Bapna, C.J.—This is an appeal under Order 43, Rule 1 of the Civil Procedure Code against an order of the learned Civil Judge of Balotra, dated 6th August, 1934 in suit No. 30/50.

2. The plaintiffs-appellants are Ramkaran, his sons Bhanwarlal, Rameswar and Ramrakh and the defendant respondent is Jethabhai, son of Nensi Gujrati, resident at Bombay. The case set out by the plaintiffs in their amended plaint is that the plaintiffs were carrying on business at Karachi and became displaced persons on the formation of Dominions of India and Pakistan. It was alleged that the defendant carried on business at Bombay under the name of Nensi Deosi and there was a branch of it at Karachi. This branch came to be closed on the formation of Dominions of India and Pakistan. It was alleged that on 20th September, 1946 there was a contract between the parties by which it was agreed that the plaintiffs will give delivery of 225 bags of Khopra at a certain rate to be delivered at the end of three months from the date of contract. It was alleged that the plaintiffs offered delivery on the due date which was said 10 be 3rd January, 1947, but the defendant did not take delivery of the goods whereupon it was alleged that the plaintiffs became entitled to claim damages amounting to Rs. 5118/12/9 from the defendant. The suit was for recovery of this amount. The suit was instituted at Balotra in the court of District Judge, Balotra, by reference to sec. 3 of the Rajasthan Displaced Persons (Institution of Suits) Ordinance, 1949 on the ground given in para 7 that the plaintiffs were displaced persons and lived at Balotra and therefore the court had jurisdiction under sec. 3 of the Rajasthan Displaced Persons Ordinance, 1949.

3. The defendant filed a written statement denying the plaintiffs to be displaced persons. It was admitted that the defendant carried on business at Karachi, in the name of Nensi Deosi, but it was pleaded that on the formation of Pakistan he became a displaced person and had begun to live at Bombay. The defendant denied to have entered into the transaction as alleged by the plaintiffs, or that any delivery was offered and refused. The amount of damages claimed was also denied. It was pleaded that the plaintiffs were the old resident of Balotra and were not displaced persons.

4. Preliminary issues were framed on 10th May, 1951 and amended on 15th September, 1952. Issue No. 1 was whether plaintiffs were displaced persons and issue No. 2 was whether the defendant was not a displaced person. After recording evidence the court found that the plaintiffs were not displaced persons and therefore could not take the advantage of sec. 3 of the Rajasthan Displaced Persons Ordinance, The court also found that the defendant was a displaced person and for that reason also the suit could not be instituted at Balotra. The court by its order, dated 16th August, 1954 directed that the plaint be returned to the plaintiffs for presentation to the proper court. The plaintiffs have filed this appeal.

5. The plaintiffs have produced evidence to show that they were carrying on business in the name and style of Ramkaran Bhanwarlal at Karachi and Rameshwar plaintiff has testified that at the time of the formation of Pakisthan the plaintiffs were actually living at Karachi and had to run away from Karachi in January, 1948. It was said by him that prior to their coming to Balotra they had no business at Balotra. Rameshwar however admitted in cross examination that they had their ancestral house at Balotra. P. W. 3 Ramjas son of Hazarimal further admitted in cross-examination that for generations past the plaintiffs lived at Balotra, but they had also a shop at Karachi and had left the place because of the formation of Pakistan. Ramjas P. W. 2 son of Gulabdass and who is also brother of Ramkaran stated that the plaintiffs had a shop at Karachi which had to be closed because of the formation of Pakistan. He said that the plaintiffs lived with their children at Karachi

Click Here to Read the rest of this document