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M.S.M. Buhari Vs. S.M. Buhari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 265 of 1967
Judge
Reported inAIR1971Mad363
ActsCode of Civil Procedure (CPC), 1908 - Sections 20
AppellantM.S.M. Buhari
RespondentS.M. Buhari
Cases ReferredMohan Singh v. Laiya Ram
Excerpt:
.....appellant was neither actually residing or had residence in ammanlanagar - fact that appellant was residing in colombo while carrying on business there does not mean that he should not take any interest in properties belonging to him situated in india - same does not imply that appellant was actually and voluntarily residing in ammanlanagar as residence is not identical with ownership - under such circumstances appellant cannot be said to be actually and voluntarily residing in ammanlanagar - conclusion of lower courts that subordinate judge had jurisdiction to entertain suit is erroneous and liable to be set aside. - - as i mentioned already, this point was urged both before the trail court, as well as the first appellate court and the same was decided against the appellant herein...........the present case. according to the evidence of the plaintiff as p.w. 1 the appellant's permanent place of residence in india is at ammanianagar: in 1947 he had executed a deed of settlement showing the house in ammanianagar and other items, reserving a life interest in himself; in 1957 he had executed another document showing his permanent residence; his residential house even then was at ammanianagar; p.w. 1 is in ceylon for the past 20 years; he did not know for how long the appellant was in ceylon citizenship; he did not know whether the appellant was or is living with his family at ceylon. in the affidavit sworn to on 27-8-1952 (ex. a-3) p.w. 1 had stated that the defendant (appellant) was residing in colombo with his family, but he stated in his evidence that he must have then so.....
Judgment:

1. The appellant and the respondent were doing business at Colombo. The case of the respondent was that the appellant owed money to him and towards the repayment of that money issued two cheques in favour of the respondent drawn on the State Bank of India at Colombo on 1-4-1959 for Rs. 5000 and Rs. 1000 respectively and that when the respondent presented the cheques in the State Bank of India at Colombo for payment, they were dishonoured. Thereafter, the respondent filed the Suit No. 22518/S against the appellant on 22-7-1959 in the District Court, Colombo, for recovery of Rs. 6000 with interest thereon and the said suit was decreed on 30-11-1959 for Rs. 6000 with interest thereon at 6 per cent per annum from the date of the decree. On the basis of this foreign decree and judgment, the respondent instituted O. S. 12 of 1962 on the file of the court of the Subordinate Judge, Tuticorin. On a plea taken by the appellant herein that the decree passed by the District Court. Colombo, not being on merits, the suit based on a foreign judgment could not be maintain, the respondent amended the plaint so as to make the suit as one on the original cause of action itself. To that suit, the appellant raised many defences, one of which was that the court of the Subordinate Judge, Tuticorin had no jurisdiction to try the suit since the appellant was permanently residing in Colombo. The learned Subordinate Judge went into the question and negative this contention of the appellant and decreed the suit on 26-6-1965. Against this judgment and decree of the learned Subordinate Judge, the appellant preferred an appeal to the learned District Judge, Tirunelveli, who on 24-8-1966, agreeing with the conclusion of the learned Subordinate Judge, dismissed the appeal. Hence the present second appeal by the defendant in O. S. 12 of 1962.

2. The only question of law that is argued before me by the learned counsel for the learned counsel for the appellant is that with reference to the provisions contained in S. 20, C. P. Code, the court of the Subordinate Judge, Tuticorin, has no jurisdiction to entertain the present suit at the instance of the respondent herein. As I mentioned already, this point was urged both before the trail court, as well as the first appellate court and the same was decided against the appellant herein.

Section 20, C. P. Code, so far as it is relevant for the purpose of the present case, is as follows:--

'Subject to the limitations aforesaid every suit shall be instituted in a court within the local limits of whose jurisdiction the defendant..................... at the time of the commencement of the suit, actually and voluntarily resides.'

There are two explanations to this section and some reliance had been placed on Explanation 1, which is as follows:--

'Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence.'

As far as the present case is concerned, the facts as have been disclosed by the evidence are as follows: The appellant herein originally belonged to Ammanianagar. Sree Mookari Panchayat in Tirunelveli Dist., but had gone to Colombo and had been carrying on business in Colombo. It was at time when he was carrying on business at Colombo, the transaction between the parties took place. Further, the appellant had built five houses in Ammanianagar at his own expense. Out of the five houses, four had been let out and the biggest of them is said to be kept vacant and is in the charge of a caretaker, who has been examined as D.W. 1 in the present case. The appellant owns lands in Ammaniannagar, which are being looked after by D.W. 2 in the present case. According to the evidence of the plaintiff as P.W. 1 the appellant's permanent place of residence in India is at Ammanianagar: in 1947 he had executed a deed of settlement showing the house in Ammanianagar and other items, reserving a life interest in himself; in 1957 he had executed another document showing his permanent residence; his residential house even then was at Ammanianagar; P.W. 1 is in Ceylon for the past 20 years; he did not know for how long the appellant was in Ceylon citizenship; he did not know whether the appellant was or is living with his family at Ceylon. In the affidavit sworn to on 27-8-1952 (Ex. a-3) P.W. 1 had stated that the defendant (appellant) was residing in Colombo with his family, but he stated in his evidence that he must have then so resided. Thus it is clear that he evidence of P.W. 1 does not establish that the appellant was permanently residing I Ammanianagar; on the other hand; the evidence would tend to show that the appellant was residing with his family in Colombo. Even though this was the evidence of P.W. 1, it was found by the courts below that the appellant and his family had obtained Ceylon citizenship on 29th June 1951, as shown by Ex. P-7. As against this evidence of P.W. 1, D.W. 1 had stated that it was 15 years since the appellant left for Ceylon, that he came to India some ten years back, that ever since he had not come, and that he was residing with his family in Ceylon. D.W. 1 stated that the appellant used to reside in the house in Ammanianagar when he was in India. To a question put to him he stated that it was not true to say that the house had not been rented out as the appellant wanted it to be available whenever he came to India. D.W. 1 himself was occupying the house for the last ten years or so.

Similarly, D.W. 2 had stated that the appellant came to India some ten years back and that he was residing in Ceylon with his family for the past ten or fifteen years and that he was doing besides there. To a question put to him whether the house in question had not been let out as the appellant wanted to have it available whenever he came to India, he answered in the affirmative. Mistaking the evidence of D.W.1, as if he had stated that the biggest house had been reserved for the residence of the appellant and that he used to reside in the biggest house whenever he came to India, the learned Subordinate Judge went on to consider whether the appellant had a permanent place of residence in Ammnianagar or not. However, the learned Subordinate Judge himself refers to the fact as revealed by his passport that the appellant left Colombo on 22-1-1951 and returned on 1-2-1954 then he left Colombo on 13-4-1954 and returned on 3-5-1954 and again left Colmbo on 4-3-1955 and returned on 30-3-1955. The learned Subordinate Judge further refers to the fact that the appellant left Colombo with his wife on 15-9-1963 and that his wife and himself returned on 4-11-1963 and 2-12-1963 respectively. It is only on the basis of this evidence, the learned Subordinate Judge recorded his conclusion that the appellant had a permanent place of residence in Ammanianagar and therefore he had jurisdiction to try the suit. As against this, the learned District Judge, in appeal, had proceeded to say that it is natural for D.Ws. 1 and 2 to speak favorably for the defendant by stating that the defendant did not come to India for the past ten years and that their evidence cannot be relied on as they are interested in the defendant. Hence the evidence of D.Ws. 1 and 2 being out of the way, there must be other evidence to support the conclusion that the appellant had a permanent place of residence in India. It is in this context the learned District Judge has referred to the evidence of P.W. 1 and stated-

'P.W. 1 (plaintiff) has stated that the permanent place of residence of the defendant is Ammanianagar in India and that the defendant has been doing business in Colombo. From the evidence discussed above, it is clear that the defendant has not given up his permanent residence in India. The learned Subordinate Judge has discussed these f acts in paragraphs 8 to 10 of his judgment and has come to the conclusion that the defendant has been occupying his residential house in Ammanianagar as his permanent place of residence in India.'

Once the learned District Judge has rejected the evidence of D.Ws. 1 and 2, the only other evidence he had before him for coming to a conclusion on the question whether the appellant was permanently residing in India or not was the evidence of P.W. 1 and the evidence as to the appellant leaving Colombo and coming back to Colombo afforded by the passport of the appellant, to which I had already referred to. I have already referred to the evidence of P.W. 1 and that evidence does not show that the appellant was residing in the house in Ammanianagar at the commencement of the present suit. Equally, the evidence afforded by the passport as to the departure from Colombo by the appellant and return to Colmbo does not show that the appellant was permanently residing in the house in India. As a matter of fact, the learned Subordinate Judge himself does not say that, when the appellant left Colombo on the respective dates and returned to Colombo subsequently on the dates mentioned above, he was during that interval residing in the house in question in Ammanianagar. Under these circumstances, there is absolutely no evidence to support the finding that the appellant was permanently residing in his house in Ammanianagar so as to confer jurisdiction on the court of the Subordinate Judge of Tuticorin.

3. Some argument was advanced before me with reference to the meaning of the expression 'actually and voluntarily resides' occurring in s. 20(a) of the Code, which I have extracted, as well as Explanation 1 which also has been extracted. I may straightway mention that the learned Subordinate Judge did not rely upon the Explanation at all. It is only the learned District Judge that has referred to the Explanation. As far as the Explanation is concerned, it contemplates a person having a permanent dwelling at one place and a temporary residence at another place and the cause of action arising at the place where he has got a temporary residence. In that situation, the Explanation states that such person shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. As far as the court having jurisdiction over the place where he has got a temporary residence is concerned, the Explanation does not serve any purpose because the cause of action itself having arisen within the place of jurisdiction, that will confer jurisdiction on the court and the temporary residence need not be relied upon in support of the existence of jurisdiction. The explanation will become relevant only in relation to the court having jurisdiction over the places where the person had a permanent dwelling. Therefore, the question is whether, in the present case, it could be said the appellant had a permanent dwelling at Ammanianagar. I have already referred to the evidence in this case and, in my opinion, it does not support the finding that the appellant had a permanent dwelling at Ammanianagar. A number of decisions had been cited before the lower courts, to which reference had been made during the course of the arguments before me also. One thing that is clear is, S. 20(a) of the Code talks of a defendant who is actually and voluntarily residing at the commencement of the suit. In this particular case, admittedly, at the time when the suit was instituted on the file of the court of the Subordinate Judge, Tuticorin, the appellant was actually residing with his family at Colombo and was not residing in the house in Ammanianagar. The next question is, can it be said that, notwithstanding the physical absence of the appellant from the house at Ammanianagar, he was actually and voluntarily residing in Ammanianagar by virtue of the fact that the biggest of the five houses built by him was not let out, but was in the possession of a caretaker. I am of the view that dwelling or residence contemplated by the statute must be more or less of a permanent character and it must be of such a nature as to show that the court in which the defendant is sued in his natural forum. When the statute used the words 'actually and voluntarily resides' it intended to eliminate a constructive or a temporary residence or a compulsory residence with reference to a particular place. On the other hand, if a person had been continuously residing in a particular place, his temporary absence from that place will not take away the case out of the scope of S. 20(a) of the Code. It may very will happen as it occurs in many cases that a person carrying on business in the city of a Madras, or any other profession in the city, living in his own house, has also a house owned by him in a place like Kodaikanal or Ootacamund, to which house he regularly goes every year during summer and resides there. from this fact alone, can it be said that he had two permanent places of residence, one in the city of Madras and the other in Kodaikanal or Ootacamund, as the case may be? I am of the view that the fact that a particular defendant has made a house available to him for occupation whenever he goes to that place for stay for a certain period during the course of a year will not make him a permanent resident of that place. As a matter of fact, such a situation came to be considered by the Privy Council in Sophia Ordead James Skinner v. Alexander Skinner. (1880) 7 Ind App 196. In that case, the question of jurisdiction arose under the circumstances, which are clear from the following passage in the judgment.

'Their Lordships will first consider whether the defendant was subject to the jurisdiction of the court, by reason of his dwelling within its local limits. Some evidence was given on this point, and the conclusion of the High Court upon it is thus expressed: 'It is admitted that Alexander Skinner, at the time the suit was brought, was actually residing at Mussuri, in the district of Saharanpur. He has there a private house, in which he resides during the whole of the hot weather, and during the cold he travels through the estate, sometimes putting up at Hansi, sometimes at Delhi, and sometimes at Bilaspur, in one of the houses which have been maintained at the expense of the estate.' One of the witnesses, indeed, went so far as to affirm that the defendant's sole permanent residence on the plains was at Hansi; but the High Court has not acted upon that evidence, which their Lordships think is untrustworthy. It is not contended that the proper forum for the trial of this suit for account was at Saharanpur, by reason of the defendant's residence, at the time of its commencement, at the hill station of Mussuri. such residence was obviously more or less of a temporary character, like that of a man in this country who lives in a house of this own at a watering-place during a portion of the year. And if the defendant can be said to have had any permanent dwelling place on the plains and within the ambit of the Skinner estate, he would not the less dwell there, according to the proper and legal construction of the word, because for health or pleasure he was passing the hot season on the hills when the plaint was filled.'

4. Similarly, the question of jurisdiction came up to be considered by this court, as well as the Privy Council, with reference to the expression 'dwell within the limits of original jurisdiction of the High Court' occurring in clause 12 of the Letters Patent. In Srinivasa Moorthy v. Venkatavarada Aiyangar, ILR 29 Mad 239 and the appeal therefrom, Srinivasa Moorthi v. Venkatavarada Aiyangar, (1911) 38 Ind App. They dealt with a case where the defendant who was domiciled and resided in Mysore left his house in Madras to which he brought his wife and family and apprenticed himself for a while to a Vakil in Madras. Under such circumstances, it was held that a suit brought against him in Madras some months after his residence there was competent since he had taken up abode in Madras, meaning to remain there for several months and was actually living there when the it was instituted. The Privy Council observed-

'The question of jurisdiction is too plain for argument. Both courts held that the cause of action arose partly within the jurisdiction of the High Court, and although the Judge of first Instance though himself bound by a decision which had really no application to the case to hold (contrary to his own opinion) that the defendant was not dwelling within the jurisdiction, the High Court not unnaturally thought that inasmuch as he had n taken up his abode with his wife and family in hired house in Madras, meaning to remain there several months, and was actually living there whether when the suit was instituted, he could not be heard to say that he was not 'dwelling' within the jurisdiction of the High Court.'

On the findings of the courts below that the appellant herein was living in Colombo with his family and acquired citizenship of that country, it must follow that, at the commencement of the present suit, he was not actually and voluntarily residing within the jurisdiction of the Subordinate Judge's Court. Tuticorin. The fact that he had a house in Ammanianagar and he was interested in maintaining the house and had lived in that house before he left for Colombo could not in any way make the appellant a person actually and voluntarily residing in that house so as to confer jurisdiction on the Subordinate Judge's Court, Tuticorin. As pointed out by the Punjab High Court in Mohan Singh v. Laiya Ram .

'Section 20, C. P. Code has been designed to secure that justice might be brought as near as possible to every man's hearth-stone and that the defendant should not be put to the trouble and expense of traveling long distances in order to defend himself in cases in which he may be involved. It has accordingly been enacted that a person can be sued in the place in which he actually and voluntarily resides. The expression 'resides' means 'to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time'. The expression 'actual' means 'something real and opposed to constructive or speculative; something existing in act, fact, or reality. ' Residence may be legal and technical or actual or physical. If a person lives with his wife and children in an established home, his legal and actual place of residence is the same. If a person has no established home and is compelled to live in hotels, boarding houses or houses of others, his actual or physical habitation is the place where he actually or personally resides. If the family of a person lives at one place and he himself lives for a greater portion of the time at another place, he has legal residence at the place where his family resides and actual residence where he himself resides. The expression actually resides' means actual residence of place where 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, that is actual residence and not a temporary abiding place. A person is said to reside in a particular place if he actually lives in the place and has a freely exercised intention of remaining there permanently or for a length of time.'

5. Some argument was advanced before me with reference to the fact that the appellant had been taking interest in the maintenance of the house left without being let out in Ammaninanagar and also the lands in the charge of D.W.2. I am of the view that this fact will not in any way alter the position that the appellant herein was not actually and voluntarily residing in Ammanianagar or that his permanent place of residence was not in Ammanianagar. the fact that he was residing in Colombo, and carrying on business does not mean that he should not take any interest whatever in the properties belonging to him and situated in India. A person may be originally belonging to a particular place and may hold landed property there and he may be making enquires about the properties and he may be deriving income therefrom. This however does not mean that he is actually and voluntarily residing there, since residence is not identical with ownership, but it means where a person eats, drinks and sleeps or where his family or his servants eat, drink and sleep. Under the circumstances it cannot be held that the appellant herein was actually and voluntarily residing in his house in Ammanianagar, or had his permanent place of residence at Ammanianagar.

6. For all these reasons, the conclusion of the courts below that the court of the Subordinate Judge, Tuticorin, has jurisdiction to entertain the suit is erroneous both because of their misunderstand the scope of the expressions 'actually and voluntarily resides' occurring in s.. 20(a) of the Code and 'a permanent dwelling' occurring I Explanation 1 to that section and also because of the absence of any evidence to support a finding that the appellant herein had a permanent residence in Ammanianangar, or was actually and voluntarily residing in Ammanianagar. Hence the Subordinate Judge's court, Tuticorin, not having jurisdiction to entertain the suit, the second appeal succeeds and the judgments and decrees of the courts below are set aside. In view of the fact that on the basis of my conclusion, no other court in India court have entertained the suit, the plaint should have been rejected and it is accordingly rejected.

7. There will be no order as to costs. No leave.

8. Appeal allowed.


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