Amitava Roy, J.
1. The petitioners seek a declaration that the Court of the learned Civil Judge (Senior Division) No. 1, Kamrup, Guwahati lacks territorial jurisdiction to try Title Suit No. 101/1996 instituted by the Opposite Party. They contend that, inspite of the objection to its competence having been raised at the earliest, the learned Court below has failed to attend to the plea. The supervisory jurisdiction of this Court under Article 227 of the Constitution of India has thus been resorted to.
2. I have heard Mr. S.R. Bhattacharjee, Senior Advocate assisted by Mr. T.K. Ghosh and Mr. S. Bhattacharjee, Advocates for the petitioners and Mr. S.R Roy, Advocate for the Opposite party.
The factual background of the aforementioned suit may, at the threshold, be stated. The petitioners, on 27.02.1990 had floated a tender inviting sealed bids for supply of 5000 K. Ms 30 Sq. mm 'Weasel' conductors (H 0037008) in connection with Minor Irrigation Projects under the World Bank Scheme. The Opposite Party having responded to the process, it was eventually selected and was favoured with the purchase order dated 22.11.1990 for delivery of the aforementioned materials. The Opposite Party accepted the order along with the accompanying terms and conditions on 18.12.1990. According to the petitioners, the place of execution of the contract was at Calcutta. It was, inter alia, also agreed upon between the parties that in case of differences and disputes between them the jurisdiction of the forum concerned would be at Calcutta. Provision for reference of such disputes or differences to arbitration was also made. The petitioners have alleged that due to defaults on the part of the Opposite Party, it could not supply the entire quantity of the materials as per the specification in time for which the project suffered. Their categorical case is that, the tenders were accepted for consideration at Calcutta and the offer for the contract was also made there. The acceptance of the contract and the execution thereof was also at Calcutta. They have therefore, maintained that the process as a whole, was conducted at Calcutta and that at no stage, any part of it had any association with the State of Assam.
The Opposite Party inspite of several correspondences, having failed to supply the materials in full, the petitioners on 15.06.1993 terminated the contract where after the former instituted a suit being Title Suit No. 30/1993 at Guwahati for a decree inter alia for realization of Rs. 9,72,773.67 which was eventually dismissed on 22.01.1996. The Opposite Party thereafter on 14.06.1996 instituted another suit being Title Suit No. 101/1996 in the Court of the Civil Judge (Senior Division) No. 1, Kamrup, Guwahati amongst others for a declaration that the letter of termination of the contract was illegal, null and void and for a decree for realization of Rs. 9,72,773.67 together with the interest and other money claims.
The petitioners have alleged that the learned trial Court without ensuring that the copy of the plaint and other relevant documents had been served on them and/or fixing a date of hearing, decreed the suit ex parte on 15.12.1999.
The petitioners thereafter filed three petitions; (1) for setting aside the ex parte decree, (2) under Section 5 of the Limitation Act, 1963 for condonation of the delay in filing the petition for setting aside the ex parte decree and (3) for staying the Title Execution Case No. 9/2000 arising out of Title Suit No. 101/1996. Thereafter, the learned Court below by order dated 19.08.2000 set aside the ex-parte decree by imposing certain conditions. The petitioners have asserted that though in all, the said three applications they had taken the plea of want of jurisdiction of the Court below, the same was not considered at all.
3. Thereafter being aggrieved by several orders passed by the learned trial Court from time to time, the petitioners approached this Court. They also filed their written statement raising the plea of lack of territorial jurisdiction of the learned Court below in terms of Clauses 16 and 19 of the contract agreement They also on 15.02.2002 filed another application in the suit for deciding the issue of maintainability thereof on the ground of lack of territorial jurisdiction of the Court. According to them, though thereafter the learned trial Court granted time to the Opposite Party to file its objection and the same was submitted ultimately on 29.05.2002, the application was not heard on the ground that the petitioners had not deposited the amount in terms of the order dated 19.08.2000 setting aside the ex parte decree. Situated thus, the petitioners have approached this Court with the grievance of failure of the learned trial Court to decide the issue of its jurisdiction.
4. The Opposite Party/Plaintiff in its affidavit, while asserting that a part of the cause of action for the suit had arisen within the territorial jurisdiction of the learned Court below, has pleaded that the jurisdiction of the Civil Court cannot be ousted by a contract. It contended that the supply order was placed with it at Guwahati and the supplies were made by it from within the territorial jurisdiction of the learned Court below. It denied the allegation that the suit had been decreed ex parte without furnishing a copy of the plaint and the documents to the petitioners or fixing a date of hearing. It maintained that though the petitioners were represented by their learned Counsel and were duly supplied with the plaint and other documents, no response was filed inspite of several opportunities and therefore, the suit was heard ex parte and decreed on 15.12.1999. It indicated that the order dated 19.08.2000 setting aside the ex parte decree was based on a consensus of the parties and that a challenge thereto in Civil Revision Petition 39/2002 having been negated by this Court, the question of maintain-ability of the suit was no longer open to be examined further. It maintained that the petitioners had failed to raise objection to the territorial jurisdiction of the learned Court below at the earliest and that the petitions filed immediately after the ex parte decree did not contain any assertion to that effect. The petitioners did not pursue the petition dated 15.02.2002. Moreover, they not having complied with the order of the learned trial Court to deposit the agreed amount, they were not entitled to any relief in the instant proceeding. The answering Opposite Party stated that as one of the issues settled by the learned Court below in the suit pertains to its maintainability and the suit at present is at the stage of the arguments, no interference with the proceeding is warranted.
5. Bhattacharjee, has assertively contended that it being apparent on the face of the contract agreement, more particularly, Clause 19 thereof that the learned Court below lacks jurisdiction to try the suit, it ought to have in the face of the persistent objections raised, decided the question as a preliminary issue. The learned Senior Counsel in this regard invited the attention of this Court to the averments made to the above effect in the applications filed by the petitioners as well as in their written statement. Mr. Bhattacharjee urged, that the learned trial Court inspite of such categorical and unambiguous plea bearing on the jurisdiction failed to draw up an issue in that regard. Further, the stand that the deposit in terms of the order dated 19.08.2000 was a pre-condition to decide the question of jurisdiction was patently erroneous in law. As the objection raised by the petitioners if upheld, would lead to the dismissal of the suit in limine, Mr. Bhattacharjee contended that the failure on the part of the learned Court below in this regard warrants the exercise of this Court's supervisory jurisdiction under Article 227 of the Constitution of India in the interest of justice to prevent the abuse of the process of law. Mr. Bhattacharjee, in order to buttress his arguments, placed reliance on the decisions in--
(1) : (1966)IILLJ144SC , Bahrein Petroleum Co. Ltd., Appellants v. P.J. Pappu and Anr. Respondents
(2) : (2002)10SCC101 , Arun Agarwal, Appellant v. Nagreeka Exports (P) Ltd. and Anr. Respondents;
(3) AIR 2002 SC 2402, Shritram City Union Finance Corporation Ltd. Appellant v. Rana Misra, Respondent;
(4) : AIR2006SC1828 , Mayar (H.K.) Ltd. and Ors. v. Owners & Parties, Vessel M.V. Fortune Express and Ors.
(5) AIR 1983 Allahabad 450, Smt. Kaziz Fatima (deceased) and Anr. Appellants v. Shah Nairn Ashraf, Respondent.
6. Mr. Roy refuted the above contending that the learned Court below having framed an issue on the maintainability of the suit which would necessarily comprehend the aspect of its jurisdiction as well, the grievance raised is frivolous. The petitioners not having, at any point of time, prayed for framing of a preliminary issue on jurisdiction, they have no room to be aggrieved on that count. The Court under Order 14, Rule 2 CPC in such an eventually is not obliged to frame such an issue, he urged. Moreover, the reservation of want of jurisdiction not having been raised at the earliest, the petitioners' grievance at this belated stage is untenable. According to Mr. Roy the order setting aside the ex parte decree being founded on the consent of the parties, the learned Court below rightly insisted on the deposit in terms thereof. According to him, a part of the cause of action having arisen at Guwahati, the same was maintainable here and that Clause 19 of the contract agreement could not over ride the relevant provisions of the Civil Procedure Code in this regard. He argued that the parties by agreement could not have ousted the jurisdiction of the Court below otherwise competent to decide the suit. Not only it was impermissible for the petitioners to dispute their consent referred to in the order dated 19.08.2000 before this Court, it being a recorded fact, having regard to the scope of interference under Article 227 of the Constitution of India as well, the instant petition is not maintainable in law. Mr. Roy emphasized that the petitioners have participated in the suit and approached this Court every now and then on diverse issues and thus they are now estopped from questioning the jurisdiction of the learned Court below having implicitly submitted thereto. The learned Counsel rested his contentions on the decisions of the Apex Court in--
(1) 2003 AIR SCW 2590, Ramesh Chanel Artdawatiya, Appellant v. Aanti Panjwani, Respondent;
(2) 2003 AIR SCW 930, Sadhana Lodh, Appellant v. National Insurance Co. Ltd. and Anr. Respondents;
(3) : AIR2003SC3028 , Central Bank of India, Appellant v. Vrajlal Kapurchand Gandhi and Anr. Respondents;
(4) 2004 AIR SCW 2748, Ram Bali, Appellant v. State of Uttar Pradesh, Respondent;
7. Mr. Bhattacharjee in reply has insisted that as the proceeding of a Court of law lacking in jurisdiction would be for all intents and purposes non est, the plea of waiver and estoppel is misconceived. The petitioners having registered their plea against the jurisdiction of the learned trial Court from the very inception thereof, the same ought to have been adjudicated upon as a preliminary issue.
8. Before adverting to the competing arguments, it would be expedient to deal with a few fringe facts.
9. The ex-parte decree in the suit passed on 45.12.99 was set aside by the learned Court below by its order dated 19.08.2000 recording it to be based on the consent of the parties. Thereunder, the amount of Rs. 10,00,000/- deposited by the petitioners was to be released in favour of the Opposite Party on the condition that the latter would furnish adequate security for the said amount. Further, a sum of Rs. 40,00,000/- was to be kept apart by the petitioners in their account to be remitted to the Court as and when ordered. The petitioners having unsuccessfully endeavoured to get the said order modified, approached this Court with Civil Revision Petition 39/2002 impugning the order dated 21.06.2001 rejecting their prayer to the said effect. As the petition before this Court was barred by time, an application for condonation of delay was also filed. This Court by order dated 10.09.2002 declined to condone the delay and rejected the revision petition. In doing so, this Court noticed that the petitioners did not question the validity of the order dated 19.08.2000 by approaching any higher forum and rejected the plea that it was not a consent order.
10. As during the pendency of the suit, the learned Court below by order dated 17.08.2002 had directed attachment of the movable and immovable properties of the petitioners including their bank account for realization of the outstanding amount of Rs. 40,00,000/-, Civil Revision Petition 271/2002 was filed before this Court. By order dated 01.10.2002 the same was rejected. Noticing, however, that meanwhile, an amount of Rs. 20,00,000/- had already been deposited in favour of the Opposite Party, this Court directed that the balance amount of Rs. 20,00,000/- under attachment would not be realized till the disposal of the suit.
11. The petitioners had also submitted an application under Order 23, Rule 3 CPC which being rejected on 30.09.2002, they filed Civil Revision Petition 376/2002. Their application under Section 8 of the Arbitration and Conciliation Act, 1996 and their prayer for invoking Section 89 of the Civil Procedure Code having been rejected by the trial Court by orders dated 11.11.2002 and 06.01.2003 respectively, the petitioners assailed the same in Civil Revision Petition 406/2002 which however, was rejected on 03.02.2003. Civil Revision Petition 410/2002 was thereafter filed seeking a direction to the Opposite Party to furnish bank guarantee of Rs. 30,00,000/- before withdrawing the said amount. Their prayer for adjournment in the suit and opportunity for adducing evidence as prayed for having been rejected, they filed Civil Revision Petition 54/2003 for redress. By order dated 28.05.2003 therein, further proceeding of the suit was stayed. Subsequent thereto, by order dated 18.05.2004, Civil Revision Petition 376/2002, 410/2002 and 54/2003 were closed as infructuous. Misc. Case Nos. 1233, 1234 and 1235 of 2004 filed for conversion of the aforementioned Civil Revision Petitions into ones under Article 227 of the Constitution of India were also closed as WP(C) Nos. 3286/2004, 3287/2004 and 3288/2004 ventilating the same grievances came to be instituted.
12. Reverting to the facts relevant for dealing with the arguments advanced, it is notice-able that the purchase order dated 22.11.1990 embodying the terms and conditions governing the contract contained Clause 19 which read as hereunder:
19. Jurisdiction:
For the purpose of the contract, Calcutta shall be the jurisdiction.
A bare reading of the plaint though reveals the Opposite Party's reservation about the validity of the said clause, no relief has been prayed for by it in the suit against the same. The averments in the plaint unmistakably demonstrate the Opposite Party's knowledge of the said clause. Having regard to the language of the stipulation and the setting in which it appears, it is obvious that the parties had concurred thereto. The three applications filed by the petitioners on 23.06.2000 being MC Nos. 3086/2000,3087/2000 and 3088/2000 for setting aside the ex parte decree dated 15.12.99, condonation of delay in filing the same and staying further proceedings in Title Execution Case No. 9/2000, all registered an objection to the territorial jurisdiction of the learned Court below. Whereas in the application for setting aside the ex parte decree, the petitioners had contended that the claim of the Opposite Party was not triable by the learned trial Court being deficient in jurisdiction, it was asserted in the application for suspension of the proceeding of the execution case that the decree was a nullity having been passed by a Court lacking pecuniary or territorial jurisdiction.
13. In their written statement filed on 22.09.2000 as well, the civil to the jurisdiction of the learned trial Court was taken categorically. For ready reference it would be apt to extract the relevant portions thereof:
4. That the defendants state that the plaintiff fraudulently filed the instant suit against the defendants in the Ld. Court, Guwahati which is beyond the jurisdiction as per Clause 19 of the aforesaid order even by suppressing the jurisdiction point as mentioned in Clause 19 of the aforesaid purchase order the plaintiff filed this suit making a concocted story without having any reasonable nexus with a view to humiliate the defendants who is a statutory body of the state as such the instant writ is liable to be dismissed..
10. That the suit being T.S. No. 101 of 1996pend-ing before this Ld. Court for adjudication has not pecuniary or territorial jurisdiction in terms of the said purchase order being a contract made by and between the parties herein and as such the instant suit is not sustainable in law..
27. That with regard to the statement made in paragraph 82 of the plaint of instant suit of the plaintiff, defendants state that the plaintiff violating the Clause 19 of the purchase order filed the instant suit before this Court Ld. Court against the defendants with a view to humiliate and harass the defendants accepting the Purchase order being No. P & S/WBSEB/MIP/IDA-1619/Conductor/SC/138 P5 dated 22.11.1990 of the defendants without raising any sorts of objection whatsoever and as such the instant suit is not maintainable.
14. In the issues framed by the learned Court below on 23.07.2001, one on the maintainability of the suit was framed as hereunder:
Whether the suit is maintainable in its present form?
No specific issue on its jurisdiction was settled. Admittedly, no preliminary issue on this count as well, was framed for disposal before talking up the rest. In their application filed on 15.02.2002 registered as petition No. 528/2002 as well, the maintainability of the suit was questioned by the petitioners on the ground of lack of jurisdiction of the learned trial Court entreating it to pass appropriate orders thereon having regard to the relevant clause in the agreement between the parties. The petitioners referred to their objection on the said count already taken in their earlier applications as well in the written statement. The order sheet indicates that the learned Court below thereafter granted several opportunities to the Opposite Party to file written objection to the said application which eventually was filed on 29.05.2002. It however, transpires from the orders dated 14.05.2002, 29.05.2002 and 06.06.2002 that the objection hearing was not taken up as the petitioners had not deposited the amount required of them in terms of the order dated 19.08.2000.
15. Having regard to the sequence of events noticed hereinabove, the contention that the plea of want of jurisdiction of the learned Court below had not taken at the earliest cannot be sustained. The petitioners have been persistent on their challenge to the jurisdiction of the learned Court below. Not only they registered their remonstrance to the said effect in the applications filed immediately after the ex parte decree, they pursued it in their written statement in no uncertain terms. The application dated 15.02.2002 was only supplementary to the above.
16. The decision of the Apex Court in Ramesh Chand Ardawatiya (supra) requiring that an objection to the exclusion of the Civil Court's jurisdiction should be taken at the earliest is of no assistance to the Opposite Party in the present facts.
17. A close scrutiny of the impingement registered in the Civil Revision petitions already disposed of by this Court does not proclaim any adjudication on the issue of jurisdiction of the learned Court below. The issues raised therein had no remote nexus therewith and from the decisions rendered therein no affirmation latent or patent of the jurisdiction of the learned Court below is discernible. Determinations in the Civil Revision petitions turned on their own facts and the controversy presented thereby and had no bearing on the question of jurisdiction of the Court below. No inference in favour of the Opposite Party in this regard is permissible in law. The issue of jurisdiction resultantly is still open to be decided on merits.
18. To reiterate, though the Opposite Party had in the plaint impeached Clause 19 to be invalid, no declaration was sought for in the suit for adjudging the same illegal, null and void. On such a pleading simpliciter, the Opposite Party, in my view, cannot avoid the said covenant. Evidently, it is not a case of the Opposite Party that the trial Court at Calcutta has no jurisdiction to entertain a suit regarding the differences and disputes between the parties pertaining to the contract. According to it, having regard to the different stages of the process, a part of the cause of action had arisen within the territorial jurisdiction of the learned Court below rendering the suit filed by it maintainable in law.
19. In Ramesh Chandra Ardawatiya (supra), the Apex Court held that the question of jurisdiction has to be determined primarily on the averments made in the plaint.
20. The appellant in Shubedar Ram v. Union of India, questioned the jurisdiction of the Court of Civil Judge (Junior Division), Bhubaneswar in entertaining a suit filed by the respondents challenging the action of taking over of the vehicle obtained by him on lease. The appellants contended that in the face of specific clause in the related agreement, the Court at Calcutta only had the jurisdiction to try any dispute arising out of the contract. The Apex Court ruled that it is open for the parties to fix the jurisdiction of a competent Court to have their dispute adjudicated by that Court alone. Elucidating the proposition, it held that if one or more Courts have jurisdiction to try any suit, it is open for the parties to choose one of such competent Courts to decide their disputes.
21. Elaborating on the above principle, further it was held in Major (H.K.) (supra) that when certain jurisdiction is specified in the contract, the intention to exclude others, may in such case be inferred.
22. In Bahrein Petroleum Company Ltd. (supra), it was held in principle, that if the defendant allows the trial Court to proceed to pronounce its judgment without raising the objection as to the place of suing and takes the chance of a verdict in his favour, he clearly waives the objection and will not be subsequently permitted to raise it. Long and continued participation by the defendant in the proceedings without any protest may, in appropriate case, amount to a waiver of the objection, it declared.
23. The totality of the facts as obtained in the case in hand and the judicially evolved precepts as above, render the issue with regard to the jurisdiction of the learned Court below seriously contentious.
24. In the above view of the matter, I am of unhesitant opinion that the learned trial Court having regard to the upshot of its decision thereon ought to have framed an issue on its jurisdiction and decide the same before proceeding with the suit. As it is the framed issue on maintainability simpliciter, considering the pleaded avowal of the parties is not truly expressive of the debate to be analyzed. An issue of jurisdiction, if raised, ought to be decided as a preliminary issue as has been held by the Apex Court in Arun Agarwal (supra). In the reported decision, the respondents plaintiffs had filed a suit before the High Court of Calcutta on its original side for recovery of Rs. 87,20,000/- from the appellants defendants. The respondents plaintiffs moved an application under Chapter-XIII-A of the Rules for summary trial of the suit. Though the appellants had taken objection against the jurisdiction of the Court, it was held that the same would be decided at the hearing of the suit. The High Court directed the appellants to furnish Rs. 55,00,000/- by way of bank guarantee failing which there would be a decree for the principal amount of Rs. 55,00,000/-. Upholding the challenge to the said order, the Apex Court remitted the case back to the High Court with a direction to decide the question of jurisdiction of the Court as a preliminary issue.
25. Weighing the pleadings of the parties on the aspect of jurisdiction and considering the significance of the decision thereon, I am of the firm opinion that an issue on the jurisdiction of the learned Court below ought to be framed and decided before proceeding with the suit any further. The pronouncement of the Apex Court in Sadhana Lodh (supra) delineating the restricted scope of the applicability of Article 227 of the Constitution of India, in the present panorama of facts does not advance the case of the Opposite Party. A decision on the issue raised would have a definite bearing on the suit and therefore, the learned Court below ought to have decided the same as a preliminary issue. Considering the tenacity and consisting with which the petitioners had pursued their objections with regard to the jurisdiction of the learned trial Court, their repeated approaches to this Court with various other grievances and the verdicts thereon would not connote abandonment of their said plea. Likewise, pendency of the other writ petitions before this Court wherein no question of jurisdiction has been raised is no bar for adjudication and decision on the said issue. As a matter of fact, it appears to be a legal imperative to attend to the same forthwith. Contentions to the contrary do not merit acceptance.
26. This petition therefore stands disposed with a direction to the learned Court below to frame a specific issue on its jurisdiction and answer the same on merit after hearing the parties before furthering the suit. It would be open for the parties to apply to the Court for adducing evidence in support of their respective assertions on this issue and if the same is done, appropriate orders in accordance with law would be passed as deemed fit. In exercise of powers under Article 227 of the Constitution of India, this Court is not inclined to undertake the above exercise at this stage as therefore a probe into factual details maybe warranted. Though WP(C)Nos. 3286/2004, 3287/2004 and 3288/2004 had been listed together with the instant petition, having regard to the determinations as above, the same would await the decision of the learned trial Court on the issue as ordered. As the suit is a long pending one, the learned trial Court would endeavour to decide the issue of jurisdiction at the earliest and in no case later than Six (6) weeks from the date of receipt of the lower Courts records.
27. The petition is partly allowed. The office would send down the records of the suit immediately. No costs.