JUDGMENT : P.C. Balakrishna Menon, J. C.M.A. No. 81 of 1980 is against the decision of the lower court on Issue No. 1 that the court at Cochin has no jurisdiction to try the suit and directing the return of the plaint for presentation to the proper court. 2. C.M.A. No. 40 of 1980 is against the consequential order of return of the plaint. The suit is for recovery of damages for short delivery of goods entrusted to the 1st defendant a common carrier for transportation from Calcutta to Cochin. The 2nd defendant is said to be the agent of the 1st defendant. The 2nd plaintiff is the consignee. It is averred that the goods were covered by an open policy of insurance issued by the 1st plaintiff. The plaintiffs claim that the loss on short delivery was satisfied by the 1st plaintiff the insurer and relief in the suit is claimed on behalf of the 1st plaintiff. 3. The 2nd defendant raised a contention that Clause 17 in the consignment notes issued by the 1st defendant, common carrier evidences a special contract between the parties as per which the Calcutta Court alone will have jurisdiction to decide the disputes arising out of the contract of carriage. The question of jurisdiction is covered by Issue No. 1. The court below was perfectly justified in taking up Issue No. 1 as a preliminary issue as the question relates to jurisdiction of the court to try the suit. 4. The court below has entered the finding that it is the Calcutta Court alone that has jurisdiction to try the suit, accepting the contention of the 2nd defendant in the written statement based on the alleged special contract between the parties. The consignment notes themselves have not been produced as evidence in the case; nor is there any other evidence adduced to show that the parties had entered into such a contract whereby they had chosen the Calcutta Court as the forum for the purpose of deciding disputes arising out of the contract. The court below was wrong in inferring such a contract for the reason that the plaintiff had not denied the special contract by filing a replication. In the ordinary course the consignment notes relating to the goods will be forwarded to the consignee, and on production of the same, he gets delivery of the goods at its destination. The court below was wrong in inferring such a contract for the reason that the plaintiff had not denied the special contract by filing a replication. In the ordinary course the consignment notes relating to the goods will be forwarded to the consignee, and on production of the same, he gets delivery of the goods at its destination. If this is the practice followed, the consignment notes would have been delivered to the carrier or his agent before effecting delivery of the goods. At any rate a copy of the consignment note will be available with the carrier for proof if secondary evidence is admissible. In the absence of any such proof the court below was wrong in coming to the conclusion that there was a clause in the consignment note as per which the Calcutta Court alone has jurisdiction to try the suit. We therefore set aside the impugned orders of the court below and direct that the court to try Issue No. 1 as a preliminary issue after affording the parties opportunity to prove their respective case relating to the question of jurisdiction. 5. The C.M.As. are allowed as indicated above. There will be no order as to costs. 6. The parties will appear before the court below on 24-3-1986.