JUTE FIBRE Vs. SANTOSH CHANDRA SAWAL RAM

JUDGEMENT

(1.) On 22-4-74, M/s Santosh Chandra, Sawal Ram, a registered firm having its head quarters a Kishunganj, instituted a suit, which was numbered as Money Suit No. 43 of 1974 in the court of the Subordinate Judge, Purnea, impleading M/s. Harnath Rai Banarsi Lal, opposite party No. 2 in this case, and another firm Jute fibre, which is the petitioner before this Court, as defendants 1 and 2 to that suit and two other persons as defendants 3 and 4 alleging that they were managing the affairs of both the defendants-firm. The suit was brought for realisation of a sum of Rs. 29,411.64 from the defendants besides costs. It was alleged in the plant that the plainliff firm had its principal place of business at Kishunganj and dealt in various commodities including jute, and that the defendants-firms which were sister concerns and were being managed by the defendants 3 and 4 were carrying on business at Calcutta. According to the plintiff, these defendants were working as commission agents of the plaintiff and in that capacity were selling jute despatched by the plaintiff to the defendants in the Calcutta market and they used to send accounts of the transactions to the plaintiff and make payments of the money due to the plaintiff as per the accounts. The final account sent by the defendants firm showed that the defendant No. 1 owed a sum of Rs. 17,886.37 P: and the defendant No. 2, namely, the petitioner firm owed the plaintiff a sum of Rs. 3900.17 P. The plaintiff asserted that as the defendants had not paid the said sum in spite of demands, as per business practice they were liable to pay interest thereon and that, accordingly, the principal amount together with interest at the rate of 12 percent per annum due from these defendants to the plaintiff came to Rs. 29,411.64.

(2.) The suit was contested by the defendants 1 and 2 they filed separate written statements. According to the written statement of defendant No. 1, the petitioner firm (defendant No. 2) was not its sister concern and the suit was bad for misjoinder of parties and multifariousness of cause of action Besides the defence on the merits with which we are not concerned, which included a plea of set off, if the defendantst 1 and 2 were treated as sister concerns, and incorrectness of the account, the defendants raised a plea of want of territorial jurisdiction in the Court. They asserted that the contract between the parties was entered into at Calcutta, the delivery of jute was made at Calcutta and payments were to be made and were at Calcutta, according to the terms of the contract, and thus no part of the cause of action arose within the jurisdiction of the Court at Purnea. These defences were raised by defendant No 2 also, It appears that the plea of want of territorial jurisdiction was raised by the defendant No. 1 and was over-ruled by the Court by its order dated 7-5-1976. The Court, in seisin of the case, held that it had territorial jurisdiction to try the suit and, after ex parte hearing, passed a decree on 23-11-1976 which decree was, however, set aside and the case was set down for fresh hearing. Thereafter, defendant No. 2 filed a petition alleging that the suit was beyond the territorial jurisdiction of the Court and that the issue relating to the jurisdiction be decided in the first instance as a preliminary issue. The application was contested on behalf of the plaintiff opposite party By his order dated 13-3-1980, the third Additional Sessions judge, Purnea, who was in seisin of the case, rejected the prayer of the defendant No. 2 for trying the issue of jurisdiction as a preliminary issue. The defendant No. 2 has come up in revision to this Court against the aforesaid order.

(3.) The Court below has rejected the application under Order 14 Rule 2 of the Code of Civil Procedure (hereinafter referred to as 'the Code') holding that on a plain reading of the plaint, it appears prima facie that it had jurisdiction to entertain the suit as part of the cause of action arose within the jurisdiction of the Court and, therefore, the decision on the question as to the jurisdiction will require going into the question of facts also which could only be done at the time of final hearing of the suit on all issues and that the issue regarding jurisdiction, therefore, did not involve a question of law only. Order 14 Rule 2 C. P. C as amended by the amending Act of 1976 runs thus: