JUDGMENT
R. Bhaskaran, J.
1. This appeal is filed by the plaintiff in O.S. No. 75 of 1996 on the file of the Subordinate Judge’s Court, Manjeri, against the preliminary finding that that Court has no jurisdiction to try and dispose of the suit.
2. The suit is for damages. It is not in dispute that but for the special clause in the agreement (the scope of which is under consideration in this appeal) between the parties both the Manjeri and Calicut Sub Courts have jurisdiction to try the suit. The dispute arose out of the alleged violation of an agreement for the supply of machinery, erection and commissioning of an ice plant. Clause 17 of the agreement also provided as follows.
“17. It is hereby agreed that all matters relating to this contract shall be subject to Calicut jurisdiction.”
3. The question to be considered is whether by this clause the jurisdiction of the Manjeri Subordinate Judge’s Court which otherwise has got jurisdiction can be excluded.
4. The judicial precedents are uniform that when two courts have jurisdiction, the parties are free to select one of them where alone the suit can be filed. But the precedents are not uniform as to what exactly are the words to be used to exclude the jurisdiction of a court. If the words “only”, “alone”, “exclusively” etc are used, it is an indication of the intention of the parties to exclude the jurisdiction of other courts. But when such words are conspicuously absent what should be the order to be passed when the question of jurisdiction is raised by the defendant in the suit?
5. In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem , the agreement contained the following clause:
“Any dispute arising out of this sale shall be subject to Kaira jurisdiction.”
The suit was filed in the Subordinate Judge’s Court, Salem, for recovery of the balance of the advance remaining in the hands of the appellants and also for damages. The trial court found on a preliminary issue that the Salem court has no jurisdiction in view of the agreement between the parties. The Supreme Court held as follows:
“21. From the foregoing decisions it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other Courts. When words like ‘alone’, ‘only’, ‘exclusive’, and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim ‘expressio unius est exclusio alterius’ – expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed.”
It was also held as follows:
“In the clause ‘any dispute arising out of this sale shall be subject to Kaira jurisdiction’ ex facie we do not find exclusive words like ‘exclusive’, ‘alone’, ‘only’ and the like. Can the maxim ‘ expressio unius est exclusio alterius’ be applied under the facts and circumstances of the case? The order of confirmation is of no assistance. The other general terms and conditions are also not indicative of exclusion of other jurisdictions. Under the facts and circumstances of the case we hold that while connecting factor with Kaira jurisdiction was ensured by fixing the suits of the contract within Kaira, other jurisdictions having connecting factors were not clearly, unambiguously and explicitly excluded. That being the position it could not be said that the jurisdiction of the Court at Salem which Court otherwise had jurisdiction under law through connecting factor of delivery of goods there at was expressly excluded.”
This decision was followed by a three member bench of the Supreme Court in R.S.D. V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd. . In National Starch & Chemicals v. Weikfield Products Co. (India) (1990 (1) KLT 217), Varghese Kalliath, J. considered the scope of the clause in the agreement regarding jurisdiction which read as follows:
“Jurisdiction – All transactions are subject to Poona jurisdiction”.
It was held that in the absence of the word excluding the jurisdiction of Trivandrum Sub Court, it was difficult to agree that there was exclusion of the jurisdiction of Trivandrum courts.
6. As against the above decisions, the learned counsel for the respondent brought to our notice the decision of the Supreme Court in Shriram City Union Finance Corporations Ltd. v. Rama Mishra . The exclusion clause in the agreement in that case read as follows:
“Subject to the provisions of clause 32 above it is expressly agreed by and between the parties herein above that any suit, application and/or any other legal proceedings with regard to any other legal proceedings with regard to any matter, claims, differences and for disputes arising out of this agreement shall be filled and referred to the courts in Calcutta for the purpose of jurisdiction”.
Considering the words of the agreement, the Supreme Court held that the courts at Calcutta alone was competent to adjudicate the dispute between the parties. The words “expressly agreed” show that the parties wanted to exclude jurisdiction of other courts. In Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd. , the exclusion clause reads as follows:
“Any legal proceedings arising out of the order shall be subject to the jurisdiction of the courts in Mumbai.”
The suit was however filed in the District Court, Delhi, for recovery of Rs. 3,93,344.80 with interest. The District Court, Delhi, found that court has jurisdiction and the High Court confirmed that finding. The Supreme Court found that the words like “only”, “alone” or “exclusively” were absent in the exclusion clause. It was found that having regard to the fact that the order was placed by the defendant at Bombay and accepted by the plaintiff at Bombay, the advance payment was made by the defendant at Bombay, and as per the plaintiff’s case the final payment was to be made at Bombay, there was a clear intention to confine the jurisdiction of the courts in Bombay to the exclusion of all other courts. In view of the above, the plaint filed by the respondent was ordered to be returned for presentation before the competent court at Bombay. In New Moga Transport Co. v. United India Insurance Co. Ltd. , the consignment note contained the following clause.
“The court at head office city shall only be the jurisdiction in respect of all claims and matters arising under the consignment at the goods entrusted for transport.”
The Supreme Court held as follows:
“The intention of parties can be culled out from use of expressions “only”, “alone”, “exclusive” and the like with reference to a particular court. But the intention to exclude a court’s jurisdiction should be reflected in dear, unambiguous, explicit and specific terms. In such case only the accepted notions of contract would bind the parties. The first appellate court was justified in holding that it was only the court at Udaipur which had jurisdiction to try the suit. The High Court did not keep the relevant aspects in view while reversing the judgment of the trial court.”
In this case, the word “only” was used in the clause excluding jurisdiction of other courts other than the court at head office city which was situated at Udaipur. But the suit was filed at Barnala. It was therefore held that the plaint was to be returned for presentation to proper court. In Man Roland Durckimachimen AG v. Multicolour Offset Ltd. , the parties agreed to settle their disputes by arbitration and the place of jurisdiction shall be the place of work in supplying the goods concerned. The Supreme Court held as follows:
“When the parties have agreed on a forum, the courts will enforce such agreement. This is not because of a lack or ouster of its own jurisdiction by reason of consensual conferment of jurisdiction on another court, but because the court will not be party to a breach of an agreement. Such an agreement is not contrary to public policy nor does it contravene Section 28 or Section 23 of the Contract Act.”
7. It is in the light of the above decisions, the controversy between the parties with regard to jurisdiction of the Manjeri court to try and dispose of the suit has to be considered. In this case, no doubt the defendant raised the question of want of jurisdiction in the Manjeri court in the written statement itself. But as seen from the order under challenge itself the defendant did not press for considering the question of jurisdiction till the case was posted for trial. The defendant also made a counter claim in the written statement. The plaintiff took out a Commission to ascertain certain facts which were necessary for deciding the dispute on merit. After the Commission report was filed and before examination of the witnesses started, the defendant filed I.A. No. 1982 of 2004 to decide the question of jurisdiction as a preliminary issue. The order was passed in that LA. The learned counsel for the appellant pointed out that the defendant waited and allowed the plaintiff to take all steps necessary for the trial of the suit including taking out a Commission and precious seven years elapsed before the defendant actually raised the question of jurisdiction. Therefore, it was pointed out that inasmuch as admittedly Manjeri court also has jurisdiction and it is not a case of absolute want of jurisdiction, the court should not direct the return of the plaint when there was no explicit exclusion of jurisdiction of court other than the courts at Calicut.
8. It is, no doubt, true that Section 21 of the Code of Civil Procedure is limited to raising of objection with regard to territorial jurisdiction in appeal and revision. But as held by the Supreme Court in Bahrein Petroleum Co. v. P.J. Pappu , long and continued participation by the defendant in the proceedings without any protest may, in an appropriate case, amount to a waiver of the objection. That is independent of Section 21 of the Code of Civil Procedure. The words used in Section 21 “unless there has been a consequent failure of justice” also indicates that the defendant who did not press for deciding the question of jurisdiction at the earliest opportunity and made the plaintiff to take steps in the suit including appointment of a Commission and the defendant himself filed counter-claim in the suit, there is no justification for raising the objection just before the actual trial started.
In the above circumstance, the absence of words like “only”, “exclusively” etc in the exclusion clause in the agreement assumes importance. In the light of the above discussion, we find that the order passed by the Subordinate Court, Manjeri, holding that it has no jurisdiction is only to be set aside and we do so. In the result, the appeal is allowed and the Subordinate Judge, Manjeri, is directed to try and dispose of O.S. No. 75 of 1996 on merits. The parties shall bear their costs in this appeal. The parties shall appear in the trial court on 9-8-2005.