SM TUSLIMAN BIBI Vs. ABDUL LATIF MIA

JUDGEMENT

(1.) The plaintiff whose suit has been dismissed by the learned Additional District Judge of 24 Parganas on the ground that the Munsiff of Baraset, in whose Court it was instituted had no territorial jurisdiction to entertain it, has preferred this appeal. Her claim is for prompt dower money from her husband. The plaint, as originally filed on 24 August 1931, gave the place of residence of the defendant as Bishanpura in the district of Balia. By an amendment dated 1 December 1931, the defendant's present place of residence was stated to be Shibpur in the district of Howrah. After reciting her claim, in para. 3 of the plaint, as originally filed, the plaintiff stated that she was residing in Bijpore within the jurisdiction of the Baraset Court, and it is on this fact alone she stated that that Court had jurisdiction to entertain her suit. By an amendment allowed by the Court certain additions were made in para. 3 of the plaint. The substance of these additions is that the defendant came to Bijpore where the plaintiff was residing with her father, and on a demand being made for the prompt dower the defendant promised at Bijpore to pay up shortly, but he thereafter failed to keep his promise even after repeated demands. The plaintiff accordingly has stated in her plaint, as finally amended, that the Baraset Court has jurisdiction to entertain the suit as the plaintiff resides within the jurisdiction and also because of the said promise by the defendant. Both the Courts below have held that the plaintiff's story that the defendant went to Bijpore and made a promise there to pay up is false. This finding is binding on me in second appeal and accordingly one of the grounds on which the plaintiff attempted to give jurisdiction to the Baraset Court can no longer be invoked by her.

(2.) There remains the other ground, namely whether the Baraset Court had jurisdiction to entertain the suit on the ground that the plaintiff is residing permanently within its jurisdiction. Mr. Akram has urged before me that he comes under Section 20, Clause (c), Civil P. C., as a part of the cause of action must be taken to have arisen at Bijpore, as that place must be taken as the place of performance that is, the money due to the plaintiff ought to have been paid there. There can not be any doubt that a suit on a contract; can be instituted in the Court which has territorial jurisdiction over the place where the contract has to be performed. This is accepted law in India since the decision of Holloway, J. in DeSouza V/s. Coles (1866) 3 M H C R 384, where the said learned Judge after going into the matter in great detail made the following observations: The place at which the obligation is to be performed is its seat and the place of jurisdiction.

(3.) The matter was also examined exhaustively by Markby, J., from the jurist's point of view in Gopee Kisto Gossamee V/s. Nil Comul Banerjee (1874) 22 W R 79, who also came to the same conclusion. Mr. Akram's next contention is that the place of performance must be taken to be Bijpore, the place where the plaintiff is residing, on the principle that when the creditor is residing in the realm the debtor must follow the creditor and pay him, unless there is a different contract between them. For supporting his argument he has cited two cases only, namely, 48; Gokul Dass V/s. Nathu 1926 All 477 and Soniram Jeetmull V/s. R.D. Tata and Co., 1927 P C 156. This argument has to be considered carefully. The facts established are the following: (i) the marriage between the plaintiff and the defendant was celebrated at Bishanpura in the district of Balia, in the United Provinces of Agra and Oudh; (ii) that the dower, whatever its amount may be was settled at the time and place of marriage; (iii) that the defendant is at present residing within the jurisdiction of theHowrah Court; (iv) that there was no express promise to pay the prompt dower at Bishanpura or at any other place, nor can a promise to pay at a particular place be inferred from the circumstances and (v) that the plaintiff at the date of the suit was residing at Bijpore which is within the jurisdiction of the Baraset Court. There cannot be any doubt according to the principles of English law that under these circumstances the obligation of the debtor is to seek out the creditor and pay him, that is to say, the place of residence of the plaintiff is to be taken as the place of performance. In the case of "The Elder" Bowen, L. J., observed thus: The general rule is that where no place of payment is specified either expressly, or by implication, the debtor must seek his creditor. In Haldane V/s. Johnson (1853) 8 Ex 689, it was held that a covenant for payment of rent when no particular place of payment is mentioned is analogous to a covenant to pay a sum of money in gross on a day certain, in which case it is incumbent upon the covenantor to seek out the person to be paid and pay or tender him the money. In the judgment, in that case, the conclusion to the same effect, arrived at, on the authorities, by Parke, B., in Poole V/s. Tunbridge (1837) 2 M & W 223, is relied upon. Most of the cases are collected in Fessard V/s. Magnier (1865) 18 CBNS 286, which is very instructive on the subject.