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1954 DIGILAW 206 (MAD)

Kurivalli Lingayya Setty v. Sitharam Agarwala alias Jahkadass Hariram alias Mammalal

1954-04-28

SUBBA RAO

body1954
Judgment This is a revision against the order of Court of Subordinate Judge of Bellary striking out the second defendant on the ground that he was improperly joined as a party to the suit. The facts according to the plaintiff, that gave rise to the cause of action against the defendants, may be briefly stated. The plaintiff is a merchant doing business in dhal and other commodities at Adoni. The first defendant posing himself as a representative of Maheswari Mills Moria (Madhya Bharat) entered into a contract with him to sell 4 waggons of gram and dhal. At the time of the contract, he produced forged licences and delivered a letter alleged to have been written by Maheswari Mills authorising him to collect the money from the purchasers in respect of the railway waggons for which railway receipts were to be delivered. Believing these representation, the plaintiff paid Rs. 7,000 to the first defendant and obtained an assignment of four documents styled as railway receipts covering these four waggons. The sum of Rs. 7,000 was paid in currency notes of Rs. 100 each by the plaintiff towards a portion of the sale price. The numbers were noted in the schedule to the plaint. The first defendant agreed to deliver the commodities and recover the balance of the purchase money. He passed a receipt for the amount of Rs. 7,000 received by him. On the back of the receipt kept by the plaintiff, the numbers of notes were noted at that time. The first defendant also signed in the original and the duplicate of letter paper containing letter head of the plaintiff’s firm agreeing to deliver the waggons contracted for on payment of money. After this transaction, the first defendant left the place. As the waggons were not sent in accordance with the terms of the contract and discovering the fraud done by the first defendant, the plaintiff filed a complaint before the Tenali Police who promised to investigate into the matter and take suitable action. Identical notes given by the plaintiff to the first defendant were seized and they were deposited in the First Class Magistrate’s Court, Tenali. The first defendant was tried by the First Class Magistrate and was convicted and sentenced to undergo imprisonment for a period of two years. The Sub-Divisional Magistrate, Adoni, directed the amount of Rs. Identical notes given by the plaintiff to the first defendant were seized and they were deposited in the First Class Magistrate’s Court, Tenali. The first defendant was tried by the First Class Magistrate and was convicted and sentenced to undergo imprisonment for a period of two years. The Sub-Divisional Magistrate, Adoni, directed the amount of Rs. 7,000 then found on the persons of the first defendant and which belonged to the plaintiff should be returned to the plaintiff. At this stage, the second defendant filed O.S. No. 169 of 1949 on the file of the Court of the Subordinate Judge, Guntur, against the first defendant on the ground that a similar fraud was committed on him and for recovery of a sum of Rs. 10,000 and obtained an ex parte decree. In execution of the decree, the second defendant in collusion with the first defendant fraudulently attached the amount in deposit in the Magistrate’s Court and after the said amount was transferred to the credit of the suit filed by him, he drew out the same. On these allegations, the petitioner filed O.S. No. 47 of 1951 on the file of the Court of the Subordinate Judge, Bellary, for recovering the amounts from the defendants. Paragraph 14 shows that the cause of action of the suit arose at Adoni where the offence was committed and on subsequent dates. It will be seen from the aforesaid facts that so far as the first defendant is concerned, the cause of action admittedly arose within the jurisdiction of the Court of Bellary. But in regard to the second defendant, the cause of action arose within the jurisdiction of the Tenali Sub-Court and the second defendant also resides within the jurisdiction of the said Court. To put it differently neither the cause of action against the second defendant arose within the jurisdiction of the Bellary Sub-Court nor does the said defendant reside within its jurisdiction. The allegations in the plaint discloses that the second defendant was not a party to the fraud committed by the first defendant against the plaintiff in so far as he entered into the contract receiving the money by making fraudulent misrepresentation. According to the plaintiff, the second defendant colluded with the first defendant only in receiving currency notes from the Magistrate’s Court towards his decree with the knowledge that those currency notes belonged to the plaintiff. Mr. According to the plaintiff, the second defendant colluded with the first defendant only in receiving currency notes from the Magistrate’s Court towards his decree with the knowledge that those currency notes belonged to the plaintiff. Mr. Venkatadri, the learned counsel for the petitioner contended that under Order 1, rule 3 and Order 2, rule 3, Civil Procedure Code, the plaintiff is entitled to club the two causes of action against the two defendants as the right to relief against the defendants arises out of the same act or transaction or series of acts or transactions and common questions of law and facts arose within the meaning of Order 1, rule 3. It is true that the plaintiff, if his contention be valid, would be entitled to recover the money from the second defendant. The suit was for recovery of certain currency notes given to the first defendant by reason of fraud practised on him which ultimately reached the hands of the second defendant by collusive act on the part of the first and second defendants. So considered, it may reasonably be held that the wording of Order I, rule 3, is comprehensive enough to take in a case of this sort. But the more difficult question is whether either Order 1, rule 3 or Order 2, rule 3, Civil Procedure Code, will allow the plaintiff to implead in a suit a defendant against whom the Court has no territorial jurisdiction on the ground that his right to relief against him arises out of the same act or a series of acts in respect of which a right to relief arises against other defendants who are within the Court’s jurisdiction. This question is not covered by either of the aforesaid orders. It really falls to be decided under sections 19 and 20, Civil Procedure Code. The said sections read: “Section 19. Where a suit is for compensation for wrong done, to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides or carries on business or personally work for gain within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts. Section 20. Section 20. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction (a) the defendant or each of the defendants where there are more than one, at the time, of the commencement of the suit actually or voluntarily resides, or carries on business or personally works for gain, or (b) any of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside or carry on business or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action wholly or in part, arises”. The second defendant admittedly resides outside the jurisdiction of the. Bellary Sub-Court. No leave under clause (A) was given. Neither the entire cause of action nor part of the cause of action against him arose within the jurisdiction of the Bellary Sub-Court. Nor section 19 could be invoked for the reason that neither the wrong was done nor the defendant resides within the jurisdiction of the Bellary Sub-Court. It is therefore clear that the Bellary Court had no jurisdiction to entertain the suit against the second defendant. Order 1, rule 3, must be read alongwith the sections which confers jurisdiction on Courts. Order 1, and Order 2, Civil Procedure Code, are conceived in the interests of parties for the expeditious disposal of suits and for preventing multiplicity of proceedings. It is not intended to override the express provisions prescribing the limits of the Court’s jurisdiction. It is, therefore, necessary that the said Order should be read consistently with the sections prescribing rules for jurisdiction. If so read, it follows that the rules which provide for joinder of parties and clubbing different causes of action can only apply to the case of defendants residing within the jurisdiction of a particular Court and in respect of causes of action arising within its jurisdiction. If so read, it follows that the rules which provide for joinder of parties and clubbing different causes of action can only apply to the case of defendants residing within the jurisdiction of a particular Court and in respect of causes of action arising within its jurisdiction. A similar question arose in Bengal and North Western Railway Co., Ltd. v. Sadaram Bhairodan1 where Woodroffe and Richardson, JJ., held that Order 1, rule 3, of the Civil Procedure Code is a provision regulating the procedure (as distinguished from jurisdiction) of the Court and relates to joinder of defendants in a suit which is instituted in a proper forum, the Court having jurisdiction to try the suit against the defendants. The facts there were: the suit was for recovery of the value of two bales of piecegoods alleged to have been delivered at Juggernath Ghat in Calcutta to the River Steam Navigation Co., Ltd., and the India General Steam Navigation and Railway Co., Ltd., for carriage, despatch and delivery by transmission to Bhupatanhi, a station on the Bengal and North Western Railway. The Court admittedly had jurisdiction against the River Steam Navigation Co., Ltd. The question was whether the suit was maintainable also against the Bengal and North Western Railway which is admittedly outside the jurisdiction of the Court. At page 901, the learned Judges make the following observations: "The fallacy of the argument, it appears to me, lies in the use of the words The Court has jurisdiction over the suit.‘ Such jurisdiction as the Court has is over the suit as regards the Steamer Company. This does not give jurisdiction over the Railway Company and in my opinion Order 1, rule 3, has no bearing on the case. That rule of the Order is a provision which relates to a joinder of parties; and it assumes the existence of a suit in a proper forum, the Court having jurisdiction to try the suit. If the Court has such jurisdiction, then Order 1, rule 3, may come into play. With great respect, I agree with the aforesaid observations. The same principle was accepted and followed by the Calcutta High Court in Dominion of India v. Gopala Chandra1. If the Court has such jurisdiction, then Order 1, rule 3, may come into play. With great respect, I agree with the aforesaid observations. The same principle was accepted and followed by the Calcutta High Court in Dominion of India v. Gopala Chandra1. It is unnecessary for me to consider the cases cited by the learned counsel for the petitioner as in all those cases, the defendants are within the territorial jurisdiction of the Court in which the suit is filed. I, therefore, agree with the learned Subordinate Judge, Bellary, that the Sub-Court Bellary, has no jurisdiction to entertain the suit against the second defendant and the order striking out the defendant is correct. The revision fails and is dismissed with costs. K.C. ----- Revision dismissed.