1. This is an appeal from an order returning a plaint to the proper Court for want of jurisdiction in the Court of the Subordinate Judge, in which the suit was brought, A preliminary objection was raised against the hearing of this appeal on the ground that no appeal lies, but it has been settled by authorities of this Court that an appeal lies.
2. The suit was brought for damages for nondelivery of ashes. It was brought in the Court at Agra. An objection was raised to the jurisdiction of that Court on the ground that the contract was neither made nor performed in Agra. The case was heard on the merits and the plaintiff was given a decree for Rs. 1,100. The plaintiff, being dissatisfied with the amount of the award, appealed from that decision and the defendant also filed cross-objections objecting to the amount of the decree passed against him to the extent of Rs. 800. Subsequently, by leave of the Court, the defendant added a ground of objection founded upon the want of jurisdiction in the first Court, which went to the root of the matter. The learned Judge has disposed of that question, namely, the question of the jurisdiction of the Agra Court, in the order that is before us, holding that there was no jurisdiction, and it is that judgment which is challenged in appeal before us. The case is one which clearly comes within Section 21 of the Code. This section is new. It proceeds on the lines of the Suits Valuation Act, No. VII of 1887, and so far as we know, it has not been the subject of decision by any of the High Courts. It provides that no objection as to the place in which the suit is brought shall be allowed by any Appellate Court unless the objection is taken in the Court of first instance (which this was, and this is the question which is raised in this appeal), unless there has been a consequent failure of justice. Obviously, in order to ascertain whether there has been a consequent failure of justice or, in other words, a decision which is certainly wrong in fact because it was tried in the wrong Court, it is necessay to arrive at some decision on the merits, This has not been considered by the learned Judge at all in the judgment before us. It is a question which involves a consideration of the whole of the merits in the suit and without going into the merits and forming some opinion upon the justice or otherwise of the decision of the first Court, it is impossible for the Appellate Court to conform to the provisions of this section. There is, in other words, a clear provision of the law with reservations that if the first Court, even although it had no territorial jurisdiction, has tried out the case upon the merits in- such a way (1) that all the available evidence which either party wanted to call has been called, (2) that the hearing and trial was satisfactory as a matter of procedure, and (3) that the decision appears to be right in fact, the question of the territorial jurisdiction is relegated to obscurity. This view has been taken in the sole authority to which we have been referred. This is the case of Ratti Ram v. Kundan Lal 26 Ind. Cas. 543 : 87 P.R. 1914 : 234 P.L.R. 1915, and we entirely agree with the view taken therein. We propose to quote as part of our judgment the following passage:--'The object of the Legislature in enacting this salutary principle of law is that when the Court of first instance, after giving an affirmative finding on. jurisdiction, takes proceedings on the merits of the case, the Utter should not be rendered abortive and all the time and labour spent thereon should not be wasted, simply by reason of the fast that the higher Court comes to a contrary finding on the preliminary point of jurisdiction.' The case is in point, because the learned Judges held that there was no jurisdiction, but they then went on to point out that the appellants, who were objecting in the Appellate Court to the jurisdiction and were resisting the plaintiffs' claim in the Court of first instance, had indulged in every form of obstruction and delay so as to amount, in the opinion of the Punjab Chief Court, to an abuse of the process of the Court. They go on to say: 'We cannot, therefore, pass an order which will encourage litigants in adopting tactics of this kind and, must, therefore, decline to remand the case for recording the evidence of the defendants.' This decision might well be accepted by the High Courts in India as a leading case on the interpretation of this Section. It follows from it that amongst other things to be taken into account, in considering whether there has been a consequent failure of justice, is the conduct of one party or other during the suit itself. These are matters which the learned Judge must consider as thoroughly, as though he was bearing the appeal upon the merits. We, therefore, allow the appeal and remand the case to the lower Appellate Court to re hear it on the merits and to decide this question under Section 21, and also to re consider whether the decision of the first Court is right or wrong upon the merits and to what extent he agrees with it. The appellant must have his costs, including fees on the higher scale.