Madanlal Jalan v. Madanlal And Ors.

The Judgment of the Court was as follows:—

Das, J.:— This is an application for revocation of the leave granted to the Plaintiff under cl. 12 of the Letters Patent to institute this suit in this Court.

2. This suit was filed, with leave of this Court, on April 17th, 1944, by an assignee of a claim founded on account stated in writing. The writ of summons was served on the Defendants in or about the first week of May, 1944, at Bhiwani where they ordinarily reside. Two of the Defendants who are the applicants before me have entered appearance and the rest of the Defendants have not done so. On June 5th, 1944, i.e, before the time to file their written statement expired the applicants took out the present summons.

3. That this Court has jurisdiction, in a proper case, to revoke the leave has not been questioned by Mr. P.C Ghose who appears for the Plaintiff. The main, and indeed the sole, controversy has centred round one question, namely, under what circumstances and on 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.

4. 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 account 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 accounts were adjusted. The transfer of the claim by her did not give any fresh period of limitation to the transferee, the Plaintiff. Mr. Khaitan drew my attention to the observations of Lord Kingsdown in Prannath Roy Chowdhury v. Rookea Begum . 7 M.I.A 323 at p. 353 1859. which was applied by Mookerjee, J., in Mohendra Nath Biswas v. Shamsunnessa Khatun . 21 C.L.J 157 1914., namely, that “a cause of action is not prolonged by mere transfer of title.” On analogy Mr. Khaitan argued that if transfer did not operate as a prolongation of the cause of action and did not affect the bar of limitation, it should not also affect the question of jurisdiction. In other words, according to Mr. Khaitan, the transfer could not operate as a prolongation of the cause of action either as to time or as to space and the transferee should be limited, in the matter of choice of forum, to the Court or Courts in which the transferor could file the suit as he is limited by the period of limitation by which the assignor was limited. The argument is attractive ‘but it appears to me that different considerations govern the two questions of limitation and jurisdiction. Limitation is a statutory bar imposed on a Plaintiff, be he the original owner (if I may use the expression) of the cause of action or a transferee from him. By statute the time is made to run from a definite point of time and a definite period is fixed for enforcing a particular cause of action irrespective of the person who figures as the Plaintiff. It is, therefore, quite intelligible that a cause of action is not, as regards time, prolonged by the transfer. There is no such statutory provision which confines jurisdiction for all times to come to any particular Court. Further, Mr. Khaitan's argument proceeded on the assumption that the expression “cause of action” has the same fixed meaning in every case. That is clearly not the case. First of all the Limitation Act does not create any cause of action. It only prescribes time limits for taking legal proceedings by way of application, suit or appeal, to enforce or protect different rights. The Limitation Act assumes that the right is complete and enforceable and prescribes a period within which proceedings must be taken to enforce that right. This period begins to run from the time the right accrues. If we call the right a “cause of action” it is clear that this “cause of action” for the purposes of the Limitation Act must be anterior to the terninus a quo fixed by that Act. This “cause of action” may or may not be 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 suit or 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 pr a transferee from him. It is m 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] L.R 8 C.P 107 at p. 116., 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 traverse.” This definition has been approved in Read v. Brown . [1888] L.R 22 Q.B.D 123.. Lord Esher, M.R, restated this definition at p. 131 as meaning “every fact which it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.” At page 132, Fry, L. J., observed— “Every thing which, if not proved, gives the Defendant an immediate right to judgment must be part of the cause of action.” Adopting this definition it was held in that case that assignment was a part of the eause of action of the assignee, for the assignment must be proved to entitle the assignee to the judgment of the Court. It has reference to and embraces all facts giving the right to a particular person to figure as a Plaintiff and make the claim. Following two earlier cases of this Court where the expression “cause of action” as used in cl. 12 was defined as meaning “the entire bundle of facts which would of necessity be proved” and “all things necessary to give a right of action,” Hill, J., in Roghoonath Misser v. Gobindnarain . I.L.R 22 Cal. 451 1895. held that the right of action of a Plaintiff suing as endorser of a hundi is directly dependent on the endorsement which, accordingly on the above principles, must form part of the cause of action. In Manepalli Mangamma v. S. Manepalli Sathiragu . 37 I.C 681 1916. and Naraindas & Co. v. Chandiram & Co. . A.I.R [1928] Sind. 86., it has been held that an endorsement on a hundi is part of the cause of action of the endorsee on the hundi. The definition of “cause of action” given in the two English cases I have mentioned was adopted in Engineering Supplies, Ltd. v. Dhandhania & Co. . I.L.R 58 Cal. 539 1930. and Bhabani Prasanna Lahiri v. Radhica Bhusan Roy . 40 C.W.N 1349 1936. both of which are binding on me and in numerous other cases of this Court. Alike, therefore, on principle and on authority it is now clearly and firmly established that for the purposes of jurisdiction under cl. 12 of the Letters Patent, in a suit by an assignee the assignment must be regarded as a part and indeed a very important part of the cause of action, and it must be held that, in the case now before me, a part of the cause of action arose within the jurisdiction of this Court.

5. Mr. Khaitan's next 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 should revoke the leave if it were satisfied that the suit had been filed in this Court to harags the Defendant and was an abuse of the process of this Court. If the abuse wad 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.

6. 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 facts 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 sec. 20 of the Code and contended that it must be assumed that the provisions of the Code were just and equitable. There the inconvenience of the Defendant was not taken into account at all. The Plaintiff was free to choose his own forum. There was no case under the Code where a suit had been stayed on the mere ground of balance of convenience. He contended that the Court, should follow on an application for revocation the same principles as it follows on an application for stay. Balance of convenience was not enough. There must be evidence of bad faith or ill will or abuse before the Court should grant a stay of suit or revocation of leave. He referred me to the cases of In re: Nortons Settlement10, Logan v. Bank of Scotland . [1906] 1 K.B 141. and Jethabhai v. Ameerchand . A.I.R [1924] Bom. 90 s.c 25 Bom. L.R 713.. He next argued that in any event the facts on which the balance of convenience or the alleged abuse depended were in dispute, and in cases of doubt and difficulty the Court should not proceed to revoke the leave on a summary application like the one now before me.

7. Mr. Khaitan replied that the principles adopted by the Courts in cases governed by the Code should not be applied to a case governed by the Letters Patent. Under the Code the Plaintiff had, in the first instance, an unfettered right to file his suit in any Court within whose jurisdiction any part of the cause of action arose. Having given this unfettered right to the Plaintiff the Code did not interfere with the suit unless the Court was satisfied that it was an abuse of the process of the Court. Safeguards against abuse were provided by way of stay or transfer of the suit to a more convenient Court. The policy underlying cl. 12 of the Letters Patent was however different, for under this clause, where, only a part of the cause of action arose within jurisdiction, the Plaintiff had to have the leave of the Court before he could file his suit in this Court. The matter, therefore, rested on the discretion of this Court and that being so the Court was entitled to take all circumstances into consideration including the balance of convenience and was not limited, in the exercise of this discretion, only to cases involving bad faith or abuse of the process of the Court or the possibility of failure of justice.

8. In our Court the practice is to 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 on which the suit is founded. The Court has to exercise its discretion in the matter of giving or refusing leave only on these materials. The question of bona, fides or mala, fides of the Plaintiff in seeking to file the suit in this Court will not usually be apparent from the plaint. Therefore the discretion of the Court at this stage cannot, of necessity, be based on a consideration of the motives of the Plaintiff. It must, at this initial stage at any rate, be exercised on a consideration of convenience having regard to the respective occupations and places of residence of the parties and the facts constituting the cause of action, and the extent of the part of the cause of action which is alleged to have arisen within jurisdiction. If it finds that the Defendant resides at a distance and the material facts mainly took place outside so that the bulk of the witnesses of the Defendant will be resident outside the jurisdiction and only an insignificant part of the cause of action arose within jurisdiction, the Court may in its discretion refuse the leave. This refusal must mainly, if not solely, be based on a consideration of convenience, for, as I have said, at this stage at any rate the Court will not usually have any material bearing on the motives of the Plaintiff, unless of course the degree of inconvenience itself or the insignificance of the part of the cause of, action shown to have arisen within jurisdiction by itself suggests bad motive. To hold otherwise will mean that the discretion undoubtedly given to the Court under cl. 12 is to be exercised only on a consideration of the extent of the part of the cause of action that arises within, irrespective of the inconvenience, however great, to which a Defendant may be put. I see no reason to so limit the discretion of this Court.

9. It is said that under the. Code the Plaintiff has the unfettered choice, of forum and mere inconvenience of the Defendant is not considered as a ground for restricting the Plaintiff's right to file his suit in any Court of his choice within whose jurisdiction a part of the cause of action arose. That is undoubtedly the position under the Code and the Court will not under the Code lightly interfere with the Plaintiff's choice. But there are safeguards provided in the Code by way of transfer or stay of the suit. Some of those safeguards may be available to this Court in exercise of its Ordinary Original Civil Jurisdiction [Mahindra Chandra v. Lal Mohon . I.L.R 56 Cal. 940 at p. 954 1929.]. 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 v. The Punjab Vanaspati . 49 C.W.N 172 1943., 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 quite different, however, where leave of Court is necessary before a suit can be filed.

10. Cl. 12 interposes a safeguard in favour of the Defendant at an earlier stage by investing the Court with a discretion to grant or refuse leave to sue, in addition to the other safeguards which will be available at a later stage. That the safeguards provided by the Code which are to be operative after the institution of the suit are to be applied only in case of abuse does not appear to me to be any reason why the Court should ignore or limit the additional safeguard provided under cl. 12. If I am right in thinking as I do that the discretion given under cl. 12 is in the nature of an initial safeguard I must hold that this discretion must be based on circumstances then available. It is not limited to a mere consideration of the extent of the part of the cause of action that arose within jurisdiction and questions of convenience, so far as they are apparent from the plaint, the only material which is, at this stage, available to the Court, must be taken into consideration. If this is so when leave is granted ex parte, should the position be different when the Defendant, after service of the Writ of Summons, makes a substantive application complaining of inconvenience and hardship and prays for revocation of the leave? If our practice had been to give leave under cl. 12 on an application by the Plaintiff on notice to the Defendant, as it is or was in Madras, the Defendant would have had a chance, before the suit was received and admitted, to make out a case of inconvenience. Should a Defendant in our Court be deprived of that chance and be put in a worse position because our practice is to give leave ex parte? If questions of convenience are to be taken into consideration at the time leave is to be granted why should it not be considered when the Defendant applies for its revocation? I see no logic in differentiating between the two stages. The question, in my opinion, is the same at both stages, namely, should the Court allow the Plaintiff to proceed with his claim in this Court? The principles on which the answer to that question should be formulated must, therefore, be the same at both stages. I have endeavoured to show that according to our practice of giving leave ex parte, the main, if not the sole, consideration at that time can only be one of “convenience which may be apparent 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.

11. In Sheshagiri Row v. Nawab Askur Jung Aftal Dowlat Mushral Mulk . I.L.R ??? Mad. 438 1907. it was held that Courts in this country are not precluded from taking the question of convenience into consideration in dealing with applications under cl. 12 for leave to sue. The learned Judges pointed out that there might be some doubt in England as to the extent to which the doctrine of forum convenience would be applied in an application for leave to serve the writ out of jurisdiction under R.S.C Or. 11 but there was no ruling to suggest that no regard should be had to that doctrine. They observed that in any event in this country it has never been held that the question of convenience is not a question which might be taken into consideration in dealing with applications under cl. 12. In that case the Defendant was a resident of Hyderabad outside British India and was therefore regarded as a non-resident foreigner. Further the application in that case was one for leave and not one for revocation of the leave already granted. Presumably the practice of the Madras High Court was for the Plaintiff to apply for leave on notice to the Defendant, for we find that the Defendant in that case appeared and opposed the granting of the leave. The application was dismissed by the Appeal Court on two grounds: (i) that the doctrine of forutn conveniens applied as the Defendant was a non-resident foreigner and the services for which remuneration had been claimed were rendered wholly at Hyderabad and (it) that in fact the promise to pay within jurisdiction which was the only part of the cause of action alleged to have arisen within jurisdiction was without consideration and void and therefore no part of the cause of action arose in Madras. If convenience is a test that may be applied it does not matter whether the Defendant is a foreigner or British subject, whether he resides in British India or elsewhere. For a British subject residing at a far away corner of British India it may be more inconvenient to come and defend a suit here than for a French subject at Chandernagore. It should be remembered, as pointed out by Lort-Williams, A.C.J, in Dibyaswari v. Lin Kumari . A.I.R [1941] Cal. ??? ??? p. 2???5. that In cl. 12 no distinction is made between a resident and a non-resident.” Further if convenience is a test to be applied at the time of granting or refusing leave there can be no reason why the same test should not be applied at the time when the’ Court is called upon to revoke the leave.

12. The case of Gobindlal Bansilal v. Bansilal Motilal . I.L.R 46 Bom. 249 1921. was concerned with leave sought for by a Defendant in a partition suit counter-claiming a partition of properties some of which were outside British India. At page 261, Macleod, G. J., observed as follows:

“I think, speaking for myself, that in the first instance, the court would have power to grant 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 hearing, and while there may be cases where a court would leave the matter to be decided at the hearing, there may be other cases where the court would decide the question against the party asking If or leave at once.”

13. 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.

14. In the case of Engineering Supplies, Ltd. v. Dhandhania, Rankin, C. J., affirmed the maintainability of an application for revoking the leave. He also adopted the definition of “cause of action” given in the English cases I have mentioned. It was however, an application where it was alleged that no part of the cause of action arose within jurisdiction. It was not concerned with the question as to how the Court should exercise its discretion in granting or refusing leave when only part of the cause of action arose within jurisdcition.

15. The case of Secretary of State v. Golabrai Palirant . I.L.R 59 Cal. 150 1931. laid down that questions of difficulty and importance should not be dealt with on an application to revoke the leave and to take the plaint off the file. There the application was based upon two grounds: (1) that the Court had no jurisdiction because the Secretary of State did not carry on business in Calcutta and no part of the cause of action arose here and (2) that the claim was barred by limitation. It was held that those, matters should be decided at the trial. This case therefore throws no light on the question as to how, when part of the cause of action arose here, this Court is to exercise its discretion under cl. 12.

16. In Harnathrai Binjraj v. Churamoni Shah . 37 C.W.N 1139 1933. such an application for revocation of leave was described as a novel one by the then Standing Counsel and was said by the learned Judge to be the first application of its kind that was known to him. If it was novel then, I must say that the novelty has worn off and these applications have now become quite frequent and familiar. In that case except for the assignment of the debt which was made in Calcutta, the rest of the cause of action had arisen outside Calcutta. Ameer Ali, J., affirmed that the assignment was a part of the cause of action and said that as far as he knew leave was invariably given in such cases. If the learned judge meant to decide that the only consideration in giving leave was to ascertain if any part of the cause of action arose within jurisdiction and that the only consideration on an application for revocation of leave was whether or not the assignment was or was not made bona fide and that questions of convenience were wholly irrelevant I respectfully differ from him. His Lordship distinguished the Madras case by saying that the observations on the test of convenience were obiter as it was also held in that case that no part of the cause of action arose in Madras. If a case is decided on 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 on 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.

17. In the year 1935 there was a crop of applications for revocation of leave under cl. 12. These applications were encouraged no doubt by the decision of Panckridge, J., in Kalooram Agar-walla v. Jonistha Lal Chakroberty . 40 C.W.N 161. 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 cl. 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 it the Court had a suspicion that the assignment was made in collusion and only for the purpose of creating jurisdiction in Calcutta. Reference was made to the fact mat the Defendants were land-holders in Manbhum, to the smallness of the amount of the claim and the simple nature of the issues and to the suspicious nature of the assignment. Panckridge, J., repelled the argument based on the freedom of choice of forum given to the Plaintiff under the Code by observing that he did not think that the fact that in a Mofussil Court there is no way of preventing unnecessary hardship in a case like this is a reason for allowing the discretionary jurisdiction of this Court to be used to inflict a similar hardship. With these last observations I respectfully agree. The learned Judge then observed that the Defendant should in such cases apply to Court at the first possible moment and that delay might prevent the success of the application. I again respectfully agree. The question of convenience was not pointedly mention-fed because in that case the parties had gone to trial and the point was raised at the hearing. The decision could not therefore be put on the ground of balance of convenience, for all the inconvenience had been suffered already. His Lordship therefore put it upon the ground of abuse inferred from the collusive assignment suspected to have been made only for the purpose of creating jurisdiction and held that it was a fit case where in exercise of discretion the Court should revoke the leave. It may be doubted whether the Court ought to act on mere suspicion and this judgment is open to criticism for having proceeded on this unsafe and treacherous ground. Further the learned Judge did not advert to the fact that the claim was founded on a negotiable instrument which might pass from hand to hand and his decision may therefore be criticised also for having overlooked this fact as indeed it has been criticised in subsequent cases on that ground alone.

18. The question of revocation of leave again came up before Panckridge, J. in Daulatram Rowatmull v. Maharaj Lal . 40 C.W.N 164 1935.. This time it was an application for revocation. Here also the assignment of the promissory note by en-dorsement was the only part of the cause of action which arose in Calcutta. In this case there was, however, no suspicion of collusion attending the assignment or finding that the assignment 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 foe 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.”

19. 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 cl. 12. Further on his Lordship disposed of the point based on negotiability by making a distinction between a maker who was a 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 balance of convenience. This part of the decision based on grounds of convenience might well have been supported had it been made after adverting to the fact that the subject-matter of the claim was based on a negotiable instrument. It is well to recognise that on account of its; negotiability a negotiable instrument has to be treated differently and that mere balance of convenience may have to give way to negotiability and not prevent a holder from enforcing it in a Count within whose jurisdiction it had been negotiated.

20. In Harnathrai Binraj v. Sew Prosad Sing . 40 C.W.N 165 1935. balance of convenience demanded revocation of leave but Panckridge, J. refused the application only on the ground of delay. I accept delay as a cogent reason for refusing an application for revocation of leave. But this decision might also have been based on the ground that the suit being based on an assignment of a promissory note mere convenience was not sufficient to revoke the leave. However in the result the leave was maintained.

21. After this case two cases came before Cunliffe, J. In each of them the Defendant had executed promissory notes in favour of a lady at her place of residence in Bhowanipore just outside the local limits of this Court. In each of those cases the promissory notes had been endorsed in a solicitor's office near the Court house. The endorsee filed two suits on the strength of the assignments in his favour after obtaining leave under cl. 12. The Defendant in both the cases did not apply for revocation of the leave but raised the point at the trial. Cunliffe, J., rejected the Defendant s contention, Both the Defendants appealed. The first appeal came before a Bench consisting of Costello and Panckridge, JJ., and was dismissed. The decisions of Cunliffe, J., or of Costello and Panckridge, JJ., in appeal therefrom have not been reported but are referred to in the judgment pf the learn ed Chief Justice in the second appeal which came before him and Costello, J. The judgment of Cunliffe, J., in the second case—Rai Radhika Mohon Roy Bahadur v. Bhobani Prosanna Lahiri . 40 C.W.N 717 1936. is reported. After referring to the three decisions of Panckridge, J., the learned Judge at p. 721 observed that he was not convinced that the assignment, which was admittedly for value, had been brought about simply for embarrassing the Defendant or for creating jurisdiction in this Court. He also held that on the facts of that case there was no hardship on the De fendant 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 strikng at the whole root of the law of negotiability as laid down not onlly in the Negotiable Instruments Act but in the time-honoured principles of the Law Merchant”.

22. 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 Bhobani Prosanna Lahiri v. Rai Radhica Bhusan Roy Bahadur. Both my Lord the Chief Justice and Costello, J., held that the assignment was an important part of the cause of action. Both of them adverted to the question of convenience and agreed with the trial Judge that on the facts of that case there was no hardship on the Defendant. It is quite clear to me from the judgments of the Court on appeal that considerations of convenience were regarded as material and necessary to be taken into account. Mr. Justice Costello approved of the observations of Cunliffe, J., as to negotiability but my Lord the Chief Justice mainly proceeded on the ground of convenience. This case shows that even in a case founded on a negotiable instrument the question of balance of convenience is not wholly immaterial.

23. In Ali Mahomed Ebrahim Shakoor v. Adam Hajee Peer Mohamed Essack* . I.L.R [1939] 2 Cal. 199., which was an application for revocation of leave, Sen, J., in a considered judgment declined to accede to the application. The learned Judge held that part of the cause of action did arise within jurisdiction. He distinguished the earlier cases on the ground that in those cases jurisdiction was sought to be created by a device, an element which was absent in the case before him. He then at p. 208 considered the question of convenience and observed as follows:—

“It may be that la this ease many of the witnesses are residents of Bantva. It may also be true that some documents are at Bantva. But I do not think that it can be said that if this suit were tried here it would be so inconvenient for the Defendant as to result in injustice being done”.

24. An appeal was taken from this decision but was dismissed. In his judgment reported in Hajee Adam Abdul Shakoor v. AH Mahomed Ebrahim Shakoor . I.L.R [1940] 1 Cal. 497., my Lord the Chief Justice dealt with the question of balance of convenience at p. 501. Inasmuch as, however, the question depended on evidence, his Lordship, adopting the decision of Rankin, C. J., in Secretary of State v. Golabrai Paliram held that those questions should be decided at the trial. The judgment in the appeal clearly shows that the question of balance of convenience is indeed very material in deciding whether the Court, in exercise of its discretion, should or should not revoke the leave already granted.

25. On a consideration of the legal principles established by the judicial decisions mentioned above it seems to me that balance of convenience is a material consideration in the exercise of discretion under cl. 12. From these judicial authorities the following propositions may, I think, be enunciated:

(a) that an application lies for revoking 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 juris diction, 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 favour of the Defendant, apply the doctrine of forum conveniens;

(h) that the Court may refuse leave or revoke leave on the ground of balance of convenience although there be no evidence of bad faith or abuse of process on the part of the Plaintiff;

(i) that if the cause of action is founded on an assignment within jurisdiction of a negotiable instrument, the Court will, in recognition of the principle of negotiability, insist on a far greater degree of balance of convenience in favour of the Defendant and will more readily give or maintain leave than in other cases of assignment;

(j) that if the Court is satisfied that the suit has been filed mala fide for the purpose of harassing or oppressing the Defendant or might result in injustice the Court should in all cases readily refuse leave or if leave has already been granted revoke the leave as a matter of course.

26. Bearing these principles in mind I now proceed to consider the facts. The plaint was presented, as I have said, on April 17, 1944. In the cause title of the plaint the Plaintiff is described as a merchant residing at No. 47, Zakariah Street. There are eight Defendants of whom five are minors. They are all described as residing at Nandaram Ka Katra in Bhiwani. The cause of action laid in the plaint is as follows:—

27. On April 11th, 1941, the Defendants were members of or interested in a Mitakshara joint family business carried on under the name of Parasram Moniram at Bhiwani. At that time the Defendant Madanlal was the karta of the Defendant's joint family. On accounts stated between Lachmi Debi widow of Harjimal deceased and the Defendants in their said business of Parasram Moniram in writing contained in a document dated April 11th, 1941, signed by Parasram Moniram by the pen of the Defendant Madanlal the sum of Rs. 9,500 was found due to Lachmi Debi by the Defendants who promised to pay the same with interest at 9 per cent. per mensem with yearly rests. Alternatively the Plaintiff states that on April 11th, 1941, the Defendants held in deposit the sum of Rs. 9,500 belonging to Lachmi Debi under an agreement to repay the same on demand with interest at the rate mentioned above. By an Indenture made in Calcutta on April 1st, 1944, Lachmi Debi for valuable consideration assigned the said sum with interest due and to be due to the Plaintiff. Notice of the assignment was given to the Defendants by Lachmi Debi and the Plaintiff by his solicitor's letter dated April 4th, 1944. By that letter the Defendants were called upon to pay up the amount to the Plaintiff at 47, Zakariah Street or to the solicitor's office at No. IB, Old Post Office Street both in the town of Calcutta. The Defendants having failed to pay any sum the sum of Rs. 9,500 for principal and Rs. 2,056-8-3 for interest aggregating to Rs. 11, 556-8-3 became and was due to the Plaintiff and the Plaintiff claimed a decree for that sum with further interest and costs.

28. [After considering the affidavits His Lordship proceeded.]

29. On the facts now before me it is impossible to hold that the assignment of the claim by Lachmi Debi was a mere collusive device to create jurisdiction in this Court. She had a claim against her own near relations. It is not denied that, apart from the claim which is disputed, she has no money of her own with which she can carry on any litigation. Apart from the Defendants themselves there does not appear to be anybody who would take the trouble of looking after her litigation which, being a pardanashin lady, she cannot possibly personally attend to. Further a disinclination to litigate against one's own relations is not unreasonable or unintelligible. Her position seems to me to be similar to the lady who had assigned the promissory notes to the Plaintiff in the two cases that came up for hearing before Cunliffe, J., which went up to the Appeal Court and to which I have already referred. She says—and in this she is confirmed by the Plaintiff—that she got Rs. 3,000 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 in-convenience 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 Defendant's 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 examine the attesting witnesses to establish the deed of assignment and passing of consideration and to examine Lachmi Debi to establish the claim all of which are disputed. The applicants or at least one of them may have to come here during the examination of these witnesses and at any rate at the time of the examination of Lachmi Debi. It may be inconvenient for the Defendants to come to Calcutta but it is equally difficult for the Plaintiff to leave his business and to go to Bhiwani. Therefore the balance of convenience, both as regards witnesses and parties, appears to be fairly even.

30. There is another fact which I cannot overlook. The accounts were adjusted on April 11th, 1941. The period of limitation for a suit on account stated in writing expired on April 11th, 1944. Easter Vacation intervened and this suit was filed on April 17th, 1941, on the re-opening of the Court. If leave is now revoked and the plaint is taken off the file serious questions will arise whether the period between April 17th, 1944, and to-day will be excluded under sec- 14 of the Limitation Act. Assuming this period is excluded the question will arise whether the whole of the period between April 11th, 1944 and April 17th, 1944, should be excluded. It is well known that the Easter Vacation of this Court is longer than the Easter Vacation of the Mofussil Courts. What about the period when the Mofussil Courts were open but this Court was closed for Easter? In one view of the matter the Plaintiff runs the risk of having his suit dismissed on the ground of limitation. That is an inconvenience which ought not to be overlooked. Finally, only two out of the eight Defendants have applied for revocation of the leave. If I accede to this application the leave will have to be revoked as against all the Defendants and the result will be that the Plaintiff will not be able to proceed with the suit and get his decree even as against the non-appearing Defendants and will have to run the risk of having his claim barred by limitation as against them also—a consequence not to be lightly allowed to occur.

31. Mr. Khaitan says that the Plaintiff must pay for having wrongfully attempted to harass and overreach the Defendants. This argument might have had some force had I been satisfied about the bad faith of the Plaintiff. In my opinion the facts before me do not reasonably justify such inference of bad faith and much less such as would be sufficient to penalise the Plaintiff even to the extent of depriving him of his entire claim.

32. On a consideration of all the facts and circumstances now before me I do not think that it would be right to revoke the leave already granted to the Plaintiff. Accordingly this application must be dismissed with costs. Certified for Counsel. The applicants will have a month's time to file their written statements.

Solicitors: Khaitan & Co. for the Plaintiff; P.D Himatsingka & Co. for the Defendant.

R.C