TAWASSUL HUSAIN Vs. WAJID ALI

JUDGEMENT

(1.) WE think that there has possibly been a miscarriage of justice in this case and that we must remit the matter for a hearing in the lower Court. It is entirely the fault of the applicant, or rather his misfortune, because at the critical moment he was absent through Illness. The Judge did not believe that he was ill, because he said, that there was only the statement of the pleader to support it. The Judge does not say why he thinks, a man should keep away from an important appointment of this kind which ha himself had started, unless there was some insuperable obstacle which prevented his attendance. As the matter was only a miscellaneous case and could be disposed of on any convenient day the learned Judge ought to have adjourned it to another day or dismissed it altogether for default Instead of that he did just the worst thing he could have done. Ha started a kind of enquiry on imperfect material. WE must, therefore, return it to the learned Judge to find as a fact whether, Billhaur in Cawnpore, was on the 25th September, 1923, a residence of the lady in question. People do not always realize. She true meaning of the word "residing" for the purpose of jurisdiction. In this case Section 62 requires the Court to be the District Court within whose jurisdiction such person is residing. That does not necessarily mean that she slept the night on the particular day when the application was filed in the jurisdiction. If person may have several residences and may be residing in more than one place for the purpose of jurisdiction. If a person has a private house to which be may resort in Calcutta, he has a residence there, and therefore, resides there even, if he only goes there once in five years. He may have a residence in Kashmir which he prefers to Calcutta. The word used by the Legislature to get over that difficulty when it desires to specify one place only as the place of service, or for establishing jurisdiction, is the word "ordinarily" that is to say, the place where a person ordinarily resides. Then that confines the Court to the duty of ascertaining the ordinary residence. Here, it is sufficient if she had any residence even although she was not staying at the time. Now the evidence on the record throws a heavy burden on the party objecting, not to show that she had a residence elsewhere, but to show that she had no sort of residence in Cawnpore. A sale-deed alleged to be executed by her only one month before the application, namely, the sale-deed, dated 18 August, 1923, describes her as a resident of Billhaur in Cawnpore, at present in Kanauj. Unless the Judge comes to the conclusion that, by a curious but true coincidence, there has been a complete abandonment of this residence between the 18 of August and 25 of September, the lady is really estopped from denying that this place is not a residence of hers within the jurisdiction. It is a question of fact, on which the evidence appeal's to us to be all one way, even though she may also have a residence in Kanauj. WE therefore, remit the case to the learned Judge to hear and determine on these facts as to whether this residence in the sale deed is a residence of her in Cawnpore and, if it is, to dispose of the application. The Judge will listen to any further evidence that may be tendered by either party on this question.