- (1.) S. Harkauli, J. Heard learned Counsel for the petitioner. The respondent No. 1 instituted a suit No. 708 of 1997 in the Civil Court, Ghaziabad against the petitioner. A copy of the plaint has been filed as Annexure-3 to this writ petition. The sun has been instituted on 31-5-1997. The sail is seeking a money decree regard ing the money alleged to be due to the plaintiff from the defendant on account of non-payment for the goods supplied.
(2.) THE defendant moved an applica tion before the trial Court that it had no territorial jurisdiction to try the suit. THE application has been rejected by the trial Court and a revision by the defendant-petitioner has also been dismissed by the impugned order. Learned Counsel for the petitioner has raised two contentions before me. The first contention is that the plaint should have been rejected as barred by time. In this connection. Learned counsel for the petitioner has relied upon the averment in paragraph 5 of the plaint, which indicate that the money became due on 24-8-1994. Apart from the fact that 31-5-1997 is within three years from 24-8-1994, it has been alleged in paragraphs 6,7,8 and 9 that certain payments were made on account of outstanding balance subsequent to 1994. Further, it is alleged in the plaint that the defendant had issued credit notes to the plaintiff in 1995 also. The part payment and credit note which amount acknow ledgment clearly go to show the suit has been instituted within the period of three years from the date of 1st part payment or last acknowledgment.
(3.) THE second contention raised by the petitioner is that about territorial jurisdiction. This contention is based on two reasons advanced by learned counsel for the petitioner. THE first reason' is that in the documents filed by the defendant along with its application challenging the territorial jurisdiction it has been men tioned that the dispute would be subject to the jurisdiction of the Courts at Dadra Nagar Haveli. THE second reason is that the averment in paras 14 and 15 of the plaint which states that payment was to be made at Ghaziabad to the plaintiff by the defendant are illusory and have been in corporated to create territorial jurisdic tion. In support of first reason with regard to territorial jurisdiction of Ghaziabad, learned Counsel for the petitioner relied upon decision of the Supreme Court in the case of M/s Angile Insulation v. M/s Devy, AIR 1995 SC 1766. THE aforesaid decision states that it is open to the parties to confine jurisdiction to one of several Courts which have jurisdiction and such agreement is not hit by Sections 23 and 28 of the Contract Act. While it is correct that it is open to the parties to agree to confine their dis pute to the jurisdiction of any one or more out of several courts which may have juris diction under Section 20, CPC to try the suit, but this question whether the parties have actually confined jurisdiction depends upon the documents which have been filed by the defendant. There is no such averment in the plaint. At the stage at which suit stands, the Court while con sidering the question of territorial juris diction has to confine to the averments in the plaint and documents filed by the plaintiff himself. At this stage the Court cannot go into evidence sought to be led by the defendant. According to the proce dure prescribed under CPC at the stage of Order VII, Rule 10 and Order VII, Rule 11, the defence of the defendant is not to be examined. If after examination of the plaint and document filed by the plaintiff the Court comes to the conclusion that it has no territorial jurisdiction it must return the plaintiff under Order VII, Rule 10 and if it is found that suit is otherwise not maintainable it must reject the plaint under Order VII, Rule 11.;