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4. Shri R.K. Verma, learned Counsel for the appellant, has vehemently contended that two issues were framed with respect to jurisdiction of the Court, namely Issues No.4 and 5 and the Trial Court has categorically recorded the finding that the Court at Jabalpur was having jurisdiction to hear the suit, contrary to the law, therefore, the judgment and decree is bad in law. The attention of this Court is drawn to the agreement Exhibit D-1, said to be executed on 29th April, 1986 and the specific provisions contained in Clause 5.2 of general provisions. It is contended that it is specifically provided under the said agreement that the agreement shall supersede any and all previous commitments, both oral and written and the provisions herein contained shall not be omitted from or added to or amended in any manner except in writing and signed by both the parties in consent thereof. Reading Clause 8.1 of the agreement, learned Counsel for the appellant has contended that it is specifically provided that the contract shall be deemed to have been executed at Madras, where it has been signed on behalf of SAF (appellant herein) and all obligations hereunder shall be deemed to be located at Madras and the Courts at Madras will have jurisdiction to the exclusion of all other courts. These presents shall at all times will be subject to the jurisdiction of the High Courts of Judicature at Madras. Thus, it is contended that this being the specific condition mentioned in the agreement itself, the jurisdiction of all other Courts was barred. Taking this Court to the provisions of Section 10 and 13 of the Contract Act, 1972, it is contended by learned Counsel for the appellant that in view of the specific provisions made in the Act aforesaid, if an agreement with the free consent of parties is executed, it becomes a contract. If the parties have agreed to a particular provision or prescription or a term or condition, it is contended by learned Counsel for the appellant that the same was binding on both the parties. Taking this Court to the provisions of Section 62 of the Act aforesaid, it is contended that unless there is a new contract in between the parties, the original contract will continue. If the respondent No.1 has accepted the work to be performed or services to be rendered for the appellant, it was pursuant to the agreement/contract dated 29.04.1986 and, therefore, the Court at Jabalpur was having no jurisdiction to try the suit. It is further pointed out by the learned Counsel for the appellant that this particular aspect was not disputed by the respondent/plaintiff that there was an agreement or a contract for performing such services for the appellant, executed by the respondent No.1 and there was no novation of the contract, therefore, the original contract was to remain in operation. If by accepting the work to provide services to the appellant the respondent/plaintiff agreed to continue rendering such services, the same would mean nothing but it was in continuity of the agreement/contract dated 29.04.1986. Taking this Court to the various pleadings made in the plaint, it is contended by learned Counsel for the appellant that in view of the aforesaid, the respondent No.1 was not entitled to file a suit before Jabalpur Court invoking the jurisdiction of the said Court, in violation of the specific condition mentioned in the agreement/contract aforesaid.

6. Learned Counsel for the appellant has further put his reliance in the case of C.I.T. Punjab, Haryana, J&K, H.P. and Union Territory of Chandigarh vs. M/s Panipat Woollen and General Mills Co. Ltd., Chandigarh, AIR 1976 SC 614, and has contended that in fact the Court is required to look into the agreement and to examine its substance or the essence and not its form only and it has to be examined that what was the nature of the contract and whether for the said purposes its continuity even after expiry could be inferred or not. Placing reliance in the case of Lata Construction and others vs. Dr. Rameshchandra Ramniklal Shah and another, AIR 2000 SC 380, learned Counsel for the appellant has contended that unless terms of original contract and subsequent contract are inconsistent and not in conformity of each other, there would be no novation of the contract and the earlier contract has to continue. This being the position of law, it is contended by learned Counsel for the appellant that the suit was not maintainable at Jabalpur and was liable to be dismissed. It is further contended that since a preliminary decree was passed, no new facts have come on record, even if a final decree is passed, appeal against the preliminary decree would be maintainable in view of the law laid-down by Apex Court in case of Sital Parshad and another vs. Kishori Lal, AIR 1967 SC 1236.

13. Since the respondent has pleaded that the agreement dated 29.04.1986 has come to an end, it was the duty of the appellant to establish that there was continuity of such a contract there was no novation of the contract. In fact, it was the contention of the appellant right from the very beginning that in terms of the agreement dated 29.04.1986, the respondent/plaintiff was not entitled to file a suit for his claims at Jabalpur Court. If the said conditions were there in the agreement, whether the same were applicable even when the agreement itself has come to an end and whether there was a renewal of the said agreement or not was required to be proved. As stated earlier the appellant has not examined any witnesses and accept proving the agreement dated 29.4.1986 as Ex.D/1 in cross examination of respondent/plaintiff no other document was proved by the appellant. That being so, such contentions of the appellant cannot be treated to be proved to hold that there was continuity of agreement/contract dated 29.4.1986, beyond the period for which the said agreement/contract was executed. Undisputedly, the agreement was for a period of five years. If the period itself was prescribed in the agreement, for the purpose of the life of the said agreement and there was no extension of the said period by a mutual consent, the plain and simple meaning is that the agreement would come to an end on the date when the period for which the agreement is executed, has completed. If it was desirable that the terms and conditions of the said agreement remain in operation even after the period prescribed, it was necessary for the parties to the agreement to execute a new agreement, atleast giving the life to the original agreement beyond the period for which the said agreement was executed. The appellant has also utterly failed to produce any evidence in this respect. It is merely said in the written statement that the work was again assigned to the respondent/plaintiff pursuant to the earlier agreement but it is nowhere stated whether there was any agreement, even a formal agreement, extending the life of the original agreement, which came to an end on expiry of the period for which the same was executed. It is said that terms were mentioned in the letter issued to the respondent/plaintiff. If the letters so issued are examined, it cannot be said that the agreement dated 29.04.1986 was given life after its expiry on 28.04.1991. At the same time, it is also to be examined whether the respondent/plaintiff has established that a new agreement had taken place or that the work subsequently assigned to him after 28.04.1991 by the appellant was not in continuity of the terms and conditions of the agreement dated 29.04.1986.

If this is the conduct of the appellant, how could it be said that the agreement dated 29.04.1986 had not come to an end and there was continuity of the said agreement. Even from the reply to the legal notice sent by respondent/ plaintiff, it is very categorically stated by the appellant that the contract dated 29.04.1986 has come to an end on expiry of period of such agreement/contract.

16. Section 62 of the Contract Act specifically prescribes effect of novation, rescission and alteration of contract. If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed. Though a stipulation of limitation or a period for remaining in operation, the said contract was prescribed but by the conduct if parties to the agreement or contract agree to continue it even after the period of expiry, without making any new contract, the original contract has to remain in operation. This particular aspect has already been considered by the Apex Court in the case of Lata Constructions and others (Supra). The essential requirement of novation as contemplated by Section 62 of the Contract Act is that there should be complete substitution of a new contract in place of the old one. It is in that situation that the original contract need not be performed. Substitution of new contract in place of old contract, which would have the effect of rescinding or completely altering the terms of the original contract, has to be by an agreement between the parties. The substituted contract should rescind or alter or extinguish the previous contract and if the terms are different, they could not stand together and subsequent contract cannot be said to be in substitution of the earlier contract. But the said law cannot be made applicable for a contract which has to come to an end automatically on expiry of the period prescribed in the contract. The parties to the contract are required to extend the period of contract by executing an agreement. However, by conduct also the intention of parties to contract can be ascertained whether they were willing to extend such period of contract. Though claimed, but appellant has utterly failed to prove such intention.