JUDGMENT Mishra, J.

The three defendants in C.S No. 175 of 1989 pending trial on the original side of this Court have preferred these appeals against the order of Srinivasan, J. under which order their respective applications for revocation of the leave to sue granted to the plaintiff in Application No. 1194 of 1989 have been dismissed.

2. The plaintiff has instituted the above mentioned suit for cancellation and setting aside the sale agreement dated 24-2-1989 filed as suit document No. 1 and for granting Injunction restraining the defendants from interfering with or disturbing the plaintiff's possession of the immovable property mentioned in the Schedule. The material facts as stated in the plaint presented to Court are as follows:—

(i) the plaintiff is the wife of one P.K Unni, a Hindu, aged 42 years permanently residing at No. 55, S.R.P Nagar, Saibaba Colony, Coimbatore-9 now temporarily staying at Madras;

(ii) the first defendant-appellant in O.S.A No. 151/89 is residing and carrying on business at No. 26-A, Sir C.P Ramaswamy Road, Madras within the jurisdiction of this Court;

(iii) the second defendant-appellant in O.S.A 166 of 1989 is a resident of 1/22 Kasthri Naickanpalayam, Vadavalli Post, Coimbatore 41;

(iv) the third defendant-appellant in O.S.A 165 of 1989 is a business concern owned and controlled by one S. Balasubramaniam. Its exact legal constitution is not known to the plaintiff. It has got its office at No. 1, Gopalapuram 2nd Street, Coimbatore.

(v) plaintiff's husband Unni lost heavily, almost about Rs. 40 lakhs or even more in the business of film production, although several persons owed money to the tune of several lakhs to him. He was unable to recover any amount ‘due to his soft nature’. His creditors harrassed Hum and even threatened with criminal action, especially by the 1st and 3rd defendants. The plaintiff's husband and third defendant had entered into an agreement dated 8-12-87 at Madras under which the former granted some rights over a movie ‘Kalaiyum Neeye Malayum Neeye,’ which he produced in partnership with one Sundararajan and Ponnuraj. This agreement led to claims and counter-claims between them. In October 1989, the plaintiff's husband issued a cash cheque in favour of the 3rd defendant which was for some other transaction. But when the third defendant presented the said cheque to South Indian Bank Ltd., Mylapore Branch Madras, on 20-1-1989, the same was returned unpaid. The third defendant filed a police complaint against the plaintiff's husband on that basis.

(vi) The third defendant's henchmen started creating problems at the plaintiff's house at Coimbatore pelting stones, threatening and abusing the plaintiff and her son for the reason of the claim of the third defendant not paid by her husband. The plaintiff's husband filed a police complaint at Coimbatore which however invoked no response.

(vii) A local Police Officer at Coimbatore by name Mr. Nizzammuddin at that juncture came to the plaintiff's house, threatned to arrest the entire family in the event of their not settling the claim of the 3rd defendant. The plaintiff's husband got anticipatory bail on 1-2-89 and 2.2.89 apprehending action by the Crime Branch Egmore, Madras and B2 Police Station, Coimbatore, in Crl. M.P Nos. 1225 and 1226 of 1989:

(viii) The first defendant also started threatening the plaintiff's husband holding him to ransom on the basis of the blank papers on which the plaintiff's husband had signed while borrowing monies. The third defendant and the 1st defendant started acting hand in gloves with each other, the plaintiff's husband filed I.P No. 13 of 1989 on the file of this Court and got himself adjudicated as insolvent on 10-2-89. He also obtained on 10-2-89 an order of interim protection against arrest with reference to any of his debts in Applicatiion No. 43 of 1989 in this Court.

(ix) In spite of the above orders, the third defendant's complaint against the plaintiff's husband was somehow taken on file by B-2 Police Station, Coimbatore, in Crime No. 327 of 1989. The plaintiff's husband was arrested on 18-2-89 at her Coimbatore house within the jurisdiction of B-2 Police Station. The plaintiff came to know of this only on 21-2-1989 since she had gone to Chittancheri, to her sister-in-law's house.

(x) On 21-2-1989, the plaintiff as well as her sister-in-law were arrested by Coimbatore Police at Chittlancheri, Palghat District, Kerala, at the house of the plaintiff's sister-in-law. This arrest was effected, for,

“it seems the Coimbatore Police has made a requisition to the Alathoor Police Station that the plaintiff and her sister-in-law were required to be taken by them for interrogation. Hence a Police Officer, or may be a constable, from Alathoor station had also accompanied the Coimbatore Police when the plaintiff and her sister-in-law were apprehended at Chittlancheri. The plaintiff and her sister in law were first taken to a private house, ‘a farm house’, at the outskirts of Coimbatore and detained there, where in the presence of Police Sub Inspector Mr. Madhavan, the third defendant, another person by name Prabhakaran, a local political leader, who had also accompanied the police, took signatures of the plaintiff on several blank papers under coercion and threats”.

On 21-2-1989 itself she and her sister-in-law were brought to B-3 Police Station and illegally detained there till evening of 23-2-89. Her son was also under illegal detention in B-3 Police Station during this period having been apprehended from Coimbatore on 21.2.89 During this period they were humiliated, threatened, nagged constantly. The third defendant with several men was present. One Srinivasulu, owner of Alankar Theatre, Coimbatore had also come on behalf of the 3rd defendant to settle the issue. They (the plaintiff, her sister-in-law and her son) were warned that unless they signed proper documents conveying the plaintiff's house to the third defendant, series of serious criminal cases would be filed against them and they would be in prison for the rest of their lives.

(xi) In the meantime on 20-2-1989, the plaintiff's husband had been remanded to Central Prison, Coimbatore, and released on bail only in the afternoon of 23-2-1989. From the Jail itself he was brought straight to B3 Police Station and from there the plaintiff, her husband, son and sister-in-law were taken to the office of the Deputy Superintendent of Police at Coimbatore. The first defendant was present at the office of the Deputy Superintendent of Police, Coimbatore, along with 2nd and 3rd defendants besides Prabhakaran and Srinivasalu.

“The D.S.P threatened and warned that unless the plaintiff and her husband agreed to sell the house and pay off 4.25 lakhs to the 3rd defendant and Rs. 3.25 lakhs to the 1st defendant, they would not be let free. At about midnight on 23-2-1989 stamp papers were brought by the 1st defendant's servant and a sale agreement was got typed on it as if the plaintiff agreed to sell her house for Rs. 9 lakhs to the 1st and 2nd defendants and had received on that day Rs. 7,50,000/- as advance in cash from them and handed over possession of the property to them.”

3. Asserting the facts as noted above, the plaintiff has alleged that the said amount of Rs. 7,50,000/- was never paid,

“Instead the 1st and 2nd defendants gave each receipts to the plaintiff's husband for Rs. 3,25,000/- and Rs. 4,25,000/- respectively in full discharge of their claims against the plaintiff's husband”.

The suit was filed on the original side of this Court with a petition for leave to sue pleading inter alia that one of the defendants (defendant No. 1) resided and carried on business within the jurisdiction of this court, but since Clause 12 of the Letters Patent did not expressly provide for a case where there are more than one defendants. S. 20, C.P.C alone would apply and that even otherwise a substantial part of cause of action as alleged in the plaint arose within the jurisdiction of this Court. The plaintiff also alleged that claims and counter-claims arose in pursuance of the agreement between the third defendant and her husband and in settlement and discharge of which the suit document was purported to nave been executed at Coimbatore and that the said agreement came to be executed at Madras and that a cheque for Rs. 2 lakhs was given at Madras which cheque had been presented by the 3rd defendant for encashment to South Indian Bank Ltd., Mylapore, Madras, followed by her husband applying and being declared as insolvent on 10-2-1989 in I.P No. 13 of 1989 by this Court. This Court granted leave and accordingly defendants were put on notice of the lodgment of the suit. They applied for revocation of the leave to sue contending (1) No part of the cause of action arose within the jurisdiction of this Court, and (ii) S. 20 of the Code of Civil Procedure is not applicable to a suit instituted under Clause 12 of the Letters Patent of this Court. They also alternatively contended that the suit was one for land situated in Coimbatore and consequently this court could not entertain this suit.

4. The learned single Judge answered the three contentions holding (i) one of the grounds on which the agreement dated 24-2-1989 is attacked is that the object thereof is to defeat the law of insolvency and therefore, it is illegal and unenforceable and hence the insolvency of the plaintiffs husband is a fact which if traversed will be necessary to be proved by the plaintiff in order to entitle the plaintiff to a judgment of this court. Therefore, it is undoubtedly a part of the cause of action.

(ii) The question as to whether on principle S. 20 of the Code of Civil Procedure would be read in Clause 12 of the Letter Patent of this court or independent of it, and a suit would be maintainable before this court if one of the defendants, if there are more than one, is residing within the jurisdiction of this court, is of considerable importance which should not be examined at the stage of deciding the question as to whether to grant the leave or to revoke the leave granted.

(iii) It is not a suit for land situated in Coimbatore and consequently the contention that the suit is not maintainable is not acceptable.

5. The Civil jurisdiction of this Court having its local limits as described in Clause 11 of the amended Letters Patent, by the Madras High Court (Jurisdictional Limits) Amendment Act, 1927 has got jurisdiction as to suit as ordained in Clause 22 of the Letters Patent “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 section 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”. The words in this Clause of the Letters Patent do not appear to incorporate a provision like one to be found in S. 20(b) of the Code of Civil Procedure. S. 16 of the Code of Civil Procedure provided that ordinarily all suits have to be instituted in the Court within the local limits of whose jurisdiction the property is situate. The other provisions in the Code however specify for the suits for immovable property situate within the jurisdiction of different courts, place of institution of suit where local limits of jurisdiction of courts are uncertain, suits for compensation for wrongs to person or movables and other suits to be instituted where defendants reside or cause of action arises the last being a prescription in S. 20 of the Code having Clause (b) above-mentioned which runs as follows:

“Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business or personally work for gain, as aforesaid, acquiesce in such institution or (c) the cause of action, wholly or in part, arises.”

6. 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 of the land or other immovable property 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 Ordinary 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 Ss. 16, 17 and 20, by S. 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 commencement of the suit dwelling or carrying on business or personally working for gain within such territory. We do not have much guidance from the precedents of this court in the matter that we have to resolve in this case. If there is one defendant in a suit and he resides within the local limits of the jurisdiction of this court, the suit would be maintainable and if there are more than one defendant in the suit and all of them are found residing within the local limits of the jurisdiction of this court, the suit would still be maintainable but in a case where there are more than one defendant in the suit, but only one or some of them are found residing within the local limits of the jurisdiction of the court and another of some of them are not found residing within the local limits of the jurisdiction of the court, is the suit maintainable or not and whether in such a case the leave would be granted or not and if granted it could be revoked for the defect of jurisdiction or not? Srinivasan, J. has referred to a Bench judgment of this Court reported in P.H Parameswara Pattar v. Vivatha Mahadevi 1922 M.W.N 641 in which a broad reference has been made to what may be found in the four corners of Clause 12 of the Letters Patent of this court. One of the Judges constituting the Division Bench has observed:

“It is urged that, as some of the defendants are within the, jurisdiction, this court has right to bring before it in this suit defendants not within jurisdiction. This is a right which, under S. 20 of the Civil Procedure Code is possessed by courts in the mofussil. The application of S. 20 to this court in the exercise of its original jurisdiction is expressly excluded by S. 120, C.P.C and, if we have the power, it must be found within the four corners of S. 12 of the amended Letters Patent. The words are “or if the defendant at the time of the commencement of the suit shall dwell or carry on business within such limits.” The principal defendant does not dwell here. The section does not say. “If the defendant, or if there are more than one defendants any of them, shall dwell or carry on business within such limits” and, in my view I cannot read the provisions of the amended Letters Patent conferring jurisdiction upon this court in case where one or more of the several defendants reside within jurisdiction. The point is free from authority except the case in the Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed Hadjee Joosub, and Rahima Bye v. Hadjee Mohomed Joshee Joosub 13 Bengal Law Reporter 91 which I read as affirming the view I am now expressing although it has been read by a learned author Mr. Broughton as giving the High Courts, power to grant leave to sue in such cases, However in the view I have expressed in this case, namely, that on balance of convenience this case should be brought in Malabar and not here, that point too does not directly arise for decision.”

The other learned Judge when confronted with this, has answered by saying

“As to the question whether we should give leave to bring the whole action in this court merely because most of the defendants reside here while the 5th defendant does not, the hearing and interpretation of Clause 12 of the Letters Patent on this point is a matter of some difficulty and I consider that it would be better not to say more on a point which is not necessary for the decision of the case, since I hold that, even if the, court has the power, we should not in this case exercise it to give leave to the plaintiff to sue.”

In the Division Bench thus both the learned Judges found that this question had not directly arisen for decision and although one of the learned Judges entered into the question and gave some answer, the other learned Judge clearly said, that interpretation of Clause 12 of the Letters Patent on this point was a matter of some difficulty and it would be better not to say more on a point which was not necessary for the decision of the sum case. The observations as above have rendered the said judgment on this an point obiter dicta and is thus not a binding authority. A learned single Judge of the Calcutta High Court however, has in a case reported in Bengal A.S.Y Corporation v. Corporation of Calcutta gone into this question and noticed the argument for and against e two possible views, one in favour of the jurisdiction and the other against it. Incidently Clause 12 of the Letter Patent of the Calcutta High Court is similarly worded as Clause 12 of this court, and the contentions raised before us on the question as to what meaning we should give to the word defendant, are similar to the contentions before the learned Judge of the Calcutta High Court. Mallick, J. has noted the contentions and stated as follows:—

“It is contended by Mr. Das that even if the instant suit cannot be treated for the purpose of jurisdiction as a suit for land and must be treated as ‘other suit’, this Court has no jurisdiction to entertain it, because, out of two defendants, one is within and one is outside jurisdiction. It has been conceded by Mr. Roy that so far as the State of West Bengal is concerned, according to the present state of Authorities, it must be held by this court that the Government does not carry on business within jurisdiction and on that footing Mr. Roy submitted to the dismissal of the suit as against the State. Mr. Das's arguments is that if jurisdiction is to be invoked on the ground that the defendant resides or carries on business within jurisdiction and there are more defendants than one, all must reside or carry on business within jurisdiction of the defendants, if there is one who resides or carries on business or personaly works for gain outside jurisdiction, then the Court under Clause 12 of the Letters Patent is not competent to entertain the suit and the suit is liable to be dismissed, not merely against the outside defendant but also against the defendant who resides or carries on business within jurisdiction.

In Mr. Das submission defendant in this Clause means all the defendants where there is more than one defendant. It is not sufficient that one of the defendants dwells or carries on business within jurisdiction. It is submitted that the language used in Clause 12 is significant, namely ‘at the time of the commencement of the suit’ and also ‘receive, try and determine suits’ so that if there are more defendants than one when the suit is filed and one of them is outside jurisdiction, the Court is not empowered not only to try and determine it but also to receive it. It follows that if at the date of the presentation of the plaint the Court had no jurisdiction to receive, try and determine the suit because of one of the defendants not residing or carrying on business or personally working for gain within jurisdiction, then this initial defect cannot be cured by abandoning the suit against much outside defendant. Mr. Das relies on the case of Hadjee Ismail v. Hadjee Mohammed 13 Beg. LR 91. in support of his argument that the defendant in clause 12 means all the defendants if there are more than one. Mr. Das, emphasised that this old decision of this Court is held as authortitative even now and has been invariably followed by all Courts and has never been dissented from. Mr. Das has also relied on the decision of Sen, J. in the case of AIR 1942 Cal. 496 and noticed before in support of his argument that the important question to consider as to whether the Court has jurisdiction to entertain the suit is-was the suit as framed entertainable when the suit was filed? On the strength of this authority. Mr. Das argued that if the Court was not competent to entertain the suit by reason of the fact that one of the defendants was outside jurisdiction at the time when the suit was filed or that there are paragraphs in the plaint of reliefs claimed in the plaint when originally filed which make it a suit for land and the land is outside jurisdiction, then the Court cannot be clothed with jurisdiction by removing the offending defendant or the offending paragraph and prayers in the plaint. This is not permissible because in determining whether the Court has jurisdiction the point of time to be taken into consideration is the time of the institution of the suit and not the time when the suit is being heard. The language used in Clause 12 is that the Court is empowered ‘to receive, try and determine the suit’ and the word ‘receive’ used in Clause 12 of the Letters Patent cannot be ignored. So also the words are that at the date of the commencement of the suit the defendants reside or carry on business within jurisdiction. It seems to me that the proposition submitted by Mr. Das for acceptance is too broadly stated. On a correct construction of Cl. 12 of the Letters Patent, not all suits in which there are more than one defendant, 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. It stands after the claim has been abandoned as against some of the defendant's 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 as against the other. The liability being joint, either the decree must be against both or against none. This is Hadjee's case 13 Beng. L.R 91 relied on by Mr. Das. There was a single cause of action and joint liability and all the defendants were necessary parties. The court held that all the defendants must be within jurisdiction in order that the court may receive, try and determine, the suit. It does not follow that if the cause of action is joint and several or if there are different causes of action against different defendants, the same rule would apply as in Haji's case. In such cases, the liabilities against different defendants being different, the suit must be treated as different suits rolled into one and if the suit fails as against one for lack of jurisdiction, there is no reason why the suit against the others should also fail, even though the Court is fully clothed with jurisdiction to try the suit as against the other defendants. Mr. Subimal Roy cited and strongly relied on the case of Gokuldas v. Chaganlal decided by the Appeal Court and reported in A.I.R 1928 Cal 887. In this suit the plaintiff instituted a suit against five defendants for damages for wrongful conversion of a house at Punjab in which file plaintiff had a share. All the defendants except one were outside jurisdiction. The suit was dismissed in the trial court on the ground of jurisdiction. The plaintiff in the Appeal Court abandoned his case against all outside defendants and wanted to proceed against the only defendant who resided or carried on business within jurisdiction. It was submitted on the authority of Haji's case, that all the defendants not being within the jurisdiction of the court the court had no jurisdiction and the suit must be dismissed against all including the defendants who resided within the jurisdiction. This submission was overruled. Buckland, J. pointed out in the opening paragraph of his judgment the difference between Haji's case and the case under consideration in the following terms. (page 889)

‘A suit against several defendants all of whom are necessary for the determination of the questions which have to be decided in the suit must be distinguished from a suit against several defendants in which all the defendants are not necessary for the purpose of giving the plaintiff the relief which he prays and against any one or more of whom it is open to the plaintiffs at his option to proceed. The case of 13 Beng. L.R 91 was a case of the former description. Overruling the decision of Page, J. who dismissed suit on the ground of jurisdiction, His Lordship observed at p. 890

“But, on the question of law, treating this suit as a suit for damages for conversion in which the plaintiffs have proceeded eventually exclusively against one of the tort-feasors, I am of opinion that the judgment of the learned Judge cannot be sustained and the appeal must be allowed and the suit sent back for trial, as my learned brother has directed.”

“This decision negatives both the propositions contended by Mr. Das, namely (1) that when jurisdiction of the Court is invoked on the ground of residence or place of business, all the defendants must have residence or place of business within the jurisdiction of this court and (2) that by abandoning the claim against some defendants, the initial defect of the suit as jurisdiction cannot be cured”.

8. Before appreciating the reason of Mallick, J.'s observations as above, we may note that the contentions noted by him had arisen in a suit in which certain defendants were sued as joint tort-feasors having done wrong to the plaintiff's right to property. It was stated that their liability was joint as well as several. The court had permitted abandonment of claim against other defendants, but allowed the suit to proceed against the corporation of Calcutta, one or the defendants. Thus, going by the judgment in the case of Hajee Ismail v. Hadjee Mohammed if there are more than one defendant and not all of them reside or carry on business within jurisdiction, the court will have to see whether the cause of action is only joint or is also several and if it is only joint then to refuse to entertain the suit. It was perhaps bearing this in mind that in the case of Parameswara Pattar2 the view was expressed that this court may not have the right to bring before it defendants who are not within jurisdiction, and allow the suit against such a defendant to proceed.

9. Srinivasan, J. has taken notice of the commentary on the Civil Procedure Code (X of 1877) by Broughton in which it is stated:—

“The word ‘defendant’ includes the plural. So that if one defendant dwells within the jurisdiction and another does not, the suit cannot be maintained under that head or jurisdiction without an order of court.”

After referring Hadjee Ismail Hadjee Hubbeeb's case the Commentary proceeds:— “This order may now be made either under this clause or under S. 17 of the Code; but if the defendant who dwells within the jurisdiction consents, no order is necessary.” The learned Judge has commented:

“No doubt, the applicability of S. 17 of the Code has now been excluded by S. 120 of the present Code. The reference to the case in 13 B.L.R 91 is certainly erroneous. It was not decided in that case that if one of the defendants resides or carries on business within the jurisdiction, then suit could not be instituted with the leave of the Court. In fact, a contrary view was taken by the Division Bench of the Bengal High Court”. “As laid down in Secretary of State v. Colabrai Paliram (A.I.R 1932 Calcutta 146) questions of difficulty and importance should not be dealt with by an application to revoke the leave under clause 12, Letter Patent and to take the plaint off the file and the proper course in such cases is to dismiss the application and to direct that the case do proceed on all points in the usual way and hence I am leaving open that question to be decided, if raised by the parties, in the suit itself’.

10. We would have preferred this course and accordingly opined that since this question is not free from difficulty, the parties may raise it in the trial and if necessary invite a judgment on this question besides other questions on merits. We shall fail however in meeting the challenge to the jurisdiction of this court on this account, if we do not at this stage examine how residence and/or carrying on business etc. of a defendant or defendants if there are more than one, within the jurisdiction of this court, should be viewed for the purposes of cause of action. In what sense the words cause of action are used in Cl. 12 of the Letters Patent? Learned counsel for the appellant has brought to our notice various definitions of the term ‘cause of action’ and contended that it is used in different senses depending upon the subject to which it is applied or the object which it is to sub-serve. According to him, it has a technical and primary definition, although in practice it has also acquired a much wider secondary and colloquial meaning. Generally accepted meaning however in a factual sense, is the fact or facts which give raise to or entitle a party to sustain an action or as referring to the pleading and proof, the facts alleged, or necessary to be alleged and proved to sustain the action. It is however always the whole or bundle of the facts and not the one or two to the exclusion of other facts which go and stand together. In this behalf, he has drawn our attention to a judgment of the Bombay High Court in Baroda Oil Cakes Traders v. Parshottam: A Division Bench of the Bombay High Court has first referred to the observations of the Courts in England to point out that cause of action has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeded and every fact which the defendant has a right to traverse and to state the law as follows:—

“It is however, important to bear in mind that the bundle of facts which constitute the cause of action in a civil suit does not and is not intended to comprise every fact which may be proved in evidence. It is only material facts which must be proved by the plaintiff before he can obtain a decree that constitute the cause of action. Facts which the plaintiff may a allege incidentally and facts which may be brought in evidence as res gestae would not necessarily constitute a part of the cause of action. The distinction between facts which are relevant and material and those that are incidental and material is sometimes not easy to be down, but the said distinction is nevertheless important for the purpose of deciding which facts constitute the cause of action and which are not included in it”.

A Full Bench of this Court in Re. Lakshminarayana Chettiar has defined cause of action as a fact which if traversed would be necessary for the plaintiff to prove in order to entitle him to the judgment of the court. The Supreme Court in India in the case of State of Rajasthan v. Swaika Properties A.I.R 1985 S.C 1289 has defined cause of action to mean every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court, and added 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.

11. There can be hardly any dispute to such a wise approach to understand the expression cause of acton’ and we see no reason to deviate. The facts relevant to decide as to what in the instant case constituted the cause of action have already been slated by us. According to the plaintiff, the first defendant who resided in Madras had been insisting for payment of certain amount of money allegedly advanced by him to her husband. The third defendant had transacted some business in the city of Madras with her husband and had entered into an agreement on 8-12-87 at Madras with him under which agreement the latter had granted to him some rights in the movie ‘Kalaiyum Neeye Malaiyum Neeye’ which he has produced in partnership with one R. Sundararajan and R. Ponnuraj. This agreement had given rise to certain claims and counter claims between the 3rd defendant and the plaintiff's husband. The plaintiff's husband has issued a cash cheque, in October 1988 in favour of the 3rd defendant at Madras for some transaction. The 3rd defendant presented and said cheque to South Indian Bank Ltd., Mylapore Branch Madras, on 28-1-89. The same, however was returned. He then lodged a complaint before the police against the husband of the plaintiff. Then followed the acts of putting pressure upon the plaintiff's husband, the plaintiff, her sister-in-law and her son in which certain policemen also got involved. Since the initial contract had been at Madras, cash cheque had been issued at Madras and presented at Mylapore Branch of the South Indian Bank at Madras, one can think that all subsequent action have taken place in the city of Madras. It was however not so. The scene shifted to Coimbatore in the state of Tamil Nadu and to Chittalancherry in the State of Kerala. After this, the last act was performed at Coimbatore in which, according to the plaintiff, at the office of a Deputy Superintendent of Police, the first, second and third defendants along with some other persons threatened and warned her husband, her son and her sister-in-law and the Dy. S.P stated that unless the plaintiff, and her husband agreed to sell the house and pay of Rs. 4.25 lakhs to the 3rd defendant and Rs. 3.25 lakhs to the first defendant they would not be let free. Stamp papers were brought by the first defendant's servant and a sale agreement was got typed on them as if the plaintiff agreed to sell her house for Rs. 9 lakhs to the 1st and 2nd defendants and had received on that day Rs. 7.50 lakhs as advance in cash from them and had handed over possession of the property to them. What followed thereafter, however, gives credence to the case of the plaintiff, if it is true and is established in course of trial, that it was with respect to the transaction in Madras in which her husband and the 3rd defendants were involved and that in the sale agreement an amount of Rs. 4.25 lakhs was introduced besides Rs. 3.25 lakhs which was the claim of the first defendant, to make out the advance amount of money to Rs. 7.5 lakhs which was the amount shown to have been paid in advance to the plaintiff in the impugned document. No cash money, according to the plaintiff, was paid to her by the 1st and 2nd defendants towards any advance for the transfer of the house property. On that very day, the 1st and 3rd defendant gave cash receipts to the plaintiff's husband for Rs. 3.25 lakhs and Rs. 4.25 lakhs respectively, in full discharge of their claims against him. The name of the 2nd defendant although found a mention in the agreement, he thus stood as a nominee or in place of the 3rd defendant. Both the 1st and 2nd defendants joined as intending purchasers who obtained delivery of possession of the suit property because they had their separate claim to be realised from the plaintiff's husband. What is then the cause of action? The alleged impugned agreement dated 21-2-89 or the alleged demand of defendants 1 and 3 for which they intended to proceed against the plaintiff's husband but when they found that he had already been adjudicated as an insolvent and it was not legal to proceed against the plaintiff's husband, they resorted to all sort of coercive activities finally obtaining a document of agreement of sale is the names of 1st and 2nd defendants at Coimbatore. This is what the plaintiff has alleged. Thus the plaintiffs without traversing these facts will not be able to get any judgment on the validity of the agreement of sale. This undoubtedly is a matter in issue in the suit and one of the material facts to be decided, because for any order declaring that agreement as void it will be difficult to ignore this part of the case for deciding the main contention of the plaintiff.

12. Viewed in this perspective the cause of action for the present Suit can easily be traced in the demands of the 3rd defendant which have to be traced to the agreement dated 8-12-87 between him and the husband of the plaintiff at Madras and subsequent transactions between the plaintiff husband and the 3rd defendant at Madras leading to his having been adjudicated insolvent.

13. Defendant No. 1 who has been residing and carrying on business in the city of Madras cannot say that there is no cause of action to the plaintiff to sue him in this Court, so far as he is concerned, his residence and carrying on business in Madras is conclusive. The residence and cause of action are inseparable in this case, since the cause of action against the 1st and 3rd defendants as well as the 2nd defendants, who, it appears, did not figure anywhere until he suddenly found a place in the impugned agreement, together stand or fall. For such inseparable cause of action, it is fair, as the learned single Judge has held, to say that institution of a suit against the 2nd defendant also in this Court with the leave of the court is not vitiated.

14. We find ourself thus of the view that it shall always be in relation to the subject matter of the dispute that the court will decide whether to non-suit the plaintiff for the reason that one or some of the defendants are residing or carrying on business within the jurisdiction of this court, but some are not and if cause of action is found common to all of them by dint of residence of one or some of the defendants or otherwise, it would be enough to hold that since cause of action if not wholly but in part has arisen within the jurisdiction of the court the suit is maintainable.

15. Independent of this aspect of the residence and or dwelling or doing business within the jurisdiction of the court of one or some of the defendants, this is a case, in our view, in which the learned single Judge has committed no error, for, even if we forget about the residence or business of the 1st defendant in the city of Madras, there are compelling substantial materials on record to conclude that if not whole, part of the cause of action has arisen within the jurisdiction of this court. We have already found that without traversing the facts leading to the transactions in the city of Madras between the plaintiff's husband and the 3rd defendant, it will not be possible to find the real nature of the transaction at the time of the execution of the impugned agreement.

16. The other finding recorded by the learned single Judge that this is not a suit for land has not been challenged before us. We find no merit in these appeals. The appeals are accordingly dismissed. No costs.

RR/KA/VCS