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2022 DIGILAW 147 (JK)

Cadila Pharmaceuticals Ltd. v. Anil Dogra

2022-04-01

TASHI RABSTAN

body2022
JUDGEMENT/ORDER : 1. Petitioners have come up before this Court through the medium of instant petition challenging the order dated 30.10.2012 passed by the learned Additional District Judge, Jammu (for short, trial Court) where by learned trial Court while framing the issues also decided a preliminary issue relating to jurisdiction of the trial Court to hear and decide the suit which has been decided against the petitioners-defendants holding that the same was mixed question of fact and law. A prayer has been made for setting aside the said order dated 30.10.2012 passed by the trial Court. 2. Facts leading to the institution of the suit before the trial Court, in short, are that the respondent-plaintiff came to be appointed as Medical Representative of the defendant company with Headquarter at Shimla, in the year 1988 and as per the terms of appointment, all or any dispute arising with regard to employment of respondent-plaintiff was subject to the restricted jurisdiction of the Courts/Tribunals at Ahmedabad (Gujarat). It is alleged that the services of respondent-plaintiff were terminated vide order dated 30.07.2004 and aggrieved of the same, he filed a civil suit before the trial Court seeking declaration to the effect that the order of termination dated 30.07.2004 is null and void, in operative, in effective and against law that is required to be set aside; with a consequential relief of mandatory injunction directing the petitioners-defendants to reinstate the respondent-plaintiff on the post of Area Business Manager. The respondent-plaintiff has also sought alternative relief of award of compensation from the petitioners-defendants. 3. Written statement was filed by the petitioners-defendants raising preliminary objection challenging the jurisdiction of the Court to hear and decide the suit in view of the Clause 9-XXII of Agreement of Appointment, which laid restrictive jurisdiction of the Courts at Ahmedabad (Gujarat) in case of any dispute. Learned counsel for the petitioners-defendants has submitted that the trial Court vide impugned order dated 30.10.2012 while deciding the preliminary issue of jurisdiction has fallen in error by holding that the same was mixed question of fact and law whereas under Clause 9-XXII, it has been specifically mentioned that all the disputes arising out of appointment/ employment shall be governed under the said clause and the Courts/Tribunals at Ahmedabad (Gujarat) only have the power and jurisdiction to adjudicate upon the said disputes. Therefore, the respondent-plaintiff, by virtue of agreement of appointment is restricted to approach the Court elsewhere except Ahmedabad (Gujarat). Learned counsel further submitted that once the parties are governed by an agreement and there is a stipulation contained therein which specifically lays down the jurisdiction of a particular Court, it no longer remains the issue of fact and the trial Court should have considered this fact and decided the preliminary issue in accordance with the terms of contract. Thus, the findings returned by the learned trial Court on the issue of jurisdiction is not only contrary to the agreement of appointment, but, also is against the settled proposition of law which is not sustainable in the eyes of law. It is urged by learned counsel for the petitioners-defendants that the findings of the learned trial Court that the issue of jurisdiction requires evidence is misplaced and without any merit because the contract in question is neither hit by Section 28 of the Contract Act nor oust the jurisdiction of the Court which the Court otherwise has. It does not even vest the jurisdiction upon the Court which the Court lacks. To buttress his arguments, learned counsel for the petitioners-defendants has relied upon the following judgments:- (i) 1971 (1) SCC 286 titled Hakam Singh v. Gammon India Limited; (ii) (2002) 9 SCC 613, Shriram City Union Finance Corporation Ltd. v. Rama Mishra; (iii) (2005) 10 SCC 704 , titled Shree Subhlaxmi Fabrics (P) Ltd. v. Chand Mal Baradia & Ors. 4. On the other hand, it is contended on behalf of the respondent-plaintiff that a bare perusal of the Clause 9-XXII of the Agreement does not ipso facto and specifically include the condition regarding the termination of the employee once there is no conclusive and exclusive reference of the termination being included in the said clause, therefore, without leading evidence and establishing before the Court that the termination has been included in the said clause, the learned trial Court has rightly rendered the finding that this being a mixed question of fact and law has to be decided on the basis of the pleadings of the parties as well as the evidence to be led thereupon by the respective parties so as to arrive at a just and fair conclusion. It is also contended that since a part of cause of action has accrued to the plaintiff at Jammu, as the order of termination was served upon the plaintiff at Jammu, therefore, in terms of the Section 20(c) of the Code of Civil Procedure, the Courts at Jammu would have jurisdiction as a part of cause of action accrued within the territorial jurisdiction at Jammu. It is further contended on behalf of respondent-plaintiff that the judgment passed by the learned trial Court holding that Section 28 of the Contract Act declares any such agreement as void if such agreement restricts and oust the jurisdiction of the competent Court, therefore, the submission of the petitioners-defendants that Clause 9-XXII specifically oust the jurisdiction of the Court at Jammu is not legally sustainable, as such, this clause of the agreement is void in terms of Section 28 of the Contract Act. Moreso, the respondent-plaintiff has sought the relief of compensation on account of his illegal termination, therefore, it is urged on behalf of the respondent-plaintiff that on the basis of the aforesaid submission, the learned trial Court vide order dated 30.10.2012 has rightly held that the aforesaid issue involves mixed question of fact as well as law which, cannot be decided at the preliminary stage and requires evidence to be led so as to come to the conclusion, as to whether the jurisdiction of the Court is ousted or not. In support of his arguments, learned counsel for the respondent-plaintiff has placed reliance on the following judgments:- (i) 1975 AIR (Guj) 76 titled Rai and sons Pvt. Limited v. Trikamji Kanji Gajjar and sons; (ii) AIR 2019 SC 1163 , titled Abhay Manohar Sapre, 5. Heard learned counsel for the parties and perused the record. 6. It is not in dispute that the services of respondent-plaintiff were terminated vide order dated 30.07.2004. Aggrieved thereof, he filed a civil suit before the court of learned Additional District Judge, Jammu seeking a decree of declaration to the effect that order of termination dated 30.07.2004 is null and void, in operative, in effective and against law that is required to be set aside; with a consequential relief of mandatory injunction directing the defendant authorities to reinstate the respondent-plaintiff on the post of Area Business Manager with alternative relief of awarding compensation to the respondent-plaintiff. Petitioners-defendants filed their written statement and took a preliminary objection regarding the lack of jurisdiction of the trial Court in view of the Clause 9-XXII of agreement of appointment laying restrictive jurisdiction at Ahmedabad (Gujarat), but, the learned trial Court vide impugned order dated 30.10.2012 has observed that Clause 9-XXII does not specifically includes termination of any employee so, it can be decided during the course of trial as to whether termination of an employee would also come under the said clause or not. Besides, trial Court further observed that part of cause of action has accrued to the respondent-plaintiff at Jammu as he received termination order at Jammu, so Jammu Court has also got jurisdiction in terms of Section 20 sub section (c) of CPC. However, learned trial Court instead of deciding preliminary objection raised by other side has observed that decision on said issue includes mixed question of fact and law, therefore, this issue shall be decided at the time of passing of final judgment after the parties lead evidence. As per learned counsel for the petitioners-defendants that all the disputes and differences arising out of the appointment letter/employment are governed in accordance with Clause 9-XXII of the agreement of appointment and the jurisdiction of the Courts to adjudicate upon the disputes has been restricted to the Courts/Tribunals at Ahmedabad (Gujarat) only, thus, the respondent-plaintiff by virtue of agreement is precluded from filing a suit other than restricted place of suing, i.e., Ahmedabad (Gujarat) and therefore, the trial Court had no jurisdiction to try and adjudicate upon the dispute and the findings returned by the learned trial Court are contrary to the agreement which is not sustainable in the eyes of law. 7. In Shree Subhlaxmi Fabrics (P) Ltd. v. Chand Mal Baradia & Ors., reported in (2005) 10 SCC 704 , the Hon'ble Supreme Court of India held as under:- "17. In Hakam Singh v. Gammon (India) Ltd. 1971 (1) SCC 286 , it has been held that it is not open to the parties to confer by their agreement jurisdiction on a court which it does not possess under the Code. In Hakam Singh v. Gammon (India) Ltd. 1971 (1) SCC 286 , it has been held that it is not open to the parties to confer by their agreement jurisdiction on a court which it does not possess under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or a proceeding, an agreement between the parties that the disputes between them shall be tried in one of such courts is not contrary to public policy and that such an agreement does not contravene Section 28 of the Contract Act. In A.B.C. Laminart (P) Ltd. v. A.P. Agencies 1989 (2) SCC 163 , it was held as under:- 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. 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. Where 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 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 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 'expressio unius est exclusion 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". 8. As per the well settled principle of law, the inherent lack of jurisdiction is when subject matter to be decided is wholly outside the jurisdiction of the court of law to render such decision, which if passed, is a nullity. It has therefore to be properly construed". 8. As per the well settled principle of law, the inherent lack of jurisdiction is when subject matter to be decided is wholly outside the jurisdiction of the court of law to render such decision, which if passed, is a nullity. This jurisdictional defect is of the highest degree and liable to be set aside at any stage of proceedings. In such a case the appellate court would interfere with the decree passed and will set aside it as such a decree is coram non-judice and void. There are catena of judgments regarding repercussions on suits under lack and inherent lack of jurisdiction. In the former case which is mostly related to a defect in territorial or pecuniary jurisdiction, the decision of the Court does not vitiate the decree and regard it as a nullity. However, in the latter case, which is mostly related to defect in subject matter, jurisdiction and decree passed in such case is compulsorily nullity and void ab initio. 9. In the present case, the approach of the trial Court is not correct. The plea of jurisdiction goes to the very root of the matter. The petitioner-defendant has raised a preliminary objection with regard to the jurisdiction because jurisdiction is crucial and radical issue and it is mandatory to first resolve it before proceeding further in the matter. Once there is a defect in competence, it is fatal and the proceedings are nullity, therefore, once preliminary issue with regard to jurisdiction is raised, it must be decided immediately before proceeding further. This is because if a Court lacks jurisdiction to hear a case, but goes ahead to hear the case, no matter how well the case is decided, the entire proceedings would amount to nullity. 10. Viewed thus, this petition is allowed. Impugned order dated 30.10.2012 passed by the trial Court is set aside. The case is remanded back to the learned trial Court with a direction to first decide the preliminary objection raised by the petitioners-defendants with regard to jurisdiction of the Court and thereafter proceed ahead in the matter in accordance with law. 11. Disposed of as above. 12. Record summoned from the trial Court be returned along with copy of this order.