ORDER
D.B. Lal, J.
1. This is an application under Order 14. Rule 5 of the Civil Procedure Code and the question relates to the amendment of the preliminary issue upon jurisdiction framed by my learned brother Thakur, J., in a manner so that the burden of proof is levied upon the plaintiff and not upon the defendants. The application arises in the following circumstances.
2. The plaintiff Raja Virbhadra Singh has filed this suit for recovery of rupees one lac and odd from Messrs. Ro-shan Lal Kuthiala forest contractors Pa-thankot and others, and the facts culminating in a cause of action as alleged in the plaint are that an amount of Rupees 50,000/- was paid by the plaintiff to the defendants on 24-6-1962 at Simla, that with the consent obtained from the plaintiff at Simla another amount of Rupees 50,000/- was transferred from Yamuna-nagar to Pathankot. that the statement of account was rendered to the plainiff at Simla, and that communication admitting the liability was sent-and verbal demands were also made at Simla. It is further alleged that, the parties also 'mainly reside at Simla'. On these factual allegations it is submitted that the cause of action arises at Simla and the High Court has jurisdiction to Pass the decree.
3. In the written statement which I have carefully considered, each one of these allegations has been denied, and it is obviously for the plaintiff to prove either all or some of these facts to bring in a cause of action which arises at Simla so that the High Court has jurisdiction to try the suit. It is abundantly clear that if none of the parties leads evidence, the plaintiff is to fail and the suit is to be thrown out for want of jurisdiction. Therefore, the test regarding burden of proof is satisfied and it is for the plaintiff to establish facts under Section 20 of the Civil Procedure Code so that he could say that the suit can be instituted in the High Court at Simla.
4. It is manifest the plaintiff has pleaded his case for conferment of jurisdiction under Section 20 and it is for him to establish that either the defendant actually and voluntarily resides or carries on business at Simla, or that the cause of action, wholly or in part, arises at Simla. The plaintiff has made certain definite allegations to prove all this. The defendants have denied all these allegations. Itis then for the plaintiff to prove such allegations so that the jurisdiction is conferred upon this High Court to try the suit.
5. In this connection the defendants relied on Surai Karan v. Sitaram, AIR 1952 Raj 31 and Sankalchand Ha-kamchand v. Ambalal Nagindas, AIR 1930 Bom 150 (2). In both these decisions it was held that in a case where a suit is brought in a particular Court under the provisions of Section 20. it is for the plaintiff to prove that at the time the suit was filed the Court where he brought the suit has iurisdiction to try it and for that purpose he has obviously to establish the correctness of the facts alleged by him. The learned Counsel for the plaintiff relied on Raizada Topandas v. Gorakh-ram Gokalchand. AIR 1964 SC 1348, but this decision is rather helpful to 'the defendants. The following observation will, of course, be pertinent:--
'The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum chosen. If he frames his suit in a manner not warranted by the facts, and goes for his relief to a court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper court, for the plaint, as famed, would not justify the other kind of court to grant him the relief. If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper court. If, on the other hand, it is found that, having regard to the nature of the suit, it is not cognizable by the class of court to which the court belongs, the plaintiff's suit will have to be dismissed in its entirety.'
Thus it was for the plaintiff to establish the correctness of the facts alleged by him so that it could be held that the suit was triable by the High Court at Simla. The other case relied on by the plaintiff Mula v. Babu Ram. AIR 1960 All 573 is really besides the point. In that case, a learned Single Judge of that Court was considering a case where the plaintiff claimed relief under Sections 9 and 54 of the Specific Relief Act and framed his suit with that specific purpose in view, The defendants, however, contended that the suit was barred as they were the tenants and under the U. P. Tenancy Act the suit was maintainable in a revenueCourt. The learned Judge observed, following a Full Bench decision of that Court, that it was for the plaintiff to determine his own cause of action and it he chose to do so under Sections 9 and 54 of the Specfic Relief Act, the iurisdiction of the Civil Court was not barred. Thus the ratio of that case is not at all helpful to the plaintiff. In the instant case, the plaintiff has chosen his forum and no one has questioned, his right to do so The only controversy raised is, as to whether the suit is cognizable in the High Court at Simla because the facts conferring jurisdiction to Simla Court are categorically denied by the defendants, and it is for the plaintiff to prove such facts.
6. In view of all that I have stated above. I am of considered opinion that the issue framed need be re-cast under Order 14, Rule 5 so that the burden of proof is thrown upon the plaintiff to establish facts conferring jurisdiction upon this Court.
7. Accordingly I re-cast the issue and substitute it in the form mentioned below:--
'Issue No. 1. Whether this Court has jurisdiction to try the suit?'