MAHESH AGARWAL Vs. JAYSHREE TRADING COMPANY

JUDGEMENT

(1.) Being aggrieved by the order passed by the learned Additional District Judge directing the return of the plaints in two suits being Nos. 72 and 73 of 1980 between the same parties, the plaintiff has filed these two appeals challenging the said order. This judgment shall govern both these appeals in both of which the only question involved is whether the learned Judge was right in ordering the return of the plaints in the two suits on the ground that as neither the defendants reside nor any part of the cause of action arose within the jurisdiction of the Courts in Sikkim, the Court below has no jurisdiction to entertain the suits.

(2.) Whether a Court has jurisdiction to try a suit is generally to be determined on the evidence on record. But if such question is raised and pressed by the defendant before issues are framed and evidence is recorded, then the Court in deciding such questions has got to proceed on the basis of the allegations made in the plaint and on the assumption that those allegations are true in fact. In asking the Court to decide a question like this before issue are struck and the trial begins, the defendant must be taken to have admitted though for the purpose of deciding that question only, that the allegations made by the plaintiff in the plaint are true modo et forma. As pointed out by the Privy Council in Kanhayalal v. National Bank of India Ltd., ((1913) ILR 40 Cal 598 at p. 609), in so doing the defendant no doubt reserves to himself the right to show that these allegations are wholly or partially false in the further stage of the action, if the question is decided against him. But if the question is raised at any earlier stage before framing of the issues and recording of evidence, then for the determination of the question at that stage "everything contained in the plaint must be taken to be true as stated."

(3.) The case of the plaintiff-appellant in both the suits is that the plaintiff sent a consignment of cardamom from Gangtok to the defendant at Delhi to be sold by the defendant as the Aratia or Commission Agent of the plaintiff and that though the defendants sold them and plaintiff and that made some payment to the plaintiff, some more amount is still payable to the plaintiff by the defendants. The plaintiff has asserted in his plaint that, as per agreement between the parties, the defendants were bound to submit the accounts and to send the sale-proceeds to the plaintiff at Dickchu (vide. paragraph 4 if the plaint in Suit No. 72) and at Gangtok (vide. paragraph 9 of the plaint in No. 73), both admittedly within the jurisdiction of the Court below. If the plaint are to be accepted as true at this stage, then it is difficult to hold, as has been held by the learned trial Judge, that no part of the cause of action arose within the jurisdiction of the trial Court.