Janoo Hassan by his Agent Ahmad Esa vs Batchu Kamandu and Another

Walter Salis Schwabe, K.C., C.J.—This is an appeal from an order of Kumaraswami Sastri, J. dismissing an application by the defendant

that the plaint filed herein should be rejected or the suit dismissed on the ground that the cause of action arose outside the jurisdiction of this Court.

The question turns on the proper interpretation of Clause 12 of the Letters Patent, which gives the High Court jurisdiction ''if the defendant at the

time of the commencement of the suit shall dwell or carry on business or personally work for gain '' within the limits of Madras. Here, the whole

cause of action arises outside the jurisdiction, and the defendant lives outside the jurisdiction, does not personally work for gain within the

jurisdiction, but carries on business through an agent within the jurisdiction. The question to be determined is whether ''carrying on business''

includes carrying on business through an agent. It is argued that it does only in the case of British Subjects and not in the case of foreigners, and

reliance is placed on the judgment of Scott, J., in Kessowji Damodar Jairam v. Khimji Jairam (1888) .L.R. 12 B. 507. He based his judgment on

the principle enunciated in Ex parte Blain 12 Ch. D. 522, namely, that prima facie Courts exercise jurisdiction over the subjects of the country or

residents therein, and that words wide enough to confer jurisdiction over foreign residents ordinarily will not be so interpreted. The matter came

before Sir Charles Sargent, C.J. and Starling, J. in Girdhar Damodar v. Kassigar Hiragar (1893) L.R. 17 Bom. 662 and after full argument, that

Court differed from the view taken by Scott, J., and it is worth pointing out that that was the only point discussed before the Court and the only

point decided. It was stated that the cause of action arose partly if not wholly within the limits of the ordinary jurisdiction of the High Court,

Bombay, but no leave to sue had been obtained, and, therefore, for the purposes of the application before the Court, the only question in issue was

whether carrying on business by an agent within the jurisdiction was sufficient. That case was decided under the Bombay Small Cause Courts Act

but the words of that Act are identical with the words of the Letters Patent, and, in my judgment, the decision in Girdhar Damodar v. Kassigar

Hiragar ILR (1893) 17 Bom. 662 is correct and that in Kessowji Damodar Jairam v. Khimji Jairam ILR (1888) B. 507 must be considered as

over-ruled. The principle which Scott, J. followed can only apply to sections or rules not dealing directly with the question of suits against

foreigners, for, where jurisdiction is being conferred by the enactment itself against foreigners, one has only to construe the words of the enactment

itself to ascertain whether foreigners are or are not included. Under Clause 12 of the Letters Patent the power to try suits against persons is

expressly conferred in the case of defendants dwelling or carrying on business or-personally working for gain within the jurisdiction and I think it is

impossible to construe '' defendant'' to include foreigners in two out of three cases and not in the third, as all three occur in the same sentence.

It is to be observed that the English authorities are of no assistance because in England the rules as to jurisdiction mainly Order 11, Rule 11 of

the Supreme Court Rules, do not confer jurisdiction on English Courts over defendants carrying on business within the jurisdiction unless they are

residents.

In Annamalai Chetty v. Murugesa Chetty ILR (1902) M. 544 : 13 M.L.J. 287 the Privy Council called attention to the fact that in Girdhar

Damodar v. Kassigar Hiragar ILR (1893) B. 662 the cause of action had arisen wholly or in part within the jurisdiction, and stated that the matter

might require further consideration : but, it is to be observed that the decision in Girdhar Damodar v. Kassigar Hiragar (1893) L.R. 17 B. 662 as

pointed out above, turned wholly on the point now in dispute, and I am prepared to follow it until higher authority has declared it to be wrong.

This appeal must be dismissed with costs.

Coleridge, J.

I concur.