1. We think that according to the principle laid down in Balkissen Dass v. Lutchmeeput Singh I.L.R. 8 Cal. 91 there is an appeal here on the subject of costs. The defendant contended in both the Courts below that the Court in which the plaint was filed had no jurisdiction. In that contention he was successful; and we think, therefore, that he ought not to be made to pay the plaintiff's costs; on the contrary he ought to have his own costs in both the lower Courts. We, therefore, direct that he do get such costs. We feel bound to say that this is a matter which ought to have been set right by the Subordinate Judge without compelling the defendant to appeal to this Court. The appeal is decreed with costs.
2. The order so far as it directs the plaint to be returned will remain unaffected by our decree. Although there is an appeal on this point, it is not pressed, as the plaint has been returned and the suit is proceeding in another Court.