Gupta, J.:— This first appeal on behalf of the plaintiffs arises out of a suit filed by them against the respondents in the court of the District Judge No. 2, Jodhpur, on the 29th of April, 1947, for the recovery of a sum of Rs. 29,531/-.

2. The main question that has been raised in this appeal before us relates to the jurisdiction of the Civil Courts in Marwar and it is to be determined whether or not did the defendants actually and voluntarily reside in Mundwa, Marwar at the commencement of the suit so as to give the courts in Marwar jurisdiction to entertain the suit. We have, therefore, to examine the pleadings of the parties and the evidence produced by them in this respect. The plaintiffs have stated it in their plaint that they themselves carried on the business of commission agents in Bombay in the name and style of Ramratan Sheo Bux and had a shop of the same name in Mundwa (Marwar) also, while the defendants who were real brothers, carried on their business in Nizamabad, Hyderabad State, in the name and style of Sitaram Satya Narain and in Mundwa, Marwar in the name and style of Shrikishen Sitaram and that they were the permanent residents of Mundwa Marwar. It was also stated in the plaint that defendant No. 2 Rajaram had been adopted to one Jainarain, the real brother of Shrikishen who was the natural father of the two defendants. It was further alleged by them that the defendants under the name and style of Sitaram Rajaram appointed the plaintiffs as their commission agents in Bombay on the Margshirsha Krishna 12, S. 2002 and did a lot of business of buying and selling gold, silver and cotton. The agency business, it was stated, lasted up to Jyeshth of Samwat 2003 and it was further stated that during this period of about seven months, the plaintiffs executed the business of the defendants as Pucca Arhatias and that according to the Pucca Arhat, it was the Arhatias name that was disclosed to the other party to the contract and not that of principal and it was the agent who was entitled to or liable for, as the case may be, any profit or loss from or to that party while the Arhatia was himself liable to pay profits to or entitled to recover losses from his principals and the losses, if any, on account of bad debts had to be suffered by the Arhatia. Sitaram, defendant No. 1, was not personally served and substituted service of summons was effected on him by having a copy of the summons affixed on the notice board of the court, a copy being pasted on the outer door of his house and by publication of a notice in the Jodhpur Government Gazette of February, 28, 1948. On the 7th of April, 1948, Mr. Sardarnath who appeared for defendant No. 2 undertook to file his Vakalatnama for defendant No. 1 also. But, he never appears to have done that and it appears that without an order to that effect, ex-parte proceedings were taken against him. Rajaram, defendant No. 2, who contested the suit denied in his written statement that the plaintiffs resided permanently in Mundwa or had any business concern there. He further denied that the defendants lived in Mundwa, Marwar, or carried on any business there. It was, on the contrary, categorically stated that the defendants neither lived in Mundwa nor carried on any business of any kind there. However, it was admitted that they had a shop under the name and style of Sitaram Satya Narain in Nizamabad, Hyderabad State, but it was asserted that in this shop they carried on the business of buying and selling food-grains and manufacturing and selling Biris. Of the seven issues framed by the lower Court, issue No. 6 bears on the question before us. It is to the following effect:—

“Is this suit not triable by Court which has no jurisdiction in the matter?”

The trial court after recording the evidence of four witnesses for the defendants and five witnesses for the plaintiffs came to the conclusion that it had no jurisdiction to try the case and returned the plaint to the plaintiffs for presentation to the court having jurisdiction therein. Hence this appeal.

3. We may atonce point it out that by the issue, in the manner as it was framed, the burden of proof was wrongly placed on the defendants. From the pleadings of the plaintiffs, it was clear that the business of agency was carried on in Bombay and that it was at Nizamabad that the defendants had their main business. Further, it was evident that the plaintiffs had brought this suit in the courts of Marwar on the allegation that the defendants were the permanent residents of Mundwa, Marwar, an also carried on business in Mundwa. This allegation was categorically denied by the defendants and under the circumstances issue should have been framed the other way and the burden of proof should have been placed on the plaintiffs to prove that at the time the suit was filed, the defendants were the residents and carried on business in Mundwa, Marwar, and, therefore, the court had jurisdiction to try the suit. The issue, as it was framed, has made it possible for the learned counsel to argue that the defendants had not discharged the burden placed upon them. We see no force in this argument because both the parties have adduced evidence on the question and it can be decided on the material on the record.

4. An argument was also made on the fact that the defendants who were the best witnesses as to whether or not they were the residents of Mundwa had not entered into the witness-box and a presumption should be drawn against them that their evidence would have gone against them if they had entered into the witness-box and submitted themselves for cross-examination. We have already stated that in this case it was for the plaintiffs to prove that the Mundwa court had jurisdiction. We, will, therefore, first scrutinise the evidence of the plaintiffs and if we find that they have been able to prove that at the commencement of the suit the defendants were either actually residing in Mundwa or carrying on some business in Mundwa, we will turn to the defendants' evidence to see how far they have succeeded in disproving their residence or carrying on business in Mundwa at the time of the commencement of the suit. In doing so, we will take into consideration even those parts of the defendants' evidence which prove the plaintiffs' case.

5. Now, turning to the evidence, we have P.W 1, Suraj Karan, plaintiff himself. This witness states that he knows the defendants who have three houses in Mundwa, that their females live in Mundwa in the house of the defendants themselves, that the defendants frequently visit Mundwa, that for the last 2-½ to 3 years Rajaram has been living in Mundwa, that Sitaram had come to Mundwa in the month of Bhadwa in S. 2003 and that the defendants visit Mundwa every year and stay there for a month or two and then return (to Nizamabad). He has produced a few letters written by Rajaram from Mundwa. The evidence of this witness is altogether general. He has not made the affirmative statement that the defendants were residing in Mundwa when the suit was filed. So far as Sitaram is concerned, though this witness states that he visited Mundwa in the month of Magh last year, he has not stated that since then he was living in Mundwa. So far as Rajaram is concerned, though this witness states that Rajaram had been living in Mundwa for 2-½ and 3 years, the statement does not appear to be correct because he himself has stated it a little lower down that Rajaram had come to Mundwa in the month of Bhadwa S. 2003. The statement of this witness was recorded on the 9th of January, 1948, and the month of Bhadwa, S. 2003 could not be 2-½ to 3 years before the date of the statement. Moreover the witness is an interested witness and his statement cannot be relied upon unless corroborated.

6. The next witness P.W 2, Laduram, has stated that he recognises the defendants, that their Sakunat is Mundwa where they have three houses, that they come from Disawar every year to Mundwa and live for four to six months, that while in Mundwa they transact the business of yarn, silver, gold and cotton, that they had come to Marwar in the preceding year i.e, S. 2004, that before it they had come in the year 2001 and 2002, that whenever they come to Mundwa they live in their own houses that these years their females and children generally live in Marwar and that in Mundwa they have to pay Khardu. In the cross-examination, this witness admits that the defendants have no shop in Marwar. This witness goes a step further than the plaintiff himself that the defendants had no shop in Nizamabad at the time of his making the statement i.e, on the 4th of February, 1949. This witness, too, nowhere deposes that the defendants lived in Mundwa, Marwar, at the commencement of the suit. His evidence, too, is very general and we are unable to conclude from his evidence that at the commencement of the suit, the defendants or any of them actually resided in Marwar. Further this witness does not support the plaintiff in his statement that Rajaram had come to Mundwa in Bhadwa of S. 2003.

7. The third witness Chunni Lal has stated that he knows the defendants, that he has seen the defendants ever residing in Mundwa, that they own three Havelies in Mundwa, that they frequently go to Disawar, that whenever they come to Mundwa they stay 5.6.12 months and at that time they live in their own houses which are in the vicinity of his own house, that their females and children live these days both in Mundwa as well as in Disawar, that whenever they come to Mundwa they carry on the business of silver and gold contracts and that they have to pay Kharda in Mundwa. This witness goes on to say that Rajaram had recently lived in Mundwa for 8 to 10 months that he had gone to Disawar only two months back and that before this he had visited Mundwa either in S. 2002 or in S. 2003 when the betrothal of his son had taken place and that at that time also he lived here for 10 to 12 months. It may be remarked that this witness speaks nothing about Sitaram and that his entire evidence is again very general. In his cross-examination, the witness has definitely stated that the defendants have no shop in Marwar, that they do not buy or sell any goods or merchandise in Marwar. His statement when read as a whole does not at all vouchsafe the conclusion that the defendants or either of them actually resided at the commencement of the suit in Mundwa, Marwar.

8. The fourth witness for the plaintiff is a stamp vendor, and has produced his register for the year 1946 which contains the entries regarding sale of stamps. In this register is to be found an entry of a sale of two stamps of Rs. 15 and 25 on the 1st of October, 1946, corresponding to Asoj Shukla 6, to Rajaram son of Jainarain personally. This witness states that Rajaram had himself gone to him to purchase the stamps and that the sale entry of the stamps is signed by Rajaram, while the entry itself was made by himself. He further deposes that Rajaram gave out his Sakunat of Mundwa. In cross-examination, the witness states that he never saw Rajaram afterwards and that he had seen him a number of times before when Rajaram used to visit courts. But, the witness does not remember either the month or the date. The evidence of this witness is not at all helpful to come to the conclusion that at the commencement of the suit the defendants or either of them actually lived in Mundwa. As to Rajaram too, the statement of this witness goes only so far as to show that Rajaram was seen by him on the 1st of October, 1946 and not afterwards while the suit was filed on the 22nd of April 1947.

9. The last witness Bishen Roop for the plaintiffs is a formal witness. He is a clerk in the Tehsil of Nagaur entrusted with the registration work. He has produced the Registration Register of 1946, and proved an entry dated the 1st October 1946, relating to a gift-deed executed by Rajaram in favour of his wife Mst. Ratan Kanwar. In this gift-deed, Rajaram is alleged to have mentioned his Sakunat to be that of Mundwa. The evidence of this witness too, does not lead us to the conclusion that Rajaram actually resided in Mundwa at the time of the commencement of the suit. It may be that he had come from Disawar to execute the gift-deed in favour of his wife in September, 1946. Thus, so far as the plaintiffs' evidence is concerned, it does not carry conviction that the defendants or any of them actually resided in Mundwa at the time of the commencement of the suit. The learned counsel for the appellants drew our attention to a Vakalatnama and the aforesaid deed of gift in which the residence of Rajaram was stated to be that of Mundwa and contested vehemently that the defendants be hell to be permanent residents of Mundwa. We are unable to accept the contention. The deed of gift was executed about 7 months before the commencement of the suit the Vakalatnama was executed long after the institution of the suit. In our judgment, the mere mention of Mundwa as a Sakunat in these documents does not mean that the defendant Rajaram actually resided in Mundwa in April, 1947, when the suit was filed.

10. Turning to the defendants' evidence, we have the statement of Gangabishen, D.W 1, who states that he knows the defendants whose grand-father Sheonath was a resident of Mundwa, had migrated to Disawar nearly 50 years ago, that Rajaram and Sitaram resided in Disawar and that they had no business in Marwar. In his cross-examination, the witness states that he knows the defendants since their birth, that their house was on his way to the village tank, that he knows them because they live in Mundwa and that in their child-hood they used to live in Mundwa. The witness goes on to say that Rajaram was married in Mundwa, that both Rajaram and Sitaram had a house each in Mundwa and that their women did not live in those houses which were occupied by the tenants.

11. D.W 2, Kishen Lal, states that he knows the defendants who live in Disawar and who have no business whatsoever in Marwar and that he knows their grand-father Sheonath who had migrated to Disawar in the Samwat year 1949 or 1950. In cross-examination, the witness says that the defendants live in Disawar where he has not gone, that because the defendants have no monetary dealings in Marwar he says that they have no business in Marwar. He categorically denies the defendants having carried on any business in Jodhpur and further deposes that he saw Rajaram only in the preceding month of Magh in Mundwa during the last five years and that he was, at the time, in Mundwa but doing no business. As to Sitaram, the witness states that he had come to Mundwa about a year and a half or two before and lived for about two months. The witness goes on to state that he knows wife of Rajaram who is in Mundwa, that the defendants own two houses in Mundwa and that he saw Rajaram's wife in Mundwa three years before when there was a trouble in Hyderabad.

12. D.W 3, Bansi Lal states that he knows the defendants for the last 15-16 years, that they live in Nizama-bad, where they carry on business and have both their house and shop, that their business is that of food-grains and that they have a Karkhana for the manufacture of Biri. The evidence of this witness is not of much help. He appears to be a witness of necessity and has been produced because he happened to be in Mundwa at that time.

13. The last defence witness is Paras Ram who claims to know Rajaram and Sitaram the defendants. He has stated that Shrikishen and Jainarain fathers of the defendants used to live in Nizamabad where they had their business and that defendants too lived in Nizamabad where they carried on their business. The witness claims to know them for the last 30 years and goes on to state that they deal in food-grains and Biris and that their children and women also lived at the same place. In cross-examination, the witness denies to have any relationship with the defendants and states that he has been visiting Nizamabad in connection with his own business. He claims that he visits Nizamabad twice or thrice a year and stays there for a day or two every time.

14. From the entire evidence produced by the parties which is discussed above, we are not able to come to a finding that the defendants actually resided in Mundwa at the time the suit was instituted. Now, before we consider the arguments addressed to us by the learned counsel for the appellants, we would do better to consider the provisions of law on the question contained in s. 20 C.P.C The relevant portion of the Section reads:—

“Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction—

(a) the defendant, or each of the defendants where there are more than one at the time of the commencement of the suit, actually and voluntarily resides, or………,

It is clear from the above that it is the actual residence of the defendants at the time of the commencement of the suit that is to be considered for determining whether the Court has jurisdiction or not. In our opinion, by using the word ‘residence’, the legislature has meant the ordinary and general residence of the defendants and not a casual or occasional return of the defendants to their family homes where they and their families had been brought up. Again, such residence must be at the commencement of the suit and not long before or long after the institution of the suit.

15. The learned counsel for the appellants was at great pains to argue that the above evidence showed that the defendants had two residences: one permanent that was at Mundwa and another temporary that was at Nizamabad and with the help of a decision of the Privy Council reported in A.I.R 1925 P.C 290 contended that the court at Mundwa had jurisdiction to entertain the suit. In the aforesaid decision, loan had been borrowed at Sikandrabad while the defendants and their sureties were the residents of Hyderabad. The discussion centered on the arising of the cause of action. It was held by Their Lordships of the Privy Council that the court at Sikandrabad had no jurisdiction to entertain the suit for recovery of the loan. The learned counsel contends in this case that though the business of buying and selling gold and silver had been contracted by the plaintiffs at Bombay, it was at Mundwa where the plaintiffs resided, that the suit could be brought because Nizamabad was not their permanent residence. We are unable to see how this judgment of the Privy Council is helpful to the appellants. In our opinion, it has no application to the facts of the case before us and is of no avail to the appellants. The learned counsel then referred us to a decision of the Lahore High Court reported in A.I.R 1933 Lah. 851 (i) where the word ‘Sakunat’ has been defined. On appeal by the creditors whose application to have the debtors-respondents declared insolvent had been dismissed, a contention was raised that on the record it had been proved that the debtors resided at Nara. The debtors themselves had denied that they resided in Nara. They stated that they had left the place and had been, for the last 12 or 13 years, carrying on business at another place called Phullarwan. Two witnesses were produced to prove their residence at Nara. A petition-writer stated that in a mortgage-deed, the debtors described themselves as having their Sakunat a at Nara. Dalip Singh, J. observed as follows:—

“I do not think the word ‘Sakunat’ necessarily means that they ordinarily resided at Nara. Nara is the family home and the respondents had a house there; but from that it did not follow that they ordinarily resided at Nara. I, therefore, repel this contention of appellants also.”

Evidently, this decision does not at all support the plaintiffs-appellants. If anything, it goes against their contention, inasmuch as, the mention of Mundwa as Sakunat in the Vakalat-nama and the gift-deed executed by Rajaram did not necessarily mean, according to this ruling, that Rajaram ordinarily resided at Mundwa. Mundwa may have been the family home and the respondents may have has a house there; but from that it did not follow that they ordinary resided at Mundwa. Much less could it mean that the defendants-respondents actually resided in Mundwa at the time the suit was instituted.

16. The learned counsel next referred us to a judgment reported in 1938 Marwar Law Reports 156 (Civil) wherein relying on another judgment reported in A.I.R 1924 All. 669, it had been observed that in every case residence was a question of fact and depended upon the particular circumstances and that the general practice was to accept as the person's residence the place where throughout the year one would ordinarily expect him to be found. It was further observed that the term ‘residence’ was naturally a flexible one but in the case of traders carrying on business it was manifestly that place where they earned a living and did their daily work nor did that place cease to be their residence merely because for purposes of rest or recreation or family ties they occasionally returned to the family home where their families had been brought up. The above observation, we are constrained to observe, does not help the appellants at all; on the contrary, it helps the case of the defendants. From the evidence on the record of this case, defendants are proved to be carrying on business at Nizamabad at the commencement of the suit and one would ordinarily expect them to be found there. That place did not cease to be their residence merely because for purposes of rest or recreation or family ties they occasionally returned to their family home in Mundwa where they and their families have been brought-up. Manifestly, it is at Nizamabad where they earn a living and do their daily work. Under the circumstances, we think, a case has not been made out on behalf of the appellants for our interference with the finding of the lower Court. It is unnecessary to refer to the arguments or the rulings cited by the learned counsel for the defendants-respondents. In our opinion this appeal has no force and deserves to be dismissed. It is, accordingly dismissed with costs.