1. This suit has been filed by the plaintiffs on the allegation that Gordhandas Jitmal, the father of the defendant, had appointed them as commission agents and pacca adatias to effect forward transactions in diverse commodities on his behalf in Bombay. The plaintiffs allege that an account in respect of the dealings was made between the plaintiffs and Gordhandas Jitmal on January 26, 1940, when a sum of Rs. 15,092-10-3 was found due and owing by the deceased to the plaintiffs, and on the same day a promissory note promising to pay Rs. 11,000 was passed by the deceased in favour of the plaintiffs.
2. The present suit is filed against the defendant as the heir and legal representative of Gordhandas Jitmal for the recovery of the balance due under the promissory note dated January 26, 1940. The relief against the defendant is restricted to the payment of the amount out of the estate of his deceased father come to his hands.
3. In the written statement the defence taken by the defendant is that he is an agriculturist, that he derives his livelihood principally by agriculture, and that this Court has no jurisdiction to try the suit. Other defences are also taken on the merits. I directed that the issue as to jurisdiction should be tried as a preliminary issue.
4. Mr. Mehta contends that the defendant is not entitled to avail himself of the benefit of the Dekkhan Agriculturists' Relief Act, 1879. His contention is that the transaction in suit was between the plaintiffs and the defendant's father, that the defendant had nothing whatever to do with the transaction, and that the relief claimed is not against the defendant personally but only against him as the legal representative of his father. Mr. Mehta, while conceding that this suit is of the description referred to in Section 3, Clause (w),of the Dekkhan Agriculturists' Relief Act, contends that it is only when the transaction is between the plaintiff and the defendant that under Section 11 the Court would have no jurisdiction to try the suit.
5. Now, looking to Section 11, it is clear that what it provides is that the Court shall have no jurisdiction to try suits of the description mentioned in Section 3, Clause (w). Instead of setting out all the suits mentioned in Section 3, Clause (w) seriatim in Section 11, the Legislature more compendiously refers to Section 3(w) to indicate the nature of suits in which the Court would have no jurisdiction. Section 11 is clear in its terms. It lays down that in every suit of the description referred to in Section 3, Clause (w), if the defendant is an agriculturist, then that suit must be instituted and tried in a Court within the local limits of whose jurisdiction he resides. In this case the defendant says:
I do not reside within ,the jurisdiction of this Court. I am being sued in a suit of the description mentioned in Section 3, Clause (w). I am an agriculturist and, therefore, this Court has no jurisdiction to try the suit.
6. Apart from authorities, I should have no hesitation in holding that on the construction of Section 11 it is open to a defendant who has been sued as a legal representative to take up the defence of an agriculturist under Section 11. But as it happens, there is ample authority that our Court has construed this section in the manner I have indicated. There is an unreported judgment of Mr. Justice Blackwell in Lakhaji Dolaji & Company v. Ishwarappa Malleshiappa Manvi (1941) O.C.J. Suit No. 1904 of 1938, decided by Blackwell J., on April 4, 1941 (Unrep.) where one of the defendants who was originally sued died pending the hearing of the suit and his legal representative was brought on the record. Counsel on his behalf contended that he was an agriculturist within the meaning of the Dekkhan Agriculturists' Relief Act and that, therefore, the Court had no jurisdiction to try the suit. It was strongly urged that that defence was not open to him as he had come on the record by devolution of interest due to death, and under Order XXII of the Civil Procedure Code it was not open to him to take up a defence which was not open to the original defendant. Notwithstanding this argument, Mr. Justice Blackwell held that it was competent to the newly added defendant to take up the defence that the Court had no jurisdiction. It is clear that the facts before Mr. Justice Blackwell were much less favourable to the arguments advanced by Mr. Desai than the facts in this case. In Mahadev v. Ramchandra : AIR1938Bom96 , the facts that came up for decision before Mr. Justice Kania are also identical with the facts in this case. There the plaintiff sued to recover a sum of Rs. 12,000 due to him from the 1st defendant firm. One Gangaram, who was alleged to be a partner in that firm, had died prior to the institution of the suit leaving him surviving a minor son Vasant, and he was brought on record as defendant No. 2 as the heir and legal representative of the deceased partner. On behalf of the minor Vasant it was contended that he was an agriculturist and, therefore, the Court had no jurisdiction to try the suit. On behalf of the plaintiff it was urged that it was not open to a minor to take up the defence of want of jurisdiction on the ground that he was an agriculturist. Mr. Justice Kania rejected the contention of counsel for the plaintiff and held that it was open to a minor to take up that defence. It is important to note that although the plaintiff strenuously resisted the application of defendant No. 2 that the Court had no jurisdiction because defendant No. 2 was an agriculturist on the ground that he was a minor, it was never suggested to the Court that it was not open to defendant No. 2 to take up this defence because he was merely a legal representative and the transaction was not between the plaintiff and him but between the plaintiff and; the original defendant. Now, it is a well known canon of interpretation of judicial decisions that where a point could have been obviously taken before the Court for the decision of a suit and that point has not been taken, that point was not taken because it was not tenable. Mr. Mehta has urged that Mr. Justice Kania has not directly held that it is open to a person sued in a representative capacity to avail himself of the benefit of the Act. But the very fact that counsel at the bar did not urge this contention implies that the point was conceded by counsel for the plaintiff and, therefore, it was not argued and no decision sought from the Court. Further, underlying the decision of Mr. Justice Kania is the clear assumption that it is open to a legal representative to raise the plea under the Act in his own right.
7. Apart from these decisions, I have no hesitation in holding on the relevant sections of the Act that a legal representative of a party with whom the plaintiffs had transactions on which the suit is based is as much entitled to take up the defence that he is an agriculturist within the meaning of the Act as the party himself would have had.
8. In coming to a decision on issue No. 1 accounts will have to be taken, and issue No. 2 would depend upon the result of these accounts,
9. I, therefore, direct that the suit be referred to the Commissioner for the taking of accounts of the income of the defendant of the last three years prior to the filing of the suit from both agricultural and non-agricultural sources.
10. The suit was filed as a short cause and came on for hearing and final disposal on November 19, 1941. The defendant then filed his written statement and, as I have already pointed out, he there took up the defence that this Court had no jurisdiction on the ground that he was an agriculturist within the meaning of the Act as he derived his livelihood principally from agriculture. On that written statement normally the order would have been a reference to the Commissioner straightaway to ascertain the income of the defendant. At the hearing of the short cause Mr. Mehta for the plaintiffs wanted the suit to be transferred to the list of long causes as he contended that that defence was not open to the defendant and that until that point was decided an order for reference to the Commissioner should not be made. This suit has come on today's board and has been heard only on the point taken up by Mr. Mehta, and Mr. Mehta has failed in his contention. The costs therefore incurred today have been entirely due to the contention taken up by the plaintiffs and but for this contention, as I have already said, there would have been a reference to the Commissioner on November 19, 1943, and today's hearing would have been absolutely unnecessary. I do not see why, whatever the results of the reference may be, the defendant should bear the costs incurred today. I, therefore, order that the plaintiffs should pay to the defendant the costs of today's hearing. Further costs and further directions reserved.