M S M BUHARI Vs. S M BUHARI

JUDGEMENT

(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:--

(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 (PC ). In that case, the question of jurisdiction arose under the circumstances, which are clear from the following passage in the judgment.