JUDGMENT

1. This appeal raises the question whether the plaintiff-appellant's suit was triable in the Court of the Civil Judge of Bahraich. The learned Civil Judge of Bahraich, before whom the suit came up for hearing, framed a preliminary issue upon the point whether the suit was within the jurisdiction of the Bahraich Court and came to the conclusion that the suit did not lie in Bahraich but at Fatehgarh. Consequently, he returned the plaint for presentation to the proper Court. The plaintiff-appellant brought a suit for recovery of Rs. 11,000 as damages for a breach of the contract against the defendants-respondents. The plaintiff is a contractor of forest and carries on the business of supplying wood and took a contract from the Nanpara estate of Manauria jungle for a period of three years in the month of October 1933. The plaintiff purchased certain wood of the Manauria jungle for Rs. 14,500 in October 1933 from the Nanpara estate in Bahraich. The purchase money was to be paid by instalments and the wood was to be taken from the jungle within three years from the date of the purchase. He was required to pay an instalment of Rs. 4125 in March 1934 and in case of default the estate was authorised to cancel the contract of purchase. As he did not possess sufficient funds, he entered into an agreement with the defendants who carry on trade in timber on 29th October 1933. Under this agreement the plaintiff was to supply 12000 cubic feet of logs to the defendants at the Matera Station, B. & N.W. Railway, at a certain rate, which were to be approved by the passing officer of the Gun Carriage Factory. In pursuance of this agreement, the defendants selected 353 logs out of the jungle, made their own mark on them and agreed that even if the passing officer of the Gun Carriage Factory did not pass the logs, the defendants would purchase them all the same. The plaintiff carried the 353 logs to the Matera station and, according to the plaint they were lying at the station at the date of the suit. The passing officer of the Gun Carriage Factory refused to pass and accept the logs and the defendants refused to carry out their part of the contract in purchasing the logs lying both at the Matera station as well as in the jungle. Being driven into an awkward position by the conduct of the defendants, the plaintiff entered into a fresh agreement with them on 18th March 1934 (Ex. 2) in order to enable him to remove the goods from the jungle by paying the instalments due from him to the Nanpara estate. Clauses 1, 3 and 5 of this agreement are material. The agreement recites that the plaintiff had taken Rs. 5596-9-0 from the defendants but was unable to supply timber. It further recites that the plaintiff sold 353 logs of wood lying at the Matera Railway station to the defendants for a sum of Rs. 3213-8-0 at a certain rate. The agreement also states that the plaintiff would sell 10,000 sleepers from the jungle of Manauria at a certain rate to the defendants under certain conditions.

2. Clause 1 of the agreement lays down that the price of the sleepers will be paid in the following manner: (a) The balance of the money in the hands of the plaintiff after deducting the price of 353 logs will be credited towards the price of the sleepers. (b) A sum of Rs. 4125 will be paid by the defendants to the Nanpara estate towards the jungle instalment due from the plaintiff for March 1934. (c) The defendants will further pay for the cost of cutting, sawing and cartage of the sleepers and the cost of getting them passed, (d) If there was any balance left towards the price of the sleepers, it will be paid in cash to the plaintiff. Clause 3 lays down that the plaintiff will bring 1000 sleepers to the Matera station by 15th May 1934, and get them passed by that date, the remaining 9000 sleepers will be supplied in the end of June 1934, and passed on that date and the defendants were to pay the price of the sleepers approved and passed and not of those that were