Judgment U.N.Sinha, J. 1. This appeal has been filed by the defendant. It arises out of a suit instituted by the plaintiff in the court of the Subordinate Judge, Hazaribagh, for recovery of a sum of Rs. 4,600, by way of damages, besides interest and costs. The suit was tried by the Additional Subordinate Judge and by judgment and order dated the 17th August, 1960, the plaint was returned on the finding that the court did not have territorial jurisdiction to try this suit. On appeal the court of appeal below has held that the suit bad been properly instituted in the court of the Subordinate Judge, Hazaribagh and the trial court had jurisdiction to entertain the suit. Thus, the defendant has come up to this court. The question that has been agitated in this court has mainly been one of jurisdiction, but as the merits of the litigation has also been agitated the following facts and circumstances have to be mentioned 2. The plaintiffs case was that the plaintiff and the defendant were dealers in mica and mica scrape and on the 23rd January, 1939, the plaintiffs son had approached one Harbilas Pilania, who held general power of attorney on behalf of the defendant, for sale of mica scrape to the plaintiff from the defendants mica dump at Purania Godam at Bhana Knap in the district of Gaya. An agreement was executed on that day for sale of mica scrape at the rate of 4 anna per maund and a cash advance of Rs. 200 was made by the plaintiffs son. It was agreed that the entire stock of mica scrape in the mica dump would be lifted on behalf of the plaintiff by the end of May, 1959. Some mica was lifted up to 26th April, then there was some difference between the parties and the plaintiff was not allowed to lift about 200 tons of mica scrape. The plaintiff alleged that he has received a number of orders from foreign dealers for supply of mica scrape and as he had failed to lift mica from the mica dump according to the contract, he had to purchase mica scrape from open market at high price. According to the plaintiff, he had suffered loss to the tune of Rs 4,600 on account of the defendants fault and he was entitled to be compensated for ihe loss. According to the plaintiff, he had suffered loss to the tune of Rs 4,600 on account of the defendants fault and he was entitled to be compensated for ihe loss. The substance of the defendants case was that the plaintiff had stopped lifting mica voluntarily since after the 26th April 1959, and even when the period for taking mica had been extended by the defendant, the plaintiff had not removed the mica and if any loss has been caused to him, it had not been occasioned by the defendants fault. It was alleged that the contract had not taken place in Jhumri Tilaiya in the district of Hazaribagh, as alleged by the plaintiff, and no cause of action for the suit had arisen in that district. It was contended that the contract and the payment of the advance money, had taken place in the district of Gaya, where the mica dump was situated and therefore, the suit was not entertainable in the district of Hazaribagh. 3. On the allegations of the parties, several issues were framed by the trial court, including an issue on the question of jurisdiction of the court to try the suit, issue on the merits of the case were also framed for enquiry as to whether the defendant had stooped the plaintiff from lifting mica scrape, as alleged and as to whether the plaintiff is entitled to any damage from the defendant or not. As indicated earlier, the issue on the question of jurisdiction was decided in favour of the defendant. The relevant finding was in the following words:- - "as found, above, no part of the contract nor even its breach did take place at Jhumri Tilaiya. Entire contract compliance under as also the alleged breach if any took place at Dhanakhap which admittedly lies beyond the territorial jurisdiction of this court." Upon the controversial allegations on the merits of the case, the trial court held that the defendant was not responsible for stopping of the lifting of the mica by the plaintiff, and if the defendant is to be held guilty of breach of contract and if the plaintiff is held entitled to recover damages from the defendant, the plaintiff can recover at the rate of 5 annas per maund for 100 tons. In the result, however, the plaint was returned as the plaintiff had failed on the preliminary point of jurisdiction of the trial court. 4. The court of appeal below framed the following points for consideration: (1) was the suit beyond the territorial jurisdiction of the court at Hazaribagh? (2) Did the defendant stop the plaintiff from lifting mica scrape? (3) Was the plaintiff entitled to recover damage by any compensation and if so. at what amount should the damage be assessed? On the first point it was held that the contract in question evidenced by Exhibit 1, had taken place at Jhumri Tilaiya and not at Bhana Knap. It was, therefore, held that the suit had been properly instituted and the trial court had jurisdiction to entertain it. The second point was answered in favour of the plaintiffs case (sic) was accepted to the effect that he had been stopped from lifting the whole of the mica scrape from Purani Godam at Bhana Knap. Under the third point it was held that the trial court had correctly held that 100 tons of mica scrape could not be lifted by the plaintiff and he was entitled to compensation at the rate of 5 annas per maund for 100 tons. Thus the court of appeal below decreed the suit in part. 5. The principal point urged in this court is with respect to the jurisdiction of the trial court and the learned counsel for the appellant has submitted that the first point formulated by the court of appeal below has been wrongly answered. It is also contended that even if the suit was properly entertainable fay the court which tried it, no appeal on merit lay in the court of appeal below, as the trial court had returned the plaint on the ground that it had no jurisdiction to try the suit Having considered the judgment of the court of appeal below on point No. 1, formulated there it appears to me that the conclusion of the final court of fact as to where the contract had been entered into cannot be interfered with at this stage. I must, therefore, proceed on the footing that the finding of the court of appeal below is correct as to the territorial jurisdiction of the court where the suit had been instituted and tried. I must, therefore, proceed on the footing that the finding of the court of appeal below is correct as to the territorial jurisdiction of the court where the suit had been instituted and tried. But, the other contention raised by learned counsel for the appellant, to the effect that the court of appeal below could not have decided the suit on merit appears to be a valid contention. It appears from the record of the court of appeal below that after the appeal had been filed, there a report was made to the effect that no decree had been drawn up by the trial court and no appeal lay as an appeal against a decree. This matter was heard and it was held by order dated the 19th September. 1960. by the court of appeal below that the appeal was maintainable. Thereafter, the appeal proceeded to the determination on all the questions I am of the opinion, however, that the appeal filed in the court of appeal below could not have been treated as one against a decree of the trial court, as the plaint had been returned by the learned Additional Subordinate Judge, who tried the suit. It may be that he had given his findings on merits also, but they could not have made any difference in this case. All that the plaintiff could do was to file an appeal under Order XLIII Rule 1(a) of the Code of Civil Procedure as an appeal from an order returning the plaint to be presented to the proper court. Therefore, the court of appeal below, in this case, should not have decreed the suit to any extent, after holding that the suit had been properly instituted. It should have remanded the suit to the trial court for hearing on merits. Although the trial court had given certain findings on merits in favour of the plaintiff, there was no decree in his favour and, therefore, there could not have been any appeal against any decree on merit, Accordingly, without going into any other question, I would set aside the decree of the court of appeal below and remand the suit to the trial court for deciding the suit on merits on the footing that the suit had been properly instituted in a court which had jurisdiction in the matter. It must be made clear that the suit should now be decided on the evidence already on record. Under issue Nos. 3 and 4 the trial court had mentioned that the lawyers for both sides had expressed their desire that they would like to adduce evidence on the merits of the suit as well and, therefore, the suit should now be decided on the materials already on the record. This is a fit case in which the parties should bear their own costs throughout upto this state.