S. Suryanarayana Sastrigal vs K.S. Viswanatha Aiyar

Phillips, J.—This suit to recover a sum of money acknowledged to be due by the defendant to the plaintiff has been rejected on the ground

that the Subordinate Judge of Palghat had no jurisdiction to try the same. This acknowledgment and promise to pay, Ex. A., was executed at

Bombay where the defendant was temporarily a clerk in the Bombay Secretariat. The plaintiff resides at Palghat and alleges that the defendant''s

permanent place of residence was in Palghat, and inasmuch as the money had to be repaid at Palghat part of the cause of action arose there. u/s

20, Expl. 1, of the Civil Procedure Code:

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.

It is not disputed that the defendant''s family house is at Palghat and no enquiry has been held as to whether that is his permanent place of

residence. If it is his permanent place of residence, this suit could be instituted at Palghat u/s 20, Expl. 1. Apart from this the question as to whether

a part of the cause of action has not arisen within the jurisdiction of the Palghat Subordinate Judge has not been considered. The ordinary, principle

of law is that the debtor shall find out his creditor and pay him: ordinarily therefore the debtor has to pay the debt at the creditor''s place of

residence or place of business. This principle was held not to be applicable in Raman Chettiyar v. Gopalachari [1908] 31 Mad. 223 because in

Section 17, Expl. 3, of the CPC (XIV of 1882) there was a special, definition of the place where, the cause of action arises. It was there held that

this special definition overruled this provision of law and the principle of Section 49 of the Contract Act. That provision has been omitted in the

present Code of 1908; not only that, but Section 17, Clause (a) of the old Code reads "" the cause of action arises,"" whereas in the present Code

Section 20, Clause (c), we have "" the cause of action wholly or in part arises.

There has ''been considerable modification in the new Code and there is certainly no definition of the place where the cause of action may be

said to arise. This being so the principle on which Raman Chettiyar v. Gopalachari [1908] 31 Mad. 223 is decided does not seem to be applicable

and the ordinary principle that the debtor must seek out his creditor and pay him would appear to be applicable here, It is also possible from the

terms of Ex. A to read into it an implied promise to pay to the creditor at his residence. The money was not apparently borrowed at the time Ex. A

was executed; for it refers to an anterior debt and is a promise to pay off that debt within a certain time. Owing to this reason, namely, that a part

of the cause of action arose in Palghat the Subordinate Judge''s order rejecting the plaint is wrong. The order is set aside and the Subordinate

Judge is directed to receive the plaint and dispose of it according to law.

The respondent will pay the petitioner''s costs.