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2017 DIGILAW 683 (ORI)

State of Orissa v. Pratibha Prakash Bhavan

2017-07-10

A.K.RATH

body2017
JUDGMENT : Dr. A.K.RATH, J. Defendants are the appellants against an affirming judgment. 2. The respondent as plaintiff instituted M.S.No.10 of 1987 in the court of the learned Additional Subordinate Judge, Berhampur for realization of Rs.6,860/-with pendentelite and future interest @ 12% per annum impleading the appellants as defendants. The case of the plaintiff is that it is a Government order supplier. It is having business at Berhampur. The B.D.O., Hatadihi, defendant no.2 placed an order on 30.4.1982 with the plaintiff to supply the forms and registers to its office for official use. Articles were to be supplied from Berhampur. As per the order of defendant no.2, the plaintiff supplied articles by parcel and delivered the same in the office of defendant no.2 by transport of Carry co with forwarding letters. The defendant no.2 received the articles. On 2.12.1982 the plaintiff sent the bill for Rs.4,780/-to defendant no.2 towards cost of the articles by registered post under the bill dated 15.11.1982 along with a letter. The defendant no.2 received the same, but did not make any payment. The plaintiff sent several letters to defendant no.2 to pay the amount. The defendant no.2 maintained sphinx like silence. With this factual scenario, the suit was filed seeking the reliefs mentioned supra after issuing notice under Section 80 of the Code of Civil Procedure to the defendants. 3. The defendants filed written statement denying the assertions made in the plaint. The case of the defendants is that the agent of the plaintiff approached defendant no.2 at Hatadihi, took orders in the printed form of the plaintiff and agreed to supply the indent of defendant no.2 by passenger train at Bhadrak. The plaintiff did not supply the articles as per the orders. The plaintiff did not make any correspondence with defendant no.1 regarding the orders placed by defendant no.2. Allegation that the goods were supplied by the transport has been specifically denied. It is pleaded that defendant no.2 has not received any bills. The specific case of the defendants is that no cause of action accrues within the territorial jurisdiction of Bhadrak and as such the Court lacks jurisdiction to entertain the suit. 4. On the interse pleadings of the parties, the learned trial court framed seven issues, out of which, issue nos.3 and 7 are pivotal. The same are:- “3. Whether this court has got jurisdiction to entertain such a suit ? 7. 4. On the interse pleadings of the parties, the learned trial court framed seven issues, out of which, issue nos.3 and 7 are pivotal. The same are:- “3. Whether this court has got jurisdiction to entertain such a suit ? 7. Whether the defendant received the plaint consignment and documents as per the order booked and is liable to pay the cost of the consignment ?” 5. To substantiate his case, the plaintiff had examined two witnesses and on his behalf, seven documents had been exhibited. The defendants had examined only two witnesses. The learned trial court came to hold that P.W.1 had admitted that the B.D.O. Hatadihi placed order on 30.4.1982 to him at Hatadihi Bock Office. The agreement to supply the goods was made at Hatadihi in the district of Keonjhar and normally the Court should not have jurisdiction. But then defendant no.2 had agreed to the term in Ext.1 that all legal disputes shall be subject to Berhampur Court jurisdiction and as such the Court has jurisdiction to entertain the suit and answered issue no.3 in favour of the plaintiff. With regard to issue no.7, the learned trial court held that the plaintiff had sent consignment as well as document to defendant no.2. Due to negligence of defendant no.2, goods remained undelivered with the Carry Co transport. Thus, defendant no.2 is liable to pay the costs of the consignment. Held so, the learned trial court decreed the suit. The plaintiff unsuccessfully challenged the judgment and decree of the learned trial court before the learned District Judge, Bhadrak, which was subsequently transferred to the court of the learned 1st Additional District Judge, Gamjam, Berhampur. The same was eventually dismissed. 6. The Second Appeal was admitted on the following substantial questions of law. “Whether the defendants even without receiving the goods can be held liable to pay the price of the goods and whether the Court at Berhampur has the jurisdiction to try the suit.” 7. Heard Mr.Swayambhu Mishra, learned Additional Standing Counsel for the appellants. None appeared for the respondent. 8. Mr.Mishra, learned Additional Standing Counsel submitted that the agent of the plaintiff approached defendant no.2 at Hatadihi in the district of Keonjhar. He took order in a printed form for supply of goods through rail. Heard Mr.Swayambhu Mishra, learned Additional Standing Counsel for the appellants. None appeared for the respondent. 8. Mr.Mishra, learned Additional Standing Counsel submitted that the agent of the plaintiff approached defendant no.2 at Hatadihi in the district of Keonjhar. He took order in a printed form for supply of goods through rail. No part of cause of action accrued within the territorial jurisdiction of Berhampur and as such the Court at Berhampur has no jurisdiction to entertain the suit. The finding of the learned trial court is perverse. In the appeal the defendants urged that the suit is liable to be dismissed on the ground that the Court lacks jurisdiction to entertain the suit. The appellate court instead of answering issue no.3 proceeded to decide the appeal on merit. On this ground, the judgment and decree is liable to be set aside. He further submitted that where there are two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arises therewith, if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves the agreement would be valid. It is not competent to the parties by agreement to invest a court with jurisdiction which it does not otherwise possess but if there are more than one forums where a suit can be filed, it is open to the parties to select a particular forum and exclude the other forums in regard to claims which one party may have against the other under a contract. 9. The apex Court in the case of Santosh Hazari Vrs. Purushottam Tiwari (Dead) by Lrs., A.I.R. 2001 SC 965 held: “xxx xxx xxx The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124 ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai, AIR 1983 SC 114 ). As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai, AIR 1983 SC 114 ). The rule is and it is nothing more than a rule of practice -that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120 ). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. xxx xxx xxx” 10. The specific case of the defendants is that no part of cause of action has accrued within the territorial jurisdiction of Berhampur and as such the Court lacks jurisdiction to entertain the suit. The learned trial court came to an abrupt conclusion that it has jurisdiction to entertain the suit. The appellate court did not delve deep into the said issue and proceeded to decide the appeal on merit and concurred with the findings of the learned trial court. The approach of the learned 1st Additional District Judge, Ganjam, Berhampur is not in consonance with the law laid down by the apex Court. 11. In the wake of the aforesaid, the judgment and decree of the learned 1st Additional District Judge, Ganjam, Berhampur is set aside. The matter is remitted back to the learned 1st Additional District Judge, Ganjam, Berhampur for de novo hearing. The learned appellate court shall answer all the issues and decide the appeal. 11. In the wake of the aforesaid, the judgment and decree of the learned 1st Additional District Judge, Ganjam, Berhampur is set aside. The matter is remitted back to the learned 1st Additional District Judge, Ganjam, Berhampur for de novo hearing. The learned appellate court shall answer all the issues and decide the appeal. Since the appeal is of the year 1990, the learned 1st Additional District Judge, Ganjam, Berhampur shall conclude the hearing of the appeal within a period of six months.