Ganesh Narain Sahi Deo vs Manik Lal Chandra and others

Das, J.—This appeal arises out of a suit instituted by the appellant for setting aside a decree obtained by the respondent against the appellant in the Original Side of the Calcutta High Court sometime in 1917. The defendants 1 and 2 were the plaintiffs in the suit which was instituted in the Original Side of the Calcutta High Court. It appears that there was an agreement between the plaintiff of the first part and defendants 1 and 2 of the second part and defendant No. 3 of the third part by which defendant No. 3 who had previously taken a lease of certain forest belonging to the plaintiff agreed to supply certain sleepers to defendants 1 and 2 at a certain price and the plaintiff agreed to stand surety for defendant No. 3 and to pay all damages for non-delivery that might be sustained by defendants 1 and 2. Defendants 1 and 2 alleged in the suit which they instituted in Calcutta that defendant No. 3 failed to deliver the sleepers to them and by the suit which they instituted on the 10th December 1914 they asked for damages not only as against defendant 3 but also as against the plaintiff. On the 10th February 1915 defendants 1 and 2 got an ex-parte decree against the plaintiff and defendant No. 3. On the 10th February 1916 defendants 1 and 2 applied for execution of the decree in the Court of the Subordinate Judge of Ranchi. On the 14th April 1916 the plaintiff applied in the Calcutta High Court for setting aside the ex-parte decree. On the 11th August 1916 the decree was set aside on certain terms which it will be necessary to consider when we come to deal with the question of jurisdiction of the Calcutta High Court. On the 21st November 1916 the suit was decreed as against the plaintiff upon contest. The plaintiff thereupon appealed to the Appeal Court. In May 1917 the Appeal Court remanded the suit for trial of certain issues. On the 6th July 1917 the suit was finally decreed for Rs. 21,600. In September 1917 the defendants 1 and 2 took out execution in the Court of the Subordinate Judge of Ranchi and on the 17th November 1917 the suit out of which the present appeal arises was instituted by the plaintiff who was defendant No, 3 in the previous action. His case is that the decree obtained by defendants 1 and 2 against him was fraudulent, and secondly, that the Original Side of the Calcutta High Court had no juris, diction to entertain the suit. So far as the first question is concerned it is sufficient to say that the plaintiff appeared in that suit from start to finish and there is no ground for setting aside the decree on the ground of fraud. So far as the second point is concerned it is suggested that the plaintiff is not a resident of Calcutta but is a resident of Srinagar in Ranchi, that the contract was entered into in Gumla and that the breach of the contract, if any, took place in Ranchi. It is argued on behalf of the appellant that there was a lack of inherent jurisdiction in the original side of the Calcutta High Court and that consent could not confer jurisdiction on that Court.

I quite agree that if there was absolutely he jurisdiction in the Calcutta High Court to entertain the suit the consent of the parties could not confer any jurisdiction upon the Court. But it has got to be considered whether there was the absence of that jurisdiction in the Court. It will be noticed that when the time for performance of the contract came Messrs. B.N. Basu and Co. Solicitors on behalf of the plaintiff wrote and addressed the following letter to the defendants.

The letter runs as follows:-

Dear Sirs.

A mere denial on your part that you have not failed to fulfil your part of the agreement will not help you in altering facts. In spite of repeated requisitions by our client you failed to provide with the necessary funds and you have thereby put him to heavy loss. Our client has instructed us to take proper steps in the matter.

We understand that after writing to us the letter under reply you wrote a letter to our client. As you have failed to perform your part of the agreement he is not bound to supply you with any sleepers which please note.

This letter was written in Calcutta and was 8 repudiation of the agreement between the defendants 1 and 2, and the plaintiff. Defendants 1 and 2 acted upon this repudiation and promptly proceeded to bring a must against the plaintiff in the Original Side of the Calcutta High Court. Now, it seems to me that the breach of the agreement took place in Calcutta and that being so part of the cause of action arose within the limits of the ordinary Original Jurisdiction of the Calcutta High Court. It is quite true that defendants 1 and 2 who were the plaintiffs in that action should have taken the leave of the Court under clauses XII of the Letters Patent before instituting the suit. But it has been held in numerous cases that if there is submission to the jurisdiction of a Court and if there is no inherent lack of jurisdiction in that Court, the absence of formality which would confer complete jurisdiction on that Court will not render the judgment of that Court null and void. Part of the cause of action as I have said, arose within the jurisdiction of that Court. There was therefore not an entire absence of jurisdiction in the Original Side of the Calcutta High Court taking cognizance of the suit. In order to give a complete jurisdiction it was necessary for the plaintiff in that action to ask the leave of the Calcutta High Court. It is quite true that leave of the Calcutta High Court was not taken when they instituted the suit in 1914. But then the plaintiff submitted to the jurisdiction of the Court and expressly undertook not to question the jurisdiction of the Court. That undertaking was given when they applied for setting aside the ex parte decree. One of the terms of the consent order by which the ex parte decree was set aside was that the plaintiff would not question the jurisdiction of the Calcutta High Court. In my opinion the Calcutta High Court had jurisdiction to render judgment in the case. That being so, it is quite impossible to set aside the judgment of the Calcutta High Court. The view of the learned Subordinate Judge is perfectly right and I would dismiss this appeal with costs.

Foster, J.

I agree.