ORDER

Bajpai, J. - This is an application in revision by the plaintiff whose suit has been dismissed by the Court below. The facts may be briefly stated. Sometime towards the end of January 1934 the plaintiff and the defendant entered into a contract by which the latter was to supply 905 bags of Saharanpur chapati atah to the plaintiff in the month of February 1934 at the rate of Rs. 6-3 per bag. The defendant could supply only 151 bags, and thus there was a deficit in the supply of 754 bags. The plaintiff, therefore, brought a suit in the Small Cause-Court at Allahabad for the recovery of damages arising on the breach of the contract made by the defendant. The defence was that the Small Cause Court at Allahabad had no jurisdiction; that there was no breach of contract by the defendant and that the amount of damages was excessive. This case had had a chequered career, in the sense that the Small Cause Court at Allahabad tried this suit on 26th November 1934 and came to the conclusion that the plaintiff was entitled to damages at the rate of Re. 1 on 754 bags. He overruled the preliminary objection that the Allahabad Courts had no jurisdiction. There was a revision to this Court by the defendant and a learned Judge of this Court remanded the case after having corrected the Court below on a question of law. What the Court below had done in the first instance was to find out the contract price of each bag and that was very easy. It worked out to be Rs. 6-3 per bag. The Court then tried to find as to what was the prevailing rate in Allahabad at which Saharanpur chapati atah was sold about the end of February or the beginning of March 1934.

2. That rate was Rs. 7-3 per bag, and the Court below was of the opinion that the plaintiff was entitled to damages per bag on the difference between Rs. 7-3 and Rs. 6-3 because that was the profit which the plaintiff could make. It was pointed out by this Court that this method of assessing damages was contrary to law. It was said that if the plaintiff took no steps to buy flour elsewhere in order to make up the deficiency, then the plaintiff would not be entitled to a decree merely because he might have made a profit if the defendant had supplied the flour. When the case went back to the Small Cause Court Judge he dismissed the plaintiff's suit on 30th September 1935 with the finding that there was no evidence at all on behalf of the plaintiff on the point mentioned by this Court and therefore the suit must be dismissed in accordance with the law laid down for the subordinate Court by this Court. The plaintiff has now come up in revision, and before I proceed to dispose of the contention advanced by the plaintiff it is necessary that I should mention some of the points taken by the defendant opposite party. It is once more argued before me that the Allahabad Court had no jurisdiction. It is submitted by learned Counsel for the opposite party that the view taken by the learned Judge of this Court inter partes is binding on all points, and if it is said to be not binding on any particular point it should be held to be not binding on any point whatsoever. It is, therefore, said that if I intend to hold a view different from what was held by this Court on the former occasion, I should also consider the question as to whether the Allahabad Court had jurisdiction in the matter, a point which was decided against the defendant on the former occasion.

3. The plea, therefore, that is advanced before me in the very beginning is that the plaintiff should be directed to present his plaint at Saharanpur. Now there can be no doubt that where there are two Courts, both of which would normally have jurisdiction to try the suit, the parties may be allowed to agree among themselves that the suit should be brought in any of those Courts and not in the other. This was held in Achratlal Kesavlal Mehta & Co. v. Vijayam, & Co. 1925 Mad 1145; A. Milton & Co. v. Ojha Automobile Engineering Co. 1931 Cal 279 and Tilakram Ch