ORDER
1. This is a revision petition filed by the plaintiff under Section 115 of the Civil P.C. 1908 as amended by the Act 104 of 1976, questioning the correctness of the division rendered by the lower appellate Court which held on the point as to whether the Sub Court, Chengalpattu had got jurisdiction to try the suit as contended by the revision petitioner herein, that the said Court had no jurisdiction, confirming the order of the trial Court which was to the same effect.
2. The suit was filed by the revision petitioner herein for recovery of a sum of Rs. 9460-79 by way of damages from the respondents 1 and 2 alleging that the first defendant-first respondent herein through the broker K.P.Shah of Madras-3 entered into a contract with the revision petitioner on 16-4-1977 for purchase of 25 cases of 60s Combed Indra Cotton Yarn, each case to contain 100 Kgs. at the rate of Rs.148/-per 5 Kgs Ex-Mill Sales Tax and Excise Duty etc., that a sum of Rs.7,500/-lying with the plaintiff-revision-petitioner herein due to previous transaction was directed to be treated as advance and the first respondent called for the despatch of goods and also directed the goods to be despatched through M/s.Prakash Road Lines or Interways Transport, the second respondent herein. Again on 18-4-1977, another contract for purchase of another 25 cases of Indra Cotton Yaran of the same quality of similar price was entered into by the 1st respondent herein with the revision petitioner herein. In this also, the first respondent directed the revision petitioner herein to adjust another sum of Rs.7,500/-which was lying with the revision petitioner herein another transaction, towards advance. thus the first respondent had paid an advance of Rs.15,000/- and it was treated that the goods in both the contracts should be delivered Ex-Mill at Chrompet. This was confirmed by the 1st respondent’s memorandum of contract dated 18-4-1977. The consignments were despatched on 19-41977 as per contract through the 2nd respondent herein to clear the goods and they were despatched through United Commercial bank. The goods were also insured and the fact was intimated the 1st defendant-first respondent herein. The first defendant- respondent herein had to clear the goods for the 2nd respondent herein after paying the amount due under the invoice and honour the bill from the bank. Meanwhile, it was understood that an employee of the 2nd defendant committed criminal breach of trust and misappropriation of 50 cases of the consignment. The police after investigation recovered the goods and the same were released subsequently to the 2nd respondent herein. The first defendant-first respondent herein did not honour that document in time. The Bankers claimed interest from the plaintiff-revision petitioner herein. The revision petitioner sent and express wire on 9-5-1977 stating that if the goods were not honoured, the loss would be recovered form the 1st respondent herein. The broker K.P.Shah also intimated to clear the documents. The 1st respondent herein sent a wire that the demand draft No.63 alone was honoured and the goods were available at their Bhuvandi Godown. The 2nd respondent herein informed that the goods were involved in a criminal case and the articles are in police custody and they ware trying to get them released. thereafter, the agent of the revision petitioner went to Bombay and learnt that all the 50 cases of the consignment were ready for deliver. the revision petitioner herein therefore issued a notice on 8-6-1977 to the 1st respondent to clear the documents form the Bank failing which the plaintiff-revision petitioner herein would be forced to sell the goods in open market and claim loss sustained by him from the 1st respondent herein. A telegram was sent by the first respondent stating that 2nd respondent did not deliver the goods of 5 cases under lorry receipt 6/70, even after payment of demand draft No.63. Meanwhile, the United Commercial Bank intimated the revision petitioner that the 1st respondent had not returned the other documents and therefore, they were debiting the interest and commission on the plaintiff’s account. Therefore, the revision petitioner intimated depot at Bombay to clear the goods and sell the same in open market unless the 1st respondent pays the amount due for the 45 cases. The 1st respondent did not comply with the request. the bankers have returned the G.C.Notes, Demand Drafts etc., and debited Rs.4642-30 against the revision petitioner herein towards interest and commission herein sent a notice to the 1st respondent and a reply was sent a notice to the 1st respondent and a reply was sent by the first respondent. The revision petitioner herein is not liable to take the goods once again and deliver them in sealed cases. The revision petitioner herein sent letters through their counsel to the respondents and then the revision petitioner was forced to sell the goods in open market at Rs.1410/- per 5 Kgs, and the revision petitioner also paid demurrage charges to the 2nd respondent. Therefore, the 1st respondent because of the admitted conduct of their employees, are liable to reimburse the said sum of Rs.9460-79 to the revision petitioner. The cause of action arose, according to the revision petitioner, at Chrompet where the goods were delivered to the 2nd respondent herein on 16th and 18th April, 1977 when the contract was entered by the 1st respondent herein on 19th April, 77, when the goods were delivered to the second defendant-second respondent herein at Chrompet, Tambaram firka, Saidapet Taluk, within the jurisdiction of the trial Court and subsequently till 2207-1977 when the first defendent did not honour the documents and on 24-7-1977 when the goods were sold in open market by the revision petitioner herein in by the revision petitioner herein Chrompet. the goods were delivered to the second respondent on 19-4-1977, within the jurisdiction of the trial Court. Hence the suit.
3. Both the first and 2nd defendant first and 2nd respondents herein filed separate written statement before the trial Court. Among other things, both the respondents further raised the plea that the trial Court had not jurisdiction to try the suit.
4. The trial Court framed the issue whether the said Court has no jurisdiction to try the suit and took the same as a preliminary issue. On behalf of the Plaintiff herein Ex. A-1 letter dated 16-4-1977 by one K.P.Shah. Art Silk and Yarn Merchant, Manufactures’ Representative, Exporter and Importer, Rasappa Chetty Street, Madras-3, to the plaintiff-revision petitioner herein was files along with Ex. A-2 similar document dated 18-41977. Ex. A-4 Goods Consignment note of the 2nd defendant-second respondent herein, namely, Interway Transports, Nagpur was files. On behalf of the revision petitioner company was examined as P.W. 1. On behalf of the respondents, no witness was examined. The trial Court, as stated above, held that Court had no jurisdiction to try the suit and returned the plaint to the plaintiff-revision petitioner herein for presentation before proper Court.
5. Aggrieved by the above decision of the trial Court, the plaintiff-revision petitioner herein preferred and appeal before the lower appellate Court. The lower appellate Court on the point whether the Sub Court, Chengalpattu had got jurisdiction to try the suit as contended by the revision petitioner held that the Sub Court, Chengalpattu cannot have jurisdiction to try the suit and thus dismissed the appeal, Aggrieved by the above order of the trial Court, the plaintiff-revision petitioner herein has come forward with this civil revision petition inter alia contending that both the Courts below should have seen that the contract had been concluded by the broker K.P.Shah and the liabilities of parties had crystallised before the despatch of Ex. A(B?) 1 and that any term in the said document cannot be a part of the contract and that both the Courts below should have seen that a plea of ouster of jurisdiction of one of two Courts competent to try a lis was conceptionally different from a plea of lack of jurisdiction on the ground that no part of the cause of action across within the jurisdiction of the Court wherein the suit was actually filed.
6. In this revision petition, the second respondent is not represented by any counsel. The second respondent is also absent when this revision petition is called and hear today.
7. Learned counsel for the revision petitioner inter alia contends that the plea of the first respondent was one of absence of jurisdiction and that even in respect thereof, no particulars were given and that no pleas was raised by the second respondent relating to jurisdiction. It is relevant in this connection to note that in the written statement of the second defendant-second respondent there is a plea regarding this aspect of jurisdiction, but yet it is not happily worded. the relevant portion of the written statement of the second defendant-second respondent reads as follows:
“It is denied that his Court has no jurisdiction to try the suit against this defendant No.2, inasmuch as no cause of action even as to damages, ever arose within the jurisdiction of this Court”.
7A. The point for consideration is whether the question regarding jurisdiction regarding jurisdiction has been properly appreciated and decided by the lower appellate Court inasmuch as it had confirmed the view taken by the trial Court that it has no jurisdiction.
8. The learned counsel for the plaintiff-revision petitioner herein inter alia contends that Ex. B-1 no doubt contains the printed recital to the effect that Bombay Court will have jurisdiction with respect to transactions between the plaintiff-revision petitioner and the second-defendant/second respondent herein. But that by itself cannot be taken as a ground to hold that the Court in which a suit had been instituted had got no jurisdiction. In other words, the contention raised by the learned counsel for the plaintiff-revision petitioner herein is to the effect that the very existence of a printed clause in a document between the parties specifying the Courts which have jurisdiction to entertain any dispute between them cannot be the sole ground on which the point relating to jurisdiction can be decided. It is by exercising fully the powers conferred to a Court Under Secs. 20 and 21 of the Civil P.C., the a Court has to come to just and proper conclusion, taking into account the allegations made in the pleadings and not that the printed clause will have exclusive sway over such discretion vested with the Court for deciding the venue.
9. In the instant case, MR.C.Ramanathan, learned counsel for the revision petitioner herein would contend that the view taken by Ismail., J., as he then was in Renown Biscuit Company V.Mamalanathan is more in consonance with the general principle than the law which is not a static one but a dynamic one and that the discretion vested with the Courts has to be exercised in such a way that will suit the progress of the society. In the regard MR.C.Ramanathan would refer to the following passage of the decision referred to above (at p.29). "There is controversy on the following facts :- 91) The Court in Bombay has jurisdiction because the petitioner-defendant resides in Bombay. (2) The Court in Coimbature has jurisdiction because a part of the cause of action arose there. (3) The parties in l.13 of the agreement entered into between the parties. In such a context, the general rule is no doubt that the plaintiff-respondent will have to file the suit in the Court in Bombay. However, the Gujarat High Court in Snehal Kumar Sarabhai 1975 Guj 72 had struck a new path. In paragraph 3 of the judgment, it was stated that 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 has jurisdiction. The ouster clause can operate as estoppel against the parties to the contract. It cannot tie the hands of the Court and denude it of the power to do justice. It is no doubt true that ordinarly Courts would respect the agreement between the parties which is born out of the meeting of their minds and out of the considerations of convenience. But the Courts are not obliged to do so in every case. In case like the present where the claim is of Rs. 1,207-92 to oblige the plaintiff to go to the Calcutta stipulation embedded in the contract between the parties is to deny justice. A new approach to this question deserves to be made for the ouster clause is calculated to operate as a engine of oppression as means to defeat the ends of justice for in a case like the present it could be oppresive to drive the plaintiff all the way to Calcutta to recover a small sum of Rs. 1,208. The costs of travelling and litigation will far exceed the stakes involved, and even a rightful claimant would be obliged to abandon his claim rather than incur greater expenditure than the sum involved in order to seek redress. In this back-drop, the question assumes confine the jurisdiction in one of the Courts robs the excluded Court of its power to try the suit. Now such a stipulation may be legal and binding on parties. That, however does not mean that it divests that Court of its jurisdiction. The plaintiff cannot insist that a Court other than the stipulated Court should try the suit. But the Court on its part is not bound by the stipulation. The stipulation can be ignore by the excluded Court which otherwise possesses jurisdiction if its considered to be oppressive having regard to the surrounding circumstances including the stakes involved.
It is this judgment of the Gujarat High Court that was followed by the learned District Munsif in the present case. As soon as this judgment was cited. I asked the learned counsel for the petitioner to bring to my notice any authority or principle which will render the decision of the Gujarat High Court erroneous. The learned counsel, even after taking an adjournment was not able to bring to my notice any authority principle to that effect. All that he contends, is that the Courts have held that when the parties so agreed to oust the jurisdiction in law and vests the jurisdiction in another Court, which also has jurisdiction, then the parties must go to that Court only. But that is not a principle which can be said to render the new approach referred to by the Gujarat High Court erroneous. If every new approach has to be frowned upon solely on the ground that it is new, there will be neither growth nor progress. Under the circumstances, in the absence of anything directly contrary to the decision of the Gujarat High Court, I do not see any justification for not following it”.
In the decision of Ismail, J., cited above Ismail, J., as he then was, further observed that the matter could be looked at from another point of view also that what was involved in that case was not the total want of jurisdiction on the part of the Court of the District Munsif, Coimbatore, would have jurisdiction since a part of the cause of action arose within his jurisdiction. In such a context, according to Ismail. J., as he then was, when the plaintiff is to be compelled to file a suit in the Court of Bombay, it was not because that the Court in Coimbatore did not have jurisdiction in law, but the parties having entered into a contract between them, they were compelled to stick to the terms of the contract. In observing so, Ismail, J., as he then was, in that case, would observe that having regard to the stake involved and the distance between Coimbatore and Bombay, it will be causing failure of justice if the plaintiff is driven to go to Bombay for the purpose of instituting the suit for recovery of the small amount and therefore, even if the decision of the Gujarat High Court is not correct, according to Ismail, J., as he then was the learned District Munsif was wrong in holding that he had jurisdiction to try the suit, yet he (Ismail, J.) was not bound to interfere with that conclusion in exercise of the power of this court under Section 115 of the Code of Civil Procedure.
9A. In the instant case, Mr.C.Ramanathan learned counsel for the plaintiff-revision petitioner vehemently contended that it is nowhere stipulated in any of the documents that had been filed as exhibits before the trial Court for deciding the question of venue of dispute or the Court in which the suit had to be instituted. So far as Ex. B-1 the document that had been entered into between the revision petitioner and the 2nd respondent herein is concerned, it is submitted that the words printed at the top portion of the first page of Ex. B-1 ‘subject to Bombay Jurisdiction”, do not in any way oust the jurisdiction of the trial Court which had sufficient and adequate jurisdiction. In this regard, he points out that P.W. 1 had specifically deposed that 25 cased of yarn were consigned at Chrompet on 16-4-1977 as per the agreement between the plaintiff, the revision petitioner herein and the first respondent herein and that on 18-4-1977 also another consignment of 26 cases of yarn were consigned to the first defendant through carriers available for transport at the instance of the second respondent. it was on 19-4-1977, according to P.W. 1, that the yarn that were found pilferred, were recovered at the instance of the police and were actually ready for consignment and in that way also, the cause of action actually arose only at Chrompet within the jurisdiction of the trail Court. In this regard, Mr.C.Ramanathan, learned counsel for the revision petitioner, refers to the provision of Section 21 of Code of Civil Procedure which reads as follows :-
“21. Objections to Jurisdiction (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
(2) No objection as to the competence of a Court with reference to the pecuniary limits of jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice”.
It is true, according to Mr.C.Ramanathan that in the instant case, objection had been taken by the first respondent at the earliest possible opportunity and yet what has been established under Section 21(1) of the Civil P.C, is that entertaining of the suit by the learned Subordinate Judge, Chengalpattu, would cause failure of justice.
10. The learned counsel for the Revision Petitioner Mr.C.Ramanathan in this regard also refers to the decision reported in N.C.Shadurian v. Tin.Tuti.Elec., Supply Co, Ltd, . The observation of the Court in the said decision at page 434 (of 2 Mad LJ) :(at P.105 of AIR) (Para 4) runs as follows :-
“But the more important question raised by Mr.T.Raghavan, learned counsel for the appellant is that parties having contracted specially to vest jurisdiction to decide dispute relating to the relative sales and purchases of goods in the courts at Madras, the Court at Tuticorin had no jurisdiction to entertain the suit, and much less to decide on it. The relevant portion of the contract which is reflected in the conditions of sale agreed to between the parties reads thus :-
“All dealing are subject to Madras jurisdiction’. On the basis of the text of such a special clause in the agreement of sale it was contended that there is an exclusion of jurisdiction of all Courts, including the Court at Tuticorin and as such the judgment appealed against is nullity and is without jurisdiction. What was urged before us is that when the parties have so specially agreed to have all matters decided in madras there is no option left to the plaintiff to choose the Court at Tuticorin though it might otherwise be a competent Court under the provision of the Civil Procedure Code that being the place of performance of contract. Mr.M.R.Narayanaswamy, on the other hand, contended that not only the Court at Tuticorin is a competent Court to entertain the lis but for the special clause as above, but when the defendant had submitted himself to the jurisdiction of that Court and went to trial on the merits he is prevented from raising the question of jurisdiction in this Court and set at naught the considered judgment rendered by the trial Court on merits”.
The learned counsel Mr.C.Ramanathan for the revision petitioner submits that all the transactions actually took place only at Chrompet and the one K.P.Shah had acted as the agent of the first respondent and as such when the suit has been filed for recovery of damages on the original contract between the revision petitioner and the first respondent herein, the existence of the printed words on the first page of Ex. B-1 will not have any bearing because it is only the consignee copy issued by the second respondent for the transport of the goods through it to the first respondent at Bombay. there is no contract between the revision petitioner herein and the first respondent herein regarding jurisdiction. In other words, there was no agreement at any point of time between the revision petitioner and the first respondent herein relating to the venue in which the suit had to be instituted if there was going to be any dispute relating to the transaction between them. Therefore, it is submitted by MR.C.Ramanathan, learned counsel for the plaintiff-revision petitioner herein that in the plaint it is specifically stated that the contract between the plaintiff-revision petitioner herein and the first took place only at Chrompet and therefore the trail Court is the fit and proper forum in which the cause had to be instituted and accordingly, it had been instituted properly according to the provisions of the Code of Civil Procedure.
11. On the other hand, the learned counsel for the first respondent herein would contend that though this is not within his purview to plead for the second respondent who has remained absent in this proceedings before this Court, yet, he is duty bound to point out that there is a specific contention raised regarding jurisdiction in the written statement, and what is more, when the ratio decidendi in Savani Tansport Pvt, Ltd. v. Chinnaswami Mudaliar is taken into account together with the ratio dicidendi in N.C.Shandurian v. Tin-Tuti Elec. Supply Co, Ltd. it would be clear that it would be only that the Bombay Court which ought to have been approached by the revision petitioner herein to institute the suit, because it is only within the jurisdiction of the Courts at Bombay that the first defendant-first respondent herein is carrying on business. It is also relevant in this connection, according to him, to note that Ex. B-1 specifically mentions the jurisdiction of any dispute to the Courts at Bombay.
12. In the instant case, it is common ground that Rs.1,40,121.03 worth of transaction had actually been entered into between the revision petitioner herein and the first respondent herein and that it is only for damages sustained as a result of beach of contract at the instance of the first respondent herein, according to the plaintiff that a suit was instituted for recovery of the said damages from the first respondent herein and the 2nd respondent has also been impleaded in the suit since it was the first respondent’s carrier. But the learned counsel for the first respondent herein the written statement filed in the suit that there had been no damages actually caused at the instance of the first respondent and in fact when the goods were packed in such a manner which rendered them not fit to be used as commodities and sell in the yarn market, they had no other alternative than to keep quiet. In other words, the contention raised in the written statement filed by the 1st respondent is yet to pass through the judicial gauntlet in that the first respondent is yet to pass through the judicial gauntlet in that the first respondent will examine its witnesses so as to prove that it is not liable for the suit claim.
13. On behalf of the first respondent, the following passages in the written statement of the first defendant are pointed out by the learned counsel for the first respondent herein:-
“This defendant denies the allegations mentioned in paras 8 and of the plaint and states that the correspondence exchanged between the plaintiff and the first defendant may be treated as part and parcel of this written statement. This defendant denies the allegations that after paying the demurrage charges of Rs.7,200/- the plaintiff has sold the goods in open market and realised a sum of Rs.1,41,998/68. The plaintiff has not mentioned the date and the party to whom it was sold. This defendant denies the allegations that the plaintiff has incurred the alleged loss of Rs.24,460/79. Since this defendant is not liable to pay any amount to the plaintiff, the plaintiff has no right to deduct to the advance of Rs.15,000/-paid by this defendant. This defendant is not liable to pay any amount to the plaintiff much less the sum of Rs.9,460/79 as per the para 9 of the plaint. This defendant is nor liable to pay the alleged amount as there was not fault on the part of this defendant. This defendant denies the allegations that the second defendant is the agent of this defendant. This defendant has not named the second defendant as its agent. Therefore, it is also to be stated that on 19-4-1977 this defendant had received the goods at Chrompet through the second defendant”.
It is also relevant in this connection to mention the contention raised by the second respondent in paragraph 5 of its written statement which reads as follows :
“As to para No.7 of the plaint. The allegations in para No.7 of the plaint being in regard to the defendant No.1, this defendant denies the same for want of knowledge. It is false to support that the defendant No.2 did not deliver the goods of 5 cases. It is submitted that the defendant No.1 did not deliberately retire all the documents so as to seek the delivery of all the goods. It is the negligence and carelessness on the part of the defendant No.1, who failed to receive the goods after due retirement of the documents, that the loss has been caused. The particulars of the claim as shown in para No.7 of the plaint are denied. In fact no loss has been caused to the plaintiff on account of the defendant No.2. The other allegations in this para are denied and the plaintiff be put to strict proof of the same”.
It is also relevant to note that in paragraph 6 of the written statement filed by the first defendant-first respondent herein, the following contentions occur.-
“This defendant further states that when they went to take deliver of the aforesaid 5 cases this defendant (1st defendant) was informed by the second defendant that the cases will be delivered in open and loose conditions as per the Court’s Release Order under which the cases and samples of their contents had to be retained for court trial. Thus, it is clear that the original mill packing of the sealed cases would be destroyed rendering the cones unsaleable in the market. Therefore this defendant informed the plaintiff and asked them to give delivery in a packed and sealed condition”.
14. The above portions of the pleadings have been extracted in order to appreciate the evidence that had been unfurled through P.W. 1 and the documents that were filed before the trial court in order to appreciate the question relating to jurisdiction.
15. The procedural law of the land, namely, the Code of Civil Procedure, lays down that it is only where the cause of action arose or where the defendant resides that a suit can be instituted, there only by the person aggrieved. Regarding the contract between the parties relating to the place where the suit has to be instituted, the divisions reported in N.C.Shandurian v.Tin-Tuti Elec. Supply Co.Ltd , Renown Biscuit Company v.Kamalanathan give much enlightenment in appreciating the provisions of the Code of vivil Procedure relating to jurisdiction.
16. The point for consideration as already observed, is whether both the court below are correct in holding that it is only the courts at Bombay have got jurisdiction to entertain the dispute in question, namely the dispute involved in the suit instituted by the plaintiff-revision petitioner herein in the Sub-Court Chengalpattu. As already seen, the allegations as well as the evidence of P.W. 1 together with the contents of Exts. A-1 and A-2 show that for the purpose of appreciating the points relating to jurisdiction, the transactions were actually entered into at Chrompet. Ex. A-3 is the Invoice No.18/77-78 of the plaintiff company for Rs.1,66,726-20 to the first defendant company. Ex. A-4 is the 2nd defendant. When the entire matter is looked into at this stage, without any further evidence apart from P.W. 1’s mentary evidence Exs. A-1 to A-4 and Ex. B-1 available on record, it is seen that the goods were actually consigned through the second respondent herein as a result of the contract entered into at Chrompet, the place of the plaintiff-company and in that transaction one K.P.Shah acted as an agent of the first respondent herein, though this aspect is more or less conceded in the written statement filed by the first respondent; but yet it is a matter for further eluciation at the time of acutal unfurling of evidence. But it is sufficient to hold at this stage that in order to appreciate the point relating to jurisdiction, the evidence. But it is sufficient to hold at this stage that in order to appreciate the point the point relating to jurisdiction,l the evidence available on record, namely, the oral evidence of P.W. 1 together with the contents of Exs. A-1 to A-4 clearly establish that it is only the Court at Chrompet, namely the trial court in which the suit has been properly instituted, is the proper forum. It is not that any contract relating to jurisdiction of court that may arise. But on the other hand it is only certain printed words, namely “subject to Bombay Jurisdiction ” available at the top of Ex. B-1 that had been relied upon mostly by both the courts below for coming to the conclusion that it is only Bombay Courts that have to be approached for launching the suit and not the Sub-Court, Chengalpattu. Not only the relevant provisions of the Code of Civil Procedure, but also the ratio decidendi available in all the decisions that had been taken into consideration by both the courts below and referred to by them comprehensively, clearly establish that the conclusion arrived at by them is wrong. Bearing in mind the ratio decidendi of the discussions reported in N.C.Shandurain v. Tin-Tuti Elec. Supply Co.Ltd. (1974-2) Mad LJ 431) : where the bench of this Court had completely incorporated the important case law on the point as well as on the view taken by Ismail, J., as he then was, in Renown Biscuit Company v/Mamalanathan based on the principle that the law is not static but it is dynamic in that it changes to suit the progress of any society, this court is definitely of the opinion that both the Courts below have not properly appreciated the point of jurisdiction and as such the order under revision requires interference under the provisions of S. 115, Code of Civil Procedure.
17. In the result, the revision is allowed and the records are sent to the trail court which will take suit on file and proceed with the trial with regard to other issues framed by it and dispose of the same as early as possible. There will be no order as to costs.
18. The second defendant-second respondent herein remained absent during the course of the proceedings in this civil revision petition though it has a say both before the trial court as well as lower appellate court, regarding this aspect.
