Chaturvedi, J. -
(1.) THIS is first appeal by the defendants from a decree for Rs. 11,588 passed by the District Judge, Ujjain, against them in favour of the plaintiffs. The defendants are film producers known as Messrs. Prem Adib Pictures of Bombay. Defendant 2 Prem Adib is the sole proprietor of Messrs. Prem Adib Pictures. The defendants produced a film 'Dehati' and wanted that this film be distributed in Madhya Bharat, Madhya Pradesh, Berar and Rajputana through the plaintiffs, who are proprietors of New Sound Pictures, Madho Nagar, Ujjain.
So by an agreement dated 2 -7 -1947 (Ex. P. 3) the plaintiffs were appointed as agents of the defendants for the distribution of the cinema film 'Dehati'. The main terms of the agreement were that the plaintiffs as agents would give to the principal the sum or Rs. 45,000 as minimum guarantee in several instalments; the first instalment of Rs. 5,000 was to be paid on signing the agreement; then Rs. 7,500 on or before 15 -7 -1947, for advance publicity materials; then Rs. 20,000 on the delivery of prints and publicity materials on or before 21 -8 -1947 in Bombay; and then the last instalment of Rs. 18,500 was to be paid within sixty days from the date of the receipt of the prints.
Then, there were other terms in the contract, out of which only two material for the purposes of this appeal, are embodied in clauses 11 and 14 of the agreement. The first is that in case the principal sold the said picture in the said territories on outright sale basis to any other party the agents would be entitled to 5% commission on the sale price. The second was that any dispute arising out of the agreement would be settled in Bombay.
The plaintiffs' case is that on 2 -7 -47 they paid Rs. 5,000 but the advance publicity material was not ready with the defendants till 23 -7 -1947. Therefore, plaintiff 4 Baboolal Sarda met on that date Prem Adib in Bombay and paid Rs. 4,000 and agreed that the remaining sum of Rs. 3,500 could be realised by the defendants by sending the publicity material to Ujjain either by V. P. P. or through a Bank. The said material was not sent to the plaintiffs by the defendants who on 6 -9 -47 rescinded the contract and the defendants before this date had already made an outright sale of 'Dehati' film to another firm for a sum of Rs. 75,000.
The plaintiff's, therefore, claimed the sum of Rs. 9,000 which they had paid to the defendants plus Rs. 3,750 on the basis of 5% commission and Rs. 88 as interest on Rs. 9.000 at the rate of 8 annas P. C., per month. The plaintiffs thus filed a suit for Rs. 12,838 as stated above. The Court below has decreed the suit for Rs. 11,588.
(2.) THE defendants resisted the suit on several grounds; according to them, on behalf of the New Sound Pictures, Madho Nagar, the agreement was entered into by Baboolal Sarda, plaintiff 4 and one Narendra Dheer. But Narendra Dheer was not joined as a plaintiff and so there was non -joinder of necessary party. Tie defendant further alleged that the two persons represented to them that they were the only representatives of the New Sound Pictures, Madho Nagar, and plaintiff 2 Laxmansingh and plaintiff 3, Ram Prasad could not have been plaintiffs and the suit was, therefore bad for misjoinder of parties.
It was, further, alleged that the Ujjain Court had no jurisdiction as, according to the terms of the contract, the suit could be filed only at Bombay. The defendants also alleged that the contract was broken not by them but by the plaintiffs, that the plaintiffs were bound to pay them Rs. 7,500 on 15 -7 -47; that on their failure to pay this amount on the said date a telegram was sent to them on 22 -7 -1947, and the contract was cancelled. On 23 -7 -1947 Plaintiff 4 Baboolal Sarda then came to Bombay, paid them Rs. 4,000 and assured them that the remaining sum of Rs. 3.500 would be paid the next date but that money was not paid on 24 -7 -1947 and so the defendants after waiting for some time cancelled the contract on 9 -8 -1947.
They further maintained that the plaintiffs themselves were responsible for the breach of the contract and the sum of Rs. 9,000 paid to the defendants was liable to be forfeited. It was, further, alleged that the film had not been sold to anybody on outright sale basis and therefore the plaintiffs were not entitled to any commission.
On these pleadings several issues were framed by the Court below which dealt with the questions of jurisdiction, non -joinder and misjoinder of parties and about the new contract to pay the sum of Rs. 3,500 on 24 -7 -1947; whether advanced publicity material was ready with the defendants whether there was outright sale of 'Dehati' film to some one else and whether the sum of Rs. 9.000 was liable to be forfeited.
(3.) IN my opinion the question regarding the jurisdiction of the Ujjain court to try this case was important and ought to have been decided by the District Court as a preliminary issue. This would have saved much of the waste of time and energy of the Court and the parties. As I have formed my opinion upon the question of jurisdiction I do not think it proper to express any opinion on other points.;