DESILVA Vs. MORAIS

JUDGEMENT

(1.) The defendant in the Court below is the petitioner in this Court. The suit was for money representing balance alleged to be due on a transaction between the parties. That there was a balance payable is not disputed, as in his deposition the defendant says that he had asked his agent at Trivandrum to make the payment. The defendant is a permanent resident of Ceylon. He carries on business in dry fish. In connection with that business he came to Trivandrum when this suit was filed by the plaintiff and the defendant was arrested before judgment. The defendant obtained his release from arrest on security. In the objection to the arrest he questions the jurisdiction of the Court. The suit is based upon a document which provides for payment of money due to the plaintiff at Trivandrum. Admittedly the defendant was physically present within the jurisdiction of the Trivandrum Court when the suit was filed. When examined, he stated that he was then present and that he would continue to stay there for about three months in connection with his business and that he had no idea to leave Court to avoid arrest.

(2.) Mr. Boothalingam Iyer, for the petitioner contended that the Court at Trivandrum had no jurisdiction to entertain a personal action against the defendant. He relied upon certain text books on international law for the position as to when a person can be said to be a resident within the jurisdiction of a foreign Court in order that the adjudication of that foreign Court can be recognized as valid and effective. The particular statutory provisions forming the basis of the propositions laid down in the text books have not been placed before me. Confining attention to the provision of the Civil Procedure Code one has only to consider what is meant by voluntary residence. Under S.20 of the Indian Code of Civil Procedure which is the same as the corresponding section of the Travancore Code which was in force at the time, it was held in Srinivasa Moorthy v. Venkata Varada Ayyangar (29 Mad. 239) that the actual presence of a person who had come on business within the jurisdiction of a Court is enough to invest that Court with jurisdiction. The voluntary presence of the defendant within the jurisdiction of a Court at the time of a suit and for some time thereafter sufficient to enable the sub poena to be served on him will constitute residence within the meaning of S. 20, Civil P.C. The defendant admitted in this case that he came to Trivandrum voluntarily for the purpose of business, that he was residing there at the time of filing of the suit and proposed to stay for about 3 months thereafter in connection with his business. He also admitted that he had an agent in Trivandrum in connection with that business. Under the circumstances the conclusion arrived at by the Court below in favour of jurisdiction is correct. The reason given by the Court below is however unsound. If a person appears before Court under arrest, his presence is not voluntary and if he gave security to secure his liberation from custody of the Court, objecting to the Courts jurisdiction he cannot be said to have submitted to the Courts jurisdiction. The civil revision petition should be dismissed with costs.