MAHOMED HABIBULLA KHAN Vs. AIMILA AUTOMOBILE CO

JUDGEMENT

(1.) In this interlocutory appeal from the judgment of Mr. Justice Mirza the sole point is whether on the date of the application for security for coats under Order XXV, Rule 1, of the Civil Procedure Code, the plaintiff was " residing out of British India." The evidence of the plaintiff is really uncontradicted that he has been living in Poona for the last four years. Even the defendants in their affidavit have to admit that ho has been " for some time past staying at Poona for change of air," as they call it. It is also clear on the pleadings and the correspondence annexed thereto that the original transaction about this car was as long ago as February 1928. It further appears from a copy letter at page 29 of the papor-book, dated July 21, 1928, and addressed by the defendants to the plaintiff, that the plaintiff was tlien living at " 2008 St. Vincent Street, Poona" which is exactly the same address as he now has.

(2.) It is contended that notwithstanding this length of time the plaintiff is only here for some temporary purpose and that accordingly he is not residing in British India. The alleged temporary purpose of " change of air " may be dismissed as fanciful, having regard to the length of time. As regards the alleged political reasons which he has stated in his own affidavit in reply, their exact nature is not stated, but the mere existence of such reasons is not in my judgment sufficient to convert what would otherwise be residence into non-residence.

(3.) As regards authorities, it was urged that this case was concluded by Mahomed Shuffli v. Laldin Abdula (1878) I.L.R. 3 Bom. 227, a decision of Sir Charles Sargent, where he held that the residence intended in Section 380 of the Civil Procedure Code of 1877 was residence under such circumstances as will afford reasonable probability that the plaintiff will be forthcoming when the suit is decided. Assuming without deciding that the test there adopted was the correct one and is indeed based partly on the inference to be drawn from Section 382 (which is now embodied in Order XXV, Rule 1, Sub-rule (2)), what reason is there to think that the plaintiff will not be forthcoming when the suit is decided ? I can find none. In the above case, the party then in question was a native of Kabul in Afghanistan who had been for many years staying in different parts of British India and had been carrying on business at Calcutta, Benares, Amritsar, Multan and Bombay, but he had only been in Bombay for some four months before the application then in question. On those facts I can well understand the order that Sir Charles Sargent thus made in 1878. But the facts there are widely different from those we have now before us, and that case is clearly distinguishable from the present.