Judgment 1. The appellant/plaintiff in the original suit filed this second appeal against the decree and judgment dated 13.01.2003 made in A.S.No.163 of 2002 on the file of IV Additional City Civil Court, Chennai, reversing the Judgment and decree dated 31.07.2001 passed in O.S.No.9425 of 1995 on the file of I Assistant City Civil Court, Chennai. 2. For the sake of convenience, the plaintiff in the Original Suit is referred as appellant and the defendant in the Original Suit is referred as respondent hereafter. 3. The appellant/plaintiff filed a suit for payment of a sum of Rs.1,10,495/-together with interest @ 18% p.a. of Rs.71,750/-. 4. Briefly the case of the appellant is that the respondent is a limited liability company incorporated under the Companies Act, 1956, having its registered office at New Delhi and is carrying on its business at its Regional Office, Madras. The appellant is carrying on the business of export of onions along with the other commodities. The export of onions is canalised by the Union of India and the respondent is the canalising agency. According to the appellant, the appellant had an order from National Farmers Association of Malaysia for exporting 20,500 bags of onions weighing 512.5 Metric Tonnes and the appellant approached the respondent for permission to export the same. Further, the appellant had remitted a sum of Rs.71,750/-towards service charges and development fund by Demand Draft No.181906 dated 19.02.1987 issued by Canara Bank Bombay. The respondent issued Authorisation/Allotment Order No.BY/FT/ONION/808/86-87 dated 20.02.1987, authorising the export of 512.5 M.T. of onions to Malaysia. The appellant filed the shipping bill in respect of cargo with customs authorities at Bombay and the cargo was booked for carriage by vessel S.S.MERMAID. The appellant kept the cargo ready for shipment and he was expecting the communication from steamer agent for moving the cargo to the Harbour for effecting the shipment. However, the appellant was informed by the steamer agent of S.S.MERMAID that the vessel would not touch Penang, Malaysia but instead it would sail to Singapore directly as per instructions of the vessel owners. The cargo was thus shut out and could not be exported as there was no immediate convenient vessel for carrying it. The respondent had stipulated in its authorisation letter dated 20.02.1987 that the export was to be made on or before 28.02.1987. The appellant had to liquidate the cargo in the local markets. The cargo was thus shut out and could not be exported as there was no immediate convenient vessel for carrying it. The respondent had stipulated in its authorisation letter dated 20.02.1987 that the export was to be made on or before 28.02.1987. The appellant had to liquidate the cargo in the local markets. Notice of shut out was given to the customs authorities at Bombay on 23.03.1987 who certified the shut out and also cancelled the shipping bill in respect of the aforesaid cargo of onions. Since the cargo was shut out and no export was made in pursuance of the appellant's authorisation letter dated 20.02.1987, the appellant by its letter dated 23.3.1987 requested the respondent to refund the sum of Rs.71,750/-deposited with it on 20.02.1987. But, the respondent rejected the claim by its letter dated 27.03.1987, the appellant made further requests by letters dated 26.06.1988 and 07.09.1988 to the respondent and Government of India respectively. But, the respondent reiterated its refusal in its letter dated 16.12.1988. The refusal of the respondent is illegal and without any basis. Therefore, the respondent is liable to pay a sum of Rs.71,750/- with interest @ 18 % p.a. to the appellant from 20.02.1987 till payment in full. Hence, the suit. 5. The respondent/defendant filed the detailed written statement in which it is admitted that the respondent is a society registered under the Multi State Cooperative Societies Act and the respondent is the canalising agent for Agricultural products like onions, etc. According to the respondent, the suit is liable to dismissed in limini on the ground that the respondent is only the Regional Office for the southern region at Madras and this Court does not have jurisdiction to entertain the suit as no cause of action has arisen within the jurisdiction of the Trial Court. Further the appellant's alleged export by the Allotment letter/authorisation was issued on 20.02.1987 and the same is valid till 28.02.1987 and hence the suit is barred by limitation as per Section 5 of Indian Limitation Act. Further, the suit is also not maintainable on the ground of non-joinder of necessary parties such as Bombay port Trust and Bombay customs Authorities. Further the appellant's alleged export by the Allotment letter/authorisation was issued on 20.02.1987 and the same is valid till 28.02.1987 and hence the suit is barred by limitation as per Section 5 of Indian Limitation Act. Further, the suit is also not maintainable on the ground of non-joinder of necessary parties such as Bombay port Trust and Bombay customs Authorities. It is also averred in the written statement that the appellant approached the respondent for permission to export the onions and remitted a sum of Rs.71,750/-towards service charges and development fund and the respondent issued Authorisation/Allotment order dated 20.02.1987 authorising the export of 512.5 M.T. of onions to Malaysia. It is also admitted that the respondent authorised the appellant by their authorisation/allotment letter that the export was to be made between 20.02.1987 and 28.02.1987. It is also true that the appellant fixed the vessel S.S. Mermaid for effecting the said export. Further, the appellant could not consolidate the cargo and had the cargo ready for shipment. According to the respondent, in case any vessel is cancelled or not calling the particular port declared in the shipping Bill, the exporter could alter the name of the vessel within the valid limits of authorisation and arrange shipment by alternative vessel. But the appellant did not make any attempt to make the shipment effective by some other vessel for actual export. The respondent denied that the cargo was shut out and shut out notice was issued by the customs authorities of Bombay and cancelled the shipping bill in respect of the said cargo. Normally, the shut out notice is prescribed by the Reserve Bank of India to be certified by the customs authority to confirm the non-shipment of the particular consignment as covered by the specific G.R. Form in relation to a particular shipping Bill passed by customs. But, a perusal of a copy of shipping bill given by the appellant, it is seen that though the shipping Bill is admitted to Bombay customs, the assessment is not completed and hence, it is to be construed that the shut out notice had been issued only to certify the cancellation of the shipping bill and G.R. Form. But, a perusal of a copy of shipping bill given by the appellant, it is seen that though the shipping Bill is admitted to Bombay customs, the assessment is not completed and hence, it is to be construed that the shut out notice had been issued only to certify the cancellation of the shipping bill and G.R. Form. In the absence of any endorsement of the customs or port authorities establishing entry and release of cargo into and out off the port would only prove that the cargo has not been brought into the port/customs area for export purposes. If this is the fact merely on the shut out notice issued by the customs for cancellation of shipping bill and G.R. Form, it would not amount to shut out of cargo by the vessel. Therefore, the appellant is not eligible for refund of the service charges. The refund of service charges could be made only in the case of shut out cargo where the cargo was actually shut out thereby the exporter could not make the actual export. The appellant has not produced any such documents showing that the cargo was actually shut out and the shut out notice issued by the customs authorities for the refund of customs cess is not sufficient for the refund of service charges. It is also averred in the written statement that as per the respondent's guide lines, service charges once paid shall not be refunded and adjusted except i) Ban/retirement imposed by the court of India on export. ii) Port Dock workers strike, etc. Further the appellant had not actually taken the cargo inside the port for effecting the shipment for the export of the same. The shipping bill produced by the appellant do not carry any endorsement or stamp or initials of the customs authorities. In the absence of production of any documents, to prove the shut out, the appellant would not find fault with the respondent. If the appellant is able to produce the documents, the respondent is ready to make the said refund of service charges to the appellant. Therefore, prayed for dismissal of the suit. 6. The trial court on the basis of the above said pleadings framed five issues as follows:- 1. Whether the plaintiff is entitled to recover the suit claim from the defendant ? 2. Whether this Court has no jurisdiction to entertain the suit ? Therefore, prayed for dismissal of the suit. 6. The trial court on the basis of the above said pleadings framed five issues as follows:- 1. Whether the plaintiff is entitled to recover the suit claim from the defendant ? 2. Whether this Court has no jurisdiction to entertain the suit ? 3. Whether this suit is barred by law of limitation ? 4. Whether this suit is bad for non-joinder of necessary parties ? 5. To what relief the plaintiff is entitled to ? 7. On the side of the appellant/plaintiff, one witness was examined as PW1 and marked 8 documents as Ex.A1 to Ex.A8. On the side of the respondent/defendant, one witness was examined in chief but the above said witness was not available for cross-examination and therefore, the trial court has deleted the DW1's evidence. On the side of the respondent has not produced any documents. 8. The trial court has discussed the above said oral and documentary evidence adduced on the side of appellant, and finally answered the first issue as the appellant/plaintiff is entitled to a recovery of a sum of Rs.71,750/-with interest at 12% per annum from the respondent. The trial court has discussed about the second issue regarding cause of action and held that the regional office of the appellant/plaintiff is situated within the jurisdiction of the trial court and therefore, the trial court has got jurisdiction to entertain the suit and answered the second issue accordingly. The trial court discussed about the third issue i.e., question of limitation and held that only after the issue of shut out notice on 23.03.1987, the right to sue accrued to the appellant/plaintiff and therefore, the suit is not barred by law of limitation and answered the issue No.3 accordingly. The trial court has discussed about the fourth issue i.e., non-joinder of necessary parties and held that the Port Trust of Bombay and Customs Authorities are unnecessary parties in the suit and the suit is not bad for non-joinder of necessary parties and answered fourth issue accordingly. In view of the findings of the above said four issues, the trial court has finally held that the appellant/plaintiff is entitled to get the refund of service charges of Rs.71,750/- with interest at 12% per annum from the respondent/defendant and answered the fifth issue accordingly and decreed the suit. 9. In view of the findings of the above said four issues, the trial court has finally held that the appellant/plaintiff is entitled to get the refund of service charges of Rs.71,750/- with interest at 12% per annum from the respondent/defendant and answered the fifth issue accordingly and decreed the suit. 9. Aggrieved over the above said findings of the trial court, the appellant/defendant preferred the first appeal in A.S.No.163 of 2002. The first appellate court has framed four points for consideration i.e., 1) Whether the trial court has got jurisdiction to entertain the suit ? 2) Whether the respondent/defendant has no right to raise question of jurisdiction before the appellate court under Section 21 of CPC is correct ? 3) Whether the first appellate court is incorrect to allow on the ground that the proper written shut out notice has not been produced ? 4) Whether the oral and documentary evidence of DW1 can be taken into consideration ? 10. The first appellate court has considered the oral and documentary evidence and held that as per Section 20(a)(c) of CPC, the trial court has no jurisdiction to try the suit since no cause of action arises before the territorial jurisdiction of the trial court. Further, the first appellate court given a finding that before the trial court, DW1 was present on 12.10.2001, on that date DW1 was not cross-examined by the appellant side and the case was adjourned on 17.10.2001 but the trial court has not specifically noted whether DW1 was present or not, but closed the evidence without cross-examination and in the above said circumstances, it cannot be taken as DW1 was not available for cross-examination and therefore, the trial court should have given importance in the above said evidence of DW1. The first appellant court also held that Ex.A3 shut out notice was not issued in proper manner and only the genuineness of the document Ex.A3 can be decided by the concerned court situated at Bombay and therefore, the first appellate court has set aside the decree and judgment passed by the trial court and permitted the appellant/plaintiff to file a suit before the District Munsif Court at Bombay within three months and allowed the first appeal with cost accordingly. 11. Aggrieved over the above said reversal findings of the first appellate court, appellant/plaintiff preferred this second appeal. 11. Aggrieved over the above said reversal findings of the first appellate court, appellant/plaintiff preferred this second appeal. This court has admitted the second appeal on the following substantial questions of law:- "1. Whether the Appellate Court was right in considering the plea of jurisdiction for filing of the suit at the First Appeal stage, when there was no failure of justice? 2. Whether the Lower Appellate Judge has got the right to see the notes paper of the Trial Judge and pass his comments when DW-1's evidence has been expunged on account of his failure to appear before the Trial Court for cross-examination?" 12. Heard the learned counsels appearing for the appellant and the respondent and perused the material records available on record. 13. The learned counsel appearing for the appellant/plaintiff would submit that the trial court has correctly discussed about the oral and documentary evidence adduced on the side of the appellant and also discussed about the fact that the sole witness DW1 examined on the side of the respondent was not available for cross-examination and therefore, DW1 evidence was expunged on the account of his failure to appear before Court for cross-examination and given a correct findings in all issues framed by the trial court. The learned counsel appearing for the appellant further pointed out that without any basis and without any documentary evidence, the first appellate court has wrongly held as if no documents available to prove whether DW1 was present or not for cross-examination on 17.10.2001 and the first appellate court has wrongly held that even though DW1 was not cross-examined, the above said chief examination of DW1 has to be given importance to decide the suit by the trial court. The learned counsel also pointed out that the first appellate court has wrongly discussed about DW1 witness and on the basis of DW1 witness, the first appellate court has come to a wrong conclusion that Ex.A3 shut out notice is not properly issued and the above said fact should be decided only by District Munsif Court at Bombay and hence, the findings of the first appellate court are perverse and illegal findings. 14. 14. Per contra, the learned counsel appearing for the respondent would submit that Ex.A1 allotment order dated 20.02.1987 authorising the Export of Onions to Malaysia was issued only by the respondent's office situated at Bombay and only the office of the Respondent is having its Regional Office for southern region situated at Madras and therefore, the trial court has no jurisdiction to entertain the suit since no cause of action has arisen within the trial court's jurisdiction and therefore, the first appellate court has correctly held that the trial court has no jurisdiction to try the case and directed the appellant to file before proper District Munsif Court situated at Bombay. The learned counsel appearing for the respondent further submitted that there is no specific endorsement by the trial court that on 17.10.2001, DW1 was not available for cross-examination but, only on that ground DW1 evidence was expunged. Therefore, the learned counsel submitted that no reliable documents to prove that DW1 was not available for cross-examination on that date and hence, DW1 chief-examination can be taken for consideration as rightly held by the first appellate court and therefore, there is no illegality in the above said findings of the first appellate court. Further, the learned counsel pointed out that all the relevant documents are only available at Bombay Office and hence, the respondent could not produce all the relevant documents before the trial court and therefore, the findings of the first appellate court are not illegal or perverse as pleaded by the appellant. 15. It is not in dispute that the appellant has got an order from National Farmers Association of Malaysia for Export of 20,500 bags of onions weighing 512.5 M.T., and approached the respondent for permission to export the same and also remitted a sum of Rs.71,750/- towards service charges and development fund by D.D.No.181906 dated 19.02.1987. It is also admitted that the respondent issued Ex.A1 allotment order dated 20.02.1987 authorising the export of the above said onions to Malaysia. It is also admitted that the respondent issued Ex.A1 allotment order dated 20.02.1987 authorising the export of the above said onions to Malaysia. According to the appellant, the above said cargo was booked for carriage by vessel S.S. Mermaid and the appellant kept the cargo ready for shipment but the appellant was informed by the steamer agent of S.S. Mermaid that the vessel would not touch Penang Malaysia but sail to Singapore directly and hence, the cargo was shutout under Ex.A3, shut out notice issued by Customs Authority dated 23.03.1987 and cancelled the shipping bill. Therefore, no export was made in pursuance of Ex.A1 authorising letter. 16. The appellant has marked the Shipping Bill as Ex.A4 and also Ex.A3 shut out notice. After issued the above said Ex.A3 shut out notice and cancellation of Shipping Bill, on the side of the appellant issued Ex.A5 legal notice to the respondent on 23.03.1987 along with necessary copies of documents. The respondent's office situated at Bombay has sent reply under Ex.A6 dated 27.03.1987 by stating that as per guidelines, the amount cannot be refund to the appellant. It is also revealed that the appellant has sent another legal notice on 26.07.1988 to the respondent office at Bombay along with necessary documents again and requested to refund the amount. The respondent has sent a reply to the appellant office situated at Madras and informed the appellant that as per the terms and conditions of the guidelines of the respondent it was unable to refund the amount. After receiving the above said Ex.A8 reply notice, original suit has been filed by the appellant before the City Civil Court situated at Madras. 17. A careful perusal of the plaint, revealed that in cause of action para, reads as under: "9. After receiving the above said Ex.A8 reply notice, original suit has been filed by the appellant before the City Civil Court situated at Madras. 17. A careful perusal of the plaint, revealed that in cause of action para, reads as under: "9. The cause of action for this suit arose at Madras within the jurisdiction of this Hon'ble Court where the defendant is carrying on business and where the suit claim is due and payable to the plaintiff on 20.02.1987, the date of receipt of the service charges and development fund by the defendant on 23.03.1987 the date of shut out notice and plaintiff's request for refund on 30.03.1987 the date of defendant's refund to refund on 26.06.1988 the date of further request for refund by plaintiff on 16.12.1988 the date of defendant's failure to do so and subsequently." In the written statement filed by the respondent, in which, in para 3, it is stated as : "Since the defendant is only the Regional Office for the southern Region in Madras and this Hon'ble Court does not have jurisdiction to entertain this suit as no cause of action has arisen here." 18. A careful perusal of the address given in the plaint and written statement revealed that both the appellant and respondent's office are situated at Madras. As already stated, the legal notice Ex.A7 was issued by the appellant from the appellant office at Madras. The respondent also sent Ex.A8 reply notice to the office of the appellant situated at Madras. On the side of the appellant, PW1 one Ganesh Raju was examined and he clearly deposed that the appellant's Head Office is situated at Madras and only the Branch Office is situated at Bombay and therefore, the Civil Court situated at Madras is having jurisdiction to try the suit. 19. Admittedly, the respondent has filed written statement on 09.01.1999, the trial court has framed the issues on 04.08.1999 and the oral evidence closed on 17.10.2001 and judgment pronounced on 31.10.2001. During the pendency of the above said suit, the respondent has not filed any petition to decide the issue regarding jurisdiction as preliminary issue. A perusal of cross-examination of PW1 also revealed that it is not specifically suggested by respondent side as the suit is not maintainable only on the ground that no cause of action arises within the jurisdiction of City Civil Court situated at Madras. 20. A perusal of cross-examination of PW1 also revealed that it is not specifically suggested by respondent side as the suit is not maintainable only on the ground that no cause of action arises within the jurisdiction of City Civil Court situated at Madras. 20. Therefore, as rightly pointed out by the learned counsel for the appellant, the respondent has not at all taken any steps to decide the question, whether any cause of action or part of cause of action arose within the jurisdiction of City Civil Court at Madras. On the other hand, the respondent has participated and cross-examined the witness and also examined DW1 and both side counsels argued before the trial court and then pronounced the judgment. Further, on perusal of oral and documentary evidence adduced on the side of the appellant would reveal that the appellant's Head Office is situated only at Madras and the respondent's Branch Office also situated at Madras and the respondent's Bombay office sent communication to the appellant's office situated at Madras even before filing of the suit and therefore, part of cause of action arose within the jurisdiction of the trial court at Madras as rightly pointed out by the learned counsel for the appellant. 21. The learned counsel for the appellant has relied on several decisions with regard to questioning the maintainability of the suit on the ground of cause of action and jurisdiction. Learned counsel appearing for the appellant has relied on a decision of Hon'ble Apex Court reported in 2005 AIR SC W5369 (Harshad Chiman Lal Modi v. D.L.F. Universal Ltd., and another) and in the relevant para 28 reads as under:- "28. We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are: (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage." The learned counsel appearing for the appellant relied on another Division Bench decision of this Court reported in 2004 (4) LW 146 ( Ashwin Rajesh & Co. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage." The learned counsel appearing for the appellant relied on another Division Bench decision of this Court reported in 2004 (4) LW 146 ( Ashwin Rajesh & Co. V. Sri Saravana Fabrics) in which, para 12 reads as under:- "12. No doubt, the counsel appearing for the appellant has raised the question of territorial jurisdiction in this appeal by saying as if the contract was entered into between the parties only at Madras. But, we are not able to accept that ground in view of the fact that there is enough evidence in this case in support of the plaintiff that the contract was entered into only at Erode and that further the principle laid down in the ruling reported in Nanak Chand Shadurian v. The Tinnelvely-Tuticorin Electric Supply Co. Ltd., Calcutta (AIR 1975 Madras 103) to the effect that when once the parties, even after having raised the plea of jurisdiction, allowed the trial to be completed, it amounts to waiver of such a plea and thereby the question of jurisdiction cannot be raised at the stage of appeal before this court." The learned counsel appearing for the appellant relied on another decision of this Court reported in 2006 (2) LW 118 (Om Sakthi Reenergies Limited v. Megatech Control Limited and another) in which, para 8 reads as follows:- "8. At the outset, we may mention that the agreements were signed by the first respondent at Chennai, goods and materials were sent from Chennai and payments were also made at Chennai. Therefore, a part of cause of action arises at Chennai within the jurisdiction of this Court. Thus, the Court at Madras is a competent Court to entertain the lis but for the ouster clause relied upon by the appellant. However, when the appellant had submitted themselves to the jurisdiction of this Court and went to trial on merits, they are clearly prevented from raising the question of jurisdiction, in view of the provisions of Section 21 of the Code of Civil Procedure. However, when the appellant had submitted themselves to the jurisdiction of this Court and went to trial on merits, they are clearly prevented from raising the question of jurisdiction, in view of the provisions of Section 21 of the Code of Civil Procedure. Section 21(1) of the Code of Civil Procedure runs thus:- "No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice." The learned counsel relied on another Division Bench decision of this Court reported in 2010 (2) CTC 1 (The Special Tahsildar, Adi Dravidar Welfare Scheme v. M. Gopinathan), in which paras 14 as follows: "14. Objection to jurisdiction ought to have been taken in the original Court at the earliest opportunity and before settlement of issues. The Appellate or Revisional Court will not entertain the objection unless there has been consequent failure of justice. It is to be pointed out that the officials of Government themselves made reference under Section 18 of Land Acquisition Act. At no point of time objection as to maintainability of jurisdiction/reference was raised in the Reference Court. When objection regarding jurisdiction of the Reference Court was not raised at the earliest opportunity, it is not open to the appellant to raise objection in the Appellate Stage." 22. As rightly pointed out by the learned counsel appearing for the appellant and also in view of the law laid down by the Hon'ble Supreme Court and several decisions of this Court revealed that if the parties are not raised any objection, at the earlier possible opportunity before issues are settled at or before settlement before the Court of first instance cannot raise the objection at later stage. Therefore, in view of the above said principles of law laid down by Hon'ble Apex Court and this Court, the contention of the respondent that the Civil Court at Madras having no jurisdiction cannot be accepted. Therefore, the finding of the first appellate court is absolutely perverse and also illegal as rightly pointed out by the learned counsel for the appellant. 23. Therefore, the finding of the first appellate court is absolutely perverse and also illegal as rightly pointed out by the learned counsel for the appellant. 23. The learned counsel appearing for the appellant has also submitted that the trial court has discussed about the absence of DW1 for cross-examination and therefore, the chief examination recorded was deleted by the trial court. In the judgment, it is clearly discussed in detail and held that the above said evidence was deleted and not considered. The respondent not challenged the order of the trial court. But, the first appellate court, without any materials or evidence, wrongly held as if the trial court has not considered the fact whether DW1 was present or not but wrongly rejected to consider the chief examination of DW1 on the ground that the above said witness has not subjected himself for cross-examination. Further, as rightly pointed out by the learned counsel for the appellant, the first appellate court has wrongly relied on the chief examination of DW1 alone and on that basis, the first appellate court has held that Ex.A3 notice is not proved as proper shut out notice. The appellate court has failed to consider that why the respondent has not at all taken any steps to obtain and produce documents to prove the case of the respondent before the trial court or no reason has been stated why the relevant witness have been summoned from the consent office situated at Bombay to prove the case of the respondent. On the side of the respondent not at all assigned any reason why DW1 has deposed in chief examination alone and not available for cross-examination. In this regard, the learned counsel appearing for the appellant has relied on a decision of this Court reported in 2010 (1) CLT 693 (Rajagopal & Another v. Gayathri) in which, para 7 reads as under:- "7. It is a well recognised principle of law that a party to the proceeding is at liberty to appoint a power of attorney to prosecute or defend the case as the case may be. Here is a case where the plaintiff was already examined in part and Exs.A1 to A5 were also marked. Medical certificate was produced to substantiate the plea of the plaintiff that she was unwell. Here is a case where the plaintiff was already examined in part and Exs.A1 to A5 were also marked. Medical certificate was produced to substantiate the plea of the plaintiff that she was unwell. If a party to the proceeding was only examined in chief and has not subjected himself or herself to the cross examination, such part of the evidence cannot be relied by the court." 24. A perusal of the above said decision revealed that if the parties are not available for cross-examination such evidence cannot be relied upon by the Court. In the instant case, since DW1 was not available for cross-examination, his evidence cannot be relied upon as rightly held by the trial court. Therefore, from the above said conduct of the respondent, it clearly shows that the respondent has not at all interested to prove his contention by adducing relevant oral and documentary evidence. 25. Per contra, a perusal of the documents Exs.A1 to A8 adduced on the side of the appellant and oral evidence of PW1 would clearly proved all the contentions of the appellant. The trial court has correctly discussed about the oral and documentary evidence of the appellant side and correctly given findings in all the issues. As already discussed, the first appellate court has failed to consider properly and wrongly given the findings and therefore, the above said findings are perverse and also illegal as rightly pointed out by the learned counsel for the appellant. 26. From the above said discussion and also the settled principles of law laid down by the Hon'ble Apex Court and this Court, as discussed in earlier paras, the first appellate court has wrongly considered the plea of jurisdiction at the first appellate stage and therefore, the above said findings regarding cause of action and jurisdiction are perverse and also illegal and answered the first substantial question of law accordingly. As already discussed, the first appellate court has wrongly considered the oral evidence of DW1 even though the above said evidence has been expunged on account of his failure to appear before the trial court for cross-examination. Therefore, the above said finding of the first appellate court also illegal and perverse finding and answered the second substantial question of law accordingly. 27. Therefore, the above said finding of the first appellate court also illegal and perverse finding and answered the second substantial question of law accordingly. 27. In view of the above said discussion, the findings of the first appellate court are perverse and illegal findings but the trial court has given correct findings and therefore, the decree and judgment passed by the trial court are to be confirmed and the decree and judgment passed by the first appellate court are to be set aside. 28. In the result, the second appeal is allowed with costs and the decree and judgment passed by the first appellate court are set aside and confirmed the decree and judgment passed by the trial court.