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Mahomed Habibulla Khan Vs. Aimila Automobile Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 1 of 1930 and Suit No. 1340 of 1930
Judge
Reported inAIR1930Bom220; (1930)32BOMLR411
AppellantMahomed Habibulla Khan
RespondentAimila Automobile Co.
DispositionAppeal allowed
Excerpt:
.....code (act v of 1908), order xxv, rule 1 - application for security for costs-plaintiff residing in british india four years prior to the suit-no order for security of costs.;the plaintiff, a resident of bhopal, a native state, was living in poona for four years prior to the suit which he filed in the high court against the defendants, the defendants having applied under order xxv, rule 1, of the civil procedure code, for an order directing the plaintiff to give security for the payment of their costs :--;that on the date of the application for security for costs the plaintiff was not ' residing out of british india,' and consequently order xxv, rule 1, did not apply and no order for security for costs could be made.;mahomed shuffli v. laldin abdula (1878) i.l.r. 3 bom. 227 and hanif..........coats under order xxv, rule 1, of the civil procedure code, the plaintiff was ' residing out of british india.' the evidence of the plaintiff is really uncontradicted that he has been living in poona for the last four years. even the defendants in their affidavit have to admit that ho has been ' for some time past staying at poona for change of air,' as they call it. it is also clear on the pleadings and the correspondence annexed thereto that the original transaction about this car was as long ago as february 1928. it further appears from a copy letter at page 29 of the papor-book, dated july 21, 1928, and addressed by the defendants to the plaintiff, that the plaintiff was tlien living at ' 2008 st. vincent street, poona' which is exactly the same address as he now has.2. it is.....
Judgment:

Amberson Marten, Kt., C.J.

1. In this interlocutory appeal from the judgment of Mr. Justice Mirza the sole point is whether on the date of the application for security for coats under Order XXV, Rule 1, of the Civil Procedure Code, the plaintiff was ' residing out of British India.' The evidence of the plaintiff is really uncontradicted that he has been living in Poona for the last four years. Even the defendants in their affidavit have to admit that ho has been ' for some time past staying at Poona for change of air,' as they call it. It is also clear on the pleadings and the correspondence annexed thereto that the original transaction about this car was as long ago as February 1928. It further appears from a copy letter at page 29 of the papor-book, dated July 21, 1928, and addressed by the defendants to the plaintiff, that the plaintiff was tlien living at ' 2008 St. Vincent Street, Poona' which is exactly the same address as he now has.

2. It is contended that notwithstanding this length of time the plaintiff is only here for some temporary purpose and that accordingly he is not residing in British India. The alleged temporary purpose of ' change of air ' may be dismissed as fanciful, having regard to the length of time. As regards the alleged political reasons which he has stated in his own affidavit in reply, their exact nature is not stated, but the mere existence of such reasons is not in my judgment sufficient to convert what would otherwise be residence into non-residence.

3. As regards authorities, it was urged that this case was concluded by Mahomed Shuffli v. Laldin Abdula ILR (1878) 3 Bom. 227, a decision of Sir Charles Sargent, where he held that the residence intended in Section 380 of the Civil Procedure Code of 1877 was residence under such circumstances as will afford reasonable probability that the plaintiff' will be forthcoming when the suit is decided. Assuming without deciding that the test there adopted was the correct one and is indeed based partly on the inference to be drawn from Section 382 (which is now embodied in Order XXV, Rule 1, Sub-rule (2)), what reason is there to think that the plaintiff will not be forthcoming when the suit is decided I can find none. In the above case, the party then in question was a native of Kabul in Afghanistan who had been for many years staying in different parts of British India and had been carrying on business at Calcutta, Benares, Amritsar, Multan and Bombay, but he had only been in Bombay for some four months before the application then in question. On those facts I can well understand the order that Sir Charles Sargent thus made in 1878. But the facts there are widely different from those we have now before us, and that case is clearly distinguishable from the present.

4. A case on the other side of the line is Fernandez v. Wray ILR (1900) 25 Bom. 176 : 3 Bom. L.R. 201, decided by Sir Lawrence Jenkins and Mr. Justice Tyabji. There the defendant had been the Political Agent of Kolhapur and had left Kolhapur on his way to England on furlough. He arrived in Bombay on March 7, and sailed for England on the 10th, and it was held that though he was only in Bombay for three days, yet nevertheless at that time ho had no permanent residence and therefore his temporary residence in Bombay for three days was enough to give the Court jurisdiction under Clause 12 of the Letters Patent.

5. There is also the case of Hanif v. Kulsama : (1921)23BOMLR1253 where the a plaintiff' was a resident of a Native State and came- to Bombay only for the purpose of a criminal complaint that he had filed in the Presidency Magistrate's Court. After some months the Magistrate referred the plaintiff to a civil suit. The suit was accordingly filed and it was held by Sir Norman Macleod that he was only in Bombay for a temporary purpose, namely, the Polics Court proceedings, and accordingly he was not residing in British India and was therefore bound to give security for costs under Order XXV, rula 1. It is unnecessary to express any opinion as to the actual decision arrived at on the facts of that case. Admittedly, the party then in question had only been in Bombay for six months and for the mere temporary purposes of a Police Court prosecution. In the present case the plaintiff has been living in Poona for four years, and no temporary purpose worth the name has been proved.

6. Under those circumstances I would hold that on the material dates the plaintiff' was not ' residing out of British India,' and consequently that Order XXV, Rule 1, did not apply and that the learned Judge was not entitled to make the order for security for costs which he did.

7. As regards any suggestion that some time hereafter the plaintiff might leave British India and return to Bhopal or elsewhere, I may point out that Order XXV, Rule 1, applies to 'any stage of a suit.' Moreover, under Sub-rule (2) if a person leaves British India under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs, he is then to be deemed to be residing out of British India within the meaning of Sub-rule (1). So the rules protect any defendant against a plaintiff who plays fast and loose on the point, of residence within the jurisdiction.

8. Under those circumstances I would allow this appeal and discharge the order of the learned Judge. As regards costs the respondents must pay the costs of the summons and of this appeal in any event, subject to what we will decide on the question of the prolixity of the affidavits.

Patkar, J.

9. I agree and I have nothing to add.


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