Jagat Narayan - (1.) THIS a revision application by Dwarkadas, Kishangopal and Dhanraj defendants against an appellate order of the District Judge Bikaner setting aside an order of the Civil Judge Bikaner for returning the plaint for presentation to proper court on the ground that he had no jurisdiction to try it as the defendants did not actually and voluntarily reside within his jurisdiction.
(2.) THE facts which are necessary for the disposal of the present revision application are these. Hanuman Das plaintiff instituted a suit against 9 defendants for the recovery of a sum of Rs. 5225/7/6 in the court of the Civil Judge Bikaner on the allegation that they were partners in a firm Baneychand Suganchand with which he had deposited a sum of Rs 9500/- at Calcutta on 28.3.50, that a sum of Rs 6054/4/- has been paid to him on different dates in repayment of the amount and that the balance was not paid in spite of demand. The suit was brought for the recovery of the balance of the principal together with interest. It was asserted that the plaintiff as well as the defendants resided in Bikaner. The suit was contested by five of the defendants Nos. 1,2,3,5 and 7. All of them pleaded inter alia that they were not residing within the jurisdiction of the court as required by sec. 20 C.P.C. and it had consequently no jurisdiction to try the suit. Six issues were framed by the learned Civil Judge in the case. One of these issues related to the question of jurisdiction. Evidence of the parties was recorded on all these issues. With regard to the issue on the point of jurisdiction the ridding of the learned Civil Judge was: - "As all the defendants were not residing within the jurisdiction of this court and as no leave has been obtained to Sue the non-resident defendants, this suit is not triable by this court." He accordingly ordered the plaint to be returned for presentation to the proper court. Against this order the plaintiff preferred an appeal in the court of the District Judge. Before him the plaintiff moved an application for permission to sue the nonresident defendants at Bikaner court under sec 20(b) C.P.C. This permission was granted by the learned District Judge and the suit was remanded to the trial court for decision on merits. Against ' the above order the present revision application has been filed. It is contended on behalf of the applicants that permission could not be granted by the appellate court as no application for grant of such permission had been moved in the trial court. Reliance is placed on the following opinion expressed by Chitaley in the Commentary on C.P.C. in Note 12 to sec. 20: - "The leave may be given even after the decision of the preliminary issue as to jurisdiction, but before the plaint is ordered to be returned for presentation to the proper court." In support of this proposition the learned author has referred to the case of Nathumal vs. Noor Ahmad (1). In that case there were two sets of defendants. The plaintiff had not initially applied for leave under sec. 20(b) C.P.C. to sue the first set of defendants. A preliminary issue was raised on the question of jurisdiction with regard to the defendants who were not residing within the territorial limits of the court and the learned Judge came to the conclusion that he had no jurisdiction to entertain the suit as against the first set of defendants. On that decision being given an application was made to him for permission being granted under sec. 20(b) C.P.C. But he declined to grant it merely on the ground that the application for leave should have been made before he had decided the preliminary issue of jurisdiction. The learned Judges who decided the case observed: - "The learned pleader who appears for the first set of defendants has been unable to support this decision or to draw our attention to any decided case which limits the discretion of the trial Court to grant leave where an application for leave is made after the passing of a judgment on a preliminary issue, but before the plaint is ordered to be returned for presentation to the proper Court. In this case, there is no question about the learned Judge having exercised a discretion which may not be lightly interfered with in appeal. He has refused to exercise his discretion, and it is abundantly clear from the facts of this case that it was a fit case for the exercise of such discretion. The plaintiff could not get any relief at Dusdap, as both sets of defendants had stopped doing their business at Dusdap and were now residing in British India. It was too much to expect the plaintiff to file the suit in any Court in British India other than the Sukkur Court. So far as the first set of defendants were concerned, they were living in four different places, and if the plaintiff had filed his suit in a place in which one of the first set of defendants were residing the other three persons constituting the first set of defendants would have immediately objected to being sued in that place. The most convenient place for trial of the suit was therefore where the second set of defendants resided and carried on their business. Under the circumstances the order passed by the learned Judge cannot possibly be maintained and must be set aside. The leave which has been refused by the learned Judge below is now granted to the the plaintiff, and the suit is sent back to him for trial on the remaining issues in the case." There is nothing in the above judgment to warrant an inference that leave cannot be granted by the appellate court after the plaint is ordered to be returned by the trial court. Under sec. 107 C.P.C. the appellate court has all the powers as are conferred on courts of original jurisdiction I see no reason why the appellate court cannot grant leave under sec. 20(b) in appropriate cases. It is not disputed that such leave can be granted by the trial court even after the institution of the suit. In this connection the decisions in Ramdeva vs. Rajasthan State (2) and Narayan Shankar vs. Secretary of State (3) may be referred to. If such leave can be granted by the trial court after the institution of the suit it can certainly be granted by the appellate court. I accordingly hold that the lower appellate court was within its jurisdiction in granting leave under sec. 20(b) C.P.C. in the present case. According to the contention of the applicants the contesting defendants reside at three different places namely Calcutta, Golaghat and Helam, the last two places being in Assam. All these defendants have been proved to be permanent residents of Bikaner and all of them have their ancestral house there which they visit from time to time. Out of the three applicants service of summonses in the present suit on Kishan Gopal and Dhan Raj applicants Nos. 2 and 3 was made at Bikaner. Their witness Asha Ram admitted in cross-examination that when his evidence was being recorded Dhan Raj was in Bikaner and his wife and son were also there. The plaintiff is a resident of Bikaner. Taking these facts into consideration Bikaner is the most appropriate place where the plaintiff should be permitted to sue all the defendants in respect of the present cause of ation. In the result the order of the lower appellate court is confirmed and the revision application is dismissed with costs. Let the record be returned to the trial court so that the suit may be proceeded with. ;