HIRA LAL Vs. PIAREY LAL

JUDGEMENT

(1.) This is an appeal from an order passed by the learned Additional Subordinate Judge of Bulandshahr in appeal from a decree passed by a Munsif of that District. The lower appellate Court set aside the decree of the first Court and directed that the plaint be returned for presentation to the proper Court on the ground that the Munsif, in whose Court the suit had been instituted, had no jurisdiction to decide it. The plaintiff respondent sued the defendants for rendition of accounts and for recovery of certain sums of money on the allegation that the defendants, who constituted a firm styled Hira Lal Raghubir Saran and carried on business of commission agents in Bombay, had agreed to render accounts at Bulandshahr and to pay interest at the rate of 1 per cent per mensem on any balance that might be recoverable from them. The plaintiff alleged that the aforesaid agreement was arrived at through defendant 3, one of the partners, at Bulandshahr in April 1926. The transactions in respect of which the plaintiff claims accounts relate to purchase and sale of 50 tons of wheat through the defendants, for which an advance of Rupees 300 was made to the defendants. In all the plaintiff claimed Rs. 501-3-9, which includes the aforesaid advance, the profit on sale of the grain and other sundry charges. The defendants denied that they constituted any firm named, Hira Lal Raghubir Saran and having ever had any dealings with the plaintiff. They pleaded that the Court in Bulandshahr had no jurisdiction. Defendant 3, through whom the defendants are alleged to have entered into the agreement with the plaintiff, did not enter appearance; and the proceedings against him were ex parte.

(2.) The trial Court found that the defendants were not the partners of any firm as alleged by the plaintiff and that they were not liable to render accounts to the plaintiff or to pay any money to him. Accordingly the suit was dismissed, except as regards defendant 3 against whom the plaintiff's claim was held to have been established and was decreed. Subsequently, defendant 3 applied for an order setting aside the ex parte decree against him; The decree was set aside, and the suit was re-heard as between the plaintiff and defendant 3. The trial Court held as against that defendant that it had no jurisdiction. Accordingly it returned the plaint for presentation to the proper Court, that is, some Court in Bombay. Two appeals were preferred by the plaintiff in the Court of the Additional Subordinate Judge, one against the decree of the trial Court dismissing his claim as against the defendants other than defendant 3, and the other, from the order directing the return of the plaint for presentation to the proper Court. The learned Additional Subordinate Judge observed that the orders, passed by the trial Court were inconsistent, and held that it had not been established that the defendants, assuming that they constituted a firm carrying no business at Bombay, had agreed to render accounts at Bulandshahr. He went on to say that the lower Court has discussed the plaintiff's evidence at some length and came to the conclusion that it was utterly unreliable. I am also of the same opinion and fully agree with the view of the lower Court that the Court below had no jurisdiction to entertain this suit.

(3.) The present appeal has been filed by the defendants other than defendant 3. It is contended on their behalf that the plaintiff's case, as alleged in the plaint, having been found to be false in its entirety, the proper order which should have been passed by the lower appellate Court was to uphold the decree of the first Court dismissing the plaintiff's suit instead of returning the plaint for presentation before the Bombay Court so as to give a new lease of life to the plaintiff's suit. The learned Subordinate Judge was obviously influenced by the consideration that the same order should be passed as against all the defendants and that it was undesirable that the suit as against one set of defendants should be dismissed and against another defendant the plaintiff's claim should be kept alive. We may note in this connexion that we have no appeal before us as between the plaintiff and defendant 3, the plaintiff having accepted the position to which he has been relegated by the orders of the lower Courts, namely, that the suit is not cognizable by the Munsif of Bulandshahr. It is not necessary for us to express any opinion on the propriety of the order which the learned Munsif passed as between the plaintiff and defendant 3.