Case: ISHA DISTRIBUTION HOUSE PVT LTD Vs. ADITYA BIRLA NUVO LTD AND ANR

3. These appeals involve a short point as would be clear from the facts stated infra.      4. The appellant is the plaintiff whereas the respondents are the defendants in a civil suit out of which these appeals arise.      5. The appellant filed a civil suit (Civil Suit No.88/2016) against the respondents for a declaration, damages and for grant of injunction etc. in the High Court at Calcutta on its original side.      6. The suit was filed inter alia for a declaration that the termination of two agreements dated 11.07.2007 and 21.05.2008 made by respondent No.1 was wrongful and, therefore, both the agreements be declared as being bad in law. The other reliefs claimed in the suit were consequential in nature to the main relief.      7. The appellant (plaintiff) also filed an application and sought leave to file the civil suit as required under Clause 12 of the Letters Patent Act, 1865. The Single Judge by order dated 18.03.2016 granted leave to the appellant as prayed for..      8. The respondents, on entering their appearance in the suit, filed an application and prayed therein for revocation of the leave granted to the appellant (plaintiff) for filing a civil suit by order dated 18.03.2016.      9. The respondents¬defendants, in substance, sought revocation of leave on the ground that since no part of cause of action arose within the territorial jurisdiction of the Calcutta High Court but it arose at Bangalore and hence the civil suit could not have been filed in Calcutta High Court for want of territorial jurisdiction. It was, therefore, prayed that the leave granted to the appellant to file and prosecute the civil suit in the Calcutta High Court(original side) is liable to be revoked.      10. The appellant (plaintiff) also filed their reply and contested the said application. By order dated 28.07.2016, the Single Judge allowed the application of the respondents(defendants) and revoked the leave. The appellant felt aggrieved and filed an appeal before the Division Bench of the High Court. By impugned order, the Division Bench dismissed the appeal and affirmed the order of the Single Judge, which has given rise to filing of this appeal by way of special leave by the appellant(plaintiff) in this Court.

Reasoning:
13. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed by the parties, we are inclined to allow these appeals and while setting aside the impugned order and the order of the Single Judge dated 28.07.2016, remand the case to the Single Judge for deciding the issue in question afresh in accordance with law as directed hereinbelow.In other words, the law laid down in Secretary of State (supra) by the Calcutta High Court is now the law laid down by this Court in view of its affirmation by this Court in Indian Mineral & Chemicals Co. (supra).Coming now to the facts of this case, since in this case the respondents did not file any written statement and instead raised the plea of territorial jurisdiction by filing the application for revocation of leave, in our view, the High Court should not have entertained the said application and instead should have granted liberty to the respondents(defendants) to file the written statement in the suit and to raise therein a plea of territorial jurisdiction of the Court.An issue of such nature, in our view, cannot be tried by filing an application for revocation of leave. Indeed, this is what Rankin, the then CJ., held for the Bench in Secretary of State (supra) and which received approval of this Court in Indian Mineral & Chemicals Co.(supra).In our opinion, a plea of territorial jurisdiction is essentially a mixed question of law and fact. It is for this reason, the respondents(defendants) should be allowed to raise such plea in the written statement to enable the Court to try it on its merits in accordance with law in the light of the requirements of Order 14 of the Code of Civil Procedure, 1908 and other relevant provisions governing the issue on merits.Learned counsel for the respondents cited several decisions in support of his submissions. Having gone through them, we are of the opinion that these decisions are distinguishable in the light of the law laid down by this Court in Indian Mineral & Chemicals Co. (supra).