Briju Pandy vs Gangu Ahir

Dhavle, J.—This application in revision relates to a suit for the recovery of money due on a handnote said to have been executed by the defendant on 16th Kuar 1341 Fasli in mauza Bania Chhappar in the munsifi of Gopalgunj. The defence was twofold: (1) that the hand-note was not genuine, valid and for consideration, and (a) that u/s 7, U.P. Agriculturists'' Belief Act, 1934, the Munsif of Gopalgunj had no jurisdiction to try the suit. The trial Court found in favour of the plaintiff as regards the validity of the hand-note, but held that the Gopalgunj Court had no jurisdiction u/s 7, Agriculturists'' Belief Act, referred to. It was accordingly ordered that the plaint be returned for presentation to the proper Court. An appeal was preferred against this order, and the Subordinate Judge who heard it agreed with the trial Court that "the suit was not entertainable in the Court at Gopalgunj."

It has been contended on behalf of the plaintiff-applicant that the lower Courts were wrong in holding that Section 7 of the Act, operated to deprive the Gopalgunj Court of jurisdiction to try the suit. There is no dispute that the defendant is a resident of mauza Bairiya in the District of Gorakh-pore and is an agriculturist within the meaning of the United Provinces Act in question. The trial Court accepted the plaintiff''s oral evidence that the loan was advanced, and the hand-note executed and delivered, in Bania Chappar within the Gopalgunj munsifi. The cause of action for a suit on such a contract arises either at the place where the contract was made or at the place where the contract was to be performed, and it does not seem to have been so much as urged on behalf of the defendant that he was to repay the loan at any place other than Bania Ghappar where "the transaction was done." We may therefore take it, AIR 1927 156 (Privy Council) that the money was to be repaid to the plaintiff in Bania Chappar within the Gopalgunj Munsifi. u/s 20, Civil P.C. suits on hand-notes may be instituted in a Court within the local limits of whose'' jurisdiction "the cause of action, wholly or in part arises." Section 7, U.P. Agriculturists'' Relief Act, 1934, however provides that:

Notwithstanding anything contained in any other enactment for the time being in force, every suit for recovering an unsecured loan in which the defendant...is an agriculturist, shall be instituted and tried in a Court within the local limits of whose jurisdiction: (a) the agriculturist defendant...actually and voluntarily resides or (b) in case the agriculturist defendant...resides outside the limits of the United Provinces of Agra and Oudh, (i) the holding or the landad property of agriculturist defendantis...is situate, and (ii) if the agriculturist defendant has (no) holding or landed property, the agriculturist defendant carries on the profession by virtue of which he is classed as an agriculturist.

The trial Court overruled the argument that the United Provinces Act, being a provincial Act, cannot take away the jurisdiction of the Gopalgunj Court, on the ground that the object of the Legislature, viz. the protection of United Provinces agriculturists and their relief from indebtedness, would be frustrated and the Act ''become a dead letter if that contention of the plaintiff were to be accepted. The flower Appellate Court took the same view on the ground that the Act makes no reference to the residence of the plaintiff and lays down, irrespective of such residence, that whenever a suit for an unsecured debt is filed against an agriculturist defendant, who is a resident of the United Provinces, the Courts in those provinces and no other Courts have jurisdiction to entertain it.

The learned advocate for the applicant has laid stress on the fact that in the opening part of Section 7 of the United Provinces Act the words "shall be instituted and tried in a Court" are not followed by words like "in the United Provinces of Agra and Oudh;" but it is obvious that nothing turns on this in the circumstances of the present case, since the defendant is an agriculturist actually and voluntarily residing in the district of Gorakhpur in the United Provinces. The omission of the words "in the United Provinces, etc." in the section is not unintelligible, having regard to the provisions of clause (ii) of paragraph (b) of the section. I am unable to appreciate the argument of the learned advocate for the applicant and this was his principal argument that this commission, ''coupled with the mention of the United Provinces in Section 1, operates to prevent a right of action given by Section 20(c), Civil P.C. from being taken away by Section 7, United Provinces Act; and yet we must not overlook the facts that by Section 1(2), United Provinces Act "extends to the whole of the United Provinces of Agra and Oudh," and that u/s 80-A, Government of India Act, then in force, each Provincial Legislature was only empowered "to make laws for the peace and good Government of the territories for the time being constituting that province." The operation of the Act would thus be prima facie confined to the United Provinces, and it would be impossible to contend with any show of reason that such Sections of the Act, as for exam, pie Section 35 or 40, which imposes penalties "for entering in books of account a sum larger than that actually lent and for not giving receipts" or prescribes "stamp duty etc., on certain bonds by agriculturists" could have any operation outside the United Provinces.

The consideration that weighed with the learned Munsif that if agriculturists from the United Provinces could be sued outside those provinces, the object of the Legislature would be frustrated overlooks the circumstance that the United Provinces Legislature cannot be presumed even to have considered that it had power to protect the agriculturists of the United provinces from the extra-provincial consequences of the contracts that they might enter into outside the United Provinces. The learned Advocate for the defendant opposite party has cited Gurdyal Singh v. Raja of Faridkot (1895) 22 Cla. 222 and contended that the cause of action being personal, the suit must be tried in the jurisdiction in which the defendant resides. But the question that was decided in Gurdyal Singh''s case (1895) 22 Cal. 222 was the effect to be given in a Punjab Court to an ex parte decree passed in a Faridkot Court regarded as a foreign Court.

Such decrees stand on an entirely different footing from decrees passed by a Court in one province of British India and sent for execution to another province: see Sections 40 and 44, Civil P.C., and Sheo Tahal Ram Vs. Binaek Shukul and Oomar Hajee Ayoob Sait v. Thirunavukkarasu Pandaram A.I.R (1936) . Mad. 552. The contract in suit is prior to April 1935 when the United Provinces Act came into force. It must be taken to have been entered into by the parties with reference to the then existing law including Section 20(c), Civil P.C. Under that contract therefore, the Gopalgunj Court had jurisdiction to entertain a suit based on it, and the United Provinces Act does not even purport to take away the jurisdiction of Courts lying outside the United Provinces, even if it could be pretended that it had any power to do so.

The Act may be a good defence in suits brought in the Courts of the United Provinces to which it extends, but it seems to me clear that it cannot affect the jurisdiction of the Gopalgunj Court to entertain the suit not. withstanding the fact that the defendant is an agriculturist of Gorakhpur.

The application in revision must, therefore be allowed and the order to return the plaint for presentation to the proper Court set aside. The trial Court will now proceed to dispose of the suit in accordance with the law. The applicant is entitled to the costs incurred by him in all Courts so far, including a hearing fee of one gold mohur in this Court.