A H WHEELER AND CO PVT LTD Vs. PARAS NATH PANDEY

JUDGEMENT

(1.) The opposite party plaintiff was appointed an agent by the petitioner M/s. A.H. Wheeler & Co. Pvt. Ltd., Buxar for selling books at Buxar railway station. The agency was terminated and the plaintiff filed the present suit challenging the termination. The petitioner raised an objection to the jurisdiction of the Buxar court to entertain the suit on the ground that there was an agreement between the parties that all legal actions in respect of the agency should be brought at Allahabad and not at any other place. On appeal, the court below took a different view, set aside the decision of the trial court, and restored the suit to be tried at Buxar. The court has relied upon a decision of Gujrat High Court in Snehal Kumar Sarabhat v. Economic Transport Organization and Ors. , for holding that it is open to the court to examine whether a contract excluding the jurisdiction of a particular court is oppressive and if the conclusion be in affirmative, the court could ignore such a term. Mr. K.D. Chatterjee appearing for the petitioner has challenged the Gujrat decision and has contended that it is open to the parties to come to such an agreement which would be binding. Mr. Chatterjee appears to be right. The decision in Ajmera Brothers v. Snraj Mai Naresh Kumar Jain , clearly establishes, the proposition. In a case in Hakam Singh v. Gaimmon (India) Ltd. , the Supreme Court also had affirmed the principle. If the parties to an agreement can validly stipulate regarding the exclusion of the jurisdiction of one of the courts where a suit can be filed, the same must be enforced unless the agreement is 'shown to be void or voidable on a ground available against any other contract. Sections 23 and 28 of the Contract Act, 1872 have been considered in the aforementioned decisions in this regard and such a contract has been upheld by courts as legal. The court below has reversed the decision of the trial court not on the ground that the agreement violated any other section of the Contract Act, 1872. With great respect, I do not agree with the view of the Gujrat High Court that such an agreement can be ignored merely on the ground of inconvenience. Mr. S.N. Roy appearing for the opposite party has also not supported the decision of the court below on this point. The impugned order restoring the suit must, therefore, be set aside.

(2.) Mr. Roy has contended that the written agreement relied upon by the defendant is not acceptable by the plaintiff and the defendant has not furnished acceptable proof thereof in the trial court. The petitioner has not filed his written statement and the court has made an adverse comment on that ground also. I do not think that the defendant is precluded from challenging the jurisdiction of the court as it has not filed the written statement. In fact, it is desirable that the question of jurisdiction be raised at the earliest and the defendant should not wait till he files his regular written statement raising all the pleas. But Mr. Roy is right that the courts cannot assume the genuineness of the written agreement relied upon by the petitioner without giving an opportunity to the parties to lead their evidence on that point.

(3.) In the circumstances, I set aside both the orders of the lower appellate court and the trial court and remand the matter to the trial court with a direction that the parties will be permitted to go to trial on the limited question of jurisdiction and for that purpose, the parties will lead their evidence on the question of agreement. The court will record its finding as to whether the parties had executed the written agreement containing the stipulation in question and then proceed to decide the jurisdiction matter. This civil revision application is accordingly allowed, but there will be no order as to costs.