S. K. MAL LODHA, J. - (1.) THE plaintiff-appellant has filed this appeal under O. XLIII r. l C. P. C. against the order dated July 26, 1971 passed by Additional District Judge No, 1, Jodhpur in Civil Original Suit No. 42 of 1968 directing the return of the plaint under O. VII r. 10 C. P. C.
(2.) THE relevant facts necessary for the disposal of the appeal are these: The plaint'ff appellant instituted a suit against the defendant respondent Panchayat Samiti, Nohar for Rs. 21,300/-in the Court of Senior Civil Judge No. l, Jodhpur. A tender notice (Ex. 3) dated July 6,1966 was published in "rastradoot" dated July 11,1966 and two other local news papers "sima Sandesh" and Senani" by Panchayat Samiti, Nohar. The prospective tenders were asked by the tender notice to obtain the list of articles from the Office of the Panchayat Samiti, Nohar. The last date for receiving tenders was July 25, 1966. The defendant had also sent a letter to Manoharlal & Company, of which, Manoharlal is the proprietor. Alongwith the letter dated July 18,1966, a copy of the tender notice dated July 6, 1966 containing the terms and conditions on which the prospective tenderers were required to submit their tenders for the wanted articles was also sent. Out of the conditions mentioned therein, conditions No. 1,4 and 5 may be reproduced: "1. Tenderers should specifically mention the rate of taxes etc; and should clearly disclose as to whether the supply of goods will be F. O. R. Nohar Railway Station or Godown; 2. In no case R/r or T/r will be accepted through Bank or V. P. P The payment will be made only after complete supply is made; and 3 Successful tenders shall have to supply goods ordered within a period of one month from the date of the receipt of the order". The plaintiff submitted tender quoting the rates of various articles for which the tenders were invited. It was sent by the plaintiff through registered post from Jodhpur. The tenders were opened on July 25,1966 by the defendant. As the rates quoted by the plaintiff for the following articles were lowest, the tender of the plaintiff with regard to those articles was accepted by the defendant: (1) Folding Chairs (Godrej type), (2) Folding tables, (3) Iron buckefs, (4) Iron almirahs, (5) Darri Patties. The defendant vide its letter (Ex. 4) No. 3563/acctts. dated July 30,1966 communicated the acceptance of the tender of the plaintiff in respect of the above mentioned articles from Nohar. It was received by the plaintiff at Jodhpur. The material portion of the letter (Ex. 4) dated July 30, 1966 may usefully be quoted: "your tender quotations having been found lowest with regard to the following articles, the same has been accepted by me and you are hereby ordered to supply following articles- the quantity of which is noted against each of the rates and on the terms noted in your tender quotations:- "note: (iv) All the items should be supplied immediately. " The plaintiff supplied the articles on various dates. Some dispute arose between the plaintiff and the defendant. The defendant made payment to the plaintiff for iron buckets but no payment for folding chairs and tables were made by the defendant to the plaintiff. Thereafter, the plaintiff served a notice under s. 75 of the Rajasthan Panchayat Samities and Zila Parishads Act, 1959. After the expiry of the statutory period of limitation of the notice, the plaintiff instituted a suit as aforesaid. It was contested by the defendant on various grounds. Amended written statement was filed on September 3,1969. One of the pleas with which I am concerned in this appeal is that the Court has no jurisdiction to try and determine the suit. Issues were framed by the trial Court on March 26,1970. Issue No. 7 when translated into English reads as under: "whether this Court is competent to hear the suit?" In connection with issues No 1 and 7, the statements of P. W. 1 Manoharlal and DW. l Moh-ansingh were recorded. The learned Additional District Judge by his order dated July 26, 1971 held that the Court has no jurisdiction to entertain the suit. He therefore, decided issue No. 7 against the plaintiff, and in favour of the defendant. He ordered that the plaint should be returned to the plaintiff under O. VII r. 10 C. P. C. for presentation to the Court, in which, the suit should have been instituted. The plaintiff was also directed under s. 35 C. P. C. to pay Rs. 100/- as costs to the defendant of this suit. Feeling aggrieved, the plaintiff has filed this appeal as aforesaid. Summons of the appeal was served on the defendant-respondent on January 20, 1972. Nobody has appeared on behalf of the respondent despite service of summons. I have heard Mr. D. S. Shishodia, learned counsel for the appellant in support of the appeal and have also gone through the relevant record of the case carefully. Mr. D. S. Shishodia, learned counsel for the appellant has challenged the finding on Issue No. 7 to the effect that the Court at Jodhpur has no jurisdiction to try the suit as erroneous on three grounds ; (i) that the letter (Ex. 4) dated July 30, 1966 communicating the acceptance was a counter offer, which was accepted by the plaintiff at Jodhpur and hence, the Court at Jodhpur has jurisdiction to try the case; (ii) that as the part of the cause of action arose at Jodhpur inasmuch as the goods were despatched from Jodhpur and the plaintiff sent R. R. to the defendant from Jodhpur and, therefore, the delivery being to the common carrier must be deemed to be the delivery to the buyer (defendant) and as such part of cause of act on arose at Jodhpur; and (iii) that from the letter dated October 24,1966. which was sent by the Vikas Adhikari, Panchayat Samiti, Nohar to the plaintiff, about which, there is no dispute between the parties, it is clear that the goods supplied by the plaintiff were rejected by the defendant and that on that count, payment was refused. The communication of rejection of goods and refusal to) pay are part of cause of action and as that was communicated to the plaintiff at Jodhpur, the part of cause of action arose at Jodhpur and, therefore, the Court at Jodhpur has jurisdiction to try the suit. Mr. Shi-shodia, learned counsel for the appellant submitted that for the purpose of determining the question of jurisdiction it is not necessary to confine to the averments made in the paras of the plaint relating to cause of action and jurisdiction, but all the averments made in the plaint necessary for the proper adjudication of the dispute between the parties should be carefully looked into and analysed. I have carefully considered the submissions made by the learned counsel for the appellant.
(3.) BEFORE I proceed to examine the correctness of the finding of the learned Additional District Judge, let me take note of the relevant averments made in the plaint having bearing on the question of jurisdiction. In para 6 of the plaint, the plaintiff has stated that the letter (Ex. 4) dated July 30, 1966 by which the acceptance of the tender was communicated was a counter offer, which was sent by post to the plaintiff and it was received at Jodhpur. In para 13 of the plaint, reference of letter No. 5642 dated October 24,1966 has been made and the facts stated therein have been disputed. In para 16 of the plaint, the plaintiff has stated that the Court at Jodhpur where the suit has been instituted has jurisdiction to hear it, for, the letter (Ex. 4) dated July 30, 1966 was a counter offer, which was accepted by the plaintiff at Jodhpur and that the entire goods were delivered to the Railway at Jodhpur and that the Railway Receipts were endorsed in favour of the defendant by the plaintiff at Jodhpur. According to the plaintiff, the cause of action arose at Jodhpur when he received the letter (Ex. 4) dated July 30, 1966 which was a counter offer and when the folding chairs and tables were delivered to the Railway at Jodhpur. In reply to paras 16 and 18 of the plaint, the defendant has stated that the offer made by the plaintiff was accepted by the defendant at Nohar and, therefore, a binding contract came into existence at Nohar. It was further pleaded that the goods were to be delivered at Nohar and the contract was to be performed at Nohar and, therefore, no part of cause of action arose at Jodhpur. In these circumstances, it was contended that the Court at Jodhpur has no jurisdiction to hear the suit. The firs and formest question that arises is whether by acceptance of the tender by means of the letter (Ex. 4) dated July 30,1966, a complete and binding contract came into existence or the aforesaid letter (Ex 4), as there was a variation of the term regarding the period of the delivery of the goods, was merely a counter offer sent to the plaintiff by the defendant which was accepted by the fromer at Jodhpur and so, the binding contract after acceptance of the counter offer come into existence at Jodhpur and, therefore, the Court at Jodhpur has jurisdiction to hear the suit. A perusul of the letter (Ex. 4) shows that the tender quotations were accepted and the plaintiff was ordered to supply the articles mentioned therein, the quantity of which was noted against each, at the rates and on the terms noted in the tender quotations. Below that, there are "note" and Note No. (iv) is that "all the items should be supplied immediately," whereas in the tender notice (Ex. 3) clause 5 is that "successful tenderers shall have to supply goods ordered within a period of one month from the date of the receipt of the order. " In these circumstances, the question is whether there was any variation between clause 5 of the tender notice (Ex. 3) and Note (iv) of the letter (Ex. 4 ). S. 55 of the Indian Contract Act deals with time for performance of the contract and provides for (i) Effect of failure to perform at fixed time, in contract in which time is essential; (it) Effect of such failure when time is not essential; and (iii) Effect of acceptance of performance at time other than that agreed upon. ;