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Kurivalli Lingayya Setty Vs. Sitharam Agarwala and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 847 of 1952
Judge
Reported inAIR1955Mad595
ActsCode of Civil Procedure (CPC) , 1908 - Sections 19 and 20 - Order 1, Rule 3 - Order 2, Rule 3
AppellantKurivalli Lingayya Setty
RespondentSitharam Agarwala and anr.
Appellant AdvocateT. Venkatadri and ;K. Ramachandra Rao, Advs.
Respondent AdvocateN. Chandra Mouli, Adv.
DispositionRevision dismissed
Cases ReferredDominion of India v. Gopala Chandra
Excerpt:
- .....for recovering the amounts from the defendants. para 14 shows that the cause of action of the suit arose at adoni where the offence was committed and on subsequent dates. it will be seen from the aforesaid facts that so far as defendant 1 is concerned, the cause of action admittedly arose within the jurisdiction of the court of betlary. but in regard to defendant 2 the cause of action arose within the jurisdiction of the tenali sub-court and defendant 2 also resides within the jurisdiction of the said court.to put in differently neither the cause of action against defendant 2 arose within the jurisdiction of the bellary sub-court nor does the said defendant reside within its jurisdiction. the allegations in the plaint disclose that defendant 2 was not a party to the fraud committed.....
Judgment:
ORDER

Subba Rao, J.

1. This is a revision against the order of the court of the. Subordinate Judge of Bellary striking out defendant 2 on the ground that he was improperly joined as a party to the suit.

2. The facts according to the plaintiff, that gave rise to the cause of action against the defendants, may be briefly stated. The plaintiff is a merchant doing business in dhal and other commodities at Adoni. Defendant 1 posing himself as a representative of Maheswari Mills Moria (Madhya Bharat) entered into a contract with him to sell 4 waggons of gram and dhal. At the time of the contract, he produced forged licences and delivered a letter alleged to have been written by Maheswari Mills authorising him to collect the money from the purchasers in respect of the railway waggons for which railway receipts were to be delivered.

Believing these representations, the plaintiff paid Rs. 7000 to defendant 1 and obtained an assignment of four documents styled as railway receipts covering these four waggons. The sum of Rs. 7000 was paid in currency notes of Rs. 100 each by the plaintiff towards a portion of the sale price. The* numbers were noted in the schedule to the plaint. The first defendant agreed to deliver the commodities and recover the balance of the purchase money. He passed a receipt for the amount of Rs. 7000 received by him.

On the back of the receipt kept by the plaintiff, the numbers of notes were noted at that time. Defendant 1 also signed in the original and the duplicate of letter paper containing letter bead of the plaintiff's firm agreeing to deliver the wagons contracted for on payment of money. After this transaction, defendant 1 left the place. As the waggons were not sent in accordance with the terms of the contract and discovering the fraud done by defendant 1, the plaintiff filed a complaint before the Tenali Police who promised to investigate into the matter and take suitable action.

Identical notes given by the plaintiff to defendant 1 were seized and they were deposited in the First Class Magistrate's Court, Tenali. Defendant 1 was tried by the First Class Magistrate and was convicted and sentenced to undergo imprisonment for a period of two years. The Sub-Divisional Magistrate, Adoni, directed the amount of Rs. 7000 then found on the person of defendant 1 and which belonged to the plaintiff should be returned to the plaintiff.

At this stage, defendant 2, filed O. S. No. 169 of 1949 on the file of the court of the Subordinate Judge of Guntur against defendant 1 on the ground that a similar fraud was committed on him and for recovery of a sum of Rs. 10,000, and obtained an ex parte decree. In execution of the decree, defendant 2 in collusion with defendant 1, fraudulently attached the amount in deposit in the Magistrate's court and after the said amount was transferred to the credit of the suit filed by him, he drew out the same.

On these allegations the petitioner filed O. S. No. 47 of 1951 on the file of the count of the Subordinate Judge Bellary, for recovering the amounts from the defendants. Para 14 shows that the cause of action of the suit arose at Adoni where the offence was committed and on subsequent dates. It will be seen from the aforesaid facts that so far as defendant 1 is concerned, the cause of action admittedly arose within the jurisdiction of the court of Betlary. But in regard to defendant 2 the cause of action arose within the jurisdiction of the Tenali Sub-Court and defendant 2 also resides within the jurisdiction of the said court.

To put in differently neither the cause of action against defendant 2 arose within the jurisdiction of the Bellary Sub-Court nor does the said defendant reside within its jurisdiction. The allegations in the plaint disclose that defendant 2 was not a party to the fraud committed by defendant 1 against the plaintiff in so far as he entered into contract receiving the money by making fraudulent misrepresentation. According to the plaintiff, defendant 2 colluded with defendant 1 only in receiving currency notes from the Magistrate's court towards his decree with the knowledge that those currency notes belonged to the plaintiff.

3. Mr. Venkatadri, the learned counsel for the petitioner contended that under Order 1, Rule 3 and Order 2, Rule 3, .P. C., the plaintiff is entitled to club the two causes of action against the two defendants as the right to relief against the defendants arises out of the same act or transaction or series of acts or transactions and common questions of law and facts arose within the meaning of Order 1, Rule 3.

4. It is true that the plaintiff, if his contention be valid, would be entitled to recover the money from defendant 2. The suit was for recovery of certain currency notes given to defendant I by reason of fraud practised on him which ultimately reached the hands of defendant 2 by collusive act oil the part of defendants 1 and 2. So considered, it may reasonably be held that the wording of Order 1, Rule 3 is comprehensive enough to take in a case of this sort.

But the more difficult question is whether either Order 1, Rule 3 or Order 2, Rule 3, C. P. C, will allow the plaintiff to implead in a suit a defendant against whom the Court has no territorial jurisdiction on the ground that his right to relief against him arises out of the same act or a series of acts in respect of which a right to relief arises against other defendants who are within the court's jurisdiction.

5. This question is not covered by either of the aforesaid orders. It really falls to be decided under Sections 10 and 20, C. P. C. The said sections read:

'Section 19. Where a suit is for compensation for wrong done to the person or to moveable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or curries on business or personally work for gain within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts.

Section 20. Subject to the limitations aforesaid, every suit shall he instituted in a court within the local limits of whose jurisdiction (a) the defendant or each of the defendants where there are more than one, at the time, of the commencement of the suit actually or voluntarily resides, or carries on business or personally works for gain; or

(b) any of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside or carry on business or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action wholly or in part, arises,'

6. Defendant 2 admittedly resides outside the jurisdiction of the Bellary Sub-Court. No leave under Clause (b) was given. Neither the entire cause of action nor part of the cause of action against him arose within the jurisdiction of the Bellary Sub-Court. Nor Section 19 could be invoked for the reason that neither the wrong was done nor the defendant resides within the jurisdiction of the Bellary Sub-Court It is therefore clear that the Bellary Court had no jurisdiction to entertain the suit against defendant 2.

7. Order 1, Rule 3 must be read along with the sections which confer jurisdiction on courts. Order 1 and Order 2, C. P. C. are conceived in the interests of parties for the expeditious disposal of suits and for preventing multiplicity of proceedings. It is not intended to override the express provisions prescribing the limits of the courts' jurisdiction. It is, therefore, necessary that the said orders should be read consistently with the sections prescribing rides for jurisdiction. If so read, it follows that the rules provide for joinder of parties and clubbing different causes of action can only apply to the case of defendants residing within the jurisdiction of a particular court and in respect of causes of action arising within its jurisdiction.

8. A similar question arose in -- 'B, & N. W. Rly, Co. Ltd. v. Sadaram Bhairodin', : AIR1922Cal500 (A), where Woodroffe and Richardson JJ. held that Order 1, Rule 3, C, P. C, is a provision regulating the procedure (as distinguished from jurisdiction) of the court and relates to joinder of defendants in a suit which is instituted in a proper 'forum', the court having jurisdiction to try the suit against the defendants.

9. The facts there were the suit was for recovery of the value of two bales of piece goods alleged to have been delivered at Juggenath Ghat in Calcutta to the River Steam Navigation Co. Ltd. and the India General Steam Navigation and Rail-way Co. Ltd., for carriage, despatch and delivery by transmission to Bhupatanhi, a station on the Bengal North Western Railway. The court admittedly had jurisdiction against the River Steam Navigation Co. Ltd.

The question was whether the suit was maintainable also against the Bengal and North Western Railway which is admittedly outside the jurisdiction of the court. At p. 901 the learned Judges make the following observations :

'The fallacy of the argument it appears to me, lies' in the use of the words the court has jurisdiction over the suit'. Such jurisdiction as the court has is over the suit as regards the Steamer company. This does not give jurisdiction over the railway company; and in my opinion Order 1, Rule 3 has no hearing on the case. That rule of the order is a provision which relates to a joinder of parties; and it assumes the existence of a suit in a proper 'forum', the court having jurisdiction to try the suit. If the court has such jurisdiction, then Order 1, Rule 3 may come into play.'

10. With great respect, I agree with the aforesaid observations. The same principle was accepted and followed by the Calcutta High Court in -- 'Dominion of India v. Gopala Chandra', AIR 1948 Cal 268 (B). It is unnecessary for me to consider the cases cited by the learned counsel for the petitioner as in all those cases, the defendants are Within the territorial jurisdiction of the court in which the suit is filed.

11. I, therefore, agree with the learned Subordinate Judge, Bellary, that the Sub-Court, Bellary, has no jurisdiction to entertain the suit against defendant 2 and the order striking out that defendant is correct. The revision fails and is dismissed with costs.


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