TIKA RAM Vs. DAULAT RAM

JUDGEMENT

(1.) This is an appeal from a judgment of the Subordinate Judge of Budaun, returning a plaint on the ground of want of jurisdiction. It illustrates the importance of the questions of this character which arise, and it also illustrates the necessity of the courts being somewhat careful in applying the law so as not to impose an unreasonable and unanticipated burden upon commercial men, of being dragged from their place of business to defend suits, 800 miles away in parts of the world with which they have no concern whatever. This inconvenience is illustrated by the misfortune that we have not had the advantage of hearing counsel in this case on behalf of the respondent who resides and carries on business in Bombay. Dr. Katju, however, on behalf of the appellant, has argued the matter very fully, and has really taken us over all the ground which is relevant. The suit arises out of a relationship of the following character: The plaintiff carries on some sort of trade, probably in grain, though he does not say so, at Bilsi, in the district of Budaun. The defendant works as a commission agent, what is known as pakka arhatia, probably corresponding to what is known in England as del credere agent, that, is to say, an agent or factor who, being entrusted with the goods of His principal to dispose of to the best advantage, is in lawful possession of them with a general power to deal with them without reference to his principal, but guaranteeing the solvency of the sub-purchasers, and while entitled to charge against his principal his expenses, and entitled also to an indemnity from his principal against all losses resulting from carrying out his duty, is under an obligation to pay to the plaintiff, his principal, the amount due after the accounts have been properly settled.

(2.) The main question is whether, in this suit which is brought by the plaintiff to recover money alleged to be due from the defendant commission agent on account of profits on sales improperly retained by the defendant, the cause of action or any part of it arose within the jurisdiction of Budaun. It is clear from the plaint that the plaintiff's legal adviser had some doubt about it, unless it could be established in fact that the conversation resulting in the contract had taken place within the local limits of the jurisdiction of the court, or unless some express agreement had been made between the, parties that payment should be made by the defendant to the plaintiff at Bilsi, or unless in the alternative, some trade usage requiring payment to be made in that way could be established. The pleader went out, of his way to allege all three. That part of the case has broken down. The learned Judge finds that this is not a case, in spite of two authorities to which he was referred, decided by the Bombay High Court, in which the agent had to render an account at the principal's place of business. He finds against the express agreement which was set up by the plaintiff and also against the alleged trade custom, which is always the desperate resort of anybody who knows that his case on the facts is going to break down. A litigant seldom alleges a custom for a particular practice unless he is satisfied that he has no other case to support it. The learned Judge is satisfied that the palpably false allegations which have been made in this case, have been made for the express purpose, which unfortunately is too often the case, of dragging the other party 800 miles from Bombay, and as a counter stroke to the suit of the defendant in Bombay, which will necessitate the plaintiff going there to defend it. Unfortunately, sitting in this Court, one has "become too familiar with these false allegations, and palpably hollow suggestions of custom, and insidious suggestions of law, which are merely adopted for the dishonest purpose of suing a man who is in Bombay, and who the plaintiff knows quite well will be unable to appear in the United Provinces to defend the suit.

(3.) The learned Judge has dealt with the matter with considerable acumen, and in particular, we agree with the following passage: It is not to be supposed that even if there was an express agreement to pay at the arhatia's place of business, and also to settle accounts there, nonetheless, payment would not be made by post and a statement of account would not be sent by post.