THAKURDA BHUDARSAO Vs. INDUSTRIAL STORES COMPANY

JUDGEMENT

(1.) THIS application under section 115 of the Code of Civil Procedure is directed against an order dated 12th January 1968 whereby the lower appeal Court affirmed an order of the Court of first instance directing return of the plaint to the applicant for presentation to the proper Court in Bombay on the ground that, by the contract Ex. P-l dated 21st January 1955 made in Bombayj the parties had specifically agreed that all suits arising out of the contract would be instituted in a Bombay Court and in no other Court.

(2.) HAVING heared the counsel, I have formed the opinion that this application must be dismissed. Both the Courts below found upon evidence that a partner of the applicant firm, who made the contract, subscribed to the terms relating to institution of suits arising out of the contract only in a Bombay Court. That conclusion of fact must be accepted in this revision.

(3.) THE cases relied upon by the applicant's counsel are of no assistance in this case. K. C. Dhar v. Ahmad Bux1, Sukul Bros. v. H. K. Kavarana and Messrs. Ponatmal Laxmichand v. Bharat Transport Co.3 deal with the obligation of a common carrier independently of any contract. Similarly, in Jackson v. Mayfair Window Cleaning Co. Ltd.*, the cause of action was not a breach of the contract but a failure to take reasonable care independently of contract.