K.L. Bapna, Ag. C.J.
1. This is an appeal by the plaintiffs under Order 43 Rule 1 of the Civil Procedure Code against the order of the District Judge, Bikaner dated 27-2-1954 in suit No. 3 of 1952.
2. The allegations of the plaintiffs were that there was a firm Bijaisingh Chandkaran at Calcutta. The partners were (1) Mannalal, (2) Padamchand, (3) Motilal, (4) Mirzamal, (5) Champalal, all sons of Seth Takhatmal and (6) Dalchand, another son of Takhatmal who is defendant No. 4 in the case. It was alleged that there was a firm of the name of Pancychand Nahata at Champai, Nawabganj, district Malda (now in Pakistan) of which the partners were Paneychand defendant No. 1, Meghraj, defendant No. 2, Jesraj defendant No. 3 and Dalchand son of Takhatraal defendant No. 4.
It was alleged that the firm Bijaisingh Chandkaran of Calcutta had dealings with firm Paneychand Nehata of Champai, Nawabganj as a result whereof a sum of Rs. 33, 574/-/6 remained due against the said firm payable to the plaintiffs. The firm of Paneychand Nahata was closed in Samwat 2004 prior to the formation of Pakistan. It was alleged that the defendants did not pay up this amount and after adding interest, the amount due to firm Bijaisingh Chandkaran from firm Paneychand Nahata on the date of the suit came to Rs 43,531/-. The allegations regarding the jurisdiction of the court to entertain the suit are contained in para 6 and are as follows :
'All the four defendants are residents of Momasar, Tehsil Dungargarh and Chhapar, Tehsil Sujangarh. in Bikaner Division. They have their houses and property here and they ordinarily reside here. Their wives and children have always been residing in their houses and for that reason, the suit is enter-tamable by the court of Dist. Judge, Bikaner.'
3. The suit was contested by Paneychand and Jasraj and proceeded ex parte against Meghraj and Dalchand. Pancychand by his written statement took various pleas one of them being that the court had no jurisdiction. He alleged that he neither actually and voluntarily resided at Momasar nor did he carry on business or personally work for gain at Momasar. He alleged that he had been residing at Champai Nawabganj from his boyhood days and had his business there, but that after the partition, he resided at 16, Normal Lohia Lane, Calcutta to the knowledge of the plaintiffs.
Jasraj, also pleaded that the court had no jurisdiction as he did not actually and voluntarily reside at Momasar nor did he carry on business or personally work for gain there. It was alleged that he used to reside at Champai Nawabganj in East Pakistan from very young age and that he was at the time of the suit residing at 109/9A Hazara Road, Calcutta to the knowledge of the plaintiffs. The trial court framed seven issues and issue No. 1 was as follows :
(1) Are the defendants permanent residents of Momasar (Bikaner) and so this court has jurisdiction to try this suit
4. After evidence had been led by both sides, the learned District Judge came to the conclusion that Paneychand and Jasraj had their ancestral homes in Momasar, but only visited the place on certain ceremonial occasions. Their permanent residence was held to be at Calcutta where they carried on business. The same conclusion was reached in the case of Meghraj against whom the suit had proceeded ex parte.
As regards Dalchand the observation of the court was that he was the brother of the plaintiffs and was a partner in the plaintiff firm Bijaisingh Chand-karan and had been made a pro forma defendant The court referred to his reply to interrogatories in which he said that he lived at Chhapar by an observation that he was in collusion with the plaintiffs, being one of the persons of the plaintiffs' firm and was only a pro forma defendant. The court held that it had no jurisdiction to entertain the suit.
5. An application was presented at the close of arguments on 24-2-1954 that while the question of residence of Paneychand and Jasraj was being questioned by them, Meghraj had not raised that objection and Dalchand defendant was a resident of Chhapar within the jurisdiction of the court and, therefore, leave may be granted under Section 20 of the Civil Procedure Code for the suit to be instituted against Paneychand and Jasraj also in the court of the District judge, Bikaner. The learned Judge rejected this application. He accordingly directed that the plaint be returned for presentation to a proper court by order of 27-2-1954. The plaintiffs have come in appeal.
6. Learned counsel for the appellants contended :
(1) That the two defendants Paneychand and Jasraj had their permanent residence at Momasar and the court had therefore jurisdiction to entertain the suit.
(2) That Paneychand and Jasraj had been proved to have been actually residing at Momasar at the time of the institution of the suit, and for that reason also the court had jurisdiction.
(3) That, the evidence on record was sufficient to prove that the defendant Meghraj actually and voluntarily resided at Momasar at the date of the institution of the suit, and the suit could be permitted to proceed against him.
(4) That, Dalchand defendant, in any case, actually and voluntarily resided at Chhapar (Bikaner) at the date of the institution of the suit and on account of residence of Meghraj and Dalchand or of Dalchand alone within the jurisdiction of the court permission should have been granted to institute the suit against the oilier defendants also in the court of the District Judge, Bikaner.
(6a) In the memorandum of appeal, one more ground was taken, namely that the lower court wrongly rejected certain documentary evidence sought to be produced by the plaintiffs. As to this last plea, no arguments were advanced nor was it brought to the notice of this court how such documents were relevant. That ground need not be discussed any further.
7. it may be stated here that Paneychand and Meghraj belong to one family and Jasraj is their relation and all the three had their ancestral houses and lands at Momasar and according to the version of the plaintiffs, they with their families actually resided at Momasor. The case of the plaintiffs is that these three persons only lived elsewhere in order to earn their living, but had always an animus rever-tendi to come home and live at Momasar and that-in particular all marriages in the family were celebrated at Momasar.
8. Mamialal, one of the plaintiffs, has appeared as a witness and is P.W. 11. He stated that Paneychand, Meghraj and Jasraj defendants are residents of Momasar where they have their houses and noharas. Paneychand, Meghraj with their children live in their own houses, The defendants only go out to Deshawar (distant lands) for earning their livelihood. For four' or five months prior to the institution of the suit, Paneychand was in Momasar. Meghraj was there in Momasar for two or three years. Their marriages and death ceremonies take place at Momasar. Paneychand Meghraj have their fields and cattle at Momasar. They get their lands cultivated. The produce of the cultivation is taken by Paneychand, Mannalal had sent his man Dungar to call them on Poh Sudi 15, Samwat 2008. They came on Magh Vadi 2 at his place at Chhapar. Some talk for settlement took place, but no settlement was arrived at, whereafter the plaintiff came to Bikaner and instituted the suit. In cross-examination, he said that ho instituted the suit on Magh vadi 9, seven days after the meeting with Paneychand at Chhapar.
He admitted that the notices of demand which-were sent to the defendants were sent to them at Calcutta, but explained that this was seven or eight months prior to the institution of suit. He admitted notices to be Ex. A. 1 dated 3-6-1951 to Paneychand and Ex. A-2 dated 24-7-1951 to Jasraj. He admitted that the business of the defendants was at Champai, Nawabganj and further that they had no business of theirs at Momasar. He also admitted that the defendants did not themselves plough the land, He-admitted that he did not see Jcsraj at Momasar after Sm. 2004 and he could not say when Jasraj came to Momasar in Sm. 2008.
9. The plaintiffs produced ten other witnesses and the portion of their evidence relied upon by counsel for the plaintiffs may also be briefly noticed.
(After discussing the evidence of those witnesses-and the evidence in, rebuttal in Paras 9-20, the judgment proceeded :)
21. The entire evidence establishes the following facts. The ancestors of Paneychand and Jesraj lived at Momasar and they had left a haveli and a nohra and some lands. Paneychand did come to live at Momassar for about a month in Samwat 2004 in connection with his daughter's marriage and again in Samwat 2007 in connection with another daughter's marriage, but that otherwise he residence formerly at Nawabganj and thereafter at Calcutta in connection with his business. The evidence of the plaintiff that the wife and children of Panechand all along lived at Momasar is unreliable.
The evidence of the plaintiff that the defendants were in Momasar a few days before and after the institution of the suit as stated above is unreliable. The postcards produced by witnesses and purporting to have been written by Paneychand from Calcutta show that he was at Calcutta during that period. In respect of Jesraj, the evidence of the plaintiff also disclosed that he was not seen at Momasar for many many years past. P.W. Bhomraj, for instance, said that Jesraj was never seem in the village by the wit-ness, the age of the witness being; 72. P.W. 1 Prithvi Raj also said that Jesraj was not seen in recent years in Momasar.
22. The point for consideration in the present case is whether a person has his residence at the place where he normally lives and carries on business or at the place where his forefathers lived and left immovable property and where the person goes off and on on occasion of marriage and other ceremonies. It may be that the person intended to spend his days after retirement from business or service at his ancestral place. A large number of cases have been cited, but it is only necessary to refer to some which are relevant for purposes of this case.
The earliest case is Purgash Paray v. Hachira Khansamah, 7 Suth WR 417. The defendant was employed as a domestic servant at Monghyr from which place lie was not shown to have any immediate or early intention of returning, though his family resided at his permanent home in the Kishna-ghur jurisdiction. Justice Jackson observed that the word 'dwell' must be used in the strict sense of actual residence, and that the defendant really dwelt for the time being in Monghyr, the place where he was in service and could not be looked upon for 'lodging for a temporary purpose only', although he might have the intention of returning at some future time to another dwelling where his family was residing. Justice Markby, by reference to Section 8 of Act XI of 1865, observed that it was intended that the action should be brought at the place where the defendant had his dwelling in the sense of his usual place or residence and that Kishnaghur was not the defendant's usual place of residence. The learned Judge observed that it was possible that although Kishnaghur had ecased to be the defendant's dwelling for the purposes of the Act, yet. still for other purposes, and in the sense in which the word is used in other places, it may well continue to be his dwelling,
23. Another direct case on the point is Ugarchand Mulchand v. Surajmal Leherchand, 2 Bom LR 605. It was held that a person, is deemed to reside at the place where he actually and voluntarily resides and carries on business. He cannot be said to reside at a place where he has the family home and which he occasionally visits.
24. In Municipal Board of Bareilly v. Hafiz Ala Baksh, AIR 1924 All 669, it was observed that the general practice is to accept as the person's residence the place where throughout the year you would ordinarily expect him to be found. The term, 'residence' is a flexible one, but in the case of traders carrying on business it is manifestly their place where they earn a living and do their daily work nor docs that place cease to be their residence merely because for purposes of rest or, recreation or family ties, they occasionally return to the family home where they and their families have been brought up.
25. In Mohansingh v. Lajyaram, AIR 1950 Punj 188, an elucidation is found with respect to the meaning of the words 'actual residence.' It was observed that if the family of a person lives at one place and he himself fives for a greater portion of the time at another place, he has his legal residence at the place where his family resides and actual residence where he himself resides. The expression 'actually resides' in Section 20 means actual residence or place where a person actually lives as distinguished from merely constructive or legal residence or place where a person resides in the legal and technical sense. It means residence existing in reality and in fact and not merely in form. On the facts', of that case, it was held that the person had two places of residence as he occasionally lived and carried on business at both places.
26. In Jakhu v. Dhanji Pasu, AIR 1952 Kutch 77, it was held that a person actually and voluntarily residing in Bombay cannot he held to be actually and voluntarily residing in Kutch merely because he happens to visit Kutch on occasions and stays in his house for some time.
27. The same view was taken by our own High Court in Surajkaran v. Sitaram, AIR 1952 Raj 31. It was observed that the word 'residence' means 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. Learned counsel for the appellants contended that as the defendants Paneyehand and Jesraj had their ancestral homes in Momasar and had always the intention to return to that place, therefore, Momasar may be taken to be their place of residence. As observed in some of the cases cited, we are concerned not with legal residence but with 'actual and voluntary residence.' So far as these two defendants Paneyehand and Jesraj are concerned, the finding of the lower Court is that they actually resided and carried on their business at Calcutta and only occasionally visited their homes. The evidence was fully examined in this Court also and we have reached the same conclusion.
The fact of these two defendants having their ancestral home at Momasar and occasional visits to that place do not make Momasar a place of their actual and voluntary residence. Learned counsel for the appellants tried to set up a case that at the relevant date, i.e. on the date of the institution of the suit, the defendants were at Momasar. The evidence has already been discussed above and the plaintiffs' version is wholly unreliable.
28. Learned counsel next contended that leaving aside the case of Panechand and Jesraj, there was evidence for a finding that Meghraj actually and voluntarily resided at Momasar. It was contended that he had not contested the allegations and, therefore, whatever evidence was on record should be held sufficient for that finding. A perusal of the record shows that the summons was not personally served on Meghraj and it he did not put in appearance, it did not absolve the Court from scrutinising the evidence led by the parties ex parte.
The only two witnesses who speak about Meghraj are the plaintiff Mannalal P.W. 11 and his father-in-law Laduram P.W. 6. Mannalal said that Meghraj was in Momasar for two or three years at the time he had instituted the suit. Laduram has bracketed Meghraj with Paneyehand and Jesraj and saw that Meghraj was in Momasar for two months prior to the suit. The other witnesses have said nothing about Meghraj.
The two witnesses, who speak about Meghraj actually and voluntarily residing at Momasar at the time of the institution of suit, have hopelessly contradicted themselves. For while one says he was in Momasar for two or three years, the other only speaks of two or three months. We agree with the finding of the learned Judge that in the case of Meghraj also the appellant has failed to show that he was actually and voluntarily residing at Momasar at the time of institution of suit,
29. Learned counsel for the appellant then urged that the fourth defendant Dalcnand at any rate lived at Chhapar and, therefore, permission should have been given to institute the suit against the other defendants also in the Court of Bikaner which had jurisdiction over Chhapar.
30. In the present case, the suit is not by one firm against another, but by the partners of one firm against the partners of another firm and the only partner of the defendant firm, who is found to be resident within the jurisdiction of the Court also happens to be a partner in the plaintiffs' firm. In the circumstances of this case, the lower Court was right in refusing the prayer of the plaintiffs to grant permission to the plaintiffs to continue the suit against the other defendants because Dalchand defendant was resident within its jurisdiction. As a result, the appeal fails and is dismissed. We do not allow any costs of this Court.