Purbanchal Finance Co. and Ors. v. Md Abdul Kalam Azad and Ors.
1998-03-10
V.DUTTA GYANI
body1998
DigiLaw.ai
This revision petition is directed against the order dated 28.10.92 as passed by the learned Assistant District Judge, Mangaldoi in Title Suit No.2 of 1990. The order is a short one, it is reproduced below : "Plaintiff is present with Advocate. The learned Advocate Mr. KK Mahanta appeared for defendants Nos. l and 2 and filed petition No. 1822/92 praying for vacating the exparte hearing. Heard the learned Advocate of both the sides. The prayer is allowed subject to payment and cost of Rs. 100/-. By petition No. 1824/92, the defendant Nos. 1 and 2 prayed for hearing on petition No. 1308/92 filed earlier relating to jurisdiction of the Court. This prayer will be considered after filing WS. Fix 1.12.92 for depositing cost and filing WS." 2. Few basic facts may now be noted. The plaintiff respondent No. 1 instituted a suit in the Court of the Assistant District Judge, Darrang at Mangaldoi, inter alia, praying for a declaration that the defendant petitioner No. 1 is not entitled to take possession of vehicle bearing registration No. ASD 5923, a truck, but is only entitle to Rs. 13,6007- as the balance payable to him and further prayed that the petitioner had no right to transfer the vehicle to defendant No.4 and for that matter to anyone else. The registration of the vehicle in favour of defendant No.4 and 4 (a) was illegal and inoperative. The petitioner is a firm dealing in motor vehicles purchasing the same on bank finance and let it on respective hires on hire purchase agreement. 3. Learned counsel appearing for the petitioner contended that in view of ouster of Court's jurisdiction pursuant to a clause of contract, the trial Court at Mangaldoi had no jurisdiction to try the suit. As such, the trial Court was not justified in passing the impugned order as it did. So far as the question of ouster of Court's jurisdiction is concerned, the Supreme Court in ABC Laminart (P) Ltd vs. AP Agencies, AIR 1989 SC 1239 has pointed out that: "When the Court has to decide the question of jurisdiction pursuant to an ouster clause it is necessary to construe the ousting expression or clause properly to see whether there is ouster of jurisdiction of other Courts.
When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like 'alone', 'only', 'exclusive' and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim 'expression unius est. exclusio alterius'- expression of one is the exclusion of another - may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed. Often the stipulation is that the contract shall be deemed to have been made at a particular place. This would provide the connecting factor for jurisdiction to the Courts of that place in the matter of any dispute on or arising out of that contract. It would not, however, ipso facto take away jurisdiction of other Courts,' 4. But Mr. Goswami, learned senior counsel appearing for the respondent, on the other hand, contended that no case can be said to have been decided within the meaning of section 115 CPC. Therefore, this revision is liable to be dismissed. 5. The impugned order, as quoted above, merely direct the petitioner to file WS. The trial Court is yet to decide the question of ouster of jurisdiction. Other question that arises for consideration is relating to clause (b) of the proviso to section 115(1) CPC. 6. In face of the order as quoted above, can it be said that an 'issue' has been decided, let alone decision of a case. I am conscious that expression 'case decided' includes interlocutory orders as held by the Supreme Court in Major SS Khanna vs. Brig FJ Dillon, AIR 1964 SC 497 , However, liberally and widely construing the expression 'case decided', all that the impugned order speaks of postponment of decision, on the question of jurisdiction vis-a-vis the ouster clause contained in the contract, subject to filing of WS and deposit of cost as imposed. By no stretch of imagination can it be said to be a case decided. 7.
By no stretch of imagination can it be said to be a case decided. 7. There is yet another condition to be fulfilled for invoking the revisional jurisdiction. Clause (b) of section 115 provides that the High Court shall not under this section vary or reverse any order made or any order deciding an issue in the course of a suit or other proceeding, where the order if allowed to stand, would occasion a failure of justice, or cause irreparable injury to the party against whom the order is made. This condition is not even remotely suggested to be fulfilled much less, actually substantiated. 8. In the result, this revision petition fails, it is accordingly dismissed with no order as to costs