Vikramajit Sen, J.

1. This Revision is directed against the Order dated 13.5.2000 disposing of the Defendant/Revisionists application under Order VII Rule 10 CPC. The Defendant had prayed for the return of the Plaint, since in its opinion Courts at Delhi lacked territorial jurisdiction to entertain the Suit.

2. It is well established that at the stage of deciding an application under Order VII Rule 10 or Order VII Rule 11 the averments in the Plaint should alone be looked at. Reference need only be directed to Saleem Bhai Versus State of Maharashtra, I (2003) SLT 5=I (2003) CLT 120 (SC)=2002 X AD (S.C.) 537. This principle may be somewhat enlarged by making it permissible to also look at the documents filed by the Plaintiff. This is for the reason that the Plaintiff cannot deny the genuineness of documents filed by him. This presumption, however, would not extend to the extremity that every statement made in the document also stands admitted by the Plaintiff. Let us consider the case of a Notice issued by the Plaintiff, and the Reply received thereto. This Reply to the Notice may be filed by the Plaintiff along with the Plaint. In the Reply the Defendant may take any number of objections or positions. By merely filing such a Reply it cannot be posited against the Plaintiff that every content of that document must be read as having been admitted by him.

3. In the present case the averments in the Plaint are to the effect that the order was received in Delhi, the goods were dispatched from Delhi, and part payment was received at Delhi. The Defendant, however, seeks to rely on a Clause in the so-called Purchase Order to the following effect:

"3. All contracts and orders are deemed to be entered into at Faridabad (Haryana) and any action arising therefrom shall be subject to the jurisdiction courts of Faridabad only or arbitrators appointed by the both sides".

4. The case of the Plaintiff is that this term was never agreed upon and that on the contrary, in the Receipts issued by the Plaintiff to the Defendant/Revisionist there is an opposing clause to the effect that only Courts at Delhi shall possess jurisdiction. There is palpable controversy on this vexed question, which can be effectively and appropriately determined only after an opportunity is afforded to the parties to prove their cases.

5. It is well settled that the parties are entitled by agreement to restrict the venue of adjudication of the dispute. However, there cannot be any unilateral agreement. Both the parties must explicitly agree to the ouster of the jurisdiction of other Courts and restrict it to one Court alone. The Court to which the territorial jurisdiction is reserved must, in the first place, enjoy jurisdiction to entertain the Suit. So far as this point is concerned one has to look at the bundle of facts constituting the cause of action. The opinion of the Honble Supreme Court in ABC Laminart vs. A.P. Agencies, AIR 1989 SC 1239 [LQ/SC/1989/152 ;] ">AIR 1989 SC 1239 [LQ/SC/1989/152 ;] [LQ/SC/1989/152 ;] = 1989 (2) SCC 163 [LQ/SC/1989/152 ;] ">1989 (2) SCC 163 [LQ/SC/1989/152 ;] [LQ/SC/1989/152 ;] is topically instructive. The parties had entered into a supply contract in Madras, one of the terms of which was that if any dispute arose out of that sale it " shall be subject to Kaira jurisdiction". A suit for recovery of money came to be filed in Salem instead, and the Trial Court returned the plaint for presentation in the proper Court. The Apex Court opined that a clause envisaging a complete ouster of the jurisdiction of all the Courts ordinarily possessing jurisdiction would be void as being contrary to public policy or if the agreed venue had no connection with the contract. However, the Court pronounced that there was no legal irregularity in the parties to a contract agreeing to a venue which is one amongst several others ordinarily possessing territorial jurisdiction. Their Lordships thereafter clarified that the phrase cause of action means “every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court.” On facts, it was opined that the clause did not completely and conclusively oust the jurisdiction of every Court other than kaira, such as Salem. There is no debate in this precedent as to the place of the Defendants residence constituting one of the venues of jurisdiction. In the context of Section 20 of the C.P.C. and the controversy before me, the Honble court recorded these observations:-

“15. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have (been) performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the Court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors.”

6. In my view, the decision of the Honble Supreme Court in M/s. Patel Roadways Limited vs. M/s. Prasad Trading Company, AIR 1992 SC 1514 [LQ/SC/1991/361] is more directly applicable to the controversy which has arisen in this case. The Bench comprised of three learned judges and the decision was authored by his Lordship, N.D. Ojha. Section 20 of the C.P.C. was in focus. It was observed that the words" at such place" occurring at the end of the Explanation and the word "or" which is a disjunctive word suggests that if the case falls within the latter part of the Explanation, it is not the Court within whose jurisdiction the principal office of the defendant is situate but the Court within whose jurisdiction it has a subordinate office which alone shall have jurisdiction "in respect of any cause of action arising at any place where it has also a subordinate office". The Apex Court observed as follows:

“Indeed the effect would have been wider. The suit could have been instituted at the place of the principal office because of the situation of such office (whether or not any actual business was carried on there). Alternatively, a suit could have been instituted at the place where the cause of action arose under clause (c) (irrespective of whether the corporation had a subordinate office in such place or not). This was, therefore, not the purpose of the Explanation. The Explanation is really an explanation to clause (a). It is in the nature of a clarification on the scope of clause (a) viz. as to where the corporation can be said to carry on business. This, it is clarified, will be the place where the principal office is situated (whether or not any business actually is carried on there) or the place where a business is carried on giving rise to a cause of action (even though the principal office of the corporation is not located there) so long as there is a subordinate office of the corporation situated at such place. The linking together of the place where the cause of action arises with the place where a subordinate office is located clearly shows that the intention of the legislature was that, in the case of a corporation, for the purposes of clause (a), the location of the subordinate office, within the local limits of which a cause of action arises, is to be the relevant place for the filing of a suit and not the principal place of business. If the intention was that the location of the sole or principal office as well as the location of the subordinate office (within the limits of which a cause of action arises) are to be deemed to be placed where the corporation is deemed to be carrying on business, the disjunctive " or" will not be there. Instead, the second part of the Explanation would have read " and, in respect of any cause of action arising at any place where it has a subordinate office also at such place."

7. Since the objection pertaining to the territorial jurisdiction has been taken at the threshold, as has already been observed above, at this juncture only the Plaint should be looked at. From a reading thereof, it is not immediately and undeniably clear that courts in Faridabad have jurisdiction. For this to be crystal clear the cause of action must also arise in that place. In the impugned Order the Court has declined to return the Plaint, since it was of the view that the matter could be determined only after the reception of evidence. Learned counsel for the Revisionist has relied heavily on Section 20 of the CPC. In my opinion, a distinction must be drawn between places possessing jurisdiction because of any part of the cause of action having arisen therein, and other places where a Suit may be filed because of the residence of the Defendant. If no part of cause of action arises in the place where the Defendant resides, on the application of Section 20, the Plaintiff is nevertheless entitled to file the Suit where the Defendant resides. The cause of action should not be confused with the residence of the Defendant. Let us assume for the sake of argument that it is the admitted case that payments were agreed to be made the place where the Defendant resides. In such an event the ouster of other venues would be legal. This convoluted controversy cannot thus be decided upon an application under Order VII or as a preliminary issue.

8. Reliance has been placed on the more recent decision of the Apex Court in Shri Ram City Union Finance Corporation Limited vs. Rama Mishra, (2002) 9 SCC 613 [LQ/SC/2000/1727] which was decided without reference to ABC Laminart case (supra) as well as Patel Roadways case (supra). It does not in any way advance the case of the Revisionist inasmuch as it has reiterated the legal proposition enunciated in the earlier Judgments. In that case there was a clause in the Agreement itself restricting jurisdiction to the Courts at a particular place; in the case in hand rival parties have made opposing claims predicated on their respective invoices/receipts. It was observed, relying on Hakam Singh v. Gammon (India) Limited, (1971) 1 SCC 286 [LQ/SC/1971/21] , thus:-

“A party is bound either by provision of the Constitution, statutory provisions or any rule or under terms of any contract which is not against the public policy. It is open for a party for his convenience to fix the jurisdiction of any competent Court to have their dispute adjudicated by that court alone. In other words, if one or more courts have the jurisdiction to try any suit, it is open for the parties to choose any one of the two competent courts to decide their disputes. In case parties under their own agreement expressly agree that their dispute shall be tried by only one of them then the parties can only file the suit in that court alone to which they have so agreed. It the present case, as we have said, through clause 34 of the agreement, the parties have bound themselves that in any matter arising between them under the said contract, it is the courts in Calcutta alone which will have jurisdiction. Once parties bound themselves as such it is not open for them to choose a different Jurisdiction as in the present case by filing the suit at Bhubaneshwar. Such a suit would be in violation of the said agreement.”

9. At this stage learned counsel for the Petitioner submits that, in fact, the learned Trial Court has finally decided this question, although the Order does not specifically speak so. On a reading of the impugned Order it merely states that the application has no merit. It does not state that the plea of the Defendant to the effect that the Courts in Delhi have no jurisdiction is without merit. A lot of water has flowed from under the bridge inasmuch as the Defendant has been proceeded ex parte and these Orders have not been recalled because of a recalcitrant refusal to pay costs. It is trite to state that even where a party has been proceeded with or set ex parte he is nevertheless entitled to join the proceedings at any stage, but he cannot expect the clock to be put back. Learned counsel for the Revisionist is justified in praying that it be clarified that the Defendant is free to address final arguments before the Trial Court on the basis of the evidence already recorded and available that the Trial Court, (or any other Court in Delhi), does not enjoy territorial jurisdiction to entertain and decide the suit. Learned counsel for the Respondent/Plaintiff states that he has no objection for the Revisionist to appear before the learned Trial Court and address final arguments in the case, predicated on the pleadings and evidence presently on record. It is ordered accordingly.

10. The Revision petition is disposed of. All interim Orders are recalled. Parties to bear their respective costs.