JUDGMENT B.N. Mahapatra, J. 1. In this Civil Revision Petition challenge has been made to the order dated 10.11.2010 passed by the learned 1st. Addl. Civil Judge (Senior Division), Cuttack in Money Suit No. 114 of 2008 by which the application of the petitioners under Order 14, Rule 2(2), CPC to decide the question of jurisdiction as the preliminary issue has been rejected. 2. Petitioners’ case in a nutshell is that Opp. Party as Plaintiff 1st filed Money Suit. No.114 of 2008 before the Civil Judge (Sr. Division) Court, Cuttack which was subsequently transferred to the court of learned 1st Addl. Civil Judge (Sr. Division), Cuttack praying therein to pass a decree for Rs.1,93,316/-against defendant-petitioners along with pendente lite and future interest. As per the case of the plaintiff-opp. Party, it was appointed by the present petitioner-defendant no.1 on 01.10.2006 as an authorized wholesale dealer to deal with all the products of Hawkins in the State of Odisha on the basis of terms and conditions of the appointment letter. Further case of the plaintiff is that as per usual practice after receiving the purchase order, the defendants-petitioners shall deliver the goods within seven days to the plaintiff-opp. Party. Since the goods were delivered beyond seven days’ period, the plaintiff faced financial loss amounting to Rs.98,680/-. Further case of the plaintiff-opp. Party is that on 7.4.2008 the plaintiff-opp. Party wrote a letter to defendant No.2-Petitioner regarding settlement of account, but the defendant-petitioners without looking into the same issued a cheque of Rs. 7,745/-. It is also the case of the plaintiff that as per agreement and performance credit plan dated 12.10.2006, the plaintiff was to be paid 2.5% after purchase of 880 pieces of Pressure Cookers from October, 2006 to March, 2007. Even though the plaintiff purchased 926 pieces of Pressure Cookers, it was not paid as per the performance credit plan. Due to defendant-petitioners’ inability to execute the order, the plaintiff-opp. Party was compelled to purchase Pressure Cookers from various dealers amounting to Rs.29,57,440.62 and accordingly it is entitled to additional performance credit to the tune of Rs.73,936/-. In August, 2007 plaintiff-opposite party issued a letter to the defendant no.2-petitioner regarding non-supply of materials which was allegedly said to have been admitted by the defendant no.1-petitioner. Since several correspondences were made between the parties without yielding any result, the plaintiff-opp. In August, 2007 plaintiff-opposite party issued a letter to the defendant no.2-petitioner regarding non-supply of materials which was allegedly said to have been admitted by the defendant no.1-petitioner. Since several correspondences were made between the parties without yielding any result, the plaintiff-opp. Party issued a legal notice on 01.07.2008 to defendant No.2-petitioner demanding settlement of account and that having not been done, the aforesaid Money Suit was filed. On 30.01.2009 the defendant-petitioners entered appearance and on 06.04.2009 filed their written statement. In their written statement, besides taking all technical objections available under law it is specifically pleaded that the plaintiff-opp. Party having offered and opted for Mumbai’s jurisdiction as per Clause-15 of the letter of appointment dated 1.10.2006 and Clause-17 of the sales order, learned trial court at Cuttack ought not to entertain and decide the suit. On 08.07.2010 the petitioners moved an application under Order 14, Rule 2(2), CPC (Annexure-3) to take up the issue of jurisdiction as preliminary issue. Thereafter, the plaintiff-opposite party filed objection to the application under Annexure-3 on the ground that the petitioners did not file the application under Annexure-3 immediately after settlement of issues. Learned trial court after hearing both parties dismissed the said petition holding that issues relating to jurisdiction in the present case should not be decided as preliminary issue and it can be taken up simultaneously with other issues for effective adjudication of the lis. Hence, the present Civil Revision Petition. 3. Mr. S.S. Das, learned counsel appearing on behalf of the revision petitioners submitted that though the suit was presented on 15.09.2008, because of non-deposit of the court fee and non-compliance of the order of the court, the matter could not progress till 02.12.2008. After termination of the dealership, the plaintiff-opp. Party has been paid a sum of Rs.7,745/-towards full and final settlement of its account which was encashed by the plaintiff on 29.04.2008. The plaintiff-opp. Party in its letter dated 07.04.2008 stated “ I received your cheque but your cheque will be presented in my Bank only after I am getting the correct accounts statement”. Mr. Das further submitted that in view of such statement, the plaintiff-opp. Party is estopped from making any claim as has been done in the present suit or making any grievance about the alleged mistakes in the statement of accounts. The defendant-petitioners faced serious problem for bouncing of cheque issued by the plaintiff-opp. Mr. Das further submitted that in view of such statement, the plaintiff-opp. Party is estopped from making any claim as has been done in the present suit or making any grievance about the alleged mistakes in the statement of accounts. The defendant-petitioners faced serious problem for bouncing of cheque issued by the plaintiff-opp. Party on several occasions. It is submitted that though the order No.12, dated 31.7.2009 reflects about the settlement of issues no issues were actually settled on the said date. The petitioners verily believed that till date issues have not been settled which can be seen from the records of the court below. On the next date, the plaintiff-opp. Party neither filed its list of witnesses nor its documents as directed vide order no.12, dated 31.07.2009. Thereafter the plaintiff-opposite party went on taking time on six consecutive dates, and on all these dates the petitioners had filed hazira. 4. On 06.07.2010, the plaintiff-opposite party filed the affidavit evidence of A. Bajaj and served a copy of the said affidavit on the learned counsel appearing for the petitioners on which date the petitioners prayed for time for cross-examination, but they were pressed to put a few questions for adjournments and accordingly a couple of formal questions were put in the cross-examination though in strict sense, the cross-examination has not begun as yet and the case was posted to 08.07.2010. Mr. Das submitted that in fact no issues were settled as noted against order No.12 dated 31.7.2009. 5. Further it was submitted that neither in the plaint nor in the objection to the petition under Annexure-3, the plaintiff had ever taken a stand that the courts in Mumbai have no jurisdiction to entertain and try the dispute of the present nature. However, in the objection the plaintiff-opposite party took a stand that the issue relating to the jurisdiction is a mixed question of fact and law and the party who pleads ouster of jurisdiction of a competent court is to establish the same by independent evidence and prayed for rejection of the petition under Annexure-3. Mr. Das further submitted that at no point of time it was even contended by the petitioners that the courts in Cuttack do not have the competence/jurisdiction to try and decide the issue involved in the present suit. Mr. Das further submitted that at no point of time it was even contended by the petitioners that the courts in Cuttack do not have the competence/jurisdiction to try and decide the issue involved in the present suit. It is further submitted that at no point of time it was contended by any of the parties that the courts in Mumbai have no jurisdiction to try and decide the dispute of the present nature. What was contended and argued by the petitioners was that when courts in more than one place have jurisdiction to try and decide a particular dispute, the parties can confine the jurisdiction to one court as such an agreement is neither contrary to the public policy nor in any way contravenes Section 28 of the Contract Act. On the contrary, confinement of jurisdiction to one court sweeps away any possibility of conflict of decision of different courts. However, when confinement of jurisdiction is permissible under law, the parties cannot, by agreement, confer the jurisdiction on a court which otherwise, does not have jurisdiction to deal with the matter. When the defendants alleged that the court has no jurisdiction to try the case and issue is framed regarding jurisdiction for the convenience of the parties, the same should be tried as preliminary issue and if the court finds that it has no jurisdiction, the plaintiff can very well proceed with the litigation in the proper court. The finding regarding jurisdiction at the final stage would only cause undue hardship to the parties. 6. Mr. Das further submitted that the learned trial court did not take note of the ratio decedendi of the Hon’ble Apex Court and on placing reliance on some judgments which were not cited at the time of argument, illegally held that there is a dispute regarding the place of execution of the appointment letter and the genuineness of the appointment letter can be tested after taking evidence from both sides. But it is not proved or exhibited according to law as yet, though such a stand was never taken by any of the parties. But it is not proved or exhibited according to law as yet, though such a stand was never taken by any of the parties. Learned trial court is also wrong to hold that it is necessary for the parties to adduce evidence in this regard and further, whether the plaintiff having offered and opted for Mumbai jurisdiction as per Clause-15 of the appointment letter dated 01.10.2006 and Clause 17 of the sales order and whether both parties agreed to Mumbai jurisdiction and how far the agreement and the sales order are valid is a question of fact and likewise the terms and conditions of the sales order is a question of fact. Leaned trial court, in order to vindicate its own reasoning, reflected in the order that in the meanwhile the plaintiff has examined one witness and the present question is being raised by the defendants after the examination-in-chief of P.W. 1. Since the plaintiff-opposite party himself relied upon the appointment letter dated 01.10.2006 which formed the basis of the suit, there was no question of dispute about genuineness of the said appointment letter in which as per Clause 15, it was clearly stated that the appointment is subject to Mumbai jurisdiction. If that appointment letter is not genuine, then the whole suit of the plaintiff fails and deserves to be dismissed. The learned trial court acted illegally holding that there is a dispute regarding the place of execution of the appointment letter and the genuineness of the letter can be tested after taking evidence from both sides. Learned trial court totally lost focus on the main stream to hold that the appointment letter has not been proved and executed for which evidence is to be adduced. 7. The trial court totally lost sight of the well settled principle that in terms of Order 14, Rule 2, CPC once a suit has been tried on all the issues, it is the requirement of the court to give findings on all such issues. Once the court comes to a finding that it has no jurisdiction to try the suit, it would be a futile exercise to decide other issue on merit of the case. The trial court is required to frame the preliminary issue particularly when the parties by agreement have confined the jurisdiction to the courts at Mumbai. Once the court comes to a finding that it has no jurisdiction to try the suit, it would be a futile exercise to decide other issue on merit of the case. The trial court is required to frame the preliminary issue particularly when the parties by agreement have confined the jurisdiction to the courts at Mumbai. Learned trial court should have taken into consideration the decisions relied upon by the petitioners to the extent that when the parties agreed to confine the jurisdiction to the courts at Mumbai, it is neither contrary to the public policy nor in contravention of the provisions under Section 28 of the Contract Act. When both the courts have jurisdiction, no fault can be found in the agreement between the parties in confining the jurisdiction to the courts at Mumbai. Learned trial court has illegally planted the plea of validity of agreement and sales order which is not the case of any of the parties. 8. Mr. Das further submitted that plea of jurisdiction simpliciter and confining jurisdiction to a particular court are altogether different aspects. Had there been no agreement between the parties confining the jurisdiction to a particular court and further had there been any issues conferring jurisdiction which needs adducing of oral evidence, the impugned order would have been held good. Letters were issued to Mumbai and further when the agreement dated 01.10.2006 which emanated from Mumbai coupled with issuance of sales orders to Mumbai, a part of the cause of action admittedly arose in Mumbai and hence by agreement the parties did not confer jurisdiction on the courts at Mumbai but confined the jurisdiction which aspect was totally lost sight of by the learned trial court for which the impugned order is vitiated. 9. Mr. Das placing reliance on the judgment of the Kerala High Court in the case of M/s. Femina Handloom of India, Cannanore v. M/s. M.,R. Verma & Sons, AIR 1993 Kerala 210 (211) submitted that when it is contended that the court has no jurisdiction to try the case and issue is framed regarding jurisdiction for the convenience of the parties, the same should have been tried as a preliminary issue and if the court finds that it has no jurisdiction, the plaintiff can very well proceed the litigation in proper court. Further placing reliance on the decision of the Hon’ble Supreme Court in the case of Hakam Singh v. M/s. Gammon (India) Ltd. , AIR 1971 SC 740 , Mr. Das submitted that it is not open to the parties by agreement to confer jurisdiction on a court which does not possess under the Code. But where two courts or more have jurisdiction under the CPC to try a suit or a proceeding and 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 does not contravene Section 28 of the Contract Act. In support of the above contention Mr. Das further relied on the decision of the Supreme Court in the cases of Mithilesh Kumari and another v. Prem Behari Khare, AIR 1989 SC 1247 , M/s. Angile Insultations v. M/s. Davy Ashmore India Ltd. and another, AIR 1995 SC 1766 , A.V.M. Sales Corporation v. Ms. Anuradha Chemicals Pvt. Ltd., 2012 (1) OLR SC 507. Mr. Das placing reliance in the case of New Moga Transport Co. v. United India Insurance Co. Ltd. and another, (2004) 4 SCC 677 , and the decision of the Delhi High Court in the case of M/s. Alphabetics pvt. Ltd. v. Lohta jute Press, AIR 2004 Delhi-374. Placing reliance on the judgment of the Supreme Court in Carona Ltd. v. Parvathy Swaminathan and Sons, (2007) 8 SCC 559 , submitted that once jurisdictional fact found to exist, the court or tribunal has power to decide the adjudicatory fact or facts in issue. Placing reliance upon the judgment of the Supreme Court in Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497 , it was submitted that under Order 14, Rule 2(2), CPC where issues both of law and fact arises in the same suit and the court is of the opinion that the case or any part thereof may be disposed of on issue of law only and it shall try those issues first. Mr. F.J. Dillon, AIR 1964 SC 497 , it was submitted that under Order 14, Rule 2(2), CPC where issues both of law and fact arises in the same suit and the court is of the opinion that the case or any part thereof may be disposed of on issue of law only and it shall try those issues first. Mr. Das also relying on the judgment of this Court in Ganta Swain and others v. Kandhuni Gouduni and others, 1996 (I) OLR 89 submitted that if the case is of capable of being decided on the basis of the undisputable facts emerging from the pleadings, it is the duty of court to decide the said issue as preliminary; provisions under Order 11, Rule 22, CPC do not create an embargo for taking of issue of jurisdiction as preliminary issue. 10. Mr. T.K. Satapathy, learned counsel appearing on behalf of the plaintiff-opp. Party submitted that the plaintiff filed a Money Suit against the present petitioner-defendants on 15.09.2008 and the petitioner-defendants have filed their written statement on 06.04.2009. Learned trial court after perusal of the plaint, written statement and document has settled the issues as per the Order 14, Rule 1, CPC on 31.07.2009. Thereafter suit was posted for hearing to 06.07.2010. Opp. Party-Plaintiff filed an evidence-affidavit under Order 18, Rule-4, CPC of P.W.1. The defendant-petitioners cross-examined P.W.1 and the case was posted to 8.7.2010 for further hearing. On 8.7.2010 the defendant-petitioners filed a petition under Order 14, Rule 2(2), CPC to which the plaintiff-opp. Party filed objection. The Trial Court dismissed the petition filed under Order 14, Rule 2(2), CPC. The question of territorial jurisdiction cannot be decided as preliminary issue without going into the question whether the appointment letter dated 01.10.2006 had been executed at Cuttack or not and the defendant-petitioner no.3 is C & F Agent/Branch Office/Depot of the petitioner-company or not. Whether the goods are supplied by defendant no.1-company through defendant no.3 to the Plaintiff-Opp. Party or not is a question of fact which requires consideration of evidence to decide the case and the same is not permissible under Order 14, Rule 2(2), CPC. Therefore, the question of jurisdiction cannot be taken as preliminary issue as because the documents and records show that further evidence is necessary for the same. In support of his contention Mr. Therefore, the question of jurisdiction cannot be taken as preliminary issue as because the documents and records show that further evidence is necessary for the same. In support of his contention Mr. Satpathy relied on a decision of the Calcutta High Court in the case of Naresh Ch. Das vs. Gopal Ch. Das, AIR 1991 Calcutta -237; wherein it is held that preliminary issue on question of territorial jurisdiction of the court is a mixed question of law and fact which cannot be decided as preliminary issue. Further placing reliance on the judgment of this Court reported in State of Orissa vs. Durga Charan Rourtray, 2010 (I) OLR-214, Mr. Satapathy submitted that the performance of contract is a part of cause of action and a suit in respect of breach can always be filed at the place where the contract should have been performed or its performance was completed. If the contract is to be performed at the place where it is made the suit on the contract is to be filed there and no where else. Therefore, the cause of action for filing the suit arises out of letter of appointment and the sale order within the jurisdiction of the learned trial court. It is further submitted that mere existence of clause of agreement does not oust the jurisdiction of the court to try the suit. In support of this contention Mr. Satapathy relying on the judgment of this Court reported in The Paradeep Port Trust, represented by its Chairman Vs. M/s. Hindusthan Mercantile Transport Corporation and another, 1984-OLR (I) 1023, submitted that after commencement of trial the petitioner-company filed petition under Order No.14, Rule-2(2), CPC before the trial court which is not maintainable as the trial has already been commenced and the Kerala High Court in the case of G. Ayyappan Pillai V. State of Kerala and another, reported in 2010 (28) VST-411 (Kerala) held that question of territorial jurisdiction should have been decided before the parties went into the trial . Mr. Satapathy submitted that the trial commences on the date issues were framed that is the date of first hearing. In support of the aforesaid contention he relied upon the decision of the Supreme Court in Vidyabai & Others v. Padmalatha and Another, AIR 2009 SC 1433 . Mr. Satapathy submitted that the trial commences on the date issues were framed that is the date of first hearing. In support of the aforesaid contention he relied upon the decision of the Supreme Court in Vidyabai & Others v. Padmalatha and Another, AIR 2009 SC 1433 . Therefore, the petition filed under Order 14, Rule 2(2), CPC after commencement of trial is not maintainable in the present case. Since the trial court after applying his judicial mind keeping in view various judgments passed by the Hon’ble Supreme Court and High Courts has rightly held that in the case at hand, the question of jurisdiction cannot be decided as preliminary issue at this stage unless and until the parties adduce evidence to that effect the present revision petition is liable to be dismissed. 11. Mr. Satpathy further submitted that the amount involved in the money suit is Rs.1,93,316/-and for this amount the petitioner is asked to go to Bombay to file the suit for realization of the said amount which will be highly prejudicial and oppressive. 12. On the rival contentions advanced by both parties, the following questions fall for consideration by this Court: (i) Where two or more courts have jurisdiction to try a suit, whether the parties can agree to submit themselves to the jurisdiction of one of these Courts and oust the jurisdiction of other courts and if the answer is in affirmative, whether such an agreement is against the public policy? (ii) Whether the issue of jurisdiction is to be taken up as a preliminary issue? (iii) Whether the petitioner has waived his right to raise a contention regarding territorial jurisdiction of the trial court and to make a prayer to try that issue as preliminary issue after P.W.1 was examined by the plaintiff and cross-examined by the defendant-petitioner? (iv) Whether despite the agreement of the parties to oust the jurisdiction of one of the two courts having jurisdiction, the Court whose jurisdiction has been ousted, if satisfied that the stipulation would operate harshly and is oppressive in character, inequitable or unfair for ends of justice it can relieve the parties of the bargain ? (v) Whether the impugned order dated 10.11.2010 passed by the trial court rejecting the prayer of the petitioners to hear the question of jurisdiction as preliminary issue under provisions of Order 14, Rule 2(2) CPC is legally sustainable? (vi) What order? (v) Whether the impugned order dated 10.11.2010 passed by the trial court rejecting the prayer of the petitioners to hear the question of jurisdiction as preliminary issue under provisions of Order 14, Rule 2(2) CPC is legally sustainable? (vi) What order? 13. To deal with question no.(i) it would be beneficial to refer to 14. The Hon’ble Supreme Court in the case of A.B.C. Laminart some of the decisions of the Hon’ble Supreme Court. Pvt. Ltd. and another v. A.P. Agencies, salem, AIR 1989 SC 1239 has held that : “So long as the parties to a contract do not oust the jurisdiction of all the courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their contract ousted the jurisdiction of the Court. If under the law several Courts would have jurisdiction and the parties have agreed to submit to one of those jurisdictions and not to other or others of them it cannot be said that there is total ouster of jurisdiction. In other words, where the parties to a contract agreed to submit the disputes arisen from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to be void as against public policy. If on the other hand, the jurisdiction they agreed to submit to would not otherwise a proper jurisdiction to decide dispute arising out of the contract it must be declared void being against public policy. Thus, it is now a settled principle 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 there within, if the parties to the contract agreed to vest jurisdiction in one such court to try a dispute which might arise as between themselves the agreement would be valid…..From the foregoing decisions it can be reasonably deduced that whether such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific accepted norms of contract would bind the parties and unless the absence of ad idem can be shown the other courts would avoid exercising jurisdiction. When the clause is clear, unambiguous and specific accepted norms of contract would bind the parties and unless the absence of ad idem can be shown the other courts would avoid exercising jurisdiction. As regard the construction of ouster clause wherein words like ‘alone’ ‘only’ and ‘exclusively’, and the like have been sued there may be no difficulty. Even without such words in appropriate cases the maxim ‘expressio unius est exclusion alterius’-expression of one is exclusion of another may be applied.” 15. In M/s. Angile Insultations v. M/s. Davy Ashmore India Ltd. and another, AIR 1995 SC 1766 , the Hon’ble Supreme Court held as under -“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. Xx xx xx 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 S. 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 S. 23 of the Contract Act. We do not find any such invalidity of Clauses (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 agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague, it is not hit by Ss. If such a contract is clear, unambiguous and explicit and not vague, it is not hit by Ss. 23 and 28 of the Contract Act. This cannot be understood as parties contracting against the statute. Mercantile law and practice permit such agreements.” 16. The Supreme Court also held in the case of A.V.M. Sales Corporation v. Ms. Anuradha Chemicals Pvt. Ltd., 2012 (I) OLR (SC) 507 that: “Where two courts have jurisdiction consequent upon the cause of action or a part thereof arising therein, if the parties agree in clear and unambiguous term to exclude the jurisdiction of the other, the said decision could not offend the provisions of Section 23 of the Contract Act. In such a case, the suit would lie in the court to be agreed upon by the parties. Xx xx xx Where part of the cause of action arises at both Delhi and Mumbai, this Court held that mutual agreement to exclude the jurisdiction to Delhi Courts to entertain the suit was not opposed to public policy was valid.” 17. In view of the above settled legal position where two or more courts have jurisdiction to try a suit, the parties can agree to submit themselves to jurisdiction of one of these courts and oust the jurisdiction of other courts and such an agreement is not against the public policy. 18. Question No.(ii) is whether issue of jurisdiction can be taken up as a preliminary issue? To deal with this question, it is necessary to know what is contemplated in Sub-rule (2) of Rule 2 of Order 14, CPC, which reads as follows :- “Where issues both of law and of fact arise in the same suit, and court is of opinion that the case or any part thereof may be disposed of on a issue of law only, it may try that issue first if that issue relates to – (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force; and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” 19. Plain reading of Order 14 and Rule 2(2) postulates that a suit can be disposed of on an issue of law as preliminary issue if that issue relates to the jurisdiction of the court or a bar to the suit created by any law. 20. This Court in the case of Bypothu Kssamma Vs. P. Khageswar Rao Naidu (dead) and after him Shri Paddana Sivarama Deekhitula and others, 71 (1991) CLT 519 held as under:- “under Sub-rule (2) it is necessary for the Court to satisfy itself (a) that the issue is done of law only, that is, it requires no evidence or a title to be led, (b) the decision on the issue is sufficient for disposal of the entire case or a part of the case, (c) the issue in question relates to jurisdiction of the Court or a bar to the suit created by any law for the time being in force. Unless all these preconditions are satisfied the Court will not be justified in trying an issue as a preliminary one, postponing consideration of other issues. It is worth noting here that the practice of trying preliminary issue has generally been discouraged because it results in piecemeal trial and after results in remand of the case to the trial court for consideration of the remaining issues. In appealable cases the Court should, as far as possible, decide on all issues to avoid a piecemeal trial, protracted litigation and repeated appeals in the same suit. The practice of trying the suit on preliminary issue has been discouraged.” 21. This Court further in the case of Bairagi Ch. Das V. Kartik Chandra Das and others, 54 (1982) CLT 298 held that : “It is discretionary to try preliminary issue of law relating to jurisdiction or bar of suit when it is so clear that decision will decide the suit finally once and for all without recording of any evidence. A mixed question of fact and law cannot be decided as a preliminary issue. Even in a pure question of law if the Court is of the opinion that it is more expedient to try all issues together and refuses to try preliminary issues of law referred to in sub-rule (2) (a) and (b), it commits no error touching jurisdiction.” 22. Even in a pure question of law if the Court is of the opinion that it is more expedient to try all issues together and refuses to try preliminary issues of law referred to in sub-rule (2) (a) and (b), it commits no error touching jurisdiction.” 22. In the instant case, the trial court is of the view that the issue relating to jurisdiction in the present case should not be decided as preliminary issue and it can be taken up simultaneously with other issues for effective adjudication of the list for the reasons stated therein. In the peculiar circumstances, this Court is of the view that the trial court has not committed any mistake in taking such a decision. 23. Third question relates to as to whether the court ought to decide the issue relating to territorial jurisdiction before the commencement of the trial of the suit. The question of lack of inherent jurisdiction can be raised at any stage of a case, but an objection as to the territorial jurisdiction could be waived which could be express or implied. An implied waiver can be gathered by the conduct of the parties. 24. In the case of G. Ayyappan Pillai (supra), the Kerala High Court held as under :- “That the court should have decided the issue as to the alleged lack of territorial jurisdiction before the parties went into trial of the suit. In this case the order to return the plaint for presentation in the proper court was passed after the appellant produced his evidence and part of the evidence of the respondents was recorded. This was not in accordance with the message contained in Section 21 of the Code. Unlike in a case of lack of inherent jurisdiction, an objection as to territorial jurisdiction could be waived which could be express or implied. An implied waiver can be gathered by the conduct of the person who was said to have waived the right. In this case though the respondents raised a contention regarding lack of territorial jurisdiction, they cross-examined the appellant and his witnesses and even examined their witness in part. Hence the respondents could be deemed to have waived their objection as to the territorial jurisdiction of the court. Therefore the Sub-court, Ernakulam, had jurisdiction to try the suit.” 25. In this case though the respondents raised a contention regarding lack of territorial jurisdiction, they cross-examined the appellant and his witnesses and even examined their witness in part. Hence the respondents could be deemed to have waived their objection as to the territorial jurisdiction of the court. Therefore the Sub-court, Ernakulam, had jurisdiction to try the suit.” 25. In the instant case, order No.12 dated 31.7.2009, passed by the learned Trial Court reveals as follows:- “Counsel for both parties filed their hazira and present. Perused the pleadings. Issues were settled. Call on 02.9.2009 for filing of list of witnesses and documents by the parties.” The petitioners’ objection is that issues have not been settled as per Order No.12 dated 31.07.2009. Perusal of page 127 of the lower court record reveals that as many as six issues have been settled. They are as follows: “ISSUES 1. Whether the suit is maintainable? 2. Whether the plaintiff has cause of action to file the suit? 3. Is the suit barred by law of limitation? 4. Has this court jurisdiction to entertain the suit? 5. Whether the plaintiff is entitled to get a decree against the defendants to realize a sum of Rs.1,93,316/-along with P.I. and F.I. at the rate of 9% per annum? 6. To what relief or reliefs, if any, the parties are entitled?” 26. Be that as it may, it is not in dispute that on 6.7.2010 the plaintiff-opp. party filed an affidavit-evidence under Order 18, Rule 4, CPC and the respondents-petitioners cross-examined P.W.1. Hon’ble Supreme Court in the case of Vidyabai & others (supra) held that the trial commences on the date the issues were framed. 27. In view of the above, this Court is of the opinion that the petitioners have waived their right of raising objection as to territorial jurisdiction of trial court and to make a prayer to try that issue as preliminary issue. 28. So far as question no.(iv) is concerned, even if the parties agreed to oust the jurisdiction of one of the two courts having jurisdiction, the Court whose jurisdiction has been ousted, is satisfied that the stipulation would operate harshly and is oppressive in character, inequitable or unfair for ends of justice, it can relieve the parties of bargain. 29. This Court in the case of M/s Surajmall Shibvhagawan Vs. 29. This Court in the case of M/s Surajmall Shibvhagawan Vs. M/s Kalinga Iron Works; 48 (1979) CLT 104 held that ouster of Court’s jurisdiction should not be easily construed and cannot be assumed or presumed very easily. Ouster of jurisdiction must be provided by express words or by necessary or inevitable implications. Merely be mentioning “All subject to Calcutta jurisdiction” by one of the parties at the top of his purchase order, it cannot be said that the jurisdiction of other Courts, which can be legally approached by the other parties under the Civil Procedure Code or under any other law, is ousted by the said words. 30. This Court in the case of Paradeep Port Trust (supra), held as under: “It has now to be accepted as the settled position of law that where a suit can be filed in either of two Courts, as where a part of the cause of action arises within the jurisdiction of the both the Courts or where cause of action arises within the jurisdiction of one Court and the defendants reside in the jurisdiction of the other Court, the parties can agree that any dispute arising between them shall be tried by one of those Courts only. It is also an accepted principle that though the choice of forum made by the parties by consent is to be respected, the enforcement of the choice by the Courts cannot be ruled as imperative in all circumstances. It depends on the facts of each case and taking them into consideration, it is open to the Court to hold that in spite of such an agreement between the parties, since the clause becomes oppressive for the plaintiff, it may not enforce the clause in a particular case. It depends on the facts of each case and taking them into consideration, it is open to the Court to hold that in spite of such an agreement between the parties, since the clause becomes oppressive for the plaintiff, it may not enforce the clause in a particular case. This view finds support from a recent decision of this Court reported in A.I.R. 1984 Orissa-182; 1984 (1) OLR 532-M/s. Patnaik Industries v. Kalinga Iron Works, where relying on several decisions of the Supreme Court and other high Courts, R.C. Pattnaik, J. held as follows : “It is not open to the parties by agreement to confer jurisdiction on a Court with it does not possess under the Code; but where two Courts or more have under the Civil Procedure Code 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 between the parties does not oust the jurisdiction of the Court. It may operate as an estoppel against the parties but it cannot deprive the Court of its power to do justice. Ordinarily, the Court would have regard to the choice of the parties; where, however, the Court whose jurisdiction has been ousted is satisfied that the stipulation would operate harshly, is oppressive in character, inequitable or unfair, for the ends of justice, it can relieve the party of the bargain.” 31. In the present case, the plaintiff-opp. party is a proprietorship concern dealing with products of defendant No.1 Hawkins Pressure Cooker Ltd. The disputed amount being Rs.1,93,316/-, asking the opposite party-plaintiff to file a suit at Mumbai will be prejudicial and oppressive. 32. For the reasons stated above, this Court does not find any infirmity or illegality in the impugned order dated 10.11.2010 passed by 1st Addl. Civil Judge (Sr. Division), Cuttack warranting any interference by this Court in exercise of extra-ordinary power under Article 226 of the Constitution of India. 33. In the result, the CRP is dismissed.