S. K. MAL LODHA, J. - (1.) BY this appeal under O. XLIII, r. 1 (a) C. P. C. , the plaintiffs-appellants question the correctness of the order dt. March 31, 1981 of the Additional District Judge, Bhilwara, by which he directed for return of the plaint to be presented to the court in which the suit should have been instituted.
(2.) COPIES of the original plaint, written statement, amended plaint, amended written statement, application under amended O. VI, r. 17 C. P. C. and issues were placed for my perusal by the learned counsel for the appellant. The correctness of these copies was not disputed by the learned counsel for the respondent. The plaintiff-appellant Laxman Singh instituted suit for Rs. 10010/-against the defendant's respondent alleging that his unmarried son Mahendra Singh was insured with the defendant for Rs. 10000/- by two life insurance policies of Rs. 5000/- each, that Mahendra Singh died on June 17, 1969, and that after the death of Mahendra Singh, demand for the amount of the sum assured was made from the defendant, but it was not paid. Therefore, he instituted the suit for Rs. 10010/-, consisting of Rs. 10000/- being the sum assured and Rs. 10/-as expenses against the defendant in the Court of District Judge, Bhilwara on May 2, 1972. In para 6 of the original plaint, it was inter alia stated that part of the cause of action arose on June 17, 1969 when Mahendra Singh died and that as the Branch Office of the defendant is situated at Bhilwara, the court has jurisdiction to hear the suit. The defendant filed the written statement on July 25, 1972 contesting the suit. Para 6 of the plaint was denied stating that no part of cause of action has accrued to the plaintiffs against the defendant. It was, however, stated that "the jurisdiction of this Hon'ble Court however is not challenged. " Issues were framed on Jan. 31, 1973. Thereafter, an application was moved on behalf of the defendant on March 30, 1973 for amendment of the written statement. It was stated in the application that in para 6 in place of the words "the jurisdiction of this Hon'ble court however is not challenged", permission may be accorded for substituting "this Hon'ble court has no jurisdiction to hear and decide this suit. " Permission for amendment of the written statement was accorded and the amended written statement was filed on November 6, 1975. In the amended written statement in para 19, an objection was also raised that the plaintiff Laxman Singh is not competent to bring the suit in respect of Policy No. 6998127 dated January 13, 1964 as at the time of death, the deceased had left his mother as heir according to Schedule I of the Hindu Succession Act and the claim in respect of the policy deserves to be dismissed on this score alone. On this objection being raised, the learned District Judge by his order dated April 15, 1977 permitted the plaintiff to amend his plaint by impleading Smt. Deep Kumar w/o Laxman Singh mother of Mahendra Singh as plaintiff No. 2 and the amended plaint was filed on April 16, 1977. On the basis of the amended written statement, issue No. 4 was framed by the learned District Judge on November 1,1973, which is as under :- "whether this court has jurisdiction to hear and decide the suit?" The plaintiff examined P. W. 1 Deep Kanwar and P. W. 2 Laxman Singh in support of their claim. The defendant examined D. W. I Motilal, D. W. 2 Shiv Kumar Sharma, D. W. 3 Bhikam Chandra. D. W. 4 Dr. Janki Prasad, D. W. 5 Dr. Mahehandra Saxena and D. W. 6 Dr. S. B. Joshi. After trial the learned Additional District Judge has recorded the following findings :- (1) that Mahendra Singh was the unmarried son of the plaintiff; (2) that plaintiff No. 2 of Smt. Deep Kanwar has a right to bring the suit in respect of both the policies and plaintiff No. 1 Laxman Singh was entitled to bring the suit in respect of Policy No. 25349018, which was issued in 1968 as nominee. The contract under the policy was not null and void for the reason that in the personal statement made by the assured Mahendra Singh at the time of making the proposal for insurance he suppressed that he was suffering from heart disease, palpitation and breathlessness; (3) that the suit was not triable by the Court at Bhilwara where it was instituted; and (4) that the suit of the plaintiff is within limitation under Art. 44 of the Limitation Act, 1963 (No. XXXVI of 1963 ). In view of the findings recorded by him in respect of issue No. 4, the learned District Judge ordered for the return of the plaint in the Court where it should have been instituted, by his judgment dated March 31, 1981. The plaintiff have filed this appeal under O. XLIII, r. 1 C. P. C. against the order of return of the plaint for presentation to a proper court. On January 20, 1982 learned counsel for the parties stated that they are in agreement that this appeal may be finally disposed of without requisitioning the record. I have heard Mr. D. S. Shishodia, learned counsel for the appellants and Mr. S. R. Singhi, learned counsel for the respondent.
(3.) LEARNED counsel for the appellants has assailed the findings of the learned Additional District Judge on issue No. 4 In the first instance, he submitted that as the Life Insurance Corporation of India had its Branch Office at Bhilwara, the defendant will be considered to carry on business there and as such, under s. 20 (1), (a) C. P. C. , the suit could be tried and heard by the Additional District Judge Bhilwara In support of his contention, he replied on Smt. Brindarani Devi vs. Co operative Assurance Co. Ltd. (1), Calcutta Chemical Co. vs. D. K. Barman (2) and Surinder Kumar vs. Bengal National Textile Mills (3 ). On the other hand, Mr. S. R. Singhi urged that in view of the Explanation as no cause of action has arisen at the place where the Branch office was located, the suit could not be entertained by the learned Additional District Judge despite the fact that the defendant has its Branch Office at Bhilwara. He invited my attention to Bhola Nath vs. Empire of India Life Assurance Co. (4), Bharat Insurance Co. , Delhi vs. Wasudeo Ramchandra (5), Nedungadi Bank Ltd. vs. Central Bank of India Ltd. (6), Smt. Kamla Chopra vs. life Insurance Corporation of India (7) and State Bank of India vs. Neelam Sharma (8 ). I do not propose to examine the controversy raised in regard to the question whether the location of the Branch Office of the defendant at Bhilwara enables the Additional District Judge to entertain, try and decide the suit instituted by the plaintiff in view of the conclusion to which I have arrived at that the plaintiffs cannot be allowed to avail of the objection regarding jurisdiction of the Court of Additional District Judge, Bhilwara because, in the facts and circumstances of this case, they will be deemed to have waived that objection and acquiesced in the institution of the suit at Bhilwara. ;