1. This is an appeal from an order of the Subordinate Judge of Murshidabad returning the plaint in the suit to the plaintiffs for presentation to the proper Court, upon the ground that no part of the cause of action arose within the jurisdiction of the Subordinate Judge of Murshidabad. The question depended upon the facts which were proved. There were two witnesses called on behalf of the plaintiffs and one witness on behalf of the defendants and there was an entry in the plaintiffs book which was also before the Court. Upon the evidence adduced before the learned Subordinate Judge he came to the conclusion that there was no agreement for payment of the purchase price at Berhampur, or that delivery should be taken having regard to the contract between the parties at Berhampur. It is upon those two grounds, which depend upon the evidence before the Court upon which the learned advocate on behalf of the appellants has strenuously urged that the trial Court had jurisdiction to entertain the suit. The learned Subordinate Judge has taken a strong view of the value of the evidence on the one side and on the other, after hearing witnesses, examined and cross-examined at great length.
2. The case now comes in appeal before us. We must ourselves consider whether we think that the decision was right or not, be the question one of law or one of fact. But whether the appeal Court is balanced or even if it is inclined to the view that the decision arrived at was not the decision at which the Court might itself have arrived if it was trying the case as one of first impression, I do not think that the Court of appeal ought to interfere. It is the duty of the Court of appeal, as I understand the law, to consider the matter both as regards law and fact de novo but where there is a decision upon facts depending upon the credibility of witnesses I do not think that the appeal Court ought to interfere with the decision arrived at unless it is satisfied that the decision which was reached in the lower Court was wrong and although we have given very careful consideration both to the facts and to the exhaustive argument which has been presented to us, I am not myself satisfied that the decision of the lower Court was wrong. I regret that I am not satisfied, because it means that those parties will probably have to litigate their grievance (if it is open to them to do so) in another place, whereas the tribunal before whom this suit was brought was a satisfactory Court in which to settle their dispute. But although I do so with regret I feel compelled to say, having regard to the evidence in this case that I am not satisfied that the decision arrived at by the learned Subordinate Judge is wrong and, in my opinion, the appeal should be dismissed with costs, the hearing fee being assessed at three gold mohurs.
3. Let the plaint be returned to the plaintiffs forthwith.