ORDER
R. Basant, J.
1. Where does a person 'actually and voluntarily reside'? Can a person employed abroad and residing there in connection with his employment be said to be residing actually and voluntarily at the place where he has his permanent residence in India as to attract territorial jurisdiction of a civil suit? Is there any change in law after the dropping of the 1st Explanation in Section 20 of the CPC? These interesting questions arise for consideration in this case.
2. This revision petition is directed against the order on issue No. 1 in O.S. No. 58/02 passed by the Subordinate Judge. Attingal. There is no dispute on the fundamental facts. The plaintiff and the defendant are both employed in Saudi Arabia. Both of them have their place of permanent residence in India. A promissory note was executed by the defendant in favour of the plaintiff on 8.5.99 at Saudi Arabia. The amount due under the promissory note has not been paid and discharged. The plaintiff had, in these circumstances, come to India and had filed the suit on the date of reopening after midsummer vacation in 2002 claiming the amount due under the said promissory note.
3. The defendant/the petitioner herein entered appearance and resisted the suit. He contended that both the plaintiff and the defendant were residing abroad on the date of execution of the demand promissory note and till the filing of the suit. In these circumstances,, under Section 20 of the C.P.C., the court has no territorial jurisdiction to entertain the suit, it was asserted. An issue was raised regarding jurisdiction and this issue was considered and answered against defendant by the court in the impugned order.
4. At the very out set, I must note that there is no dispute between the parties about the execution of the promissory note at Saudi Arabia where the rival contestants are residing and carrying on business/employment. They undoubtedly have permanent places of abode in India. On the date of execution of the promissory note and thereafter till the filing of the suit, they were both residing at Saudi Arabia in connection with their employment business. That fact is not disputed. No part of the cause of action is asserted to have occurred within the jurisdiction of the Sub Court. Attingal, even admittedly. The only circumstance which according to the plaintiff, as per the averments in the plaint, confers jurisdiction on the court is the alleged fact that the petitioner the defendant has his place of permanent residence within the jurisdiction of the Sub Court, Attingal. That after the filing of the suit the petitioner has shifted residence permanently to India and is now actually and voluntarily residing in India within the jurisdiction of the Court at his permanent address is also not disputed at all.
5. There is no contention that Sections 15 to 19 of the C.P.C. would confer jurisdiction on the Sub Court, Attingal, to try the suit. There is no contention that the amount due under the promissory note ought to have been paid to the plaintiff at a place within the jurisdiction of the Sub Court, Attingal. The short and the only question is whether the defendant, because he has a place of permanent residence within the jurisdiction of the said court, is liable to answer the claim before that court.
6. The relevant statutory provision can be quoted first of all, I extract Section 20 of the C.P.C.
20. Other suits to be instituted where defendants reside or cause of action arises.--Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carried on business, orpersonally works for gain, provided that in such case either the leave of the Court is given, or the 'defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation.-- A corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
It is of significance that Explanation-I was omitted by Section 7 of the C.P.C. Amendment Act, 1976 with effect from 1.2.1977. Prior to the amendment. Explanation-1 read as follows:
Explanation I- Where a person has a permanent dwelling at one place and also a temporary residence at another place, he 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.
7. The crucial question hence is whether at the time of commencement of suit the petitioner herein did 'actually and voluntarily reside' within the jurisdiction' of the court at Attingal. This, in turn, calls for a construction of the words 'actually and voluntarily resides' appearing in Section 20(a) of the C.P.C.
8. We shall first consider the expression 'residence'. 'Residence' has to be distinguished from mere stay or presence. The expression 'residence' carries with it the concept of continuity. A person resides at such a place where he eats, drinks, sleeps and lives. In language that is the concept of residence. But the expression 'residence' would certainly admit different meanings depending on the context. There can be permanent residence and temporary residence. There can be actual residence and constructive residence. There can be voluntary residence and involuntary residence. The legislature was conscious of these nice distinctions evidently when it employed the expression 'actually and voluntarily' to qualify the word 'resides' in Section 20(a) of the C.P.C. to confer jurisdiction on a count.
9. The purpose of Section 20(a) which confers jurisdiction on a plaintiff to file the suit at a place where the defendant resides did come up for consideration of the Supreme Court in the decision reported in Union of India v. Ladulal Jain AIR 1963 SC 1681. The principle appears to be clear and wholesome - that is to facilitate convenient opportunity to the defendant to resist the suit; to enable him to resist the suit without undue trouble (see para-6). Normally, jurisdiction must rest at that place where the cause of action arose. Section 20 incorporates a rule by which suits can be filed not merely at the place where the cause of action wholly or in part arose; but also at other venues. The provisions of Section 20(a) and (b) have to be understood in this background. At a place where the defendant actually and voluntarily resides or where he carries on business or where he personally works for gain it should be easy for the defendant to conduct his defence without undue trouble and that appears to be the rationale underlying Section 20(a) and (b) which permit the suits to be filed not only at the place where the cause of action arose as stipulated in Clause C but also at the place where the defendant so resides or carries on business or personally works for gain.
10. If the expression 'resides' were not qualified with the expressions 'actually and voluntarily', the court would have been obliged to ascertain the meaning of the word 'resides'. The Supreme Court had occasion to consider the sweep of the expression 'resides' in the context of Section 19(3) of the Hindu Marriage Act and the following passages appearing in paras-12 and 13 appear in the decision reported in Jeewanti v. Kishan Chandra AIR 1982 SC 3 to be relevant I extract them below:
12 In order to give jurisdiction on the ground of 'residence' something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the court in which the respondent is sued, is his natural forum. The word 'reside' is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. It is capable of being understood, in its ordinary sense of having one's own dwelling permanently, as well as in its extended sense. In its ordinary sense 'residence' is more or less of a permanent character. The expression 'resides' means to make an abode for a considerable time: to dwell permanently or for a length of time; to have a settled abode for a time. It is the place where a person has a fixed home or abode. In Webster's Dictionary,' to reside' has been defined as meaning 'to dwell permanently or for any length of time' and words like 'dwelling place' or 'abode' are held to be synonymous. Where there is such fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casual or temporary visit, e.g. for health or business or for a change. If a person lives with his wife and children, in an established home, his legal and, actual place of residence is the same. If a person has no established home and is compelled to live in hotels, boarding houses or houses of others, his actual and physical habitation is the place where, actually or personally resides.
13. It is plain in the context of Clause (ii) of Section 19 of the Act, that the word 'resides' must mean the actual place of residence and not a legal or constructive residence, it certainly does not connote the place of origin. The word 'resides' is a flexible one and has many shades of meaning, but it must take its colour and content from the context in which it appears and cannot be read in isolation. It follows that it was the actual residence of the appellant at the commencement of the proceedings, that had to be considered for determining whether the District Judge, Almora, had jurisdiction or not.
11. Even the expression 'resides' brings with it the concept or incident of some permanency or continuity. But certainly place of residence is not the place where a person belongs to or hails from. It would be incorrect in language and law to understand the place of residence as the place to which the person belongs or hails from. It is not the place of his ancestral home. It is not the place where he belongs. It is not the place to which he may eventually return. It is not the place where he temporarily is or the place where he is obliged to be. It is the place where he lives. It is the place where he eats, drinks, sleeps and lives with the attribute of certain amount of permanency and continuity. The concept of a person having two residences - one which is permanent and the other which is actual is also taken note of and recognised by law. Actual residence may be at the place of work. But permanent residence may be elsewhere.
12. Even if there be any confusion of thought on this aspect, the legislature did not evidently want to leave any ambiguity in the expression and that is why the word 'resides' was qualified by the expression 'actually and voluntarily'. For the purpose of conferring territorial jurisdiction for the courts mere residence which may take in constructive or involuntary residence was found to be inadequate. It is to clarify the same that the words 'actually and voluntarily' were also used to qualify the word 'resides' in Section 20(a). It is not enough if a person merely resides at a place. Such residence must be actual and voluntary - and it is not enough if it is constructive or involuntary. Thereby the legislature first of all wanted constructive residence to be excluded.
13. Permanent residence of a person employed abroad or far away, may be the place in India where his ancestral family or his own house is situated. For a person detained in custody residence can be said to be at the place where the detention facility is situated. But for the purpose of jurisdiction of Civil Courts such place of constructive or involuntary residence is irrelevant and that is eloquently conveyed by employment of the expression 'actually and voluntarily' in Section 20(a) to qualify the word 'resides'.
14. Prior to the 1976 amendment, Explanation I, which I have already extracted above, was available to confer jurisdiction on courts where a person had 2 places of residence - one where he had his permanent dwelling house and the other where he temporarily resides. The law by the fiction employed in Explanation I deemed, even though factually it was not so, that such person resides (i.e., Actually and voluntarily resides, which alone was relevant for the operation of the body of Section 20) at both these places in respect of any cause of action arising at such place of temporary residence. But with the conscious omission of Explanation I in 1976 such deeming ceases to exist and the suit cannot be said to be maintainable at the place where the defendant has his place of permanent residence. Plainly and reasonably this must be held to be the consequence of the dropping of Explanation I. The dropping of the explanation can lead to no other inference or conclusion.
15. Where the purpose and consequence of an amendment is thus easily decipherable it is not necessary or relevant to go to the objects and purpose of the Amending Statute. But it will not be inappropriate to extract the relevant passage in the notes on clauses. The Gazette extra ordinary carries the following note on the dropping of Explanation I.
Clause 7:-- Explanation I to Section 20 provides that if a person has a permanent dwelling and a temporary residence at different places, he shall be deemed to reside at both the places in respect of any cause of action arising at the temporary residence. It is not clear whether the Explanation is intended to expand the scope of the main part of the section or to limit it. Under the main part of the section, a suit can be filed either where the defendant actually and voluntarily resides or carries on business or personally works for gain or where the cause of action arises in whole or in part. If the object of the Explanation is to indicate that temporary residence is enough to give jurisdiction, then the further requirement as to the cause of action is not intelligible. If, on the other hand, the object of the Explanation is to give jurisdiction to the Court within whose jurisdiction the permanent dwelling is situated, even then the requirement as to cause of action renders the Explanation useless. Further, while the main part of the section provides for actual and voluntary residence, the Explanation extends only to residence and, as such, the Explanation is not in total harmony with the main section. Having regard to the defect in the Explanation, the Explanation is being omitted.
16. I do not intend to come to any conclusion on the basis of the notes on clauses. Though the explanation did not repeat the expression 'actually and voluntarily resides' it appears to me to be evident that the explanation was for the expression 'resides' appearing in Section 20(1)(a) only and such residence was 'actual and voluntary' residence only. When the explanation incorporated a deeming provision to explain the word 'resides' it was only explaining the expression 'actual and voluntary residence' appearing in Section 20(1)(a) and it is the extension of the meaning of that expression which was dropped with Explanation I in 1976. Sans the explanation, there can be no deeming and only the civil court within the jurisdiction of which the person actually and voluntarily resides alone and not the civil court within the jurisdiction of which he has his permanent dwelling house can have jurisdiction. That conclusion is irresistible when we go by plain meaning of the words and also consider the initial incorporation of Explanation I and the subsequent deletion of the same. Considering the purpose of facilitating convenient opportunity to the defendant to defend the suit also the court within the jurisdiction of which he has his permanent dwelling house while he actually and voluntarily resides elsewhere, should not be clothed with jurisdiction and the interpretation must be in favour of the defendant.
17. Various persuasive precedents, and no binding one, have been sited at the bar to offer assistance all prior to 1976 when the Explanation was dropped. The words of Bhandari, C.J. in paragraph 4 of the decision in Mohan Singh v. Lajya Ram and Ors. AIR 1956 Punjab 188 do appeal to me as most persuasive.
(4). Section 20 of the Code of Civil Procedure has been designed to secure that justice might be brought as near as possible to every man's hearth-stone and that the defendant should not be put to the trouble and expense of travelling long distances in order to defend himself in cases in which he may be involved. It has accordingly been enacted that a person can be sued in the place in which he actually and voluntarily resides.
The expression 'resides' means 'to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time'. The expression 'actual' means 'something real as opposed to constructive or speculative: something existing in act, fact or reality' Residence may be legal and technical or actual or physical. If a person lives with his wife and children in an established home, his legal and actual place of residence is the same.
If a person has no established home and is compelled to live in hotels, boarding-houses or houses of others, his actual or physical habitation is the place where he actually orpersonally resides. If the family of a person lives at one place and he himself lives for a greater portion of the time at another place, he has legal residence at the place where his family resides and actual residence where he himself resides.
The expression 'actually resides' means actual residence of place where a person actually lives as distinguished from merely constructive or legal residence or place where a person resides in the legal and technical sense. It means residence existing in reality and in fact and not merely in form, that is actual residence and not a temporary abiding place. A person is said to reside in a particular place if he actually lives in the place and has a freely exercised intention of remaining there permanently or for a length of time.
18. It follows from the above discussions that the defendant, who, at the time when he executed the promissory note and after 3 years when the suit was filed, was residing in Saudi Arabia did 'actually and voluntarily reside' in Saudi Arabia and not at the place where he had his permanent dwelling house in India and in the absence of Explanation I, which has been deleted in 1976 he is not liable to be proceeded against in India.
19. No place of payment is stipulated in the Promissory Note and there is no assertion even that the plaintiff who was also actually residing abroad had called upon the defendant to make payment in India. Jurisdiction has to be ascertained on the basis of the averments made in the plaint and not on the basis of the evidence which may/can later be tendered. The theory that debtor must seek the creditors cannot also confer jurisdiction on the court as the defendant/debtor if he had to seek the plaintiff creditor would have found him only at Saudi Arabia and not in India as admittedly both were working on the date of the transaction and on the date of the suit at Saudi Arabia and the temporary presence of the plaintiff in India to file the suit would not oblige the defendant to make the payment in India.
20. Thus I agree with the learned Counsel for the revision petitioner that strictly the court did not have territorial jurisdiction to entertain the suit on the date of the suit. The question of the nature of relief that has to be granted to the defendant arises for consideration now. Even if the suit were to be returned, on admitted facts that has to be represented to the same court now as admitted after the filing of the suit the petitioner/defendant is residing permanently, actually and voluntarily in India. Any and every error will not persuade the court to exercise its revisional jurisdiction. Such jurisdiction has to be invoked only in aid of justice. I take note that there is no serious dispute raised about liability or the execution of the Promissory Note. There is also no serious contention that if the plaint were returned accepting the plea regarding jurisdiction, it has to be represented to the same court as by then the petitioner had started permanent, actual and voluntary residence in India. I am in these circumstance satisfied that the suit: is liable to be considered and disposed of by the court of Subordinate Judge of Attingal and the same need not be directed to be returned.
21. This C.R.P. is in these circumstances dismissed.