Kanta Bhatnagar, J.
1. In this revision petition the petitioners have challenged the legality of the judgment dated January 11, 1985 passed by the learned Civil Judge cum-Additional Chief Judicial Magistrate No. 1, Jodhpur by which the order dated March 30, 1983 passed by the Munsif and Judicial Magistrate, City, Jodhpur regarding the jurisdiction of the Court to entertain the suit filed by late Manak Lal, whose legal representatives respondents Nos. 1/1, 1/2, 1/3 and 1/4 are, was set aside.
2. Manak Lal had filed a suit in the Court of the Munsif and Judicial Magistrate, City, Jodhpur against five defendants including the two petitioners and non-petitioner No. 4. The plaint averments were that the plaintiff had obtained a draft from Bank of Baroda, Sojatigate Branch, Jodhpur for Rs. 2500/- in the name of Shah Shantilal Roopchand Cloth Merchant and Commission Agent, 18/20 Javeri Bazar, Teejamata, Bombay-2 in the name of defendant No. 4 Bank of Baroda, Sir P.M. Road, Branch Bombay. Defendant No. 3, Shah Shantilal Roopchand inquired of defendant No. 4 and was informed that the draft had been encashed through defendant No. 1. The Greater Bombay Co-operative Bank, Ltd. Nariyalwala Nagar, Dadar, Bombay-14, The plaintiff sought the explanation from defendant No. 1 (petitioner No. 1) but could not get any satisfactory reply. Because of this, he had to pay Rs. 2500/- to defendant No. 3. The plaintiff demanded the draft amount from defendant No. 2, Bank of Baroda, Sojatigate, Branch, Jodhpur but could not get it. Hence the plaintiff filed the suit. Defendant Nos. 2, 4 and 5 did not file the written statement and were proceeded exparte. Defendant No. 1 (present petitioner No. 1) filed an application under Section 20 CPC (here in after to be referred as 'the Code') on February 25, 1982 and raised a preliminary objection regarding the maintainability of the suit in Jodhpur Court on the ground that defendant Nos. 1 and 5 were not residents of Jodhpur and cause of action neither wholly nor in part arose at Jodhpur. The learned Munsif after hearing the parties allowed the application and held that the Court at Jodhpur had no jurisdiction to entertain the suit. Feeling aggrieved by that order, the legal representatives of plaintiff Manaklal (since dead) preferred appeal. The learned Civil Judge, as stated earlier, allowed the appeal and set aside the order of the learned Munsif.
3. Dissatisfied by the appellate Corut's Judgment the petitioners have invoked the revisional jurisdiction of this Court.
4. Mr. S.B. Bhandari, learned Counsel for the petitioners strenuously contended that the payment of the money was to be made to a person residing at Bombay through the Bank situated at Bombay and therefore, issuing of the draft by the Bank at Jodhpur on payment of money by the plaintiff did not vest jurisdiction to Jodhpur Court to entertain the suit. According to Mr. Bhandari Section 20 CPC clearly provides that suits can be instituted where defendant, resides or cause of action arises and therefore, the order of the learned Munsif based on sound reasonings should not have been interfered with by the appellate Court.
5. Mr. Singhvi, learned Counsel for the non-petitioners controverted these contentions and submitted that the plaintiff had obtained the draft from defendant No. 2 Non-Petitioner No. 2) at Jodhpur and as such the cause of action in part arose in Jodhpur. Both the learned Counsel substantiated their contentions by placing reliance on various authorities which I would presently discuss.
6. Section 20 CPC deals with the jurisdiction of Court to entertain suits. Clause (c) of the section, relevant for the present purpose provides that the suit shall be instituted at the Court in whose jurisdiction the cause of action, wholly or in part, arises.
7. The point to be determined in the case is as to whether issuing of draft and payment thereof at a particular place can be considered to be part of the cause of action.
8. In the case of Baroda Oil Cakes Traders v. Parshottam Narayan Das Bagulia and Anr. : AIR1954Bom491 relied on by the learned Counsel for the petitioners, their Lordships were pleased to consider the meaning of the term 'cause of action' appearing in Section 20(c) of the Code as under:
The bundle of facts which constitute the cause of action in a civil suit does not and is not intended to comprise every fact which may be proved in evidence. It is only material facts that constitute the cause of action which must be proved by the plaintiff before he can obtain a decree. Facts which the plaintiff may allege incidentally and facts which may be brought in evidence as 'res-gestae' would not necessarily constitute a part of the cause of action.
9. In that case the plaintiff had sent a telegram from Baroda for some purchase from the defendant residing at Kanpur. The defendant conveyed their acceptance to the plaintiff by telegram despatched from Kanpur and the said acceptance reached the plaintiff at Baroda in due course. The delivery of the goods was to come to plaintiff at Khanna railway station and the plaintiff was to pay the money at Kanpur. The defendant failed to make delivery of the goods. The plaintiff brought the suit in Baroda Court against the defendant claiming damages for breach of contract. The plea was taken regarding the lack of jurisdiction of Baroda Court. It was held that though the plaintiff had sent offer from Baroda and received the acceptance through a telegram at Baroda, in the eyes of law the offer was made at Kanpur and the acceptance was likewise made at Kanpur, with the result that the whole of the contract was made at Kanpur and, therefore, Baroda Court had no jurisdiction to entertain the suit.
10. Another case of referred to by Mr. Bhandari is Neungadi Bank Ltd. v. Central Bank of India Ltd. : AIR1961Ker50 wherein the debiting of the amount covered by a cheque issued by the plaintiff at Kozhikode in South Malabar on the defendant Central Bank of India, Calcutta Branch in the current account of the plaintiff with that branch, was not considered to give rise to a cause of action for the recovery of the amount debited. Their Lordships were pleased to hold that the existence of a branch of the defendant Central Bank of India at Kozhikode will not also sustain a suit at Kozhikode if no part of the cause of action arose within the jurisdiction of the Court at Kozhikode.
11. The facts and circumstances of the above referred two cases were of all together different nature than those of the case on hand. Here on payment of money to the Jodhpur Bank draft had been issued and the dispute is regarding the encashment of that draft.
12. In the case of K.S. Pillai v. M/s Mysore Fertilizer Co. : AIR1979Ker167 referred to by Mr. Bhandari, the question for determination before the Court was whether explanation - II to Section 20 of the C.P.C. 1908 has no relevance to Clause (e) of that section whereunder, a suit can be instituted in the Court within the local limits of which the cause of action, wholly or in part arises, and whether it only enlarges the meaning of the words 'carries on business' occurring in Clauses (a) and (b) of Section 20 where the defendant was a Company. Their Lordships were of the opinion that explanation had no relevancy to Clause. (c) of that Section. The question of jurisdiction on the ground of cause of action arising at a particular place was not the subject-matter of discussion before the Court.
13. In the case of The State of Madras v. C.P. Agencies AIR 1960 SC 1309 their Lordships were pleased to refer to the definition of the term 'cause of action' given in Read v. Brown (1888) 22 QBD 128 (5) which reads as under:
Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.
14. In that case Fry L.J. agreed to that meaning and was pleased to observe that 'every thing which, if not proved gives the defendant an immediate right to judgment must be part of the cause of action'.
15. In the case of M/s. K.V. Bank v. R.C. Oza : AIR1974Mad209 relied on by Mr. Singhvi, the suit was for damages for the recovery of payment of a cheqne. The cheque was issued at 'C' for Rs. 15,03/- and was altered to Rs. 15,003/-by the defendant at 'B'. The question was as to whether the suit can be filed at 'C'. His Lordship was placed to hold that the responsibility of the defendant for material alteration in the cheque that was issued at 'C was only for Rs. 15,03/- and that this figure has been subsequently converted into Rs. 15,003/- by the defendant. According to his Lordship it is sufficient if any part of the cause of action, however small, arises within the local limits of the territorial jurisdiction of the court. It was further observed that the cause of action was independent of the defences that may be set up by the defendant. The fact that the defendants admitted issue of the cheque at 'C' could not affect the accrual of the cause of action at 'C'.
16. On the principles so enunciated Mr. Singhvi built up the argument that issuance of the draft at Jodhpur may be admitted or denied by the defendants, the position would be that it was the draft issued at Jodhpur which has given rise to the litigation and therefore, part of the cause of action has definitely arisen at Jodhpur and therefore, the Jodhpur Court has jurisdiction to entertain the suit.
17. The facts and circumstances of the case Vijaya Bank, Egmore v. Kiran and Co. : AIR1983Mad357 are almost similar to the case on hand. It was case based on a draft. In that case a partnership firm obtained from the 'E' Bank, Madras an account payee draft for a certain sum payable to 'B' at Bombay Port Branch of the 'K' Bank. The payee 'B' did not receive the draft sent to him by the firm and he had instructed the Bombay Port Branch of the 'K' Bank to stop payment. In turn the firm also instructed the Bombay Port Branch of the Bank and was informed that the draft had been presented through the Bank of Madras and honoured. The enquiries revealed that a third person had presented the draft and collected the money. The firm therefore, laid the suit against the Bombay, branch as well as the Madras Branch of 'K' praying for a joint and several decree for the recovery of total sum of draft with interest at Madras as both branches of the Bank had acted negligently and against the instructions of the firm. An objection was raised that the Court at Madras had no jurisdiction to try the suit as the entire cause of action arose only at Bombay and the Court at Bombay alone had jurisdiction to try the suit. His Lordship referred to the observation of Lord Esher in Read v. Brown (1888) 22 QBD 128 referred to by their Lordships of the Supreme Court in the case of The State of Madras v. C. P. Agencies AIR 1960 SC 1309. His Lordship then referred to the following observations of Lord Matson in Mt. Chand Kaur v. Pratap Singh 1988-15 Ind App 156 PC as under;
Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words to the media upon which a conclusion in his favour.
18. His Lordship was pleased to hold that the whole cause of action in that case arose from the draft which was obtained at Madras and which was encashed not by the payee but by a totally different person. In view of that opinion his Lordship upheld the order of the Court below that the suit was properly laid in the Court at Madras.
19. The principles of law enunciated in the Madras case are applicable with full force to the case on hand. Here also, the draft issued at Jodhpur has given rise to the cause of action to the petitioners, because the draft was not properly encashed. The Jodhpur Court has, therefore, jurisdiction to try the suit filed by the plaintiff. The appellate Court was correct in setting aside the order of learned Munsif declining to proceed with the suit and ordering the return of the plaint to the plaintiff to be presented in proper Court. There being no error in exercise of jurisdiction, the finding of the appellate Court calls for no interference.
20. The revision petition has no substance and is dismissed.