Allahabad High Court
Rajeev Agarwal And Ors. vs Ramesh Pal Singh And Ors. on 28 January, 2003
Equivalent citations: 2003(3)AWC1740, AIR 2004 (NOC) 24 (ALL), 2003 ALL. L. J. 1223, 2003 A I H C 2381, (2003) 1 ALL RENTCAS 632, (2003) 94 REVDEC 657, (2003) 3 ALL WC 1740, (2003) 51 ALL LR 97
JUDGMENT N.K. Mehrotra, J.
1. The aforesaid two civil revisions have been filed under Section 115, C.P.C. against the order dated 24.9.2002 passed by the Judge, Small Causes, Sitapur in Civil Suit No. 94 of 1999, Ramesh Pal Singh and Ors. v. Rajeev Agarwal and Ors., on the application 81C-2 moved by the defendants.
2. Civil Suit No. 94 of 1999 was filed by the revisionists of Civil Revision No. 7 of 2003 with the allegations that in order to run the business of Transportation/ Forwarding they took a loan of Rs. 3,25,000 from the defendants on 14.1.1997 and purchased 'Isher Canter (UP- 34A/8750)'. According to the loan agreement, the plaintiff has to pay off the loan in 36 instalments at the rate of Rs. 13,360. It is alleged in the plaint that the plaintiff deposited monthly instalments regularly and paid Rs. 2,75,720 and obtained the receipt duly executed by the defendants. When in the month of January, 1999, the defendants refused to accept the instalment and to issue receipt and threatened the plaintiff-revisionists that they will take away the Isher Canter, then necessity of filing the suit arose and the plaintiffs filed the suit for permanent prohibitory injunction and accounting on 19.2.1999. The plaintiffs also moved an application for temporary injunction under Order XXXIX Rules 1 and 2, C.P.C. restraining the defendants from forcibly taking away the vehicle from the possession of the plaintiffs or their Agents. The trial court did not grant ex parte injunction and issued notice. The plaintiffs filed a Civil Revision No. 25 of 1999 in this Court. The defendants did not contest the revision and it was decided on 17.8.1999 directing that the plaintiffs will not be dis-possessed from the vehicle till the trial court disposes of the application No. 6C for an ad-interim injunction pending before the trial court on merits. When the trial court fixed the date for disposal of the application 6C for interim injunction, the defendants instead of filing an objection entered into the compromise with the plaintiffs and filed a compromise application paper Nos. 54C-2 on 14.12.1999. It was agreed between the parties that the plaintiffs will pay Rs. 1,30,000 to the defendants within ten days and the cheque of Rs. 65,000 which was payable to the plaintiffs by the Insurance Company in respect of the claim. The defendants agreed that they will take necessary steps and will move application to the Transport Department for getting the entry of hire purchase expunged and registration of the name of the plaintiff No. 1. The Photostat copy of the compromise application dated 14.12.1999 is Annexure-6 on the record of Civil Revision No. 7 of 2003. The trial court took the compromise on record and fixed 21.12.1999 for disposal of the application for compromise 54C and injunction application 6C. The trial court passed the order on this compromise application and application for injunction 6C on 14.12.1999, the copy of which is Annexure-7 on the file of Civil Revision No. 7 of 2003. The operative portion of this order is as follows :
^^ckngw nksuksa i{kdkjksa dks vLFkk;h fu"ks/kkKk ds 6x&2 izkFkZuki= ij lquk x;k A cgl ds nkSjku nksuksa i{kksa us vkilh lgefr ds vk/kkj ij oknhx.k dks ,deqLr /kujkf'k vnk djus dk izLrko j[kk ftls oknh us Lohdkj dj fy;k rFkk U;k;ky; ds le> chek dEiuh ls izkIr gksus okys 65]000@& dh jkf'k oknhx.k dks fnyk;s tkus rFkk blds vfrfjDr ,d yk[k rhl gtkj :i;s izfroknhx.k ds }kjk oknh dks fn;s tkus o izfroknhx.k ds nkSjku nksuksa Hkqxrkuksa ds gksus ij oknhx.k }kjk viuk Dyse lekIr fd;s tkus dk opu fn;k bl ij 6x&2 izkFkZuki= dh lquokbZ LFkfxr dh x;h A nksuksa i{kdkjksa dh vksj ls 54x&2 ,d la;qDr izkFkZuki= lqygukek ds :i eas U;k;ky; ds le{k izLrqr fd;k x;k A mDr izkFkZuki= 54x&2 i=koyh ij 'kkfey gks A rFkk ;g i=koyh okLrs fuLrkj.k 6x&2 o 54x&2 fnukWd 21-12-1999 dks is'k gks A**
3. The plaintiffs paid the amount of Rs. 1,80,000 to the defendants out of Rs. 1,95,000 in pursuance of the agreement dated 14.12.1999 but the defendant did not take steps for getting the entry of Hire Purchase expunged from the record of Transport Department.
4. On the other hand, the defendants moved an application for direction to the plaintiffs to comply the terms of the compromise as well as the order dated 14.12.1999. The trial court rejected this application vide order dated 27.3.2003 and held that only Rs. 15,000 has been left to be paid by the plaintiffs. A copy of the order dated 27.3.2002 is Annexure-8 on the record of Civil Revision No. 7 of 2003. Thereafter, the defendants moved an application paper 81-OC raising dispute about jurisdiction of the Court at Sitapur on the ground of arbitration clause and jurisdiction clause in the hire purchase agreement. After moving this application, the defendants forcibly took away the canter while it was carrying goods on 29.7.2002. The plaintiffs lodged an F.I.R. The plaintiffs moved an application under Section 151, C.P.C. for restoration of possession of canter. On the strength of order of this Court in Civil Revision No. 25 of 1999, the trial court rejected this application on 24.9.2002. The plaintiffs filed another Civil Revision No. 229 of 2002 in this Court, which has been allowed after hearing both the parties on 5.12.2002. The defendants were directed to restore back the canter to the plaintiffs within 15 days from the date of the order. The copy of the order dated 5.12.2002 is Annexure-12 in Civil Revision No. 7 of 2003. By the impugned order, the trial court disposed of the application 81C. By the impugned order on 81C, the trial court decided two questions ; firstly, about the applicability of the arbitration clause and secondly, about the territorial jurisdiction of the Court on the basis of the agreement between the parties at the time of hire purchase agreement. The learned trial court held that the defendants had already put his defence through compromise on paper No. 54C-2. and, therefore, the prayer for referring the dispute to the Arbitration under Section 8 of the Arbitration Act cannot be granted. So far as the prayer for ousting the jurisdiction of Sitapur Court is concerned, the learned trial court held that the suit for permanent prohibitory injunction is maintainable at Sitapur court but suit for accounting arising out from the hire purchase agreement is not maintainable in Sitapur court and the plaintiffs may file the suit for accounting on the basis of hire purchase agreement in the Court at Badaun as agreed between the parties in hire purchase agreement.
5. The plaintiffs preferred Civil Revision No. 7 of 2003 against that portion of the order by which it was held that Sitapur court has jurisdiction only for relief of injunction and not for relief of accounting.
6. The defendants preferred Civil Revision No. 5 of 2003 contending that the entire suit in Sitapur court is without jurisdiction on the basis of Clause 16 of hire purchase agreement.
7. I have heard both the parties on merits at admission stage on the basis of the consent of the parties that both the revisions can be heard and decided on merit at admission stage and have also perused the record.
8. As stated above, application 81C was moved with two prayers. Firstly, that the matter should be referred to Arbitration and Secondly, the Court at Sitapur had no jurisdiction. Both the prayers are based on Clause 16 of the hire purchase agreement, the copy of which is Annexure-3 in Civil Revision No. 5 of 2003. Clause 16 is as follows :
"16. This agreement has been accepted and executed by the Owners at Budaun and it has been agreed between the parties hereto that all the clauses, terms and conditions of this agreement shall be observed and performed at Budaun and the Hirer and the Guarantor specifically agree sand undertake that they or their representatives and agents shall institute any arbitration or other legal proceedings in Budaun Courts only, which shall have the exclusive jurisdiction to try any arbitration or legal proceedings, or any suit, in respect of any matter, claim, or dispute, arising out of this agreement and, the Motor Vehicle hired out."
9. At the time of hearing, none of the parties has assailed the finding in the impugned order on the prayer for referring the dispute to Arbitration. The plaintiffs have argued that the entire suit for injunction and accounting is maintainable in the Court of Sitapur because, the parties had waived their right and submitted to the jurisdiction of Sitapur court by filing compromise through paper 54C and no relief is pending for accounting because the accounting has already been made and the parties have submitted accounting through compromise application and the trial court passed orders on the compromise application on 14.12.1999, the copy of which is Annexure-7. The copy of paper No. 54C, the application for compromise is Annexure-6 in Civil Revision No. 7 of 2003. This application was signed by the plaintiffs and on behalf of the defendants it was signed by their counsel. This fact is not disputed. The defendants have raised legal plea that this compromise was not signed by them but this is not tenable. The trial court has already passed an order on this compromise application, which is Annexure-7 on the file of Civil Revision No. 7 of 2003. The contents of the application go to show that there was compromise between the parties as stated above although in the last there was a prayer that ten days time should be given to file the compromise but the terms of the compromise were stated in this application and the learned trial court has disposed of this application by holding that both the parties have accepted this compromise.
10. The defendants had moved an application 81C after entering into the compromise and surrendering to the jurisdiction of Sitapur court. Section 21 of the C.P.C. provides as follows :
"21. Objections to jurisdiction. --(1) No objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
(2) No objection as to the competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing court with reference to the local limits of its jurisdiction shall be allowed by any appellate or revisional court unless such objection was taken in the executing court at the earliest possible opportunity, and unless there has been a consequent failure of justice."
11. The aforesaid provisions go to show that the objection with regard to the jurisdiction is to be taken at the earliest possible opportunity. The defendants have moved an application challenging the Jurisdiction of Sitapur court after entering into compromise with the plaintiffs and after the passing of the order by the trial court on the compromise application, so the defendants cannot be permitted to approbate and reprobate at the same time. It is not permissible that once the defendants contested the suit and filed compromise in the Court at Sitapur and when the direction is issued by the trial court to comply the terms of the compromise, the defendants raised the plea of jurisdiction.
12. Moreover, in Civil Revision No. 229 of 2002 filed by the plaintiffs, this Court after hearing the parties has passed an order directing the defendants to restore the possession of the vehicle in dispute to the plaintiffs within 15 days on 5.12.2002. The defendants instead of complying the order of this Court have come in Revision No. 5 of 2003 by challenging the order of the trial court on their application 81C passed on 14.9.2002. So, the defendants have not come with clean hands before this Court in revision. They cannot deny the compromise even though, the application containing the terms of the compromise was signed by their counsel.
13. So far as the Clause 16 of the hire purchase agreement is concerned, it loses its' sanctity, when both the parties have surrendered to the jurisdiction of the Court at Sitapur. It amounts to waiver on the part of the defendants. The doctrine of waiver will apply and the defendants will not be permitted to raise the plea of jurisdiction after filing the compromise arising out of the same hire purchase agreement between the parties.
14. In view of the discussions above, I find that the findings of the trial court that compromise 54C does not confer jurisdiction to the trial court is without jurisdiction and it is liable to be set aside. I find that the trial court has illegally exercised the jurisdiction by holding that the trial court has no jurisdiction in the suit for accounting after passing the order on the compromise application.
15. In result, Civil Revision No. 5 of 2003 is dismissed. Civil Revision No. 7 of 2003 is allowed. The impugned portion of the order dated 24.9.2002 passed in Civil Suit No. 94 of 1999, Ramesh Pal Singh and Ors. v. Rajeev Agarwal and Ors., pending in the Court of Judge, Small Causes, Sitapur, by which it was held that the trial court has no jurisdiction with regard to suit for accounting is set aside. The trial court concerned is directed to dispose of the suit at the earliest.