GOPAL DAS AGARWALA Vs. LHARI KISHAN DAS

JUDGEMENT

(1.) This is an application in revision by the plaintiff whose suit has been dismissed by the Court below. The facts may be briefly stated. Sometime towards the end of January 1934 the plaintiff and the defendant entered into a contract by which the latter was to supply 905 bags of Saharanpur chapati atah to the plaintiff in the mon February, 1934 at the rate of Rs. 6-3 per bag. The defendant could supply only 151 bags, and thus there was a deficit in the supply of 754 bags. The plaintiff, therefore, brought a suit in the Small Cause-Court at Allahabad for the recovery of damages arising on the breach of the contract made by the defendant. The defence was that the Small Cause Court at Allahabad had no jurisdiction; that there was no breach of contract by the defendant and that the amount of damages was excessive. This case had had a chequered career, in the sense that the Small Cause Court at Allahabad tried this suit on 26 November 1934 and came to the conclusion that the plaintiff was entitled to damages at the rate of Re. 1 on 754 bags. He overruled the preliminary objection that the Allahabad Courts had no jurisdiction. There was a revision to this Court by the defendant and a learned Judge of this Court remanded the case after having corrected the Court below on a question of law. What the Court below had done in the first instance was to find out the contract price of each bag and that was very easy. It worked out to be Rs. 6-3 per bag. The Court then tried to find as to what was the prevailing rate in Allahabad at which Saharanpur chapati atah was sold about the e February, or the beginning of March 1934.

(2.) That rate was Rs. 7-3 per bag, and the Court below was of the opinion that the plaintiff was entitled to damages per bag on the difference between Rs. 7-3 and Rs. 6-3 because that was the profit which the plaintiff could make. It was pointed out by this Court that this method of assessing damages was contrary to law. It was said that if the plaintiff took no steps to buy flour elsewhere in order to make up the deficiency, then the plaintiff would not be entitled to a decree merely because he might have made a profit if the defendant had supplied the flour. When the case went back to the Small Cause Court Judge he dismissed the plaintiff's suit on 30 September 1935 with the finding that there was no evidence at all on behalf of the plaintiff on the point mentioned by this Court and therefore the suit must be dismissed in accordance with the law laid down for the subordinate Court by this Court. The plaintiff has now come up in revision, and before I proceed to dispose of the contention advanced by the plaintiff it is necessary that I should mention some of the points taken by the defendant opposite party. It is once more argued before me that the Allahabad Court had no jurisdiction. It is submitted by learned Counsel for the opposite party that the view taken by the learned Judge of this Court inter partes is binding on all points, and if it is said to be not binding on any particular point it should be held to be not binding on any point whatsoever. It is, therefore, said that if I intend to hold a view different from what was held by this Court on the former occasion, I should also consider the question as to whether the Allahabad Court had jurisdiction in the matter, a point which was decided against the defendant on the former occasion.

(3.) The plea, therefore, that is advanced before me in the very beginning is that the plaintiff should be directed to present his plaint at Saharanpur. Now there can be no doubt that where there are two Courts, both of which would normally have jurisdiction to try the suit, the parties may be allowed to agree among themselves that the suit should be brought in any of those Courts and not in the other. This was held in Achratlal Kesavlal Mehta & Co. V/s. Vijayam, & Co. 1925 Mad 1145; A. Milton & Co. V/s. Ojha Automobile Engineering Co. 1931 Cal 279 and Tilakram Chaudhari V/s. Kodumal Jethananad Wadha 1928 Bom 175; but it did not happen in any one of those cases that the Court below had decided that a particular Court (different from the one for which the parties had contracted) had jurisdiction in the matter and the superior tribunal had interfered in revision on the ground that the suit ought to have been instituted in the Court for which the parties had contracted. In the present case this matter was agitated before this Court, and this Court came to the conclusion that on the question of jurisdiction it should not interfere. I am of the same opinion. The object of parties entering into a contract of this nature is to afford facility or convenience either to both the parties or to one of the parties, and it is unfair that any one of the parties should resile from the contract entailing hardship and inconvenience to the other party. At the same time it is common ground that the other Court also has jurisdiction, and when it is found that the Court below, holding that it has jurisdiction, has tried the merits of the case between the parties, it would not be proper for the revisional Court to interfere and to entail fresh hardship on both parties. This was the view taken by this Court on the former occasion, and I find that the wisdom of this view is all the greater now, when on two occasions the merits have been discussed by the subordinate Court. I, therefore, refuse to accede to the plea taken by the defendant that the plaint should be returned to the plaintiff for presentation to the proper Court.