KEDARMAL BHURAMAL Vs. SURAJMAL GOVINDRAM

JUDGEMENT

(1.) This case was originally before the late lamented Mr. Justice Tyabji who following his own decision in Mitilal V/s. Surajmal (l904) 6 Bom. L.R. 1041 held that payment if claimable from the defendant was to be in Bombay and that leave could therefore be given under clause 12 of the Letters Patent.

(2.) This case, however, on appeal was referred back that the following issue, viz. whether the moneys if any due to the plaintiff are payable in Bombay, be tried as a preliminary issue.

(3.) The Advocate General contended that the ruling in Motilal V/s. Surajmal, above mentioned, practically sufficed for the disposal of this case and that the onus was on defendant to show that precedent did not apply. I considered however that it was for plaintiff to show that his case is one within the jurisdiction of the forum which he has selected Moreover plaintiff cannot even rely on the precedent cited, without showing that the facts are essentially the same in both cases. A large mass of evidence has been taken by this Court since remand, as well as on commission. Mr. Robertson admits, whatever doubt there may be about the law, there is absolutely none about the facts for every one of the witnesses as to the facts has said exactly the same thing. Admittedly the transactions in respect of which the claim is made, were between the plaintiff as Bombay constituent and the defendant as pukka adatya at Akola on terms described in Original Suit Kanji V/s. Bhagvandas (1904) 7 Bom. L.R. 65 and in appeal Bhagwandas V/s. Kanji (1905) 7 Bom. L.R. 611 The plaintiff's munim offered himself as a witness. Defendant has not come forward to give evidence.