1. This is an appeal against an order of the learned Additional Tribunal Judge of Dehradun dated 20th August 1956 returning the application of the petitioner appellant filed under Section 5 of the Displaced Persons (Debts Adjustment) Act, 1951, Act No. 70 of 1951, for presentation to the proper court.
2. The appellant, Mulak Raj, claiming himself to be a displaced debtor within the meaning of Displaced Persons (Debts Adjustment) Act 1951, hereinafter referred to as the Act, filed an application under Section 5 of the Act in the Court of the Civil Judge, Dehradun who was invested with the powers of the Tribunal under Section 4 of the Act. The application was filed on 20th May 1952 and in para 1 of the application it was pleaded as follows: 'That he (applicant) is at present residing at 1, Circular Road, Dehradun'. In para 3 of his application the applicant pleaded that he had been carrying on his business as a Government contractor in the Military department of the Government of India before 1st of March 1947 in the name of M. Rule Malhotra and company, as the sole proprietor thereof with his head office at 14 Nisbet Road, Lahore and on account of serious communal disturbances he had to leave Lahore for good in the month of May 1947. It is not necessary to mention the other allegations in the application as nothing turns on them in this appeal. In the schedule of creditors appended to the application was mentioned the name of Takhat Mal, opposite party No. 1, to the application showing a liability of Rs. 1,82,000/- owed to him though it was further pleaded that that liability was disputed by the applicant. Then a large number of other creditors and the debts owed to them were mentioned. The total debts owed by the applicant as would appear from the schedule runs into several lacs. Takhat Mal in his written statement raised a plea that the applicant never actually resided in Dehradun, nor carried on any business, nor personally worked for gain in Dehradun, and the court in Dehradun had no jurisdiction to entertain the application under Section 5 of the Act. It appears that the other creditors opposite parties to the application did not raise any plea of jurisdiction.
3. On the plea of jurisdiction raised by Takhat Mal the Tribunal framed an issue in the following terms:
'Whether this Court has the jurisdiction.'
This issue was tried as a preliminary issue by the Tribunal. The applicant in order to prove that he had been actually residing in Dehradun produced himself and three other witnesses, namely, C. S. Jolly, G. D. Mittal and Jaswant Rai. In opposition Takhat Mal examined himself and also relied upon a letter written by the applicant on 1st May 1952 from Delhi to the official assignee at Calcutta, Ex. A. 1 on record. As a result of the consideration of the entire evidence of the parties the Tribunal recorded a finding that the applicant was residing at Jubbulpur from long before partition and was also carrying on considerable business there for a long time. The Tribunal further held that the applicant had failed to show that he was residing in Dehradun at the time of filing of the application under Section 5 of the Act. Accordingly the Tribunal ordered the return of the application for presentation to the proper court.
4. In this appeal before us Satish Chandra, the learned counsel for the appellant, contended that on the evidence on record the proper conclusion ought to have been that the applicant had established his residence at Dehradun and he was competent to maintain the application under Section 5 of the Act in the Tribunal at Dehradun. The learned counsel further contended that even if it be held that the applicant had his permanent residence in Jubbulpur but on the facts it was established that he was temporarily residing in Dehradun the Tribunal at Dehradun had Jurisdiction to entertain the application. In this connection the learned counsel submitted that the learned Judge made an erroneous approach to the case when he observed that it was incumbent upon the petitioner to establish by trustworthy evidence that he had abandoned his residence at Jubbulpur and shifted to Dehradun and that on account of this erroneous approach the learned Judge has not been able to properly appreciate the evidence led by the applicant which evidence established that the applicant had actually been residing in Dehradun and personally worked there for gain. On the arguments raised on behalf of the applicant it becomes necessary to examine the relevant evidence on record in order to find that be actually resided in Dehradun and personally worked there for gain at the time when he filed the application.
5. The applicant in his evidence admitted that he and his family had lived for a long time in Jubbulpur where he carried on contract business. It was also admitted by him that he had hired a house in Napier Road. Jubbulpur and had his permanent residence there. According to the allegations of the applicant. Takhat Mal who also was a resident of Jubbulpur joined in the contract business carried on by the applicant. It appears that Takhatmal filed a suit against the applicant for recovery of an alleged sum due from the applicant on the business transactions and obtained an ex-parte decree from the court in Jubbulpur for a sum of Rs. 1,82,000/-. The applicant further admitted that on account of the business which he had been carrying on outside and inside Jubbulpur he had incurred debts. It has been elicited during the cross-examination of the applicant that in 1951 he applied for being adjudicated insolvent in the court at Allahabad where he stated that he was a resident of Allahabad, This application was rejected by the insolvencycourt at Allahabad on the objection raised by Takhatmal that the petitioner was not ordinarily residing at Allahabad and the court at Allahabad had no jurisdiction. It further appears from the cross-examination of the applicant that later on lie made another attempt in the court at Calcutta to be adjudicated insolvent claiming his residence in Calcutta which application was also ultimately rejected sometime in March 1952 on the objection of Takhatmal that the applicant not being a resident of Calcutta the Calcutta court had no jurisdiction.
It appears from the evidence that in Calcutta the petitioner was arrested at the instance of the Special Police Establishment of Government of India. After his arrest in Calcutta he was taken to Meerut where he was enlarged on bail by a Magistrate on 21st March 1952 and he was ordered to make himself available for interrogation by the Special Police Establishment at New Delhi. The applicant has admitted that he went to Delhi and there he was told by the Police that it would take a month or so to complete the investigation. According to the applicant he met C. S. Jolly, a relation of his, at Delhi in the end of March, 1952 who brought him to Dehradun and employed him in his contract business on a remuneration of Rs. 200/-per month. Thus, according to the applicant he came to Dehradun in March 1952. C. S. Jolly stated that he had met the applicant at Delhi and finding him in straitened circumstances brought the applicant to Dehradun and employed him.
In Dehradun, the case of the applicant is. he first stayed at 1, Circular Road in the house of Jolly and later on shifted to the house of Captain Kripa Ram in East Canal Road who was his father-in-law. G. D. Mitral who is said to be a partner in the contract business with Jolly stated that the applicant had vorked on behalf of Jolly since March 1952 and received remuneration for working in the contract business on behalf of Jolly. Jaswant Rai who is the applicant's wife's brother corroborated the statements of the applicant. Jolly and G. D. Mittal and also stated that the applicant lived at 1, Circular Road for some time and then shifted to Capt. Kripa Ram's place who was the uncle of this witness. The learned Judge has disbelieved the testimony of these witnesses. He found that on material particulars there were contradictions in the statements of these witnesses. Learned counsel for the applicant tried to show that the testimony of G. D. Mittal was unimpeachable and worthy of reliance. From the evidence of Mittal himself it appears that he described Jolly as his Malik, that is, his employer.
The learned counsel urged that Mittal was a partner in business and was not in any way subservient to Jolly. From the evidence, as it stands, it is difficult to hold that Mittal was a partner in his own rights in the contract business with Jolly. Mittal when questioned whether the expenses incurred on payment to the applicant were claimed as deductions as necessary expenses of business in the income-tax returns stated that it was not done. He further contradicted the applicant when questioned about the payment made to the applicant by Jolly. No account books of the partnership business were produced by Jolly or Mittal to support their statements that the applicant was employed to look after the partnership business on behalf ofone of the partners and he was paid any remuneration. The learned counsel argued that it must have been a private arrangement between Jolly and the applicant and as the applicant was only working on behalf of Jolly there could not have been any occasion to enter the payments made by Jolly in the account books of the partnership business. That may be so or may not be so. It is not a matter to be resolved by arguments but ft could only be resolved by proper evidence on record. It was not the case of Jolly that the applicant being his relation he just brought him from Delhi as he was in a bad state and kept the applicant with himself at his house. Jolly said before the court that he actually employed him. We do not think that the learned Judge was in error on the evidence as it stood in holding that the applicant had failed to establish his case that he was employed or worked in the contract business of Jolly and Mittal in Dehradun.
The learned Judge has also criticised the evidence of Jolly about his meeting the applicant at Delhi and his taking the applicant to Dehradun. The learned Judge was not satisfied that the statement of the witnesses on this point was worthy ol reliance. Though Jolly stated that the applicant was a relation of his but when questioned as to where the applicant lived in Delhi he said he did not know. That the applicant was in Delhi is established. The letter Ex. A. 1 which he wrote on 1st May 1952 addressed to the Official Assignee, Calcutta, in which the applicant gave his address as C/O T. C. Rikhi, 31, Pusa Road, New Delhi, proves the tact that the applicant was in Delhi in May 1952 having his address C/O T. C. Rikhi. This would also be consistent with the circumstance that the applicant having been arrested at Calcutta and having been enlarged on bail pending the investigation of certain offences was required to stay in Delhi as directed by the Magistrate who enlarged him on bail. The applicant himself stated that he was required to stay in Delhi by the Special Police Establishment so long as the interrogation was not complete and that would have taken a month or more. This evidence would show that the applicant must have been needed in Delhi for about a month at least for it is at the end of April that is on 1st May 1952 that he wrote to the official assignee at Calcutta informing him that his presence would be needed in Delhi for a further period of one month and he would not be able to undertake a trip to Calcutta and prayed for adjournment for cases there. This circumstance, to our mind, belies the story of the applicant and his witnesses that at the end of March the applicant was taken to Dehradun and employed in business by Jolly. Normally it would not be expected that Jolly would employ the applicant to look after his contract business at Dehra-dun when the presence of the applicant was required in Delhi and he was directed by the Magistrate to remain in Delhi for interrogation by the Special Police Establishment. Doubtless the evidence show that the applicant was under a shadow and the police was after him. It would be unnatural in these circumstances that Jolly who, according to his statement, had got contract business with the Government departments in Dehradun, wouldemploy the applicant as his representative in that contract business.
6. On the other hand the evidence of Takhatmal, opposite party No. 1, is straightforward and worthy of credence. He stated that the applicant and his family had been living in Jubbulpur since 1941, that is, long before partition. The applicant has admitted that he carried on business in Jubbulpur in the name of M. R. Malhotra and Company. He hired a house and admitted that he was its tenant. Takhatmal stated that after collecting a sum of rupees four and a half lacs the applicant ran away from Jubbulpur to avoid payment to his creditors and made futile attempts in Allahabad and Calcutta to be adjudicated insolvent It does appear that the applicant was for some time in Allahabad and then moved to Calcutta and then to Delhi. From these circumstances the learned counsel for the applicant tried to make a point that the applicant had abandoned his residence at Jubbulpur. But it is difficult to agree with the submission as merely temporary absence of the applicant from Jubbulpur and that with motive of avoiding his creditors would not lead to the conclusion that he abandoned his permanent abode at Jubbulpur in face of the direct testimony of Takhatmal that he had been seeing the family members and the applicant from time to time in his house at Jubbulpur between the years 1950-1956.
It has come in evidence that Takhatmal had his office in front of the house of the applicant in Jubbulpur, Takhatmal stated that he had seen the children and family members of the applicant moving about outside the house. According to Takhatmal the brothers, the children, and the father, of the applicant are still living in Jubbulpur and the applicant's signboards are still appearing on the gate of the bungalow. The only suggestion which appears to have been made to this witness in the cross-examination to discredit him was whether he knew about the movement of the applicant's wife. The witness naturally stated that he did not know but he stated that he saw the applicant's children and other members of the family in Jubbulpur. It is the own case of the applicant that his wife had gone away to Pondichery to reside in Arbindo Ashram. The applicant further stated that he has not seen his wife since 1954. To our mind the fact that the applicant's wife is residing outside Jubbulpur does not rebut all the other evidence which has established beyond doubt that the applicant had not abandoned his residence at Jubbulpur. Nothing has been shown by the learned counsel for the applicant as to why the straightforward evidence of Takhatmal be not accepted. His testimony is that of a truthful witness. He has honestly answered questions, which to our mind, were unnecessarily put to him in the cross-examination and related to matters which would only be known to the applicant or to the members of his family, by saying that he had no knowledge. An attempt was made by the learned counsel for the applicant to show that Takhatmal was guilty of concealment of facts as he evaded to answer questions in cross-examination by pretending want of knowledge. That is hardly a legitimate criticism of this witness. On all the material questions which were put to him in cross-examination he has given satisfactory answers. We an unable to agree with thelearned counsel for the applicant that Takhatmal is not a truthful witness.
7. It would be noticed that not a single creditor who has been impleaded as opposite party in this case resides within the jurisdiction of the court of Civil Judge of Deharadun. Most of the opposite parties named reside in areas oi Madhya Paradesh and southern U. P. There us much plausibility in the observations made by the learned Civil Judge that the applicant thought of making an application in Dehradun to harass his creditors who were residing in areas far away from Dehradun, and make it very difficult For them to oppose him. As already observed above the amounts of debts mentioned in the schedule ran into several lacs. It is clear, therefore, that the applicant had been carrying on business on a very large scale. We have already held that Takhat-mal's version that the applicant had collected four and a half lacs rupees and then to avoid his creditors remained on the move for some time has a ring of truth. Jolly had stated that the applicant was in straitened circumstances when he brought him to Dehradun. Against that Takhatmal stated that the applicant had good assets with him and moreover the statement of Takhatmal that he had collected 4 1/2 lacs has not been challenged in cross-examination of this witness. Thus the story of the applicant that he engaged himself for working on behalf of Jolly for Rs. 200/- sounds most unnatural. We find no reason to disbelieve the testimony of Takhatmal that the applicant has his permanent abode at Jubbulpur and carried on business there for a long time in the past and is still keeping his residence at Jubbulpur.
8. As a result of the discussion above, we do not find any error in the estimate of the oral evidence made by the learned Judge of the Tribunal and we affirm his findings of fact that the applicant was not engaged by Jolly to work in the contract business in March 1952 in Dehradun and that the applicant has failed to prove that he lived at 1, Circular Road or with his father-in-law Captain Kriparam in East Canal Road. We further agree with the findings of the Tribunal that the applicant had not abandoned his business in Jubbul-pur and always resided at Jubbulpur and was at the time when he made the application under Section 5 of the Act residing at Jubbulpur. These findings also disprove the applicant's case that he was personally working for gain at Dehradun at any time.
9. The learned counsel then submitted that even a temporary residence for howsoever small a period in Dehradun would enable the applicant ro maintain an application under Section 5 of the Act in the courts at Dehradun. It was urged that the words 'actually and voluntarily resides' include temporary residence and do not contemplate permanent residence in the nature of domicile and, therefore, the learned Judge of the court below was in error when he held that as the applicant has not abandoned his residence in Jubbulpur he was not competent to claim residence in Dehradun. It was submitted that even though a person may have a permanent residence at one place he can be said to be temporarily residing at another place where he goes and stays. The learned counsel re-tied on certain deided cases in support of this contention. We have read all of them but we do not think it necessary to discuss in detail the case law cited by the learned counsel at the bar for we think that even assuming that the law is what the learned counsel contends, the facts proved in this case do not make out that the applicant even resided temporarily at Dehradun for any period of time. What appears to us is that the applicant. while staying in Delhi as directed by the Magistrate who enlarged him on bail, went to Dehradun and filed the application under Section 5 of the Act in May 1952. The applicant's going to Dehradun and staying for the purpose of filing the application would not, in our view, meet the requirements of Section 5 of the Act. The language used in Section 5 of the Act IK in pari materia with the language used in the proviso to Section 16 and Clauses (a) and (b) of Section 20 of the C. P. C. The adverb 'actually' before the word ''resides' in those sections has been used by the legislature so as to exclude any idea of domicile or constructive residence. That is to say that any concept of residence which applies to the law relating to domicile is not relevant for finding out whether a party to a cause resides or is residing or resided in the local jurisdiction of any court. Learned counsel was it pains to show that the learned Judge of the Court below was in error in relying upon the case of Fatima Begam v Sakina Begam, ILR 1 All 51 which has been explained away in the later case of Abdul Rahman v Ajudhia, 1892 All WN 115.
In the case of Fatima Begam, ILR 1 All 51 a bench of this Court interpreted the words 'dwelling' or 'residence' with reference to Section 5 of Act VIII of 1859 and observed that the words 'dwelling' or 'residence' were synonymous with domicile or home, and meant that place where a person had his fixed and permanent home to which whenever he was absent he had the intention of returning. The learned Judge made the above observations on the facts which were found established in the case before them. The question in that case was whether the defendant Azim Khan was not residing within the court's jurisdiction. The suit was filed before a court in whose local jurisdiction Azim Khan had his permanent home and where his family lived. Azim Khan himself was a sawar or soldier in Scinde Horse and used to move with his regiment from place to place. Thus on the facts of that case it appeared that Azim Khan had his permanent home that is dwelling house within the local jurisdiction of the court and he had not abandoned it in the sense that be had given it up.
In the later case of 1892 All WN 115 the facts were somewhat reverse. In the later case Abdul Rahman was Kotwal of Mirzapur in police service and when the suit was filed against him in Mirzapur he was posted in Mirzapur. His objection that he could not be sued in the court at Mirzapur as his permanent home was in the domains of Maharaja of Benaras in Bhadohi was overruled. The learned Judges while noticing the case of Fatima Begam, ILR 1 All 51 observed asfollows:
'In the case of ILR 1 All 51 the learned Judges seem to consider that residence and domicile were the same things. Using domicile in the sense of a house, residence or usual place of abode, a man might be said to have his 'domicile' in France while his 'domicile' was in England'.
And further went on to observe that if the case in ILR 1 All 51 was good law it would appear that each of them living in Allahabad must be taken to be residing in England. It would be noticed that the Bench which decided the case of Abdul Rahman, 1892 All WN 115 was constituted by Edge, C. J. and Blair, J. who had their domicile in England. It is thus clear that if the word 'domicile' as used by the learned Judges in the case of Fatima Begam is not to be taken in the strict sense, then in principle that case could not be said to have been in any way wrongly decided but if the word 'domicile' was given its meaning as understood in English law then certainly the decision in that case was erroneous. It appears to us that the learned counsel for the applicant cannot derive any benefit from the observations made in Abdul Rahman's case, 1892 All WN 115 as in that case it was actually found that the defendant Abdul Rahman was posted in Mirzapur, he was the City Kotwal and had his residence in Mirzapur. On the facts, therefore, in that case it was established that Abdul Rahman was actually residing in the local jurisdiction of Mirzapur courts.
Great stress was laid by the learned counsel on the case of Kishore Chandra v. Ganesh Prasad : 1SCR919 in support of his submission that even a short stay for a period of a week for the purpose of completing certain transactions amounts to residence in that place. Their Lordships of the Supreme Court in the case cited were called upon to consider the meaning of the phrase 'in whose district or sub district the principal resides' in Clause (a) of Sub-section (1) of Section 33 of the Registration Act. After noticing and discussing certain cases of the Privy Council their Lordships of the Supreme Court observed that as far as Section 33 of the Registration Act was concerned the word 'reside' did not contemplate only permanent residence but a temporary residence as well. But as appears from the report their Lordships found it as a fact that the principal was residing in Guttack at the time when he executed the power of an attorney which was registered by the Registrar at Cuttaek. It is noteworthy that their Lordships of the Supreme Court noticed an argument raised before them that the principal had gone mainly for the purposes of registering the deed and stayed at Cuttack for a week for that purpose and repelled it on the finding of fact that it was not so. But we may mention that the considerations which might be applicable for interpreting the meaning of the word 'resides' in Clause (a) of Sub-section (1) of Section 33 of the Registration Act which is a provision for the specific purpose of giving jurisdiction to a registrar for registering a particular document, may not mutatis mutand is apply for interpreting the words used in Section 5 of the Displaced Persons (Debts Adjustment) Act and of the relevant sections of C. P. Code which confer a jurisdiction on a court to entertain and decide a cause which affects the rights of other parties involved in that cause.
10. We think that the ease of Shri Goswami v. Shri Govardhanlalji, reported in ILR 14 Bom 541 is a ease in point. The learned Judges of the Bombay High Court in that case had an occasion to interpret the words 'dwell' or 'carry on business' or 'personally working for gain' used in Clause 12 of the Letters Patent. The word 'dwell' or 'reside'has me same meaning and therefore any law laid down on the interpretation of the word 'dwell' in Clause 12 of the Letters Patent would equally apply for interpretation of the word 'resides'. That this has been the view of the various High Courts in interpreting those words in the relevant sections of the C. P. Code is not disputed before us. In that case the defendant as the Gaddinashin of the Nathdwar temple which was in Oodeypore State used to come to Bombay to give blessings to his devotees. The defendant had actually purchased a house in Bombay and used to stay in it. He used to come from time to time and on the occasion when the suit was filed against him in the court at Bombay he had stayed, as appears from the report, for a considerable long time. The suit against him was for recovery of certain amounts of money and moveables. The suit was filed on the original side of the Bombay High Court and a question arose whether the defendant was dwelling within the limits as prescribed by the Letters Patent. It was held that the short stay of the defendant in Bombay for the purpose of giving Darshan to his devotees would not amount to his residing or dwelling in Bombay making him liable to be sued in Bombay. The ratio of that case seems to be that the place where a person has an abode and where he ordinarily lives would he a relevant factor to be taken into consideration and merely because he leaves that place temporarily for short visits to other places would not make him a resident of the places which he visits so as to make him amenable to the jurisdiction of the Courts of that place under C. P. Code. Applying the ratio of that case, as we understand it, we find that in the instant case the applicant had his abode in Jubbalpur and actually was living there, merely because he was on the move for certain purposes to some places and even if it be assumed that he came to Dehradun and filed the above application would not amount to his taking up residence in Dehradun so as to be amenable to the jurisdiction of the courts at Dehradun.
The learned counsel also cited before us a decision of the High Court of Bombay in the case of Fernandez v. Wray, ILR 25 Bom 176. The facts of that case were that Wray was a political agent in Kolhapur. He stayed in Bombay for three days on his way to England. Fernandez as plaintiff brought a suit against Wray and served upon him notices or summons during his stay in Bombay. The defendant pleaded that he was not residing in Bombay and was not covered by Clause 12 of the Letters Patent and the Bombay High Court had no jurisdiction. The learned Judge on the original side upheld the objection but on appeal that decision was reversed and it was held that Wray would be deemed to be residing or dwelling in Bombay within the meaning of Clause 12 of the Letters Patent. As we read the facts it appears to us that the decision in that case turned on the finding that at the relevant time when the suit was filed the defendant Wray had no other residence except that in Bombay, that is to say, it appeared to the learned Judges of the Bombay High Court who decided the case, that Wray had abandoned or closed his residence in Kolhapur and had not taken up any residence in England either; the only residence he had at the relevant time was in Bombay. This case, therefore, is of no assistance to the appellant
11. The other case which the learned counsel has brought to our notice is Srinivasa Moorthy v. Venkata Varada Iyengar, ILR 29 Mad 239 In that case also we find that on the facts the decision was that the defendant was residing in the jurisdiction of the court in Madras as he had abandoned and closed his residence in Mysore. The ratio of this case also is of no avail to the applicant. We do not find any error in the approach of the Tribunal when it observed that the applicant ought to have shown that he abandoned his residence at Jubbulpur.
12. The result is that this appeal has no forceand it is dismissed. There would be no order as tothe costs.