TUTICORIN ALKALI CHEMICALS AND FERTILIZERS LTD Vs. COCHIN SILICATE AND GLASS INDUSTRIES A PARTNERSHIP FIRM

JUDGEMENT

(1.) THIS appeal under Clause 15 of the Letters patent is directed against the Application No.1627 of 1989 refusing leave under Clause 12 thereof to sue in this Court, defendants for recovery in a sum of Rs.3,43,726-30. The plaintiff/appellant has alleged most part of the cause of action for the suit has arisen within the city of Madras. defendants, however, have said that the entire cause of action has arisen only at Cochin 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 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 City of Madras."

(2.) CLAUSE 12 of the Letters Patent which speaks about the original jurisdiction as to runs as follows: "And we do further ordain that the said, in exercise Ordinary Original Civil Jurisdiction, shall be empowered to receive, try, and determine of every description if, in the case of suits for land or other immovable property, such or property shall be situated, or, in all other cases, if the cause of action shall have either wholly, or, in case the leave of the court shall have been first obtained, in part, 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 jurisdiction in cases falling within the jurisdiction of the Small Cause at Madras, in which 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 arisen or, in case the leave of the court shall have been first obtained, in part, within local limits of the Ordinary Original Jurisdiction", clearly establish the right of a litigant institute a suit on the Original Side of this Court if the cause of action would have wholly within the local limits of the Ordinary Original Jurisdiction of the court. The leave the court is required only in a case in which the cause of action would have arisen within the local limits of the Ordinary Original Jurisdiction. It is thus not possible to the case of a litigant who decided to file the suit on the Original Side of the court on the 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 arisen in Madras but had arisen at Cochin. In K.Murugesan v. Seethalakshmi, reported (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 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 entertained on Original Side that it satisfied the requirements, in the case of suit for land other immovable property, that the land or other immovable property is situated within local limits of the ordinary original jurisdiction of the court, and in all other cases whether cause of action wholly arises within the local limits of extraordinary original jurisdiction, or case the leave of the court is asked for, whether the cause of action arises in part within 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 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 Letters Patent has been left free from some of the provisions of the Code of Civil Procedure, including Secs. 16, 17 and 20 by Sec. 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 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 arising within the jurisdiction of the court or the defendant is found at the time of commencement of the suit dwelling or carrying on business or personally working for gain within such territory." Although the case in K.Murugesan v. Seethatakshmi, reported in (1992)1 L.W. 277, in which the question had not directly arisen whether in deciding to grant leave, pleadings of the defendant would be taken into consideration or not, we took notice of celebrated judgment of the Calcutta High Court in Bengal Agricultural and Industrial Corporation v. Corporation of Calcutta, A.I.R. 1960 Cal. 123, to quote in some detail the on the subject including the passage: "On a correct construction of CLAUSE 12 of the Letters Patent, not all suits in which there 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, not correct to say that in a case in which the plaintiff abandons his claim either wholly part against some of the defendants, for determining the nature of the suit and jurisdiction of the court, the court is to look at the plaint as originally filed and not stands after the claim has been abandoned as against some of the defendants wholly part. Neither reason nor authority warrants such a proposition. If the suit is on a single 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 defendants must be within jurisdiction in order that the court can entertain such a suit. such a suit the court cannot pass a decree against one and dismiss the suit against other".

(3.) THE principle of balance of convenience, which is an extension of the doctrine convenient " has been considered in a judgment of this court in Seshatri Row v. Nawab Askur Jung Aftal Dowlah MushralMulk, I.L.R. 30 Mad. 438. It has been observed in the judgment: "Having regard to the wording of Art.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 cause of action arises in part within the local limits, the court may decline to give leave sue " xxx xxx xxx "As regards the law of this country, so far as we are aware, it has never been held that 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 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-dsaram v. Chitandas, A.I.R. 1952Cal. 82 and Bihar State Agro Industrial Development Corporation v. Ram ChandKhosla, A.I.R. 1982Cal 537. But then, in considering the balance of convenience, the court required to see the plaint and the facts stated therein. THE court has to necessarily see entire bundle of facts and then to determine the question of convenience. Stating, though with respect to grant of interlocutory injunctions, Halsbury's Laws of England, Third Edition, Vol.21 at pages 364 and 365, the balance convenience is stated as follows: "Where any doubt exists as to the plaintiffs right, or if his right is not disputed, but violation is denied, the court in determining whether an interlocutory injunction should granted takes into consideration the balance of convenience to the parties and the nature 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. burden of proof that the inconvenience which the plaintiff will suffer by the refusal of injunction is greater than that which the defendant will suffer, if it is granted, lies on plaintiff."