Chhangani, J. -
(1.)THIS is a plaintiffs' revision against an appellate order of the District Judge, Bharatpur, dated 8th September, 1955, dismissing the plaintiff-petitioners appeal and maintaining the order of the Civil Judge, Bharatpur dated 22nd November, 1954 returning the plaint for presentation to the proper court.
(2.)THE facts of the case broadly stated are as follows: - THE plaintiff-petitioners, Balloram and Varyamal claim to be the proprietors of a firm Bansiram Balloram which at one time carried on business in Sibi Baluchistan, now a part of Pakistan. THE defendant-non-petitioner no. 1, Seth Uttamchand Bishandas is a firm carrying on business as commission agents and bankers at Meerut in Uttar Pradesh. THE defendants no. 2 to 6 who are non-petitioners in the revision petition, viz. Kishandas, Ramdas, Pehumal, Tekchand, Joturam and Jethmal, are said to be its partners.
The plaintiffs' case is that they appointed the defendants' firm as their commission agents for the purchase of jaggery in November-December, 1946 and in that connection, paid various sums of money to the defendant firm either in Pakistan or at Meerut. According to the plaintiffs, it was agreed that the defendants would render accounts and arrange payment of the balance that may be found due to the plaintiffs at Sibi in Pakistan. On Asad 18, Samwat 2004 corresponding to 8th August, 1947, the defendant firm sent an account to the plaintiffs' firm at Sibi according to which the defendant firm acknowledged an amount of Rs. 10,825/- as due to the plaintiffs and for the payment of the same amount, they sent two Hundis to the plaintiffs' firm at Sibi. The plaintiffs' firm, however, did not think it proper to take payments under the Hundis and returned them to the defendant firm with a direction that the amount may be kept in deposit with the defendants and that the plaintiffs would be coming to Meerut for purchase of jaggery and would require the amount in that connection. Subsequently, in consequence of partition, the plaintiffs had to leave Pakistan and come over to India and, therefore, they could not utilize the amount for the purchase of jaggery and the amount remained in deposit with the defendant firm carrying interest at the rate of 6% per annum. The plaintiffs alleged having received Rs. 8,000/- on different dates and claimed that the amount of Rs. 2,825/- remained due. The plaintiffs' case further is that they have settled at Bharatpur from where they made a demand of payment from the defendants. They also served a notice dated 20th June, 1950, upon the defendants, but the defendants paid ho heed. They also drew a Hundi for Rs. 1,500/- on the defendant firm to secure payment, but the same was not honoured by the defendants. They accordingly filed a suit for the recovery of Rs. 2,825/- as principal and Rs. 815/- as interest, total Rs. 3,640/-in the court of the Civil Judge, Bharatpur on 1st July, 1950.
The defendants resisted the plaintiffs' suit and, inter alia, pleaded that the court of the Civil Judge at Bharatpur had no jurisdiction to entertain the suit. They denied the agreement set up by the plaintiffs for rendering accounts and paying dues at Sibi and further pleaded that the cause of action did not arise either in whole or in part in any area now forming part of Pakistan. The parties are agreed that in case of the cause of action having wholly or partly arisen in any area which now forms the part of Pakistan, the plaintiffs would be entitled to institute a suit in a court having jurisdiction over the place of residence of the plaintiffs in accordance with the provisions of the Displaced Persons (Institution of Suits) Act, 1948 as amended from time to time.
The trial judge held that no part of the cause of action arose in Sibi and that the suit could not be instituted in his court. He, therefore, directed the return of the plaint. It will be useful to give here the various grounds on which the plaintiff attempted to give jurisdiction to the court at Bharatpur and the findings of the Civil Judge on those grounds : - In the first instance, it was urged that the return of the Hundis from Sibi by the plaintiffs with a direction that the amount sought to be paid through Hundis might be kept at Meerut, amounted to the making of an offer to the defendants and, therefore, the cause of action partly arose at Sibi on account of the offer having been made at the place. The trial Judge after referring to a number of cases held that an offer becomes complete only when it comes to the knowledge of the persons to whom the offer is made and, therefore, the offer should be deemed to be made at the place, where it comes to the notice of that person and not at a place from where it is despatched, and, therefore, it could not be said to have been made at Sibi and no part of the cause of action arose there.
Secondly, the plaintiffs relied upon a special agreement to the effect that the accounts would be rendered at Sibi and the balance would be paid there. The trial Judge rejected this ground by a two fold argument : (a) that the deposit of the amount with the defendants had nothing to do with the agency business and should be treated as a separate transaction, and (b) that the fact of agreement cannot be accepted, particularly in view of a condition entered in Ex. P. 1 on which the suit was based, reading, ''subject to the jurisdiction at Meerut. "
Lastly, the common law principle that "a debtor should find the creditor" was relied upon by the plaintiffs. Dealing with this plea, the trial Judge held that there was no relationship of creditor and debtor between the parties.
On these findings, the Civil Judge, Bharatpur based his order directing the return of the plaint.
The plaintiffs filed an appeal in the court of the District Judge, Bharatpur which affirmed the findings of the trial Judge and dismissed the appeal. The plaintiffs have consequently filed this revision.
(3.)THE ground based upon a special agreement cannot be pressed in this revision as it involves a pure question of fact. THE findings of the courts below must be taken as binding and cannot be allowed to be agitated in revision.
The other contention with regard to the part of a cause of action having arisen at Sibi on account of the offer having been made from that place is also without any force. There are number of authorities including, Baroda Oil Cakes Traders vs. Parshottam (1) relied upon by the lower appellate court, which conclude the matter. The learned counsel for the petitioners had not much to say on this ground.
However, the third ground based on the common law rule, "the debtor must find the creditor" has been pressed before me with great strenuousness. It was urged that the conclusion reached by the courts below that there is no relationship of creditor and debtor between the parties is perverse and is in clear disregard of the elementary principles of law on the point and the courts below, therefore, went completely wrong in omitting to apply the common law rule, "the debtor must find the creditor". It was argued in this connection that the amount was in the first instance deposited with the defendant firm to be utilized by the plaintiffs for the purchase of jaggery, but when it became impossible for the plaintiffs to utilize the amount, it was converted into a loan and there developed a relationship of creditor and debtor between them.
Mr. Joshi on behalf of the non-petitioners repudiated this contention with equal vehemence and contended on the basis of certain cases which will be referred to in due course that the technical rule of common law cannot be applied in India and that the parties did not stand as creditor and debtor.