RAMCHANDRA TEJMAL Vs. MOHANLAL

JUDGEMENT

(1.) MACNAIR , A.J.C. 1. The order in this case will govern the disposal of Miscellaneous Judicial Case No. 48 of 1929. The applicant, a resident of Kothali in the Malkapur taluq, filed a suit in the Court of the First Class Sub-Judge of Malkapur. The plaint was returned to him for presentation to, a Nagpur Court on the ground that the cause of action arose in Nagpur only. The applicant presented his plaint in the Nagpur Court and filed an appeal against the order of the Sub-Judge, Malkapur. The learned District Judge of Akola held that the Malkapur Court had jurisdiction but that, as the appellant had submitted to the jurisdiction of the Nagpur Court, the appeal was untenable. The appeal was, therefore, dismissed and the applicant has come to this Court in revision.

(2.) THE learned District Judge has relied on a case Beni Madhubdas v. Jotindra Mohan Tagore [1907] 11 C.W.N. 765. Now in a case reported in the Indian haw Reports series Narayanan Nair v. Cheria Kathri Kutty [1918] 41 Mad. 721 the decision in Beni Madhubdas v. Jotindra Mohan Tagore [1907] 11 C.W.N. 765 was held to be incorrect. I agree with the opinion of the Judge of the Madras High Court. Where a plaint is wrongly returned for presentation to the proper Court, it does not appear equitable that the plaintiff should have to allow the period of limitation for presentation in another Court to pass, or else give up his right to challenge the order. A plaintiff, who has a good case, should not by an erroneous decision of a Court be made to face alternatives, acceptance of either of which may preclude him from obtaining investigation of his claim. The learned District Judge has suggested that the plaint could have been filed in Nagpur with some reservation or protest. It appears to me that the plaintiff can explain the circumstances to the Nagpur Court if his appeal succeeds. I am, therefore, of opinion that the appeal was tenable and should have been decided on the merits. It is urged before me that this Court has no power to interfere in revision. I remark that the Madras High Court was prepared to interfere in revision. In my opinion, where the District Judge wrongly thinks an appeal is untenable this Court should interfere.

(3.) NOW , the plaintiff, while on a visit to Nagpur, agreed to advance money. Ha subsequently, after return to his home, wrote out a hundi which he sent to the defendant. An inference can be draw from the necessities of the case that the parties intended that payment should be made to the creditor at the place where he carried on business. As their Lordships in the case cited state, Section 49, Contract Act, does not get rid of inferences which should justly be drawn from the necessities of the case, involving in the obligation to pay the creditor the further obligation of finding the creditor so as to pay him. It was known that the plaintiff was a more visitor to Nagpur and, when the defendant promised to pay the creditor, he must be considered to have promised to pay him at his place of business. The defendant failed to pay and the Malkapur Court had jurisdiction. I, therefore, set aside the order of the learned District Judge and direct that the Malkapur Court should receive and try the plaint. In Miscellaneous Judicial Case No. 48 of 1929, the applicant asks that the suit should be transferred from the Nagpur Court to the Malkapur Court. I direct that the Nagpur Court should return the plaint to the plaintiff in order to enable him to present it at the Malkapur Court. Costs of this application will be borne by the non-applicant.