JUDGMENT
K.S. Rathore, J.
1. This writ petition is directed against the order dated 9.9.2004 passed by the Additional District & Sessions Judge, No. 4, Jaipur City, Jaipur, by which, the application of the petitioners under Order 7 Rule 11 read with Section 151 C.P.C. has been rejected.
2. Brief facts of the case are that the respondent No. 1 was appointed as Programme Coordinator by the petitioners vide appointment order dated 25.7.2000 which was made effective from 1.9.2000 initially for a period of three years subject to condition that the services can be terminated with the notice period of three months on either side or salary in lieu thereof as per Clause 6 of Service Contract dated 25.7.2000 and the service conditions shall be governed by the “Staff Charter for India” as amended from time to time.
3. The services of the respondent were terminated on 24.10.2000 by the Principal Office New Delhi and all his dues including three months salary in lieu of notice were paid to him on 26.3.2001. Aggrieved and dissatisfying with the termination order, the respondent No. 1 filed a suit before the Court of Civil Judge J.D. No. 2, Jaipur City, Jaipur on 26.3.2001.
4. It is also submitted that earlier to the present suit, the respondent also filed another suit and in that suit the petitioners had moved an application under Order 7 Rule 11 read with Section 151 C.P.C. and while deciding the said application, the Civil Judge J.D., Jaipur City, Jaipur, dismissed the suit of the respondent No. 1 vide its order dated 25.10.2002 in view of the provisions of Order 7 Rule 11 C.P.C. Against the judgment passed by the Civil Judge dated 25.10.2002, the respondent No. 1 preferred a misc. appeal before the Additional District Judge, No. 5, Jaipur City, Jaipur, which was also rejected on 16.12.2003 and thereafter the respondent No. 1 preferred a second appeal before the Court and same was rejected in limine vide judgment dated 29.1.2004.
5. During the pendency of the present suit, the petitioners defendants moved an application under Section 20 and 21 read with Order 7 Rule 11d as well as Section 151 C.P.C. before the court below and prayed for rejection of the suit as the same is also inhabited by provisions of Order 2 Rule 2 C.P.C. and interdicted for not revealing any cause of action in view of explicit and categoric contract between the parties to resolve the disputes, if any, through Delhi Courts only.
6. In support of his submissions, learned Counsel for the petitioners referred “Staff Charter” wherein in para No. 2 which is titled as “Preamble” which stipulates that “all the legal matters pertaining to the terms and conditions of employment come under the exclusive jurisdiction of only the Delhi Courts”. And also referred Clause 28 of the “Staff Charter” which provides that “in case of any dispute arising out of service conditions of staff member the matter should be referred to and dealt by the head office in Delhi. The jurisdiction of Delhi Court would be valid unless specified by CPDI Country Programme Director India.
7. After referring these two clauses, learned Counsel for the petitioner placed reliance on the judgment rendered by Hon’ble the Supreme Court in the case “Hanil Era Textiles Ltd. v. Puromatic Filters P Ltd. wherein Hon’ble the Supreme Court has held as under:
Territorial jurisdiction of Court-Determination of part of cause of action accrued in both places viz. Delhi and Bombay- Clause in agreement between parties, however, conferring jurisdiction in Courts in Bombay-Not opposed to public policy- Clause not qualified by words like “alone” “only” or “exclusively”. But having regard to facts that purchase order was placed by the defendant at Bombay; the said order was accepted by the branch office of the plaintiff at Bombay; the advance payment was made by the defendant at Bombay’ and as per the plaintiffs’ case the final payment was to be made at Bombay- It can be inferred that Courts in Bombay have jurisdiction to the exclusion of all other Courts-Court of Additional District Judge, Delhi had, therefore, no territorial jurisdiction to try the suit.
8. Hon’ble the Supreme Court also considered the case of “A.B.C, Laminart Pvt. Ltd. v. A.P, Agencies wherein it was held as under:
When the Court has to decide the question of jurisdiction pursuant to an ouster clause it is necessary to construe the ousting expression or clause properly. Often the stipulation is that the contract shall be deemed to have been made at a particular place. This would provide the connecting factor for jurisdiction to the Courts of that place in the matter of any dispute on or arising out of that contract. It would not, however, ipso facto take away jurisdiction of other Courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction. As regards construction of the ouster clause 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 other from its operation may in such cases be inferred. It has therefore to be properly construed.
9. Per contra, learned Counsel for the respondent has stated that the court below has not committed any wrong while rejecting the application under Order 7 Rule 11 read with Section 151 C.P.C.
10. Learned Counsel for the respondent after referring Clause 28 of the “Staff Charter” submitted that there is no specific word “exclusive”, “only” and “alone”, therefore, part cause of action was made available to the respondent here in Jaipur and the respondent plaintiff has rightly filed a suit here in Jaipur Civil Court and the Civil Court has rightly rejected the application filed by the petitioner defendants under Order 7 Rule 11-D. In support of his submissions, learned Counsel for the respondent placed reliance on the judgment of this Court in the case “Hindustan Metals, Jodhpur v. Vishal Goods Transport Co. and Anr.” reported in Western Law Cases Raj. 2002 4 728 wherein this Court has held as under:
Territorial jurisdiction of court-Suit against carrier for non-delivery of goods-Goods boarded from Jodhpur branch office of carrier for delivery at Modinagar-Carrier having its Head Office at Delhi-Jodhpur Court within whose territorial jurisdiction cause of action arose, has jurisdiction to try suit- Printed condition in documents of carrier that Court at Delhi will alone have jurisdiction, ineffective since parties by consent cannot create jurisdiction in Delhi Court where no cause of action arose-No failure of justice in suit being tried at Jodhpur.
11. He further referred the judgment rendered by this Court in the case “Balu Singh v. Union of India and Ors.” reported in 19961 Western Law Cases 699 wherein this Court has held as under:
Territorial Jurisdiction-Cause of action-Dispute relating to payment of Pension-Petitioner-Appellant retired from X Battalion Rajput Rifles-Letter refusing pension to petitioner delivered to him within jurisdiction of Court-Petitioner- Appellant recruited in Rajasthan-Pension if payable, had to be paid in Rajasthan-Refusal communicated within jurisdiction of Court-Writ petition entertainable notwithstanding fact that respondents do not reside in Rajasthan since part of cause of action in accrued within jurisdiction of Court”. And also referred a judgment of this Court in the case “Jaishree Luxury House v. Kathotia Sons” wherein this Court has held as under:
Condition in Order form that “any legal proceeding in respect of any matters, or claims or dispute on any account shall be instituted by purchaser in Delhi Court alone”-Bill issued also containing the words “subject to Delhi jurisdiction”- Suit to recover price by the seller-Condition held did not oust jurisdiction of courts other than those which may have jurisdiction.
12. Hon’ble the Supreme Court in the case “A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies Salem” reported in 19892 SCC 163 has held as under:
So long as the parties to a contract do not oust the jurisdiction of all the courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their contract ousted the jurisdiction of the court. 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 there within, 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 contracting against the statute. Mercantile law and practice permit such agreements.
When the court has to decide the question of jurisdiction pursuant to an ouster clause it is necessary to construe the ousting expression or clause properly to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause 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 ‘expression 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. Often the stipulation is that the contract shall be deemed to have been made at a particular place. This would provide the connecting factor for jurisdiction to the courts of that place in the matter of any dispute on or arising out of that contract. It would not, however, ipso fact take away jurisdiction of other courts. As a suit on a contract can be filed at the place where it is made, the Kaira court would even otherwise have had jurisdiction. The bobbins of metallic yarn were delivered at the address of the respondent at Salem which, therefore, would provide the connecting factor for court at Salem to have jurisdiction. The question then is whether it can be construed to have excluded the jurisdiction of the court at Salem. In the clause “any dispute arising out of this sale shall be subject to Kaira jurisdiction” in Clause 11 ex facie there are no exclusionary words. 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 it must be held that while connecting factor with Kaira jurisdiction was ensured by fixing the situs of the contract within Kaira, other jurisdictions having connecting factor were not clearly, unambiguously and explicitly excluded. It could not, therefore, be said that the jurisdiction of the court at Salem, which could otherwise had jurisdiction under law through connecting factor of delivery of goods thereat, was expressly excluded.
13. Heard rival submissions of the respective parties and perused the relevant clauses of “Staff Charter” and the order impugned passed by the Additional District Judge, No. 4, Jaipur City, Jaipur and the judgments referred by the respective parties. The grievance of the petitioner is that the application moved on behalf of the petitioners defendants under Order 7 Rule 11 read with Section 151 C.P.C. has been rejected vide judgment dated 9.9.2004 holding that part cause of action is made available to the respondent plaintiff and it is also submitted that ‘only’, ‘alone’ and ‘exclusive’ words are not used in Clause 28 of the Charter. Even otherwise also if it is considered that the jurisdiction of the legal matter pertaining to the terms and conditions of the employment given under the exclusive jurisdiction only the Delhi Courts and accepting Staff Charter for India as accepted even there is stipulation of exclusive jurisdiction of only Delhi Court as held by various judgments passed by this Court and Hon’ble Supreme Court and part cause of action available, the respondent plaintiff can file a suit where part cause of action is arises.
14. It is not disputed that part cause of action is available to the respondent plaintiff here at Jaipur as in the judgment reported in AIR 2004 SC 2432 wherein Hon’ble Supreme Court observed considered Clause 17 which says “Any legal proceedings arising out of the order shall be subject to the jurisdiction of the Courts in Mumbai. The clause is no doubt not qualified by the words like “alone”, “only” or “exclusively”. Therefore, what is to be seen is whether in the facts and circumstances of the present case it can be inferred that the jurisdiction of all other Courts except Courts in Mumbai is excluded. Having regard to the fact that the order was placed by the defendant at Bombay’ the said order was accepted by the branch office of the plaintiff at Bombay; the advance payment was made by the defendant at Bombay; and as per the plaintiffs 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. The Court of Additional District Judge, Delhi had, therefore, no territorial jurisdiction to try the suit”.
15. Hon’ble the Supreme Court in the case of M/s. Hanil Era Textiles Ltd. relied on the judgments of A.B.C. Ltd. supra expressly stated that “As regards construction of the ouster clause 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 exclusion 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 other from its operation may in such cases be inferred. It has therefore to be properly construed”,
16. Thus, the issue which is to be decided is that whether the civil court of Jaipur has the jurisdiction or not. As in the instant case, the appointment letter was issued at Jaipur. The appointment was made at Jaipur. Interview was held at Jaipur. Therefore, part cause of action was made available to the respondent plaintiff here at Jaipur and thus the court below has rightly rejected the application under Order 7 Rule 11 read with Section 151 C.P.C. and in view of the aforementioned observations made here in above, I find no good reason to interfere with the order impugned dated 9.9.2004. Consequently, the writ petition fails and is hereby dismissed.