1. The plaintiffs have preferred this civil miscellaneous appeal from an order returning the plaint for presentation to the proper court having jurisdiction to try the suit. The first defendant is a firm carrying on business at bombay and the 2nd defendant was the agent of the 1st defendant at cochin at the time of the transaction which has given rise to the suit. The suit was for recovery of damages for short delivery of goods transported by sea by the 1st defendant as per bill of lading dated 30. 3. 1949. The 2nd defendant was sought to be made liable for the plaint claim in case the 1st defendant was found to be not liable for the same. The cause of action for the suit was alleged to have arisen at bombay and cochin. The 1st defendant contended inter - alia that the lower court had no jurisdiction to entertain the suit. Issue no. 5 related to the question of jurisdiction. This was heard as a preliminary issue and the court found that the suit could be filed only at bombay. The plaint was accordingly ordered to be returned to the plaintiffs for presentation to proper court.
2. The defence contention regarding want of jurisdiction was based on the following clause in the bill of lading.
"bombay courts alone shall have jurisdiction in respect of any claims filed against the company".
shri. M. U. Issac, Learned counsel for the appellants contended that this clause was void under s. 29 of the cochin contract act corresponding to s. 28 of the indian contract act in as much as it was one in restraint of legal proceedings. S. 28 of the indian contract act reads as follows:
"every agreement 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, Is void to that extent.
3. The validity of similar agreement came up for decision before a full bench of the lahore high court in musa ji lukman ji v. Durga das (air 1946 lahore 67). It was held:
"the question, Therefore in other words is whether an agreement, Between the parties to a contract in a case, Where a suit can be tried within the territorial limits of several courts, To the effect that it will only be tried in one of the courts having territorial jurisdiction and that the parties will be limited to have recourse to only one of the several competent courts is within the ambit of s. 28. On a plain reading the section, I have no hesitation in answering that question in the negative. The section makes void only those agreements which absolutely restrict a party to a contract from enforcing the rights under that contract in ordinary tribunals. But this section has no application when a party agrees not to restrict his right of enforcing his rights in the ordinary tribunals but only agrees to a selection of one of those ordinary tribunals in which ordinarily a suit would be tried. This section, In my view, Prevents parties from divesting courts of their inherent jurisdiction, But it does not in any way vitiate an agreement between the parties by which a person who has the choice of the forum agrees to a limitation of that choice or agrees to the curtailment of the unlimited choice which law has conferred upon him. An agreement to that effect is not hit by the language of this section"
.
4. It is unnecessary to cite earlier decisions of other high courts, As all the previous decisions are considered in musa ji lukman ji v. Durga das. The dictum laid down in the above case has since been followed by the other courts and it may now be taken as settled law. This court also expressed the same view in orient ship supply co. V. Kalamarsand & co. (air 1951 travancore cochin 1). We hold that the clause in question is not void under s. 28 of the indian contract act.
5. It was also urged that the plaintiffs have a cause of action against the 2nd defendant and that the 2nd defendant is a resident within the jurisdiction of the trial court. It is open for the plaintiffs if so advised, To confine the suit against the 2nd defendant alone. If the plaintiffs so choose, The trial court will have to decide whether the 2nd defendant who has been impleaded as agent of the 1st defendant can claim the benefit of the said clause.
6. As a last point it was urged that the direction given by the trial court that the plaintiffs should pay the whole costs of both the defendants was unjust and improper. There is some substance in this contention. What the lower court should have done was to pay an order under o. Vii, R. 10 of the code of civil procedure and not a judgment and decree in the suit. In this view, The direction regarding costs cannot be upheld and we modify the same by directing that the plaintiffs should pay the costs incurred by the defendants in the trial court including advocate's fee of rs. 25/ - only, To each of the defendants.
subject to the modification regarding costs, The civil miscellaneous appeal is dismissed with costs to the 1st respondent.
dismissed.