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2016 DIGILAW 424 (RAJ)

Lords Chloro Alkali Ltd v. Bhagwati Salt Company

2016-03-16

SANGEET LODHA

body2016
JUDGMENT : Sangeet Lodha, J. This petition is directed against order dated 8.10.15 passed by the Additional District Judge, Parbatsar in Civil Suit No.39/14, rejecting an application preferred by the petitioners-defendants under Order 14, Rule 2 read with Section 151 CPC. 2. The relevant facts are that the respondents preferred a suit for recovery against the petitioners in respect of the business transactions before the court of Additional District Judge, Parbatsar. The suit is being contested by the petitioners by filing a written statement thereto. In the additional pleas set out in the written statement, the petitioners have taken the stand that as per the conditions of the bill issued by the respondent-firm, the dispute between the parties are subject to the jurisdiction of the courts at Phalodi or Alwar and therefore, the suit preferred by the respondents before the court at Parbatsar, deserves to be dismissed for want of jurisdiction. 3. On the basis of the pleadings, the trial court has framed the issues, including the issue no.3 regarding the jurisdiction of the court to entertain the suit, which reads as under: ^^vk;k nkok ekuuh; U;k;ky; ds {ks=kf/kdkj dk ugha gS\ &izfroknh** 4. During the pendency of the suit, the petitioners made an application under Order 14, Rule 2 read with Section 151 CPC, for determination of the issue no.3 as a preliminary issue. The application was contested by the respondents herein, taking the stand that the question with regard to jurisdiction of the court is a mixed question of law and facts and therefore, cannot be decided as a preliminary issue. 5. After due consideration of the rival submissions, the court below arrived at the finding that the issue regarding the jurisdiction of the court raised by the defendants, the respondents herein, is a mixed question of law and facts and therefore, cannot be decided as preliminary issue and accordingly the application preferred has been rejected. Hence, this petition. 6. 5. After due consideration of the rival submissions, the court below arrived at the finding that the issue regarding the jurisdiction of the court raised by the defendants, the respondents herein, is a mixed question of law and facts and therefore, cannot be decided as preliminary issue and accordingly the application preferred has been rejected. Hence, this petition. 6. Learned counsel appearing for the petitioner contended that the petitioners have taken the specific stand in the written statement that the purchase orders, which form basis of transactions between the parties, contain specific condition with respect to dispute resolution accepted by both the parties and therefore, there being no factual dispute, the issue with regard to jurisdiction of the court to entertain the suit, remains a pure question of law and deserves to be decided as a preliminary issue. In support of the contention, learned counsel has relied upon the decision of this court in the matters of "Hulas Chand v. Additional District Judge No.1, Bikaner", 2011(4) RLW 2799 and a decision of the Hon'ble Supreme Court in the matter of "A.V.M. Sales Corporation v. Anuradha Chemicals Private Limited", (2012) 2 SCC, 315. 7. I have considered the submissions of the learned counsel for the petitioners and perused the material on record. 8. Indisputably, in terms of provisions of Order 14, Rule 2 CPC, the court is required to try the issue of jurisdiction as preliminary issue only when it is an issue of law. Obviously, where the issue of jurisdiction is mixed question of law and facts requiring evidence to be recorded by both the sides, the same cannot be decided as preliminary issue. In the considered opinion of this court, in the instance case, the question of dismissal of the suit for want of jurisdiction would arise only when it is proved that the purchase order contains a condition regarding the dispute resolution between the parties and the same conclusively determines the territorial jurisdiction of the court to decide the lis between the parties and thus, the issue of jurisdiction depending on question of fact has to be decided on the basis of the evidence to be led by both the parties. In this view of the matter, the court below has committed no error in holding that the issue of jurisdiction raised on behalf of the defendants is a mixed question of law and facts and cannot be decided as preliminary issue. 9. Coming to the decision of this court in Hulas Chand's case (supra) relied upon by the petitioners, in a matter arising from the order passed by the trial court, rejecting an application under Section 20 read with Section 151 CPC, the court taking into consideration the specific clause inserted in the agreement arrived at between the parties providing for jurisdiction of the court to decide the dispute arising between the parties, held that the clause as inserted in the agreement confers exclusive jurisdiction to the competent court at Jabalpur to adjudicate the dispute arisen between the parties. Suffice it to say that the view taken by this court as aforesaid, is based on the necessary facts proved and therefore, the same does not help the petitioners in any manner. 10. In A.V.M. Sales Corporation's case (supra), the Hon'ble Supreme Court categorically held that the parties by agreement cannot confer jurisdiction on a court which has no territorial or pecuniary jurisdiction to entertain a lis, however, agreement to limit jurisdiction of one only of the courts otherwise having jurisdiction over lis to the exclusion of others, is valid. Obviously, before determination of the issue regarding the exclusion of jurisdiction of the courts other than the courts at Phalodi or Alwar on the basis of the alleged clause incorporated in the purchase order, the court has to determine that the said courts have territorial jurisdiction to entertain the lis between the parties. In this view of the matter, in the considered opinion of this court, in the instant case, unless the basic facts are proved on the basis of the evidence to be led by the parties, the question with regard to the jurisdiction of the court to entertain the suit, cannot be decided. Thus, the decision of the Hon'ble Supreme Court in A.V.M. Sales Corporation's case (supra) also does not help the petitioners in any manner. 11. In the result, the petition fails, it is hereby dismissed in limine.