GAEKWAR BARODA STATE RAILWAY Vs. SHEIK HABIB ULLAH

JUDGEMENT

(1.) I agree with the conclusions arrived at by any learned brother and desire to make a few observations on some of the questions of law which ha has so elaborately discussed in his judgment. It is contended on behalf of the defendant- appellant that the Court of the Subordinate Judge at Agra had no jurisdiction to try the suit. It is pointed out that the contract between the parties was entered into at Baroda, where payment was to be made, and that the defendant's place of business is also at Baroda. The plaintiff's reply to this objection is that the cause of action for the suit arose partly, at any rate, at every one of the places where, according to the terms of the contract between the parties, sleepers could be delivered and that Agra was one of the places where the contract made it permissible for the plaintiff to make delivery. The agreement does not mention in clear terms that the plaintiff could deliver at Agra; but the language employed in the various orders can leave no room for doubt that Agra was one of the places where sleepers could be delivered. To quote the precise words : "F.O.R. Stations on R.K., N.W., E.I., B.N., and B.N.W. Railways." These words are entered in a column headed materials to be supplied." I have no doubt that the words imply that sleepers may be supplied by the contractor free of rail at stations on the railway lines therein mentioned. It is not disputed that Agra is one of such stations. It was faintly suggested that the words merely make the dafendant liable for freight from the place where they are loaded and that there is nothing to warrant the supposition that delivery was to be made anywhere but the destination. I do not think that the words and the surrounding circumstances justify that view. It is not merely the liability to pay freight which is intended to be dealt with by these words in this part of the agreement. The words "materials to be supplied" with the words "F.O.R. Stations on... Railways" clearly mean that the sleepers shall be supplied at any of the stations on certain railway lines and thereafter the supplier's responsibility will end. This view finds support from Benaim and Co. V/s. Debono (1924) A.C. 514 decided by their Lordships of the judicial Committee. In that case a merchant carrying on business in Gibralter agreed to sell F.O.B. Gibralter to a merchant of Malta. It was found that the acceptance of the agreement having taken place in Malta the contract should be deemed to have been entered into there. In determining the place of performance the place of delivery assumed considerable importance. Their Lordships found that delivery was to be made in Gibralter which should be deemed to be the place of performance. In this view, I take it to be established that the agreement between the parties was that the plaintiff could supply sleepers at Agra where the defendant would take delivery and thereafter pay all charges of transport.

(2.) The second ground on which the jurisdiction of the learned Subordinate Judge of Agra, and indeed of every other Court in British India, is questioned has reference to the domicile of the defendant, Gaikwar of Baroda's State Railway, no part of whose organization is in British India. It is contended, mainly on the authority of Gurdial Singh V/s. Raja of Faridkot (1894) 22 Cal. 222 that territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory, while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. Some of the dicta occurring in that case, at first sight, lend considerable force to the appellant's contention. To ascertain the ratio decidendi of that case in its true perspective, the circumstances of that case should be clearly borne in mind. The defendant in that case, who was a native of Jhind, an independent territory was sued by the Raja of Faridkot which is another independent territory and in which the defendant had been-employed as treasurer. The suit was instituted in one of the Courts at Faridkot for relief arising out of contract or tort, the defendant having incurred certain liabilities in relation to his duties as the treasurer of Faridkot State. The defendant was served with notice of the suit in Jhind, where he had resumed his residence before the suit. He did not enter appearance, and an ex parte decree was passed. Subsequently proceedings were taken in the Punjab before a British Indian Court, the action being founded on the decree passed by the Faridkot Court, which was rightly treated as the decree of a foreign Court and could be effective in British India only if another decree were passed by a British Indian Court under Section 13, Civil P.C., (Section 14, Act 14 of 1882). It was objected by the defendant that the decree passed by the Faridkot Court was a nullity as that Court had no jurisdiction over a foreigner like the defendant. The Chief Court overruled this objection; but the Privy Council upheld it. The gist of their Lordships decision is contained in the following passage: Under these circumstances, there was, in their Lordships opinion, nothing to take this case out of the general rule, that the plaintiff must sue in the Court to which the defendant is subject at the time of suit (actor sequitur forum rei) which is rightly stated by Sir Kobert Phillimore (International Law, vol. 4, Section 891) to lie at the root of all international and of most domestic jurisprudence on this matter. All jurisdiction is properly territorial, and extra territorium jus dicenti, impune non paretur.

(3.) Their Lordships proceeded to observe that: These are doctrines laid down by all the leading authorities on International Law; among others, by story (Conflict of Laws, 2nd Edn., Secs.546, 549, 553, 554, 556, 586) and by Chancellor Kent (Commentaries, Vol. 1, p. 284, note (c) 10 Edn.), and no exception is made to them in favour of the exercise of jurisdiction against a defendant not otherwise subject to it by the Courts of the country in which the cause of action arose, or (in cases of contract) by the Courts of the locus solutionis. In those cases as well as all others, when the action is personal, the Courts of the country in which a defendant resides have power, and they ought to be resorted to, to do justice.