JUDGMENT
Swatanter Kumar, J.
1. Whether parties to an agreement can vest jurisdiction in one court where cause of action or part thereof has arisen within the territorial jurisdiction of more than one court, is the precise question that calls for determination in the present revision.
2. M/s. Commercial Gases, Ropar filed a suit for mandatory injunction for a direction to M/s. Associated Cement Company Limited (defendant in the suit) to return 76 empty cylinders of Oxygen and Nitrogen gases and 63 empty cylinders of D.A. (Dissolved Actylene) gases. The suit was contested by the defendant, who took a preliminary objection with regard to the territorial jurisdiction of the learned Civil Judge (Junior Division), Rupnagar for entertaining and deciding the suit. It was contended that the parties had conferred the jurisdiction upon the civil courts at Bilaspur only and in any case, no cause of action had arisen within the territorial jurisdiction of the courts at Rupnagar. The plaintiff in the suit (respondent herein), however, contended that the court at Rupnagar has jurisdiction, as the contract itself was entered into at Rupnagar and the objection taken by the defendants in the suit was frivolous.
3. However, learned trial court, vide its order dated 1.3.1997, framed the following preliminary issues during the pendency of the suit:-
“1. Whether the court has no territorial jurisdiction to entertain and try the present suit? OPD
2. Relief.”
4. After affording opportunities to the parties to lead evidence on the above issue, the learned trial court decided the issue against the defendant and in favour of the plaintiff and has held as under:-
“I have considered the respective contention of the ‘Ld. counsel’ for the parties and have gone through the contract Ex.Dl. Admittedly Ex.D-1 was entered into between the parties and it was also extended further as is clear from Ex. D-3. It is mentioned in Ex. D-1 that the rate contract is being released subject to Bilaspur jurisdiction only there is no specific stipulation that in case of all types of dispute arising between the parties only courts at Bilaspur will have jurisdiction. Thus the matter which is involved in the present suit is not specifically covered within the terms and conditions of Ex. D-1 agreement. The terms rate contract itself suggests that in case of any controversy regarding rates the matters as are mentioned in Ex. D-1 then will be subject to the Bilaspur jurisdiction only. I have gone through the above judgment wherein it has been held by the Hon’ble Courts that where there is an agreement between the parties that one of the courts having such jurisdiction alone shall try dispute is not contrary to the public policy but in the facts of the present case, are distinguishable from the facts of the above cited judgments as in the present case there is no specific stipulation that in case of any dispute arising between the parties that shall be to Bilaspur jurisdiction only. Thus from the evidence on record and keeping in view the terms and conditions of Ex. D-1 this court is of the considered opinion that the jurisdiction of the court at Ropar is not barred for the purpose of trying the present suit and as such, this issue is decided in favour of the plaintiff and against the defendant.”
5. The controversy, as already noticed, falls in a very narrow compass and arises from the contents of Ex. D-1 Ex. D-1 is dated 17.12.1990 addressed to the plaintiff-M/s. Commercial Gases by the defendant in the suit as annual rate contract for supply for industrial gases. The quotation submitted by the plaintiff was accepted by the defendant subject to the terms and conditions contained in the said letter. Ex. D-1 reads as under:
“GL/STS/R&C/775
Dt. 17.12.1990
Regd. A.D.
M/s. Commercial Gases
near Old Bus Stand
Roper- 140001 (Pb)
Dear Sir,
Sub:- Annual rate contract for supply of Industrial Gases. This has reference to your quotation No. nil dated 10.9.1990. We are pleased to entrust you annual rate contract for supply for Oxygen/DA and Nigrogen gas cylinder for the year 1991 i.e. from 1st January,1991 to December 31st, 1991 on the following terms and conditions.
Price:
1. Oxygen gas @ 40.50 each in your own cylinders (returnable basis) having 7 cum cap. inclusive of excise duty.
2. DA Gas: @ 68/50 per cum in your own cylinder (returnable basis) inclusive of excise duty.
3. Nitrogen Gases: Rs. 12/- per cum in our own cylinder inclusive of excise duty. Price will remain firm till the execution of rate contract.
Excise duty: The rate quoted by you are inclusive of excise duty but you have to produce excise gate pass alongwith the material.
Sales tax: Central Sales tax shall be applicable at the concession rate of 4% for which C form will be issued on receipt of your invoice. Our Sales tax regd. No. BLP/111/803 dated 20.2.89 and CST No. BLP/CST.710 dated 7.12.1990.
Payment: 100% payment will be made against you invoice within seven days of receipt and verification of material by account payee draft drawn at SB1, Ropar.
Verification: The quantity of material will be verified as under:-
1. Against central excise gate pass.
2. DA as per weight 1 kg.=0.9054 cum.
– Oxygen as per pressure= At cylinder pressure of 130 kg.
– Nigrogen as per actual weight of gas contents.
proportionate deduction will be made for shortage.
Transportation: You will be paid Rs. 1188/- (Rs. on thousand one hundred eighty eight only) being transport charges for bringing 100-120 cylinders (full truck load of LMV) filled gas cylinders from your godown and transporting similar quantity of empty gas cylinder from our works.
Rent: You will allow us free period of 30 days and thereafter you will charge Rs. 1/- (Rupee one only) per cylinder for one day as cylinder rent.
You have to supply us your Principal’s Card showing the actual quantity of D.A. gas supplied to us in each cylinder alongwith you supply.
Jurisdiction: The rate contract is being released subject to Bilaspur jurisdiction only.
We are sendigd this letter in duplicate and would request you to please return to us a copy thereof duly signed in token of having accepted the contract on the terms and conditions stipulated therein.
Thanking you,
Yours faithfully,
for the Associated Cement Co. Ltd.
Sd/-
General Manager,
Gagal Cement Work”
6. At the very outset, it must be noticed that Ex. D-1 was signed by both the parties to the lis and is a complete contract in itself, as it refers to no other terms than the one stated in this letter for supply of gases as per rates indicated in the letter and subject to the conditions contained therein. As per the terms and conditions of this agreement, the cylinders were to be supplied by the defendant at the indicated price at Bilaspur. The payment was to be made within 7 days of the receipt and verification of the material by account payee draft payable at Ropar. Even empty cylinders were to the collected by the plaintiff from the stores of the defendant, for which separate transportation charges were payable. The pertinent clause was that rate contract was being released subject to Bilaspur jurisdiction only. Confirmation of these terms and conditions was given by the plaintiff by signing the said agreement. Thus, both the parties are bound by the terms and conditions of Ex. D-1, which itself is a complete contract.
7. Learned counsel appearing for the respondent submitted that there was no definiteness in this agreement and it was ambiguous in regard to the jurisdiction clause as well as such the clause excluding the jurisdiction of other courts except that at Bilaspur is not enforceable. For this purpose, learned counsel relied upon judgment rendered by the Hon’ble Supreme Court of India in the case titled as Angile Insulations v. Davy Ashmore India Limited and Anr. (1995-3) 111 PLR 275.
8. I am unable to see any ambiguity in Ex. D-1. The terms and conditions of Ex. D1 are clear in regard to the intention of the parties for supply of gas cylinders, their price, return of empty cylinders, mode of payment and even jurisdiction. It is difficult for this court to trace any element of ambiguity in the terms and conditions of Ex. D-1. Learned counsel for the respondent has not been able to show as to how the principle laid down by the Hon’ble Apex Court in the case cited above is applicable to the facts of the present case. In fact, even in that case, the court had upheld the plea of exclusion of jurisdiction from other courts by an agreement to a court which otherwise was competent to try the suit.
9. From the above narrated facts and even in view of the submissions of learned counsel for the parties during the course of arguments, it is clear and in any case part of cause of action would arise in both the courts i.e. at Rupnagar as well as at Bilaspur. The defendant is, obviously, residing at Bilaspur. The clause vesting jurisdiction in courts at Bilaspur can neither be termed as invalid nor opposed to public policy. Such agreements are permissible in commercial and mercantile laws. At this stage, reference can be made to the very judgment relied upon by the learned counsel for the defendant in the case of Angile Insulations (supra). The Hon’ble court held as under:-
“We do not find any such invalidity of clause (21) of the contract pleaded in this case. On the other hand, this court laid that where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen therewith, if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves, the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague, it is not hit by Sections 23 and 28 of the Contract Act. This cannot be understood as parties contacting against the statute. Mercantile law and practice permit such agreements.
6. In this view of the law and in view of the fact, that the agreement under which clause (21) was incorporated as one such clause, the parties are bound by the contract. The contract had not been pleaded to be void and being opposed to Section 23 of the Contract Act.”
10. Section 15 to 21 of the Code of Civil Procedure are relevant which control and regulate the place and court where every suit should be instituted. Under Section 15 of the Code, suit should be instituted in the court of lowest grade but which is competent to try it. Under Section 20C of the Code, suit can be instituted in a court within the local limits of whose jurisdiction defendant or defendants reside or the cause of action has arisen wholly or in part. The expression “cause of action” and action to which a defendant is answerable was defined times ago by Brett in Cooke v. Gill, (1873) 8 CP 107 as under: –
“Cause of action has been held from the earliest time to mean every fact which is material to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse.”
11. Full Bench of Madras High Court in the case titled as Indian Tobacco Corporation by its Managing Partner N. Krishnaswami and Ors. v. The State of Madras represented by the Secretary of the Government of Madras, Food Department AIR 1954 Madras 549 held that “cause of action” means bundle of essential facts which is necessary for the plaintiff to prove before he can succeed in the suit. Thus a few facts, which are material for determination and grant of relief to a party to lis, and those facts have arisen within the local limits of one court or the other, it can safely be said that cause of action has partly arisen in one court and partly in another. Resultantly, both the courts would have jurisdiction to entertain and decide the suit but if the parties by an agreement, which is not ambiguous or vague, intend to confer jurisdiction on any one of the two above said courts, they shall subsequently would have to abide by such terms and conditions.
12. In the present case, the defendant, at the very first available opportunity, has taken objection with regard to the jurisdiction of the court to entertain and decide the suit. The spirit behind section 21 of the Code is to discourage taking of such objections at a subsequent stage, as such objection is capable of being waived or given up. The objections cannot be taken at an appellate or revisional stage, if they were not taken in court at first instance. This clearly shows the legislative intent placing an obligation upon the party to take such an objection at the very initial stage. The defendant, in the present case, has certainly taken objection at the very initial stage, therefore, the principle of waiver cannot be applied against the present petitioner, as contended by the learned counsel for the respondent.
13. The reasons given by the learned trial court that Ex. D-1 limits are jurisdiction of other courts except the courts at Bilaspur only in regard to the controversy regarding rates with respect of gas cylinders is not in con sonance with the settled principles of law. It is a settled cannon of interpretation of documents and more particularly agreement that the document should be read in its entirety and in a composite manner. The dispute may relate to delivery of cylinders, their return, price or otherwise the parties certainly intended to cover all such disputes and make them subject to the jurisdiction of clauses of Ex. D-1. It is patently difficult for the court to severe to jurisdiction clause from the other clauses and make it applicable limited to some clauses and not to Ors. of Ex. D-1. The parties elected to vest the jurisdiction only in Bilaspur courts and as such the impugned order cannot sustain the scrutiny of law.
14. For the reasons aforestated, I have no hesitation in holding that the impugned order suffers from an error of jurisdiction apparent on the face of the record. The parties having elected to vest jurisdiction in the courts at Bilaspur only, I see no reason as to how the courts at Ropar can exercise jurisdiction over the subject matter of the suit, apparently covered by Ex. D-1 and in the matter incidental or related thereto.
15. Consequently, the revision petition is allowed without any orders as to costs. The impugned order dated 23. 9. 1998 passed by the learned Civil Judge, Junior Division, Ropar, is set aside. It is further directed that the plaint shall be returned to the plaintiff for presentation before the court of competent jurisdiction. For this purpose, the parties are directed to appear before the learned trial court on 18.2.2000.