1. This is an appeal from the judgment and decree of Mr. Justice Panckridge dated June 5, 1935, in which he decreed that the plaintiff-respondent is entitled to a sum of Rs. 16,200 from the defendant as damages for breach of contract. The plaintiff was formerly in the Indian Civil Service. He retired from that service some years ago. The defendant is a gentleman of considerable means who has a large estate at Hathwa in the Province of Bihar. He has residence at Hathwa. He has also houses at Sewan, Chapra, Patna, Benares, Calcutta and Kurseong. On May 4, 1934, the plaintiff had an interview with the defendant at Hathwa with the result that the defendant engaged the plaintiff as his agent. The engagement is set out in the letter printed at page 5 of the paper-book and is headed
The Palace Hathwa May 4, 1934. To H. E. Beal, Esq.,
With reference to the interview you had with me to-day I have much pleasure in appointing you in place of Mr. E. Abbott who has been retired with effect from the 5th instant.' You will draw a salary of Rs. 1,500 fifteen hundred per month plus Rs. 250 per month as sumptuary allowance with free furnished quarters and lighting, fans etc. You will be entitled to all the allowances at the same rates as Mr. Abbott. This appointment will terminate on March 5, 1935. At the end of this period if you satisfy me with your work you will be confirmed and the appointment made permanent.
2. That was signed by the' defendant. Pursuant to that agreement the plaintiff entered upon his duties and acted as agent for the defendant at Hathwa. On June 7, 1934, the plaintiff received this letter addressed from Hathwa
Dear Mr. Beal,
I have been instructed by the Maharaja Bahadur of Hathwa to inform you that your services are no longer required by him. Your probationary appointment was made on your assuarances that you are in intimate touch with the Local Government and that of Government of India. You also did not disclose to him your financial position. Owing to these and other reasons Maharaja Bahadur is pleased to dispense with your services; He is, however, pleased to give you a sum of rupees five thousand plus 1st class fare to Calcutta. Please note, that the Raj car that is being used by you and the Raj peons will be withdrawn to-morrow. ' Yours truly,Birendra Nath Chakrabarty.Advocate.
3. It will be apparent, therefore, that the contract of service was made at Hathwa and in fact it was performed, as long as it lasted, at Hathwa. The breach of contract occurred at Hathwa. After that letter the plaintiff came to Calcutta and consulted his Solicitors. The Solicitor Messrs, Sanderson and Morgans wrote the defendant a letter at page 38 of the paper-book asking whether Mr. Chakrabarty had the authority to write the letter he did and to dismiss the plaintiff and also stating that there was no justification of the course the defendant had taken. There was a reply to that letter on June 15, by Mr. Mitra who was the Private Secretary of the defendant. On July 3, Messrs. Sanderson and Morgans wrote to Mr. Chakrabarty setting out that the agreement should not have been terminated and stating that his client had lost the sum of Rs. 25,000 and ending in the circumstances:
We are instructed to demand payment of the said sum of Rs. 23,500, failing payment of which our client regrets he will have no alternative but to file a suit in the Calcutta High Court.
4. A reply to that letter was not received until July 26, more than 3 weeks later, and Mr. Chakrabarty wrote back to Messrs. Sanderson & Morgans :
With reference to your letter dated July 3,1934, I have been instructed by the Maharaja Bahadur of Hathwa to inform you that he is unable to entertain the claim of your client, as the contract of service is vitiated by misrepresentation and suppression of material facts.
As the Maharaja was out of head-quarters there is some delay in replying to your letter.
5. Next day, that is, on July 27, the plaint in these proceedings was filed wherein the plaintiff claimed damages for wrongful termination of the contract of service he had with the defendant. In the plaint damages were named as Rs. 24,950 plus Rs. 250 arrears of sumptuary allowance for May 1934. The first paragraph in the written statement of defence reads.
6. This Court, (that is the Calcutta High Court) has no jurisdiction to entertain or try the suit.
7. The defendant denies that he at any material times or at the time of the institution of this suit resided at No. 15, Theatre Road, within the jurisdiction aforeasid. His place of residence is at Hathwa outside the said jurisdiction.
8. Then followed para. 3 in which the defendant alleged that the contract of service was obtained by the plaintiff by misrepresentation and that by reason of certain other matters he was justified in terminating it as he did on June 7. Then there is a denial of the plaintiff's title to damages. On March 13, 1935, that written statement was amended by the defendant and para. 3 was struck, out so that when this matter came to be tried before the learned Judge, Mr. Justice Panckridge, the only questions he had to decide were: (1) whether the Court had jurisdiction to entertain the suit, and (2) what the damages were. It was no longer alleged that the defendant was justified in terminating the plaintiff's service at the time and in the way he did. Mr. Justice Panckridge decided that he had jurisdiction to entertain the suit and he assessed the damages at the sum of Rs. 16,200.
9. An appeal has been lodged (1) against the quantum of the damages, (2) as to the jurisdiction. That matter was not seriously pursued before this Court by the appellant. I am of the opinion that having regard to the evidence that the plaintiff gave as to the allowance he was entitled to and as to the attempts that he made to obtain other employment after termination of this contract by the defendant, the damages which the learned Judge has assessed are proper damages.
10. Now when the question of jurisdiction came to be raised Mr. Barwell who appears for the respondent raised an objection to the matter of jurisdiction being gone into He based that objection on Section 21 of the Code of Civil Procedure. Section 21 reads as follows:--
No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and. in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
11. Mr. Barwell stated that the objection as to jurisdiction was not taken at the earliest possible opportunity. It ought to-have been taken, he said, before the written statement was delivered, and he said that in this case it could not be taken before us because there had not been a consequent failure of justice. He said, having regard to the course this case took at the trial, there was obviously no failure of justice, and that justice Had been done. The defendant admitted the contract and the breach of it, and the damages were the only thing the Judge had to assess and these were obviously correct. To consider the effect of Section 21, Civil Procedure Code we have to consider the instrument which gives this Court its jurisdiction in a suit of this kind. That instrument is, by common consent, Clause 12 of the Letters Patent of 1865. That reads :
The High Court of Judicature at Fort William in Bengal in the exercise of its ordinary original civil jurisdiction shall be empowered to receive, try and determine suits of every description, if, in the case of suits for land or other immovable, property, such land or property shall be situated or in all other cases, if the cause of action shall have arisen either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases failing within the jurisdiction of the Small Cause Court at Calcutta, in which the debt or damage, or value of the property sued for does not exceed one hundred., rupees.
12. The part of the clause which is relevant to this case is this :--
If the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain, within such limits.
13. To ascertain whether the Court has jurisdiction, evidence has to be given as to whether the requirements of that part of Clause 12 have been satisfied. When, that evidence is given, the Court may decide whether it has jurisdiction or not. In this case the Court decided that it had jurisdiction. It must, be noted at this stage that Clause 12 gives this Court its jurisdiction. The jurisdiction of the original side of this Court is not given to it by Section 20 of the Code of Civil Procedure. Section 20, Civil Procedure Code, does not apply to the Original Side of the Chatered High Court, (see Section 120 of the Code of Civil Procedure), If this Court has jurisdiction to entertain the suit, there is no need to invoke the aid of Section 21 of the Code of Civil Procedure if this Has no jurisdiction to entertain this suit then the Judge in the Court of first instance has no jurisdiction to hear the case and this Court sitting as an Appellate Court has no jurisdiction to entertain the appeal. That being so this Court has no jurisdiction to consider the matter and has no jurisdiction to apply Section 21 of the Code of Civil Procedure, and it seems to me therefore that s- 2 of the Code can have no application in a case of this kind which is brought on the Original Side of this Court. This view is supported by the judgment of their Lordships of the Privy Council in the case of Raja Setrucherla Ramabhadra Raju v. Maharaja of Jeypore 46 IA 151 : 51 Ind. Cas. 185 : 17 ALJ 694 : 37 MLJ 11 : (1919) MWN 502 : 26 MLT 127 : 21 Bom.LR 914 : 30 CLJ 209 : 33 CWN 1033 : 10 LW 362 : 42 M 813 : AIR 1919 PC 150 (PC). The head-note of that case reads;
The Court of a District subject to the Code of Civil Procedure has no jurisdiction under Section 17 of the Code to entertain a suit so far as it claims a sale of mortgaged land situate in a scheduled district. That part of a decree which orders a sale of land so situated can be set aside, although no objection has been taken to the jurisdiction in the Court of first instance since Section 21 does not apply in those circumstances. The variation of the decree will not prejudice the plaintiffs right to apply in the scheduled District for an order for the sale -of the land there situate.
14. At p. 156 Page of 46 I.A.--[Ed.] Lord Dunedin said :
Some of the lands of which sale had been decreed are situate in what are known as the Agency Tracts. Now, the suit is raised in terms of the -Code of Civil Procedure, 1908. By Section 1, Sub-section 3 the Code, is with the exception of certain sections not here in point, excluded from the scheduled Districts, and by Act XXIV of 1839 the District in which the lands above referred to are situate was scheduled. The learned Judges of the High Court thought that the matter was met by Section 21 of the Code, which provides that no objection as to the place of suing shall be allowed by any Appellate Court unless the objection was taken in the Court of first instance, which in this case had admittedly not been done. Their Lordships cannot agree with that view. This is not an objection as to the place of suing; it is an objection going to the nullity of the order of the ground of want of jurisdiction.
15. In my view, in the same way, if this Court found the conditions of Clause 12 of the Letters Patent were not satisfied, this Court would have no jurisdiction, and having no jurisdiction, it could not deal with the matter or attempt to apply Section 21 of the Code of Civil Procedure. In my view if this Court has no jurisdiction under the Letters Patent, Section 21 of the Code of Civil Procedure cannot give it jurisdiction. That contention of Mr. Barwell, therefore, fails.
16. The question next arises and the most important question in this appeal had the Court in fact in this case jurisdiction to entertain, hear and determine the suit. What are the circumstances which, it is said, bring the defendant within the jurisdiction of this Court. Now the defendant gave evidence on commission and was cross-examined. His agent at Calcutta gave evidence. His agent at Hathwa gave evidence and Mr. Beal, the plaintiff, gave evidence. From that evidence the following facts appear to be established. The defendant is a man of wealth and position. He has a large estate at Hathwa in Bihar. He has houses, as I said previously, at Sewan, Benares, Patna, Chapra, Kurseong and at Calcutta. We are only concerned with the house at Calcutta. The Headquarters of the Estate are at Hathwa where the defendant has what he describes a Palace. Some 15-20 years ago when the estate was in the hands of the Court of Wards two houses Nos. 14 and 15, Theatre Road, Calcutta, within the territorial jurisdiction of this Court were bought by the Court of Wards out of the monies belonging to the estate. Those houses were furnished for the occupation of the defendant and his family. Those houses remained furnished and still remain furnished for the occupation of the defendant and his family. A staff of servants is kept there continually so that the houses (apparently they regard them as one), may be kept in a state of readiness for occupation. The defendant has an agent named Mr. Amal Ranjan Mitra as his Calcutta Agent. The defendant has also banking account with a Bank in Calcutta. The defendant is rated as occupier of those houses and in addition to that the defendant is on the Register of voters of the Calcutta Corporation. As regards the defendant's occupation of these premises, he himself in evidence said that they were kept ready so that he could come in as and when he pleases. He says when asked the following questions at p. 78, of the paper-book
Q. I am suggesting to you that you go to Calcutta every year especially the winter when the Viceroy is in Calcutta.
A. I go whenever I like.
Q. I further suggest that besides the winter season you also go to Calcutta at other time of the season whenever you like.
Q. I am further suggesting that you had been going to Calcutta every year for the last 3, 4 or 5 years at one time or other. Is it not ?
Q. And previous to 3, 4 or 5 years you had been going to your Calcutta residence from time to time. It is not ?
Q. Have you got an account in the Imperial Bank, Calcutta Branch ?
17. So that the defendant had bought and furnished and still furnishes and still maintains a house within the jurisdiction of this Court to which he may go whenever he pleases. Now it is clear also from the evidence that in the first week in July 1934, when Messrs. Sandersons & Morgans were writing to the defendant's Advocate at Hathwa, that about that time, the defendant was in Calcutta. At p. 65 he is asked this question
Q. Were you in Calcutta before July 19, 1934 ?
A. Yes, I was in Calcutta on my way back from Ranchi in the first week of July 1934.
Q. Can you tell approximately how long before July 19, 1934, you left Calcutta for Hathwa?
A. I don't remember the exact date but it must be about July 8, 9 or 10, 1934.
Q. After going back to Hathwa, did you visit Calcutta again in 1931 ?
A. Yes, about the end of December 1934.
18. At p. 64 he says :
Q. Can you tell me the number of the house you own at Calcutta ?
A. Nos. 14 and 15, Theatre Road.
Q. Are these houses outside Hathwa including the house at Calcutta used by you ?
A. They are used by me occasionally.
Q. For what purpose ?
A. For pleasure trips.
Q. Can you give an idea of the number of times you have visited Calcutta during any particular year ?
A. I go to Calcutta generally once a year sometime twice.
Q. How long you stay each time
A. Generally a week or 10 days.
19. It appears to me clear from that evidence that the defendant was living in Calcutta in the first week or second week of July, that he left Calcutta about the 2nd week of July with the intention of returning to Calcutta as and when he pleased. He returned to Calcutta sometime in November 1934, and we are further told in the evidence that he was in Calcutta from May 9, 1935, until June 5, 1935, just before this suit was brought on. It is clear to me that the defendant had a dwelling place in Calcutta, that he had a residence in Calcutta which he uses it from time as he pleases. How long he spents there on each occasion I am not able to say but judging from the evasive answers that he gave to certain questions I do not accept the limits he places upon the period of occupation of his house in Calcutta being somewhere about a week at a time. Does such an occupation of this house amount to his dwelling there at the commencement of the suit If the words of the Letters Patent had been 'shall actually dwell or be dwelling within the limits of territorial jurisdiction at the commencement of the suit' this question which is not easy, might have been a little easier. A number of cases, a very large number of cases, have been cited to this Court during the case and two very able arguments have been put before us by Mr. Banerji and Mr. Barwell. It is not necessary nor I think it desirable to review all those cases. Each case where facts are concerned is an authority for what it decides although it may be some guide in some other case. In Re Norris Ex parte Reynolds (1888) 4 TLR 453 : 5 Morrell 111, the question arose in bankruptcy proceedings as to whether the debtor had within a year before the date of the presentation of the petition ordinarily resided or had a dwelling house or place of business in England as required by Section 6, Sub-section 1(d) of the Bankruptcy Act of 1883. The debtor was a financial agent, an American, and his wife and family resided at Brussels. On November 10, 1886, he took a room at the Hotel Metro-pole which he had paid for ever since, and from which he addressed his letters, he himself going backwards and forwards to Brussels and other places. Prior to that date he addressed his letters from various other hotels in London. It was not contended that the debtor was domiciled in England, but that by reason of his having a room at the Hotel Metropole he ordinarily resided or had a place of business in England. The Registrar set aside the bankruptcy notice, Lord Halsbary, L.C., Lord Esher, M.R. and Bowen, L.J. allowed the appeal and in dealing with this matter Lord Halsbury's judgment reads:
The Registrar said that the debtor's ordinary place of residence was in Brussels, and he seemed to think that that disposed of the question. That involved this that a person could not have a residence here as well. With that he could not agree. The Registrar also seemed to think that a room at a hotel could not be a place of business. With that general proposition he could not agree, though the evidence in this case was too loose to satisfy him that the debtor had a place of business at the hotel. In his opinion it was clear that within a year before the date of the presentation of the petition the debtor had ordinarily resided in England. It was a question of fact and of degree in each case.
20. The Master of the Rolls, Lord Esher, in giving his judgment dealt with the facts and said :
Did he ordinarily reside in England? His Lordship doubted whether a man by the fact of staying at a hotel in the ordinary way, even for a considerable time, could be said to be ordinarily residing there. A man who took the exclusive use of lodgings would be said to reside in those lodgings. Here the evidence seemed to show that the debtor took a room at the hotel and used it like a lodging: he was constantly there; and therefore, it was true to say that he had ordinarily resided there.
21. That section use the word 'reside'. In the clause of the Letters Patent the word is 'dwell'. We have been referred to dictionaries for the meaning of each word. To distinguish between the two words is a task which I do not like to enter upon at all. Indeed it was conceded on each side in the Court below that the words ''dwell' and ''reside' had the same meaning. I use the case of In re Norris for the authority that it is a question of fact and degree in each particular case whether a person resides or dwells at a place at a certain time. We have been referred to the case decided by the Privy Council in 1880. It is the case of Orde v. Skinner 7 IA 196 : 3 A 91 : 7 CLR 295 : 4 Ind. Jur. 476 : 3 Shome LR 272 : 3 Suther. 788 : 4 Sar. 178 (PC) The facts are set out in the head note. This is a question of jurisdiction under Act VIII of 1859. The particular clause giving jurisdiction was similar to the material part of the clause with which we are concerned in the Letters Patent here. The head-note sets out the facts as follows:
The defendant being one of the proprietors of the fort and residence at B. in the district of Meerut, where an establishment of some kind was kept, occasionally resided there for periods of time more or less considerable. The Will of the testator (his father) under which he derived title, contemplated that the said fort and residence might be the principal place of residence of the testator's family,, in which his family memorials should be preserved. It appeared that the defendant also had a private: house at M, in the district of Saharanpur, in. which he was actually, though temporarily, residing at the time the suit was brought:--Held that, the defendant 'dwelt' at B, within the meaning, of Section 5 of Act VIII of 1859, and was therefore subject to the jurisdiction of the Court at Meerut.
22. The passage I should like to refer begins from the top of page 205.
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 Mussoorie Such residence was obviously more or less of a temporary character, like that of man in this country who lives in a house of his 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 leas 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 filed.
23. This is not a part of the judgment which decides the matter in issue. The report goes on
The question then is, did he not 'dwell' at, Bilaspur within the meaning of the section He was not a mere manager, though in this suit ha is accountable in that character. He was one of the five original sharers in that estate, and as such he was one of the proprietors of the fort and residence at Bilaspur. Their Lordships cannot doubt on the evidence that there was a place of residence there, and are of opinion that the clauses-in the will which have been cited show that the testator and founder of the family contemplated that it might be the principal place of residence of his family. He undoubtedly treated it as the place in which the honourable memorials of himself, and his services were to be permanently preserved. Again, their Lordships think it is sufficiently shown, upon the evidence that an establishment of some kind was kept there, and that the defendant himself, though travelling for the most part during the cold weather about the estate, occasionally resided there, as he had an unquestionable right to do for periods of time more or less considerable. In his own notice of October 13, 1S74, he called upon the other sharers to come and examine the accounts in the manager's office, which 'would remain at Bilaspur from January 2 to February 2. A man, however, may have more than one dwelling, place; and it is unnecessary to consider whether the defendant may not have also such a dwelling-place at Hansi as would subject him to the jurisdiction of the Courts of the Punjab. It is sufficient to decide, as their Lordships do decide, that the defendant so dwelt at Bilaspur as make himself subject to the jurisdiction of the Meerut Court in this suit.
24. I find that in this case at all material times the defendant had a permanent residence here in Calcutta, permanently furnished, permanently established to receive him at any moment he cared to enter; and that he resided there when he was so minded; that he resided there in July 1934 and had, when he left it about July 1931, an intention to return there and did return there later in the year. Therefore taking the guidance I get from the cases of In re Norris Ex Parte Reynolds (1888) 4 TLR 453 : 5 Morrell 111 and Orde v. Skinner 7 IA 196 : 3 A 91 : 7 CLR 295 : 4 Ind. Jur. 476 : 3 Shome LR 272 : 3 Suther. 788 : 4 Sar. 178 (PC), I am of opinion that in this case the defendant resided or dwelt at that house, No. 15, Theatre Road, within the jurisdiction of this Court at the time of the commencement of this suit on July 26, 1934. In the careful and the learned Judgment which Mr. Justice Panckridge delivered in this matter in the Court below other cases are referred to. I agree with the conclusion Mr. Justice Panckridge arrived at for the reasons that he gave and for those I have endeavoured to give in this Appeal Court. In my opinion this appeal Should be dismissed.
25. The respondent will get 9-10ths of his costs of this appeal. We certify three Counsels for the respondent.
26. For the reasons given by my Lord, the Chief Justice, I am of the same opinion.