CHORMAL BALCHAND FIRM Vs. KASTURI CHAND SERAOJI

JUDGEMENT

(1.) This appeal arises out of a suit instituted to enforce a foreign judgment, namely a judgment pronounced by the Additional Naib Akhilkar of the Court of Danhata in Cooch Behar State. The Additional Naib Akhilkar in Cooch Behar Courts exercises the same functions as a Munsif in a British Indian Court. The plaintiff has lost in both the Courts below. Hence this appeal has been preferred by him. In the beginning of 1927, the plaintiff sued the two defendants in the Danhata Court for the recovery of the sum of Rs. 400 as damages for breach of contract. The defendants are residents of British India and they resided at the date of the suit and at all material times in the District of Gauhati in British India. The contract however was formed in Cooch Behar. The plaint was filed in the Danhata Court with defendant 1 described as a major, and defendant 2 as a minor, but no guardian was proposed by the plaintiff at the time when the plaint was filed. Defendant 1 was later on proposed as guardian- ad-litem and was appointed as guardian-ad-litem by an order dated 6 August 1927. On 20th July 1927 defendant 1 filed a written statement in the suit. It was filed on his own behalf and not on behalf of defendant 2, and at a time when there was not even a proposal by the plaintiff to appoint him as guardian-ad-litem of defendant 2. In paragraph 1 of the said written statement, defendant 1 stated that the Danhata Court had no jurisdiction as the defendants did not carry on business in the Cooch Behar State and had no place of residence within that State. In para. 2 he states that the allegations made in the plaint as to the manner in which and the time at which the cause of action is said to have arisen are not true. In para. 3 it is stated that the defendant 2 is a minor, and that the suit could not proceed till a guardian ad litem is appointed for him. In para. 4 he states that as the Court had no jurisdiction he is not stating his defence on the "merits" and that he will plead to the merits if and when the suit is instituted in a Court having jurisdiction.

(2.) Then there follows a statement to this effect: Prayer : the plaintiff's suit be dismissed and costs together with interest be awarded to the defendant firm for being harassed. And all statements in the plaint which have not been expressly admitted in the written statement must be taken as denied.

(3.) On this written statement being filed, the Danhata Court framed issues on 9 September 1927. One of the issues related to jurisdiction. These issues were settled in the presence of defendant 1, whose pleader appeared in the Court and assisted the Court in settling proper issues. On this date the suit was adjourned to 21 September 1927, for hearing. Defendant 2 never appeared in the Danhata Court at any stage of the suit either through his proposed guardian, defendant 1, or through any other guardian. On the records of the Danhata Court which have been made a part of the records of this suit, it cannot be said that defendant 2 ever submitted to the jurisdiction of the Danhata Court. On 21 September 1927, the suit was heard by the Additional Naib Akhilkhar of Danhata Court. There was no appearance of the defendants on that date. The Court decided the question of jurisdiction in favour of the plaintiff and then took evidence produced on his behalf and decreed the suit ex parte against both the defendants. This decree was sought to be executed by the plaintiff in a British Court, namely the Court of the Munsif of Shibsagar. On an objection being taken to the execution, the learned Munsif of Shibsagar dismissed the application for execution on the ground that the decree passed by the Danhata Court was a nullity. He held that though a part of the cause of action arose within the jurisdiction of that Court, that is in the Cooch Behar State, as the defendants were at all material times, including the time when the suit was instituted in the Danhata Court, residents of British India and had not submitted to the jurisdiction of the said Court, the said Court had no jurisdiction to pass the decree. On 18 February 1931, the present suit was instituted in the Court of the Munsif of Shibsagar to enforce the judgment of the Danhata Court under the provisions of Section 13, Civil P. C. Both the Courts below have dismissed the suit on the ground that the Danhata Court was not a Court of competent jurisdiction. Hence the present appeal by the plaintiff.