ORDER
B.P. Das, J.
1. The notice against the opposite party was published in local newspaper as it was not possible to serve the notice on it in regular course. The same was accepted as sufficient. None appears for the opposite party when the matter is taken up.
2. This application is directed, against an order passed by the learned Civil Judge (Senior Division), Berhampur in Title Suit No. 17 of 1977 dismissing the suit on the preliminary issue of jurisdiction.
3. The petitioner was the plaintiff in Court below and she filed the aforesaid suit for” recovery of damages. The defendant after entering appearance fifed its written statement along with an application under order 151 C. P. C., raising the question of jurisdiction of the Court to try the suit, which was taken up as a preliminary issue. The Civil Judge (Senior Division) answered the said preliminary issue against the plaintiff-petitioner and dismissed the suit due to lack of jurisdiction. While taking up the preliminary issue as to jurisdiction, the trial Court entered into the arena of locus standi as well as the status of the plaintiff and also decided the same against the plaintiff. As it appears from the facts narrated in this application, the opposite party, which is a public limited company, is engaged in the business of manufacturing cement in Orissa. It has its registered office and factory at Ampavalli village under Pottangi Tahasil in the district of Koraput and sales office at Berhampur and Bhubaneswar. The plaintiff-petitioner was appointed as a distributor of the opposite party for which she had deposited Rs. 10 lakhs with the opposite party which was acknowledged by the opposite party and an agreement was entered into between the parties. The further case of the plaintiff petitioner is that subsequently the opposite party failed to perform his part of the agreement and supply cement, that too suspended the distributorship of the petitioner. For the above cause of action the
petitioner filed a suit for recovery ofloss and damages against the opposite party.
4. The case of the plaintiff-petitioner as reveals from the impugned order is that it was never agreed between the plaintiff and defendant firm that in case of any dispute arising between the parties, it would be decided by the Court at Visakhapatnam. In this regard reference was made to Clause 8 of the Agreement, which contains “Jurisdiction- Visakhapatham”.
According to learned counsel for the petitioner, the petitioner’s case right from the beginning was that she has never agreed by confering the jurisdiction to Courts at Visakhapatnam to decide any dispute arising between the parties under the agreement. It is further stated that the trial Court looking at Clause ‘8’ perhaps presumed that the same was intended to confer jurisdiction pn Visakhapatnam Courts to decide any dispute arising out of the business transaction between the plaintiff and the defendant firm. According to the learned counsel for the petitioner, a bare reading of Clause-8 of the agreement does not in any manner convey that the parties agreed among themselves that the dispute arising out of the business transaction between them shall be subject to the jurisdiction of Courts at Viskhapatnam.
5. Apart from that according to Mr. Rath, learned counsel for the petitioner, the question of jurisdiction in the present proceeding being not a pure question of law, it could not be treated and decided as a preliminary issue by the Civil Judge (Senior Division) at the threshold.
6. It is not out of place to mention here that the forum chosen by the parties by way of an agreement shall ordinarily be respected if the same is neither contrary to public policy, nor does it contravene the provisions of Section 28 of the Contract Act (see AIR 1987 Orissa 30) (Indian Rare Earths Ltd. and Ors. v. Unique Builders Ltd.). But a question arises as to whether such an issue could be decided as a preliminary issue when it was a mixed question of fact and law.
7. In this context, in the case of Madhabananda Ray v. Spencer and Company Ltd., reported in AIR 1988 Orissa 35, this Court after interpreting the provisions of order 14 Rule 2 C.P.C. Before and after its amendment held as follows :
“A reading of the unamended and the amended provisions would indicate that the consideration of an issue and its disposal as a preliminary one are now permitted in limited cases. While under the unamended provision, the categorisation was only between issues of law and of fact and it was mandatory for the Court to try the issues of law at the first instance, under the amended provisions there is a mandate to the Court that notwithstanding that a case may be disposed of on a preliminary issue, the Court has to pronounce judgment on all the issues. The only exception to this has been provided to Sub-rule (2) which confers discretion on the Court to try an issue first if the case or any part thereof may be disposed of on an issue of law only. The exercise of this discretion is circumscribed by and limited to the contingency that the issue to be so tried must relate to the jurisdiction of the Court or a bar to the suit created by any law in force. Thus it would not be correct to assume that any question touching upon the jurisdiction of a Court would automatically become an issue of law as this question may as well depend on factual aspects. If no investigation is necessary and it is not necessary to go into controversial facts, the question relating to jurisdiction may be treated and decided as an issue of law only under the amended provision. If, on the other hand, it would be necessary to decide a factual controversy before arriving at a conclusion with regard to the question of jurisdiction of the Court, such a question cannot be treated to be a pure question of law. When the institution of the suit is incompetent under the law or when the Court finds that it has no jurisdiction and to come to such a conclusion, no investigation is necessary and no evidence is necessary to be recorded, the Court has jurisdiction to decide the case or any part thereof on an issue of law only.”
8. Considering the facts and circumstances of the present case, I am of the view that the question of jurisdiction raised cannot be said to be a pure question of law which could be decided at the threshold. In the case at hand to decide the issue of jurisdiction it is necessary to enter into the arena of fact, because the consistent case of the plaintiff petitioner is that she had never entered into any agreement acquiescing to the jurisdiction of the Courts at
Visakhapatnam. That too, on a bare reading of Clause 8 of the agreement, ii appears that the same does not indicate that the Courts at Visakhapatnam will only have jurisdiction to try the suit. Hence, dismissal of the present suit by the trial Court was uncalled for as there are no materials to come to such conclusion.
9. Accordingly, the revision is allowed. The impugned order is set aside. The trial Court is directed to decide the question of jurisdiction while deciding the other issues at the time of hearing of the suit. No cost.