GHATMAL CHAMPALA Vs. AMARAVATHI DYEING PRIVATE LIMITED

JUDGEMENT

(1.) this is a revision filed by the plaintiff against the order passed in I.A. No. 94 of 1974 in O.S. No. 237 of 1971 by the Subordinate Judge, Rajamundry, whereby he wanted to take up a preliminary issue. The learned counsel for the petitioner contended that the lower Court could not have heard the preliminary issue first as it requires some evidence to be recorded. To understand the above argument, it is necessary to state the brief facts of the case.

(2.) The plaintiff is a registered firm and deals in fancy goods at Rajamundry. The defendant is the manufacturer of sewing threads etc. The plaintiff was appointed as a Distributor for the East and West Godavari Districts excluding Tuni for the supply of the defendants sewing threads under a letter dated 20th January, 1965, for which there was an oral agreement at Rajamundry dated 15-1-1965. The plaintiff is entitled to a commission of 5% on all the orders received executed and completed. The said agreement was for three years but subject to renewal. The agreement was not renewed. Even then, the plaintiff continued to work as a Distributor till 15-8-1968 under the oral terms with the defendants representative at Rajamundry. Thus, the agreement dated 15-1-1965 was no longer in force. The plaintiff opened a Khata in the defendants name and continued the same till 15-8-1968. An amount of Rs. 14,550.51ps was found due by 6-9-1968 from the defendant. Thus the defendant is liable to pay the said amount. Subsequent to 15-8-1968 there were no further dealings. The amount is payable at Rajamundry. The account is mutual, open and current. Deepavali is the accounting year. The plaintiff issued a registered notice through his advocate on 29-4-1971. The defendant acknowledged the same and got issued a false and frivolous reply notice with untrue and untenable allegations. Such allegations were invented for the purpose of the defence. The defendant, in the reply notice, also stated that he shall send the amount of Rs. 6,586.93 Ps in full satisfaction either to the plaintiff or to its advocate and thus the amount is also payable at Rajamundry even otherwise. In para 12 of the plaint, it was stated that the cause of action for the suit arose on 15-1-1965 the date on which the contract was concluded at Rajamundry, on 20-1-1965, the date on which the letter was executed, on 20-1-1968, the date on which the agreement ceased to be in force, on 15-1-1966, the date on which the khata was opened in the plaintiffs account in the name of the defendant, on 21-1-1968 till 15-8-1968, the date on which the plaintiff continued to work as such Distributor, on 15-1-1965, the date on which the plaintiff paid the advance amount at Rajamundry by way of cheque, on 29-3-1971, the date on which the plaintiff issued a registered notice and on 7-4-1971, the date on which the defendant sent a false and frivolous reply notice. The subsequent oral agreement took place at Rajamundry within the jurisdiction of the Court. It is, therefore, stated that the Rajamundry Court has got jurisdiction. The written statement filed by the defendant is not supplied with material papers; but the affidavit filed by the defendant is supplied. In the affidavit filed in I.A. No. 94/74, it is stated in para 3 that the Court has no jurisdiction to entertain the suit since there was an express condition in the agreement dated 20-1-1965 entered into between the plaintiff and the defendant, by which all the disputes between the parties were subject to jurisdiction of Udamalpet. The plaintiff, in order to get over the agreement came to an end after 20th January 1968 and there was subsequent oral understanding between the plaintiff and the defendants representative at Rajamundry and, therefore, the agreement dated 20-1-1965 was no longer in force. There was a continuous correspondence between the plaintiff and defendant ever since the khata was opened in January 1965 till the business transaction affair was stopped. The defendant called upon the plaintiff to produce the entire correspondence that was exchanged between them from the inception to the date of giving the notice but the plaintiff has not produced the same. The defendant has in his possession letters addressed by the plaintiff and the office copes of the correspondence, which he addressed to plaintiff. In para 6 of the affidavit, it was specifically stated that a plea was taken in the written statement that the Court at Rajamundry has no jurisdiction to entertain the suit and on issue was also framed bythe Court since the question of jurisdiction goes to the root of the case and is a question of law, which can be decide on the documentary evidence to avoid the cumbersome procedure involved in going through the trial of the suit on the other issues. Therefore, the defendant filed the interlocutory application that it will be just and convenient to decide the question of jurisdiction as a preliminary issue. The lower court passed a very short order which is as under :-- "Counter file. Heard. It will be heard as a preliminary issue. Petition allowed."

(3.) The revision is filed against this order.