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Hanif Maulabaksh Vs. Kulsum - Court Judgment

LegalCrystal Citation
Decided On
Case NumberO.C.J. Suit No. 3072 of 1921
Reported in(1921)23BOMLR1253
AppellantHanif Maulabaksh
.....procedure code (act v of 1908), order xxv, rule 1-security for costs-plaintiff residing out of british india-temporary residence in british india for purposes of suit not sufficient.;the plaintiff, who resided in a native indian stale, arrived in january 1021 in bombay, to file a criminal com plaint against the defendants. in july of the same year he filed a suit in the bombay high court against the defendants. the defendants having applied, in october 1921, under order axv, rule 1, for security for their costs from the plaintiff:-;making the order, that inasmuch as the plaintiff was staying in bombay only for the purpose of taking proceedings against the defendants, such residence of his would not enable him to escape the application of rule 1 of order xxv of the civil procedure..........enable him to escape the application of the rule.3. summons absolute. the plaintiff to give security to the extent of rs. 1,000 for the defendants' costs within a month.4. costs costs in the cause.5. counsel certified.

Maoleod, C.J.

1. The parties to this suit are Suni Mahomedans of Fatehpur Sikur outside Birtish India. The plaintiff married the first defendant in 1911 and alleges that after she attained puberty in 1918 she lived with him as his wife and thereafter the second defendant enticed away the first, defendant and brought her to Bombay. The plaintiff on his arrival in Bombay in January 1921 filed a complaint against the second defendant in the Court of the Presidency Magistrate. The proceedings wont on for some months in the Presidency Magistrate's Court until the Magistrate expressed the opinion that the plaintiff ought to file a suit in a civil Court to obtain a declaration as regards his marriage with the first defendant, as the accused before him produced a decree which set aside the plaintiffs marriage). Accordingly the plaintiff filed this suit on the 26th July 1921; and the defendants have taken out this summons calling up) n him to she cause way he should not give security for the defendants' costs under Order XXV, Rule 1, Civil Procedure Code, on the ground that the plaintiff was residing outside British India and did not possess any immoveable property within British India.

2. Now, it is quite obvious that if the suit had been filed in January this rule would have applied and the plaintiff would have rendered himself liable to an order under the rule. But he now contends that the rule should not be applied as owing to the Police Court proceedings he has been living in Bombay for the last nine months and supporting himself by his labour. Therefore, he is a resident of Bombay. That, no doubt, is an ingenious and plausible argument, but the fact remains that the plaintiff in really a resident of a State outside British India. He has been staying in Bombay only for the purpose of taking proceedings to get his wife back. That does not constitute such residence as will enable him to escape the application of the rule.

3. Summons absolute. The plaintiff to give security to the extent of Rs. 1,000 for the defendants' costs within a month.

4. Costs costs in the cause.

5. Counsel certified.

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