IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 CRP.No. 128 of 2009() --------------------- OS.128/2004 of I ADDL.SUB COURT, THRISSUR .................... REVN. PETITIONER(S)/1ST DEFENDANT: ----------------------------------- M/S.AUROBINDO ENTERPRISES, REPRESENTED BY PARTNER, P.S.KRISHNAN, AGED 62 YEARS, S/O.P.S.SRINIVASAN, RAGHUVARAM BUILDINGS, 55/3451, NEAR SARADA MADOM, RAVIPURAM, KOCHI-16. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID SMT.NAMITHA JYOTHISH RESPONDENT(S)/PLAINTIFFS: -------------------------- 1. M/S.TRADELINE AGENCIES, THRISSUR-1, REPRESENTED BY ITS MANAGING PARTNER, N.S.SETHUMADHAVAN, DR.A.R.MENON ROAD, TRICHUR-1. 2. M/S.HEMAS MANUFACTURING (PVT.)LTD., RAGHUVARAM BUILDINGS, 55/3451, NEAR SARADA MADOM, RAVIPURAM, KOCHI-682 016, REPRESENTED BY ITS REGIONAL MANAGER, MR.S.SRIDHAR. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 SRI.K.RAVI (PARIYARATH) FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.128 OF 2009 (C) ----------------------------------- Dated this the 9th day of October, 2009 O R D E R The revision is directed against the order passed by the learned Sub Judge, Thrissur over one among the issues raised in the suit O.S.No.128 of 2004 as to whether the suit was maintainable. That issue was raised on the basis of the contentions advanced in the written statement by the petitioner/1st defendant that in view of the agreement between the parties, only the court at Ernakulam has jurisdiction to entertain and try the suit. Suit is one for damages allegedly based on the nonsupply of articles agreed to be supplied to the plaintiffs by the defendants. The 2nd defendant is the manufacturing company, and through the 1st defendant, the articles were agreed to be supplied to the plaintiffs. There was default in supply of the articles as agreed upon, is the case canvassed to raise the claim for damages in the suit. In the invoices regarding the supply of the articles, an endorsement had been made that the contract is subject to CRP.128/09 2 Ernakulam jurisdiction, was raised by the 1st defendant/revision petitioner to contend that the court in which the suit was laid has no territorial jurisdiction to entertain the suit. After hearing the counsel on both sides, the court considered that question with reference to the issue raised whether the suit is maintainable. On the facts and circumstances presented and the materials produced, the court passed an order that the court has got jurisdiction to try the case, and the issue was decided accordingly under the impugned order. Correctness of that order is challenged in the revision. 2. I heard the learned counsel on both sides. From the submissions made and the facts and circumstances presented, it is evident that the challenge on the question of jurisdiction raised in the suit require to be analysed with reference to the evidence to be let in the case. Solely on the basis of the endorsement made on the invoice, it cannot be contended that there was a specific agreement by the parties to confer jurisdiction on the courts at Ernakulam alone to decide the CRP.128/09 3 disputes arising between the parties in relation to the contract entered by them. Whether the court in which the suit was instituted has jurisdiction to entertain and adjudicate the issues raised, in the given facts of the case, deserve to be appreciated and determined with reference to evidence as question of law and facts are involved in considering that question. I find the issue as to the maintainability of the suit could not have been decided as a preliminary issue. Sub rule (2) of Rule (2) of Order XIV of the CPC mandates that only such issues which can be determined without taking evidence that could be considered as a preliminary issue. In Thiruvambadi Rubber Co. Ltd v. Damodaran Nair (1984 KLT 586), this Court has held in unmistakable terms that it is only an issue of law going to the very root of the suit and capable of being decided without recording evidence that must be tried as a preliminary issue. If the suit could be disposed of on an issue of law only the court can postpone settlement of other issues and decide that issue as per the mandate under that rule. It gives an indication that disposal of the suit by decision on that issue is without taking evidence. CRP.128/09 4 When mixed questions of law and fact are involved in considering the question of jurisdiction, it cannot be tried preliminarily as evidence is required for determination. So much so, setting aside the impugned order, I direct the court below to decide the issue whether the suit is maintainable with other issues in trial of the suit. I make it clear that I am not expressing any opinion on the issue regarding the maintainability of the suit nor on the question of jurisdiction canvassed by the defendants. That question has to be determined by the court below, after taking evidence, in accordance with law. Revision is accordingly disposed. S.S.SATHEESACHANDRAN JUDGE prp