ASTHANA, J. - (1.) THIS is an appeal against an order of the learned Additional Tribunal Judge of Dehradun dated 20th August 1956 returning the application of the petitioner appellant filed under S. 5 of the Displaced Persons (Debts Adjustment) Act, 1951, Act No. 70 of 1951, for presentation to the proper court.
(2.) THE appellant, Mulak Raj, claiming himself to be a displaced debtor within the meaning of Displaced Persons (Debts Adjustment) Act 1951, hereinafter referred to as the Act, filed an application under S. 5 of the Act in the Court of the Civil Judge, Dehradun who was invested with the powers of the Tribunal under S. 4 of the Act. The application was filed on 20th May 1952 and in para 1 of the application it was pleaded as follows : "That he (applicant) is at present residing at 1, Circular Road, Dehradun". In para 3 of his application the applicant pleaded that he had been carrying on his business as a Government contractor in the Military department of the Government of India before 1st of March 1947 in the name of M.R. Malhotra and company, as the sole proprietor thereof with his head office at 14 Nisbet Road, Lahore and on account of serious communal disturbances he had to leave Lahore for good in the month of May 1947. It is not necessary to mention the other allegations in the application as nothing turns on them in this appeal. In the schedule of creditors appended to the application was mentioned the name of Takhat Ma, opposite party No. 1, to the application showing a liability of Rs. 1,82,000/- owed to him though it was further pleaded that that liability was disputed by the applicant. Then a large number of other creditors and the debts owed to them were mentioned. The total debts owed by the applicant as would appear from the schedule runs into several lacs. Takhat Mal in his written statement raised a plea that the applicant never actually resided in Dehradun, nor carried on any business, nor personally worked for gain in Dehradun, and the court in Dehradun had no jurisdiction to entertain the application under S.5 of the Act. It appears that the other creditors opposite parties to the application did not raise any plea of jurisdiction. On the plea of jurisdiction raised by Takhat Mal the Tribunal framed an issue in the following terms : "Whether this Court has the jurisdiction." This issue was tried as a preliminary issue by the Tribunal. The applicant in order to prove that he had been actually residing in Dehradun produced himself and three other witnesses, namely, C.S. Jolly, G.D. Mittal and Jaswant Rai. In opposition Takhat Mal examined himself and also relied upon a letter written by the applicant on 1st May 1952 from Delhi to the official assignee at Calcutta, Ex. A. 1 on record. As a result of the consideration of the entire evidence of the parties the Tribunal recorded a finding that the applicant was residing at Jubbulpur from long before partition and was also carrying on considerable business there for a long time. The Tribunal further held that the applicant had failed to show that he was residing in Dehradun at the time of filing of the application under S. 5 of the Act. Accordingly the Tribunal ordered the return of the application for presentation to the proper court.
(3.) IN this appeal before us Satish Chandra, the learned counsel for the appellant, contended that on the evidence on record the proper conclusion ought to have been that the applicant had established his residence at Dehradun and he was competent to maintain the application under S. 5 of the Act in the Tribunal at Dehradun. The learned counsel further contended that even if it be held that the applicant had his permanent residence in Jubbulpur but on the facts it was established that he was temporarily residing in Dehradun the Tribunal at Dehradun had jurisdiction to entertain the application. In this connection the learned counsel submitted that the learned Judge made an erroneous approach to the case when he observed that it was incumbent upon the petitioner to establish by trustworthy evidence that he had abandoned his residence at Jubbulpur and shifted to Dehradun and that on account of this erroneous approach the learned Judge has not been able to properly appreciate the evidence led by the applicant which evidence established that the applicant had actually been residing in Dehradun and personally worked there for gain. On the arguments raised on behalf of the applicant it becomes necessary to examine the relevant evidence on record in order to find that he actually resided in Dehradun and personally worked there for gain at the time when be filed the application.;