A.P. Srivastava, J. - (1.) This appeal has come to us on a reference made by Mr. Justice Gupta.
(2.) The respondent Mohammad Hanif filed a suit in the Court of the Munsif of Bijnor for the recovery of Rs. 1,141-14-0 from the appellant on the allegation that in pursuance of an order of the appellant the respondent had supplied the goods in question but the appellant had not paid the price. The suit was contested on merits and the appellant also raised the question of jurisdiction. He contended that the Court of the Munsif of Bijnor had no jurisdiction to entertain the suit. His contention was that he resided at Calcutta and as the order was placed at Calcutta and the price was to be paid there only the Calcutta Courts had jurisdiction to entertain the suit. Several issues were framed by the Munsif and one of them related to the question of jurisdiction. Some evidence was necessary for deciding the question of jurisdiction and that evidence would have been common to the other issues too. Learned counsel for the parties, therefore agreed that the question of jurisdiction should be decided along with the other questions in the case, i.e. after the evidence had been recorded. The Munsif, therefore, recorded the evidence of the parties and took up the case for decision. He answered the issue of jurisdiction against the plaintiff but proceeded to record his findings on the other issues also and found that the plaintiff was entitled to a decree for the amount claimed. As a result of his finding on the question of jurisdiction, however, the learned Munsif directed that the plaint be returned for presentation to proper Court.
(3.) Against this order of the learned Munsif the plaintiff-respondent filed an appeal before the District Judge. The appeal was heard by the Additional Civil Judge of Bijnor. The appeal had been filed under Or. XLIII, R. 1, C.P.C. as a miscellaneous appeal against the order returning the plaint for presentation to proper Court. It, however, appears that the appeal was argued not only on the question of jurisdiction but also on the other issues in the case. The learned Civil Judge differed from the learned Munsif on the issue of jurisdiction. He held that the Munsif had jurisdiction to try the suit. In respect of the other findings, however, the view of the learned Munsif was endorsed. The appeal was, therefore, allowed and the suit of the plaintiff-respondent was decreed with costs. Against that decree this second appeal was filed in this Court. When it came up before Mr. Justice B.D. Gupta for hearing he felt doubtful whether in the miscellaneous appeal against the order directing the plaint for presentation to proper Court the learned Civil Judge could go into merits and pass a decree in the suit itself. No reported decision was brought to the notice of the learned Judge. As he thought that an authoritative pronouncement on the question was needed, he referred the case to a Division Bench. That is how the case has come up before us.;