TMI Blog1945 (2) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... n what grounds ought the Court to accede to such an application. I am indeed, grateful to Learned Counsel on both sides for the very great assistance they have given me in deciding this question. The first ground urged by Mr. Khaitan was that in reality no part of the cause of action arose within the jurisdiction of this Court. The plaintiff was only an assignee of Lachmi Debi's claim. Lachmi Debi had a complete cause of action upon accounts stated and the whole of that cause of action arose outside Calcutta. She could sue at once. She assigned her rights to the plaintiff. The assignment operated as a transfer to the plaintiff of the same old cause of action as Lachmi Debi had. The assignment did not bring into being any new cause of action or any extension of the old cause of action. The plaintiff has filed this suit to enforce that old cause of action of Lachmi Debi the whole of which arose outside the jurisdiction of this Court and therefore leave should not have been granted. That the assignment does not operate as a new cause of action is clear from the fact that it gives no fresh period of limitation. Time began to run against Lachmi Debi from the date when the account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clear that this cause of action for the purposes of the Limitation Act must be anterior to the terminus a quo fixed by the Act. This cause of action may or may not he transferable to another person. Thus if it is a mere right to sue e.g., a claim for damages only, it will not be transferable. If it is transferable and is transferred the transferee gets the cause of action and may enforce it by suitor otherwise. But the time for enforcing it is fixed by the statute and such time continues to run and must be computed from the date the cause of action was complete. This bar of limitation applies to the person who seeks to enforce it, be he the person in whose favour the cause of action originally accrued or a transferee from him. It is in this sense that a cause of action is not prolonged by transfer. But the expression cause of action for the purposes of jurisdiction of the Court is an expression of wider import. Thus in Cooke v. Gill, (1873) 8 C.P. 107 at page 116 : (42 L.J.C.P. 98), Brett J. defined cause of action to mean: every fact which is material to be proved to entitle the plaintiff to succeed - every fact which the defendant would have a right to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cause of action arose within the jurisdiction of this Court. Mr. Khaitan's nest line of argument was that assuming that a part of the cause of action arose within jurisdiction yet the Court had a perfect and unfettered discretion in a proper case to revoke the leave. Mr. Khaitan contended that this Court shall revoke the leave if it were satisfied that the suit had been filed in this Court to harass the defendant and was an abuse of the process of this Court. If the abuse was clearly demonstrated the Court would as a matter of course revoke the leave. If the Court had strong suspicion that the suit was an abuse of the process of the Court it should also revoke the leave. Even if there were no abuse the Court might revoke the leave on the ground of balance of convenience only. Balance of convenience, according to Mr. Khaitan, is a legitimate and powerful consideration in all cases. Mr. Ghose on the other hand argued that mere balance of convenience was no ground for revoking the leave already granted under Cl. 12. The fact must disclose that the proceedings were an abuse of the process of the Court and might result in a denial of justice. He referred me to S. 20 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present the plaint before the Master with a note that leave under Cl. 12 is asked for. The plaint is scrutinised by the Master. Formerly, the Master used to give the leave but eventually in 1907 it was held that the giving of leave was not a mere ministerial act but was a judicial act which must be done by the Judge and could not be delegated to the Master. Thenceforth the Master after scrutinising the plaint places it before the Judge. The Judge is supposed to consider the matter and use his discretion. In practice, however, the Judge gives leave as a matter of course if the Master finds that a part of the cause of action arose in Calcutta. Although in practice it has become a mechanical process yet it cannot be denied that in law the Judge must be taken to have exercised his discretion. No serious harm, however, is done because the defendant can always apply for revocation of the leave. Thus leave is granted by the Judge ex parte. At that stage the only material placed before the Court is the plaint. From the cause title the Court comes to know of the respective occupations and places of residence of the parties. From the body of the plaint the Court gathers the cause of action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its Ordinary Original Civil Jurisdiction (Manindra Chandra v. Lal Mohun, 56 Cal. 940 at p. 954). These safeguards, however, come into play after the suit has been filed in a particular Court. Because the Code has directly given an unfettered right to the plaintiff to file his suit in any Court where a part of his cause of action arose the Court will not subsequently indirectly take it away by applying the safeguards except in the case of gross abuse. That is why balance of convenience which is short of abuse may not under the Code be enough to induce the Court to stay the suit. That is also the principle underlying the cases relied on by Mr. Ghose which insists that some element of injustice, bad faith or ill will is necessary to induce the Court to stay a suit. In Snow White Food Products Co., Ltd. v. The Punjab Vanaspati Supply Co., 49 C.W.N. 172, I have applied these principles in an application for injunction restraining a plaintiff from proceeding with a suit outside jurisdiction. In those cases where the plaintiff is free to file his suit in a Court of his choice stay or injunction or transfer will not be granted only on the ground of balance of convenience. The position is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arent from the plaint. As an application for revocation of leave is in the nature of a review or reconsideration logically the Court is called upon to decide the same question on the same considerations of convenience although in the light of fuller materials. When I say that the question of convenience should be considered, I mean convenience of both parties. I agree with Mr. Khaitan that on an application for revocation a greater onus should not be put upon the defendant by reason of an ex parte accomplished fact. In my opinion the Court should not on an application for revocation start with a presumption in favour of maintaining the leave but should apply an unfettered mind to all the facts and circumstances and submissions presented before it as if it were considering the question for the first time. It remains to be seen whether the views I have just expressed find any support from judicial decisions or whether they militate against any of them. In Seshagiri Row v. Nawab Askur Jung Aftal Dowlat Mushral Mulk, 30 Mad. 438 : (17 M.L.J. 304), it was held that Courts in this country are not precluded from taking the question of convenience into consideration in dealing with appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th leave sought for by a defendant in a partition suit counter-claiming a partition of properties some of which were outside British India. At p. 261 Macleod C.J. observed as follows: I think, speaking for myself, that in the first instance the Court would have power to giant leave in a partition suit where part of the property is outside British India. But the question whether its discretion should be exercised in favour of granting leave no doubt can be raised before the bearing, and while there may be cases where a Court would leave the matter to to be decided at the hearing there may be other cases where the Court would decide the question against the party asking for leave at once. Then the learned Chief Justice points out the inconvenient results that might follow if leave were granted in that case and on a consideration of the circumstances of the case and the attitude of the parties disclosed in their affidavits upheld the decision of the trial Judge who had refused to grant leave although on a different ground. In the case of Engineering Supplies Ltd. v. Dhandhania Co., 58 Cal. 539, Rankin C.J. affirmed the maintainability of an application for revoking th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two points I do not see why the decision on one point should be any more in the nature of an obiter than the decision of the other point. Towards the end of his judgment, his Lordship also referred to delay as an additional obstacle in the way of granting that application. In this I respectfully concur and I would be prepared to support his decision on this ground alone. In the year 1935, there was a crop of of applications for revocation of leave under Clause 12. These applications were encouraged no doubt by the decision of Panokridge J. in Kalooram Agarwala v. Jonistha Lal Chakroberty, 40 C.W.N. 161 : 63 Cal. 435. This decision, however, was given at the hearing and not on an application for revocation. In that case on the eve of the expiry of the period of limitation the plaintiffs obtained in Calcutta an assignment of the debt due by the defendants who resided in Manbhum on a promissory note which was executed there. After assignment, the plaintiffs filed the suit here on the same day with leave under clause 12. In their written statements, the defendants pleaded that the assignment was mala fide and fraudulent and leave should be rescinded. On the evidence adduced before i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnment was made in bad faith merely for the purpose of creating jurisdiction. In the beginning His Lordship opined that: When people take an assignment of a promissory note they should be prepared to enforce their claim either in the Court within whose jurisdiction the makers reside or in a jurisdiction where a part of the cause of action with which the makers are directly concerned has arisen. With great respect I do not see any sound legal principle underlying this general observation and I think Mr. Ghose's criticism on this passage is well founded. This statement of the law cannot be correct if the case is governed by the Code for that allows a suit to be filed in any Court within whose jurisdiction any part of the cause of action arose. This statement of the law, applied to a case filed in this Court, would leave no scope for the exercise of discretion which this Court undoubtedly has under clause 12. Further his Lordship disposed of the point based on negotiability by making a distinction between a maker who was merchant and one who was not. Again with great respect I find no logic in this distinction. Finally the learned Judge put his decision on the ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction in this Court. He also held that on the facts of that case there was no hardship on the defendant or difficulty in bringing his witnesses. This was enough to dispose of the point. The learned Judge, however, observed on p. 721 as follows: It seems to me that if you are going to discriminate between plaintiffs and defendants who are interested in negotiable instruments on grounds of hardship or humanity or even on the ground of legitimate collusion to assign you are striking at the whole root of the law of negotiability as laid down not only in the Negotiable Instruments Act but in the time-honoured principles of the Law Merchant. In the view of the learned Judge it made no difference whether the assignee who became the holder of the note was a commercial man or a private individual and in this he differed from the view of Panckridge J. It will be noticed, however, that Cunliffe J. based his decision on two grounds (i) Law Merchant and (ii) considerations of convenience. This case went up to the Court on appeal and is reported as Bhabani Prasanna Lahiri v. Rai Radhica Bhusan Roy, 40 C.W.N. 1349. Both my Lord the Chief Justice and Costello J. held that the assignme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. From these judicial authorities the following propositions may, I think, be enunciated: (a) that the application lies for revoking the leave granted under Cl. 12 of the Letters Patent; (b) that such an application should be made at an early stage of the suit and delay and acquiescence may be a bar to such an application; (c) that if the application depends on difficult questions of law or fact the Court should not revoke leave on a summary application but should decide the question at the trial; (d) that if the defendant shows clearly that no part of the cause of action arose within jurisdiction the leave should be revoked as a matter of course; (e) that if only a part of the cause of action arose within jurisdiction, then it is a question of discretion for the Court to give or refuse leave or where leave has already been granted to revoke or maintain the leave; (f) that assignment is a very important part of the cause of action in a suit by the assignee; (g) that in giving or refusing leave or maintaining or revoking leave the Court will ordinarily take into consideration the balance of convenience and may, if the balance is definitely in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants by Lachmi Debi and the plaintiff by his solicitors' letter dated 4th April 1944. By that letter the defendants were called upon to pay up the amount to the plaintiff at 47, Zakariah Street or to the solicitors' office at No. 1B, Old Post Office Street both in the town of Calcutta. The defendants having failed to pay any sum the sum of ₹ 9500 for principal and ₹ 2056/8/3 for interest aggregating to ₹ 11,556/8/3 became due to the plaintiff and the plaintiff claimed a decree for that sum with further interest and costs. The applicants in their petition say that the sons of Parasram separated from one another long ago and that after such separation two of the sons of Parasram, namely, Surajmal (the father of the applicant Ramjidas and the grandfather of the applicant Sew Kumar) and Maniram (the adoptive father of the defendant Madanlal and the father of Lachmi Debi) and one Lachhuram, a stranger to the family, started a business in partnership under the name and style of Parasram Moniram. In 1921/1922, Surajmal retired and Maniram and Lachhuram continued the business of Parasram Moniram in copartnership till 1922/1923 when the business was closed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant Madanlal with whom the applicants are not on good terms. In fact they took criminal proceedings against the defendant Madanlal which, however, proved unsuccessful and the defendant Madanlal has instigated this suit to wreak vengeance on them. Two affidavits have been filed in opposition to this application, one by Lachmi Debi and the other by the plaintiff. It is maintained that Parasram Moniram was a joint family business until separation at the end of S.Y. 1998 and was continuing at the date of the adjustment. Lachmi Debi states that she did deposit moneys and that interest due to her in the deposit account was calculated and entered in the books of Parasram Moniram by the applicant Ramjidas himself and that a statement of account copied from the books of that business was given to her. Besides these moneys she has no other money by which she can carry on any litigation. She used to live with the defendants in their house at Bhiwani off and on but when disputes arose and she could live with them. She had nobody to help her and consequently she had no other alternative but to sell the claim. At first she could not secure anybody to buy the claim but eventually she succeed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e already referred. She says, and in this she is confirmed by the plaintiff, that she got ₹ 3000 as consideration. The case of collusion between the plaintiff Lachmi Debi and the defendant Madanlal is at present nothing more than an allegation and a mere insinuation on which I am not prepared to found a case of gross abuse of the process of this Court. There is no grievance on the part of the plaintiff on the score of delay. In fact written statement has not yet been filed. Mala fide and delay being thus set out of the way the only other factor which may influence my decision is the balance of convenience. Every litigation involves a certain amount of inconvenience and hardship but such normal inconvenience and hardship have never been regarded as a sufficient ground for depriving the plaintiff of his choice of forum. Such inconvenience does not give the defendant any right to have all litigation against him filed in his home Court. It is true that the defendants' witnesses may have to be brought down from Bhiwani or examined there on commission; but it is equally true that if the plaintiff has to file his suit at Bhiwani he will have to bring out a commission here to exa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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