SNEHALATA DEVI Vs. SAMANTA RADHA PRASANNA DAS

JUDGEMENT

(1.) THIS suit comes up to us by withdrawal from the Court of Sub -Judge, Cuttack, for a decision on the preliminary issue raised therein as regards jurisdiction. The suit was filed in the court of the Subordinate Judge at Cuttack and thedefendant has taken an objection that the Cuttack Sub -Court has no local jurisdiction over the suit. A preliminary decision of this issue has been found necessary as incidental to the disposal of the application M.J.C. 164/51 that came up before us. That was an application for transfer of another suit at Balasore to be tried along with suit at Cuttack. In the course of the arguments on that application, a point was rightly taken on behalf of the respondent therein that it would be futile toconsider the question of transfer of the Balasore suit to be tried with the Cuttack -suit if ultimately it is found that the Cuttack -suit was not maintainable on the ground of local jurisdiction. It may be mentioned that during the earlier stages of the pendency of the above application for transfer, this Court whilestaying the trial of the Cuttack suit by itsorder dated 16 -2 -52, permitted the Subordinate Judge to decide the preliminary issue of jurisdiction. This reservation was made at the suggestion of the respondent's advocate therein. The learned Subordinate Judge actually took up the preliminary issue for consideration, as appears from his order No. 32 dated 6 -3 -52, but after hearing arguments, he appears to have felt disinclined to make up his mind on the legal question raised before him. He thought that a satisfactory decision on the question of jurisdiction required evidence to be taken as regards certain allegations of fact and that it would be more convenient to deal with the issue of jurisdiction at the time of the trial of the suit and not as a preliminary issue. When we heard arguments on the application for transfer, the question of jurisdiction of the Cuttack -suit was incidentally raised andthe above order of the Subordinate Judge was brought to our notice. We were, however, of the opinion that the issue of jurisdiction could be decided without the necessity of taking anyevidence, and we felt it desirable that the issue should be decided one way or the other finally at this stage in order to deal effectively with the question of transfer. In the circumstances, we felt that instead of directing the Sub -Judge once again to take up the preliminary issue as to jurisdiction and to give a definite finding thereon, it would be more convenient to everybody concerned, that the question of jurisdiction raised in that suit should be dealt with finally by this Court itself and the advocates on both sides had no objection to the same. We accordingly kept M.J.C. 164/51 pending and by our order No. 11 dated 14 -8 -52 passed in M.J.C. 164/51 withdrew the Cuttack -suit O.S. 1/52 on the file of the Sub -Judge, Cuttack, to this Court, to enable us to decide the question relating to jurisdiction and to send the suit back to the appropriate Court after disposal of the transfer application. It is in these circumstances that this suit has come to us for disposal of the preliminary issue No. 3 raised therein viz., 'Has this Court jurisdiction to try the suit?' and we accordingly proceed to decide the issue.

(2.) WE have heard fresh arguments from both sides on the said issue. Learned counsel for the defendant maintains that the suit filed by the plaintiff is merely a suit for money claimed by her towards maintenance and that such a suit could be brought only at the place where the defendant resides by virtue of Section 20, C.P.C. He relies for this contention on relief No. (a) in para 18 of the plaint by which the plaintiff prayed for a decree directing the defendant to pay to the plaintiff a sum of Rs. 1,000/ - every month payable in the 1st week of each succeeding calendar month during the lifetime of the plaintiff with effect from 13 -4 -50. To this the answer of the learned counsel for the plaintiff is three -hold, viz.,

(3.) AS regards the 2nd ground, it is a matterof some doubt whether the English rule that the debtor is to seek the creditor at his place of residence for discharging the obligation is one that applies only to contractual relations or to every case where one person incurs an i obligation in law towards another person for paying certain moneys. In support of the view that the principle is one which is applicable not merely to contractual relations, but also to other kinds of obligations, learned counsel for the petitioners relies on in the cases in 'Chapaklal Mohanlal v. Nectar Tea Co.', AIR 1933 Bom 179. - - 'Tulsiman Bibi v. Abdul Latif, AIR 1936 Cal 97. The latter is a payment of dower -debt, but it would appear that the legal obligation to pay the dower -debt in that case was further secured by a compromise to pay without any specification of the place where it was to be paid up. As against this, there is a later case in - -'Ramalinga Iyer v. Jayalakshmi', AIR 1941 Mad 695, which has definitely held that with reference to the wife's right of maintenance by the husband, the English Common Law Rule does not apply. The cases in AIR 1933 Bom 179, AIR 1936 Cal 97, purported to rely on and follow the case of the Privy Council in - - 'Soniram Jeetmull v. R. D. Tala & Co. Ltd.', AIR 1927 P. C. 156; but the case in AIR 1941 Mad 695 purported to distinguish the said Privy Council case.