Ghose and Stevens, JJ.
1. This is an appeal against an order of the District Judge of Patna under Section 57 of the Code of Civil Procedure, directing that a plaint which had been filed in the Court of the Subordinate Judge of that District, be returned to the plaintiff for the purpose of being presented to the proper Court.
2. The suit was one for the recovery of damages by reason of breach of a contract on the part of the defendant in the matter of the sale of certain goods which had been consigned by the plaintiff', and despatched by him from his place of business in the district of Patna to the defendant at. Calcutta. The plaint mentioned in the first place what the nature of the contract was, and that the defendant had committed a breach of such contract in connection with the sale of the goods that had been consigned to him; and it then stated that the cause of action had accrued at Sadikpore, Nawada, and Mokama, the places from which the goods were despatched to the defendant. The plaint, however, omitted to state where the contract was entered into between the parties, and also where it was to be fulfilled.
3. The defendant entered appearance on the 22nd December 1896, and presented a petition stating that the suit should have been instituted in Calcutta, and praying at the same time, under Section 20 of the Code of Civil Procedure, for stay of proceedings. The Subordinate Judge fixed, in the first instance, the 6th of January 1897, and ultimately the 22nd of January of the same year, for the purpose of determining the question raised by the defendant. On that date, the plaintiff was examined, and also cross-examined by the defendant, and he put in a petition for the amendment of his plaint. In that petition the plaintiff alleged that the contract between the parties was entered into at Mokama in the district of Patna; and that the stipulation was that the price of the grains to be sold by the defendant should be paid at Barh, in the same district; and that, therefore, the cause of action arose within the jurisdiction of the Court of the Subordinate Judge of Patna. The Subordinate Judge allowed this amendment. Subsequently the defendant put in his written statement; issues were fixed for trial upon the merits of the case, and ultimately the Subordinate Judge found upon the evidence adduced on both sides that the agreement was entered into within the jurisdiction of his Court; that the proceeds of the sale of the goods transmitted by the plaintiff were payable in the district of Patna; and that, therefore, the cause of action arose within his jurisdiction. He further found that the plaintiff had suffered damage by reason of the conduct of the defendant in connection with the sale of the goods in question, and accordingly gave the plaintiff a decree as claimed by him.
4. Against this decree an appeal was preferred by the defendant. In dealing with this appeal, the District Judge has not gone into the merits of the case, but he is of opinion that the amendment of the plaint that was prayed for by the petition presented by the plaintiff on the 22nd January 1897 should not have been allowed by the Subordinate Judge, because the cause of action, as alleged in that petition, was totally different from that stated in the plaint, and that it created a 'different jurisdiction;' and he has accordingly directed that the plaint be returned to the plaintiff with a view to its being presented to the proper Court. Certain other minor points are dealt with by the District Judge in his judgment; but we do not think it necessary to notice them.
5. We observe that the learned Judge, though asked to do so, did not enter into the question whether the contract upon which the plaintiff sued was effected in the district of Patna or not.
6. The present appeal is by the plaintiff; and upon its being called on for hearing, a preliminary objection has been taken by the learned Vakil for the respondent upon the ground that no appeal lies to this Court under Section 588 of the Code of Civil Procedure from the order of the District Judge directing that the plaint be returned for the purpose of its being presented to the proper Court. In support of his argument the learned Vakil has called our attention to the case of Bindeshri Chaubey v. Nandu (1881) I.L.R., 3 All., 456. In that case, which was instituted in the Court of the Munsif, the defendant raised the objection that the value of the subject-matter of the suit exceeded the pecuniary jurisdiction of the Court, and that, therefore, the suit was not cognizable by the Munsif. The Munsif, however, found that the value of the property was within his pecuniary jurisdiction, and on the merits gave the plaintiff a decree. On appeal by the defendant, the Lower Appellate Court, upon investigation, held that the value of the subject-matter of dispute did exceed one thousand rupees, and that, therefore, the suit was not cognizable in the Court of the Munsif, and accordingly directed that the appeal be decreed, and the record of the case sent back to the Munsif for the purpose of the plaint being returned to the plaintiff for being presented to the proper Court. On second appeal, the learned Judges of the High Court at Allahabad held that Article 6 of Section 588 of the Code of Civil Procedure referred to an order passed by the Court of First Instance, and not to a decision of an Appellate Court on general grounds; that the proper course for the plaintiff appellant was to file a second appeal on proper Court-fees against the decision of the Appellate Court; and that the special appeal to the High Court could not be entertained. In the present case, it will be observed, that the learned District Judge of Patna did not go into the merits of the question, whether the cause of action to the plaintiff really arose within the jurisdiction of the Court of the Subordinate Judge of Patna; but, as already stated, being of opinion that the amendment as prayed for by the plaintiff ought not to have been allowed by the Subordinate Judge, and confining, as we understand it, his attention to the plaint, has held that the plaint should be returned to the plaintiff for the purpose of being presented to the proper Court, being apparently of opinion that, upon the recitals in the plaint, the suit was not cognizable in the Court of the Subordinate Judge of Patna, but in some other Court.
7. Section 588 of the Code of Civil Procedure lays down that an appeal shall lie from certain orders mentioned therein, one of those orders being an order returning a plaint for the purpose of being presented to the proper Court as mentioned in Article 6 of that section; and it is provided that the orders passed in appeals under that section shall be final; that is to say, that there should be only one appeal against an order of the kinds mentioned in Section 588. No doubt, the order contemplated in Article 6 of the section is one which it is ordinarily within the province of the Court of First Instance, where the plaint is presented, to make; but the like order may also be made by the Appellate Court under the powers conferred upon it by Section 582. That section provides that 'the Appellate Court shall have, in appeals under this chapter, the same powers, and shall perform as nearly as may be the same duties, as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted under Chapter V. and in Chapter XXI, so far as may be, the word plaintiff' shall be held to include a plaintiff-appellant or defendant-appellant,' and so on. Then we find that in Section 589 of the Code it is provided that, 'when an appeal from an order is allowed by this Chapter, it shall lie to the Court to which an appeal would lie from the decree in the suit in relation to which such order was made or, when such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court;' so that, when an order is made by an Appellate Court under Section 57 of the Code, by virtue of the powers conferred on it by Section 582, and where an appeal has to be preferred against such an order, it must be preferred to the High Court, as provided by Section 589.
8. We think, upon a consideration of the sections to which we have referred, that it was in no way the intention of the Legislature to prohibit an appeal such as has been preferred in this case against an order of the Appellate Court under Section 57 of the Code of Civil Procedure. It seems to us to be clear that what Section 588 prohibits is a second appeal against any of the orders mentioned therein; but when a Court of Appeal makes the order by virtue of the powers conferred upon it by Section 582, there is no reason to hold, having regard to the provisions of Section 589, that an appeal does not lie against it.
9. Turning now to the merits of the matter before us, we are of opinion that the learned District Judge has not taken a right view of the question raised before him. As already pointed out, he has not investigated the question, whether or not the cause of action arose within the local limits of the jurisdiction of the Subordinate Judge of Patna; but he is of opinion that the amendment allowed by the Subordinate Judge ought not to have been allowed, because the petition for amendment introduced a cause of action very different from that which was alleged in the original plaint, and a different jurisdiction. We have already mentioned what the plaint was, and also indicated the defect in it. It seems to us that the cause of action stated in the petition of amendment is in no way inconsistent with that alleged in the plaint. The plaintiff in his plaint omitted to mention, as we take it, the place where the contract was entered into, or where it was agreed that it should be fulfilled; and the circumstances under which the cause of action arose in Patna were not accurately stated; and all that was supplied and put right by the petition of the 22nd January 1897. It did not, as we understand, introduce a new cause of action, nor a different jurisdiction. No doubt, as pointed out by the learned District Judge, there was considerable delay in the presentation of the petition. But if the cause of action as mentioned in that petition did not raise, before the Court of the Subordinate Judge, a case altogether different from that set up in the plaint, there is no reason why the Subordinate Judge should not have allowed the amendment prayed for. It was discretionary with him to allow it; and we do, not think that the discretion was badly exercised. At any rate, he allowed the amendment, and tried out the case on the merits. That being so, we think that it was the duty of the Judge to investigate whether the contract between the parties was entered into in the district of Patna, and whether it was agreed that it should be fulfilled there.
10. We accordingly direct that the order of the District Judge be set aside, and, the case sent back to him with a direction that he do determine the question whether the contract was entered into in the district of Patna, and whether the parties agreed that it should be fulfilled there. If he finds this question against the plaintiff, it will be his duty to return the plaint for the purpose of being presented to the proper Court, or make such other order as he may be advised in that behalf. If, on the other hand, he finds that the cause of action really arose within the local limits of the jurisdiction of the Subordinate Judge, he should try the appeal on the merits, and determine whether the decree made by the Subordinate Judge in favour of the plaintiff should be affirmed or not.
11. The costs will abide the result.