Judgment : 1. This Transfer C.M.P. is filed praying for transfer of O.S.No.1511 of 2008 from the file of the II Senior Civil Judge, City Civil Court, Hyderabad, to the file of the Principal Senior Civil Judge, Eluru to be tried along with O.S.No.350 of 2008. 2. Sri D.V. Sitarama Murthy, who entered appearance on behalf of the respondent filed counter-affidavit and opposed for granting of relief in the present Transfer C.M.P. 3. Sri V.V.L.N. Sarma, the learned counsel representing the petitioners had taken this Court through the contents of the affidavit filed in support of the Transfer C.M.P., filed under Section 24 of the Code of Civil Procedure and would maintain that in the light of the fact that already a suit O.S.No.350 of 2008 on the file of the Principal Senior Civil Judge, Eluru between the parties is pending disposal, it is just and proper to transfer O.S.No.1511 of 2008 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad also to the said Court. The learned counsel would also further maintain that in fact,the lease agreement was also executed at Eluru only as can be seen from the said document. The learned counsel would also further maintain that the clause on which, reliance is being placed by the respondent would not come in the way of this Court in ordering transfer of the suit as prayed for, if the conditions under Section 24 of the Code of Civil Procedure are satisfied. The learned counsel also relied on certain decisions to substantiate his submissions. 4. On the contrary, Sri D.V.Sitarama Murthy, the learned counsel representing the respondent would contend that as per Clause 15 of the agreement, which was signed by the parties, the Court at Hyderabad only has got jurisdiction to decide the disputes between the parties arising out of the lease agreement and, hence, in the light of the same, instead of ordering transfer of O.S.No.1511 of 2008 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad to the file of the Principal Senior Civil Judge, Eluru, it may be just and proper to order Transfer of O.S.No.350 of 2008 on the file of the Principal Senior Civil Judge, Eluru to the file of the II Senior Civil Judge, City Civil Court, Hyderabad to be tried along with O.S.No.1511 of 2008. The learned counsel also made certain submissions relating to the cause of action and would maintain that when both the courts are having jurisdiction to entertain the suit, it may not be just and proper to order transfer of this suit, especially, in the light of the clause specified supra. The learned counsel also relied on certain decisions to substantiate his submissions. 5. Heard the learned counsel. 6. In the light of the submissions made by the learned counsel on record, the following points arise for consideration in the present Transfer C.M.P:- (1) Whether the petitioners are entitled to the relief as prayed for in the present Transfer C.M.P. in the facts and circumstances of the case? (2) If so, to what relief the parties would be entitled to? 7. Point No.1:- The petitioners filed the present Transfer C.M.P. under Section 24 of the Code of Civil Procedure (hereinafter in short referred to as "the Code"), for the purpose of convenience, praying for transfer of O.S.No.1511 of 2008 from the file of the II Senior Civil Judge, City Civil Court, Hyderabad to the file of the Principal Senior Civil Judge, Eluru to be tried along with O.S.No.350 of 2008. 8. It is the case of the petitioners that they were owners of the building door No.22B-4-18, admeasuring 11.250 square feet consisting of 1st, 2nd and 3rd floors, each measuring 3750 square feet, G.R. Complex, Powerpet Station Road, Eluru, West Godavari District. The respondent approached them to lease out the premises for their office/educational purpose and they agreed to lease out the same. Both the parties entered into registered lease agreement dated 27.04.2005. The respondent agreed to take out the premises on lease for a period of 9 years commencing from the actual date of occupation i.e., from 15.05.2005 to 14.05.2014. The lease is renewable for a further like period with an escalation on rent @ 15% after expiry of every three years. The lease agreement contain terms regarding the rent, interest free refundable security deposit, notice for termination etc., etc., The lease agreement was prepared on 12.03.2005. Later, the respondent requested them to make modifications to the premises in question for running their college. The lease deed was registered on 29.04.2005. By the time of negotiations and fixing of terms of lease, the premises, in question, was a big hall suitable for marriage and other functions. Later, the respondent requested them to make modifications to the premises in question for running their college. The lease deed was registered on 29.04.2005. By the time of negotiations and fixing of terms of lease, the premises, in question, was a big hall suitable for marriage and other functions. However, the respondent took the premises on lease from the petitioners for running the college. Later, the respondent has asked the petitioners to convert the hall into classrooms. But, they refused to accede to the said request, considering the amount of money required for making alterations and modifications. Then, the respondent has assured them to definitely continue in the building for a period of 9 years so that the investment for the modifications can be discharged from out of the rents payable by them and that they would not vacate the premises before the expiry of the lease period, considering the loss of investment sought to be made for converting the big hall into class rooms. The respondent has also assured the petitioners that in case, for any reason, if the respondent wants to vacate the premises, they would pay the amount invested by the petitioners for making the modifications/alterations required by them. The respondent is well aware that once the building is modified as class rooms for running the College, it may not be suitable (after modification) for any other purpose and it would be definitely difficult, rather impossible, to let out the premises to others, without making alterations again. Therefore, the respondent has agreed for the abovementioned terms and persuaded the petitioners to carry out the modifications to the building to make it suitable for running their college. The respondent has promised to the petitioners to pay the entire loss (i.e., amount spent for converting the hall into class-rooms) and also the expenditure required for modification to a tune of Rs.6 lakhs as liquidated damages for breach of term relating to the period of lease besides foregoing the advance paid to them. The said contemporaneous agreement took place in the presence of elders and that the respondent has agreed to abide by the said agreement. The respondent is, therefore, bound to honour the same. The said contemporaneous agreement took place in the presence of elders and that the respondent has agreed to abide by the said agreement. The respondent is, therefore, bound to honour the same. After the mutual agreement and understanding and on the strength of the assurance and promise of the respondent, the petitioners made all the modifications to their building according to the plans and drawings supplied by the respondent, and converted it in order to make it suitable for running the College of the respondent by taking loan from Bank. After making the modifications as required, the respondent commenced the classes in the college and started paying rent. The respondent paid rent for two floors only from 01.08.2005 while the premises consists of three floors. Contrary to the terms of agreement, the respondent has committed several commissions and omissions. The respondent withheld rent and vacated the premises contrary to the agreement entered into between them. It is also stated that explaining all the above facts and circumstances, the petitioners constrained to file O.S.No.350 of 2008 on the file of the Principal Senior Civil Judge, Eluru against the respondent for recovery of a sum of Rs.3,18,000/-with interest thereon at 15% p.a. from the date of the suit till payment. The petitioners have also filed I.A.No.2074 of 2008 for directing the respondent to pay or deposit all the arrears of rent etc., The respondent has entered appearance and contesting the matter. It is also stated that suppressing all the above facts, the respondent has filed O.S.No.1511 of 2008 in the Court of the II Senior Civil Judge, Hyderabad on 17.09.2008 for recovery of a sum of Rs.1,72,780/- with interest thereon on at 24% p.a. from the date of the suit till payment purported to be representing the balance of security deposit. The petitioners have entered appearance, filed their written statement and contesting the matter. It is also stated that the latter suit filed by the respondent is frivolous, vexatious, suppressing the true and correct facts and intended to harass and worry in diverse ways. The stand taken by the petitioners in the suit filed by the respondent, and the stand taken by the respondent in the suit filed by the petitioners, are one and the same. The latter suit filed by the respondent is only a counter-blast. The stand taken by the petitioners in the suit filed by the respondent, and the stand taken by the respondent in the suit filed by the petitioners, are one and the same. The latter suit filed by the respondent is only a counter-blast. It is an admitted fact that both the suit claims and cause of action arise out of the same agreement between the parties. The entire cause of action arose at Eluru, West Godavari District where the suit schedule property is situate. Both the petitioners reside within the jurisdiction of the Court at Eluru. The respondent is taking shelter under Clause 15 of the agreement, conferring jurisdiction on the Courts at Hyderabad. The petitioners respectfully submit that the said clause will not take away the jurisdiction of the Court at Eluru inasmuch as the entire cause of action arose at Eluru and the suits schedule building is situate at Eluru only. Only with a view to make the petitioners to come all the way to Hyderabad at periodical intervals, the above suit is filed by the respondent. It would be convenient for all the parties to thrash out all the common issues by leading oral and documentary evidence, at the court at Eluru. The petitioners were constrained to sell away the building to discharge the debt to the Bank. The petitioners are not in a position to travel to Hyderabad periodically. The respondent is running its college at Eluru at different premises and is in a position to lead their evidence at Eluru. The respondent will not be put to any inconvenience or prejudice in case the suit filed by them is transferred to the Court at Eluru to be tried along with the suit earlier filed by the petitioners. The petitioners submit that the court below at Hyderabad is proceeding with the matter and unless appropriate interim orders are granted, the petitioners will be put to grave prejudice and irreparable loss. In such circumstances, the relief of transfer of the suit had been prayed by the petitioners. 9. In the counter-affidavit filed by the respondent, certain of the facts were not put into controversy and several facts appearing to be not in serious dispute. In such circumstances, the relief of transfer of the suit had been prayed by the petitioners. 9. In the counter-affidavit filed by the respondent, certain of the facts were not put into controversy and several facts appearing to be not in serious dispute. However, it is stated that the contention that the respondent assured the petitioners to definitely continue in the building for a period of 9 years so that the investments for the modification can be discharged from out of the rents payable and that the respondent would not vacate the premises before expiry of the lease period, considering the loss of investment sought to be made for converting the big hall into class rooms and that the respondent also assured that in case for any reason he wants to vacate the premises, they would pay the amount invested by them for making the modifications etc., are false and incorrect. As per Clause 13 of the agreement, either party by giving three months notice can terminate the agreement. At any rate, all the contentions are not at all relevant considerations for the purpose of transferring the suit filed by the respondent. The other allegations and contentions in this para that the respondent has promised to pay entire loss and expenditure required for modification to a tune of Rs.6 lakhs as liquidated damages for breach of terms relating to the period of lease besides foregoing the advance paid to the petitioners and the said agreement took place in the presence of elders and the respondent has agreed to abide by the said agreement is false and incorrect to the knowledge of the petitioners. Further, contentions and allegations in this para are not admitted but, hereby denied. As already stated all those contentions are not relevant for the purpose of this transfer application and, therefore, the same are not being traversed herein and they reserve its right to file an additional counter-affidavit, if necessary. The allegation that the respondent paid rent for two floors only from 01.08.2005 while the premises consists of three floors contrary to the terms of agreement and they also withheld rent and vacated the premises contrary to the agreement is not true or correct. The allegation that the respondent paid rent for two floors only from 01.08.2005 while the premises consists of three floors contrary to the terms of agreement and they also withheld rent and vacated the premises contrary to the agreement is not true or correct. The respondent submit that as per Clause 2 of the agreement, the rent was fixed at Rs.53,000/-per month for the entire building, which included maintenance cost and no part of rent was withheld by them. As per the terms and conditions of the agreement, three months notice was given to the petitioners and the rent for those three months were asked to be adjusted in the security deposit/advance amount. Certain further averments were made in paragraphs 5 and 6 of the counter- affidavit as well. In paragraph 7 of the counter-affidavit, it is stated that as per Clause 15 of the agreement, which was signed by the petitioners, the Court at Hyderabad only got jurisdiction to decide the disputes between the parties arising out of lease agreement. As per Section 20 of the C.P.C. where two courts are having jurisdiction and if the parties stipulate in the contract to vest jurisdiction in one such court to try the disputes arising between themselves and if the contract is unambiguous, explicit and clear and it not pleaded to be void and opposed to Section 23 of the Contract Act, then suit would like in the Court agreed to by the parties and the other court will have no jurisdiction even though the cause of action arose might have arisen partly within the territorial jurisdiction of the Court. 10. The lease agreement was placed before this Court and Clause 15 no doubt specifies as hereunder:- "Any dispute/litigation arising out of the lease agreement the jurisdiction will be at Hyderabad". 11. The learned counsel representing the petitioners placed strong reliance on the decision of the Apex Court reported in Harshad Chiman Lal Modi V. D.L.F.,Universal Ltd (AIR 2005 Supreme Court 4446,) wherein the Apex Court observed at paragraphs 16, 17, 18 and 28 as hereunder:- "The proviso is thus an exception to the main part of the section which in our considered opinion, cannot be interpreted or construed to enlarge the scope of the principal provision. It would apply only if the suit falls within one of the categories specified in the main part of the section and the relief sought could entirely be obtained by personal obedience of the defendant. In the instant case, the proviso has no application. The relief sought by the plaintiff is for specific performance of agreement respecting immovable property by directing the defendant no.1 to execute sale deed in favour of the plaintiff and to deliver possession to him. The trial Court was, therefore, right in holding that the suit was covered by clause (d) of Section 16 of the Code and the proviso had no application. In our opinion, the submission of the learned counsel for the appellant that the parties had agreed that Delhi Court alone had jurisdiction in the matters arising out of the transaction has also no force. Such a provision, in our opinion, would apply to those cases where two or more courts have jurisdiction to entertain a suit and the parties have agreed to submit to the jurisdiction of one court. We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a Court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity." 12. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a Court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity." 12. Reliance was also placed on the decision reported in Angile Insultations V. Davyashmore India Ltd (1995) 4 Supreme Court Cases 153), wherein the Apex Court at paragraphs 4 and 5 observed as hereunder:- "Normally, the plea of jurisdiction of the Court is to be considered in accordance with Sections 16 to 20 of C.P.C. Section 20 provides that subject to some limitations, 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 carried on business, or personally works for gain; or any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carried 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. So, normally that court also would have jurisdiction where the cause of action, wholly or in part, arises. But it will be subject to the terms of the contract between the parties. In this case, clause (21) reads thus: "This work order is issued subject to the jurisdiction of the High Court situated in Bangalore in the State of Karnataka. Any legal proceeding will, therefore, fall within the jurisdiction of the above court only." A reading of this clause would clearly indicate that the work order issued by the appellant will be subject to the jurisdiction of the High Court situated in Bangalore in the State of Karnataka. Any legal proceeding will, therefore, be instituted in a Court of competent jurisdiction within the jurisdiction of High Court of Bangalore only. The controversy has been considered by this Court in A.B.C. Laminart (P) Ltd., V. A.P. Agencies (1989) 2 SCC 163 ). Any legal proceeding will, therefore, be instituted in a Court of competent jurisdiction within the jurisdiction of High Court of Bangalore only. The controversy has been considered by this Court in A.B.C. Laminart (P) Ltd., V. A.P. Agencies (1989) 2 SCC 163 ). Considering the entire case law on the topic, this Court held that the citizen has the right to have his legal position determined by the ordinary Tribunal except, of course,subject to contract (a) when there is an arbitration clause which is valid and binding under the law, and (b) when parties to a contract agree as to the jurisdiction to which dispute in respect of the contract shall be subject. This is clear from Section 28 of the Contract Act. But an agreement to oust absolutely the jurisdiction of the Court will be unlawful and void being against the public policy under Section 23 of the Contract Act. We do not find any such invalidity of clause (21) of the contract pleaded in this case. On the other hand, this Court laid that where there may be two or more competent courts, which can entertain a suit consequent upon a part of the cause of action having arisen therewith, if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves, the argument would be valid. If such a contract is clear, unambiguous and explicit and not vague, it is not hit by Section 23 and 28 of the Contract Act. This cannot be understood as parties contacting against the statute. Mercantile law and practice permit such agreements." 13. The contention advanced relating to conferring the jurisdiction on Courts at Hyderabad only need not detain this Court any longer since this Court is of the considered opinion that this Court may exercise the power of transfer under Section 24 of the Code if otherwise satisfied that it is a fit matter, where such a discretion is to be exercised. This Court had gone through the contents of the lease agreement relating to the jurisdiction and also the nature of litigations pending on the file of the both the Courts, referred to supra. 14. In the light of the facts and circumstances well explained, this Court is thoroughly satisfied that the relief prayed for by the petitioners to be granted. The point is answered accordingly. 15. 14. In the light of the facts and circumstances well explained, this Court is thoroughly satisfied that the relief prayed for by the petitioners to be granted. The point is answered accordingly. 15. Point No:2- In view of the finding on point No.1, the suit O.S.No.1511 of 2008 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad, is hereby withdrawn and transferred to the file of the Principal Senior Civil Judge, Eluru, to be tried and disposed of along with O.S.No.350 of 2008 in accordance with law. 16. The Transfer C.M.P. is ordered as indicated above. No order as to costs.