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1935 (12) TMI 31 - Privy Council

1935 (12) TMI 31 - Privy Council - TMI - Dated:- 6-12-1935 - R.C.Mitter, JJ. JUDGMENT R.C. Mitter, ( 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 de .....

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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 .....

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n 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 .....

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. 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 Jeetm .....

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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 pl .....

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on 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. ( 3. ) The only limitation to this principle of English law is that the creditor must reside within the realm. Bansilal A .....

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Moti Lal V/s. Surajmal (1906) 30 Bom 167 at pp. 170-171. Mukerji, J., applied it in Gokul Dass V/s. Nathu 1926 All 477. White, C.J. and Miller, J., would have applied it in Madras, but for Clause (3) of Expln. III to Section 16, Civil P. C. of 1882. That explanation reads as follows: In suits arising out of contract the cause of action arises within the meaning of the section at any of the following places, namely: (i) the place where the contract is made; (ii) the place where the contract was .....

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s residence on which the cases proceed, in the absence of a contract, cannot be invoked. Expln. 3 has, however, been omitted from the Civil Procedure Code of 1908. The observations of Sir Lawrence Jenkins, C.J. in a later case which came up in Bombay, however, tend to show that Section 49, Contract Act is exhaustive And has modified the aforesaid rule of English Common Law: Puttappa V/s. Virabhadrappa (1905) 7 Bom L R 993. In Soniram Jeetmull V/s. R.D. Tata And Co. 1927 P C 156 Lord Sumner, howe .....

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reasonable certainty is that the place of performance would have been fixed at the creditor's place of residence. Lord Sumner finally said at p. 271 of the report that: In this state of the authorities (he noticed Tyabji, J.'s judgment in Moti Lal V/s. Surajmal (1906) 30 Bom 167 it is not possible to accede to the present contention that Section 49, Contract Act, gets rid of inferences, that should justly be drawn from the terms of the contract itself And the necessities of the case, inv .....

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