Ratan Lalji Gulab Chand vs Dali Chand and Others

This is a miscellaneous appeal on behalf of the Plaintiff. The lower court directed the return of the plaint to the Plaintiff holding that it had no jurisdiction to entertain the suit. On examining the records, we find that the plaint was not in the file of the lower Court and on 6-8-1953 we directed the Plaintiff-Appellant to inform us whether he had filed the suit in some other Court as directed by the lower Court. The learned Advocate for the Appellant states before us that the plaint was not filed or registered in any other Court but was with Plaintiff and has submitted the same before us today.

The facts of the case briefly are that Plaintiff filed a suit for the return of Rs. 6,805/-(H.S.) and also the return of the ornaments and clothes given to the Defendants or their price. The allegation of the Plaintiff was that the Defendants are members of a joint Hindu family, Defendant 1 being the manager; that it was agreed that the daughter of Defendant 1 be married with the brother of the Plaintiff, one Bholaram and that the agreement of marriage was entered into at Gangakhed, District Parbhani; that the Plaintiff had agreed to pay Rs. 8,000/- (I.G.) and that it was also decided that the marriage should take place at Khandala, Aurangabad District; that due to the disturbed conditions in the State, Bholaram left the State and went to reside in the Indian Union at Lasalgaon, where the ceremony of ''Sata'' was performed and where Rs. 4,000/-cash and clothing and ornaments offered to the bride''s side for which the Defendant has executed a receipt dated 27th Meher 1357 F; that after the Police Action when things came to normalcy, Bholaram returned to Gangakhed after which the ceremony of "Geina" was performed at Khandala where the ornaments were given to the bride for which a list was prepared; that on the appointed day of the marriage, Plaintiff and the bride-groom went to Khandala, but on the Defendant declining to offer the daughter in marriage, the marriage could not be performed. Plaintiff therefore demanded the return of the money and ornaments, etc. of the bride.

Plaintiff stated in his plaint that the contract of marriage having been agreed 10 at Gangakhed the Court had jurisdiction to entertain the suit. The Defendants, while giving their detailed reply to the Plaintiff''s allegations, submitted in paragraph 9 that the allegation that the agreement was entered into at Gangakhed was not correct and that the ceremonies of Sata and Geina having been performed at Khandala the lower Court has no jurisdiction to entertain the suit.

When an objection as to the jurisdiction of the Court is raised, it is desirable that the issue with regard to the jurisdiction should first be tried. But in this case we find that the lower Court framed issues on all the matters arising out of the suit and decided'' them in Plaintiff''s favour except the issue of jurisdiction with regard to which that Court decided that it had no jurisdiction as the ceremonies of ''Sata'' and ''Geina'' were performed at Khandala. That is an irregularity which should be avoided as far as possible. Another irregularity which we find in the procedure adopted by the lower Court is that the plaint was returned to the Plaintiff without conforming to the provisions of Order 7 Rule 10, Code of Civil Procedure. The plaint as presented before us today does not bear any of the endorsements as laid down in Clause (2) of Order 7 Rule 10. We heard the arguments of the learned Advocate for the Appellant. The Respondents are absent.

The main question to be considered is whether (as alleged by the Plaintiff in paragraph 1 of the plaint) the agreement of marriage was entered into at Gangakhed. In this respect we find that the lower Court has framed issue No. 2. While discussing the said issue, the lower Court has relied upon the notes of arguments submitted by the lawyers on both the sides and that Court has made a remark that the note submitted on behalf of the Plaintiff was not extensive nor does it relate the names of the witnesses. We cannot approve or look with favour such a method of dealing with the case or discussing the evidence. The lower Court ought to have weighed the whole evidence and read the same. Mere reliance on the notes submitted by the parties is not in consonance with the law. While discussing that issue the lower Court has held that the evidence shows that there was a talk at Gangakhed with respect to the marriage in question. But the Court regards the same as preliminary talk which should be considered as an offer on behalf of the Plaintiff; and that a subsequent performance of the ceremony of Sata at Lasalgaon, Nasik District which should be considered as acceptance.

It is to be noted that at Lasalgaon the Plaintiff went with cash and other ornaments to be given to the bride and that was clearly in pursuance of the agreement of marriage entered into at Gangakhed. The view of the lower Court that it was only a preliminary talk and that was held at Gangakhed is, in our opinion, not correct. In this connection the Plaintiff has produced three witnesses P.W. 2 Harikishen was present at Gangakhed when the agreement was entered into. He stales clearly that this agreement of marriage was enter into at Gangakhed and that it was entered at the house of Ratanlal, the Plaintiff where the Defendants had come for the purpose. It was agreed that the daughter of Dali Chand (Defendant 1) should be given in marriage to Bholaram, the brother of Plaintiff, and that it was also agreed that Dali Chand be paid Rs. 8,000/- in consideration of the marriage. He further states that due to the insurgence of the Razakar movement and their threatening activities, the witness had gone to Lasalgaon where after sometime Bholaram also shifted. He also states that it was at Lasalgaon that the ceremony of ''Sata'' was performed. He states that the ceremony of ''Chatna'' was performed at Gangakhed.

It appears, according to the statement of the witness, that according to the ceremony of "Chatna" prevalent in their community, a barber axried a message on behalf of the bride''s father. The witness states that Lalu, the barber had gone to Gangakhed on behalf of Dali Chand. He further states that Rs. 300 (I.G.) were paid to the said barber and that they were entertained for which they were paid Rs. 30/-. The witness states that the ceremony of "Chatna" was performed some days after Diwali. Thus it is clear that the agreement of marriage was entered into at Gangakhed according to the statement of this witness. P.W. 4 Radhakrishen also states that Dali Chand had gone to Gangakhed to the house of the Plaintiff where the agreement of marriage was entered into. It was agreed that the daughter of Dhuliram should be given in marriage to Bholaram, the brother of Ratanlal. He states that several persons were present at the time of the agreement; he states that it was agreed that Rs. 8,000/- be Paid in consideration of the marriage by Ratanlal to Dali Chand; that Dali Chand saw Bholaram and approved him; he further states that on account of the threats of the Razakars, Bholaram left Gangakhed and went to Lasalgaon in Nasik District. There is nothing in the statement of this witness to indicate that the talk between the parties at Gangakhed was only of a preliminary nature or inconclusive.

P.W. 5 Mukund Mahraj also states that the agreement of marriage was entered into at Gangakhed according to which it was agreed that the daughter of Dali Chand be given in marriage to Bholaram brother of the Plaintiff. It was the month of Savan. He states that he was acting as a Brahmin at the time of the agreement. Dali Chand, the Defendant himself, was produced on behalf of the Plaintiff in the witness box, (though the correct procedure ought to have been, for the Defendant to submit himself for cross-examination on his own behalf), the said Defendant has stated that the ceremony of "Chatna" was performed. From his statement it can be inferred that the ceremony of "Chatna" means the fixing of the date for the marriage. The witness states that he had sent Lalu, barber, with a letter intimating the date fixed for the marriage and requesting payment of certain moneys, viz., Rs. 300/- (I.G.) for their expenses to go to Nagar and Rs. 30/- for entertainment expenses and some other expenses. That letter is Ex. No. 3 which is proved by the statement of Harikishen, P.W. 1. The lower Court did not devote any attention to this important document and has therefore not been able to appreciate the evidence-of the Plaintiff.

From that letter it is very clear that the agreement of marriage was entered into at Gangakhed which was confirmed by the Defendant as per Ex. No. 3 sent with his barber Lalu. If the first meeting at Gangakhed between the Plaintiff and Defendant 1 in which the agreement of marriage was negotiated, can be called an "Offer" the letter sent with Lalu barber was an "Acceptance" by the Defendant. That letter was delivered at Gangakhed. So even looking from the point of view of offer and acceptance, the agreement of marriage was completed at Gangakhed. We are therefore of the opinion that u/s 20, Clause (c) the cause of action, did arise in part at Gangakhed where the agreement of marriage was entered into. In--Bhag Singh v. Labh Singh AIR 1917 Lah 12 (A), it has been held that the Court within whose jurisdiction the cause of action arises, wholly or in part, has jurisdiction to entertain the suit. That was also a case of contract of betrothal subsequently broken.

In a suit for damage in a breach of contract, the cause of action consists of the making of the contract and of its breach. Therefore, the suit may be filed either at the place where the contract was made or the place where it should have been performed and the breach; occurred. Vide--Dhunjisha v. F forde 11 Bom 649 at p. 652 (B);--Doya Narain Tewary v. Secretary of State 14 Cal 256 (C); and--Seshagiri Row v. Askur Jung 27 Mad 194 (D). Thus in this case the contract was made at. Gangakhed though broken subsequently at Khandala. The suit therefore could be filed at Gangakhed as well as at Khandala. The view of the lower Court that the suit could have been filed at Khandala or Lasalgaon only is incorrect. We, therefore, set aside the order of the lower Court and remand the case to the lower Court for disposal according to law. We direct that the lower Court should take the suit on, its file and proceed according to law as the suit was correctly filed in that Court. The appeal is allowed as above: the costs of this appeal to abide the result.