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Judgment
G.C. Garg, J.—Facts giving rise to the present appeal may in brief be noticed thus;
Plaintiff-appellant filed a suit for mandatory injunction directing the defendant-respondent to release the leather after accepting the balance amount and reconciliation of the accounts and as a consequential relief sought permanent injunction restraining the defendant not to auction or sell the leather of the plaintiff lying with the defendant in any way till the dispute was decided by a competent court. Suit was contested by the defendant. It was pleaded that the court at Jalandhar had no jurisdiction to try the suit and she suit in the present form was not maintainable. On merits, it was submitted that the defendant had been processing the leather of the plaintiff and charging processing charges. Plaintiff did not pay the processing charges and thus, the defendants was compelled by the circumstances to fix a date for auction of the leather of the plaintiff. In the end, it was stated that a sum of Rs. 73928.83 was due to the defendant from the plaintiff on account of processing charges. On the pleadings of the parties, following issues were struck:
"1. Whether the Civil Court at Jalandhar has got jurisdiction to try the present suit? O.P.P.
Whether the plaintiff is entitled for mandatory . and permanent injunction prayed for? O.P.P.
Relief."
Issue No. 1 was answered in favour of the plaintiff and it was held that the civil court at Jalandhar had jurisdiction to try the suit. Issue No. 2 was also answered in favour of the plaintiff and as a consequence thereof, suit of the plaintiff was decreed. Accordingly, the defendant was directed to release the leather of the plaintiff after accepting the amount of Rs. 74,367.23 paise from the plaintiff. Defendant was restrained from auctioning by sale the leather of the plaintiff lying with it. It was, however, ordered that payment of Rs. 74, 367.23 paise by the plaintiff to the defendant will be subject to the final reconciliation of the accounts between the parties.
Aggrieved by the judgment and decree dated September 15, 1985, of the trial Court, the plaintiff filed appeal. Before the first appellate Court, it was contended on behalf of the plaintiff that it was entitled to take delivery of the leather without making any payment till the accounts were finally settled by a competent court and that the plaintiff was not liable to pay any amount. Learned Additional District Judge on a consideration of the matter came to the conclusion that the suit as well as the appeal were nothing but a misuse of the process of law by the plaintiff-appellant. Placing reliance on Puri Construction Pvt. Ltd. Vs. Union of India (UOI), , learned Additional District Judge in exercise of Jus powers under Order 41 Rule 33 of the CPC came to the conclusion that the appellate Court was fully competent to exercise its power in favour of the defendant to see legality of the finding on the issues in spite of the fact that the defendant had not preferred appeal or cross-objection and, ultimately concluded that the plaintiff was not entitled to either permanent injunction or mandatory injunction as prayed for in the suit. As a consequence of the above findings, learned Additional District Judge set aside the judgment and decree passed by the trial Court and dismissed the suit. It is how this second appeal has been filed by the plaintiff.
Learned counsel for the appellant submitted that the learned Additional District Judge was not right in setting aside the finding recorded by the trial Court under issue No. 2 in exercise of his power under Order 41 Rule 33 of the Code. Learned counsel in support of is submission relied upon Ram Chandra Chowdhury v. Madho Prashad Chatterji AIR 1917 Pat 52 wherein it was held that Rule 33 of Order 41 of the Code does not empower the appellate Court to wipe off the decree of the Court below even in respect of those respondents who have filed no cross-appeal in respect of that portion of the decree which was against them and that Order 41 Rule 33, applies only to cases in which for the ends of justice and for the equitable execution of a decree the appellate Court considers it necessary to make a material variation in the decree. Learned counsel for the respondent, on the other hand, while supporting the judgment passed by learned Additional District Judge, placed reliance on Siri Nath v. Karam Singh Mehal Singh, Punjab Acts and Precedents 1995 Pb. and Hry. 89, wherein it has been held that even in the absence of appeal or cross-objection filed by the respondent, the Court has power under Order 41 Rules 33 of the Code to grant relief to the respondent in exceptional circumstances to meet the ends of justice. Learned counsel for the respondent also submitted that the court at Jalandhar had no jurisdiction to try the suit and the finding of the trial Court on the question of jurisdiction is also patently erroneous and this Court can decline relief to the plaintiff-appellant on that short ground alone. On the point of jurisdiction learned counsel for the appellant submitted that the court at Jalandhar had the jurisdiction to try the suit as the accounts were reconciled at Jalandhar and a part payment had also been made at Jalandhar.
After hearing learned counsel for the parties I do not consider it necessary to go into the first question, namely, whether learned Additional District Judge in exercise of his power under Order 41 Rule 33 of the Code in the absence of appeal or cross-objection preferred by the defendant could reverse the decree passed by the trial Court or not, for I am of the clear opinion that the trial Court at Jalandhar had no jurisdiction to try the suit. Question of jurisdiction can always be raised by the Court hearing the appeal as this point goes to the root of the matter.
The only matter that weighed with the trial Court for coming to the conclusion that the court at Jalandhar had jurisdiction to try the suit was that the accounts were reconciled at Jalandhar and that a cheque for Rs. 10,000/- towards processing charges was given to Vijay Paul, Manager of the defendant-Company at Jalandhar by the plaintiff in respect of processing charges of the leather. Admittedly, an agreement between the parties was reduced to writing and it was exhibited No. Ex.D2. Under the agreement, the plaintiff was to send leather to the defendant-company at Jind for processing. After processing the leather and on receipt of processing charges, the leather was to be sent to the plaintiff-Company. This agreement was, admittedly, entered into between the parties at Jind. Thus, under the agreement the leather was to be processed at Jind and the office of the | processing unit of the defendant-company is at Jind. Agreement was arrived at between the parties at Jind and the leather after processing was to be despatched from Jind. By reference to Exhibit D.2, learned counsel for the appellant could not show that payment was to be made at Jalandhar. Once the processed leather was to be despatched after receipt of processing charges, it obviously means that processing charges were to be paid at Jind. Even otherwise it has not been shown that any payment was made at Jalandhar. The only evidence produced in the shape of PW-1 O.P. Gupta, General Manager of the plaintiff-company is to the effect that a cheque in the sum of Rs. 10,000/- was given to the defendant at Jalandhar. However he went on to state that the defendant did not present the cheque to the bank. Rather it was returned by him. No other payment is alleged to have been made to the defendant at Jalandhar. R.W. 1, however, categorically denied the suggestion that the defendant used to receive payment at Jalandhar. He rather stated that a representative of the plaintiff-company had been visiting the defendant for taking delivery of processed leather against payment. No other amount has been shown to have been paid to the defendant at Jalandhar. Learned counsel for appellant submitted that some other payments had also been made to the defendant at Jalandhar on 31.8.1983. However, a reference to the statement of accounts filed by the plaintiff itself and available on the record at page 137 of the trial Court record clearly goes to show that no such payment had been made either at Jalandhar or at find, on 31.8.1983. Thus, it can clearly be concluded that no payment was made by the plaintiff to the defendant at Jalandhar and the assumption raised by the trial Court that a part payment had been made at Jalandhar is erroneous and beyond record. Mere tendering a cheque which was returned, cannot be taken as payment made to the defendant at Jalandhar. Again from the evidence available on the record, it cannot be concluded that accounts had been reconciled at Jalandhar. Thus, in my view, no part of cause of action accrued to the plaintiff at Jalandhar and thus the Court at Jalandhar had no jurisdiction to try the suit in view of the provisions of Section 20 of the Code of Civil Procedure. Finding of the trial Court under Issue No. 1 is thus set aside and as a consequence thereof, appeal fails and is dismissed with costs. Counsels fee assessed at Rs. 500/-.