1. The appellant before us was the plaintiff in the suit. The suit was filed in the Court of the Munsif of Mohammadabad at Azamgarh and prayed for two reliefs which are as follows:
(a) An order may be passed by the Court directing the defendant that he should render the account within a time to be fixed by the Court and pay whatever amount might be found due to the plaintiff on rendition of account. This relief is laid at Rs. 10. The remaining court-fee will be paid after rendition of account.
(b) It may be declared by the Court that the decree passed on 10th June 1932 in Suit No. 1289 of 1932, Firm Haji Salamatullah v. Haji Abdurrahman by the Small Cause Court at Cawnpore, is null and void and that the said decree has no effect at all nor is it binding upon the plaintiff. This relief is laid at Rs. 128-15-0.
2. The material facts are that the plaintiff is a firm carrying on business at Muhammadabad in the District of Azamgarh and deals in leather. The defendant is another firm carrying on business at Cawnpore as a commission agent. The Azamgarh firm used to send leather to the Cawnpore firm for sale on commission. The Cawnpore firm filed a suit No. 1289 of 1932 in the Court of Small Causes at Cawnpore against the Azamgarh firm for recovery of a sum of money and obtained an ex parte decree. That decree was transferred to Azamgarh and execution proceedings were taken there. The Azamgarh firm thereupon filed this suit. The allegations were that the ex parte decree obtained by the Cawnpore firm had been obtained fraudulently, that no summons had been served on the plaintiff through the fraud of the defendant, arid that the decree was not therefore binding on the plaintiff. It was further alleged that the plaintiff was entitled to a rendition of accounts by the defendant for a certain period. On these allegations the two reliefs mentioned above were prayed for. The defendant pleaded that the suit was not cognizable by the Court at Azamgarh, that there had been no fraud practised in the service of the summons of the Suit No. 1289 of 1932 and that the decree had been fairly and properly obtained. It was also pleaded that the plaintiff was not entitled to sue for rendition of accounts.
3. The Court of first instance held that the suit was cognizable by the Azamgarh Court so far as relief (b) was concerned because execution proceedings had been taken within the jurisdiction of the Azamgarh Court, It however held that it had not been proved that the decree of the Court of Small Causes had been fraudulently obtained, and so dismissed the suit for the declaration prayed for in. relief (b). As to the relief embodied in (a) above, namely for rendition of accounts, the Court held that if that relief stood alone, the Azamgarh Court would have no jurisdiction and that a suit for accounts, would have been cognizable by the Cawnpore Courts alone. It however held that art that relief had been claimed in a plaint in which there was also the relief for declaration, which was entertain able by the Azamgarh Court, the Azamgarh Court had jurisdiction to entertain the suit in respect of the relief, for rendition of accounts also. It then went into the merits of this matter and passed a preliminary decree directing the Cawnpore firm to render accounts. The defendant appealed to the lower Appellate Court and the plaintiff filed objections to the decree under Order 41, Rule 22, Civil P.C. The lower Appellate Court has uphold the decision of the trial Court to the effect that the suit for the declaration prayed for in relief (b) was entertain able by the Azamgarh Court. As a mutter of fact, no objection to the covertness of the decision of the trial Court on that point seems to have been taken on behalf of the defendant. The lower Appellate Court further held on an examination of the evidence and the entire circumstances of the case that it had been proved that there had not only been non-service but actually suppression of the summons of the Cawnpore suit designed fraudulently by the present defendant. On that finding, it allowed the cross-objection of the plaintiff firm and passed a decree in its favour granting the declaration prayed for in relief (b). As to relief (a), the lower Appellate Court remarked that it was admitted that the defendant was a pacca arhatia, and relying on a decision of this Court in Tika Ram v. Daulat Ram (1924) 11 A.I.R. All. 530 it held that a suit for accounts against the defendant could be filed in and entertained by the Cawnpore Joints alone. It further held that the mere fact that the plaintiff chose to pray for both the reliefs in the same suit, could not confer jurisdiction on the Azamgarh Court. It therefore dismissed the suit so far as relief (a) was concerned. The plaintiff has filed this appeal and the defendant has filed objections to the decree under Order 41, Rule 22, Civil P.C.
4. The first argument addressed to us on behalf of the plaintiff-appellant is that in view of the provisions of Section 21, Civil P.C. the lower Appellate Court ought not to have entertained the plea of want of jurisdiction and ought not to have reversed the decision of the trial Court in respect of relief (a) without recording a finding that there had been a failure of justice as the result of the suit having been entertained by the Munsif at Azamgarh. Apart from other reasons, it is sufficient to say that no such point was raised in the Court below and no such ground has been taken in the memorandum of appeal to this Court. We are not therefore disposed to allow this point to be raised at this stage. The question whether there has been a failure of justice or not is not a pure question of law and cannot be decided without finding facts, and if the point had been raised in the Court below and the attention of the Court had been directed to this matter, there would have been a finding one way or the other. The point not having been taken in the Courts below, cannot now be raised in second appeal. The second point taken by the learned Counsel for the plaintiff-appellant is the same that was argued in the lower Appellate Court, namely that the fact that the Azamgarh Court had jurisdiction to entertain a suit for relief (b) conferred a jurisdiction on that Court in respect of relief (a) also. It is conceded that the decision of the Courts below that a suit for rendition of accounts against the defendant can be filed only in the Cawnpore Courts is correct. It is however argued that the fact that the two reliefs had been joined together in this suit conferred a jurisdiction on the Azamgarh Court in respect of the relief for rendition of accounts also, to grant which it other, wise had no jurisdiction. In our judgment this is an argument which cannot be; accepted. The mere fact that the plaintiff chose to pray in the same plaint for two reliefs, which are based on separate independent causes of action, in respect of one of which the Court had jurisdiction and in respect of the other it had no jurisdiction, cannot confer jurisdiction on the Court in respect of the latter. There is therefore no force in the appeal of the plaintiff and we dismiss it with costs.
5. As to the cross-objections filed by the defendant, the finding arrived at by the lower Appellate Court is a finding of fact and cannot be challenged in second appeal. Nothing has been said by learned Counsel appearing for the defendant to show that any question of law arises. The cross-objections fail and are dismissed with costs.