Tilak Raj vs Prithi Pal Singh

K.V. Gopalakrishnan Nair, J.—This is revision u/s 115 of the CPC against an order passed by the City Judge at Jammu.

The Respondent instituted a suit in the lower Court against the petitioner for rendition of accounts in respect of a partnership between them. The

plaint alleged that there was a partnership between the defendant and one Gulab Singh under which the defendant was to get seven annas in the

rupee and Gulab Singh the rest. While this partnership was subsisting the defendant is alleged to have entered into the suit partnership with the

plaintiff in respect of his seven annas share.

Under the terms of this subsidiary agreement, if one may say so, the plaintiff and the defendant-were to share the profits out of the seven annas

share of the defendant equally. In respect of this agreement, it is averred in the plaint that a sum of Rs. 4800/- was paid by the plaintiff to the

defendant, and that the defendant, in spite of his having obtained considerable profits out of the partnership, did not pay the share due to the

plaintiff, that repeated demands were not heeded, etc. It is not necessary to notice all the other averments in the plaint which are more or less

inconsequential to this revision.

The defendant, resisted the suit inter alia On the ground that the City Court, Jammu had no jurisdiction to entertain the suit. He also alleged that

the plaint did not disclose the particulars showing that the Court had jurisdiction. On these pleadings, the lower Court framed a preliminary issue as

to whether it had had jurisdiction to entertain the suit.

Before the parties went to trial on this issue, the defendant moved an application in the lower Court calling upon the plaintiff to amend his plaint

by incorporating therein the necessary facts to show that the lower Court had jurisdiction to try the suit. Although the Court afforded an

opportunity to the plaintiff to file written objections to this application, the plaintiff chose to abstain from preferring any written objections. The

Court, therefore, ordered the parties to go to trial on the issue relating to jurisdiction. It is this order which is challenged in this revision.

Before discussing the merits of this revision, I would state a few facts which took place after the passing of the order. On the same day the order

was made the plaintiff gave evidence touching the question of jurisdiction of the lower Court to entertain the suit instituted by him. It also appears

that the plaintiff was cross-examined by the defendant's counsel the same day.

The plaintiff thereafter did not wish to adduce any further evidence on the question of jurisdiction, and the Court directed the defendant to adduce

evidence on his side. About three opportunities were given to the defendant to produce his witness; at last on 19-1-61 his witness appeared in

Court in obedience to the Court's summons but was promptly given up by the defendant on the ground that he had turned hostile. Two days prior

to this, i. e., on 17-1-61 the present revision had been filed by the defendant.

The main argument urged by the Advocate-General on behalf of the petitioner is that in the absence of a specific averment in the plaint as to

where the contract of partnership was entered into between the plaintiff and the defendant and where the performance of the contract was

stipulated between the parties, the trial Court ought not to have directed the parties to adduce evidence on the question of jurisdiction. On the

other hand, it ought to have allowed the application made by the defendant and directed the plaintiff to amend the plaint by giving all the necessary

particulars regarding jurisdiction.

I think there is considerable substance in these submissions. It is a well established and un exceptionable rule of pleadings and law that no party

can adduce evidence in respect of a matter which he has not pleaded; it is only what is pleaded that can be sought to be proved; and a plaint must

undoubtedly contain express averments showing how the particular Court has jurisdiction. If such averments are not there, the plaint is deficient

and defective and has to be amended before it can be proceeded with.

In the present case the plaintiff himself did not seek to amend his plaint: he did not even think it fit to avail of the opportunity given to him by the

objections raised by the defendant. What is perhaps worse is that the Court also did not apply its mind to this important aspect of the matter and

direct the plaintiff to amend his plaint before the suit was proceeded with. A reading of Rule 1 of Order 7 and of Rule 2 of Order 6 of the CPC will

show the need and the desirability of making pleadings express and specific and also of precisely pleading matters which are to be proved.

It is unnecessary to cite authorities for a proposition so plain as this. If necessary, reference may be made to Krishniah Chetty v. Narayanappa

AIR 1938 Mad 497; Madanlal v. Union of India, AIR 1955 MP 18 and Madan Lal v. Munshi Datu AIR 1956 Pepsu 80. If a party is allowed to

lead evidence on matters which are not pleaded at all, the trial of the suit will be considerably embarrassed and the parties to a litigation will have to

grapple with surprises at every step and turn of the trial: it would also leave the door open to dishonest after-thoughts and fabrication of facts and

evidence to suit the particular moment of the trial.

This is why the law has enjoined upon litigants the duty of specifically pleading matters which they want to prove in a Court. And the claim of a

plaintiff that the particular Court to which he resorts has jurisdiction to try his suit is so important that it requires to be set forth in the plaint very

clearly and in sufficient detail.

When the plaint itself did not show how the Court had jurisdiction it was pointless and improper for the Court to have directed the parties to

adduce evidence on that question. The order of the trial Court is, therefore, erroneous and has to be set aside. The plaintiff is directed to amend

the plaint by making all necessary averments to show that the Court of the City Judge at Jammu has jurisdiction to try the suit. The defendant will

also be given an opportunity to traverse these averments in the written statement. The trial of the issue regarding jurisdiction will be taken up

thereafter.

The only other point raised by the learned Advocate-General for the petitoner is that the lower Court did not make any order regarding the

prayer of the defendant that an issue regarding court-fee has to be framed. But I do not think this issue is a preliminary issue as the issue of

jurisdiction is. It is, therefore, open to the defendant to move the trial Court again for framing of an issue relating to court-fee in case the lower

Court finds that it has jurisdiction to entertain the suit.

In view of the foregoing the revision is allowed. No costs.