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Bhagauti Shukul and ors. Vs. Chandrika Prasad Kueri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All147; 150Ind.Cas.289
AppellantBhagauti Shukul and ors.
RespondentChandrika Prasad Kueri
Cases ReferredSoniram Jeetmull v. R.D. Tata and Co.
Excerpt:
- - they also urged that the suit was bad for 'multifariousness' and that the plaintiff is not entitled to interest as claimed by her. ,that the rule contained in that section applies to promises for payment of money as well as to promises for delivery of goods. 5. another argument put forward on behalf of the applicants is that the suit was bad for 'multifariousness,'which implies that there was a (sic) of defendants and causes of action. interest by way of damages for failure to pay as agreed could be allowed and has been rightly decreed......the lessees to the plaintiff herself. thereupon the plaintiff amended her plaint and impleaded the lessees, defendants 2-4, claiming the sum from them in the alternative, of course, denying receipt from the lessees the sum in dispute as alleged by defendant 2. the lessees put forward several defences, including that of want of jurisdiction in any court situate in the gorakhpur district, and. in any case, of want of jurisdiction in a court of small causes. they also urged that the suit was bad for 'multifariousness' and that the plaintiff is not entitled to interest as claimed by her. all these pleas were overruled by the lower court and have been pressed before me in revision.2. it is contended by the learned advocate for the applicant that the lease having been executed in the province.....
Judgment:

Niamatullah, J.

1. This is a revision directed against a decree passed by the Judge of the Small Cause Court at Deoria, district Gorakhpur, in a suit brought by the plaintiff, opposite party for recovery of Rs. 100 and interest, being an unpaid part of premium payable in respect of a lease, executed by the plaintiff in favour of defendants 2-4, at Saran in the province of Behar. The grove to which the lease relates is situate at Saran but the plaintiff resides at Deoria in the Gorakhpur District where most of her landed property is situated. Defendant 1, Sankar Lal Sukul, was the plaintiff's agent and the suit was originally instituted against him alone, on the allegation that he recovered Rs. 900-as premium from the defendants 2-4 who were liable to pay that amount under the lease, but that he did not pay Rs. 100-out of the total sum received by him on the plaintiff's behalf. He pleaded that he had received only Rs. 800 which he paid to the plaintiff and that the remaining Rupee? 100 was paid by the lessees to the plaintiff herself. Thereupon the plaintiff amended her plaint and impleaded the lessees, defendants 2-4, claiming the sum from them in the alternative, of course, denying receipt from the lessees the sum in dispute as alleged by defendant 2. The lessees put forward several defences, including that of want of jurisdiction in any Court situate in the Gorakhpur District, and. in any case, of want of jurisdiction in a Court of Small Causes. They also urged that the suit was bad for 'multifariousness' and that the plaintiff is not entitled to interest as claimed by her. All these pleas were overruled by the lower Court and have been pressed before me in revision.

2. It is contended by the learned advocate for the applicant that the lease having been executed in the province of Behar where the grove to which it related lies, no Court in the Gorakhpur District can have jurisdiction. The lower Court has proceeded on the ground that the debtor should seek his creditor, and that therefore the money in suit was payable at the plaintiff's residence at Deoria. In my opinion the question should be decided with reference to the terms of Section 20, Civil P.C. Clauses (a) and (b) of that section do not apply, as defendants 2-4 against whom the suit has been decreed do not reside in the District of Gorakhpur, but in Saran. The Court at Deoria can have jurisdiction only if Clause (c) applies, that is, if the causes of action, wholly or in part, arose at Deoria where the plaintiff resided. If there was an agreement expressed or implied that payment should be made at the plaintiff's residence and was not so paid the plaintiff's cause of action arose, in part, at any rate, at Deoria. The lease was executed by the plaintiff and does not, in terms, embody any agreement by the lessees themselves. Having accepted the lease they impliedly assumed all the liabilities thereby imposed on them. The document itself recites that the entire sum of Rs. 900 has been paid but it has been found as a fact, and the finding cannot be challenged in revision, that only Rs. 800 was paid and the remaining sum of Rs. 100 was to be paid subsequently. The finding does not go so far as to suggest that defendants 2-4 agreed to pay the balance at the plaintiff's residence.

3. Section 49, Contract Act, provides that the promisor should apply to the promisee to appoint a place for performance. Their Lordships of the Privy Council held in Soniram Jeetmull v. R.D. Tata and Co. , that the rule contained in that section applies to promises for payment of money as well as to promises for delivery of goods. It follows that it was the duty of defendants 2-4 to apply to the plaintiff for a reasonable place being named for the payment of the balance of the premium. There is little doubt that if this had been done by them the plaintiff would have asked for payment at her own place in Deoria where the plaintiff permanently resides and has most of her property and staff. The lease had to be registered at Saran as the property to which it related is situated there. The plaintiff either went to that place for purposes of registration or happened to be there when the lease was registered. In any case for stay at Saran on that occasion was temporary. Defendants 2-4 had only Rs. 800 to pay and agreed to pay the balance subsequently. It is, in my opinion, reasonable to infer that there was an implied promise by the lessee to make the payment at Deoria where the plaintiff was expected to be shortly afterwards. In the case already referred to their Lordships of the Privy Council observed that Section 49, Contract Act, does not get

rid of inferences that should justly be drawn from the terms of the contract itself or from the necessities of the case, involving in the obligation to pay the creditor the further obligation of finding the creditor so as to pay him.

4. This seems to affirm the rule that a debtor must find his creditor to pay the debt, or that the debtor must pay where the creditor is. I do not base my decision in this case on any broad proposition of law implied in the above remark, as it is possible to infer from the surrounding circumstances that there was an implied promise by the lessees to pay at Deoria. In this view part of the cause of action accrued to the plaintiff at Deoria and she could sue in a Court having jurisdiction at that place. It was contended that the suit is not cognizable by a Court of Small Causes, being one for specific performance. There is no force in this contention. It. was money due under a completed transaction of lease which has been given effect to. Reference was made to cases in which it has been held that a suit by a mortgagor for recovery of part of the consideration of a mortgage-deed is one for specific performance to lend money. Cases of that class stand on a different footing. A mortgage operates as a security for the benefit of the mortgagee in respect of the money advanced by him. The sum agreed to be advanced in future but not advanced is not a debt due to the mortgagor from the mortgagee, as in the case of the then unpaid part of the premium, which is the consideration of the lease already given effect to.

5. Another argument put forward on behalf of the applicants is that the suit was bad for 'multifariousness,' which implies that there was a (sic) of defendants and causes of action. Order 1, Rule 3, Civil P.C., is a complete answer to this contention. Two sets of defendants against whom relief is claimed in the alternative may be joined in the same action. Lastly, exception is taken to the lower Court having allowed interest in the absence of any agreement that interest would be paid on the sum due. Interest by way of damages for failure to pay as agreed could be allowed and has been rightly decreed. The revision fails on all the points and is dismissed with costs.


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