IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 FAO.No. 49 of 2010() ------------------------------ OS.606/2003 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/ PLAINTIFF ---------------------------------- KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION LTD. KELTRON HOUSE VELLAYAMBALAM THIRUVANANTHAPURAM REPRESENTED BY THE MANAGING DIRECTOR BY SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): ---------------------------- 1. CELLNET HAVING ITS REGD.OFFICE AT ROOM NO.2,CORPORATION BUILDING, NADAKKAVU CROSS ROAD, KOZHIKODE, REPRESENTED BY ITS MANAGING DIRECTOR K.S.NISHAD. 2. K.S.NIYESH, DIRECTOR, CELLNET ROOM NO.2, CORPORATE BUILDING, NADAKKAVU, CROSS ROAD, KOZHIKODE. 3. K.SANTHOSH, DIRECTOR, CELLNET ROOM NO.2, CORPORATE BUILDING, NADAKKAVU, CROSS ROAD, KOZHIKODE. R1 BY ADV. SRI.P.K.RAMKUMAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- F.A.O.No.49 OF 2010 ------------------------------------------- Dated this the 9th day of September, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.This appeal is against an order by which the court below decided the issue on territorial jurisdiction as a preliminary issue. 2.Since the matter comes up even without completion of service in as much as the third respondent is not served, we would first take note of the averments in the pleadings before the court below regarding the relationship between the parties. The plaintiff is Keltron, a Government company. The first respondent is impleaded as if it is a company, of which, one K.S.Nishad is the Managing Director. The plaint proceeds with K.S.Niyesh and K.Santhosh as the second and third defendants. Learned counsel appearing for the first defendant says that there is no company as Cellnet and that FAO.49/10 2 establishment is a proprietary concern of K.S.Nishad who is the son of K.Subhash. K.S.Niyesh is the brother of K.S.Nishad, who is another son of Subhash. He, accordingly, says that there is no person as K.Santhosh. 3.In the light of what is stated above, it may not be necessary for us to await service of notice on the so called Santhosh. 4.The plaintiff sued on the basis that the contract between the parties was entered into at Attipra village and the goods were despatched from the establishment of the plaintiff in Attipra village in terms of that contract and therefore, the courts in Trivandrum has territorial jurisdiction to try the suit. The contesting defendants contended that they reside in Kozhikode district and goods were delivered in different places in Kozhikode even going by the allegations in the plaint. They also have a definite case that no goods were delivered to them FAO.49/10 3 at all. They accordingly had pleaded that there is no territorial jurisdiction for the Trivandrum court. 5.After framing issues, the court below listed the case for trial in the special list. On that day, noting that the predecessor-in- office had not raised the issue as to territorial jurisdiction as a preliminary one, the court below took up that issue and, instead of proceeding with the suit by trying it recording evidence, disposed of the suit on the preliminary issue of territorial jurisdiction. The court below has stated that an order passed by a court lacking territorial jurisdiction is void and that parties cannot confer jurisdiction on a court which lacks jurisdiction. It concluded, with reference to Section 20 of the Code of Civil Procedure, that suits could not have been filed in a court the territorial jurisdiction of which is sought to be established with reference only to the commencement point of the supply of goods. FAO.49/10 4 6.As already noted, the pleadings of the rival parties relate to the terms of a contract, existence of which itself is in dispute. The plaintiff stands to assert that there is an agreement between the parties and that the said agreement was entered into in Trivandrum and despatches were made from Trivandrum (Attipra village) in terms of that agreement and amounts due under the invoice are payable in Trivandrum. We notice these averments only to point out that when they have been denied by the defendants, it gives rise to an issue as to territorial jurisdiction. However, that would be a mixed question of law and fact and the court below ought not to have tried it as a preliminary issue, in view of the clear terms of CPC. 7.For the aforesaid reasons, we set aside the impugned order and remit the case for consideration, trial and disposal in accordance with law, after recording evidence and answering all the issues as enjoined by the court. We clarify that this FAO.49/10 5 judgment does not make any observation on the merits of the matter, including the question of territorial jurisdiction, except holding that the issue as to territorial jurisdiction ought not to have been answered as a preliminary issue. The appeal is allowed accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.17/09.