Judgment:
1. This appeal by the plaintiff is against the confirming decree in a suit for permanent injunction restraining the defendant from interfering, with the plaintiff's possession of a truck.
2. Shortly stated, the plaintiff's case is that on 26-9-1973 he purchased the truck bearing, No. A.P.S. 2707 corresponding to the registration No. O.R.K. 3031 of the erstwhile district of Koraput in Orissa for a sum of Rs. 71,267.56 from M/s. Ramadas Motor Transport (Private) Limited, Kaki-nada in the State of Andnra Pradesh. As he had no sufficient fund, he approached the defendant who is a Financier and Professional Money Lender to advance him loan for the purchase of the said truck and the defendant advance a sum of Rs. 60,000/- charging Rs. 15,400/- towards interest. The entire amount of Rs. 75,400/- was agreed to be liquidated in thirty monthly instalment of Rs. 2,600/-, the first instalment commencing from 26-11-1973. The defendant took the signature of the plaintiff in some blank docu-ments and retained them with him. As per the agreement, although the plaintiff paid all the instalments, he received a notice from the defendant on 1-10-1976 calling, upon him to pay a sum of Rs. 12,483/- towards extra him charges and on 20-11-1979 one Rashid Khan an employee of the- came to Jeypore and threatened to seize the truck. Such action on the part of the defendant led the plaintiff to file the suit for the relief aforestated.
3. The defendant denied the ownership of the plaintiff over the truck in question and also the transaction concerning money to be a loan. According to him, he paid Rs. 70,794.34 paise to M/s. Ramdas Motor Transport (Private) Limited on 26-5-1973 for purchase of the truck in question and. the truck was given on hire to the plaintiff under the hire purchase agreement on 26-9-)973. The plaintiff possessed the truck as hirer of the defendant as per terms of the hire purchase agreement and not as owner thereof and agreed to pay Rs. 2,600/- per month as hire charges commnecing from 26-11-1973. It was further agreed that if the plaintiff would fulfil the conditions as laid down in the hire-purchase agreement, he could exercise the option to become the owner of the said vehicle. The plaintiff also undertook to pay Re. 1/- per Rs. l,000/- per day as extra charge for the delay in payment of monthly instalments and also costs or other charges for recovery of the hire charges. As there was delay in payment of the monthly instalments, the defendant sent a letter to the plaintiff demanding payment of Rs. 12,483/- and in reply the plaintiff having (sic) his liability to pay the said amount, the defendant was entitled to seize the truck as per the hire-purchase agreement. It was also planned that the Courts at Jaypore had no jurisdiction to entertain the suit as per clause (29) of the hire-purchase agreement and that the suit was not property valued.
4. The plaintiff examined two witnesses including himself to prove his case, besides relying on some documents marked Exts. 1 to 21. On the other hand, the defendant examined his manager to prove his case, besides relying on some documents marked Exts. A and B series. On a consideration of the evidence, the trial court held that the truck in question had been purchased on hire-purchase agreement and while the defendant was the owner, the plaintiff was the hirer. It was also found by it that the claim of the defendant was true and not barred by limita-tion but it was held that the suit was not property valued. Accprdingly, the suit was dismissed. In appeal, the learned Addl. District Judge reversed the finding of the trial Court in the matter of valuation of the suit and come to hold that the relief of injunction has been correctly valued for the purpose of court-fees and jurisdiction. He concurred with the finding of the trial court that the defendant was the owner of the truck and the plaitniff was a hirer from him. Notwithstanding all these findings, he dismissed the appeal because according to him, the courts at Jayapore had no territorial jurisdiction, the parties having agreed in the hire-purchases agreement to vest exclusive jurisdiction in the courts at Rajamundry and the defendant had every right to seize the truck as per the terms of the hire-purchase agreement, the plaintiff having failed to clear up his case as per Ext. 3/a (a mistake for Ext. A/3). Being aggrieved by such judgment and decree, the present appeal has been filed.
5. Mr. P. K. Nanda, the learned counsel for the appellant does not dispute the correctness of the finding of the courts below that the defendant was the owner of the truck and the plaintiff was the hirer and also the finding of the appellate court that the trial court had pecuniary jurisdiction to try the suit, the suit having been correctly valued. He has, however, contended that the learned Addl. District Judge went wrong in his finding that the courts at Jaypore had no territorial jurisdiction inasmuch as both the parties indirectly agreed in the hire-purchase agreement to oust the jurisdiction of the courts at Jaypore by vesting exclusive jurisdiction with the court at Rajamundry. According to the learned counsel, the parties by consent cannot oust the jurisdiction of a court which has territorial jurisdiction to decide the dispute in terms of Section 20 of the Civil Procedure Code, 1908 (in short 'the C.P.C.'). His second contention is that the plaintiff having cleared the entire case under the hire-purchase agreement by paying all the instalments though irregularly, the defendant had no right To take possession of the truck by seizing it in view of the bar laid down in Section 20 of the Hire-purchase Act, 1972 (in short, 'the Act'). Both the contentions require careful examination.
6. Coming to the question of territorial jurisdiction, it is necessary to refer to Section 20, C.P.C. which says that subject to the limitations aforesaid (i.e. the limitation contained in Sections 15 to 19), every suit shall be instituted in a court within the local limits of whose jurisdiction the defendants where are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or earring on business, or personally works for gain; or the cause of action, wholly or in part, arises. In the present case we are not concerned with the provisions contained in Sections 15 to 19, C. P. C. It appears that the plaitniff has instituted the suit at Jaypore because an agent of the defendant came there for the purpose of taking possession of the truck by Seizing it. This means that because the course of action arose at Jaypore the plaintiff instituted the suit there. The learned Addl. District Judge has come to hold that the suit could not be instituted in any court at Jaypore because according to clause (29) of the Hire-purchase Agreement, Ext. A, both the parties has agreed that in the event of any dispute arising out of the said agreement, the courts at Rajamundry would have jurisdiction, such agreements between the parties according to him, clearly oust the jurisdiction of any court at Jaypore. The question for consideration is whether by consent of parties jurisdiction can be vested in a court having absolutely no jurisdiction in terms of Section 20, C.P.C. and by vesting such jurisdiction whether the courts having jurisdiction would be debarred from exercising such jurisdiction. In the case of Hakam Singh v. M/s. Gammon (India) Ltd., AIR 1971 SC 740 it was held by the Supreme Court :--
'..... It is not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it does not possess under the Code .....'
Relying on this decision it has been held by this Court in M/s. Pattnaik Industries Pvt. Ltd. v. Kalinga Iron Works; AIR 1984 Orissa 182 that it is well settled that it is not open to the parties by agreement to confer jurisdiction on a Court which it does not possess under the Code. In Snehalkumar Sarabhai v. Economic Transport Oranisation, AIR 1975 Guj 72, M. P. Thakkar, J. as he then was observed in para 3 :--
'While parties can lawfully enter into an agreement to restrict a dispute to a particular Court having jurisdiction, that stipulation though valid cannot take, away the jurisdiction of the Court which admittedly had jurisdiction. The ouster clause can operate as estoppel against the parties to the contract. It cannot tie the hands of the Courts and denude it of the power to do justice. It is no doubt true that ordinarily Courts would respect the agreement between the parties which is born out of the meeting of their minds and out of considerations of convenience. But the courts are not obliged to do so in every case.....'
The principle that can be hulled from the aforesaid decisions is that the 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. The Court would ordinarily have regard to the choice of the parties but 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. The ouster clause can be ignored. In this case, the plaintiff having filed the suit merely for a permanent injunction restraining the defendant from interfering with his possession of the truck in question, it would have definitely caused harship to him, if he was to run to another State for such relief. In that view of the matter, the finding of the learned Addl. District Judge that the courts at Jaypore had no jurisdiction to try the suit is bound to be set aside and accordingly, the same is set aside.
7. So far as the second contention is concerned, it is necessary to refer to Sections 18, 19 and 20 of the Act. Section 18 deals with the rights of a owner to terminate hire-purchase agreement for default in payment of hire or unauthorised act or breach of express condi-tions. Sub-section (1) thereof says that where a hirer makes more than one default in the payment of hire as provided in the hire-purchase agreement then, subject to the provisions of Section 21, the owner shall be entitled to terminate the agreement by giving notice to the hirer within the time prescribed therein. Section 19 deals with the rights of a owner on termination and clause (c) thereof prescribes that subject to the provisions of Sections 17 and 20 and subject to any contract to the contrary, the owner shall be entitled to enter the premises of the hirer and seize the goods. Section 20 lays down the restriction on owner's right to recover possession of goods otherwise than through court and Sub-section (1) thereof provides, inter alia, that where goods have been let under a, hire-purchase agreement and the statutory proportion of the hire-purchase price has been paid whether in pursuance of the judgment of a court of otherwise, or tendered by or on behalf of the hirer or any surety, the owner shall not enforce any right to recover possession of the goods from the hirer otherwise than in accordance with Sub-section (3) or by suit. Where the hire-purchase agreement is in respect of a motor vehicle, as in the present case, 'statutory proportion' of the hire-purchase price means three-fourths or such higher proportion not exceeding nine-tenths as the Central Government may by notification in the Official Gazette, specify, where the hire-purchase price is not less than fifteen thousand rupees. A reading of all these provisions means that if there has been a hire-purchase agreement in respect of a vehicle, owner can terminate such agreement in the event of the hirer making more than one default in payment of hire as provided in the hire-purchase agreement subject of course to notice and thereupon can enter into the premises of the hirer and seize the goods but such action is subject to the provisions not only of Section 19 but also of Section 20.
If the hirer has already paid three-fourths or such higher proportion not exceeding nine-tenths as the Central Govt. may, by notification in the official Gazette specify where the hire-purchase price is not less than fifteen thousand rupees, the owner cannot enforce any right to recover the goods from the hirer otherwise than in accordance with sub-Section (3) or by suit. In this case, there is no Controversy that all the instalments as provided in the hire-purchase agreement, Ext. A have already been paid by the hirer i.e. the plaintiff and although some of those instalments were not paid in time, the defendant did not take any step to terminate the hire-purchase agreement but on the other hand, went of accepting the instalments till the last. So the questions arise whether the owner is entitled to enter into the premises of the hirer and seize the goods in possession of the hirer without terminating the hire-purchase agreement and whether he has the right to seize the goods in possession of the hirer where all the instalments as provided in the hire-purchases agreement have been paid though irregularly. So far as the first question is concerned, the answer has to be in the negative because the question of the owner entering into the premises of the hirer to seize the goods as provided in Clause (c) of Section 19 is subject to termination of the hire-purchase agreement which admittedly has not been done. So'far as the second question is concerned, the answer must also be in the negative because there is nothing in Section 20 to indicate that the provisions contained therein will not apply if the instalments as provided in the hire-purchase agreement have been irregularly paid by the hirer and accepted by the owner without any demur. Under these circumstances, I hold that the owner had no right to enter into the premises of the hirer i.e. the plaintiff and seize the truck in question. That being so, the finding of the learned Addl. District Judge that the owner had the right to take possession of the truck by seizing it cannot be sustained in law. Since the defendant, as stated above, had no right to take possession of the truck by seizing it, the appellate court should not have dismissed the appeal.
8. On the discussions as above, the appealis allowed, the judgment and decree of thelearned Addl. District Judge are set aside andthat of the trial court restored. In the peculiarcircumstances of the case, parties are left tobear their own costs.