Siddiqi, J.:— The defendant is a pardanashin lady belonging to a noble family of Hyderabad. She had executed a promissory note in favour of the plff. who carries on cloth business. The merchant filed a suit in the City Civil Court on he basis of that promissory note & obtained a decree thereon. Mr. Khader Mohiuddin for the defendant strongly contends that Court has ??? jurisdiction to entertain the suit & that no ??? was maintainable for want of consideration.
2. The first contention is based on the fact that the deft, resides outside the jurisdiction of the City Civil Court & the suit pro note was executed at the deft's house. The plff. of course resides at the place at which he carries on the business which is in the jurisdiction of the City Civil Court. It is contended on the authority of Firm Dalsukh Nathmal v. Motilal Balchand, A.I.R (15) 1938 Nag. 262, Vithoba Ghimmaji v. Mahadeo Kesheorao, A.I.R (24) 1937 Nag. 242 & Jivatlal Purtapshi v. Lalbhai Fulchand, A.I.R (29) 1942 Bom. 251 that the common law rule that the debtor must find the creditor lot payment would not apply in the case of negotiable instruments which are governed by the provisions of the Negotiable Instruments Act & those instruments have certain peculiarities of their own under the Law Merchants & Mercantile Law. In A.I.R (29) 1942 Bom. 251, the conclusion arrived that the common law rule is not applicable to the case of negotiable instrument is taken to mean that wherever there is a negotiable instrument the common law rule of finding the creditor would not apply. We are of opinion that the subject must be approached from a different angle. We fully appreciate the contentions on a matter of this kind. This rule which is said to be a common law rule is not applied in India as a common law rule. As a matter of fact, the forum for a civil suit is determined under the provisions of Section 15 of the Hyderabad CPC (Section 20 of the Indian CPC). Under that section a suit may also be filed in a Court within the local limits of whose jurisdiction the cause of action wholly or in part arises. In fact the question is not what the common law rule is, but the question is under the suit promissory note whether the cause of action for this promissory note arises within the jurisdiction of the City Civil Court or without that. The deft, admittedly resides outside the jurisdiction it therefore the residence would not be a basis for the forum. The suit promissory note was executed outside the jurisdiction of the Court & runs as follows (of course only so far as the part which is relevant for the purpose of the present discussion):—“I promise that I will pay the amount on demand to the Sahu or at his order etc.” That promissory note describes the creditor to be “Lakshminarayana Valad Mukram Sakin Bazar-e-Ghasi”. Now this is a promissory note in which the lady promises to pay to Lakshminarayana residing at Ghasi Bazar the amount of this promissory note on demand or at his order. It is quite clear, at least to our minds, that the intention of the parties was that unless that Sahu makes some order in favour of somebody, which was at his own option, the amount would be payable to Lakshminarayana who was residing at Bazarte Ghasi. That being be under the very terms of this document the place where the don-tract is to be performed, i.e, where the amount is to be paid, would be the place of residence or business of the creditor. We shall now deal with the various contentions raised by the learned Advocate for the deft. The learned Advocate contends that in view of A.I.R (29) 1942 Bom. 251 & other rulings it must be held that the common law rule would not apply. We do not think that in the ruling cited above it was laid down as a matter of broad & general principle that there is something inherent in the nature of a promissory note or in the Law Merchants that would exclude the application of this common law rule. What we understand the learned Judges to mean in this judgment is that the case of promissory notes differs very much from the case of simple contracts & bonds. That being so it naturally follows that the incidence attached to negotiable instruments with their negotiability stands in the way of attracting the common law rule. There may be negotiable instruments in which a debtor may not have to find the creditor or where a negotiable instrument has been transferred or where the creditor has ordered payment to be made in a particular manner & all these occurrences are in the exercise of the option of the creditor & any one of these would naturally place the document into altogether a different position, because, as we have explained, if the contract is to be performed in a manner that cl. (b) of S. 20 is not applicable to the same, the common law rule will not help the creditor to determine the forum for purposes of a civil suit. The learned Advocate for the appellant contends that the name of the creditor with the words “Ghasi Bazar” are mere words of description & from the insertion of the locality of the residence of the creditor it cannot be presumed that the payment was intended at that place. In support of his proposition he relies on a passage from A.I.R (29) 1942 Bom. 251 at p. 255 Col. (1) where it was pointed out that:
“It is clear that from the express taring of the note, one cannot extract any reference to the place of payment. The only allusion to Bombay is as being the place of the promises, bet that is clearly not enough to found a right to payment in Bombay, But Mr. Bhagwati says that when one looks at the circumstances which gave rise to the promissory note & the previous dealings between the parties, it must be implied that the moneys were payable in Bombay. But in my opinion, in a suit founded on a promissory nose it is not permissible to go into the consideration for the note, & to read into the note something founded on the circumstances which gave rise to it. That would be a very dangerous principle to Apply to negotiable instruments.”
3. The way we are inclined to look at the suit document is that under that document a promise 191 made to pay the amount to the creditor who resides at “Ghasi Bazar” on demand or at his order. It is admitted before us that in the present state of the document the amount is payable to the creditor & not to anybody else. It view of that promise, it is evident that the performance of this contract exists in payment of the amount mentioned in the promissory note by the debtor to the creditor. Where the contents of a document point only to one conclusion & no other conclusion is even alleged, I see no reason as to why that particular conclusion should not be drawn & acted upon. Here the liability is to pay the money, the suit is for that & when no other place of payment is specified or even alleged, I am of opinion that the only conclusion that can be drawn from a document of this kind in view of its contents, is that the money is payable to this creditor at Ghasi Bazar. I have arrived at this conclusion not because it is a common law rule in England, but because in my opinion according to the terms of the contract that is the place of performance of the contract. There is no defence that the amount was payable at some other place. It is contended by the learned Advocate for the deft, that in case of a pardanashin lady of the deft's status & position, the amounts are usually payable at the house of the lady where the traders go personally to make these payments. That may be so. In that case the deft, should have expressly pleaded that such was the intention of the parties. This is a civil suit & it must be decided on pleadings. Of course if I arrive at the conclusion that the words “Ghasi Bazar” merely describe the creditor as one who resides at Ghasi Bazar & there is no inference (having regard to the fact that money is to be paid to the creditor) to pay the amount to him there, naturally the City Civil Court will have no jurisdiction to entertain this suit. It is further correct that if this promissory note had been negotiated or if the creditor has availed of the condition that the promissory note was payable to his order, then the position would have been different. Then the amount would not be payable to the present creditor but to the other person to whom it may be payable. The second contention is that the burden of proof was not rightly laid on his shoulder as regards the consideration for the promissory note. That contention I reject for two reasons. Firstly the promissory note or the plaint does not say that the amount was actually paid in cash at the time of the execution of the promissory note. What the promissory note indicates is that it has been executed for cash consideration. It is stated in the plaint that a certain amount was due on that date & some money was advanced & that was the consideration. Even if the amount of money is due & that in dealing is resolved into a liability for payment of cash, it is possible that the parties may plead it as a liability to pay the amount in cash. Even assuming that contention of the Advocate is correct in view of certain rulings of this High Court that the burden lay on the plff., to prove the consideration, the matter was determined finally against the deft, by a Division Bench of the High Court in an earlier judgment in this case. What then happened was that the deft, came in revision to the High Court from the order of the Trial Court throwing the burden on the deft. A Division Bench of this High Court in that revision, after going through the written statement of the deft, agreed with the findings of the trial Court & dismissed the revision also on the ground that the decision of the trial Court with regard to the question of burden of proof was a right one. A ruling of the Madras High Court has been cited in Pichu Ayyangar v. Ramanuja, A.I.R (37) 1940 Mad. 766 it if said to be an authority for the proposition that whenever a decision of a Bench of the High Court has been delivered in interlocutory orders that finding is not final & can be reagitated in an appeal from the final judgment of that Cass under Section 105 of the Indian CPC (Section 606 of the Hyderabad CPC). S. 105 provides that where a decree is appealed from any error, defect or irregularity in any order affecting the decision of the case, may be set forth as a ground of objection in the memo, of appeal. Of course that section enables the appellant to contend the validity or correctness of the orders passed in the course of a civil trial in case they are material & affect the decision. But, in my opinion, that section does not authorise the appellate Court to reconsider or interfere in the judgment of a Court whose orders are not liable to be treated in an appeal as orders of a Subordinate Court provided these orders are within the competence of that Court & have the character of being final & conclusive as between the parties. Now we shall examine the judgment of the former Division Bench to see whether it is a conclusive judgment or not. That judgment was given on a revision preferred by the deft, under Section 615 of the Hyderabad CPC, (S. 115, Indian Code). The High Court in exercise of its re visional powers was approached by the deft, herself to set aside the order determining the burden of proof. The High Court has set aside the order if it had come to the conclusion that the order was not a correct one according to the provisions of Hyderabad Code of Civil Procedure. That Court after going through the record not only dismissed the revision, but in clear terms held that no interference was necessary as the order was a valid one. We fail to see how we, sitting in a Division Bench, can set aside the order which has been confirmed in clear terms by another Bench not subordinate to this Court. I am of opinion that the order of the Division Bench is final & conclusive between the parties & that the deft, is not in a position to agitate the matter before this Bench. As regards the case in A.I.R (37) 1940 Mad. 756, in my opinion, that case is inapplicable in view of the facts of this case. In that case the Court held that authority is given to the Court to set aside an erroneous order affecting the decision of a case, unless it be an order of remand from which an appeal lies & no appeal is filed.
4. The appeal of the deft, is dismissed with costs.
Deshpande, J.:— In this appeal two questions of law are involved: one is whether the Common Law Doctrine “the debtor must seek the creditor” is applicable to Negotiable Instruments or not & second is whether the final decision by the High Court against the order of the lower Court passed in revision can be reviewed by the High Court in an appeal against the decree in the same suit. Before I deal with the above question, the facts of this case must be briefly stated.
5. The plff., Laxminarayan, is a cloth merchant. The deft. Sultan Jehan Begum used to buy cloth from plff.'s shop. The transaction went on & the deft, executed promissory note at her residence on 5th Peer 1347 Fasli in favour of the plff. for debts due to the purchase of cloth & some cash loans. The plff. has sued upon the said note. After admitting execution, deft, objected that as the note was executed at her residence the Court has got no jurisdiction to hear the suit & further the promissory note being without consideration is unenforceable. Daring the pendency of the suit the Deft, applied for amendment of issues in order that the burden of proof may be shifted on to plff's shoulder. The application was dismissed & a revision petition was filed by the deft, which was rejected by the High Court on 11th Azur 1351 Fasli & it was held that the burden was rightly laid upon the shoulder of the deft. In spite of the High Court's findings the deft, refused to adduce evidence & the lower Court on the admission of the execution of the promissory note, decreed the plff's suit. Deft, has filed this appeal against the decree of the lower Court.
6. The contention of the Advocate for the appellant is that the lower Court had got no jurisdiction to hear this case. It is admitted by the plff. in his reply to the written statement that the pro-note was written at the residence of the deft. The deft, resides in Somajiguda, which is not within the jurisdiction of the City Civil Court. In the promissory note no place has been referred wherein the payment ought to have been made. Therefore, under such circumstances, the contention is that the suit must be filed where the deft, resides, & the Common Law doctrine that the debtor must find his creditor is not applicable to the Negotiable Instruments. Therefore no cause of action arises where the plff. resides, or where the place of his business is, & as the suit has not been filed in the proper Court the appeal must be allowed. He relies upon A.I.R (29) 1942 Bom. 251 : A.I.R (25) 1938 Nag. 262 in support of his argument.
7. Under Section 20 of the CPC, the suit must be filed in that Court where the cause of action wholly or partly arises. In a suit based upon contract, cause of action arises where the contract is made or where it is to be performed. In suits on negotiable instrument it has been held that cause of action arises either at the place of the making of the promissory note or at the place of the residence of the deft, or where the promissory note is handed over to the creditor. In this case it is admitted that the pronote was written & handed over to the plff. at the residence of the deft. Therefore, prima facie, the cause of action arose where the deft, resides. The doctrine of Common Law that the debtor must seek the-creditor is not applicable to Negotiable Instruments because Negotiable Instruments are passed from one hand to another & it would be very difficult to find the creditor as is possible in the case of ordinary contract. The promissory note being a note on demand & without any place fixed for payment it requires no presentation. Therefore, it has been held in the case cited by the appellant that under such circumstances the Common Law rule that debtor must find his creditor is not applicable &, therefore, the suit must be filed in the Court where the deft, resides. There is conflict of opinion in this respect in the High Courts of Calcutta, Bombay & Nagpur. In the case of Gopikishen v. Jethmal, A.I.R (22) 1935 Nag. 144, the single Judge of the High Court of Nagpur has observed that the ordinary principle that in the absence of any specific agreement as to the place where the payment of the debt is to be made it is the duty of the debtor to make the payment where the creditor resides, or where his place of business is, is not applicable to Negotiable Instruments. Thia contention is sound. In this case the suit was filed on the promissory note. The promissory note was executed at Khamgaon. The deft, denied the execution at Khamgaon but stated that it was executed by him at Nimgaon. The lower Court proved the contention of the deft, that the note was executed at Nimgaon but held that as the debtor must find his creditor, the cause of action arose at Khamgaon. In revision the Nagpur High Court held that this contention is wrong. This was followed by the same High Court in A.I.R (25) 1938 Nag. 262 & there it was held that the ordinary rule under which the debtor must seek his creditor does not apply in the case of Negotiable Instruments. In A.I.R (29) 1942 Bom. 251, the Division Bench of the Bombay High Court has held that Common Law rule that the debtor must seek his creditor is not applicable in the case of Negotiable Instruments. The reason given being that the holder may be residing in any part of the country & the debtor may have no notion where he is & where to seek him and in an unreported case, Piyara Singh v. Bhagwan Das, of the Punjab High Court reported in 1951 May part of the Monthly Indian Digest published from Nagpur the same view was held. Against this view, it has been held in a Calcutta case reported in Srilal Singhania v. Anantalal Mondal, A.I.R (27) 1940 Cal. 445, in which the suit was based upon a promissory note that the Common Law rule applies & it being necessary for the debtor to seek out his creditor & pay him in the absence of any agreed place for payment which was in this case at Calcutta. In this case as the question of limitation was under consideration it was decided that the suit was within time. The second case to which a reference can be made is Nanumal v. Firm Shibbamal Nandkishore, A.I.R (26) 1939 Lah. 18. In this case it is decided that where a pro-note does not specify any place where the payment is to be made it should be presumed that the payment is to be made at the usual place of the creditor & the cause of action for the suit based on pro-note arises at that place. Thus there is difference of opinion in the High Courts referred to above as regards the application of the doctrine of debtor must find his creditor, in the case of Negotiable Instruments. So far as regards our High Court is concerned I could get two cases of our High Court in which it has been held that the principle that the debtor must find his creditor is applicable in the case of Negotiable Instruments. The first is a Division Bench case of the London Trading Co. v. Madan Lal, 19 Deccan L.R 154 in which it has been held that under s. 20(c) the cause of action arises where the pltf. resides in the case of money suits based on contracts. This suit was based on a promissory note & it was held that the suit can be filed where the pltf. resides. The second case is of Kanniah Lal v. Skivnarayan, 29 Deccan L.R 30. This is a Single Bench ruling in which it has been clearly laid down that the debtor must find his creditor & the cause of acton arises where the pltf. resides. This suit was also based on a promissory note.
8. So far as this question is concerned, this question be looked at from the point of jurisdiction & for that purpose Section 20(c) of the CPC is relevant. Section 20(c) of the CPC, provides that the suit must be filed in that Court wherein the cause of action wholly or partly arises. Now the suits on promissory notes are suits based on contracts & where the place of payment is not fixed, the common law rule that the debtor must find his creditor applies & the cause of action arises where the pltf. resides & where he ordinarily carries on business. It was decided in the case in Tulsimam Bihi v. Abdul Latif Mia, 63 Cal. 726 that the suit on a contract can be instituted in the Court which has territorial jurisdiction over the place where the contract has to be performed & that the place of performance must be taken to be the place where the pltf. is residing on the principle that when the creditor is residing in the realm, the debtor must follow the creditor & pay him, unless there is a different contract between them & that Section 49 of the Indian Contract Act, does not get rid of inferences that should justly be drawn from the terms of the contract itself A the necessities of the case involving in the obligation of finding the creditor, so as to pay him. In this case Privy Council ruling reported in Soniram Jeetmull v. R.D Tata & Co. Ltd., 54 I.A 265 is relied upon. In the High Court of Lahore also in the case reported in A.I.R (26) 1939 Lah. 18 it was decided that this rule is applicable. The Nagpur High Court & the Bombay High Court have decided that this Common Law principle is not applicable. The reason given being that to hold otherwise will be to make it difficult for the debtor to find its creditor as a promissory note changes from one hand to another very easily. The Chief Justice of the Bombay High Court has observed that there is no binding authority on this question & has concurred with the opinion of the lower Court because of the above reason, but in my opinion, when it has been held by our High Court in the two cases referred to above that the principle is applicable even to the Negotiable Instruments, there is no ground for differing from that opinion which has been held since a long time by our High Court. Therefore, in my opinion, the doctrine that the debtor must seek his creditor must be made applicable even to the cases of Negotiable Instruments & when it is applicable the contention of the appellant that the City Civil Court, Hyderabad, has got no jurisdiction to hear this case fails. Next argument is that the burden of proof was wrongly laid upon the deft. & it is for the pltf. to prove that there was the consideration. Reliance is placed upon 35 Deccan L.R 78. But before going to this question, in my opinion, this contention cannot be raised because at the time when the issues were framed the burden of proof was laid upon the deft. The deft, aggrieved with this filed an application for the amendment of the issues & wanted that the burden of proof should be laid upon the pltf. The original Court refused to amend the issues & rejected the petition. The deft, came up in revision to the High Court & a Division Bench of this High Court on 11th Azur 1351 Fasli dismissed the revision & held that the burden of proof was rightly laid upon the deft. In view of this Division Bench ruling the appellant cannot now raise the question of the burden of proof. It is argued, relying upon A.I.R (27) 1940 Mad. 756 that the appellant can object to the decision of the High Court & he relies upon Section 105 of the CPC. In my opinion the contention of the Advocate for the appellant is not correct. Under Section 105 of the CPC it is provided that even as otherwise expressly provided 110 appeal shall lie from any order made by Court in the exercise of its original or appellate jurisdiction but where a decree appealed from an error, defect or irregularity in an order affecting the decision of the case may be set forth as a ground of objection in the Memo, of Appeal. This question enjoins that no appeal lies against an order even as otherwise expressly provided. In the case the order rejecting the amendment of the issues A changing of the burden of proof was not appeal-able. Therefore under the firs part of the Section there cannot be any appeal against this order. The Deft, filed a revision & the Division Bench of the High Court confirmed the lower Court's order. So the question whether there should be an appeal or not is not at all disputed. The second pari of the Section is that if there is no appeal against such appealable order then the question is whether objection can be taken about any error, defect or irregularity in the order in the appeal from the decree. It has been provided that where the decree is appealed from any error, defect or irregularity in the order affecting the decision of the case may be set forth as the ground of objection in the memo, of Appeal. This could have been done had the appellant not taken recourse to revision. But when it has been decided finally by the Appellate Court that the order challenged is right then the Appellant cannot object to the correctness of the High Court's decision & this section does not apply to such a case. In order to make this section applicable it is further necessary that the order must be an order affecting the decision of the case. Thia order rejecting the petition for the amendment of the issues dots not in any way affect the decision of the case.
9. Now as regards the rulings cited above, in my opinion, it is not at all applicable to this case. The facts of this case were that an application was made by 50 worshippers of a temple to the Madras Hindu Religious Endowments Board for an order directing an enquiry to be held on the question whether the board should frame a scheme for the administration of its temple & and as a result of the investigation decided that it was unnecessary to frame a scheme. The applicants then filed a suit with the object of obtaining the settlement of the scheme under the decree of the Court. The suit was defended by the trustees. The main objection was that the Court had no power to frame a scheme. On this question, the preliminary issue was framed and was answered by the Dist. J., in favour of the Plff. There upon the Deft, filed a revision. The High Court decided that the lower Court had erred in holding that the suit lay & in addition to allowing the petition the learned Judge dismissed the suit. On the order being communicated to the lower Court, the lower Court passed a formal decree dismissing the suit with costs. An appeal was filed from that decree. Preliminary objection was raised that the appeal does not lie. It was held in this case that the High Court instead of allowing the petition dismissed the suit. Therefore this decision, as it effects the decision of the case, there fore the objection that no appeal lay was overruled. In our present case such is not the case. It is not contended that there cannot be an appeal against decision of the lower Court & therefore this case is not applicable & moreover as in the case reported the decision was affecting the decision of the case, therefore, Section 105 of the CPC was applicable but in our present case the order was not such which affected the decision of the case. Therefore this case also is not applicable. As the facts of the case reported in A.I.R (27) 1940 Mad. 756 are quite different from the facts of this case, this case is not at all applicable ct neither section 105 of the CPC is applicable to this case. In view of these facts the contention of the Appellant that he can raise objection as regards the burden of proof is not maintainable. Therefore this contention also fails. In view of these facts, in my opinion, there is no force in the appeal which has been preferred by the deft appellant & therefore the appeal of the deft appellant is dismissed with costs.
10. Appeal dismissed.