Mrs P.P.Mohanty, learned counsel for the revision petitioners is present.

2.      Heard learned counsel for the revision petitioners.

3.      Learned counsel for the revision petitioners submitted that petitioners have filed a petition before the learned District Forum, Malkangiri alleging that the complaint is not maintainable. The petitioners also took the plea that the District Forum, Malkangiri has no territorial jurisdiction to entertain the complaint since cause of action and the place of business of the OPs is at Bhubaneswar. Learned District Forum without understanding the plea of the petitioners rejected the petition by observing that there is no evidence from the side of the petitioners to prove that the condition relating to the jurisdiction was the negotiated contract made between the parties. She further submitted that the District Forum has observed in the impugned order that there is no evidence from the side of the  petitioners to prove that the territorial jurisdiction of the District Forum, Malkangiri does not allow to entertain the complaint.

4.      It is further submitted on behalf of the petitioners that the learned District Forum has passed the impugned order illegally by rejecting the petition by referring  the decision in the case of Bhandari Interstate Carriers and another vrs. M/s A.K.Synthetics which is not applicable to the facts and circumstances of this case. Therefore, she submitted to set aside the impugned order.

5.      Considered the submission of learned counsel for the revision petitioners and perused the impugned order.

6.      On perusal of the impugned order, it reveals that the learned District Forum has passed the impugned order assuming that the parties have already led evidence. But none of the parties was allowed to lead evidence in the facts and circumstances of the case.  On further perusal of impugned order, prima facie, we are of opinion that the learned District Forum ought to have considered the issue of maintainability along with the merit of the case when parties are allowed to lead evidence. The learned District Forum   has passed the impugned order in the following manner:-

“Complainant is present. A/R for OPs is also present.

Heard from the both of them at length on the petition filed U/o 7, Rule 11 of CPC by the A/R for Opp.Parties. A/R for Opp.Parties have filed the provisions emphasized on CPC as well C.P.Act, 1986. In the said petition, the A/R for OP has challenged the territorial jurisdiction of this Forum to entertain the case stating that since the cause of action arose at Bhubaneswar, therefore, the complainant ought to have filed his complaint in the appropriate Forum at Bhubaneswar and no branches of the Opp.Parties are existed under the territorial jurisdiction of this Forum. The complainant argued that since the Opp.Parties are service provider and have provide medical service and pharma service to all the patients and there is no also no any bar to entertain a patient who comes from far distance. Heard from both parties. It is pertinent to mention here that there is no disputes regarding the status of the complainant as consumer, so also there is no dispute that the OPs are service provider. Further we have gone through the documents filed by the complainant i.e. medical documents and retail invoices issued by the OP No.2 and found that nowhere it is mentioned about the territorial jurisdiction, if any disputes arise. There is also no evidence form the side of the OPs to prove that the condition relating to the jurisdiction was the negotiated contract made between the parties. Hence we do not have any hesitation to feel that this Fora has no ample jurisdiction to try over the present dispute. In this connection, we have fortified with the verdicts of the Hon’ble National Commission in the case between Bhandari Interstate Carriers and another Vrs. M/s A.K.Synthetics, wherein it is held that “Jurisdiction - Condition stipulated on the Goods receipt that” all disputes subject to Delhi jurisdiction”-whether State Commission, Rajasthan had jurisdiction to entertain the complaint? – State Commission held that there was no proof that the condition relating to jurisdiction was the result of a negotiated contract. The complainant had not agreed to that condition. It was further found that the condition that “all disputes subject to Delhi jurisdiction” did not exclude of the State Commission which otherwise it had under the law as a part of the cause of action had arisen within the jurisdiction of the State Commission – analysis of State Commission upheld.” Keeping in view of the above verdicts, we feel that the OPs have taken such plea which otherwise will not do from any angle. Hence the petition filed U/o 7 Rule 11 of CPC by the OP is herewith rejected.”

7.      Thus, the impugned order does not stand to reason to allow evidence have been led to prove jurisdictional facts. Rather the plea of the petitioners regarding territorial jurisdiction of the District Forum along with the merit of the case should be taken up for hearing. Hence, the impugned order is set aside. The learned District Forum is directed to give opportunities to both the parties to lead evidence and decide the question of maintainability as raised in the written version of the petitioners along with other issues and disposed of the same on merit within 30 days from the date of filing of the copy of this order.

8.      It is made clear that we have not expressed any opinion with regard to the merit of the case. It is for the District Forum to decide all issues including maintainability of the complaint after hearing the parties and the materials produced before it within the stipulated time as stated above. Both parties are directed to appear before the learned District Forum on 21.9.2020 to take further instruction from it.

Free copy of this order be supplied to the learned counsel for the petitioners to be produced before the learned District Forum.

The revision petition is disposed of accordingly.