- (1.) THIS is a revision by the plaintiffs against an order of the Civil Judge, Balotra, dismissing an appeal against the order of the Munsif Balotra, directing return of the plaint for presentation to a proper court.
(2.) THE petitioners filed a suit against the opposite party in the court of Munsif Balotra on the allegations that plaintiffs Nos. 1 to 4 had entrusted a certain stack of hay to the defendant on Posh Sudi 12 Smt. 1998 at Baitu under an agreement of that date and later on sold half share of that stack to plaintiffs Nos. 5 and 6 by executing a deed at Balotra on Baisakh Sudi 15 Smt 2002 and thereafter when the plaintiffs asked the defendant to hand back the stack of hay on Baisakh Sudi 15, Smt. 2002, he failed to do so. Plaintiffs claimed Rs. 400/- as damages on account of what they alleged to be the wrongful conversion of goods. THE relevant portion of para 3 of the plaint on which the two courts have passed their order is as follows: - "when the plaintiffs demanded the stack of hay, the defendant neither complied with the terms of his agreement nor handed over the stack of hay and by this committed wrongful conversion for which the defendant is responsible to pay the current price of the goods to the plaintiffs which amounted to Rs. 400/. " THE English words 'wrongful conversion' are mentioned in that paragraph of the plaint which is otherwise in Hindi. THE relevant portion of the agreement of Smt. 1998 Ex. P- referred to in the plaint is as follows : - "this document executed by Moda of Baitu in favour of Pratap Mal, Misrimal, Kesrimal and Sohan Raj : whereas I have today given you one stack of hay towards payment of my debt and it is lying to the west of my Dhani, it is (now) yours. But I shall keep watch over it and will cover it. If it is spoiled by rains or eaten away by animals I shall pay its price. I am responsible for it and if any damage occurs,'i shall pay it. " The defendant contested the suit and pleaded inter alia that the court of Munsif at Balotra where the suit had been instituted had no jurisdiction to entertain it. The learned Munsif accepted the defendant's plea on the ground that the suit as framed was one in torts for damages for wrongful conversion of property and could only be instituted under sec. 19 of the Civil Procedure Code in the court which had jurisdiction either at the place where the wrongful conversion took place or where the defendant resided or carried on business or personally worked for gain. It was held that the village Baitu where the conversion took place or where the defendant resided or carried on business or personally worked for gain was not within the jurisdiction of the Balotra court but was within the jurisdiction of the court of Munsif at Barmer. Learned Munsif also held that the assignment of half share alleged to have been made at Balotra was invalid and did not furnish any cause of action as it was a transfer of claim in torts. The learned Munsif ordered that the plaint be returned to the plaintiffs for presentation to the proper court. In appeal it was argued that the suit was for damages for breach of the contract and not in torts, but the learned Civil Judge agreed with the opinion of the lower court and maintained the order of the lower court. In this revision it was contended that the suit as framed was one for damages for breach of contract and it had been wrongly construed as one for damages for wrong done to movable property and that the place of suing should be determined with reference to sec. 20 of the Code of Civil Procedure. This contention is correct. The allegations in the plaint show that the defendant in payment of his debt made over a stack of hay but as it could not be carried away by the plaintiffs, he agreed to keep it in his possession and to see that it was safe till the plaintiffs took its delivery. The position of the defendant was that of a bailee and the allegations in para 3 amounted to a statement that on demand the defendant neither handed back the stack of hay nor paid its price as agreed upon. The further statement that such action of the defendant amounted to wrongful conversion was only a notion of the plaintiffs and perhaps introduced to obtain sympathy of the court by imputing dishonesty to the defendant. This was, however, the plaintiffs' own inference from facts and was irrelevant. The two courts have erred in considering the suit to be one for damages for wrong done to movable property to which sec. 19 of the Code of Civil Procedure could apply. The suit was, as staled above, for damages for breach of contract and the place of suing was to be determined with reference to the provisions of sec. 20 of the Civil Procedure Code. The defendant admittedly resided or carried on business or personally worked for gain at Baitu outside the jurisdiction of Munsif at Balotra and Clauses (a) and (b) would not assist the plaintiffs. In considering the applicability of Clause (c), it may be observed that it was the case of the plaintiffs that the contract and its breach also took place at Baitu. It was, however, argued that the assignment of half share of the stack of grass was made at Balotra and this was a part of the cause of action in respect of the claim by the plaintiffs 5 and 6 under Clause (c) of sec. 20 of the Code and the suit could be instituted in the court at Balotra. Learned counsel for the petitioners relied on Harnath Rai vs. Churamoni (A. I. R. 1934 Cal, 175 ). Dilbagh vs. Walu Ram (A. I. R. 1933 Lah. 940) and Wadhumal vs. Malik Noor Ahmed (A. I. R. 1933 Sind 179) for the proposition that a court having jurisdiction at the place where the assignment of any contract was made had jurisdiction to entertain the suit in respect of the said contract. The authorities are, however, distinguishable. In Harnath Rai's case, Ameer Ali J. , while holding that the place of the assignment of the debt was a place where part of the cause of action arose, observed that he did see difficulties in the present system under which an assignor could create jurisdiction in any place where the Civil Procedure Code applies but added that he did not trunk it was right for him to attempt to change that system. It may be pointed out that the observations were made in connection with the applicability of Clause (12) of the Letters Patent and whether the leave granted to sue on account of the arising of the part of the cause of action within the jurisdiction could be revoked on objection by the defendant. The difficulties stated above have been attempted to be removed by holding in various cases that in considering the question whether the leave granted ought to be revoked or not the question of convenience was a material factor and that the nature of the suit must also be taken into consideration. The question of comparative expenses was also held to be a material factor. Sess Chetan Das Matta vs. Qutub Din Khan, (I. L. R. 1948 I Cal. 122 at page 127 ). In that case both the drawer and the drawee of the promissory note were residing at Dera Ismail Khan where the promissory note was drawn. An assignment of the pro-note was made at Calcutta in favour of the plaintiff who obtained leave under Clause (12) of the Letters Patent to sue the non-resident defendants at Calcutta, and on application by defendants the leave was revoked. In Dilbagh Rai's case, the assignment was of a promissory note and the District Judge on appeal held that the court of the place where the assignment had taken place had jurisdiction to hear the suit. This view was upheld by Bhide J. although the revision was dismissed on another preliminary ground that the District Judge having jurisdiction to decide the appeal, no revision was maintainable even if the decision was erroneous. In Wadhumal's case reliance was placed on Reed vs. Brown (22 Q. B. D. 128) and the place of the assignment of the debt was held to be the place where a part of the cause of action arose and the court of such place had jurisdiction to entertain the suit. In this case the second set of defendant lived within the jurisdiction of the court and an application for permission to sue the first set of defendants who were non-residents was granted by the Judicial Commissioner and as observed in the case, it was hardly necessary to deal with the question whether the suit could be instituted in a court within whose jurisdiction the deed of assignment of a debt sued upon had been executed. Certain observations are, however, found in Jupiter General Insurance Company Ltd. vs. Abdul Aziz (1924 Rangoon 2) which did not approve of the reasoning that assignment alone will give jurisdiction in the place where the assignment took place. After referring the be decision in Reed vs. Brown it was observed : "the result or the adoption of that ruling in India would be that if A, a merchant in Rangoon owed B, another merchant in Rangoon, a debt contracted in Rangoon and payable in Rangoon and if B assigned that debt to C in Karachi, C could sue A in Karachi. Such a result would be entirely contrary to the intention of the framers of the Code of Civil Procedure and could not possibly have been contemlated by them " Since the present is not a suit for recovery of money on the basis of an assignment of any promissory note or a money debt, it is not necessary to express any opinion on the question of law which has been dealt with in the above cases and it may only be stated that they are not applicable on the facts of the present case. In the present case there is no assignment of any debt and plaintiffs Nos. 5 and 6 are vendees of half of the stack of hay which was entrusted to the care of the defendant at Baitu and was to be redelivered at that place. The entire cause of action, in our opinion, arose at Baitu where the goods were entrusted to Moda and where the nondelivery took place. In the present Civil Procedure Code there are only two Explanations to sec. 20. The previous Code had a third Explanation, which was to the following effect: - "in suits arising out of contract cause of action arises within the meaning of this section at any of the following places: - (1) the place where the contract was made; (2) the place where the contract was to be performed or performance thereof completed; (3) the place where, in performance of the contract, any money to which the suit relates was expressly or impliedly payable. " As observed in [arthur Butler & Co. vs. District Board, Gaya (A. I. R. 1947 Pat. 134), "the tests mentioned in that explanation are still good tests although the explanation has been omitted. " The plaintiffs have created another difficulty for themselves in so far as only half of the share in the stack of hay had been assigned to plaintiffs 5 and 6. As regards the plaintiffs 1 to 4, the entire cause of action according to any view of the matter arose at Baitu and it is only in respect of plaintiffs Nos. 5 and 6. that an argument could be advanced that a part of the cause of action arose within the jurisdiction of Balotra court. The cause of action against the defendant could not be split in two and as the cause of act;on to plaintiffs 1 to 4 arose entirely at Baitu in any case, the whole suit could only be brought in a court having jurisdiction at Baitu and which was the court of Munsif, Barmer in this case. As a result, we agree with the decision of the lower court although on different grounds that the court at Balotra had no jurisdiction and the order passed by that court for return of the plaint is correct. This revision fails and is dismissed with costs. . ;