1. This is an appeal from an order of the learned Additional Subordinate Judge of Basti directing that a plaint should be returned to the plaintiff for presentation to the proper Court. By an error of counsel in this Court the case has been presented in this Court as a regular second appeal from a decree. The facts are that the plaintiff who resided in Basti sent certain grain to Fyzabad, and that grain was sold by the defendants in Fyzabad, and the plaintiff brought a suit in the Court of the Munsif of Basti for recovery of the price of the grain. One of the defences raised was that the Court in Basti had no jurisdiction to try this suit as the cause of action arose solely in Fyzabad.. The learned Munsif held that his Court in Basti had jurisdiction to try this suit, because there was a novation of contract on account of certain letters which subsequently passed between the parties. The learned Munsif decreed the suit in part for the plaintiff. The defendants brought an appeal, and the lower appellate Court held that these letters did not amount to a novation of contract and accordingly that the Munsif did not have jurisdiction, and directed that the plaint should be returned for presentation to the proper Court. The plaintiff has come in appeal against this order. In the first place it was argued that the finding of the lower appellate Court in regard to the cause of action not arising in Basti was incorrect, but this is a finding of fact and in second appeal it is not open to this Court to reverse that finding. We consider therefore that the order cannot be set aside on this ground. But a further ground was urged before us which was not taken in the memorandum of appeal. That ground is that under Section 21, Civil P.C., no objection as to jurisdiction shall be allowed by an appellate Court unless there has been a consequent failure of justice in the Court of first instance. We consider that this is a point of law which may be taken under the provisions of Order 41, Rule 2, although it was not specifically set forth in the memorandum of appeal, and the learned Counsel for the respondents has stated that he does not desire any further time to meet this point of law.
2. In the order in appeal of the lower appellate Court there is no mention whatever of any consideration of the question as to whether there was a failure of justice in the Court of first instance. We have carefully examined the judgment of the learned Munsif and we do not find any indication in that judgment that there was any failure of justice on account of the trial being held in Basti instead of in Fyzabad. These two districts are close together, and there is nothing on the record to which the learned Counsel for the respondents can point to indicate that the defendants were in any way prevented from producing their witnesses or their other evidence on account of the trial being held in the Court of the Munsif of Basti. Accordingly we conclude that there was no failure of justice on account of this trial being held in the Court of the Munsif of Basti. A necessary ingredient being absent as laid down by Section 21, the order of the lower appellate Court therefore must be set aside. Accordingly we set aside that order, and we remand this case to the lower appellate Court for disposal according to law on the other grounds of appeal.
3. Objection has been taken by the learned Counsel for the respondents that the appellant has incurred unnecessary costs in this Court by bringing . the matter before this Court as a regular second appeal instead of a first appeal from an order on which the court-fee of Rs. 2 only would be paid. The actual court-fee paid amounts to Rs. 55-8-0. the excess court-fee of Rs. 53-8-0 must therefore be paid by the appellant plaintiff. In regard to the Rs. 2 balance of Court-fee and other costs hitherto incurred in this Court and in the lower Courts we direct that these costs shall abide the ultimate result in the case.