(1.) This is an appellant by the deft. Ram Kumar Maskara for an order that the leave granted under cl. XII of the Charter prior to the institution of the suit be revoked, and alternatively, that the time to file the written statement be extended. The main contention of the learned counsel appearing on behalf of the appct. is that the leave granted under cl. XII of the Charter should be revoked.
(2.) This suit which was instituted on 5-8-1950 is a suit for a declaration of the shares of the parties in the joint properties and for partition and for accounts. There are two pltfs. in this suit, one is Bhuramull Maskara and the other is Hiralal Maskara. There are four defts. deft. 1 being Ram-kumar Maskara, deft. 2 being Jawharlal Maskara, deft. 3 being Motilal Maskara and deft. 4 being Sm. Jari Devi. Of the four defts., deft. 1 Ram Kumar Maskara and deft. 4 Sm. Jari Devi are alleged in the said cause title to be residing at Nalhati outside the jurisdiction of this Court In para. 3 of the plaint it is alleged that the family of the Maskara owns considerable properties both movable and immovable situate within as well as outside the jurisdiction of this Court and the particulars of the said properties including the businesses carried under various names are given in a schedule filed with the plaint and marked with the letter 'B'. In Sch. 'B' the first item of the properties mentioned is "Jhutharam Ramrikhdas at premises No. 173, Harrison Road, Calcutta and Nalhatty." The second item of the properties mentioned in the said schedule is : 'Members of the following : (a) Calcutta Wheat and Seeds Assocn; (b) Calcutta Bullion Assocn.' The third item is a Rice Mill at Nalhati. The fourth item is "Maskara Salt Supplies." The fifth item is "Sree Swastika Rice Mill." Under the sixth item, thirty five properties have been mentioned all within the district of Birbhum. The seventh item contains four properties in Bihar and the eighth item contains five properties in the district of Jaipur in Rajasthan. This exhausts the list of properties mentioned in Sch. 'B' to the plaint. The contention of the petnr. before me is that there is no property within the jurisdiction of this Court except item No. 1 in Annexure 'B'. It is further contended that Ram Rikhdas Maskara, the father of the parties other than the deft. 4, used to carry on business at several places, to writ : at Nalhati, Howrah. After the death of the said Ram Rikhdas, the petnr. along with Hiralal Maskara, Joharlal Maskara used to carry on the said business. They used to have a gadi at 173, Harrison Road since 1942 The said gadi at 173, Harrison Road was only a branch office. The said business was carried on at the said premises No. 173 Harrison Road, Calcutta, upto 1947 when the said business was totally stopped. It is further alleged by the petnr. that the said branch gadi occupied only half of a room at the said premises No. 173, Harrison Road for which a rent of Rs. 22 8 0 per month used to be paid to the landlord and none of the parties to this suit are at present residing there. It is further alleged by the petnr. that the parties to this suit have got no immovable property at all within the jurisdiction of this Court The petnr's case further is that most of the joint properties are situated at Nalhati, the head office of the business which was carried on by the petnr. Hiralal and Joharlal was at Nalhati, all the books of account are at present lying at Nalhati with Jawharlal as will appear from the letter of Jawharlal dated 22-9-1949, all the witnesses to be adduced in this case are residents of Nalhati, the mother who is an old lady of 70 years resides at Nalhati and it would be very difficult for her to come over to Calcutta to conduct this case. In the circumstances, the petnr's contention is that the balance of convenience lies in favour of this suit being tried at Birbhum and the suit can conveniently be tried there at a very low cost. It has also been urged, on behalf of the petnr. that the suit is mala fide and a harassing suit.
(3.) The principles on which leave already granted under Clause 12 of the Charter can be revoked have been consd. in a number of decisions of this Court In the case of Madanlal Jalan v. Madanlal A. I. R. (36) 1949 Cal. 495, Das J. inter alia laid down the following tests: