Ram Chunder Gouri Shanker v. Ganputram Biswanath

Sanderson, C.J:— This is an appeal from the judgment of my learned brother Walmsley, J., whereby he gave judgment for the plaintiff.

2. The learned counsel for the appellant has raised a point going to the jurisdiction of the learned Judge, and he, first of all, drew our attention to the fact that, although this plaint had been treated in the first instance as being a plaint under O. 37 of the CPC, the learned Judge had not so treated it but had held that there was a clear cause of action disclosed in the plaint by reason of paras 4, 5, 6 and 7. The learned counsel then proceeded to argue that, that being so the learned Judge had no jurisdiction to try the case because neither the whole of the cause of action nor any part of it arose within the local limits of the ordinary original jurisdiction of this Court. I think that the learned counsel's argument cannot be supported, because, in my judgment, a part of the cause of action did arise within the local limits of the ordinary original jurisdiction of the High Court; and inasmuch as leave was given by the Court the Court had jurisdiction to hear the case.

3. The agreement which it was sought to enforce against the defendant is alleged in para. 4 of the plaint, and it is there alleged:

“the plaintiff firm agreed to the aforesaid terms for the defendant firm's accommodation without receiving any value therefor at the repeated requests of the defendant firm, and the defendant firm agreed to indemnify the plaintiff firm against any loss or damage by reason of the plaintiff firm's agreeing to the aforesaid terms.”

4. In order to see what were “the aforesaid terms” we must turn to para. 1 of the plaint. There it is stated;

“on 11th October 1916, one Jankidas Murlidhar of Delhi drew a hundi in favour of the bank of Bengal in its Delhi Branch on the plaintiff firm in Calcutta for the sum of Rs. 2,500 payable 54 days after the said date. The said hundi was to be accepted by the plaintiff firm in Calcutta for the accommodation of and was to be debited to the defendant firm in case of payment by the plaintiff firm.”

5. Those are “the aforesaid terms” which the plaintiffs alleged they had undertaken to be bound by and in respect of which they alleged that the defendants had agreed to indemnify the plaintiffs against any loss or damage by reason of the plaintiff firm's agreeing to the aforesaid terms. It therefore appears that, by the arrangement between the plaintiffs and the drawers of the hundi, the plaintiffs were under a liability to accept the hundi in Calcutta for the accommodation of the defendants and the defendants had agreed to indemnify the plaintiffs against any loss or damage which they might incur by accepting the hundi in Calcutta. There is an allegation in the plaint that the plaintiff firm did accept the hundi in Calcutta, that the hundi became payable on 7th December 1916, and that on that day they in fact paid the amount of the hundi in Calcutta and that the defendants, although called on to perform their part of the agreement, had failed to reimburse the plaintiffs.

6. Our attention was drawn to what was said by Fry, L.J when he was dealing with the meaning of the words “cause of action” in Read v. Brown (1) referred to in Dobson and Barlow Limited v. Bengal Spinning and Weaving Company (2), namely:

“everything which, if not proved, gives the defendant an immediate right to judgment, must be part of the cause of action.”

7. And again Brett, J., in Cooke v. Gill (3), is reported to have said:

“cause of action has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse.”

8. In my judgment, in this case the plaintiff's cause of action would not be complete unless they proved the fact that they had accepted the hundi in Calcutta in accordance with their undertaking to the drawers of the hundi, the plaintiffs' cause of action would not be complete unless they had proved that they had paid the bill in Calcutta on the due date in accordance with their acceptance. For these reasons in my judgment part of the cause of action did arise within the local limits of the ordinary original jurisdiction of this Court and consequently the learned counsel's point with regard to jurisdiction cannot be sustained.

9. The only other argument which the learned counsel presented to us was with regard to the learned Judge's decision not to read or look at the evidence of a man called Gulzari Mull whose evidence was taken on commission. It is clear from the terms of the order for the commission that the evidence of a man called Rameswar alone was to be taken, but by some means or other in the writ the words “Gulzari Mull” appeared before the word “Rameswar.” It looks to me as if the person who had inserted those words regarded “Gulzari Mull” as being one of the names owned by the man Rameswar. But the defendants insisted upon Gulzari Mull being examined upon commission, and his evidence was taken on commission on 7th July 1918, in spite of the protest of the plaintiffs. From the letters which appear at pp. 155 and 156 of the paper-book, it is clear that Messrs Leslie and Hinds were informed by Mr. Khaitan, who was then acting as Solicitor for the plaintiffs, that the order had been made for the examination of Rameswar alone and Messrs Leslie and Hinds were pressed to wire that Rameswar alone should be examined: so that the defendant's Solicitors clearly had notice either on 6th or 7th July that the order did not provide for the evidence of the Gulzari Mull being taken upon commission, and if the defendants had desired to have his evidence taken on commission they should have made a further application to the Court either before the trial or at the trial. As far as I know, no such application was made. The trial did not take place until 17th July and there was ample opportunity, as far as I can see, for the defendants to make an application to the Court if they wished to do so. In my judgment, the learned Judge was right in refusing to read the evidence of Gulzari Mull taken on commission. For these reasons, we refused the application made by the learned counsel for the appellant to be allowed to read the evidence of Gulzari Mull or to call him as a witness in this Court. The learned counsel frankly said that if Gulzari Mull's evidence was not to be read or if he was not allowed an opportunity of calling Gulzari as a witness in the appeal Court, it was hopeless for him to attempt to contest the findings of fact of the learned Judge, which accordingly must stand.

10. For these reasons the appeal must be dismissed with costs.

Mookerjee, J.:— I agree.

Fletcher, J.:— I agree.

V.B/R.K

11. Appeal dismissed.