Hardey Narain vs Lal Jee Lall on 1 June, 1882

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Calcutta High Court
Hardey Narain vs Lal Jee Lall on 1 June, 1882
Equivalent citations: (1883) ILR 9 Cal 105
Author: Cunningham
Bench: Cunningham, Tottenham


Cunningham, J.

1. This action is brought on a promissory note made at Durbhunga in the Mozufferpore District, but payable (as the evidence appears to us sufficiently to prove that the parties intended) in the Monghyr district. A plea is raised to the jurisdiction of the Bhagalpore Court, on the ground that the cause of action, within the meaning of Section 17 of the Code, did not arise within the local limits of its jurisdiction. This raises the question whether, when a contract is made in one place) for fulfillment in another, a suit for the breach can, under Section 17 of the Code, be brought in the District where performance was intended to take place and the breach occurred, or whether the cause of action includes not only the breach on which the suit is brought, but the contract and other circumstances which, together with the breach, go to constitute the plaintiff’s right to sue.

2. Conflicting decisions have been given by the English Courts as to the meaning of the corresponding words in the Common Law Procedure Act, 1852, Section 18, the latter of the two just mentioned views being taken in Sichel v. Borch 33 L.J. Ex. 179; Allhusen v. Malgarejo L.R. 3 Q.B. 340 and Cherry v. Thomson L.R. 7 Q. 13. 573; the former in Jackson v. Spittal L.R. 5 C.P. 542 and ultimately by agreement in Vaughan v. Weldon L.R. 10 C.P. 48.

3. On the Original Side of this Court the provisions in the Letters Patent enabling a suit to be brought, “with the leave of the Court,” if the cause of action has arisen wholly or partially within the local jurisdiction, has been understood as suggesting the inference that “cause of action” means, for the purposes of suits on the Original Side, the contract as well as the breach; and this view appears to have been taken on the Original Side of the Bombay, and until recently, of the Madras High Court: see Sugan Chand Shivdas v. Mulchand 12 Bom. 123. But on the Appellate Side there are decisions which we consider binding upon us, under which the rule laid down has been that the cause of action may, for the purposes of giving local jurisdiction to a Mofussil Court, be deemed to arise at the place where performance ought to take place, and where the breach occurs, a construction which corresponds to that agreed to by the English Judges in Vaughan v. Weldon L.R. 10 C.P. 48 adopting the decision of the Judges of the Common Pleas in Jackson v. Spittal L.R. 5 C.P. 542 as to cases under the Common Law Procedure Act, 1852.

4. In Gopi Krishna Gossami v. Nil Komul Banerjee 13 B.L.R. 461; s.c. 22 W.R. 79 a contract was made at Serampore, for certain transactions to be carried on in Calcutta, A agreeing to advance funds on condition of repayment with interest within a certain date. The money was paid partly in Serampore and partly in Calcutta. A suit was brought in the Hooghly Court for recovery of the balance of the sum advanced, and it was urged that, as the whole of the cause of action did not arise within the local jurisdiction, an action would not lie. Markby and Birch, JJ., held, that the action might be brought in the place where the money was to have been paid, referring to the decision of the Privy Council in Lachmee Chund v. Zorawur Mull 8 Moore’s I.A. 291 in which it was hold that the central place of business of the contracting firm, being the place where the books were kept, the accounts would have to be balanced, and the payment of the balance, if any, made, was the place where the plaintiff’s action lay. This view was also taken by a Full Bench at Agra Prem Shook v. Bhekoo 3 Agra 242. The same view was adopted in Hills v. Clark 14 B.L.R. 367 where Jackson, J. held that where a contract was made in Moorshedabad for seed to be delivered in Nuddea and to be paid for, on delivery, by an order to be sent to plaintiff at Moorshedabad on receipt of the goods, a suit for non-payment would lie in the Moorshedabad Court. In this case, the authorities were considered and reliance appears to have been placed on the views expressed by Holloway, J., in DeSouza v. Coles 3 Mad. H.C. 384.

5. The same view was taken by Morgan, C.J. and Innes, J. in Sami Ayyangar v. Gopal Ayyangar 7 Mad. H.C. 176. In that case the defendant executed in the Tanjore District a mortgage of land situated in the Trichinopoly District. In order to make it enforceable, the deed required registration in the Trichinopoly District. The suit was brought to compel the defendant to register, and it was hold that though the contract was made in Tanjore, the cause of action had arisen in Trichinopoly, inasmuch as, from the nature of the act to be performed, it was the place of the fulfillment of the obligation. It is true that in this case the obligation on which the action was brought arose directly from a statutory requirement, instead of as in the case before us, from contract; but this does not in our opinion affect the application of the rule laid down.

6. In Muhammad Abdul Kadar v. E.I. Railway Co. I.L.R. 1 Mad. 377 Kernan and Kindersley, JJ. adopted, even in a case on the Original Side of the Court, the rules laid down in Gopi Krishna Gossami v. Nil Komul Banerjee 13 B.L.R. 461; s.c 29 W.R. 79 and Vaughan v. Weldon L.R. 10 C.P. 48. We consider ourselves accordingly bound by authority, unless it can be shown that the state of the law has been altered by subsequent legislation. As to this it is contended that the illustrations given to Section 17 of the Code of Civil Procedure are to be read as adopting and sanctioning the view that the cause of action embraces the contract as well as the breach, and that, consequently, where the contract is made in one place and the performance is to take place in another, no local jurisdiction arises.

7. This is not in our opinion the proper inference to be drawn from the illustration. The Legislature has, in the Code of Civil Procedure, thought fit not to define “cause of action.” This omission may have arisen from the circumstances that different views wore held in different Courts on the point, and that the framers of the Act did not consider it desirable on that occasion to lay down one uniform rule. At any rate, there is no definition of “cause of action,” nor any illustration immediately directed to pointing out where the cause of action arises and where it does not. This being so, it appears to us that the illustrations are intended merely to illustrate the rules laid down in the section,–1st, that a suit may be brought either where the cause of action arose, or the defendant resides or carries on business; and 2nd, that where there are several defendants, the action may be brought either where the cause of action arose or any one of the defendants resides or carries on business, provided the leave of the Court be obtained or the other defendants acquiesce.

8. In both instances the illustrations appear to us to avoid the question as to what constituted “cause of action” by giving facts which, on any theory, would be held to constitute it: and the utmost that, in our opinion, can fairly be inferred from their language, is that there is no intention to show that the narrower definition is the one sanctioned by the Code. This, however, falls entirely short of laying down a rule on the subject, and leaves the matter where it previously was.

9. We therefore do not consider that the illustrations have modified the previously existing state of the law, and this being so, we are bound to follow the previous judgments of the Court, which appear to lay down the more convenient rule and to be sanctioned by the concurrence of several of the other High Courts and the resolution of the English Judges in Vaughan v. Weldon L.R. 10 C.P. 48.

10. As to the question of the payments alleged by the defendant and the points raised in appeal, we concur in the view taken by the original Court.

11. The appeal must, therefore, be dismissed with costs.

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