Patent of the Allahabad High Court under which an appeal lies to a Division Bench from the decision of a single Judge if it is a judgment. Clause 15 of the Letters Patent with which we are concerned uses the same language. The Supreme Court has observed in that decision that for an order to be a judgment it is not always necessary that it should put an end to the controversy in the suit and should terminate the suit. Such a decision can be final preliminary or interlocutory. One of the tests laid down is that if there is a decision which affects a substantive right conferred upon a party to the proceedings it is a judgment within the meaning of Clause 15 of the Letters Patent. Similarly any order which affects the merits of a controversy between the parties by determining some disputed right or liability is also a judgment. That is the view which was taken by the Delhi High Court in Begum Aftab Zamani v. Lal Chand Khanna I. L. R. (1969) Delhi 34 = A. I. R. 1969 Delhi 85 (F-B ) which the Supreme Court has referred to with approval. ( 16 ) A similar question arose in Indulal Kanaiyalal Yagnik v. Prasannadas D. Patwari 13 Gujarat Law Reporter 269. This High Court has quoted with approval the following passage from the judgment of Sir Richard Couch C. J. In Justices of the Peace for Calcutta v. The Oriental Gas Company 8 Ben. L. R. 433. " We think judgment in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final or preliminary or interlocutory the difference between them being that a final judgment determines the whole cause or suit and a preliminary or interlocutory judgment determines only a part of it leaving other matters to be determined "it has been observed in that decision by this Court that in a case where an order is passed rejecting a plaint the order is a judgment because it has the effect of terminating the suit so far as the Court which makes the order is concerned. The test accepted by the Calcutta High Court and followed by the Bombay High Court has been expressed by this High Court in the following terms. ". . . A decision in order to be a judgment within the meaning of Clause 15 of the Letters Patent must be a decision which whether it be final or preliminary or interlocutory affects the merits of the question in controversy between the parties in the proceeding by determining some right or liability or which whatever be the form in which it is outwardly clothed is such that its direct and inevitable effect is to determine or dispose of the proceeding or its effect if not complied with is to put an end to the suit or proceeding. "if a decision merely paves the way for the determination of the question between the parties it cannot be considered to be a judgment. Similarly a mere formal order regulating the procedure in the proceeding or one which is nothing more than a step towards obtaining a final adjudication is not a judgment. A Full Bench of the Madras High Court in Palaniappa v. Krishnamurthy A. I. R. 1968 Madras 1 has laid down four tests for the purpose of determining whether a decision of a single Judge constitutes a judgment. They have been formulated thus:" (1)4 Whether the order or judgment of the single judge terminates the suit or proceedings? (2) Whether it affects the merits of the controversy between the parties in the suit itself? (3) A test that can be considered a refinement of test No. 2 but which upon juristic principle should be separately stated namely whether it determines some right or liability as between the two parties ?and (4) The negative test that has found express recognition in the dicta of White. C. J. with reference to I. L. R 29 Bom. 249 and has not been disapproved by their Lordships of the Supreme Court in Ashrumati Debis case but which instead would appear to have been impliedly approved namely whether apart from the actual words in the lies or proceeding a conceivable order or an order to the contrary effect would have disposed of the suit and would come within the definition of judgment. "no reliance was placed upon the aforesaid four tests because according to this Court the decision of the Madras High Court in Palaniappas case (supra) ran contrary to the decision of the Full Bench of five Judges of the game Court in Southern Roadways (P) Ltd. v. P. M. Veeraswami A. I. R. 1964 Madras 194. As observed in that decision the tests laid down by the High Court of Madras in Palaniappas case (supra) are not in conformity with the decisions of the High Court of Bombay on the subject and of this Court in The Esso Standard Eastern Inc. Bombay v. Vrajlal Ramjibhai and Co. I. L. R. (1969) Gujarat 144. The opinion which this Court expressed on the subject in the aforesaid decision has been formulated in the following words. "we are of the view that while considering this question a line must be drawn between proceedings which are purely ancillary to the main proceeding and proceedings which in themselves involve the determination of some right or liability not in issue in the main proceeding. If a proceeding is purely an ancillary proceeding for the purpose of facilitating the progress of the main suit or proceeding an order made in such proceeding cannot be said to amount to a judgment unless it determines some right or liability in the main suit-or proceeding. But if a proceeding is instituted which in itself involves determination of some right or liability which is not in issue in the main suit or proceeding and such right or liability is determined by an order made in such proceeding it would amount to a judgment. We do not wish to hazard an enumeration of the cases which would fall in one category or the other but the obvious cases which might fall in the former category are cases of orders granting amendment and other orders of procedural character while cases which might fall in the latter category are cases of order made on an application for setting aside an ex parte decree or an application for setting aside an abatement or an application for excuse of delay in filing an appeal. ( 17 ) IN the instant case the question which was raised was whether the Trial Court had the jurisdiction to try the suit. ( 17 ) IN the instant case the question which was raised was whether the Trial Court had the jurisdiction to try the suit. A decision holding that the Trial Court had no jurisdiction to try the suit would have brought the entire suit to termination. The decision of the learned single Judge therefore relates to a controversy which has the capability of bringing the suit to an end. Such a situation must necessarily affect the rights and liabilities of the parties. We are therefore of the opinion that the decision of he learned single Judge is a judgment within the meaning of Clause 15 of the Letters Patent. The second argument raised by Mr. K. S. Nanavaty against the maintainability of this appeal under Letters Patent is therefore devoid of merit and is rejected. ( 18 ) SO far as the merits of the case are concerned the plaintiff in the plaint itself has stated that a part of the cause of action had arisen at Chalala in Amreli District where the suit is filed. Now the defendants admittedly reside or function in the State of Himachal Pradesh. The agreement Ex. 28 under which distributors rights were granted to the plaintiffs by the defendant No. I was also executed in Himachal Pradesh. Ex-facie therefore Himachal Pradesh Court as well as the Amreli Court have jurisdiction to entertain and try the suit for damages arising out of a contract which was executed at Nahan in Himachal Pradesh and which was to be performed at Amreli where the goods were to be supplied. The Court exercising jurisdiction over Nahan has jurisdiction to try the suit for one more reason also. The defendants Nos. I and 3 reside or operate there. Therefore in absence of the agreement Ex. 28 the suit filed in Amreli Civil Court within whose jurisdiction a part of the cause of action has arisen will be maintainable. But under agreement Ex. 28 jurisdiction of one of the two Courts having jurisdiction to try the suit has been excluded by the parties. It is open to the parties to do so. Parties cannot by an agreement confer jurisdiction upon a Court which does not have it. But if more than one Court have jurisdiction to entertain and try a suit they can by an agreement exclude the jurisdiction of one and submit to the jurisdiction of another. It is open to the parties to do so. Parties cannot by an agreement confer jurisdiction upon a Court which does not have it. But if more than one Court have jurisdiction to entertain and try a suit they can by an agreement exclude the jurisdiction of one and submit to the jurisdiction of another. That is exactly what the parties have done in the instant case by agreement Ex. 28 under which they have subjected themselves to the jurisdiction of the Civil Court having jurisdiction over Nahan. ( 19 ) IN Hakam Singh v. M/s. Gammon (India) Ltd. A. I. R. 1971 Supreme Court 740 it has been observed by the Supreme Court that 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. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such Courts is not contrary to public policy. Such an agreement as laid down by the Supreme Court does not contravene sec. 28 of the Contract Act. ( 20 ) IN our opinion therefore the learned single Judge was in error in holding that the Amreli Civil Court which is one of the Courts having jurisdiction in the matter and whose jurisdiction has been excluded by their agreement has jurisdiction to entertain and try the suit. Therefore the order made by the learned single Judge should be set aside. However the next question is whether the order made by the learned Trial Judge should be restored. Appeal allowed: Suit remanded. .