Skip to content


Alopi Prasad and Sons Pvt. Ltd. and anr. Vs. Harish Chandra and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 144 of 1971
Judge
Reported inAIR1973All368
ActsCode of Civil Procedure (CPC) , 1908 - Sections 20; Negotiable Instruments Act - Sections 118(8)
AppellantAlopi Prasad and Sons Pvt. Ltd. and anr.
RespondentHarish Chandra and anr.
Appellant AdvocateS.D. Agarwal, Adv.
Respondent AdvocateO.P. Bhargav and ;A.N. Bhargav, Advs.
DispositionRevision allowed
Excerpt:
civil - cause of action - section 20 of code of civil procedure, 1908 and section 118 (g) of negotiable instruments act, 1881 - jurisdiction of court challenged - under negotiable instruments act court must record whether transfer of possession of instrument is obtained by offence, fraud or for unlawful consideration -presumption and endorsement are not ground of cause of action unless contrary is proved. - - and its director, shri krishna prasad, defendants, against the order dated 12-10-1970 of the civil judge of aligarh holding that the present suit instituted by harish chandra and another, endorsees of the pronote executed by the defendants, was maintainable at aligarh for the reason that it had been endorsed in favour of the plaintiffs at aligarh......in suitable circumstances the suit can also be dismissed.3. an assignee of a document has, in a civil suit, to prove the assignment also, and consequently in absence of a provision to the contrary in any special act, the suit can be instituted at the place where the assignment was made in view of the fact that assignment forms part of 'cause of action.'4. in respect of negotiable instruments certain presumptions detailed in section 118 of the negotiable instruments act can be drawn. clause (g) of this section lays down that unless proved to the contrary it can be presumed that the holder of a negotiable instrument is a holder in due course: providedthat, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence.....
Judgment:

D.S. Mathur, Ag. C.J.

1. This is a revision under Section 115 C. P. C. by M/s. Alopi Prasad & Sons Private Ltd. and its Director, Shri Krishna Prasad, defendants, against the order dated 12-10-1970 of the Civil Judge of Aligarh holding that the present suit instituted by Harish Chandra and another, 'endorsees of the pronote executed by the defendants, was maintainable at Aligarh for the reason that it had been endorsed in favour of the plaintiffs at Aligarh. The learned Civil Judge has applied to the Instant case the rule applicable to documents assigned in favour of a third party.

2. The jurisdiction of the Court, that is, the maintainability of the suit, is governed by Section 20(c) of the Code of Civil Procedure which lays down that a suit can be instituted in a court where the cause of action, wholly or in part, has arisen. What is meant by 'cause of action' has not been defined in the Code but it has been a subject of numerous decisions and the meaning of this expression can now be said to be beyond controversy. 'Cause of action' is the bundle of facts which a party must prove before he can obtain a decree in his favour. For determination of 'cause of action' one need not consider the evidence which a party or the parties may adduce in the case; one should consider the material facts which must be pleaded and proved in the case and not any ancillary point which may arise. See Baroda Oil Cakes Traders v. Parshottam Narayandas Bagulia, AIR 1954 Bom 491. What are the material points in issue depend to a large extent, upon the pleadings contained in the plaint. At occasions it may become necessary to look into the pleas raised by the defendant. The initial jurisdiction of the Court depends upon the pleadings in the plaint, though if on consideration of the written statement it appears that the Court has no jurisdiction to entertain the suit, the plaint can be returned for presentation to a proper Court and in suitable circumstances the suit can also be dismissed.

3. An assignee of a document has, in a civil suit, to prove the assignment also, and consequently in absence of a provision to the contrary in any Special Act, the suit can be instituted at the place where the assignment was made in view of the fact that assignment forms part of 'cause of action.'

4. In respect of negotiable instruments certain presumptions detailed in Section 118 of the Negotiable Instruments Act can be drawn. Clause (g) of this section lays down that unless proved to the contrary it can be presumed that the holder of a negotiable instrument is a holder in due course: providedthat, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker etc. thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. The presumption contemplated by Clause (g) is thus not applicable where there was transfer of possession or the negotiable instrument was obtained by means of an offence or fraud or the consideration thereof was unlawful. In such cases the burden of proof lies upon the holder to show that he is the holder in due course. In other cases, the burden of proof lies upon the defendant meaning thereby that it is not necessary for the plaintiff to lead evidence and to prove that he is the holder in due course.

5. When it is not necessary for the holder to prove that he is the holder in due course of the negotiable instrument, it is riot one of the points which he must establish before he can be granted a decree and therefore, it cannot constitute 'cause of action.'

6. On the basis of the material on record it cannot be said that the plaintiffs had obtained possession by means of an offence or fraud or that the consideration thereof is unlawful. No final opinion is being expressed on this point so that the parties may not be handicapped during the subsequent stages of the hearing. It shall be for the court below to record a finding on this point which, as observed above, is the very foundation of the exercise of jurisdiction by the Aligarh Courts. Consequently, the revision must be allowed and in the interest of the parties the case remanded so that no injustice may be caused to any one. This course is being adopted all the more because the contesting defendants carry on business at Delhi and plaintiffs are residents of Aligarh -- Jhansi being far off from Delhi than Aligarh is.

7. The revision is hereby allowed and the order dated 12-10-1970 of the Civil Judge, Aligarh, is set aside. The matter shall be reconsidered keeping the observations made above in mind after recording additional evidence, if any, Costs easy.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //