1. The first appeal on behalf of the plaintiffs arises out of a suit filed by them against the respondents in the Court of the District Judge No. 2, Jodhpur, on the 29th of April, 1947, for the recovery of a sum of Rs. 20,531/-.
2. The main question that has been raised in this appeal before us relates to the jurisdiction of the Civil Courts in Marwar and it is to be determined whether or not did the defendants actually and voluntarily reside in Mundwa, Marwar at the commencement of the suit so as to give the Courts in Marwar jurisdiction to entertain the suit. We have , therefore, to examine the pleadings of the patties and the evidence produced by them in this respect. The plaintiffs have stated it in their plaint that they themselves carried on the business of commission agents in Bombay in the name and style of Ramratan Sheo Bux and had a shop of the same name in Mundwa (Marwar) also, while the defendants who were real brothers, carried on their business in Nizamabad, Hyderabad State, in the name and style of Sitaram Satya Narain and in Mundwa, Marwar in the name and style of Shrikishcn Sitaram and that they were the permanent residents of Mundwa Marwar. It was also stated in the plaint that defendant No. 2, Rajaram had been adopted to one Jainarain, the real brother of Shrikishen who was the natural father of the two defendants. It was further alleged by them that the defendants under the name and style of Sitaram Rajaram appointed the plaintiffs as their commission agents in Bombay on the Margshirsha Krishna 12, S. 2002 and did a lot of business of buying and selling gold, silver and cotton. The agency business, it was stated, lasted up to Jyeshth of Samvat 2003 and it was further stated that during this period of about seven months, the plaintiffs executed the business of the defendants as 'Pucca Arhatias' and that according to the 'pucci Arhat', it was the 'Arthatia's name that was disclosed to the other party to the contract and not that of principal and it was the agent who was entitled to or liable for, as the case may be, any profit or loss from or to that party while the 'Arhatia' was himself liable to pay profits to or entitled to recover losses from his principals and the losses, if any, on account of bad debts had to be suffered by the 'Arhatia.' Sitaram, defendant 1, was not personally served and substituted service of summons was effected on him by having a copy of the summons affixed on the notice board of the Court, a copy being pasted on the outer door of his house and by publication of a notice in the Jodhpur Government Gazette of February, 28, 1948. On the 7th of April, 1948, Mr. Sardarnath who appeared for defendant 2 undertook to file his vekalatnama for defendant No. 1 also. But, he never appears to have done that and it appears that without an order to the effect, ex parte proceedings were taken against him. Rajaram, defendant No. 2, who contested the suit denied in his written statement that the plaintiffs resided permanently in Mundwa or had any business concern there. He further denied that the defendants lived in Mundwa, Marwar, or carried on any business there. It was, on the contrary, categorically stated that the defendants neither lived in Mundwa nor carried on any business of any kind there. However, it was admitted that they had a shop under the name and style of Sitaram Satya Narain in Nizamabad, Hyderabad State, but it was asserted that on this shop they carried on the business of buying and selling food-grains and manufacturing and selling 'Biris.' Of the seven issues framed by the lower Court, issue No. 6 bears on the question before us. It is to the following effect:
'Is this suit not triable by this Court which hasno jurisdiction in the matter?'
The trial Court after recording the evidence of four witnesses for the defendants and five witnesses for the plaintiffs came to the conclusion that it had no jurisdiction to try the case and returned the plaint to the plaintiffs for presentation to the Court having jurisdiction therein. Hence this appeal.
3. We may at once point it out that by the issue, in the manner as it was framed, the burdenof proof was wrongly placed on the defendants. Prom the pleadings of the plaintiffs, it was clear that the business of agency was carried on in Bombay and that it was at Nizamabad that the defendants had their main business. Further, it was evident that the plaintiffs had brought this suit in the Courts of 'Marwar on the allegation that the defendants were the permanent residents of Mundwa, Marwar, and also carried on business in Mundwa. This allegation was categorically denied by the defendants and under the circumstances issue should have been framed the other way and the burden of proof should have been placed on the plaintiffs to prove that at the time the suit was filed, the defendants were the residents and carried on business in Mundwa, Marwar, and, therefore, the Court had jurisdiction to try the suit. The issue, as it was framed, has made it possible for the learned counsel to argue that the defendants had not discharged the burden placed upon them. We see no force in this argument because both the parties have adduced evidence on the question and it can be decided on the material on the record.
4. An argument was also made on the fact that the defendants who were the best witnesses as to whether or not they were the residents of Mundwa had not entered into the witness-box and a presumption should be drawn against them that their evidence would have gone against them if they had entered into the witness-box and submitted themselves for cross-examination. We have already stated that in this case it was for the plaintiffs to prove that the Mundwa Court had jurisdiction. We will, therefore, first scrutinise the evidence of the plaintiffs and if we find that they have been able to prove that at the commencement of the suit the defendants were either actually residing in Mundwa or carrying on some business in Mundwa, we will turn to the defendants' evidence to see how far they have succeeded in disproving their residence or carrying on business in Mundwa at the time of the commencement of the suit. In doing so, we will take into consideration even those parts of the defendants' evidence which prove the plaintiffs' case.
(After discussing the evidence the judgment proceeded.) From the entire evidence produced by the parties which is discussed above we are not able to come to a finding that the defendants actually resided in Mundwa at the time the suit was instituted. Now, before we consider the arguments addressed to us by the learned counsel for the appellants, we would do better to consider the provision of law on the question contained in Section 20, C.P.C. The relevant portion of the Section reads:
'Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--(a) the defendant, or each of the defendants where there are more than one at the time of the commencement of the suit, actually and voluntarily resides, or........... or..........'
It is clear from the above that it is the actual residence of the defendants at the time of the commencement of the suit that is to be considered for determining whether the Court has jurisdiction or not. In our opinion, by using the word 'residence', the legislature has meant the ordinary and general residence of the defendants and not a casual or occasional return of the defendants to their family homes where they and their families had been brought up. Again, such residence must be at the commencement of the suit and not long before or long after the institution of the suit.
5. The learned counsel for the appellants was at great pains to argue that the above evidence showed, that the defendants had two residences: one permanent that was at Mundwa and another temporary that was at Nizamabad and with the help of a decision of the Privy Council reported in 'Bansilal Abirchand v. Ghulam Mahbub Khan', AIR (12) 1925 P C 290, contended that the Court at Mundwa had jurisdiction to entertain the suit. In the aforesaid decision, loan had been borrowed at Sikanderabad while the defendants and their sureties were the residents of Hyderabad. The discussion centred on the arising of the cause of action. It was held by their Lordships of the privy Council that the Court at Sikanderabad had no jurisdiction to entertain the suit for recovery of the loan. The learned counsel contends in this case that though the business of buying and selling gold and silver had been contracted by the plaintiffs at Bombay, it was at Mundwa where the plaintiffs resided, that the suit could be brought because Nizamabad was not their permanent residence. We are unable to see how this judgment of the Privy Council is helpful to the appellants. In our opinion, it has no application to the facts of the case before us and is of no avail to the appellants. The learned counsel then referred us to a decision of the Lahore High Court reported in 'Dhera Shah v. Sant Ram' AIR (20) 1933 Lah 851(1), where the word 'Sakunat' has been defined. On appeal by the creditors whose application to have the debtors-respondents declared insolvent had been dismissed, a contention was raised that on the record it had been proved that the debtors resided at Nara. The debtors themselves had denied that they resided in Nara. They stated that they had left the place and had been, for the last 12 or 13 years, carrying on business at another place called Phullarwan. Two witnesses were produced to prove their residence at Nara. A petition-writer stated that in a mortgage-deed, the debtors described themselves as having their 'Sakunat' at Nara. Dalip Singh, J., observed as follows:
'I do not think the word 'Sakunat' necessarily means that they ordinarily resided at Nara. Nara is the family home and the respondents had a house there; but from that it did not follow that they ordinarily reside at Nara. I, therefore, repel this contention of the appellants also.'
Evidently, this decision does not at all support the plaintiffs-appellants. If anything, it goes against their contention, inasmuch as, the mention of Mundwa as 'Sakunat' in the 'Vakalatnama' and the gift-deed executed by Rajaram did not necessarily mean, according to this ruling, that Rajaram ordinarily resided at Mundwa. Mundwa may have been the family home and the respondents may have had a house there; but from that it did not follow that they ordinarily resided at Mundwa. Much less could it mean that the defendants-respondents actually resided in Mundwa at the time the suit was instituted.
6. The learned counsel next referred us to ajudgment reported in '1938 Mar L R 156 (Civil)wherein relying on another judgment reported in'Municipal Board, Bareilly v. Hafiz Ala Baksh', AIR(11) 1924 All 669, it had been observed that inevery case residence was a question of fact and depended upon the particular circumstances and thatthe general practice was to accept as the person'sresidence the place where throughout the year onewould ordinarily expect him to be found. It wasfurther observed that the term 'residence' wasnaturally a flexible one but in the case of traderscarrying on business it was manifestly that placewhere they earned a living and did their daily worknor did that place cease to be their residencemerely because for purposes of rest or recreationor family ties they occasionally returned to thefamily home where their families had been broughtup. The above observation, we are constrained to observe, does not help the appellants at all; on the contrary, it helps the case of the defendants. Prom the evidence on the record of this case, defendants are proved to be carrying on business at Nizamabad at the commencement of the suit and one would ordinarily expect them to be found there. That place did not cease to be their residence merely because for purposes of rest or recreation or family ties they occasionally returned to their family home in Mundwa where they and their families have been brought up. Manifestly, it is at Nizamabad where they earn a living and do their daily work. Under the circumstances, we think, a case has not been made out on behalf of the appellants for our interference with the finding of the lower Court. It is unnecessary to refer to the arguments or the rulings cited by the learned counsel for the defendants-respondents. In our opinion, this appeal has no force and deserves to be dismissed. It is, accordingly, dismissed with costs.
7. I agree.