Chainsukh Chatur Bhuj vs Firm Deepchand Prakash Chand

Nigam, J.C.

Chainsukh filed Civil Suit No. 453 of 1948 in the Court of the Additional Subordinate Judge, Ajmer, against the firm Deepchand Prakash Chand of Shamli, District Muzaffarnagar, claiming a decree for Rs. 1,337/8/-. In para. 10 of the plaint it was alleged that the defendant has misconducted himself in the discharge of his duties as an agent by fraudulently attempting to recover Rs. 446/8/- from the plaintiff in excess of what he was entitled to get from the plaintiff. The plaintiff claimed a sum of Rs. 1,337/8/- as compensation for the loss incurred by the plaintiff owing to the misconduct of the defendant. This suit was decreed ex parte on 27-10-1948. An application for setting aside the ex parte decree was filed on 4-1-1949 and then no objection as to the Court''s jurisdiction was taken. The ex parte decree was set aside on 5-4-1949.

In the written statement filed by the defendant it was alleged that no cause of action accrued at Ajmer within the jurisdiction of the Court and the Court had no jurisdiction to entertain the suit. Eight issues were framed in the suit and the seventh issue was whether the Court had jurisdiction to try the suit. After hearing the evidence of the parties, the learned Additional Subordinate Judge held that the Court had no jurisdiction to entertain the suit and accordingly, directed the return of the plaint for presentation to the proper Court at Shamli. Against that judgment the plaintiff Chainsukh, filed an appeal to the District Judge. The learned District Judge upheld the judgment of the trial Court and dismissed the appeal with costs. The learned District Judge held that the decision of the question at issue between the parties turned upon the question whether or not misconduct of the defendant had taken place at Ajmer? He held that no part of the cause of action had arisen at Ajmer. Now the plaintiff Chainsukh has come up in revision to this Court. In the revision application, I have heard the learned counsel for the parties.

A preliminary objection has been taken by the learned counsel for the opposite party that no revision lies. The learned counsel for the applicant urges that a question of failure to exercise jurisdiction is involved. The learned counsel for the applicant has urged two points. He has argued that the defendant made a demand for money from the plaintiff at Ajmer, and, as such, the cause of action to remove the threat to the plaintiff''s property arose at Ajmer. I am unable to agree with this contention. In my opinion, the threat does not arise by a mere presentation of a demand or even sending of a notice.

The second point urged by the learned counsel for the applicant is that the defendant had submitted to the jurisdiction of the Court at Ajmer. The learned counsel has referred me to -- ''Annammal v. Sambasiva'', AIR 1919 Mad 242 (A) and -- Dwarka Das Vs. Pyare Lal, The head-note of the first ruling reads:

A party residing outside the territorial limits of the jurisdiction of a Court, who receives a summons from that Court and raises no objection to its jurisdiction, must be deemed to have submitted to jurisdiction and once a party so submits, he cannot subsequently raise the question again in another Court.

The facts of the case before me are different. Here the objection as to jurisdiction has been raised in the same Court and not in another Court.

The portion relied on by the learned counsel in -- Dwarka Das Vs. Pyare Lal, occurs at page 874 column 2 and reads:

The principle underlying that section (S. 21 of the Code of Civil Procedure) would undoubtedly apply to an application for setting aside an ex parte decree, by virtue of the provisions of S. 141, Civil P.C. It is an admitted fact that no objections as to jurisdiction was raised by the applicant in his objection dated 23rd February, 1929, which he filed against the application for restoration and such objection was only raised on 22nd June, 1929, in argument before the order returning the plaint was passed.

The facts of this case are also different. In the case relied upon, the suit had been dismissed and an application for restoration had been filed. The defendant could have raised the question of jurisdiction as an objection to the restoration of the suit. Here the suit had been decreed and the defendant had to get the decree set aside before he could get the question of jurisdiction considered. The learned counsel for the opposite party has referred me to -- Abdul Hakim and Another Vs. Mukarram Ali and Another The relevant portion reads:

..............where the question whether a particular Court has or has not jurisdiction calls to be determined, on a consideration of the circumstances of the case and the Court decides that the cause of action did not arise within the local limits of the jurisdiction of the Court, that decision is not merely a decision as to the jurisdiction of the Court but is a decision as to certain facts, which if they existed, would determine the question of jurisdiction. The finding on those facts might be a wrong finding, but the High Court cannot interfere with that finding........................

If I may say so, I respectfully agree with the view of the law then taken. I am of opinion that where the question of jurisdiction is to be determined on a finding of fact as to the existence of certain facts determining the question of jurisdiction, a decision as to the existence or non-existence of those facts cannot be challenged in a revision.

Accordingly, I uphold the preliminary objection of the learned counsel for the opposite party that no revision lies. I, therefore, see no force in this revision application and dismiss it with costs.