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Kailash Chandra Agarwal Vs. Subhash Chand Satish Chand Viyopari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1590 of 1970
Judge
Reported inAIR1981All112
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rule 10
AppellantKailash Chandra Agarwal
RespondentSubhash Chand Satish Chand Viyopari and ors.
Appellant AdvocateB.P. Agarwal and ;R.P. Goel, Advs.
Respondent AdvocateV. Sahai and ;B. Dayal, Advs.
DispositionAppeal allowed
Excerpt:
civil - dismissal of suit - order 7 rule 10 code of civil procedure, 1908 - question of jurisdiction could not be decided as a preliminary issue - could be decided only after recording the oral evidence and evidence cannot be recorded piecemeal. - - 3. having heard learned counsel for the parties, i am satisfied that there is force in this contention of the learned counsel for the plaintiff-appellant......it were found that any part of the cause of action had arisen within the jurisdiction of the agracourts. the plaintiff's case that payment was to be made at agra under the contract between the parties was disbelieved.2. the finding of the two courts below that the order form was not proved to have been signed by pooran chand, the defendant-respondent no. 2, is primarily a finding of fact and it is not possible to interfere with it on second appeal. the learned counsel for the plaintiff-appellant could not establish that it suffers from any such error of law as to vitiate it. similarly, the finding that it was not proved that payment of the goods supplied had been agreed to be made at agra is also a finding of fact with which it is not possible to interfere on second appeal. that.....
Judgment:

Deoki Nandan, J.

1. This is a plaintiff's second appeal in a suit for recovery of Rs. 3368.12 P. on account of unpaid price of a wagon-load of soap-stone amounting to Rs. 3187.62 P. Rs. 20 as expenses on travelling, Rs. 7.50 as cost of notice and Rs. 153 as interest. The two courts below have found that the plaintiff did supply the goods to the Firm defendant-respondent No. 1, and the defendant-respondents Nos. 3 and 4, who were the proprietors and partners thereof; that the whole of the amount claimed on account of the unpaid price of a wagon of soap-stone was due and payable; but that the Agra courts had no jurisdiction inasmuch as no part of the cause of action could be said to have arisen at Agra. In arriving at the last finding and the finding that defendant-respondent No. 2 Pooran Chand, who is the father of the defendants-respondents Nos. 3 and 4, was not liable, the two courts below have found that the signatures on the Order Form, Ext. 5, were not proved to be those of Pooran Chand or of any one authorised to sign it on behalf of the Firm defendant-respondent No. 1. The lower appellate court has also observed that the mere mention on the Order Form that Agra courts will have jurisdiction could not confer jurisdiction unless it were found that any part of the cause of action had arisen within the jurisdiction of the Agracourts. The plaintiff's case that payment was to be made at Agra under the contract between the parties was disbelieved.

2. The finding of the two courts below that the Order Form was not proved to have been signed by Pooran Chand, the defendant-respondent No. 2, is primarily a finding of fact and it is not possible to interfere with it on second appeal. The learned counsel for the plaintiff-appellant could not establish that it suffers from any such error of law as to vitiate it. Similarly, the finding that it was not proved that payment of the goods supplied had been agreed to be made at Agra is also a finding of fact with which it is not possible to interfere on second appeal. That being so, it cannot be said that any part of cause of action arose at Agra and even the Order Form not having been proved to have been signed by the Firm defendant-respondent No. 1 or anyone authorised to sign it on its behalf, the question of conferment of jurisdiction on the Agra courts, by any term provided thereon, cannot arise. But, the learned counsel for the plaintiff-appellant urged that, be that as it may, the suit ought not to have been dismissed, and the court having arrived at the finding that the principal amount, claimed by the plaintiff on account of the unpaid price of the goods supplied to the Firm defendant-respondent No. 1 and its proprietors or partners, namely, defendant-respondents Nos. 3 and 4, was due and payable to the plaintiff, the proper order to pass was to direct the return of the plaint.

3. Having heard learned counsel for the parties, I am satisfied that there is force in this contention of the learned counsel for the plaintiff-appellant. From the facts recited in the judgments of the two courts below and the findings arrived at by them, it appears clear to me that the inability of the plaintiff-appellant to prove that the Order Form Ext. 5 was signed by Pooran Chand, defendant-respondent No. 2, who was the father of the defendant-respondents Nos. 3 and 4 was occasioned more by the illegibility of the signatures on the Order Form which read more as Raghunath than Pooran Chand and the ignorance of the plaintiff-appellant of the true credentials of the person, who had signed the Order Form, than by any dishonesty on his part. Moreover, the fact remains that the goods supplied were taken delivery of by the Firm defendant-respondent No. 1 andits proprietors and partners, namely, defendant-respondents Nos. 3 and 4, and they wrongfully refused to pay for the same. The delivery of goods having been taken, the sale was complete and it cannot be said that there was no contract between the parties for the sale of those goods. Indeed, there could be no sale without a contract and both the courts below having found that unpaid price of the goods was due and payable by the defendant-respondents Nos. 1, 3 and 4 to the plaintiff, it follows that there must have been a contract between them for the sale of the goods which were supplied by the plaintiff and of which delivery was taken by them.

I must also observe that this was one of those cases where the question of jurisdiction could not be decided as a preliminary issue in view of the fact that it could be decided only after recording the oral evidence of the parties, and evidence cannot be recorded piecemeal. The question of jurisdiction could thus be decided only after the entire trial had been gone through and the fact that it was thus decided along with the decision of the other issues, could not be a ground for dismissing the suit instead of ordering the return of the plaint on arriving at the finding that the court had no jurisdiction to try the suit. Under the circumstances, the only just and proper order to pass was to direct the return of the plaint for presentation to the proper court having jurisdiction to entertain the suit. For the fault of bringing the suit in wrong court the plaintiff could be penalised by making him liable to pay the defendants costs in the trial court.

4. In the result, the appeal succeeds and is allowed. The decree dismissing the suit is set aside. Instead, there shall be an order directing the return of the plaint to the plaintiff-appellant for presentation to the court of competent jurisdiction. The plaintiff shall pay to the defendant-respondents the costs incurred by them in the trial court as taxed in its decree.

5. Since the point on which the appeal has been allowed by this Court, does not appear to have been raised in the Memorandum of Appeal, either in this Court or in the lower Appellate Court, the parties shall bear their own costs of the appeal in this Court and the appeal in the lower Appellate Court.

6. The record shall be sent down at once to the Trial Court to enable it to re-turn the plaint to the plaintiff for presentation to the proper court in accordance with the procedure prescribed by law.


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