BHANA KNAP MICA MINING CO Vs. BAIDYANATH DARUKA

JUDGEMENT

(1.) This appeal has been filed by the defendant. It arises out of a suit instituted by the plaintiff in the court of the Subordinate Judge, Hazaribagh, for recovery of a sum of Rs. 4,600, by way of damages, besides interest and costs. The suit was tried by the Additional Subordinate Judge and by judgment and order dated the 17th August, 1960, the plaint was returned on the finding that the court did not have territorial jurisdiction to try this suit. On appeal the court of appeal below has held that the suit bad been properly instituted in the court of the Subordinate Judge, Hazaribagh and the trial court had jurisdiction to entertain the suit. Thus, the defendant has come up to this court. The question that has been agitated in this court has mainly been one of jurisdiction, but as the merits of the litigation has also been agitated the following facts and circumstances have to be mentioned

(2.) The plaintiff's case was that the plaintiff and the defendant were dealers in mica and mica scrape and on the 23rd January, 1939, the plaintiff's son had approached one Harbilas Pilania, who held general power of attorney on behalf of the defendant, for sale of mica scrape to the plaintiff from the defendant's mica dump at Purania Godam at Bhana Knap in the district of Gaya. An agreement was executed on that day for sale of mica scrape at the rate of 4 anna per maund and a cash advance of Rs. 200 was made by the plaintiff's son. It was agreed that the entire stock of mica scrape in the mica dump would be lifted on behalf of the plaintiff by the end of May, 1959. Some mica was lifted up to 26th April, then there was some difference between the parties and the plaintiff was not allowed to lift about 200 tons of mica scrape. The plaintiff alleged that he has received a number of orders from foreign dealers for supply of mica scrape and as he had failed to lift mica from the mica dump according to the contract, he had to purchase mica scrape from open market at high price. According to the plaintiff, he had suffered loss to the tune of Rs 4,600 on account of the defendant's fault and he was entitled to be compensated for ihe loss. The substance of the defendant's case was that the plaintiff had stopped lifting mica voluntarily since after the 26th April 1959, and even when the period for taking mica had been extended by the defendant, the plaintiff had not removed the mica and if any loss has been caused to him, it had not been occasioned by the defendant's fault. It was alleged that the contract had not taken place in Jhumri Tilaiya in the district of Hazaribagh, as alleged by the plaintiff, and no cause of action for the suit had arisen in that district. It was contended that the contract and the payment of the advance money, had taken place in the district of Gaya, where the mica dump was situated and therefore, the suit was not entertainable in the district of Hazaribagh.

(3.) On the allegations of the parties, several issues were framed by the trial court, including an issue on the question of jurisdiction of the court to try the suit, issue on the merits of the case were also framed for enquiry as to whether the defendant had stooped the plaintiff from lifting mica scrape, as alleged and as to whether the plaintiff is entitled to any damage from the defendant or not. As indicated earlier, the issue on the question of jurisdiction was decided in favour of the defendant. The relevant finding was in the following words:-- "as found, above, no part of the contract nor even its breach did take place at Jhumri Tilaiya. Entire contract compliance under as also the alleged breach if any took place at Dhanakhap which admittedly lies beyond the territorial jurisdiction of this court." Upon the controversial allegations on the merits of the case, the trial court held that the defendant was not responsible for stopping of the lifting of the mica by the plaintiff, and if the defendant is to be held guilty of breach of contract and if the plaintiff is held entitled to recover damages from the defendant, the plaintiff can recover at the rate of 5 annas per maund for 100 tons. In the result, however, the plaint was returned as the plaintiff had failed on the preliminary point of jurisdiction of the trial court.