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1. This appeal is preferred by original defendants challenging the judgment and decree passed by the learned Civil Judge. Senior Division, Sangli, decreeing the plaintiff's suit for recovery of the amount of Rs. 16,252.06/- together with, interest at 6% per annum from the date of the suit till the date of realisation and also awarding the costs of the suit from the defendants.

2. The facts leading to the filing of the suit by the plaintiffs in the trial court are as under:

Plaintiff No. 1 is a well known manufacturer of farm machinery and pumps in India and plaintiff No. 2 is an Insurance Company registered under the Indian Companies Act. The defendants inter alia carry on business of transporting for hire, goods in their vehicles from one place to another all over the country and are common carriers within the meaning of Carriers Act III of 1865.

7. As against these contentions, Mr. Kotwal appearing for both the plaintiffs has made the following submissions :

As far as plaintiff No. 2's locus stand! is concerned Shri Kotwal had relied on defendants' consent to exhibit the said document i.e. the certified copy of the open General Insurance Policy. As it was once exhibited ii would have to be accepted that plaintiff No. 1 had taken the policy. Nextly. Shri Kotwal further contended that defendants had not-raised in the lower Court the point that Calcutta Court alone had jurisdiction to try the suit as per the last condition mentioned in the consignment note Ex. 49 and that the Sangli Court has no jurisdiction and at this late stage the defendants should not be allowed to raise this point for the first time. He further submitted that since it was the clause of ouster of the Jurisdiction of the Court which tried the suit this clause was also not made known to the consignor or for that matter to consignee before altering into the contract and therefore ouster of jurisdiction cannot be treated as a matter of assumption or presumption. He further contended that the exemption clause limiting the liability to the defendants which is to be found at the end of the consignment note Exh. 49 is unreasonable and oppressive. After taking into consideration all the circumstances relevant in this case, such an exemption clause excluding the jurisdiction of the Sangli Court should not be given effect to. In his submission the Court in considering the Question of ouster of jurisdiction ought to look into the balance of convenience as well, and the ouster of the jurisdiction is not to be lightly assumed. His main submission was that as the suit has been decided on merits the trial Court's finding as to jurisdiction is unassailable unless it is satisfactorily shown that it has caused a failure of justice.
"The Court in Calcutta City alone shall have jurisdiction in respect of all claims and matters arising under the consignment or of the goods entrusted for transport."

19. Relying on this term and condition, it is the contention of Shri Vashi that the Calcutta Court' alone had jurisdiction to try any claim or matter arising ' under the consignment or of the goods, so entrusted for transport In other words Shri Vashi submitted that the decree passed by Joint Civil Judge, Senior Division, Sangli will be a nullity and since the parties have chosen by this last clause of the consignment note, the forum in case of dispute, only the Court in Calcutta should have passed the valid decree for the suit amount and therefore, the decree passed by the Joint Civil Judge, Senior, Division Sangli was not binding on the defendants. This consignment note is signed only by representative of the defendants i.e. the Road Transport Corporation, but nowhere has it been signed either by the consignor National Pipes and' Tubes Co. Ltd., or on behalf of the plaintiffs, the consignees. It is thus an unsigned consignment; note which according to the defendants, operates as a special contract between the carrier and the consignor of the goods.

50. Reliance was placed on Surajmal Shiwbhagwan v. Kalinga Iron Works. to the effect that the ouster Of jurisdiction should not be assumed or presumed very easily or lightly. It is further observed as follows :--

"Ouster of Court's jurisdiction should not be easily construed and could not be assumed or presumed very easily. Ouster of jurisdiction must be proved by express words or by necessary or inevitable implications,"

51. As the suit baa been decided on merits the trial Courts finding as to the jurisdiction cannot be challenged by the appellants/defendants in this appeal. We enquired with Shri Vashi that when plaintiff admitted the liability for short delivery of goods what difference would have been made and what prejudice would have been caused to his client if the suit was to be filed in Calcutta Court than in Sangli Court. We also asked, him to indicate to us as to what failure of justice was caused as the suit was tried in Sangli Court. Shri Vashi was not able to give any satisfactory answer to himself, still less to us. The position that emerge therefore can be summarised as follows;