JUDGMENT
P.K. Bahri, J.
(1) Under S. 20, Civil Procedure Code . the territorial jurisdiction of the court could be determined on the basis if each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally works for gain as per cl. (a) and as per cl. (c) on the basis of the cause of action, wholly or in part arising within the jurisdiction of the court. The plaintiff has no doubt set up the case that a part of cause of action has arisen at Delhi inasmuch as the payments have been made at Delhi and some acknowledgment has been sent on behalf of deft. No. 1 to the pff. at Delhi, that amount deposited by the pff. was also payable at Delhi. But these facts can only be decided after framing of issues. The pff. wants this court to have jurisdiction of this case also on the basis of cl. (b) of S. 20, which lays down that where in in a Court within the local limits of whose jurisdiction, any of the delfts where there are more than one, at the time of commencement of the suit actually and voluntarily resides, or carriers on business or personally works for gain, provided that in such case either the leave of the court is given, or the delfts. who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution. This cl. (b) is independent of clauses (a) and (c) of S. 20. In the present case the leave of the court is sought by the pff. by taking resort to cl (b). In order to determine whether leave should be granted against deft. No. 4 when admittedly all other delfts 2, 3, 5 to 7 are not only residing in Delhi, the court should see that the leave is not granted in any arbitrary manner; it has to be granted on some sound principles. It is obvious that while granting the leave, the court has to consider the convenience of most of the parties and also keep in view the facts arising for decision in the case. It is evident that if cause of action wholly or in part arises within the jurisdiction of Delhi courts, no leave of the court is required (See Tahilram v. Maghanmal Air 1929 Sind 170). This was evident also from bare perusal of S. 20 of the Code. In B.G. Guttal v. R.R. Diwakar Air 1977 Kar. 211, it was held by a Division Bench of the said High Court that the principle to be borne in mind while granting or refusing leave of the court u/s 20(b) is that those defendants should not be unduly troubled and the suit be instituted at a place where they are able to defend themselves. It was laid down in this judgment that the principle to be borne in mind while granting or refusing leave of the court under the above provision as stated by the Supreme Court in U.O.I, v. Ladulal Jain is that those delfts. should not be unduly troubled and the suit be instituted at a place where they are able to defend themselves. I entirely agree with the principle enunciated in this judgment.
(2) So the question to be considered is whether deft. No. 4 would be put to any inconvenience or hardship in defending the suit at Delhi or not. If we keep the pleadings of the parties in view, it is evident that deft. No. 4 as well as the other delfts. 5 and 6 have taken up a plea that no money had been deposited by the pff. with deft. No. 1 and the account books of deft. No. 1 are lying with delfts 2 and 3 and that account books have been manipulated. So it is not understood how deft No. 4 could be in inconvenience in facing trial at Delhi. His three brothers, delfts. 5 to 7 are based in Delhi and are hotly contesting the suit on the same type of defenses as have been raised by deft. No. 4. So it cannot be said that granting leave to the pff. in the present case, any prejudice would be caused to deft. No, 4 in facing trial at Delhi. Hence I find that it is a fit case for granting the leave as prayed for. I allow the application and grant the leave. Hon’ble R.N. Pyne, C.J. & P.N. Nag, 3. C.W. 838/90 D /11.9.90 Hans Raj vs. Union of India Adv. S.C. Jindal Adv. Ashok Gurnani Transfer of Residence Rules, 1978 If an Indian returning from foreign country brings with him a portable generator bought more than an year back, benefit of Tr Roles cannot be denied on the ground that the item appears to be absolutely new. Customs Act, Ss. 77 to 80. Bonafide baggage includes house bold effects which are exempt and a generator even if used only for picnic purpose remains household item. [Ed. facts : Petitioner was private Secy in Indian Embassy in Japan On completion of 3 years he returned to India in July, 88. He had brought with him a music system and a portable generator and claimed same to be house hold items not liable to duty. Asstt. Collector & Collector in appeal thought otherwise. In revision, Govt. allowed his plea about music system but about generator, it held that item appeared absolutely new and hence was not exempt. Petitioner filed W.P.
(3) We have carefully considered the rival contentions of the parties and are of the opinion that the approach of the revisional authority has been wholly erroneous in the eyes of law which has resulted in the manifest injustice to the petitioner and such a finding, therefore, deserves to be set aside.
(4) As already mentioned, both the documents, namely, the confirmation receipt of Act Trading Corp. dated June 2, 1987 and the First Secretary’s letter dated 17th July, 1987 intimating the acquisition of the Honda Portable Generator by the petitioner clearly demonstrate that the Honda Portable Generator was purchased on June 19, 1987 and that the petitioner returned to India on July 27, 1988, i.e , after more than one year. In other words, Generator, after having been purchased by the petitioner, continued to be in his possession and it was in use for more than a year. These facts have not been disputed in the return nor these facts had been considered by the revisional authority or the authorities below. Since these documents have neither been disbelieved nor considered by the authorities concerned, they raise a presumption that the Generator was in possession and use of the petitioner for more than a year and merely because it looks a brand new cannot rebut such a presumption. A person who maintains and keeps the condition of the article in a good state cannot be penalised for Keeping it in such a condition. In a similar situation when a Transfer of Residence benefit was not given to a person on the ground of new look, although the purchase vouchers were not disputed, this Court had the occasion to pass the following observations in the context which equally apply to the present case as well, in Jiwa Singh vs. U.O.I. : “AS the petitioner’s possession of the V.C.R. for a minimum period is prima facie established by the purchase voucher, which has neither been disbelieved nor rejected, the use thereof for the minimum period as required by T.R. Rules is established and he cannot be denied the benefit of T.R. concession.”
(5) In view of the above, the contention of the respondents’ counsel to the effect that since the Generator looks brand new and that it has not been in use for more than a year by the petitioner, is unsustainable both on facts and in law and and is, therefore, rejected.
(6) The next contention raised by the learned counsel for the respondents is that the generator cannot be a “household effect” and as such it cannot be exempted from duty under the Tr Rules. The petitioner himself has stated that it was purchased by him in Japan and was used by him for picnic purposes only. We are unable to accept this contention. In order to determine whether or not the Generator falls within the category of “household effects” it is necessary to find out as to what “household effects” means. As per Stroud’s Judicial Dictionary-Yd}. 2-This (Household) word is frequently used in bequests as a qualifying adjective : e g. “household”-furniture ; goods; stuff; property. Of these, household furniture and household goods and household stuff are synonymous. Either phrase will include all personal chattels that may contribute to the use or convenience of the householder or the ornament of the house. “Household effects” will comprise all that household “furniture”, “goods”, or “stuff”, would carry.
(7) Having regard to the said definition it can be safely said that the portable Generator is also a household item/effect as it contributes to the use or convenience of the of the householder. Further it may be noticed that the T.R. Rules, 1978 were enacted u/S 79 of the Customs Act, 1972. In the said Act and the Rules framed there under a distinction has been made between “baggage” and “bona fide baggage”. Such a distinction becomes apparent from perusal of Sections 77 to 80 of the Customs Act. Section 79 talks of bona fide baggage which is exempt from customs duty and in respect of bona fide baggage the proper officer has been empowered to pass free of duty any article which is in the baggage of a passanger and which has been in his use for a prescribed minimum period or it is for his use or is a bona fide gift or souvenir. It cannot be disputed that “baggage” also includes “household effects”.
(8) In this case, as already held, the portable Generator was in use for more than a year and the petitioner had come back from Japan after more than three years and satisfied all other conditions as provided under the Rules for getting benefits under Ihe T.R. Rules, 1978. Therefore, it appears to us that the Portable Generator is a bona fide baggage- household item. Further, on perusal of the Explanation to Rule 2 and Rule 3 of the T.R. Rules, 1978 it becomes clear that the Generator is not excluded for the purpose of exemption from duty under the T.R. Rules.
(9) Moreover, the Generator in the present case is a portable Generator and was purchased by the petitioner for personal use. Even if it is assumed that it was used by him only for picnic purposes, it did not cease to be of his personal use and an item of daily necessity of life. Ordinarily, the portable Generator cannot be used for merchandise or commercial purpose. Further, there arc various items of goods, viz , big thermos food carrier, battery operated lights which are occasionally used during picnic, camping etc. but are not used daily, in our view, do not cease to be items of household effect.
(10) Furthermore, from Annexure P/6 we find that even the Collector of Customs (Appeals) in some cases has treated the generator as a “household effect” and allowed exemption from duty. The department itself is not sure whether or not the Generator is a household effect. Since there is a doubt about the applicability of T.R. Rules to the item of Generator being a household effect, the benefit should normally go to the petitioner in such cases, more particularly when the generator, in the present case, is a portable and cannot be ordinarily used for merchandise or commercial purpose.
(11) Having regard to the above said circumstances, it is not unreasonable to hold that the portable generator is covered under “household effect” under Rule 2 and Section 79 of the Customs Act and that the petitioner is entitled to the benefit under the T.R. Rules. Petition allowed.