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Shama Kanta Chatterjee and Co. Vs. Kusum Kumari - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in38Ind.Cas.571
AppellantShama Kanta Chatterjee and Co.
RespondentKusum Kumari
Cases ReferredSuckan v. Weiner
Excerpt:
letters patent (cal. of 1865), clause 12 - claim in original side of high court--portion of subject-matter situate outside jurisdiction of court--leave to sue, absence of, effect of--waiver of objection by defendant--estoppel. - .....that the whole of the cause of action arose within the local limit of the ordinary original civil jurisdiction of this court. that is manifest both from the statement in paragraph 1 and in paragraph 6 of the plaint. the plaintiff alleges in both paragraphs that the whole of the cause of action arose within the local limits of the. ordinary original civil jurisdiction of this court. the defendant thereupon has submitted that part of the cause of action arose outside the local limits of the ordinary original civil jurisdiction and no leave under clause 12 of the letters patent was obtained by the plaintiffs. the defendant has pleaded both on the merits and jurisdiction; first of all, on the merits, and secondly, she pleaded want of jurisdiction in the court to try this suit on the.....
Judgment:

Fletcher, J.

1. This is a suit brought by the plaintiffs' firm to recover Rs. 10,456-5-3 for price of goods sold and delivered to the husband of the defendant. The dealings are alleged to have taken place between the 23rd September 1911 and 22nd November 1913. Certain sums were paid in part payment of the amounts, leaving a balance of Rs. 7,877-5-3 due for principal and Rs. 2,579 for interest, calculated at the rate of 12 per cent, per annum up to the 19th December 1914, aggregating to Rs. 10,456-5-3, the amount claimed in this suit. Learned Counsel for the plaintiff company has frankly admitted in conducting the case, as presented, that the plaint alleges that the whole of the cause of action arose within the local limit of the Ordinary Original Civil Jurisdiction of this Court. That is manifest both from the statement in paragraph 1 and in paragraph 6 of the plaint. The plaintiff alleges in both paragraphs that the whole of the cause of action arose within the local limits of the. Ordinary Original Civil Jurisdiction of this Court. The defendant thereupon has submitted that part of the cause of action arose outside the local limits of the Ordinary Original Civil Jurisdiction and no leave under Clause 12 of the Letters Patent was obtained by the plaintiffs. The defendant has pleaded both on the merits and jurisdiction; first of all, on the merits, and secondly, she pleaded want of jurisdiction in the Court to try this suit on the ground that a portion of the cause of action arose outside the local limits of the Ordinary Original Civil Jurisdiction of this Court, and, therefore, this Court has no jurisdiction to try this case without the leave of the Judge of the Court having been obtained under Clause 12 of the Charter. Those objections the defendant has insisted upon down to the trial. The following issues were settled between the parties: (i) What goods were supplied by the plaintiffs to the defendant's husband and what is the fair and reasonable price thereof? (ii) Are the plaintiffs entitled to claim interest on the value of the goods supplied? (iii) The plaintiffs not having taken leave under Clause 12 of the Letters Patent is the suit maintainable in t-his Court? (iv) Has the defendant waived the objection mentioned in issue No. (iii)? I have no doubt that the prices of the goods were fair and reasonable; the' prices charged may have been a little higher than could have been obtained elsewhere; but the deceased must have known from time to to time what prices he was being charged for these goods and he must be taken to have approved of these prices. The first issue I decide in favour of the plaintiff Co. The second issue raised the question as to the agreement to pay, interest. A member of the plaintiff firm has spoken about an express agreement by the Raja to pay interest on the amount in arrear. That evidence about the agreement to pay interest has been contradicted by the Dewan of the Raja and I think the Dewan's evidence ought to be accepted in preference to that of the plaintiffs' roan. The bill or draft of the promissory rotes that was presented on the death of the Raja for signature by the executor shows that the claim for interest was not put forward. I cannot believe the plaintiffs' story about the express agreement to pay-interest at the rate of 12 per cent, per annum. The third question is about the question of jurisdiction. There is a class of cases, of which the case of King v. Secretary of State 35 C. 394 : 1 C.L.J. 441 : 12 C.W.N. 705 and the case of Suckan v. Weiner (1901) 17 T.L.R. 494 have been cited as examples, where the Court has jurisdiction to try the case if the whole of the cause of action has arisen within the local limits of the Ordinary Original Civil Jurisdiction or the consent of a Court being obtained when a portion of the cause of action arises outside the local limits of the Ordinary Original Civil Jurisdiction. There are two classes of these cases: one where the plaintiff in his plaint alleges that portion of the cause of action arises outside the local limits and fails to take leave of the Court and the case comes on for trial. There is another class of cases where the plaintiff in his own plaint alleges that the whole cause of action arises within the local limits of the Ordinary Original Civil Jurisdiction, but it turns out at the trial that portion of the cause of action arose within and portion outside the local limits of the Ordinary Original Civil Jurisdiction. In the first case the defendant may by appearing and pleading waive the objection to the jurisdiction. But where the plaintiff sets up a complete jurisdiction in the Court to try the case and the defendant is called upon to plead to this, if it turns out that the Court had not complete jurisdiction, obviously the defendant cannot be held bound on the doctrine of estoppel on the ground that he waived the objection of want of jurisdiction. The defendant could not waive a fact that he did not know of and when the plaintiff alleges that his cause of action arose within the local limits of the Ordinary Original Civil Jurisdiction, the plaintiff would be bound for the purpose of pleading to assume that the statement is true. That seems to me the result of the cases cited in the argument. Now, what has happened in this case? It is not denied that a portion of the cause of action arose outside the local limits of the Ordinary Original Civil Jurisdiction of this Court. If we accept that the goods were in fact delivered to the defendant's husband at Harrison Road, the receiving office of the East Indian Railway Company, that does not get over the difficulty in this case, namely, that part of the cause of action arose outside the local limits of the Ordinary Original Civil Jurisdiction of this Court. The whole thing is unfortunately a mistake committed by the Attorney in not drawing the plaint in a proper manner. It seems to me quite clear that in the present case the Court has no jurisdiction to try this suit. That being so, the present suit fails and must be dismissed with costs on scale No. 2.


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