D.P. Mohapatra, J.
1. The Paradeep Port Trust, represented through its Chairman, the plaintiff in Money Suit No. 514 of 1974 now pending before the Subordinate Judge, Jagatsinghpur, has filed this revision petition under Section 115, Civil Procedure Code, challenging the order dated 30th November, 1979 holding that he has no jurisdiction to entertain the suit.
The facts relevant for the purpose of the present proceeding are that the petitioner booked at Calcutta a consignment comprising of two wooden boxes containing spare parts with M/s. Hindusthan Mercantile Transport Corporation (defendant No. 1 Opposite Party No. 1) for being transported to Paradeep. M/s. Central Goods Transport Corporation (Opposite Party No. 2) is underwriter for opposite party No. 1. The goods booked at Calcutta were meant to be delivered to the Port Trust at Paradeep admittedly within the territorial jurisdiction of the Subordinate Judge, Jagatsinghpur. Of the two boxes, one was duly delivered at Paradeep and the other was not delivered to the petitioner. Hence, the suit was filed for recovery of Rs. 7,152.88 paise towards the price of the said goods not delivered.
2. The opposite party No. 1 in its written statement took a plea that it was agreed between the parties that any suit based on the consignment must be filed in the Courts established within exclusive jurisdiction of Calcutta and hence the Court at Jagatsinghpur has no territorial jurisdiction to try the suit. Reliance was placed on Clause 25 of the consignment note in support of the plea. It is pertinent to note that the opposite party No. 3 did not take any such objection in its written statement.
3. On the pleadings of the parties, several issues were framed of which issue No. 4 is to the effect.
4. 'Is the suit bad for want of jurisdiction?' At the instance of the opposite party No. 1, this issue was taken up as a preliminary issue by the trial Court. Under the impugned order the preliminary issue has been decided against the plaintiff.
4A. In this revision petition, there is no appearance for opposite party No. 1 in spite of notice. Opposite Party No. 2 alone has appeared in this proceeding.
5. The sole question arising for consideration is whether in view of the Clause 25 of the consignment note, a copy of which was filed by the plaintiff-petitioner, it can be said that the Court at Jagatsinghpur is ousted of its jurisdiction to entertain the suit. It is conceded that the said Court is otherwise competent to entertain the suit since the consignment was intended to be delivered at Paradeep, and a part of the consignment was delivered there and non-delivery of the rest of the consignment was detected there. The learned trial court in the impugned order has proceeded on the bash that since the plaintiff was shown as the consignor as well as the consignee in the note, it has to be held that it is bound by Clause 25 printed on the reverse of the consignment note.
Sri Misra, learned counsel for the petitioner, contends that the view taken by the Court below is apparently erroneous since he has not applied his mind to the relevant questions as to whether there was at all an agreement between the parties ousting the jurisdiction of Courts in Orissa or vesting jurisdiction exclusively in the Courts at Calcutta and even if such an agreement was entered into whether it was imperative for the Court to enforce the agreement in the facts and circumstances of the case. According to him, non-consideration of these important relevant matters has vitiated the exercise of jurisdiction by the Court.
6. Sri. R. N. Sinha, learned counsel for the opposite party No. 2, has placed reliance on the consignment note to contend that since the note contains a clause regarding jurisdiction and the document has been filed by the plaintiff, the view taken by the Court below is justified and is not available to be interfered with.
It has not to be accepted as the settled position of law that where a suit can be filed in either of two Courts, as where a part of the cause of action arises within the jurisdiction of both the Courts or where cause of action arises within the jurisdiction of one Court and the defendants reside in the jurisdiction of the other Court, the parties can agree that any dispute arising between them shall be tried by one of those Courts only. It is also an accepted principle that though the choice of forum made by the parties by consent is to be respected, the enforcement of the choce by the Courts cannot be ruled as imperative in all circumstances. It depends on the facts of each case and taking them into consideration, it is open to the Court to hold that in spite of such an agreement between the parties, since the clause becomes oppressive for the plaintiff. It may not enforce the clause in a particular case. This view finds support from a recent decision of this Court reported in AIR 1984 Orissa-182, where relying on several decisions of the Supreme Court and other High Courts, R. C. Patnaik, J, Held as follows : --
'It is not open to the parties by agreement to confer jurisdiction on a Court which it does not possess under the Code; but where two Courts or more have under the Civil Procedure Code jurisdiction to try a suit or proceeding, an agreement between the parties that the dispute between them shall be tried in one of such Courts, is not contrary to public policy. Such an agreement between the parties does not oust the jurisdiction of the Court. It may operate as an estoppel against the parties but it cannot deprive the Court of its power to do justice. Ordinarily, the Court would have regard to the choice of the parties; where, however, the Court whose jurisdiction has been ousted is satisfied that the stipulation would operate harshly, is oppressive in character, inequitable or unfair, for the ends of justice, it can relieve the party of the bargain.'
A similar view has been taken in an earlier decision of this Court reported in (1979) 48 Cut LT 104 : (AIR 1979 Orissa 126). In view of the principles indicated above, the view taken by the Court below that merely because of the existence of the Clause 25 of the consignment note, its jurisdiction stands ousted is not sustainable. Further, in this case, no independent material has been produced to show that there was an agreement between the parties to this effect. Admittedly, no evidence has been led on the issue and excepting the consignment note, no other document has been produced. Since the very existence of the agreement itself has not been established, the Court below erred in assuming that the parties had agreed to abide by Clause 25 simply because it was printed on the reverse of the consignment note. The onus lies on the party who pleads ouster of jurisdiction of a competent Court to establish by independent evidence that there was a bilateral agreement between the parties vesting jurisdiction in one Court or excluding the same in the other. Further, the amount claimed in the suit is Rs. 7,152.88 and to compel the plaintiff to go to Calcutta to file the suit for realisation of this small amount will be highly prejudicial and oppressive.
7. For the reasons set out above, the impugned order is set aside and the revision petition is allowed, but in the facts and circumstances of the case, there will be no order for costs.