without framing substantial question of law , no second appeal is to be decided. in a specific performance suit, when a lower court order for refund of the earnest money, the appellant court set aside the lower court decree and order for specific performance of the sale agreement. which was reversed by the High court in a second appeal with out framing any substantial question of law- which was set aside by the apex court by this judgement and further strongly retreated that no court should go liberally interfering the appellant court judgement in second appeal with out framing a substantial question of law.

                                                         REPORTABLE




              IN THE SUPREME COURT OF INDIA


                CIVIL APPELLATE JURISDICTION

             CIVIL  APPEAL NO.    2870      OF 2012

          (Arising out of SLP (Civil) No. 15574 of 2011)




Hardeep Kaur                                                   ....

Appellant


                                    Vs.


Malkiat Kaur                                                 ....

Respondent







                              JUDGMENT





R.M. Lodha, J.





              Leave granted.




2.            The   defendant   is   in   appeal   aggrieved   by   the


judgment   dated   March   9,   2011   of   the   High   Court   of   Punjab


and Haryana whereby the Single Judge of that Court allowed


the   second   appeal   filed   by   the   respondent   -   plaintiff;   set


aside   the   judgment   and   decree   dated   January   5,   2001


passed by the District Judge, -



Sangrur   and   restored   the   judgment   and   decree   dated  April


21, 1997 passed by the Civil Judge, Junior Division, Dhuri.



3.             The short question that arises for consideration in


this appeal by special leave is whether a second appeal lies


only on a substantial question of law and it is essential for the


High Court to formulate a substantial question of law before


interfering   with   the   judgment   and   decree   of   the   lower


appellate   court.       This   question   arises   in   this   way.     The


respondent (hereinafter referred to as `plaintiff') filed a suit for


specific   performance   of   the   contract   dated   May   22,   1993.


According to the plaintiff, the appellant (hereinafter referred to


as   `defendant')   being   co-owner   having   1/12th  share   in   the


agricultural land admeasuring 183 bighas 19 biswas situate in


Ferozepur Kuthala, Tehsil Dhuri,  by an agreement dated May


22,   1993,   agreed   to   sell   15   bighas   4   biswas   of   land   to   the


plaintiff at the rate of Rs. 15000/- per bigha.   The defendant


received Rs. 1,48,000/- as earnest   money.     The sale deed


was   to   be   executed   on   or   before   March   10,   1994   and   the


possession of the land was also to be delivered at the time of


registration   of   the   sale   deed   on   receipt   of   remaining


consideration of Rs. 80,000/-.  The defendant got the time for


execution of sale deed extended upto May 10, -



1995   with   the   consent   of   the   plaintiff.     However,   despite


repeated   requests   by   the   plaintiff,   she   did   not   execute   the


sale deed.   It is the plaintiff's case that she had been always


ready and willing to perform her part of the contract, but since


the  defendant  failed  to   perform   her   part   of   the   contract,   the


suit for specific performance of the contract had to be filed.



4.             The defendant contested the suit and denied the


execution   of   the   agreement   of   sale   dated   May   22,   1993.


She   also   denied   having   received   any   earnest   money.     She


stated   that   she   was   illiterate   lady   and   did   not   know   how   to


write   and   sign   and   the   subject   agreement   was   false   and


fabricated   document.       On   the   pleadings   of   the   parties,   the


trial court framed the following issues:-



               1.     Whether   the   defendant   executed   an

                      agreement to sell on 22.5.93 and executed


                    writing   dated   10.3.94   on   the   back   of   the

                    agreement  and  received  Rs.  1,48,000/- as

                    earnest money?


             2.     Whether   plaintiff   is   entitled   to   specific

                    performance   of   the   agreement   and   for

                    possession?


             3.     Whether   the   plaintiff   has   got   no   cause   of

                    action to file the present suit?


             4.     Whether   the   plaintiff   is   ready   and   willing

                    and is still ready and willing to perform her

                    part of contract?


             5.     Relief.





5.           On recording the evidence and thereafter hearing


the parties, the trial court decided issue nos. 1 to 4 in favour


of the plaintiff and decreed the plaintiff's suit on April 21, 1997


by directing the defendant to execute the sale deed by May


31, 1997, failing which it was declared that plaintiff would be


entitled to get the same executed through court on payment


of remaining consideration.



6.           The   defendant   challenged   the   judgment   and


decree  of  the  trial  court   in  appeal  before   the  District  Judge,


Sangrur.  The District Judge, Sangrur, on hearing the parties,


although did not interfere with the finding of the trial court in


respect of the execution of agreement dated May 22, 1993,


but   held   that   both   the   parties   had   contributed   towards


frustration   of   the   execution   of   the   sale   deed   and,   therefore,


the   plaintiff   was   not   entitled   to   specific   performance   of   the


agreement.     The   District   Judge,   accordingly,   modified   the


decree of the trial court by directing refund of Rs. 1,48,000/-


along   with   interest   at   the   bank   rate   from   the   date   of   the


agreement until realization.



-



7.            Being not satisfied with the judgment and decree


dated January 5, 2001 passed by the District Judge, Sangrur,


the   plaintiff   preferred   second   appeal   before   the   Punjab   and


Haryana   High   Court.     As   noted   above,   the   Single   Judge


allowed the appeal; set aside the judgment and decree of the


first appellate court and restored the judgment and decree of


the trial court.



8.            The   perusal   of   the   judgment   of   the   High   Court


shows   that   no   substantial   question   of   law  has   been   framed


and yet second appeal was allowed.


9.         Sections   100,   101   and   103   of   the   Code   of   Civil


Procedure, 1908 (for short, `CPC') read as follows:-



           "S.-100.-      Second   appeal.--(1)   Save   as

           otherwise expressly provided in the body of this

           Code or by any other law for the time being in

           force, an appeal shall lie to the High Court from

           every   decree   passed   in   appeal   by   any   Court

           subordinate to the High Court, if the High Court

           is satisfied that the case involves a substantial

           question of law.

           

           (2)  An   appeal   may   lie   under   this   section   from

           an appellate decree passed ex parte.

           

           (3)   In   an   appeal   under   this   section,   the

           memorandum   of   appeal   shall   precisely   state

           the  substantial   question   of  law involved   in  the

           appeal.

           

           -

           (4)   Where   the   High   Court   is   satisfied   that   a

           substantial   question   of   law   is   involved   in   any

           case, it shall formulate that question.

           

           (5) The appeal shall be heard on the question

           so formulated and the respondent shall, at the

           hearing of the appeal, be allowed to argue that

           the case does not involve such question :

           

                  Provided   that   nothing   in   this   sub-section

           shall   be   deemed   to   take   away   or   abridge   the

           power   of   the   Court   to   hear,   for   reasons   to   be

           recorded,   the   appeal   on   any   other   substantial

           question   of   law,   not   formulated   by   it,   if   it   is

           satisfied that the case involves such question."


           "S.101.-Second appeal on no other grounds.-

           No second appeal shall lie except on the ground

           mentioned in section 100."




               "S.103.-  Power   of   High   Court   to   determine

               issues   of   fact.   -  In   any   second  appeal,   the

               High Court may, if the evidence on the record is

               sufficient, determine any issue necessary for the

               disposal of the appeal, -


                                       (a) which   has   not   been

                                           determined   by   the   lower

                                           Appellate Court or both by

                                           the   Court   of   first   instance

                                           and   the   lower   Appellate

                                           Court, or


               (b)   which has been wrongly determined by such

                      Court or Courts by reason of a decision on

                      such   question   of   law   as   is   referred   to   in

                      section 100."




10.            The   jurisdiction   of   the   High   Court   in   hearing   a


second   appeal   under   Section   100   CPC   has   come   up   for


consideration   before   this   Court   on   numerous   occasion.     In


long     line   of   cases,   this   Court   has   reiterated   that   the   High


Court has a duty to formulate -



the   substantial   question/s   of   law   before   hearing   the   second


appeal.    As   a   matter   of   law,   the   High   Court   is   required   to


formulate substantial question of law involved in the second


appeal   at   the   initial   stage   if   it   is   satisfied   that   the   matter


deserves   to   be   admitted   and   the   second   appeal   has   to   be


heard and decided on such substantial question of law.   The


     two   decisions   of   this   Court   in   this   regard   are:    Kshitish


     Chandra Purkait  v.  Santosh Kumar   Purkait and Others1,


     and  Dnyanoba     Bhaurao     Shemade  v.  Maroti     Bhaurao


     Marnor2.   It needs to  be clarified  immediately  that  in  view


     of   sub-section (5) of Section 100, at the time of  hearing   of


     second   appeal,    it is open to the High Court to re-formulate


     substantial   question/s     of   law   or   formulate   fresh   substantial


     question/s of law or hold that no substantial question of law is



     involved.  This   Court   has   repeatedly   said   that   the   judgment


     rendered by the  High Court  under Section  100 CPC without


     following   the   procedure   contained   therein   cannot   be



     sustained. That the High Court  cannot  proceed to hear  the


     second  appeal  without  formulating  a  substantial  question


     of law   in   light   of the   provisions   contained in Section 100


     CPC has   been  reiterated in -





1


      (1997) 5 SCC 438




2


     (1999) 2 SCC  471  
     


     Panchugopal   Barua   and   Others  v.  Umesh   Chandra


     Goswami   and Others;3,  Sheel Chand  v.  Prakash Chand4;


     Kanai   Lal   Garari   and   Others  v.  Murari   Ganguly   and


     Others5;  Ishwar Dass Jain (Dead) through L.Rs.  v.  Sohan


     Lal (Dead) by L.Rs.6;  Roop Singh (Dead) through L.Rs.  v.


     Ram   Singh   (Dead)   through   L.Rs.;7  Santosh   Hazari  v.


     Purushottam Tiwari (Deceased) by L.Rs.8; Chadat Singh v.


     Bahadur   Ram   and   Others9;  Sasikumar   and   Others  v.


3


       (1997) 4 SCC 713




4


       (1998) 6 SCC 683




5


       (1999) 6 SCC 35




6


       (2000) 1 SCC 434




7


       (2000) 3 SCC 708




8


       (2001) 3 SCC 179




9


       (2004) 6 SCC 359


      Kunnath   Chellappan   Nair   and   Others10;  C.A.   Sulaiman


      and   Others  v.  State   Bank   of   Travancore,   Alwayee   and


      Others11; Bokka Subba Rao v.   Kukkala  Balakrishna  and


      Others12;    Narayanan   Rajendran     and       Another  v.


      Lekshmy     Sarojini     and     Others13  and  Municipal


      Committee, Hoshiarpur  v. Punjab State Electricity Board


      and Others14.  



      11.             Some   of   the   above   decisions   and   the   provisions


      contained   in   Sections   100,   101   and   103   CPC   were


      considered  in a -





10


        (2005) 12 SCC 588




11


        (2006) 6 SCC 392




12


       (2008) 3 SCC 99




13


       (2009) 5 SCC 264




14


       (2010) 13 SCC 216


      recent decision of this Court in Umerkhan v. Bismillabi alias


      Babulal   Shaikh   and   Others.15.  One   of   us   (R.M.   Lodha,J.)


      speaking   for   the   Bench   in  Umerkhan15                       stated   the   legal
                                                                     




      position   with   regard   to   the   jurisdiction   of   the   High   Court   in


      hearing   a   second   appeal   in   paragraphs   11   and   12   of   the


      Report (page 687) thus:



                       "11.    In   our   view,   the   very   jurisdiction   of   the

                       High   Court   in   hearing   a   second   appeal   is

                       founded   on   the   formulation   of   a   substantial

                       question   of   law.       The   judgment   of   the   High

                       Court is rendered patently illegal,   if a   second

                       appeal   is   heard   and   judgment   and   decree

                       appealed against is reversed without formulating

                       a   substantial   question   of   law.     The   second

                       appellate    jurisdiction   of  the  High   Court     under

                       Section   100   is   not   akin   to   the   appellate

                       jurisdiction   under   Section   96   of   the   Code;   it   is

                       restricted   to   such   substantial   question   or

                       questions   of   law   that   may   arise   from   the

                       judgment   and   decree   appealed   against.    As   a

                       matter of law, a second appeal is entertainable

                       by  the High Court only upon its satisfaction that

                       a   substantial   question   of   law  is   involved   in  the

                       matter and its formulation thereof.   Section 100

                       of   the   Code   provides   that   the   second   appeal

                       shall be heard on the question so formulated. It

                       is, however, open to the High Court to reframe

                       substantial question of law or frame substantial

                       question of law afresh or hold that no substantial

                       question of law is involved at the time of hearing

                       the second appeal  but reversal of the judgment



15


       (2011) 9 SCC 684


                      and   decree   passed   in   appeal   by   a   court

                      subordinate to it in exercise of jurisdiction under

                      Section   100   of   the   Code   is   impermissible

                      without   formulating   substantial   question   of   law

                      and a decision on such question".


                                                            (emphasis

                      supplied)





                      -


                      12.    This Court has been bringing to the notice

                      of   the   High   Courts   the   constraints   of   Section

                      100   of   the   Code   and   the   mandate   of   the   law

                      contained in Section 101 that no second appeal

                      shall   lie   except   on   the   ground   mentioned   in

                      Section 100, yet it appears that the fundamental

                      legal position concerning jurisdiction of the High

                      Court   in   second   appeal   is   ignored   and

                      overlooked time and again. The present appeal

                      is  unfortunately one of such matters where  the

                      High   Court   interfered   with   the   judgment   and

                      decree   of   the   first   appellate   court   in   total

                      disregard of the above legal position."  





      The above principle of law concerning jurisdiction of the High


      Court under Section 100 CPC laid down in  Umerkhan15  has


      been   reiterated   in   a   subsequent   decision   in  Shiv   Cotex  v.


      Tirgun   Auto   Plast   Private   Limited   and   Others.  16.    This





16


       (2011) 9 SCC 678


Court     through   one   of   us     (R.M.   Lodha,J.)   observed   in


paragraph 11 of the Report (page 681) as follows:-



             "The   judgment   of   the   High   Court   is   gravely

             flawed   and   cannot   be   sustained   for   more   than

             one reason.     In the first  place, the High  Court,

             while   deciding   the   second   appeal,   failed   to

             adhere to the necessary requirement of Section

             100   CPC   and   interfered   with   the   concurrent

             judgment and decree of the courts below without

             formulating any substantial question of law.  The

             formulation   of   substantial   question   of   law   is   a

             must   before   the   second   appeal   is   heard   and

             finally disposed of by the High Court.  This Court

             has       reiterated   and   restated   the   legal   position

             time   out   of   number   that            formulation   of

             substantial question of law is a condition -


             precedent for entertaining and deciding a second

             appeal......".





12.            The   relevant   discussion   in   the   judgment   by   the


High Court reads as follows:



              "After  hearing   learned  counsel  for  the   parties

              and going through the records of the case, this

              appeal deserves acceptance and the judgment

              and decree passed by the trial court deserves

              to   be   restored   for   the   reasons   to   be   given

              hereinafter.


              In   this   case,   the   defendant-respondent   could

              not   produce   any   evidence   on   record   to   show

              that the said agreement to sell was forged or a

              fabricated   document   or   it   was   the   result   of

              fraud   or   misrepresentation.     The   plaintiff-

              appellant   proved   on   record   that   she   had

              always been ready and willing to perform her


part of the agreement.  In fact, filing of the suit

by the plaintiff-appellant itself showed that she

was   ready   and   willing   to   perform   her   part   of

the   agreement.     The   defendant-respondent

had   denied   her   signatures   on   the   agreement

to   sell   (Exhibit   P.1)   and   the   endorsement

(Exhibit   P.3)   made   on   the   back   of   the

agreement, vide which the date of execution of

the sale deed was extended from 10.3.1994 to

10.5.1995   by   claiming   that   she   did   not   know

how   to   write   and   sign.     However,   there   is

evidence   of   Telu   Ram   (P.W.4),   produced   by

the plaintiff.  Telu Ram (P.W.4) had brought the

original   file   No.   2110   concerning   the

defendant-respondent  Hardeep  Kaur whereby

she   had   taken   loan.     On   the   application

(Exhibit   P.5)   for  taking   loan,   on  the  receipt   of

payment   of   loan   amount   (Exhibit   P.6)   and   on

the other documents pertaining to the sanction

of   loan   (Exhibits   P.7   to   P.12),   the   defendant

had   put   her   signatures.     It,   thus,   belied   the

stand of the defendant that she usually thumb

marked the documents and had not signed the

agreement   to   sell     (Exhibit   P.1)   and   the

endorsement (Exhibit P.3).  -


Both these documents i.e., Exhibit P.1 and P.3

prove in certain terms that the defendant had

agreed to sell the land measuring 15 Bighas 4

Biswas to the plaintiff for Rs. 2,38,000/-.  Major

part   of   the   sale   consideration   i.e.,   Rs.

1,48,000/- had already been paid at the time of

execution   of   the   agreement   to   sell   (Exhibit

P.1).        The   remaining   amount   of   sale

consideration   of   Rs.   80,000/-   was   deposited

by the plaintiff in the trial court.   It shows that

the plaintiff has always been ready and willing

to perform her part of the agreement.   Under

the   circumstances,   the   lower   appellate   court

was   not   justified   in   confining   the   relief   of   the

plaintiff to the return of earnest money only.


                Under   the   circumstances,   this   appeal

                succeeds.   The same is, accordingly, allowed.

                The judgment and decree passed by the lower

                appellate court are set aside and those of the

                trial   court   are   restored.     However,   there   shall

                be no order as to costs."





13.            Apparently,   the   High   Court   has   ignored   and


overlooked   the   mandatory   requirement   of   the   second


appellate   jurisdiction   as   provided   in   Section   100   CPC   and


that vitiates its decision as no substantial question of law has


been   framed   and   yet   the   judgment   and   decree   of   the   first


appellate   court   has   been   reversed.     However,   Mr.   Neeraj


Kumar   Jain,   learned   senior   counsel   for   the   respondent,


submitted   that   though   no   substantial   question   of   law   has


been expressly framed by the High Court while accepting the


second appeal,  but  the  above discussion by  the  High  Court


clearly   shows   that   the   High   Court   considered   the   questions


whether  the -



plaintiff   was   entitled   to   the   grant   of   decree   of   specific


performance of the contract once execution of agreement has


been   duly   proved   and   the   plaintiff   was   always   ready   and


willing   to   perform   her   part   of   the   contract     and   whether   the


      first   appellate   court   has  correctly exercised  the  discretion  in


      terms   of   Section   20   of   the   Specific   Relief  Act,   1963   while


      refusing   the   decree   for   specific   performance   of   the   contract


      as   was   ordered   by   the   trial   court.     In   this   regard,   he   relied


      upon a decision of this Court in M.S.V. Raja and Another  v.


      Seeni Thevar and Others17.



      14.             In paragraph 18 (pages 659-660) of the Report in


      M.S.V. Raja17   this Court observed as follows:



                      "We  are   unable   to   accept   the   argument   of  the

                      learned   Senior   Counsel   for   the   appellants   that

                      the impugned judgment cannot be sustained as

                      no   substantial   question   of   law   was   formulated

                      as required under Section 100 CPC.  In para 22

                      of   the   judgment   the   High   Court   has   dealt   with

                      substantial questions of law.   Whether a finding

                      recorded   by   both   the   courts   below   with   no

                      evidence to support it was itself considered as a

                      substantial question of law by the High Court.   It

                      is   further   stated   that   the   other   questions

                      considered and dealt with by the learned Judge

                      were also substantial questions of law.   Having

                      regard   to   the   questions   that   were   considered

                      and   decided   by   the   High     Court,   it   cannot   be

                      said   that   substantial   questions   of   law   did   not

                      arise   for   consideration   and   they   were   not

                      formulated.  Maybe, substantial questions of law

                      were -





17


       (2001) 6 SCC 652


               not   specifically   and   separately   formulated.     In

               this   view,   we   do   not   find   any   merit   in   the

               argument of the learned counsel in this regard."





15.            In  M.S.V.   Raja17   this   Court   found   that   the   High
                                       





Court in paragraph 22 of the judgment   under consideration


therein had dealt with substantial questions of law.  The Court


further observed that the finding recorded by both the courts


below with no evidence to support it was itself considered as


a substantial question of law by the High Court.  It was further


observed that the other questions considered and dealt with


by   the   learned   Judge     were   substantial   questions   of   law.


Having   regard   to   the   questions   that   were   considered   and


decided   by  the   High   Court,   it   was   held   by  this   Court   that   it


could not be said that the substantial questions of law did not


arise   for   consideration   and   they  were   not   formulated.      The


sentence   `maybe   substantial   questions   of   law   were   not


specifically and separately formulated' in  M.S.V. Raja17   must
                                                                           





be   understood   in   the   above   context   and   peculiarity   of   the


case under consideration.  The law consistently stated by this


Court that formulation of substantial question of law is a sine


qua   non  for   exercise   of   jurisdiction   under   Section   100   CPC


admits of no ambiguity and permits no departure.



-



16.            In the present case,   the High Court has allowed


the second appeal and set aside the judgment and decree of


the   first   appellate   court   without   formulating   any   substantial


question of law, which is impermissible and that renders the


judgment of the High Court unsustainable.



17.            Consequently,   the   appeal   is   allowed   and   the


impugned   judgment   of   the   High   Court   is   set   aside.     The


second appeal (R.S.A. No. 1679 of 2001 - Malkiat Kaur vs.


Hardeep   Kaur)     is   restored   to   the   file   of   the   High   Court   for


fresh   consideration   in   accordance   with   law.   No   order   as   to


costs.





                                                                        .............

                                                                ................ J.

                                                                                 (R.M.


Lodha)


                       ........................

                                .....J.

                      (H. L. Gokhale)


NEW DELHI

MARCH  16, 2012.

CONSTITUTION OF INDIA, 1950: Articles 226 and 227 - High Court in writ jurisdiction setting aside orders of trial and revisional courts whereby they had rejected defendant's application under Or.8 r.10 CPC for extending time to file written statement =HELD: Jurisdiction of High Court under Articles 226 and 227 is limited - It could have set aside the orders only on the ground of illegality, irrationality and procedural impropriety - Trial court had assigned sufficient and cogent reasons in support of its orders - High Court erred in setting aside the orders without assigning any reason therefor - Judgment of High Court set aside - Code of Civil Procedure, 1908 - Or. 8, r.10. R.N. Jadi & Brothers and Ors. Vs. Subhashchandra (2007) 6 SCC 420 and M. Srinivasa Prasad & Ors. Vs. The Comptroller & Auditor General of India & Ors. 2007 (5) SCALE 171, relied on. Kailash Vs. Nanhku and Ors. (2005) 4 SCC 480, referred to. Case Law Reference: (2005) 4 SCC 480 referred to para 11 2007 (5) SCALE 171 relied on para 13 (2007) 6 SCC 420 relied on para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7209 of 2008. From the final Judgment and Order dated 20.9.2007 of the High Court of Judicature at Allahabad in Writ Petition No. 45197 of 2007. R.S. Hegde, Chandra Prakash and P.P. Singh for the Appellant. M.P. Shorawala, Jyoti Saxena, Vipin K. Saxena and T.N. Saxena for the Respondents.

, , , 2009(1 )SCALE71 , REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7209 OF 2008 (Arising out of S.L.P. (C) No.3311/2008) Mohammed Yusuf ...Appellant Versus Faij Mohammad & Ors. ...Respondents O R D E R Leave granted. 1. This appeal is directed against a judgment and order dated 20.9.1997 passed by a learned Single Judge of the High Court of Judicature at Allahabad allowing the writ petition filed by the respondents herein questioning the validity of an order dated 29.8.2007 passed by the learned Additional District Judge, Mathura in Civil Revision No. 322/2005 affirming the order dated 24.10.2005 passed by the learned Civil Judge whereby and whereunder while rejecting the application filed by the appellant herein under Order 8 Rule 10 of the Code of Civil Procedure, a date was fixed for recording the evidence of the plaintiffs and the application filed by the respondents herein praying for condoning the delay in filing the written statement was rejected. 2. The basic fact of the matter is not in dispute. 3. Appellant herein filed a suit for a decree for permanent injunction in the year 2002. A separate application -1- for grant of temporary injunction was also filed. Summons upon the defendants were served on 6.7.2002. The defendants appeared through their learned advocate on 19.7.2002. 4. Appellant filed an application for grant of temporary injunction which was rejected on 28.1.2004. An appeal was preferred thereagainst which was disposed of by an order dated 14.5.2004. It is neither in doubt nor in dispute that the defendants- respondents filed applications for extension of time for filing written statement number of times. The matter was also adjourned on one ground or the other. 5. On or about 31.1.2005, the appellant also filed an application before the learned trial Judge for pronouncing judgment in terms of Order 8 Rule 10 of the Code of Civil Procedure, inter alia, on the premise that the defendants-respondents did not file any written statement. It is on the same date the defendants filed an application for filing written statement. No application for condonation of delay in filing the written statement was, however, filed. 6. However, on 23.9.2005, as indicated hereinbefore by reason of an order dated 24.10.2005, while rejecting the said application of the respondent, the trial Judge allowed the plaintiff to examine his own witnesses in support of his case. -2- 7. A Revision Petition was filed by the respondents which by reason of an order dated 29.8.2007 was dismissed by the learned District Judge. 8. Being aggrieved by and dissatisfied with the said order, the respondents filed a Writ Petition which was marked as CMWP No. 45197/2007 before the High Court. By reason of the impugned judgment, the High Court has allowed the said Writ Petition, directing: " Considering the facts and circumstances of the case, this Court is of the opinion that the petitioner should be permitted to contest the suit on merit. In view of the aforesaid, the order of the trial court refusing to keep the written statement on record is set aside. The written statement shall be kept on the record and the defendant-petitioner shall be permitted to contest the matter on merit subject to payment of cost of Rs.10,000/-, which shall be deposited by the defendant- petitioner in favour of the plaintiff by means of a bank draft within two weeks. The amount so deposited can be withdrawn by the plaintiff. The writ petition is allowed." 9. Mr. R.S. Hegde, learned counsel appearing on behalf of the appellant would submit that keeping in view the fact that the summons upon the defendants were served on 6.7.2002 and no step having been taken to file written statement for a period of three years and only on 31.5.2005, an application for filing written statement having been filed, the High Court committed a serious error in passing the impugned judgment. 10. Learned counsel appearing on behalf of the respondents, on the other hand, would contend that from a -3- perusal of the order-sheet before the trial Court, it would appear that dates after dates were fixed for filing written statement and, furthermore, having regard to the fact that the appellant himself preferred an appeal before the learned District Judge against an order rejecting his application for grant of temporary injunction, the written statement could not be filed. 11. It is urged that the provisions of Order 8 Rule 1 of the Code of Civil Procedure having been held to be directory in nature by this Court in Kailash Vs. Nanhku and Ors. - (2005) 4 SCC 480, this Court may not exercise its discretionary jurisdiction under Article 136 of the Constitution of India. 12. Order 8 Rule 1 of the Code of Civil Procedure reads thus: " [1. Written statement:- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.] 13. Although in view of the terminologies used therein the period of 90 days prescribed for filing written statement appears to be a mandatory provision, this Court in Kailash(supra) upon taking into consideration the fact that in a given case the defendants may face extreme hardship in -4- not being able to defend the suit only because he had not filed written statement within a period of 90 days, opined that the said provision was directory in nature. However, while so holding this Court in no uncertain terms stated that defendants may be permitted to file written statement after expiry of period of 90 days only on exceptional situation. The question came up for consideration before this Court in M. Srinivasa Prasad & Ors. Vs. The Comptroller & Auditor General of India & Ors. - 2007 (5) SCALE 171, wherein a Division Bench of this Court upon noticing Kailash (supra) held as under: " 7. Since neither the trial Court nor the High Court have indicated any reason to justify the acceptance of the written statement after the expiry of time fixed, we set aside the orders of the trial Court and that of the High Court. The matter is remitted to the trial Court to consider the matter afresh in the light of what has been stated in Kailash's case(supra). The appeal is allowed to the aforesaid extent with no order as to costs." 14. The matter was yet again considered by a three-judge Bench of this Court in R.N.Jadi & Brothers and Ors. Vs. Subhashchandra - (2007) 6 SCC 420. P.K. Balasubramanyan J., who was also a member in Kailash(supra) in his concurring judgment stated the law thus: " 14. It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash Vs. Nanhku which held that the provision was directory and not mandatory. But there could be situations where even a procedural provisional could be construed as mandatory, no doubt retaining a power in the Court, in an appropriate case, to exercise a jurisdiction to -5- take out the rigour of that provision or to mitigate genuine hardship. It was in that contest that in Kailash Vs. Nanhku it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time-limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statement, after the expiry of the period permitted by law, in a routine manner. 15. A dispensation that makes Order 8 Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional case, will the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in Allen Vs. Sir Alfred McAlpine & Sons that law's delay have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?" 15. In view of the authoritative pronouncements of this Court, we are of the opinion that the High Court should not have allowed the writ petition filed by the respondent, particularly, when both the learned trial judge as also the Revisional Court had assigned sufficient and cogent reasons in support of their orders. 16. As indicated hereinbefore, the High Court allowed the writ petition and thereby set aside the orders passed by the -6- trial Court as also the Revisional Court without assigning any reason therefor. The jurisdiction of the High Court under Article 226 and 227 of the Constitution of India is limited. It could have set aside the orders passed by the learned trial Court and the Revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety. The High Court did not arrive at a finding that there had been a substantial failure of justice or the orders passed by the trial Court as also by the Revisional Court contained error apparent on the face of the record warranting interference by a superior Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 17. For the reasons stated above, the impugned judgment of the High Court cannot be sustained. It is set aside accordingly. The appeal is allowed. In the facts and circumstances of this case, there shall be no order as to costs. 18. In this view of the matter the respondents would be entitled to withdraw the sum of Rs.10,000/- deposited by them as costs. ......................J. [S.B. SINHA] .....................J [ CYRIAC JOSEPH ] New Delhi, December 2, 2008. -7-

scope of or.23,rule 3 A of C.P.C.= whether the suit filed by the appellant was not maintainable being barred in terms of Order XXIII Rule 3-A of the Code of Civil Procedure= It is also well settled that under section 9 of the Civil Procedure Code, the civil court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority. We find nothing in Order XXIII Rule 3-A to bar the institution of a suit before the civil court even in regard to decrees or orders passed in suits and/or proceedings under different statutes before a court, tribunal or authority of limited and restricted jurisdiction.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 776 OF 2012 (Arising out of S.L.P(Civil )No.6632 of 2006) HORIL ... APPELLANT VERSUS KESHAV & ANR. ... RESPONDENTS J U D G M E N T Aftab Alam, J. 1. Leave granted. 2. This appeal is directed against the judgment and order dated November 11, 2003 passed by the Allahabad High Court by which it allowed the writ petition filed by respondent nos. 1 and 2, set aside the order passed by the District Judge, 2 affirming the order of the Munsif, and held that the suit filed by the appellant was not maintainable being barred in terms of Order XXIII Rule 3-A of the Code of Civil Procedure. 3. The appellant filed a suit (No. 43 of 1980) in the court of Munsif, Karwi (Banda) seeking a declaration that the decree passed by the Assistant Collector, Class-I, in a suit under sections 176, 178 and 182 of the U.P. Zamindari Abolition & Land Reforms Act was fraudulent, inoperative and not binding upon him. According to the appellant, the defendants had instituted the suit before the Assistant Collector in which his father namely Chunkai was made as one of the opposite party. In that suit, a compromise petition was filed on October 7, 1971 with the fake signature of Chunkai and on that basis a compromise decree finally came to be passed on April 25, 1979. It is the case of the appellant that no notice of the suit was ever served upon his father Chunkai. He never appeared 3 in the proceeding and was not even aware of it. He did not sign any compromise petition and his alleged signature on the compromise petition dated October 7, 1971 was faked. He had died much earlier and was not even alive in 1979 when the decree was passed. The appellant, accordingly, sought a declaration that the decree dated April 25, 1979 passed by the Assistant Collector, Class-I, Karwi, may be cancelled or it may be declared as void ab initio, inoperative and not binding upon him. 4. The defendants (respondents 1 and 2 before this Court) filed a written statement in which they questioned the maintainability of the suit as well. It was contended on their behalf that as the suit related to agricultural lands it was beyond the jurisdiction and competence of the civil court and it could only be tried by the revenue authorities. The Munsif by his order dated October 1, 1985 upheld the defendants' objection and held that the suit was not maintainable before a civil court. 4 Against the order passed by the Munsif, the appellant preferred an appeal (M.C.A.No.21 of 1985) which was allowed by the judgment and order dated April 14, 1987 passed by the Additional District Judge, Karwi, (Banda). The Additional District Judge rightly pointed out that the suit filed by the appellant was based on the allegation that the decree passed by the Assistant Collector was based on a fraudulent compromise petition and it did not involve any adjudication of rights or interests in the agricultural lands. Hence, the suit was maintainable before a civil court. It, accordingly, set aside the order passed by the Munsif and directed him to proceed with the suit in accordance with law. 5. When the matter came before the Munsif on remand, the defendants once again objected to the maintainability of the suit, this time raising the contention that it was barred under the provisions of Order XXIII Rule 3-A of the Code of Civil 5 Procedure. The Munsif by his order dated January 7, 1988 dismissed the objection and found and held that the suit was maintainable. The defendants- respondents took the matter in revision (Civil Revision No. Nil of 1988) which was dismissed by the District Judge, Banda, by his order dated February 17, 1988. Against the orders passed by the Munsif and the District Judge, the defendants preferred a writ petition before the High Court and the High Court, as noted above, allowed the writ petition holding that the suit was not maintainable. It is a brief order in which the High Court referred to the provisions of Order XXIII Rule 3-A, and relying upon a decision of the Allahabad High Court allowed the writ petition. 6. It is true that a compromise forming the basis of the decree can only be questioned before the same court that recorded the comprise and a fresh suit for setting aside a compromise decree is expressly barred under Order XXIII Rule 3-A. It is 6 equally true the expression "not lawful" used in Rule 3-A of Order XXIII also covers a decree based on a fraudulent compromise hence, a challenge to a compromise decree on the ground that it was obtained by fraudulent means would also fall under the provisions of Rule 3-A of Order XXIII. 7. In Banwari Lal Vs. Chando Devi (1993) 1 SCC 581, this Court examined the provisions of Order XXIII Rule 3-A in some detail and in light of the amendments introduced in the Code and in paragraph 7 of the judgment came to hold as follows: "7. By adding the proviso along with an explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the court which had recorded the compromise in question. That court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The explanation made it clear that an agreement or a compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the said rule. Having introduced the proviso along with the explanation in Rule 3 in order to avoid multiplicity of suit and prolonged 7 litigation, a specific bar was prescribed by Rule 3-A in respect of institution of a separate suit for setting aside a decree on basis of a compromise saying: "3-A. Bar to suit.- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful." It further held in paragraphs 13 and 14 as follows:- "13. When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at,"the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act...." shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the 8 compromise was void or voidable under the Indian Contract Act. Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1-A of Order 43 of the Code." 14. .................The court before which it is alleged by one of the parties to the alleged compromise that no such compromise had been entered between the parties that court has to decide whether the agreement or compromise in question was lawful and not void or voidable under the Indian Contract Act. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to Rule 3 and as such not lawful. The learned Subordinate Judge was perfectly justified in entertaining the application filed on behalf of the appellant and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the court could have recorded such agreement or compromise on February 27, 1991. Having come to the conclusion on the material produced that the compromise was not lawful within the meaning of Rule 3, there was no option left except to recall that order." 9 8. In light of the decision in Banwari Lal it would prima facie appear that the High Court was right in holding that the appellant's suit was hit by the provisions of Order XXIII Rule 3-A and was not maintainable. But the significant distinguishing feature in this case is that the compromise decree which is alleged to be fraudulent and which is sought to be declared as nullity was passed not by a civil court but by a revenue court in a suit under section 176 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter the Act). 9. Section 331 of the Act bars the jurisdiction of the civil court and provides that a suit under the Act can be entertained by no court other than that the courts specified in Schedule II to the Act. A reference to Schedule II would show that the court of original jurisdiction for a suit under section 176 of the Act for division of a holding of a Bhumidhar is Assistant Collector, 1 First Class and the courts of First Appeal and Second Appeal are Commissioner and the Board of revenue respectively. Section 341 of the Act, of course, provides that unless otherwise expressly provided by or under the Act, the provisions of the Indian Court Fee Act, 1870, the Code Of Civil Procedure, 1908 and the Limitation Act, 1963, including section 5 thereof would apply to the proceedings under the Act. 10. Though the provisions of the Code Of Civil Procedure have been made applicable to the proceedings under the Act but that would not make the authorities specified under Schedule II to the Act as `court' under the Code and those authorities shall continue to be "courts" of limited and restricted jurisdiction. 11. We are of the view that Revenue courts are neither equipped nor competent to effectively adjudicate on allegations of fraud that has overtones of criminality and the courts really 1 skilled and experienced to try such issues are the courts constituted under the Code of Civil Procedure. 12. It is also well settled that under section 9 of the Civil Procedure Code, the civil court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority. We find nothing in Order XXIII Rule 3-A to bar the institution of a suit before the civil court even in regard to decrees or orders passed in suits and/or proceedings under different statutes before a court, tribunal or authority of limited and restricted jurisdiction. 13. In our view in the facts of the case the provision of Order XXIII shall not act as a bar against the suit filed by the appellant. We, accordingly set aside the order of the High Court. As a consequence, the suit will be restored before 1 the Munsif who is directed to accord it priority having regard to the fact that for the last 31 years it is stuck up on the issue of maintainability. The trial court should try to dispose of the suit without any delay, and in any case, not later than one year from the date of receipt/production of a copy of this order. 14. In the result, the appeal is allowed but with no order as to costs. ...............................................................J. (Aftab Alam) ...............................................................J. (Ranjana Prakash Desai) New Delhi; January 20, 2012.

jurisdiction of a court under an agreement confined one court is valid ?=whether, if two Courts have jurisdiction to entertain a Suit, whether the parties may by mutual agreement exclude the jurisdiction of one of the Courts, having regard to the =”Thus it is now a settled principle that where there may be two or more competent Courts which can entertain a suit consequent upon a part of the cause of action having arisen therewithin, if the parties to the contract agreed to vest jurisdiction in one such Court to try the dispute which might arise as between themselves, the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague, it is not hit by Sections 23 and 28 of the Contract Act and cannot also be understood as parties contracting against the statute.”

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (C) No.10184 of 2008 A.V.M. SALES CORPORATION ... PETITIONER VS. M/S. ANURADHA CHEMICALS PVT. LTD. ... RESPONDENT J U D G M E N T ALTAMAS KABIR, J. 1. On 23rd December, 1988, the parties to the Special Leave Petition entered into an Agreement at Calcutta 2 for supply of chemicals manufactured by the Respondent to the Petitioner. In continuation of the aforesaid Agreement, the parties arrived at a Mutual Understanding on 15th May, 1989, whereby the Respondent would adjust the advance lying with it and would exclusively supply to the Petitioner its two products, namely, Sodium Chromate and Sodium Dichromate in West Bengal, Bihar, Orissa and Assam. The Understanding between the parties included other terms and conditions as well. The terms of the Understanding entered into between the parties were reduced into writing in an agreement and the same was executed at Calcutta on 5th August, 1989, reiterating the terms of the Understanding and containing an additional clause indicating that "Any dispute arising out of this agreement will be subject to Calcutta jurisdiction only." [Emphasis supplied]. 2. Since certain differences arose between the parties relating to the supply of goods in question, the 3 Petitioner herein filed Original Suit No.588 of 1991 in the Calcutta High Court on 27th August, 1991, for recovery of its alleged dues from the Respondent, after giving due adjustment of the amount of the Invoices raised by the Respondent and filed its claim only for the balance amount, along with penalties etc. Upon receiving summons of the suit filed by the Petitioner, the Respondent on 12th September, 1991, filed a separate suit against the Petitioner at Vijayawada for recovery of a sum of 3,86,453.05, treating the Purchase Order dated 12th February, 1990, to be independent of the Agreement and also sought recovery of supplies made under the Invoices raised by the Respondent upon the Petitioner. 3. The Petitioner duly contested the Suit filed by the Respondent by filing Written Statement, along with relevant documents, in support of its case. Out of the several issues raised by the Petitioner, one was the issue relating to the jurisdiction of the Vijayawada 4 Court to entertain the Suit on account of the exclusion clause by which all actions arising out of the Agreement and the Memorandum of Understanding were to be subject to the Calcutta jurisdiction only. The other issue of importance was with regard to adjustment, inasmuch as, the Purchase Order dated 12th February, 1990, was treated as independent of the Understanding and Agreement arrived at between the parties. Rejecting the objection relating to jurisdiction, the Principal Senior Civil Judge, Vijayawada, by his judgment and decree dated 5th March, 1999, decreed the Respondent's Suit (Original Suit No.519 of 1991) with costs for a sum of 3,86,453.05, together with interest at the rate of 12% per annum, from the date of the Suit till realisation of the principal amount of 2,98,267.50. The Petitioner filed First Appeal No.1352 of 1999 before the Andhra Pradesh High Court against the aforesaid judgment and decree dated 5th March, 1999. By judgment and order dated 18th January, 2007, the learned Single Judge of the High 5 Court dismissed the Appeal filed by the Petitioner. It is against the aforesaid judgment of the learned Single Judge of the Andhra Pradesh High Court in the First Appeal preferred by the Petitioner that the present Special Leave Petition has been filed. 4. Apart from the other grounds taken with regard to factual aspect of the matter, grounds have also been taken regarding the exclusive jurisdiction of the Courts at Calcutta agreed to by the parties in the Agreement and whether the same was not binding upon the parties. A further ground has also been taken as to whether in breach of the Agreement, the Respondent was entitled to invoke the jurisdiction of a Court at Vijayawada, whose jurisdiction stood ousted by the Agreement entered into between the parties. 5. On the strength of the pleadings of the parties, five issues were framed by the Trial Court, of which the first issue was whether the Court at Vijayawada had 6 territorial jurisdiction to entertain the suit. By his judgment and decree dated 5th March, 1999, in O.S. No.519 of 1991, the learned Principal Senior Civil Judge, Vijayawada, held that the Court at Vijayawada had jurisdiction to entertain the Suit as part of the cause of action for the suit arose within its jurisdiction. The learned Trial Judge, accordingly, decreed the Suit, as indicated hereinabove. In the First Appeal, being F.A. No.1352 of 1992, the learned Single Judge of the Andhra Pradesh High Court observed that the main contention of the Appellant before the High Court, who is the Petitioner herein, was that the Principal Senior Civil Judge, Vijayawada, had no jurisdiction to entertain the Suit as no part of the cause of action had arisen at Vijayawada. According to the Petitioner, its place of business was at Calcutta and the Agreement for the supply of the goods in question was also entered into at Calcutta. The goods were to be delivered at Calcutta and payment in respect thereof was to be made at Calcutta and, accordingly, 7 the Court at Vijayawada had no territorial jurisdiction to entertain the Suit under Section 20 of the Code of Civil Procedure as no part of the cause of action had arisen within its jurisdiction. It was also emphasised that in the Agreement which was made Exh.D-5, it has been stipulated in Column 13 that any dispute arising out of the Agreement would be subject to the Calcutta jurisdiction only. 6. The question involved in this Special Leave Petition has several dimensions, including the question as to whether the parties to an agreement can contract in violation of Sections 23 and 28 of the Indian Contract Act, 1872. Obviously, the parties cannot contract against the statutory provisions. A connected question would arise as to whether the parties to an agreement can confer jurisdiction on a Court which has no territorial or pecuniary jurisdiction to entertain a matter? The answer to the second question is also in the negative. However, in this case a slightly 8 different question arises, namely, as to whether if two Courts have jurisdiction to try a suit, can the parties to an agreement mutually agree to exclude the jurisdiction of one Court in preference to the other and as to whether the same would amount to violation of the provisions of Sections 23 and 28 of the Indian Contract Act? The said question has been answered in the affirmative by the Trial Court and has been upheld by the High Court. 7. The question which has been raised in this Special Leave Petition is not new and has been considered by this Court earlier in several decisions. We are, therefore, required to consider as to whether the cause of action for the Suit filed by the Respondent in Vijayawada arose within the jurisdiction of the Court of the Principal Senior Civil Judge at Vijayawada, exclusively, or whether such cause of action arose both in Vijayawada and also in Calcutta? As has been mentioned hereinbefore on behalf of the Petitioner, it 9 had been urged that the entire cause of action for the Suit had arisen within the jurisdiction of the Calcutta Courts and the Courts at Vijayawada had no jurisdiction whatsoever to entertain a suit pertaining to the Understanding and Agreement arrived at between the parties. However, it was contended on behalf of the Respondent that its Registered Office was situate at Vijayawada, the Invoices for the goods were raised at Vijayawada, the goods were dispatched from Vijayawada and the money was payable to the Plaintiff or its nominee at Vijayawada, by way of Demand Drafts and, accordingly, the Courts at Vijayawada had jurisdiction to entertain the Suit. 8. It has often been stated by this Court that cause of action comprises a bundle of facts which are relevant for the determination of the lis between the parties. In the instant case, since the invoices for the goods in question were raised at Vijayawada, the goods were dispatched from Vijayawada and the money was 10 payable to the Respondent or its nominee at Vijayawada, in our view, the same comprised part of the bundle of facts giving rise to the cause of action for the Suit. At the same time, since the Petitioner/ Defendant in the Suit had its place of business at Calcutta and the Agreement for supply of the goods was entered into at Calcutta and the goods were to be delivered at Calcutta, a part of the cause of action also arose within the jurisdiction of the Courts at Calcutta for the purposes of the suit. Accordingly, both the Courts within the jurisdiction of Calcutta and Vijayawada had jurisdiction under Section 20 of the Code of Civil Procedure to try the Suit, as part of the cause of action of the Suit had arisen within the jurisdiction of both the said Courts. 9. This leads us to the next question as to whether, if two Courts have jurisdiction to entertain a Suit, whether the parties may by mutual agreement exclude the jurisdiction of one of the Courts, having regard to the 11 provisions of Sections 23 and 28 of the Indian Contract Act, 1872. Section 23 of the aforesaid Act indicates what considerations and objects are lawful and what are not, including the considerations or objects of an agreement, if forbidden by law. Section 28 of the Act, which has a direct bearing on the facts of this case, clearly spells out that any agreement in restraint of legal proceedings is void. For the sake of reference, the same is extracted hereinbelow : "28. Agreements in restrain of legal proceedings, void - [Every agreement, (a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, or (b) which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to the extent.] Exception 1 : Saving of contract to refer to arbitration dispute that may arise.- This 12 section shall not render illegal contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. Exception 2 : Saving of contract to refer question that have already arisen. - Nor shall this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to reference to arbitration." 10. Basically, what Section 28 read with Section 23 does, is to make it very clear that if any mutual agreement is intended to restrict or extinguish the right of a party from enforcing his/her right under or in respect of a contract, by the usual legal proceedings in the ordinary Tribunals, such an agreement would to that extent be void. In other words, parties cannot contract against a statute. 13 11. One of the earlier cases in which this question had arisen, was the case of A.B.C. Laminart Pvt. Ltd. & Anr. Vs. A.P. Agencies, Salem [AIR 1989 SC 1239 = (1989) 2 SCC 163]. In the said case, the cause of action for the suit had arisen both within the jurisdiction of the Civil Court at Salem in Andhra Pradesh and in the Civil Court of Kaira in the State of Gujarat. The question arose as to whether since by mutual agreement the jurisdiction had been confined only to the Courts within Kaira jurisdiction, the suit filed at Salem was at all maintainable? This Court, inter alia, held that there could be no doubt that an agreement to oust absolutely the jurisdiction of the Court will be unlawful and void, being against public policy. However, such a result would ensue if it is shown that the jurisdiction to which the parties had agreed to submit had nothing to do with the contract. If, on the other hand, it is found that the jurisdiction agreed would also be a proper jurisdiction in the matter of the contract, it could not be said 14 that it ousted the jurisdiction of the Court. After considering the facts involved in the said case and the submissions made on behalf of the parties, this Court observed as follows : "Thus it is now a settled principle that where there may be two or more competent Courts which can entertain a suit consequent upon a part of the cause of action having arisen therewithin, if the parties to the contract agreed to vest jurisdiction in one such Court to try the dispute which might arise as between themselves, the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague, it is not hit by Sections 23 and 28 of the Contract Act and cannot also be understood as parties contracting against the statute." 12. A similar view was taken by this Court in Angile Insulations vs. Davy Ashmore India Ltd. & Anr. [(1995) 4 SCC 153], wherein the Hon'ble Judges while referring to the decision of this Court in A.B.C. Laminart Pvt. Ltd.'s case (supra), inter alia, held that where two Courts have jurisdiction consequent upon the cause of action or a part thereof arising therein, if the parties agree in clear and unambiguous terms to exclude 15 the jurisdiction of the other, the said decision could not offend the provisions of Section 23 of the Contract Act. In such a case, the suit would lie in the Court to be agreed upon by the parties. 13. This Court has consistently taken the same view in several subsequent cases. We may refer to one such decision of this Court in Hanil Era Textiles Ltd. Vs. Puromatic Filters (P) Ltd. [AIR 2004 SC 2432 = (2004) 4 SCC 671], where part of the cause of action arose at both Delhi and Bombay. This Court held that the mutual agreement to exclude the jurisdiction of the Delhi Courts to entertain the suit was not opposed to public policy and was valid. 14. As indicated herein earlier, in this case also the cause of action for the Original Suit No.519 of 1991, filed by the Respondent before the Principal Senior Civil Judge, Vijayawada, arose partly within the 16 jurisdiction of the Calcutta Courts and the Courts at Vijayawada. 15. Having regard to the provisions referred to hereinabove, though the Courts at Vijayawada would also have jurisdiction, along with the Courts at Calcutta, to entertain and try a suit relating to and arising out of the Agreement dated 23rd December, 1988, and the Mutual Understanding dated 15th May, 1989, such jurisdiction of the Courts at Vijayawada would stand ousted by virtue of the exclusion clause in the Agreement. 16. The Special Leave Petition has, therefore, to be allowed. The decree passed by the Principal Senior Civil Judge, Vijayawada in O.S. No.519 of 1991, and the impugned judgment of the High Court dated 18th January, 2007, are set aside. The Trial Court at Vijayawada is directed to return the plaint of the Original Suit No.519 of 1991 to the Plaintiff to present the same 17 before the appropriate Court in Calcutta having jurisdiction to try the suit. 17. The Special Leave Petition is, accordingly, allowed, but there will be no order as to costs. ................................................J. (ALTAMAS KABIR) New Delhi .............................................J. Dated: 17.01.2012 (CYRIAC JOSEPH)