JUDGMENT
V. Ramkumar, J.
1. The two defendants in O.S. No. 23 of 2005 on the file of the Second Additional District Court, Ernakulam, are the petitioners in this writ petition filed under Article 227 of the Constitution of India. The respondent herein is the plaintiff in the said suit. The aforementioned suit filed under Section 26 read with Order VII, Rule 1, Civil Procedure Code and Section 134 of the Trade Marks Act, 1999 and Section 62(2) of the Copyright Act, 1957, is for a declaration that the plaintiff is the exclusive owner and proprietor of the marks Kamadon and Melchizedek method of meditation technique and its innumerable logos, insignias, emblems, devices and materials and for a perpetual injunction restraining the defendants by themselves or through their directors, heirs, legal representatives, assignees, servants, agents, etc., from using, deploying, advertising or otherwise adopting in any manner the marks Kamadon and Melchizedek or any deceptive imitation thereof and to render accounts of the profits made by them by the use of the mark Kamadon and Melchizedek method or any mark similar thereto and also to direct the defendants to surrender the plaintiff for destruction of all infringing plates, wrappers, moulds, labels, blocks, dyes, prints, templates and such other materials bearing the name Kamadon and Melchizedek method. In essence the right that is claimed by the plaintiff-company is the exclusive right over the Melchizedek method of meditation said to have been originated and perfected by the late Brian Terril spiritually known as Alton Kamadon and subsequently inherited by his son and legal heir Scott Terril who is claimed to have incorporated the plaintiff-company, viz., Kamadon Academy Proprietary Ltd., Australia, represented by its power of attorney Philip T. Paul residing at 33 of 2087, Sreekala Road, Vennala, Kochi-28. Exhibit P1 is a copy of the plaint in the aforesaid suit.
2. The petitioners herein who are the defendants in the suit filed exhibit P2 written statement on July 22, 2005, resisting the suit claim on various grounds. They contended inter alia that Philip T. Paul who has signed and verified that plaint had no authority to institute the suit, that exhibit P5 power of attorney deed dated June 2, 2005, could not be treated as a valid document authorizing the said Philip T. Paul to conduct proceedings on behalf of the Australian Company, Kamadon Academy Proprietary Ltd. and that since both the defendants are permanently residing at Chennai and so described in the plaint and there was no allegation that the defendants had committed any of the alleged acts within the limits of the Ernakulam court, the court at Ernakulam has no territorial jurisdiction to entertain or try the suit. The petitioners also filed I.A. No. 2578 of 2005 exhibit P6 requesting the trial court to raise preliminary issues incorporating the above objections. The petitioners also filed exhibit P8 petition (I.A. No. 2577 of 2005) under Order VII, Rule 11 read with Sections 21 and 151, Civil Procedure Code for rejection of the plaint on the aforementioned objections. Accordingly, the court below on July 25, 2005, framed two preliminary issues as follows:
1. Whether the Second Additional District Court, Ernakulam, has jurisdiction to try the suit?
2. Whether the plaint is liable to be rejected as not admissible or not maintainable?
3. Both sides were heard by the court below on the above preliminary issues. As per exhibit P10 order dated July 26, 2005, the court below dismissed I.A. 2577 of 2005 (exhibit P8) holding that the plaint was not liable to be rejected on the grounds raised by the petitioners herein and that the only defect was with regard to exhibit P5 power of attorney deed which was not properly stamped and the same was accordingly impounded under Section 33 of the Kerala Stamp Act and the stamp duty and penalty due thereon was directed to be collected from the plaintiff. It is the said order which is assailed in this writ petition.
4. I heard advocate Sri V. Giri, learned Counsel appearing for the petitioners/defendants and advocates K. Sudhakaran and Smt. Uma Moorthy, learned Counsel appearing for the respondent/plaintiff.
Appellants’ arguments:
5. Assailing exhibit P10 order, advocate Sri. V. Giri, learned Counsel appearing for the petitioner/defendants, made the following submissions before me:
6. Both the defendants are described as residing at Chennai. There is no allegation that any of the two defendants started a website “Kamadon-way.com.” and clandestinely started propagating the Melchizedek method as their own from anywhere within the limits of the Ernakulam court. Similarly, any of the acts alleged in paragraph 29 of the plaint with regard to the cause of action for the suit is not stated to have been committed within the local limits of the Ernakulam court. The only allegation in paragraph 28 of the plaint is that the plaintiff carries on its operations in India through its office at Cochin within the jurisdiction of the Ernakulam court and therefore that court has jurisdiction to entertain and try the suit. There is absolutely no material produced in support of the said allegation. For ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful and complicated questions of law or fact. There is nothing in the plaint to indicate that any part of the cause of action had taken place within the limits of the Ernakulam court. Since the claim under the Trade Marks Act is not in respect of any registered trade mark, the suit can only fall under clause (c) of Section 134(1) of the Trade Marks Act, 1999, under which the place of residence of the plaintiff or the place where the plaintiff carries on business or personally works for gain is irrelevant. Even though the place of residence or the place of business of the plaintiff may be relevant in the case of a suit falling under Section 62 of the Copyright Act, 1957, the same will assume importance only if the plaintiff-company has any activity within the limits of the Ernakulam court and the plaintiff has prima facie made out a claim for copyright in respect of the works in question. On its own admission, the plaintiff is a foreign company. In exhibit P5 power of attorney deed, Scott Terril who is alleged to be the executive director of the plaintiff-company has not signed in that capacity. Exhibit P5 recites that the said power of attorney is executed by Scott Terril on his behalf. This means that it is not executed on behalf of the plaintiff-company. If so, exhibit P5 power of attorney deed does not constitute Philip T. Paul as the agent of the plaintiff-company. Exhibit P5 power of attorney deed cannot be relied on by Philip T. Paul to maintain the present action for the following reasons:
(a) Exhibit P5 does not purport to be executed by the plaintiff-company, viz., Kamadon Academy Proprietary Ltd.
(b) The executant of exhibit P5 is an individual who is described as the son of Brian Terril. Merely because he is also the executive director of the plaintiff-company. Exhibit P5 does not become a power of attorney deed executed on behalf of the company.
(c) Any action by Philip T. Paul cannot bind the company. No authority is given by the company to Philip T. Paul to represent the company. Conferment of authority is only to represent Scott Terril on his behalf.
(d) Exhibit P5 does not bear the seal of the plaintiff-company. See Packiria Pillai v. K.V. Subbaiah Mudaliar AIR 1928 Mad 1059.
7. A power of attorney has to be strictly construed. It is necessary to show that in a fair construction of the whole instrument the authority in question is to be found within the four corners of the instrument either in express terms or by necessary implication. (Shankar v. Lakshmibai Air 1928 Bom 225). The following are the most important rules of construction:
(i) The operative part of the deed is controlled by the recitals.
(ii) Where authority is given to do a particular act, followed by general words, the general words are restricted to what is necessary for the proper performance of the particular acts.
(iii) General words do not confer general powers, but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for that purpose.
(iv) The deed must be construed so as to include all medium powers necessary so for its effective execution. (vide Atma Ram v. Chitra Production Co. [1952] 22 Comp Cas 146 : AIR 1952 Punj 99).
8. Exhibits P11 and P12 produced in this writ petition will show that a new office in India for Kamadon Academy is currently being formed. This means that as on the date of the suit the plaintiff-company had no office in India. Nowhere in the plaint it is stated that the work in question was first published in Australia or that by virtue of International Copyright Order, 1999, the said work enjoys the same status as that of a work first published in India. On the plaintiffs own admission, Brian Alton Kamadon is the author in respect of the work. The plaintiff-company is not the author of the work. Scott Terril who is the son of Brian Terril spiritually known as Alton Kamadon might have inherited Alton. But he does not claim any proprietary right over the work, but instead it is a foreign company of which Scott Terril may be a director which has come forward with such a claim. In fact, there is no plea in the plaint that Alton Kamadon was the author of the work and that he first published the work in Australia. This is the minimum that is to be pleaded under Section 13 of the Copyright Act. From a reading of the plaint it is not discernible as to which is the work of Alton Kamadon that was first published in Australia and over which the plaintiff-company lays its claim as a successor in law. There is no whisper in the plaint that Melchizedek method was a method of meditation perfected by Kamadon. No averment that Australia is one of the countries covered by the International Copyright Order so as to bring the case under Section 40 of the Copyright Act, 1957. It was imperative for the plaintiff to plead the jurisdictional facts so as to bring the suit within the cognizance of a particular civil court in India. In the absence of an averment in the plaint that the work in question was a copyrighted work of Alton Kamadon and that it was first published in Australia which is one of the countries covered by the International Copyright Order, 1999, the case cannot be brought under Section 2(i) read with Section 40 of the Copyright Act. Admittedly, the work in question was not first published in India. If so, Section 62(2) of the Copyright Act is not attracted so as to maintain the suit in the Ernaku-lam court. Even assuming that the suit is one falling under Section 62(1) of the Copyright Act, such a suit would be maintainable in that court within the limits of which the person instituting the suit resides or carries on his trade or business. Here the person instituting the suit is the Kamadon Academy which is a foreign company and not Philip T. Paul. Merely because Philip T. Paul resides at Cochin, the suit would not become maintainable before the Cochin (Ernakulam) court by virtue of Section 62(2) of the Copyright Act (vide the decision reported in Exphar SA v. Eupharmal Laboratories Ltd. [2004] 28 Patents and Trade Marks Cases 251 (SC).
Respondent’s arguments:
9. Advocates M/s. K. Sudhakaran and Smt. Uma Moorthy, learned Counsel appearing for the respondent/plaintiff made the following submissions before me in support of the impugned order:
10. The author and originator of Melchizedek method of meditation was late Brian Terril known to the world as Alton Kamadon. The said method of meditation was founded by Alton Kamadon. The declaration, injunction and the other reliefs prayed for in the suit are founded on copyright and trade mark of the work perfected by Alton Kamadon whose rights have come to vest in the plaintiff-company and what is complained of is an infringement of the plaintiffs trade mark by the defendants who were part of the plaintiff academy and working for the plaintiff but who clandestinely started propagating the Melchizedek method as their own from July 2, 2004, onwards using the goodwill and reputation of the plaintiff thereby committing breach of the intellectual property rights of the plaintiff’s company. Copyright subsists in the expression of the ideas as indicated by Section 13 of the Copyright Act, 1957. The expression “work” as defined under Section 2(y) of the Copyright Act and the expression “musical work” as defined under Section 2(p) of the said Act are comprehensive enough to take within their fold the marks: “Kamadon” and “Melchizedek Method” portrayed along with the devices, insignias, logos and the artistic works over which the plaintiff has intellectual property rights. The domain names which are 32 in number are equivalent to trade mark having no topographical boundaries. (vide Satyam Infoway Ltd. v. Sifynet Solutions (P.) Ltd. . In the case of a literary, dramatic or musical work over which copyright subsists under Section 13 of the Copyright Act, by virtue of Section 14(a)(iii) of the said Act the plaintiff has the exclusive right to perform the work in public or communicate the same to the public. Communication to the public, as defined under Section 2(ff) of the Act means the making of any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available. By virtue of the Explanation to the above provision communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public. The cause of action for the suit is the creation of the website itself by approaching the Registrar. When the verbiage was foisted, part of the cause of action had already arisen. Paragraphs 17, 21, and 25 of the plaint makes out the grievance of the plaintiff that the defendants have ambitiously embarked on high-sounding meditation workshops abroad by misusing the identity of Alton Kamadon with the intention of raising funds from various sources in the U.K., U.S.A. and Canada by holding out to the world at large that theirs is a spiritual clairvoyant channel of Alton Kamadon and Sai Baba. During the meditation workshops launched by the defendants they are using colourable imitations and exact copies of the plaintiffs logos, emblems, insignias, designs, unique fonts, colour combinations and get up and such other intellectual property rights without any permission or prior sanction from the plaintiff. The plaint has clearly made out the infringement of the copyright of the plaintiffs ideas under Section 62(2) of the Copyright Act. The plaintiff can institute the suit in the District Court within the local limits of whose jurisdiction the person instituting the suit either voluntarily resides and carries on business or personally works for gain which is at Cochin within the limits of the Ernakulam court. Philip T. Paul who is the power of attorney of the plaintiff-company is a recognized agent of the plaintiff within the meaning of Order III, Rule 1, Civil Procedure Code which contemplates appearance not as a man but as a party itself. (vide page 446 of 2004 edition of M.P. Jain’s Code of Civil Procedure). Hence, Philip T. Paul can safely be called the “the person instituting the suit” within the meaning of Section 62(2) of the Copyright Act. Exhibit P9 is the certificate of registration of the plaintiff-company under the provisions of the Corporations Act, 2001, of the Commonwealth. The company is registered as an Australian company with Scott Terril as the sole director. Exhibit P5 power of attorney deed has been executed by him as the director of the company under Clause 81 of exhibit P9 certificate. By virtue of Clause 103(4)(d) of exhibit P9, no seal of the company is necessary. The contention taken in paragraph 4 of the written statement is that exhibit P5 power of attorney deed is not executed as per the Indian law. Exhibit P5 has been executed under the Corporations Act, 2001, which is a foreign law. Section 85 of the Evidence Act contains a presumption that a document purporting to be a deed of power of attorney and to have been executed before and authenticated by a notary public, was so executed and authenticated. Paragraph 7 of the decision reported in Jugraj Singh v. Jaswant Singh , shows that a power of attorney deed executed in California could be used in the Indian courts. After exhibit P5 was impounded by the court below under Section 33 of the Kerala Stamp Act, the plaintiff has paid the deficit stamp duty and penalty for exhibit P5 the validity of which is not open to attack. There is no specific denial in the written statement of the genuineness of any of the plaintiffs documents. What has been stated at the end of paragraph 5 of the written statement is that the defendants reserve the right to challenge the claim of Scott Anthony Terril in the name of the plaintiff to hold exclusive copyright of the name and title of Alton Kamadon, his teachings, Melchizedek method and his meditation technique. There is, therefore, no specific denial within the meaning of Order 8, Rule 3, Civil Procedure Code. On the contrary, at paragraph 7 of the written statement it is admitted that a company was formed by Scott Terril. In paragraphs 11 and 20 of exhibit P2 written statement the first defendant has admitted that she is the spiritual successor of Alton Kamadon and that she too had paid large amounts for the formation of the plaintiff-company. Such a person is estopped from questioning the legal status of the plaintiff-company. Section 45A of the Corporations Act, 2001, defines what is a proprietary company. As per Section 114 of the said Act a proprietary company should have at least one member who could be the director. By virtue of Section 127(1) of the said Act such director is competent to execute a document. In exhibit P5 power of attorney deed Scott Terril is described as the executive director. He need execute the document only according to laws of Australia and there is a presumption of due execution of such documents. After the production of exhibit P5 power of attorney deed in the Ernakulam court, the plaintiff has paid the stamp duty and penalty. The defence taken is that the defendants are using the mark and reproducing the same as permitted by Alton Kamadon whose rights are not denied. The only say that the plaintiff does not have the exclusive right to use the mark. The defendants had filed exhibit P8 application under Order VII, Rule 8, Civil Procedure Code for rejecting the same for want of jurisdiction and for other grounds. By filing exhibit P8 petition under Order VII, Rule 11, Civil Procedure Code the defendants have virtually admitted that the lower court has jurisdiction to deal with the plaint. Application under Order 7, Rule 11, Civil Procedure Code amounts to waiver of the objection regarding territorial jurisdiction which is capable of being waived. For deciding the question of jurisdiction the plea taken in the written statement is not relevant. What is relevant is the averments in the plaint. Vide para. 24 of State of Orissa v. Klockner and Co. and Vijai Pratap Singh v. Dukh Haran Nath Singh . There is no plea also in the written statement that the plaint does not disclose a cause of action. At that stage the court need not examine whether the plaintiff is entitled to succeed with regard to the claim regarding the cause of action pleaded in the plaint. (vide Liverpool and London S.P. and I Association Ltd. v. m.v. Sea Success . An order refusing to reject the plaint under Order VII, Rule 11, Civil Procedure Code amounts to a preliminary judgment the remedy against which is an appeal and not a writ petition under Article 227 of the Constitution of India. (vide paragraphs 128 and 139 of Liverpool and London S.P. and I Association Ltd. v. m.v. Sea Success ). Where the impugned order is appealable the jurisdiction of the High Court under Article 227 of the Constitution of India cannot enlarge the remedy of the defendant. (vide paragraph 6 of Sadhana Lodh v. National Insurance Co. Ltd. and paragraph 38(4) of Surya Dev Rai v. Ram Chander Rai ).
This Court’s view:
11. After perusing the pleadings, the documents produced in either side and after hearing both sides at length, I am of the view that the plaint is liable to be returned for want of territorial jurisdiction of the Ernakulam court. The plaintiff is, on its own showing, an Australian company by name Kamadon Academy Proprietary Limited registered at New South Wales under exhibit P9 certificate of registration dated March 10, 2004. It has been registered under the provisions of the Corporations Act, 2001. Document No. 2 produced along with the plaint and subsequently marked as exhibit A2 by the court below while disposing of the application for interim injunction is a lawyer notice dated May 9, 2005, issued on behalf of the plaintiff showing that the said notice is issued on behalf of Kamadon Academy Proprietary Limited of Australia having its head office at New South Wales. The said notice issued by the plaintiffs counsel having his office at Dr. Krishnaswamy Road, Kochi does not say that the plaintiff-company has an office at Kochi. The original of exhibit P5 power of attorney deed dated June 2, 2005, whereby Scott Anthony Terril, the executive director of the Kamadon Academy appointed Philip T. Paul of Kochi as his authorised power of attorney to sign proceedings in suits instituted on his behalf also does not say that the plaintiff-company has started an office at Kochi. In exhibit A2 lawyer notice issued on behalf of the plaintiff what is stated in paragraph 12 is that the plaintiff-company reserves to itself the right to open its own branch office in India under its name and style under the applicable Indian laws. It is only in the plaint filed on June 9, 2005, that the plaintiff for the first time has stated that the plaintiff is pursuing and doing its work from the office of the plaintiff at door No. 59/592, 1st floor, Beeta Plaza, Dr. Krishnaswamy Road, Ernakulam, Kochi. Even assuming that by imparting level based education, learning and wisdom through a specialised method and technique of meditation called Melchizedek method the plaintiff which is an Australian company has acquired a distinctive trade mark and copyright, so as to maintain the suit filed under Section 134 of the Trade Marks Act, 1999, and Section 62(2) of the Copyright Act read with Section 26 and Order VII, Rule 1, Civil Procedure Code and even assuming that exhibit P5 power of attorney is a valid document executed on behalf of the plaintiff-company, the plaintiff does not put forward any registered trade mark. Hence, the suit can evidently fall only under clause (c) of Section 134(1) of the Trade Marks Act, 1999. If the suit were to fall under clause (a) or (b) then only the plaintiff could rely on Sub-section (2) of Section 134 to contend for the position that the suit can be filed before a District Court within the local limits of whose jurisdiction the person instituting the suit at the time of institution of the suit actually and voluntarily resides or carries on business or personally works for gain. But in the case of a suit, like the present one falling under clause (c) of Section 134(1) of the Trade Marks Act, the territorial jurisdiction of the court has to be decided not with reference to Sub-section (2) Section 134 but with reference to the general provisions in the Civil Procedure Code namely, Sections 15 to 20 (vide Jaleel Associates v. Hotel Sagar [2005] 1 ILR 237 (Ker)).
12. In the case of infringement of a copyright falling under Section 55 of the Copyright Act, 1957, no doubt, Section 62(2) of the Copyright Act provides the same right of forum for the plaintiff as is made available to a plaintiff in respect of a suit falling under clause (a) or (b) of Section 134 of the Trade Marks Act. But then the plaintiff-company admittedly is an Australian company and its sole executive director, Scott Anthony Terril actually and voluntarily resides in Australia and carries on business and personally works for gain in Australia. Ordinarily, the residence of a company would be at the place where its registered office is situated. (see Morgan Stanley Mutual Fund v. Kartick Das ). So, in this case the plaintiff-company can be said to voluntarily reside at New South Wales in Australia. The expression “carries on business” occurring in Section 62(2) of the Copyright Act will be attracted only if the essential part of the business takes place at the certain place asserted by the plaintiff. The plaintiff cannot be said to carry on business at Ernakulam unless it has an agent at Ernakulam and such agent has the power to receive money and enter into contracts. Where the principal has a branch at Ernakulam where the agent merely collect orders subject to confirmation by the principal or approval by the head office, the principal cannot be said to do business at Ernakulam within the meaning of the above provision. This aspect of the matter has been succinctly elucidated in a recent decision of the apex court in paragraph 49 of Dhodha House v. S.R. Maingi [2006] 32 PTC 1.
13. By no stretch of imagination could Philip T. Paul who styles himself as the power of attorney of the plaintiff-company, be treated as the person instituting the suit within the meaning of Section 62(2) of the Copyright Act so as to enable the plaintiff-company in Australia, to institute the suit in the Ernakulam court, at Kochi. Even if exhibit P5 power of attorney deed were to be understood as one executed on behalf of the plaintiff-company and not on behalf of Scott Anthony Terril, the said instrument authorises Philip T. Paul only to conduct litigation. It does not authorise Philip T. Paul to carry on the affairs of the plaintiff-company at Ernakulam or any other place in India. A perusal of the lower court records shows that even before the filing of the written statement the defendants in their counter affidavit filed on July 22, 2005, had questioned the territorial jurisdiction of the Ernakulam court which passed the impugned order. The statement in exhibit A2 lawyer notice issued as recent as on May 9, 2005, to the effect that the plaintiff-company is contemplating to open its own branch office in India is fortified by exhibits P11 and P12 official information down-loaded from the official website of the plaintiff-company wherein even on August 18, 2005, the plaintiff is only planning to open an office in India. There is not even a whisper about opening an office at Kochi. Hence, merely because the plaint in this case filed on June 9, 2005 mentions about the plaintiff doing its work from an office at Kochi, the said statement can-not be blindly accepted to confer territorial jurisdiction on the Ernakulam court. The Explanation to Section 20 of the Civil Procedure Code obviously applies only to a defendant and not to a plaintiff. Even if it could be extended to a plaintiff, when even on August 18, 2005, as evidenced by exhibits P11 and P12 the plaintiff had not decided about opening an office in India, the case of the plaintiff that as on June 9, 2005, the plaintiff already has a subordinate office at Kochi, can be accepted only with a pinch of salt. It was held by the Supreme Court to Dhodha House v. S.R. Maingi [2006] 32 PTC 1 that merely because the goods of a corporation are sold at a place where it has a subordinate office, it cannot be said that such corporation carries on business at such place. (vide para. 50-Dhodha House v. S.R. Maingi [2006] 32 PTC 1). If the plaintiff does not actually and voluntarily reside or carry on business or personally works for gain in any place within the local limits of the Ernakulam court, Section 62(2) of the Copyright Act, 1957, cannot clothe the Ernakulam court with jurisdiction to entertain a suit of this nature.
14. The further question which survives for consideration is as to whether the Ernakulam court has territorial jurisdiction by virtue of the provisions in the Code of Civil Procedure. Admittedly, Sections 16 to 19 of the Civil Procedure Code have no application to the present suit. Under Section 20 of the Civil Procedure Code the suit is to be instituted in that court within the local limits of whose jurisdiction the defendants or each of the defendants at the time of commencement of the suit actually and voluntarily resides, or carries on business or personally works for gain or in that court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. Both the defendants (the petitioners herein) are described as residing at Kilpauk, Chennai, in the State of Tamil Nadu. There is not even a whisper in the plaint to the effect that any of the acts of propagation, receipt of money from the plaintiff for promotional activities, the subsequent detachment of the defendants from the plaintiff and starting of their own organization allegedly using the goodwill and reputation of the plaintiff or the alleged infringement of the intellectual property rights of the plaintiffs or the creation and registration of their own domain names or the alleged mis-representation by the defendants of the goodwill and reputation of the plaintiff, etc., were committed in any place within the local limits of the jurisdiction of the Ernakulam court. In the absence of any specific allegation in the plaint to the effect that any of the aforesaid objectionable acts of the defendants was committed in a place within the local limits of the Ernakulam court the ordinary and natural inference should be that those acts were committed at some place at Chennai in the State of Tamil Nadu. The alleged transfer of 71,382.92 Australian dollars by the plaintiff to the first defendant by way of four instalments detailed in paragraph 9 of the plaint were all to Citibank, Chennai. When the plaintiff-company incorporated in Australia is the person instituting the suit and it carries on business and personally works for gain in Australia and not in Ernakulam and when no part of the cause of action is alleged to have taken place at any place in Ernakulam, the Ernakulam court could not have had territorial jurisdiction to entertain the suit or take cognizance of the matter. It is trite law that the judgment or order passed by a court having no territorial jurisdiction would be coram non judice and would therefore be a nullity. (vide paras. 25 to 27 of Dhodha House v. S.R. Maingi [2006] 32 PTC 1).
15. This is not a case where the plaint is liable to be rejected under Order VII, Rule 11 (a), Civil Procedure Code for the reason that the plaint does not disclose a cause of action. This is really a case where the cause of action alleged in the plaint has not taken place within the local limits of the jurisdiction of the Ernakulam court. The objection regarding territorial jurisdiction of the court below was raised at the earliest opportunity. Hence the plaint was liable to be returned under Order VII, Rule 10, Civil Procedure Code for being presented to the court where the suit should have been instituted. An order returning a plaint under Order VII, Rule 10, is appealable under Order 43, Rule 1(a), Civil Procedure Code whereas an order refusing to return a plaint under Order VII, Rule 10, Civil Procedure Code is not appealable. A strict application of Section 115 Civil Procedure Code will indicate that such an order is not revisable either and indeed there is no contention also that the impugned order is revisable. In the light of the authoritative pronouncement of the apex court in Surya Dev Rai v. Ram Chander Rai the refusal on the part of the court below to entertain the objection regarding territorial jurisdiction and to return the plaint under Order VII, Rule 10, Civil Procedure Code is clearly amenable to correction in a writ petition filed under Article 227 of the Constitution of India. Such being the position, I do not find any merit in the objection raised by the respondent/plaintiff. In the light of the conclusion reached by me, I am not going into the merits of the other contentions raised by the parties, as the same will have to be considered by the appropriate court having territorial jurisdiction to entertain the suit.
16. The result of the foregoing discussion is that the Ernakulam court does not appear to have territorial jurisdiction to entertain the suit. The plaint was, therefore, liable to be returned under Order 7, Rule 10, Civil Procedure Code. Preliminary issue No. 1 is accordingly answered against the plaintiff and in favour of the defendants.
17. In the result, exhibit P10 order is set aside and the court below shall return the plaint under Order 7, Rule 10, Civil Procedure Code for presentation before the proper court. This writ petition is allowed as above. There shall be no order as to costs.