Judgement
Judgment. - In civil suit No. 107 of 1947 the trial Ct. by its order passed on 12-1-1948, found that the Civil Cts. at Ambala had jurisdiction to try the suit.
2. From the order passed by the trial Ct. on 12-1-1948, the deft, firm came to the H. C. in revision, but the revision failed and was dismissed on 23-3.1948.
3. On 26-1-1948, the trial Ct. fixed the following issues on merits :
"(1) Whether the deft, could sell the goods on 27-12-46 under the terms of the agency ? O. D.
(2) If not, is the pltf. entitled to any damages and to what amount ? O. P.
(3) Relief." 4. After fixing issues on merits the trial Ct. adjourned the case to 23-2-1948 for scrutiny. No one, however, appeared in the trial Ct. on 23-2-1948. On 29-3-1948, Shri Baru Mal, Manager, Sonepat Trading Company Ltd., Shri Hari Ram munim of the deft, firm gave evidence for the defts. and the case was then adjourned to 22-4-1948, for the remaining evidence. On the last mentioned date Nand Ram deft, gave evidence in his own cause and then the deft.s counsel closed the case for the defts. Plaintiffs counsel then requested the Ct. to exhibit the documents proved or admitted at the trial and the case was adjourned to 27-4-1948, for arguments.
5. On 27-4-1948, the trial Ct. finding that the pltfs. were entitled to recover a sum of Rs. 4,264-6-6 with costs from the deft, firm decreed the suit with costs.
6. From the decree passed by the trial Ct. on 27-5-1948, the deft, firm appealed in the Ct. of the Dist. J. at Ambala. In the appellate proceedings it was pressed inter alia that in the trial of Civ. Suit No. 107 of 1947 the trial Ct. had not framed necessary issues. This objection prevailed and the Ct. of appeal fixed an additional issue reading :
"Was Chuni Lal the sole proprietor of the firm Chuni Lal-Vir Bhan and could he sue in his own name?"
7. Parties examined evidence on the issue set out in the preceding para. and on 20-5-1949, the trial Ct. sent its report on that issue to the Ct. of Appeal.
8. Now, when the case came to the Ct. of Appeal for the second time the objection was raised that the trial Ct. had no territorial jurisdiction to try the suit. The Ct. of first appeal has allowed the objection raised and has returned the plaint to the pltf. for presentation to the proper Ct.
9. From the order passed by the Ct. of appeal returning the plaint to the pltf. for presentation to the proper Ct. the pltf. has come up in appeal to this Ct. under R. 1 (u) of O. 45, C. P. C. and the contention raised in appeal is that the lower appellate Ct. in returning the plaint for presentation to the proper Ct. has disregarded the provisions of S. 21, C. P. C. Section 21 reads:
"No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice."
10.From a perusal of S. 21 it appears that even though the objection as to the place of suing has been raised at the earliest possible opportunity or wrongly disallowed the judgment will not be disturbed unless the trial in the wrong Ct. has led to a failure of justice.
11.In order to ascertain whether there has been a failure of justice the appellate Ct. must go into the merits of the case and form an opinion upon the justice or otherwise of the decision of the original Ct. This has not been done. Indeed the Ct. of First Appeal has not considered the requirements of S. 21 of the Code.
12. In these proceedings I have examined the entire record of the case to ascertain whether the trial of the suit at Ambala has led to a failure of justice.
13. Mr. D. N. Aggarwal, learned counsel for the deft, firm, argues that the deft, firm failed to examine evidence on the issues raised by reason of the fact that the suit was tried at Ambala. In support of the argument raised by Mr. Aggarwal points out that in para. 9 of the written statement the deft, relied inter alia upon the usage of the market on issue No. 1. The final step in the argument is that because of the trial of the suit at Ambala the deft, firm could not examine witnesses from Sonepat at Ambala to prove the usage of trade. For reasons appearing hereinafter I see no force in the argument raised.
14. In the first place the usage of trade was put in issue. In the second place, the deft, examined the Manager of the Trading Chamber at Sonepat, but no question was put to him as regards the usage of trade. Nand Ram deft. and Shri Hari Ram munim of the deft, firm gave evidence at the trial but there is not a syllable in the evidence of Nand Ram or Shri Hari Ram to show that the deft, firm relied upon the usage of the market on issue No. 1. As stated above, the deft, did not appear on the date of scrutiny and made no complaint during the trial that he was prevented from examining evidence in support of issues Nos. 1 and 2. Indeed, as stated above, on examining the evidence the defts. counsel himself closed the case and did not ask the Ct. to give him an opportunity to examine further evidence on issues Nos. 1 and 2. That being the situation of matters, I find that in this case the trial of the suit at Ambala has not led to, failure of justice. The failure of justice mentioned in S. 21, C. P. C., is the failure of justice arising from the trial of the suit in a wrong Ct.
15. Finding, as I do, that the trial of the suit at Ambala has not led to any failure of justice, I allow the appeal, set aside the order of remand and remit the case to the lower appellate Ct. for the decision of the appeal on merits.
16. Considering the circumstances of the case I leave the parties to bear their own costs.
17. Parties are directed to appear in the Ct. of the Dist. J. at Ambala on 9-10-1950.
Case remanded.