SETH GOKUL DAS Vs. HANSRAJ

JUDGEMENT

(1.) THIS is an appeal arising out of a suit in which the plaintiff claimed damages for breach of contract. The defendants reside at Jaitu in the Nabha State. The plaintiff resides at Jalaun. The question was raised whether or not the Court at Jalaun had any jurisdiction to entertain the suit. The lower Appellate Court held that it had no jurisdiction because none of the defendants reside in Jalaun, and the contract did not wholly or partially arise in Jalaun. Notwithstanding this finding, the Court gave the plaintiff a decree for a sum of Rs. 1,125. odd, which the defendants admitted were due, with proportionate costs. The defendants had denied the jurisdiction but had brought this sum of money into Court saying in effect that, while they denied the jurisdiction if that was held against them, the only liability they were under to the plaintiff was such sum. In our opinion the Court was not justified in granting a decree. We agree with the finding of the Court below that the cause of action did not wholly or partially arise in Jalaun. The Court ought, therefore, to have dismissed the plaintiff s suit. The Court was further wrong in directing that the;plaint should be handed back for presentation to another Court. According to, the finding of the Court below the proper court would be the Court at Jaitu, or some Court in the Native State of Nabha. A plaint presented in and stamped for a Court in Jalaun is unlikely to be a plaint properly stamped for a Court in the Native State of Nabha. Although the defendants had not appealed, we think that a decree which the Court had no jurisdiction to make ought not to be allowed to remain on the file. We think we have powers under Order XLI, Rule 33 of the Code of Civil Procedure to correct this error. We dismiss the appeal, but modify the decree of the Court below by altering it into a decree dismissing the plaintiff s suit in toto with costs in all Courts including in this Court fees on the higher scale.