FIRM KANI RAM-HAZARI MALL Vs. SITARAM AGARWALA

JUDGEMENT

(1.) The suit with which we are here concerned, arises out of a dal-selling agency by which the defendant received and disposed of the plaintiff's goods in Calcutta. The plaintiff who lives in Nabinagar instituted his suit in Aurangabad; but the Munsif after examining the, parties came to the conclusion that he had no jurisdiction to try the suit which should be instituted in Calcutta. The plaintiff appealed to the Subordinate Judge who found that there was an agreement to make payment at Nabinagar.

(2.) Mr. Khurshed Husnain on behalf of the defendant argues that the finding of the learned Subordinate Judge that payment was to be made at Nabinagar is on the face of it based on inadequate material. The contract was entered into in Calcutta, the accounting was done in Calcutta and payment was made by hundi which would be honoured in Calcutta; but on one occasion, the defendant's mukhtar-am had sent some silver to Sitaram at Nabinagar after deducting its value from the amount that was to be sent to Sitaram; and on another occasion he had sent Rs. 448 to Sitaram at, Nabinagar by money order. The learned Subordinate Judge inferred from this that there was an implied undertaking to make the payment of the plaintiff's dues at Nabinagar. These questions of fact, which go to the root of the jurisdiction of the Munsif and the Subordinate Judge, cannot be treated as finally determined by the appellate decision of the learned Subordinate Judge, and the finding must be treated as subject to scrutiny before we can declare that the Munsif of Aurangabad has jurisdiction.

(3.) I consider that the argument of Mr. Khurshed Husnain must prevail. The plaintiff by his own witnesses proved that the contract was to be completely carried out in Calcutta and these casual variation from the rule, that payment was to be made by hundi which was to be cashed in Calcutta, cannot be taken as implying that the original contract was something more than the plaintiff himself makes out. The case bears some resemblance to that in Tikaram V/s. Daulat Ram A.I.R (1924) All. 530 and for the same reasons that Tikaram of Budaun had to institute his suit in Bombay, I consider that the plaintiff of Nabinagar must institute his suit in Calcutta.