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Judgment
Mishra, J.—This appeal under Clause 15 of the Letters patent is directed against the order in Application No. 1627 of 1989 refusing leave
under Clause 12 thereof to sue in this Court, the defendants for recovery in a sum of Rs. 3,43,726-30. The plaintiff/appellant has alleged that most
part of the cause of action for the suit has arisen within the city of Madras. The defendants, however, have said that the entire cause of action has
arisen only at Cochin and not in Madras. Learned single Judge, Srinivasan, in his impugned judgment has said;
In my opinion, it is not necessary to consider whether any part of the cause of action has arisen within the City of Madras. I propose to decide the
matter on the assumption that part of the cause of action has arisen within the City of Madras.
Clause 12 of the Letters Patent which speaks about the original jurisdiction as to suits, runs as follows:
And we do further ordain that the said High Court of Judicature at Madras, in exercise of its Ordinary Original Civil Jurisdiction, shall be
empowered to receive, try, and determine suits of every description if, in the case of suits for land or other immovable property, such land or
property shall be situated, or, in all other cases, if the cause of action shall have arisen, either wholly, or, in case the leave of the court shall have
been first obtained, in part, within the local limits of the Ordinary Original Jurisdiction of the said High Court, or if the defendant at the time of the
commencement of the suit shall dwell or carry on business or personally work for gain, within such limits; except that the said High Court shall not
have such original jurisdiction in cases falling within the jurisdiction of the Small Cause at Madras, in which the debt or damage, or value of the
property sued for does not exceed one hundred rupees.
The words ""determine suits of every description ...if the cause of action shall have arisen or, in case the leave of the court shall have been first
obtained, in part, within the local limits of the Ordinary Original Jurisdiction"", clearly establish the right of a litigant to institute a suit on the Original
Side of this Court if the cause of action would have arisen wholly within the local limits of the Ordinary Original Jurisdiction of the court. The leave
of the court is required only in a case in which the cause of action would have arisen in part within the local limits of the Ordinary Original
Jurisdiction. It is thus not possible to ignore the case of a litigant who decided to file the suit on the Original Side of the court on the plea that most
part of the cause of action had arisen within the city of Madras, only on the ground that the defendant had pleaded otherwise and alleged that no
part of the cause of action had arisen in Madras but had arisen at Cochin. In K. Murugesan v. Seethalakshmi reported in (1992)1 L. W. 277 we
had the occasion to examine the scope of Clause 12 of the Letters Patent to find out when this Court shall have jurisdiction to entertain a suit under
Clause 12 of the Letters Patent. In our Judgment in the said case we have noticed.
The chartered High Courts of Calcutta, Bombay besides this Court, are having the original jurisdiction as found in Clause 12 of our Letters Patent.
They have to find before a suit is entertained on Original Side that it satisfied the requirements, in the case of suit for land or other immovable
property, that the land or other immovable property is situated within the local limits of the ordinary original jurisdiction of the court, and in all other
cases whether the cause of action wholly arises within the local limits of extraordinary original jurisdiction, or in case the leave of the court is asked
for, whether the cause of action arises in part within the local limits of the ordinary original jurisdiction of the court or not. Besides this, there would
be no difficulty in entertaining a suit under Clause 12, if the defendant, at the time of commencement of the suit, dwelt or carried on business or
personally worked for gain within the Ordinary Original Jurisdiction of this Court. The court''s special jurisdiction under its Letters Patent has been
left free from some of the provisions of the Code of Civil Procedure, including Sections 16, 17 and 20 by Section 120 thereof, for, the Letters
Patent has not only fixed a territorial jurisdiction, but has in Clause 12 declared that in the case of suits for land or other immovable property such
land or property should be found within its territorial jurisdiction and in all other cases if the cause of action is found either wholly or in part arising
within the jurisdiction of the court or the defendant is found at the time of the commencement of the suit dwelling or carrying on business or
personally working for gain within such territory.
Although the case in K. Murugesan v. Seethalakshmi reported in (1992)1 L.W. 277 was one in which the question had not directly arisen whether
in deciding to grant leave, the pleadings of the defendant would be taken into consideration or not, we took notice of a celebrated judgment of the
Calcutta High Court in Bengal Agricultural and Industrial Corporation Ltd. Vs. Corporation of Calcutta and Another, , to quote in some detail the
law on the subject including the passage:
On a correct construction of Clause 12 of the Letters Patent, not all suits in which there are more than one defendants, not all of them being within
jurisdiction, are liable to be dismissed as against all including those who reside or carry on business within jurisdiction. Again, it is not correct to say
that in a case in which the plaintiff abandons his claim either wholly or in part against some of the defendants, for determining the nature of the suit
and the jurisdiction of the court, the court is to look at the plaint as originally filed and not as it stands after the claim has been abandoned as against
some of the defendants wholly or in part. Neither reason nor authority warrants such a proposition. If the suit is on a single cause of action and
there are more defendants than one, then all the defendants being necessary parties, having regard to the nature of the claim and the reliefs sought,
then all the defendants must be within jurisdiction in order that the court can entertain such a suit. In such a suit the court cannot pass a decree
against one and dismiss the suit against the other.
In that very appeal we also considered as to what a cause of action means and recorded our considered opinion following the decision of a Full
Bench of this Court in Lakshminarayana Chettiar, In re. (1954)1 M.L.J. 403 : 67 L. W. 123 and a judgment of the Supreme Court in State of
Rajasthan and Others Vs. Swaika Properties and Another, .
Cause of action is a fact which, if traversed would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In
other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to relief against the defendant.
The learned single Judge is, however, right in saying that in all cases where a part of the cause of action has arisen within the jurisdiction of one
court and the other part within the jurisdiction of some other court, the relevant question will be the balance of convenience, but then has said : ""In
paragraph 5 of the counter-affidavit the defendant has stated that the entire evidence whether documentary or witnesses, has to be produced at
Madras for conducting the trial which would be highly impossible apart from being expensive. The defendants will be subjected to acute hardship
and loss on the other hand, the plaintiff will not be subjected to any hardship as the plaintiff is having a branch at Mattancherry, Cochin and their
distributor Devika Chemicals (P.) Ltd. is also at Cochin. The defendants have also referred to the necessity of summoning the records from Central
Excise Department to speak to the supply of goods. Learned Counsel for the plaintiff urges that there is no relevance and that it may not call for
records from the Central Excise Department. But, it is not a matter which has to be considered at this stage, but, I am of the opinion that the
defendants will be put to undue hardship if the suit is filed in this Court. On the other hand, since the plaintiff is having its branch office admittedly at
Cochin, it will not be put to any inconvenience if the suit is filed in a competent court at Cochin, where admittedly a part of the cause of action has
arisen.
The principle of balance of convenience, which is an extension of the doctrine ''forum convenient'' has been considered in a judgment of this
Court in Seshatri Row v. Nawab Ka Ashur Jung Aftal Dowlah Mushral Mulk ILR 30 Mad. 438. It has been observed in the said judgment :
Having regard to the wording of Article 12, it is clear that the fact that the cause of action arises in part within the local limits is not conclusive, and
that, notwithstanding that the cause of action arises in part within the local limits, the court may decline to give leave to sue.
xxx xxx xxx
As regards the law of this country, so far as we are aware, it has never been held that the question of convenience is not a question which may be
taken into consideration in dealing with applications under Clause 12, and we are certainly not prepared to hold that this question should be
excluded from consideration.
This view has been reiterated in several judgments of the courts having original jurisdiction including the judgments of the Calcutta High Court in
Par-asaram v. Chitandas AIR 1952 Cat. 82 and Bihar State Agro-Industries Development Corporation Ltd. Vs. Ram Chand Khosla and
Another, . But then in considering the balance of convenience, the court is required to see the plaint and the facts stated therein. The court has to
necessarily see the entire bundle of facts and then to determine the question of convenience. Stating, though with respect to grant of interlocutory
injunctions, in Halsbury''s Laws of England, Third Edition, Vol.21 at pages 364 and 365, the balance of convenience is stated as follows :
Where any doubt exists as to the plaintiff''s right, or if his right is not disputed, but its violation is denied, the court in determining whether an
interlocutory injunction should be granted takes into consideration the balance of convenience to the parties and the nature of the injury which the
defendant, on the one hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on
the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience
which the plaintiff will suffer by the refusal of the injunction is greater than that which the defendant will suffer, if it is granted, lies on the plaintiff.
We do not say that in considering the balance of convenience as to the forum for instituting a suit, it would be necessary (like the principles of
injunction) to see the ultimate injury that a party may suffer but we do find support to our view and we state in no uncertain terms that in deciding
whether to refuse leave or not, it would be necessary to see on facts and not, on assumptions, who shall suffer-the plaintiff or the defendant-if the
leave is granted or refused, as the case may be.
We would have proceeded ourselves to examine the facts pleaded on behalf of the plaintiff to see whether facts show that most of the
transactions took place within the jurisdiction of this Court or a small part of the cause of action arose within the jurisdiction of this Court, for, if
most of the transactions were done within the jurisdiction of this Court obviously the defendants found it convenient to transact their business for all
purposes within the jurisdiction of this Court but only to defeat the grant of leave on the Original Side of this Court, the plea of convenience is
raised. We would also have examined ourselves as to whether keeping in view the nature of the transactions between the parties from which
transactions the present suit has arisen, it would be inconvenient to the defendants to defend themselves before this Court or would be inconvenient
to the plaintiff if he is asked to go to institute the suit in Cochin as pleaded by the defendants. We, however, refrain for, if we do so, we shall usurp
the jurisdiction and discretion of the learned single Judge, who is to decide whether to grant leave or not. Since we are of opinion that a proper
adjudication is necessary on all relevant facts of the case before deciding whether to grant leave or not and since it has not been done in passing the
impugned judgment we are inclined to interfere with the impugned order. The impugned order, for the said reason, is set aside. The case is remitted
to the Original Side of this Court for a re-hearing and decision on the question whether leave should be granted or not, in accordance with law.
This appeal is accordingly allowed. No costs.