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2009 DIGILAW 273 (AP)

Kollipara Bhargavi v. Lt. Col. Kollipara Ravi Kanth

2009-04-17

P.S.NARAYANA

body2009
Judgment : Heard Sri P.A. Seshu, learned counsel representing appellant-plaintiff and Sri P. Dharmesh, learned counsel representing respondent-defendant. 2. This civil miscellaneous appeal is filed as against an order dated 02.02.2009 made in O.S.G.L.No.199 of 2009 by the Court of Senior Civil Judge, Gudivada, Krishna District, returning the plaint with objections. 3. Sri P.A. Seshu, learned counsel representing the appellant-plaintiff would maintain that the said order made by the learned Judge for presentation of the plaint in proper court is not just and legal. The counsel also would maintain that the learned Judge totally erred in holding that the suit is not maintainable on the point of territorial jurisdiction. The counsel also would maintain that the appellant-plaintiff filed a suit for maintenance and for recovery of arrears of maintenance against the respondent-defendant at a place where cause of action arose, since the marriage, in fact, had been celebrated at the said place Gudivada. The counsel also pointed out to Section 20 of the Code of Civil Procedure (hereinafter in short referred to as "the Code" for the purpose of convenience). The counsel also would maintain that the learned Judge totally erred in observing that it has no jurisdiction to entertain the suit in respect of appellant-plaintiff's maintenance claim from December 2007 onwards as objected by the office, because during that relevant period both parties stayed at Hyderabad where plaintiff also lodged a police complaint and till both parties shifted to Hyderabad after marriage and plaintiff-petitioner was driven out of the home by the respondent-defendant, the plaintiff cannot claim maintenance and her right to claim maintenance arose only from November and December 2007 when they were residing at Hyderabad and, therefore, the said court cannot entertain the suit for maintenance filed by the appellant-plaintiff. The learned counsel also placed strong reliance on certain decisions to substantiate his submissions. 4. On the contrary, Sri P. Dharmesh, learned counsel representing the respondent-defendant had taken this court through the contents of the plaint and would maintain that even in the averments made in the plaint to be taken into consideration, the order made by the learned Judge cannot be found fault. 4. On the contrary, Sri P. Dharmesh, learned counsel representing the respondent-defendant had taken this court through the contents of the plaint and would maintain that even in the averments made in the plaint to be taken into consideration, the order made by the learned Judge cannot be found fault. The learned counsel also further explained that inasmuch as the relief prayed for, the arrears of maintenance, since would fall not within the purview of the jurisdiction of the said Court at Gudivada, the learned Judge arrived at correct conclusion in making such an order. The learned counsel also pointed out to the reliefs prayed for in particular para 15 (b) and would maintain that in the light of the same the order cannot be found fault. The counsel also made certain submissions relating to the O.P. said to be pending filed praying for the relief of divorce and made a distinction between the entertainment of the O.P. and the suit now thought of. 5. In the light of the submissions made by the counsel on record, the following points arise for consideration in this civil miscellaneous appeal. (1) Whether the findings recorded by the learned Senior Civil Judge, Gudivada, returning the plaint to be presented in appropriate court can be said to be in accordance with law? (2) If so, to what relief the parties would be entitled? 6. Point No.1: For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendant as shown in the original suit. 7. The learned Senior Civil Judge, Gudivada, returned the plaint to be presented in proper court as per Order VII Rule 10 of the Code. Being aggrieved of the same, the present civil miscellaneous appeal had been preferred. In para 5 of the plaint it was specifically pleaded that the marriage between the plaintiff and defendant was solemnized on 11.02.2007 at Pinnamaneni Kalyana Mandapam at Gudivada according to Hindu Dharma Sastras, rites and customs and, no doubt, further facts also had been narrated. Several of the details made in the averments in the plaint need not be elaborately discussed. The reliefs prayed for are as hereunder. Several of the details made in the averments in the plaint need not be elaborately discussed. The reliefs prayed for are as hereunder. (a) For maintenance of Rs.30,000/- per month during the lifetime of the plaintiff; (b) For arrears of maintenance for the month of December 2007 to October 2008 at Rs.30,000/- per month to Rs.3,30,000/-with interest from the date of suit till date of payment; (c) Costs of the suit; (d) To grant a charge over the property of the defendant for the amount to be decreed by the Court and for other reliefs. 8. There is no serious controversy relating to solemnization of marriage at Gudivada, but however, for the periods specifically claimed it is stated that since the parties did not reside at Gudivada, the learned Judge came to the conclusion that the said court has no jurisdiction and accordingly returned the plaint after recording certain reasons. 9. Section 20 of the Code reads as hereunder: "Other suits to be instituted where defendants reside or cause of action arises:- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises" 10. In Prakash Road Lines (P) Ltd. v. H.M.T. Bearing Ltd. (( 1998 (5) ALT 378 (D.B) the learned Division Bench at para 7 observed as hereunder. "The learned Counsel for the appellants submits that the lorry receipt clearly contains a note "subject to Bangalore jurisdiction only". No doubt, the defendants got printed this note at the bottom of the lorry receipts under Exs.A-12 to A-14. It is not in dispute that this note is not signed by the plaintiff. "The learned Counsel for the appellants submits that the lorry receipt clearly contains a note "subject to Bangalore jurisdiction only". No doubt, the defendants got printed this note at the bottom of the lorry receipts under Exs.A-12 to A-14. It is not in dispute that this note is not signed by the plaintiff. However, it is the contention of the learned Counsel for the appellants that inasmuch as the plaintiff has obtained the receipt, paid the fare, entrusted the goods and sought for recovery of the goods under the said receipt, it must be deemed to have accepted to the said condition that any dispute shall be subject to Bangalore jurisdiction only. Under Section 20 CPC. , a suit can be instituted where any of the defendants resides or carries on business or where the cause of action arises wholly or in part. Therefore, law provides an option to the plaintiff to choose its forum where more than one Court has jurisdiction to try the suit. It is open to the parties to choose one of the forums for filing the suit by agreement and exclude the other forums, but it is not competent to the parties to invest jurisdiction on a Court when it has no jurisdiction as consent cannot confer jurisdiction. In this case, extending the above principle the learned Counsel for the appellants contends that the parties have by consent agreed to approach the Court at Bangalore and, therefore, the subordinate Judge's Court, Ranga Reddy District has no jurisdiction. The note (subject to Bangalore jurisdiction only) printed in the lorry receipt is not signed by the plaintiff. There is no evidence that this condition was brought to the notice of the plaintiff and he has acceded to the said clause. It must be remembered that people often sign order forms containing lot of printed material without caring to read or knowing what is printed and if everything that is printed on such form is taken as part of the contract, without anything further, it would be reading more terms into the contract for which there had been no consensus ad idem between the parties. Therefore, it is always necessary that the Courts should insist that the printed material or the note made thereunder should be made known to the parties before the same is read into the contract as one of its integral terms. Therefore, it is always necessary that the Courts should insist that the printed material or the note made thereunder should be made known to the parties before the same is read into the contract as one of its integral terms. Therefore, we are of the view that mere presence of a printed note at the bottom of the lorry receipt does not form part of the contract, which can be enforced in a Court of law, in the absence of a proof that the same was brought to the notice of the plaintiff and that it has accepted it as a term of the contract. In M/s. Patel Roadways Pvt. Ltd. vs. The Republic Forge Co. Ltd., this Court took the view that in the absence of proof that the parties agreed that only a particular Court should have jurisdiction, it cannot be postulated that such a condition should be deemed to be an integral part of the agreement. To the same effect is another decision of this Court reported in M/s. B. A Transport Co. vs. Bankatlal. These decisions have been approved by a Full Bench of this Court in M/s. East India Transport agency vs. National Insurance Co. Ltd. In view of the Full Bench decision, this issue is no longer res integra. Therefore, following the Full Bench decision, we have no hesitation in coming to the conclusion that the mere fact that a note is printed in the lorry receipt or consignment note, the same cannot be deemed to have been incorporated as one of the integral terms of the agreement." 11. Reliance also was placed on the decisions in Thanamki Prasad v. Guntamadugu Pullamma and others ( 2005 (4) ALD 247 ) and Serigudem Padmamma v. G. Premchand and others ( 2009 (2) ALD 209 ). 12. In Smt. Madanamma v. The Singareni Colleries Co. Ltd., ( 1995 (3) ALT 106 ) while dealing with Section 20 of the Code the learned Judge held that court within the jurisdiction of which part of a cause of action arises can entertain a suit and the convenience of the defendants' is not a matter to decide court's jurisdiction. Suit filed by plaintiffs for declaration at the place of their residence cannot be transferred to the place of residence of defendants for their convenience. 13. Be that as it may, the principal relief is the claim of maintenance. Suit filed by plaintiffs for declaration at the place of their residence cannot be transferred to the place of residence of defendants for their convenience. 13. Be that as it may, the principal relief is the claim of maintenance. May be that under Clause (b) further relief had been prayed for specifying some period, by that itself, cannot be said that no part of cause of action arise at Gudivada, especially in the light of the general claim of maintenance made in Clause (a). 14. While dealing with the question whether the suit of this nature to be maintained or not, the averments made in the plaint may have to be read as a whole. In the light of the same, since part of cause of action arose at Gudivada, it cannot be said that the said suit cannot be instituted at all at Gudivada. May be, the courts at other places also jurisdiction, by itself cannot be said that the suit cannot be entertained by the learned Senior Civil Judge at Gudivada and, hence, the order under challenge cannot be sustained. 15. Point No.2: In the result, the impugned order cannot be sustained and accordingly the same is hereby set aside and the civil miscellaneous appeal is hereby allowed. No costs. Let the learned Judge entertain the suit if otherwise the suit is in order and proceed with the same in accordance with law.