Explanation III.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the of this section, be deemed to have been refused 1. purpose Explanation IV-A decision is final within the meaning of this section when it is such as the Court making it could not alter (except on review) on the application of either party 2 or reconsider of its own motion. A decision liable to appeal may be final within the meaning of this section until the appeal is made 3. Explanation V.-Where persons litigate bond fide in respect of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons so litigating. Explanation VI.-Where a foreign judgment is relied on, the production of the judgment duly authenticated is presumptive evidence that the Court which made it had competent jurisdiction, unless the contrary appear on the record; but such presumption may be removed by proving the want of jurisdiction. When foreign 14. No foreign judgment shall operate as a bar to a suit judgment in British India no bar to suit in British India. (a) if it has not been given on the merits of the case 5: () if it appears on the face of the proceedings to be founded on an incorrect view of international law or of any law in force in British India : which he might if he had so pleased This applies to relief claimed to be subject to appeal, Savigny, cited 7 Bom. 466. 4 10 Mad. 223. This explanation does not refer to bona fide defences but to bona fide claims, 6 Mad. 121. It is not limited to suits under sec. 30, 2 Mad. 332. It only applies to cases where several different persons claim an easement or other right by one common title, as for instance where the inhabitants of a village claim by custom right of pasturage over the same tract of land, or to take water from the same spring or well, 6 Cal. 54, referring to Arlett v. Ellis, 7 B. & C. 346, and Blewitt v. Tregonning, 3 A. & E. 554. See also 8 Mad. 496: 10 Mad. 82: 6 Cal. 33. 5 The Delta, 1 Prob. Div. 393, and see 4 Mad. 359, where an ex parte (c) if it is in the opinion of the Court before which it is produced contrary to natural justice 1: (d) if it has been obtained by fraud 2 : (e) if it sustains a claim founded on a breach of any law in force in British India 3. CHAPTER II. OF THE PLACE OF SUING. 15. Every suit shall be instituted in the Court of the lowest Court in grade competent to try it 5. which suit instituted. 16. Subject to the pecuniary or other limitations prescribed Suits by any law, suits (a) for the recovery of immoveable property, (6) for the partition of immoveable property, (c) for the foreclosure or redemption of a mortgage of immoveable property, decree was given at Mahé against a native of British India on a cause of action arising in British India. This would enable the Court to disregard a foreign judgment in cases in which, by a faulty or irregular procedure, the defendant had not been allowed the opportunity of fairly defending the suit, 4 Mad. 365. That the validity and service of summonses etc. alleged to have emanated from a foreign court must be strictly proved, see II Bom. 241. That a decree on a foreign judgment must be executed according to the rules and procedure of British Indian Courts, see 2 Mad. 337, where a decree against A personally for the full amount due on a French judgment against his deceased father was limited to the assets of the deceased. That a call-order made by the Court of Chancery in England upon a contributory of a company registered in England and being wound up under the authority of that Court is treated by the Indian Courts as a foreign judgment, see 8 Bom. H. C., O. C. J. 200. 2 See 4 Suth. Civ. R. 108; 15 ibid. 500. As to the meaning of 'fraud' see supra, Vol. I. pp. 98 n. 2, 555. See the English decisions on the subjects dealt with by this section in Smith's Leading Cases, 9th ed. pp. 868-882, and Piggott's Foreign Judgments, 2nd ed. pp. 106–175. i. e. having jurisdiction with reference to the pecuniary value and nature of the suit, 7 All. 239. The corresponding section of the Code of 1859 does not affect the jurisdiction of a Subordinate Judge to try a suit wherein are joined several causes of action the cumulative value of which exceeds rs. 1000, although, if several suits had been brought on these several causes, such suits must have been instituted in the Munsif's Court, 6 Cal. 6. This provision is a rule of procedure, not jurisdiction. It is imperative on the suitor, and intended to prevent the Court of the higher grade from being over-crowded with suits. But such Court is not bound to take advantage of it, 7 All. 234, 240. And see sec. 331 infra. 6 See the definition of immoveable property, supra, Vol. I. p. 487. instituted where subject-matter situate. Suits (d) for the determination of any other right to or interest in immoveable property1, (e) for compensation for wrong to immoveable property, (f) for the recovery of moveable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate": Provided that suits to obtain relief respecting, or compensation for wrong to, immoveable property held by or on behalf of the defendant may, when the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction he actually and voluntarily resides, or carries on business, or personally works for gain. Explanation.-In this section 'property' means property situate in British India 3. 17. Subject to the limitations aforesaid, all other suits. where de shall be instituted in a Court within the local limits of whose instituted fendants reside or cause of action arose. jurisdiction 4 (a) the cause of action arises, or () all the defendants, at the time of the commencement of 1 That a suit to follow the purchase-money of land on which the plaintiff had a mortgage and which has been taken up under the Land Acquisition Act, does not come under clause (d), see 6 Mad. 344, and compare In re Stewart's Trusts, 22 L. J., N. S. Chan. 369. 2 A suit therefore will not lie in a British Indian Court for land situate in a Native State (2 Mad. H. C. 437), and consent of parties cannot give jurisdiction in such cases, 9 Bom. H. C. 242. Whether a Court will decree the sale of mortgaged land situate in British India, but outside its jurisdiction, see 9 Bom. H. C. 12: 9 Ben. 171. 3 This section does not apply to the High Court in the exercise of its original civil jurisdiction, sec. 638, infra. i. e. according to the High Court at Madras, the whole cause of action, including every fact necessary to the maintenance of the action, 3 Mad. H. C. 384. But the Allahabad High Court holds that here 'cause of action' does not mean 'whole cause of action,' but includes material part of the cause of action, 4 All. 425, and see 13 Ben. 461, 14 Ben. 367. A suit for compensation for breach of contract may accordingly be brought either at the place where the contract was made and the defendant's obligation established, or where performance was to be had and breach occurred, 5 All. 279, 280. The English Courts have ruled that in the C. L. P. Act, 1852, sec. 18, 'cause of action' means, not the whole cause of action, i. e. contract and breach, but 'the act on the part of the defendant which gives the plaintiff his cause of the suit, actually and voluntarily reside 1, or carry on business, or personally work for gain; or (e) any of the defendants, at the time of the commencement of the suit, actually and voluntarily resides 1, or carries on business, or personally works for gain: provided that 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. Explanation I.—Where a person has a permanent dwelling at one place and also a lodging at another place for a temporary purpose only, he shall be deemed to reside1 at both places in respect of any cause of action arising at the place where he has such temporary lodging. Explanation II.—A Corporation or Company shall be deemed to carry on business at its sole or principal office in British India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. Illustrations. (a) A is a tradesman in Calcutta. B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A, and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B carries on business. (b) A resides at Simla, B at Calcutta, and Cat Delhi. A, B and C being together at Benares, B and C make a joint promissorynote payable on demand, and deliver it to A. A may sue B and C at Benares, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot be maintained without the leave of the Court 2. 18. In suits for compensation for wrong done to person or Suits for moveable property, if the wrong was done within the local compen complaint' (Jackson v. Spittall, L. R., 5 C. P. 542: Vaughan v. Weldon, L. R., 10 C. P. 47). 1 This is to be construed broadly, so as to prevent a debtor from evading the claims of his creditors, 6 Bom. 102. As to the meaning of 'residence' and dwelling-place, see 1 All. 51. The residence intended is not an exclusive residence, see L. R., I I. A. 396, 397 (a case as to a condition). As Lord Kenyon said (Rex v. Sargent, 5 T. R. 466), 'it never can be contended that 2 This section does not apply to the sation for wrongs to limits of the jurisdiction of one Court and the defendant moveables. resides, or carries on business, or personally works for gain, person or Suits for immove able pro within the local limits of the jurisdiction of another Court, the plaintiff may at his option sue in either of the said Courts. Illustrations. (a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi. (b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in Delhi. (c) A, travelling on the line of a railway company whose principal office is at Howrah, is upset and injured at Allahabad by negligence imputable to the company. He may sue the company either at Howrah or at Allahabad. 19. If the suit be to obtain relief respecting, or compensation for wrong to, immoveable property situate within the limits of a single district, but within the jurisdiction of different Courts, the suit may be instituted in the Court within whose jurisdiction any portion of the property is situate: provided that, in respect of the value of the subject-matter of (b) in dif- the suit, the entire claim be cognisable by such Court. perty (a) in single district, but in different jurisdictions; ferent districts. Power to stay proceedings defendants If the immoveable property be situate within the limits of different districts, the suit may be instituted in any Court, otherwise competent to try it, within whose jurisdiction any portion of the property is situate1. 20. If a suit which may be instituted in more than one Court is instituted in a Court within the local limits of whose where all jurisdiction the defendant or all the defendants does not or do do not re- not actually and voluntarily reside, or carry on business, or side within personally work for gain, the defendant or any defendant may, after giving notice in writing to the other parties of his intention to apply to the Court to stay proceedings, apply to the Court accordingly; jurisdic tion. and if the Court, after hearing such of the parties as desire to be heard, is satisfied that justice is more likely to be done by the suit being instituted in some other Court, it may stay proceedings either finally or till further order, and make such order as it thinks fit as to the costs already incurred by the parties or any of them. And the Court, if it decrees the sale of the whole property, may order such sale to be made, 8 Cal. 703: 14 Cal. 661. Section 19 does not apply to the High Court in the exercise of its original civil jurisdiction, sec.638, infra. |