SURAJ KARAN AND OTHERS Vs. SITARAM AND ANOTHER

JUDGEMENT

(1.) The first appeal on behalf of the plaintiffs arises out of a suit filed by them against the respondents in the Court of the District Judge No. 2, Jodhpur, on the 29th of April, 1947, for the recovery of a sum of Rs. 20,531/-.

(2.) The main question that has been raised in this appeal before us relates to the jurisdiction of the Civil Courts in Marwar and it is to be determined whether or not did the defendants actually and voluntarily reside in Mundwa, Marwar at the commencement of the suit so as to give the Courts in Marwar jurisdiction to entertain the suit. We have , therefore, to examine the pleadings of the patties and the evidence produced by them in this respect. The plaintiffs have stated it in their plaint that they themselves carried on the business of commission agents in Bombay in the name and style of Ramratan Sheo Bux and had a shop of the same name in Mundwa (Marwar) also, while the defendants who were real brothers, carried on their business in Nizamabad, Hyderabad State, in the name and style of Sitaram Satya Narain and in Mundwa, Marwar in the name and style of Shrikishcn Sitaram and that they were the permanent residents of Mundwa Marwar. It was also stated in the plaint that defendant No. 2, Rajaram had been adopted to one Jainarain, the real brother of Shrikishen who was the natural father of the two defendants. It was further alleged by them that the defendants under the name and style of Sitaram Rajaram appointed the plaintiffs as their commission agents in Bombay on the Margshirsha Krishna 12, S. 2002 and did a lot of business of buying and selling gold, silver and cotton. The agency business, it was stated, lasted up to Jyeshth of Samvat 2003 and it was further stated that during this period of about seven months, the plaintiffs executed the business of the defendants as 'Pucca Arhatias' and that according to the 'pucci Arhat', it was the 'Arthatia's name that was disclosed to the other party to the contract and not that of principal and it was the agent who was entitled to or liable for, as the case may be, any profit or loss from or to that party while the 'Arhatia' was himself liable to pay profits to or entitled to recover losses from his principals and the losses, if any, on account of bad debts had to be suffered by the 'Arhatia.' Sitaram, defendant 1, was not personally served and substituted service of summons was effected on him by having a copy of the summons affixed on the notice board of the Court, a copy being pasted on the outer door of his house and by publication of a notice in the Jodhpur Government Gazette of February, 28, 1948. On the 7th of April, 1948, Mr. Sardarnath who appeared for defendant 2 undertook to file his vekalatnama for defendant No. 1 also. But, he never appears to have done that and it appears that without an order to the effect, ex parte proceedings were taken against him. Rajaram, defendant No. 2, who contested the suit denied in his written statement that the plaintiffs resided permanently in Mundwa or had any business concern there. He further denied that the defendants lived in Mundwa, Marwar, or carried on any business there. It was, on the contrary, categorically stated that the defendants neither lived in Mundwa nor carried on any business of any kind there. However, it was admitted that they had a shop under the name and style of Sitaram Satya Narain in Nizamabad, Hyderabad State, but it was asserted that on this shop they carried on the business of buying and selling food-grains and manufacturing and selling 'Biris.' Of the seven issues framed by the lower Court, issue No. 6 bears on the question before us. It is to the following effect:

(3.) We may at once point it out that by the issue, in the manner as it was framed, the burden of proof was wrongly placed on the defendants. Prom the pleadings of the plaintiffs, it was clear that the business of agency was carried on in Bombay and that it was at Nizamabad that the defendants had their main business. Further, it was evident that the plaintiffs had brought this suit in the Courts of 'Marwar on the allegation that the defendants were the permanent residents of Mundwa, Marwar, and also carried on business in Mundwa. This allegation was categorically denied by the defendants and under the circumstances issue should have been framed the other way and the burden of proof should have been placed on the plaintiffs to prove that at the time the suit was filed, the defendants were the residents and carried on business in Mundwa, Marwar, and, therefore, the Court had jurisdiction to try the suit. The issue, as it was framed, has made it possible for the learned counsel to argue that the defendants had not discharged the burden placed upon them. We see no force in this argument because both the parties have adduced evidence on the question and it can be decided on the material on the record.