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S. Devaraja Aiyar Vs. Dr. N. Srinivasan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1950)2MLJ484
AppellantS. Devaraja Aiyar
RespondentDr. N. Srinivasan and anr.
Cases ReferredSrinivasamurthi v. Venkatavarada Aiyangar
Excerpt:
.....is that it is perfectly clear that the learned subordinate judge came to a wrong conclusion of fact by applying a wrong principle of..........to institute the suit against him, and that the residence attributed to the second defendant in vadakku valliyur was not bona fide for the reason that the second defendant had 'assumed a residence at: vadakku valliyur to give a semblance of jurisdiction to this court', and that he is living permanently in his substantial house at nagarcoil even to-day.'2. the village munsif of vadakku valliyur was the only person called to give evidence on this question of the residence of the second defendant in valliyur. he deposed that 'd. 2 lives in valliyur since the last one year and more. he lives in. west street. d. 2's daughter and servant lived with him. he lives there for the sake of his health '. in cross-examination he admitted that the second defendant is a native of nagarcoil, that he.....
Judgment:

Balakrishna Ayyar, J.

1. The plaintiff is the petitioner. He alleged that the first defendant had borrowed from him a large sum of money to meet the expenses of his education and that the second defendant who is the father-in-law of the first defendant, was a surety for the repayment of this amount. The first defendant, it appears, is now employed in Kapurthala. The second defendant is a retired Inspector of Schools, Travancore, who it was alleged in the plaint was then residing at Vadakku Valliyur,. Nanguneri taluk. In view of the fact that the first defendant lives in Kapurthala, the plaintiff applied under Section 20(b) of the Civil Procedure Code for leave of the Sub-Court at Tinnevelly to institute the suit against the first defendant in that Court also. The second defendant did not seriously contest that application; but the first defendant did. He alleged that he and his wife were not living together, hat since they separated he and his father-in-law were on bad terms, and that his father-in-law had set up the plaintiff to institute the suit against him, and that the residence attributed to the second defendant in Vadakku Valliyur was not bona fide for the reason that the second defendant had 'assumed a residence at: Vadakku Valliyur to give a semblance of jurisdiction to this Court', and that he is living permanently in his substantial house at Nagarcoil even to-day.'

2. The Village Munsif of Vadakku Valliyur was the only person called to give evidence on this question of the residence of the second defendant in Valliyur. He deposed that 'D. 2 lives in Valliyur since the last one year and more. He lives in. West Street. D. 2's daughter and servant lived with him. He lives there for the sake of his health '. In cross-examination he admitted that the second defendant is a native of Nagarcoil, that he has a house and other properties in Nagarcoil, that his eldest son is employed as an Inspector of Schools at Nagarcoil, that his wife died at Nagarcoil, and that she never went to Valliyur. He however stood by his statement 'Since the last one year he lives here and goes to Nagarcoil' apparently meaning that he used to make frequent visits to Nagarcoil. An explana-tion of such visits was furnished by him later on in the course of the evidence, 'People go to Nagarcoil because there is a good hospital there.'

3. The learned Subordinate Judge considered that the expression 'voluntarily resides' occurring in Section 20(b), Civil Procedure Code, means 'permanent residence' and not 'temporary residence'. He felt that this matter was concluded by the decision in Nusserwanjee Wadia v. Eleonora Wadia I.L.R. (1913) 38 Bom. 125. Examining the evidence in the light of this decision he came to the conclusion that it was clear from the answers of P.W. in cross-examination that the second defendant could not have been living at Valliyur even temporarily, let alone permanently.

4. The view of the learned Subordinate Judge that the residence required by Section 20(b), Civil Procedure Code, is 'permanent residence' does not appear to be correct. So far as the Bombay case is concerned it must be stated that that decision was given under the Divorce Act. As Tyabji, J., explained in an earlier case,

The word 'reside' and 'dwell' have a narrow and more extended meaning according to the intention of the Legislature in the various Acts in which they occur. For the purpose of jurisdiction I drink the authorities establish that, if a person has no permanent residence he may be said to dwell wherever he may be found.

I think we should proceed carefully before we apply the meaning appropriate to one enactment to another.

5. So far as this Court is concerned there is a very scholarly discussion of the matter in the decision in Srinivasamurthi v. Venkatavarada Aiyangar (1905) 16 M.L.J. 238 : I.L.R. 29 Mad. That decision makes i( perfectly plain that even temporary residence is sufficient to confer jurisdiction. That decision was affirmed in Srinivasamurthi v. Venkatavarada Aiyangar (1911) 21 M.L.J. 669 : L.R. 38 IndAp 129. The question of law is in fact so clear that Mr. Sesha Aiyar, the learned advocate for the respondents, did not controvert the position that temporary residence would confer jurisdiction. He however strenuously argued that in the present case the learned Subordinate Judge has found as a matter of actual fact that the second defendant was not even a temporary resident, and that such a finding of fact should not be disturbed in revision. One difficulty in the way of this argument however is that it is perfectly clear that the learned Subordinate Judge came to a wrong conclusion of fact by applying a wrong principle of law. Besides, the conclusion of fact he has come to is manifestly at variance with the evidence on record. If 1 he learned Subordinate Judge had stated that he did not believe P.W. 1, the village munsif, the position would have been different; but that he does not say. He deduces from the answers the witness gave in cross-examination that the second defendant could not have been living at Vadakku Valliyur even temporarily even though the answers given do not support the conclusion. The evidence of the village munsif leaves no room for doubt that for about one year before the institution of the suit the second defendant had been living in Vadakku Valliyur. Such residence is sufficient to give the Court jurisdiction. I also think that regard being had to the circumstances of the case leave should have been given to institute the suit against the first defendant also. To refuse leave would in effect be to deprive the plaintiff of any effective legal relief.

6. Mr. Sesha Aiyar for the respondents argued that after his petition was dismissed the plaintiff applied for refund of the court-fee, and that by this application he must be deemed to have acquiesced in the order that had been passed against him. I do not consider that this inference necessarily or even properly follows, because within the time allowed to him by law he has come up to this Court with a revision petition challenging the correctness of the order that had been made against him by the learned Subordinate Judge.

7. In the circumstances the revision petition is allowed with costs here and in the Court below.


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