013-NLR-NLR-V-13-MENDIS-v.-PERERA.pdf
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Present: Mr. Justice Pereira.
MENpiS v. perera:
G. R., Panadure, 9,155.
Dec.31, 2909
Jurisdiction—Place of residence—Civil Procedure Code, s. 9.
A person may be said to " reside " (Civil Procedure Code, section9) in a place where he has his family establishment and home. Anaction on a promissory note made in Kurunegala was held to * havebeen rightly brought in the Panadure Court against a person Whoworked in Kurunegala, but whose wife and children, whom heoccasionally visited, resided in Moratuwa.
A
PPEAL from a judgment of the CommissionerJ of Requests,Panadure (G. F. Roberts, Esq.). In this case the plaintiff
alleging that the defendant was a residents of Moratuwa sued thedefendant in the Court of Requests of Panadure on a promissory.note for Rs. 90 made in Kurunegala in favour of One Fernando, whoendorsed it to plaintiff. The defendant alleged that he was aresident of Kurunegala. Plaintiff, who was the only witness calledin the case, gave evidence to this effect: “ Defendant is.a carpenter.
I have heard that he is working at Kurunegala. He works veryoften away, and then comes to Moratuwa. He comes to Moratuwaonce or twice in three months. His wife and children are all livingin Moratuwa. Fernando was also at Kurunegala with the workingparty. ” The learned Commissioner dismissed the action on theground that he had no jurisdiction.
The plaintiff appealed.
A. St. V. Jayewardene, for the appellant.—The evidence showsthat the defendant's real and permanent residence is at Moratuwa.The fixed and permanent home ofa man’s wife and family towhich he has -always an intention of returning constitutes hisdwelling place or place of residence (Fatima Begam v. Sakina Qegam1).Under the English Law it has been -held that it was possible for a -man to have two places of residence {Attenborough v. Thompson2).It was held in Kerr v. Haynes3 that where a man had two placesof residence, one at his place of business and the other where hisfamily resided, the latter should be regarded as his dwelling place.
Gut. adv. vult.
11. L. JR. 1 All. 51.
829L.J.Q.B. 70, 72.
• 27 L. J. Ess. 25.
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Dee.SI, 1909 December 81, 1909. Pbreira A.J.—
Mendia v. In this case the question is whether the defendant can be said to
Ptrera
reside at Moratuwa, for it is only the fact of his residence there thatcan give the Court of Bequests of Panadui'e jurisdiction.
The only evidence in the case is that of the plaintiff. He statedon oath that the defendant was a carpenter, and that he had heardthat he was working at Kurunegala. He further said that thedefendant “ worked very often away and came to Moratuwa for atime, that is, about once or twice in three months, and that hiswife and children were all living at Moratuwa. ” He added: “ He(meaning the defendant) is a resident there (meaning Moratuwa). ”On this evidence the Commissioner dismissed the claim, being ofopinion that it could not be said that the defendant resided atMoratuwa.
On this question of residence in connection with the. provision asto jurisdiction we could derive no help from Indian authorities,because the Indian Code gave jurisdiction to the Court within theterritorial jurisdiction of which the defendant resided or carried onbusiness or personally worked for gain; and it further provided byway of explanation, so as to leave no room for future discussion,that when a person had a permanent dwelling at one place and alsoa lodging at another place for a temporary purpose only, he shouldbe deemed to reside at both places in respect, of any cause of actionarising at the place where he had such temporary lodging.
It is clear from the above that the Indian Legislature did notfavour the idea of the place where a person carried on business orpersonally worked for gain being deemed his place of residence,A' distinction is drawn between the two in the very words usedin the Code.
The appellant’s counsel cited in support of his argument, the caseof Fatima Begam v. Sakina Begam.1 There it was laid down thatthe words “ dwelling ”, and “ residence ” were synonymous with“ domicil ” and “ home,” and meant that place where a personhad fixed his permanent home, to which, whenever he was absent,he had the intention of returning. I am not inclined to accept thatproposition as one of general application. There are cases in whichresidence ” as used in certain particular statutes has been held tomean home or domicil (see e.g., Lambe v. Smythe3), and, indeed, asobserved-by Erie C.J. in Nae/ v. Mutter,3 the word has a variety ofmeanings according to the statute in which it is used; but whenwe are in search of a meaning of a.general application, it must beborne in mind that the elements of permanence and exclusivenessexist in a far greater degree in “ domicil ” than in “ residence.
“ Residence ” or dwelling place has been defined to mean theplace where an individual eats, drinks and sleeps, or where his
1t. L. R. 1 AU. 51.
3 31 L. J. O. P. .359.
* 15 L. J. Ex. 287.
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family or his servants eat, drink, and sleep (per Bay ley J. in B. v. Deo. 31,1609North Gurry1), and it has also been said that the “ residence ” of aperson is the place “ where he is chiefly to be found ” (per Pollock A.J.
B. in Attenborough t). Thompson*), and thus the possibility of a Mendia «lperson having at one and the sa*ne time or period two dwelling Pervraplaces has been recognized (see B. v. Murray3 cited in Fatima Begamv. Sakina Begam, supra). The question was mentioned but notdecided by Cockburo C.J. in his judgment in Kerr v. Haynes.*
In the present case I shall be content to rest my ruling on thedecision in this last case that I have cited. There.it was laid downthat the place where a person had his family establishment and homeshould rather be deemed to be his dwelling place than a place wherehis stay was entirely subservient to the purposes of his business, andthat alone. Applying this test to the. evidence that I have quotedabove, I think that the defendant in this ease may well be said tohave a residence or dwelling place at Moratuwa.
I set aside the judgment and remit the ease for trial. Theappellant will have his costs of appeal. Costs in the Court belowwill abide the result.
Appeal allowed; ease remitted.