Sudhi Ranjan Das, J.

1. This is an application for revocation of the leavegranted to the plaintiff under Cl. 12 of the Letters Patent to institute thissuit in this Court.

2. This suit was filed with leave of this Court, on 17thApril 1944, by an assignee of a claim founded on account stated in writing. Thewrit of summons was served on the defendants in or about the first week of May1944 at Bhiwani where they ordinarily reside. Two of the defendants who are theapplicants before me have entered appearance and the rest of the defendantshave not done so. On 5th June 1944 i.e., before the time to file their writtenstatement expired the applicants took out the present summons.

3. That this Court has jurisdiction in a proper case, torevoke the leave has not been questioned by Mr. P.C. Ghose who appears for theplaintiff. The main and indeed the sole controversy has centred round onequestion namely under what circumstances and on what grounds ought the Court toaccede to such an application. I am indeed, grateful to Learned Counsel on bothsides for the very great assistance they have given me in deciding thisquestion.

4. The first ground urged by Mr. Khaitan was that in realityno part of the cause of action arose within the jurisdiction of this Court. Theplaintiff was only an assignee of Lachmi Debis claim. Lachmi Debi had acomplete cause of action upon accounts stated and the whole of that cause ofaction arose outside Calcutta. She could sue at once. She assigned her rightsto the plaintiff. The assignment operated as a transfer to the plaintiff of thesame old cause of action as Lachmi Debi had. The assignment did not bring intobeing any new cause of action or any extension of the old cause of action. Theplaintiff has filed this suit to enforce that old cause of action of LachmiDebi the whole of which arose outside the jurisdiction of this Court andtherefore leave should not have been granted. That the assignment does notoperate as a new cause of action is clear from the fact that it gives no freshperiod of limitation. Time began to run against Lachmi Debi from the date whenthe accounts were adjusted. The transfer of the claim by her did not give anyfresh period of limitation to the transferee, the plaintiff. Mr. Khaitan drewmy attention to the observations of Lord Kingsdown in Prannath Roy Chowdhury v.Rookea Begum, 7 M.I.A. 323 at p. 353 : (1 Sar. 692 (P.C.)), which was appliedby Mookherjee J., in Monendra Nath Biswas v. Shamsunnessa Khatun, 21 C.L.J. 157: (A.I.R. 1915 Cal. 629), namely that "a cause of action is not prolongedby mere transfer of title." On analogy Mr. Khaitan argued that if transferdid not operate as a prolongation of the cause of action and did not affect thebar of limitation it should not also affect the question of jurisdiction. Inother words, according to Mr. Khaitan the transfer could not operate as aprolongation of the cause of action either as to time or as to space and thetransferee should be limited, in the matter of choice of forum, to the Court orCourts in which the transferor could file the suit as he is limited by theperiod of limitation by which the assignor was limited. The argument isattractive but it appears to me that different considerations govern the twoquestions of limitation and jurisdiction. Limitation is a statutory bar imposedon a plaintiff, be he the original owner (if I may use the expression) of thecause of action or a transferee from him. By statute the time is made to runfrom a definite point of time and a definite period is fixed for enforcing aparticular cause of action irrespective of the person who figures as theplaintiff. It is, therefore, quite intelligible that a cause of action is not,as regards time, prolonged by the transfer. There is no such statutoryprovision which confines jurisdiction for all times to come to any particular Court.Further, Mr. Khaitans argument proceeded on the assumption that the expression"cause of action" has the same fixed meaning in every case. That isclearly not the case. First of all the Limitation Act does not create any causeof action. It only prescribes time limits for taking legal proceedings by wayof application, suit or appeal to enforce or protect different rights. TheLimitation Act assumes that the right is complete and enforceable andprescribes a period within which proceedings must be taken to enforce thatright. This period begins to run from the time the right accrues. If we callthe right a "cause of action" it is clear that this "cause ofaction" for the purposes of the Limitation Act must be anterior to the terminusa quo fixed by the Act. This "cause of action" may or may not hetransferable to another person. Thus if it is a mere right to sue e.g., a claimfor damages only, it will not be transferable. If it is transferable and istransferred the transferee gets the cause of action and may enforce it bysuitor otherwise. But the time for enforcing it is fixed by the statute andsuch time continues to run and must be computed from the date the "causeof action" was complete. This bar of limitation applies to the person whoseeks to enforce it, be he the person in whose favour the "cause ofaction" originally accrued or a transferee from him. It is in this sensethat a "cause of action" is not prolonged by transfer. But theexpression "cause of action" for the purposes of jurisdiction of theCourt is an expression of wider import. Thus in Cooke v. Gill, (1873) 8 C.P.107 at page 116 : (42 L.J.C.P. 98), Brett J. defined "cause ofaction" to mean:

every fact which is material to be proved to entitle theplaintiff to succeed - every fact which the defendant would have a right totraverse.

This definition has been approved in Read v. Brown, (1888)22 Q.B.D. 128 : (58 L.J.Q.B. 120). Lord Esher M.R. re-stated this definition atpage 131 as meaning:

every fact which it would be necessary for the plaintiff toprove, if traversed, in order to support his right to the judgment of theCourt. It does not comprise every piece of evidence which is necessary to proveeach fact but every fact which is necessary to be proved.

At page 132 Fry L.J. observed:

Everything which, if not proved, gives the defendant animmediate right to judgment must be part of the cause of action.

Adopting this definition, it was held in that case thatassignment was a part of the cause of action of the assignee for the assignmentmust be proved to entitle the assignee to the judgment of the Court. It hasreference to and embraces all facts giving the right to a particular person tofigure as a plaintiff and make the claim. Following two earlier cases of thisCourt where the expression "cause of action" as used in Cl. 12 wasdefined as meaning "the entire bundle of facts which would of necessity beproved" and "all things necessary to give a right of action."Hill J. in Roghoonath Misser v. Gobindnarain, 22 Cal. 451 [LQ/CalHC/1895/1] , held that the rightof action of a plaintiff suing as endorser of a hundi is directly dependent onthe endorsement which, accordingly on the above principles, must form part ofthe cause of action. In Manepalli Mangamma v. Manepalli Sathiraju, 37 I.C. 681: (A.I.R. 1917 Mad. 221) and Naraindas and Co. v. Chandiram and Co., A.I.R.1928 Sind 86 : (22 S.L.R. 305), it has been held that an endorsement on a hundiis 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 wasadopted in Engineering Supplies Ltd. v. Dhandhania and Co., 58 Cal. 539 [LQ/CalHC/1930/175] :(: A.I.R. 1931 Cal. 659) [LQ/CalHC/1930/175] and Bhabani Prasanna Lahiri v. RaiRadhica Bhusan Roy, 40 C.W.N. 1349, both of which are binding on me and innumerous other cases of this Court. Alike therefore on principle and onauthority it is now clearly and firmly established that for the purposes ofjurisdiction under Cl. 12 of the Letters Patent in a suit by an assignee theassignment must be regarded as a part, and indeed a very important part, of thecause of action, and it must be held that in the case now before me a part ofthe cause of action arose within the jurisdiction of this Court.

5. Mr. Khaitans nest line of argument was that assumingthat a part of the cause of action arose within jurisdiction yet the Court hada perfect and unfettered discretion in a proper case to revoke the leave. Mr.Khaitan contended that this Court shall revoke the leave if it were satisfiedthat the suit had been filed in this Court to harass the defendant and was anabuse of the process of this Court. If the abuse was clearly demonstrated theCourt would as a matter of course revoke the leave. If the Court had strongsuspicion that the suit was an abuse of the process of the Court it should alsorevoke the leave. Even if there were no abuse the Court might revoke the leaveon the ground of balance of convenience only. Balance of convenience, accordingto Mr. Khaitan, is a legitimate and powerful consideration in all cases.

6. Mr. Ghose on the other hand argued that mere balance ofconvenience was no ground for revoking the leave already granted under Cl. 12.The fact must disclose that the proceedings were an abuse of the process of theCourt and might result in a denial of justice. He referred me to S. 20 of theCode and contended that it must be assumed that the provisions of the Code werejust and equitable. There the inconvenience of the defendant was not taken intoaccount at all. The plaintiff was free to choose his own forum. There was nocase under the Code where a suit had been stayed on the mere ground of balanceof convenience. He contended that the Court should follow on an application forrevocation the same principles as it follows on an application for stay.Balance of convenience was not enough. There must be evidence of bad faith orill will or abuse before the Court should grant a stay of suit or revocation ofleave. He referred me to the cases of In re Nortons Settlement, (1908) 1 Ch.471; Logan v. Bank of Scotland, (1906) 1 K.B. 141 : (75 L.J.K.B. 218) andJethabhai Versey and Co. v. Amarchand Madhavji and Co., :A.I.R. 1924 Bom. 90 [LQ/BomHC/1923/110] : 25 Bom. L.R. 713. He next argued that in any event thefacts on which the balance of convenience or the alleged abuse depended were indispute and in cases of doubt and difficulty the Court should not proceed torevoke the leave on a summary application like the one now before me.

7. Mr. Khaitan replied that the principles adopted by theCourts in cases governed by the Code should not be applied to a case governedby the Letters Patent. Under the Code the plaintiff had in the first instancean unfettered right to file his suit in any Court within whose jurisdiction anypart of the cause of action arose. Having given this unfettered right to theplaintiff the Code did not interfere with the suit unless the Court wassatisfied that it was an abuse of the process of the Court. Safeguards againstabuse were provided by way of stay or transfer of the suit to a more convenientCourt. 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 arosewithin jurisdiction the plaintiff had to have the leave of the Court before hecould file his suit in this Court. The matter, therefore, rested on thediscretion of this Court and that being so the Court was entitled to take allcircumstances into consideration including the balance of convenience and wasnot limited in the exercise of this discretion, only to cases involving badfaith or abuse of the process of the Court or the possibility of failure ofjustice.

8. In our Court the practice is to present the plaint beforethe Master with a note that leave under Cl. 12 is asked for. The plaint isscrutinised by the Master. Formerly, the Master used to give the leave buteventually in 1907 it was held that the giving of leave was not a mereministerial act but was a judicial act which must be done by the Judge andcould not be delegated to the Master. Thenceforth the Master after scrutinisingthe plaint places it before the Judge. The Judge is supposed to consider thematter and use his discretion. In practice, however, the Judge gives leave as amatter of course if the Master finds that a part of the cause of action arosein Calcutta. Although in practice it has become a mechanical process yet itcannot be denied that in law the Judge must be taken to have exercised hisdiscretion. No serious harm, however, is done because the defendant can alwaysapply 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 thecause title the Court comes to know of the respective occupations and places ofresidence of the parties. From the body of the plaint the Court gathers thecause of action on which the suit is founded. The Court has to exercise itsdiscretion 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 filethe suit in this Court will not usually be apparent from the plaint. Thereforethe discretion of the Court at this stage cannot of necessity be based on a considerationof the motives of the plaintiff. It must at this initial stage at any rate beexercised on a consideration of convenience having regard to the respectiveoccupations and places of residence of the parties and the facts constitutingthe cause of action and the extent of the part of the cause of action which isalleged to have arisen within jurisdiction. If it finds that the defendantresides at a distance and the material facts mainly took place outside so thatthe bulk of the witnesses of the defendant will be resident outside thejurisdiction and only an insignificant part of the cause of action arose withinjurisdiction the Court may in its discretion refuse the leave. This refusalmust mainly, if not solely, be based on a consideration of convenience for as Ihave said, at this stage at any rate the Court will not usually have anymaterial bearing on the motives of the plaintiff unless of course the degree ofinconvenience itself or the insignificance of the part of the cause of actionshown to have arisen within jurisdiction by itself suggests bad motive. To holdotherwise will mean that the discretion undoubtedly given to the Court underCl. 12 is to be exercised only on a consideration of the extent of the part ofthe 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 thediscretion of this Court.

9. It is said that under the Code the plaintiff has theunfettered choice of forum and mere inconvenience of the defendant is notconsidered as a ground for restricting the plaintiffs right to file his suitin any Court of his choice within whose jurisdiction a part of the cause ofaction arose. That is undoubtedly the position under the Code and the Courtwill not under the Code lightly interfere with the plaintiffs choice. Butthere are safeguards provided in the Code by way of transfer or stay of thesuit. Some of those safeguards may be available to this Court in exercise ofits Ordinary Original Civil Jurisdiction (Manindra Chandra v. Lal Mohun, 56Cal. 940 at p. 954 : (: A.I.R. 1929 Cal. 358) [LQ/CalHC/1929/4] ). Thesesafeguards, however, come into play after the suit has been filed in aparticular Court. Because the Code has directly given an unfettered right tothe plaintiff to file his suit in any Court where a part of his cause of actionarose the Court will not subsequently indirectly take it away by applying thesafeguards except in the case of gross abuse. That is why balance ofconvenience which is short of abuse may not under the Code be enough to inducethe Court to stay the suit. That is also the principle underlying the casesrelied on by Mr. Ghose which insists that some element of injustice, bad faithor ill will is necessary to induce the Court to stay a suit. In Snow White FoodProducts Co., Ltd. v. The Punjab Vanaspati Supply Co., 49 C.W.N. 172, I haveapplied these principles in an application for injunction restraining aplaintiff from proceeding with a suit outside jurisdiction. In those caseswhere the plaintiff is free to file his suit in a Court of his choice stay orinjunction or transfer will not be granted only on the ground of balance ofconvenience. The position is quite different, however, where leave of Court isnecessary before a suit can be filed.

10. Clause 12 interposes a safeguard in favour of thedefendant at an earlier stage by investing the Court with a discretion to grantor refuse leave to sue in addition to the other safeguards which will beavailable at a later stage. That the safeguards provided by the Code which areto be operative after the institution of the suit are to be applied only incase of abuse does not appear to me to be any reason, why the Court shouldignore or limit the additional safeguard provided under Cl. 12. If I am rightin thinking as I do that the discretion given under clause 12 is in the natureof an initial safeguard, I must hold that this discretion must be based oncircumstances then available. It is not limited to a mere consideration of theextent of the part of the cause of action that arose within jurisdiction andquestions of convenience so far as they are apparent from the plaint, the onlymaterial which is at this stage available to the Court must be taken intoconsideration. If this is so when leave is granted ex parte, should theposition be different when the defendant after service of the writ of summonsmakes a substantive application complaining of inconvenience and hardship andprays for revocation of the leave If our practice had been to give leave underCl. 12 on an application by the plaintiff on notice to the defendant as it isor was in Madras the defendant would have had a chance before the suit wasreceived and admitted to make out a case of inconvenience. Should a defendantin our Court be deprived of that chance and be put in a worse position becauseour practice is to give leave ex parte If questions of convenience are to betaken into consideration at the time leave is to be granted why should it notbe considered when the defendant applies for its revocation I see no logic indifferentiating between the two stages. The question in my opinion is the sameat both stages, namely, should the Court allow the plaintiff to proceed withhis claim in this Court The principles on which the answer to that questionshould be formulated must, therefore, be the same at both stages. I haveendeavoured 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 ofconvenience which may be apparent from the plaint. As an application forrevocation of leave is in the nature of a review or reconsideration logicallythe Court is called upon to decide the same question on the same considerationsof convenience although in the light of fuller materials. When I say that thequestion of convenience should be considered, I mean convenience of bothparties. I agree with Mr. Khaitan that on an application for revocation agreater onus should not be put upon the defendant by reason of an ex parteaccomplished fact. In my opinion the Court should not on an application forrevocation start with a presumption in favour of maintaining the leave butshould apply an unfettered mind to all the facts and circumstances and submissionspresented 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 supportfrom judicial decisions or whether they militate against any of them.

11. In Seshagiri Row v. Nawab Askur Jung Aftal DowlatMushral Mulk, 30 Mad. 438 : (17 M.L.J. 304), it was held that Courts in thiscountry are not precluded from taking the question of convenience intoconsideration in dealing with applications under Cl. 12 for leave to sue. Thelearned Judges pointed out that there might be some doubt in England as to theextent to which the doctrine of forum convenience would be applied in anapplication for leave to serve the writ out of jurisdiction under R.S.C.O. 11,but there was no ruling to suggest that no regard should be had to thatdoctrine. They observed that in any event in this country, it has never beenheld that the question of convenience is not a question which might be takeninto consideration in dealing with application under Cl. 12. In that case thedefendant was a resident of Hyderabad outside British India and was, therefore,regarded as a nonresident foreigner. Further the application in that case wasone for leave and not one for revocation of the leave already granted. Presumablythe practice of the Madras High Court was for the plaintiff to apply for leaveon notice to the defendant for we find that the defendant in that case appearedand opposed the granting of the leave. The application was dismissed by theappeal Court on two grounds: (i) that the doctrine of forum convenience appliedas the defendant was a non-resident foreigner and the services for whichremuneration had been claimed were rendered wholly at Hyderabad and (ii) thatin fact the promise to pay within jurisdiction which was the only part of thecause of action alleged to have arisen within jurisdiction was withoutconsideration and void and therefore no part of the cause of action arose inMadras. If convenience is a test that may be applied it does not matter whetherthe defendant is a foreigner or British subject, whether he resides in BritishIndia or elsewhere. For a British subject residing at a far away corner ofBritish India it may be more inconvenient to come and defend a suit here thanfor a French subject at Chandernagore. It should be remembered, as pointed outby Lort-Williams A.C.J. in Dibyaswari v. Narayan Lin Kumari, : A.I.R. 1941 Cal. 291 [LQ/CalHC/1940/196] at p. 295 : (I.L.R. (1942) 1 Cal. 253) that "In Cl.12 no distinction is made between a resident and a nonresident". Further,if convenience is a test to be applied at the time of granting or refusingleave there can be no reason why the same test should not be applied at thetime when the Court is called upon to revoke the leave.

12. The case of Govindlal Bansilal v. Bansilal Motilal, 46Bom. 249 : (: A.I.R. 1921 Bom. 328) [LQ/BomHC/1921/130] was concerned with leavesought for by a defendant in a partition suit counter-claiming a partition ofproperties some of which were outside British India. At p. 261 Macleod C.J.observed as follows:

I think, speaking for myself, that in the first instance theCourt would have power to giant leave in a partition suit where part of theproperty is outside British India. But the question whether its discretionshould be exercised in favour of granting leave no doubt can be raised beforethe bearing, and while there may be cases where a Court would leave the matterto to be decided at the hearing there may be other cases where the Court woulddecide the question against the party asking for leave at once.

Then the learned Chief Justice points out the inconvenientresults that might follow if leave were granted in that case and on aconsideration of the circumstances of the case and the attitude of the partiesdisclosed in their affidavits upheld the decision of the trial Judge who hadrefused to grant leave although on a different ground.

13. In the case of Engineering Supplies Ltd. v. Dhandhania& Co., 58 Cal. 539 [LQ/CalHC/1930/175] : (: A.I.R. 1931 Cal. 659) [LQ/CalHC/1930/175] , RankinC.J. affirmed the maintainability of an application for revoking the leave. Healso adopted the definition of "cause of action" given in the Englishcases I have mentioned. It was, however, an application where it was allegedthat no part of the cause of action arose within jurisdiction. It was notconcerned with the question as to how the Court should exercise its discretionin granting or refusing leave when only a part of the cause of action arosewithin jurisdiction.

14. The case of Secretary of State v. Golabrai Paliram. 59Cal. 150 : (: A.I.R. 1932 Cal. 146) [LQ/CalHC/1931/82] , laid down that questionsof difficulty and importance should not be dealt with on an application torevoke the leave and to take the plaint off the file. There the application wasbased upon two grounds: (1) that the Court had no jurisdiction because theSecretary of State did not carry on business in Calcutta and no part of thecause of action arose here and (2) that the claim was barred by limitation. Itwas 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 ofaction arose here, this Court is to exercise its discretion under Clause 12.

15. In Harnathrai Binjraj v. Ghuramoni Shah, 37 C.W.N. 1139: (: A.I.R. 1934 Cal. 175) [LQ/CalHC/1933/120] , such an application forrevocation of leave was described as a novel one by the then standing counseland was said by the learned Judge to be the first application of its kind thatwas known to him. If it was novel then, I must say that the novelty has wornoff and these applications have now become quite frequent and familiar. In thatcase except for the assignment of the debt which was made in Calcutta the restof the cause of action had arisen outside Calcutta. Ameer Ali J., affirmed thatthe assignment was a part of the cause of action and said that as far as heknew leave was invariably given in such cases. If the learned Judge meant todecide that the only consideration in giving leave was to ascertain if any partof the cause of action arose within jurisdiction and that the onlyconsideration on an application for revocation of leave was whether or not theassignment was made bona fide and that questions of convenience were wholly irrelevantI respectfully differ from him. His Lordship distinguished the Madras case bysaying that the observations on the test of convenience were obiter as it wasalso held in that case that no part of the cause of action arose in Madras. Ifa case is decided on two points I do not see why the decision on one pointshould be any more in the nature of an obiter than the decision of the otherpoint. Towards the end of his judgment, his Lordship also referred to delay asan additional obstacle in the way of granting that application. In this Irespectfully concur and I would be prepared to support his decision on thisground alone.

16. In the year 1935, there was a crop of applications forrevocation of leave under Clause 12. These applications were encouraged nodoubt by the decision of Panokridge J. in Kalooram Agarwala v. Jonistha LalChakroberty, 40 C.W.N. 161 : 63 Cal. 435 : (: A.I.R. 1936Cal. 349). This decision, however, was given at the hearing and not on anapplication for revocation. In that case on the eve of the expiry of the periodof limitation the plaintiffs obtained in Calcutta an assignment of the debt dueby the defendants who resided in Manbhum on a promissory note which wasexecuted there. After assignment, the plaintiffs filed the suit here on thesame day with leave under clause 12. In their written statements, thedefendants pleaded that the assignment was mala fide and fraudulent and leaveshould be rescinded. On the evidence adduced before it the Court had asuspicion that the assignment was made in collusion and only for the purpose ofcreating jurisdiction in Calcutta. Reference was made to the fact that thedefendants were landholders in Manbhum, to the smallness of the amount of theclaim and the simple nature of the issues and to the suspicious nature of theassignment. Panckridge J., repelled the argument based on the freedom of choiceof forum given to the plaintiff under the Code by observing that he did notthink that the fact that in a mofussil Court there is no way of preventingunnecessary hardship in a case like this is a reason for allowing thediscretionary jurisdiction of this Court to be used to inflict a similarhardship. With these last observations I respectfully agree. The learned Judgethen observed that the defendant should in such cases apply to Court at thefirst possible moment and that delay might prevent the success of theapplication. I again respectfully agree. The question of convenience was notpointedly mentioned because in that case the parties had gone to trial and thepoint was raised at the hearing. The decision could not, therefore, be put onthe ground of balance of convenience for all the inconvenience had beensuffered already. His Lordship, therefore, put it upon the ground of abuse inferredfrom the collusive assignment suspected to have been made only for the purposeof creating jurisdiction and held that it was a fit case where in exercise ofdiscretion the Court should revoke the leave. It may be doubted whether theCourt ought to act on mere suspicion and this judgment is open to criticism forhaving proceeded on this unsafe and treacherous ground. Further the learnedJudge did not advert to the fact that the claim was founded on a negotiableinstrument which might pass from hand to hand and his decision may, therefore,be criticised also for having overlooked this fact as indeed it has beencriticised in subsequent cases on that ground alone.

17. The question of revocation of leave again came up beforePanckridge J. in Daulatram Rowatmull v. Maharaj Lal, 40 C.W.N. 164 :(: A.I.R. 1936 Cal. 219) [LQ/CalHC/1935/262] . This time it was an application forrevocation. Here also the assignment of the promissory note by endorsement wasthe 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 findingthat the assignment was made in bad faith merely for the purpose of creatingjurisdiction. In the beginning His Lordship opined that:

When people take an assignment of a promissory note theyshould be prepared to enforce their claim either in the Court within whosejurisdiction the makers reside or in a jurisdiction where a part of the causeof action with which the makers are directly concerned has arisen.

With great respect I do not see any sound legal principleunderlying this general observation and I think Mr. Ghoses criticism on thispassage is well founded. This statement of the law cannot be correct if thecase is governed by the Code for that allows a suit to be filed in any Courtwithin whose jurisdiction any part of the cause of action arose. This statementof the law, applied to a case filed in this Court, would leave no scope for theexercise of discretion which this Court undoubtedly has under clause 12.Further his Lordship disposed of the point based on negotiability by making adistinction between a maker who was merchant and one who was not. Again withgreat respect I find no logic in this distinction. Finally the learned Judgeput his decision on the ground of balance of convenience. This part of thedecision based on grounds of convenience might well have been supported had itbeen made after adverting to the fact that the subject-matter of the claim wasbased on a negotiable instrument. It is well to recognise that on account ofits negotiability a negotiable instrument has to be treated differently andthat mere balance of convenience may have to give way to negotiability and notprevent a holder from enforcing it in a Court within whose jurisdiction it hadbeen negotiated.

18. In Harnathrai Binjraj v. Sew Prasad Sing, 40 C.W.N. 165: (: A.I.R. 1986 Cal. 230) [LQ/CalHC/1985/145] , balance of convenience demandedrevocation of leave but Panckridge J. refused the application only on theground of delay. I accept delay as a cogent reason for refusing an applicationfor revocation of leave. But this decision might also have been based on theground that the suit being based on an assignment of a promissory note mereconvenience was not sufficient to revoke the leave. However, in the result theleave was maintained.

19. After this case two cases came before Cunliffe J. Ineach of them the defendant had executed promissory notes in favour of a lady ather place of residence in Bhowanipore just outside the local limits of thisCourt. In each of those cases the promissory notes had been endorsed in asolicitors office near the court house. The endorsee filed two suits on thestrength of the assignments in his favour after obtaining leave under clause 12.The defendant in both the cases did not apply for revocation of the leave butraised the point at the trial. Cunliffe J. rejected the defendants contention.Both the defendants appealed. The first appeal came before a Bench consistingof Costello and Panckridge JJ., and was dismissed. The decisions of Cunliffe J.or of Costello and Panckridge JJ. in appeal therefrom have not been reportedbut are referred to in the judgment of the learned Chief Justice in the secondappeal which came before him and Costello J. The judgment of Cunliffe J., inthe second case Rai Radhika Mohan Roy Bahadur v. Bhobani Prosanna Lahiri isreported in : 40 C.W.N. 717 : (63 Cal. 908). After referringto the three decisions of Panckridge J., the learned Judge at p. 721 observedthat he was not convinced that the assignment which was admittedly for valuehad been brought about simply for embarrassing the defendant or for creatingjurisdiction in this Court. He also held that on the facts of that case therewas no hardship on the defendant or difficulty in bringing his witnesses. Thiswas 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 betweenplaintiffs and defendants who are interested in negotiable instruments ongrounds of hardship or humanity or even on the ground of legitimate collusionto assign you are striking at the whole root of the law of negotiability aslaid down not only in the Negotiable Instruments Act but in the time-honouredprinciples of the Law Merchant.

20. In the view of the learned Judge it made no differencewhether the assignee who became the holder of the note was a commercial man ora private individual and in this he differed from the view of Panckridge J. Itwill be noticed, however, that Cunliffe J. based his decision on two grounds(i) Law Merchant and (ii) considerations of convenience. This case went up tothe Court on appeal and is reported as Bhabani Prasanna Lahiri v. Rai RadhicaBhusan Roy, 40 C.W.N. 1349. Both my Lord the Chief Justice and Costello J. heldthat the assignment was an important part of the cause of action. Both of themadverted to the question of convenience and agreed with the trial Judge that onthe facts of that case there was no hardship on the defendant. It is quiteclear to me from the judgments of the Court on appeal that considerations ofconvenience were regarded as material and necessary to be taken into account.Costello J. approved of the observations of Cunliffe J., as to negotiabilitybut 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 thequestion of balance of convenience is not wholly immaterial.

21. In Ali Mahomed Ebrahim Shakoor v. Adam Hajee PeerMohamed Essack, I.L.R. (1939) Cal. 199 : (: A.I.R. 1940 Cal.134), which was an application for revocation of leave, Sen J. in a consideredjudgment declined to accede to the application. The learned Judge held thatpart of the cause of action did arise within jurisdiction. He distinguished theearlier cases on the ground that in those cases jurisdiction was sought to becreated by a device, an element which was absent in the case before him. He thenat p. 208 considered the question of convenience and observed as follows:

It may be that in this case many of the witnesses areresidents of Bantva. It may also be true that some documents are at Bantva. ButI do not think that it can be said that if this suit were tried here it wouldbe so inconvenient for the defendant as to result in injustice being done.

An appeal was taken from this decision but was dismissed. Inhis judgment reported in Haji Adam v. Ali Mahomad, I.L.R. (1940) 1 Cal. 497 :(: A.I.R. 1941 Cal. 236) [LQ/CalHC/1940/1] , my Lord the Chief Justice dealtwith the question of balance of convenience at p. 501. Inasmuch as, however,the question depended on evidence his Lordship, adopting the decision of RankinC.J., in Secretary of State v. Golabrai Paliram, 59 Cal. 150 [LQ/CalHC/1931/82] :(: A.I.R. 1932 Cal. 146) [LQ/CalHC/1931/82] , held that those questions should bedecided at the trial. The judgment in the appeal clearly shows that thequestion of balance of convenience is indeed very material in deciding whetherthe Court in exercise of its discretion, should or should not revoke the leavealready granted.

22. On a consideration of the legal principles establishedby the judicial decisions mentioned above it seems to me that balance ofconvenience is a material consideration in the exercise of discretion under Cl.12. From these judicial authorities the following propositions may, I think, beenunciated:

(a) that the application lies for revoking the leave grantedunder Cl. 12 of the Letters Patent;

(b) that such an application should be made at an earlystage of the suit and delay and acquiescence may be a bar to such anapplication;

(c) that if the application depends on difficult questionsof law or fact the Court should not revoke leave on a summary application butshould decide the question at the trial;

(d) that if the defendant shows clearly that no part of thecause of action arose within jurisdiction the leave should be revoked as amatter of course;

(e) that if only a part of the cause of action arose withinjurisdiction, then it is a question of discretion for the Court to give orrefuse leave or where leave has already been granted to revoke or maintain theleave;

(f) that assignment is a very important part of the cause ofaction in a suit by the assignee;

(g) that in giving or refusing leave or maintaining orrevoking leave the Court will ordinarily take into consideration the balance ofconvenience and may, if the balance is definitely in favour of the defendant,apply the doctrine of forum convenience;

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

(i) that if the cause of action is founded on an assignmentwithin jurisdiction of a negotiable instrument the Court will in recognition ofthe principle of negotiability insist on a far greater degree of balance ofconvenience in favour of the defendant and will more readily give or maintainleave than in other cases of assignment;

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

23. Bearing these principles in mind I now proceed toconsider the facts. The plaint was presented, as I have said, on 17th April1944. In the cause title of the plaint the plaintiff is described as a merchantresiding at No. 47, Zakariah Street. There are eight defendants of whom fiveare minors. They are all described as residing at Nandram Ka Katra in Bhiwani.The cause of action laid in the plaint is as follows:

24. On 11th April 1941, the defendants were members of orinterested in a Mitakshara joint family business carried on under the name ofParasram Moniram at Bhiwani. At that time the defendant Madanlal was the kartaof the defendants joint family. On accounts stated between Lachmi Debi widowof Harjimal deceased and the defendants in their said business of ParasramMoniram writing contained in a document dated 11th April 1941 signed byParasram Moniram by the pen of the defendant Madanlal the sum of Rs. 9,500 wasfound due to Lachmi Debi by the defendants who promised to pay the same withinterest at -/9/- per cent per mensem with yearly rests. Alternatively theplaintiff states that on nth April 1941, the defendants held in deposit the sumof Rs. 9,500 belonging to Lachmi Debi under an agreement to repay the same ondemand with interest at the rate mentioned above. By an indenture made inCalcutta on 1st April 1944 Lachmi Debi for valuable consideration assigned thesaid sum with interest due and to be due to the plaintiff. Notice of the assignmentwas given to the defendants by Lachmi Debi and the plaintiff by his solicitorsletter dated 4th April 1944. By that letter the defendants were called upon topay up the amount to the plaintiff at 47, Zakariah Street or to the solicitorsoffice at No. 1B, Old Post Office Street both in the town of Calcutta. Thedefendants having failed to pay any sum the sum of Rs. 9500 for principal andRs. 2056/8/3 for interest aggregating to Rs. 11,556/8/3 became due to theplaintiff and the plaintiff claimed a decree for that sum with further interestand costs.

25. The applicants in their petition say that the sons ofParasram separated from one another long ago and that after such separation twoof the sons of Parasram, namely, Surajmal (the father of the applicant Ramjidasand the grandfather of the applicant Sew Kumar) and Maniram (the adoptivefather of the defendant Madanlal and the father of Lachmi Debi) and oneLachhuram, a stranger to the family, started a business in partnership underthe name and style of Parasram Moniram. In 1921/1922, Surajmal retired andManiram and Lachhuram continued the business of Parasram Moniram incopartnership till 1922/1923 when the business was closed. Thereafter, Moniramdied in 1926/27 and Surajmal died in 1936/1937. They deny that Parasram Moniramwas a joint family business or that Lachmi Debi deposited any money as allegedor at all or that there was any adjustment or that the defendant Madanlal wasthe karta of the applicants family or had any authority to adjust any accounton their behalf. In fact the defendant Madanlal is the natural son of theapplicant Ramjidas and has been given in adoption to the latters uncleManiram. It is pointed out that apart from the alleged assignment which is notadmitted no part of the alleged cause of action arose within the jurisdictionof this Court. The business of Parasram Moniram was carried on at Bhiwani andall persons alleged to be interested therein reside permanently in Bhiwani. Thealleged deposit and the alleged adjustment took place in Bhiwani. Even LachmiDebi resides at Bhiwani. The plaintiff who is the cousin of Lachmi Debishusband Hirjimull is a resident of Muzaffarpur. This suit, it is alleged, hasbeen filed in this Court only to harass the applicants. The applicant Ramjidasis said to be an old man of 60 years of age suffering from a serious wound inthe head and unable to come to Calcutta. The applicant Siv Kumar is a young manof 22 serving as a clerk in the Punjab Cotton Mills Ltd., on a salary of Rs. 40per month and with great difficulty obtained leave for 10 days to come toCalcutta and make this application. If he has to defend this suit in Calcuttahe may lose his employment and his means of livelihood. The applicants are toopoor to meet the costs of this High Court suit and the expenses of travellingand they have no place to live in Calcutta. All their witnesses are residentsof Bhiwani and it will not be possible for the applicants to bring them down toCalcutta or to meet the costs of a commission for their examination. On theother hand, Lachmi Debi has been, ever since she became a widow in herchildhood, living at Bhiwani with her brother the defendant Madanlal except fora few weeks in every 5 or 6 years when she visits her husbands people at Muzaffarpur.

25a. The plaintiff is a person well known in Bhiwani wherehe has properties and many rich relations and there is no difficulty in hisstaying there and conducting a suit there. It is charged that this suit hasbeen engineered at the instance of the defendant Madanlal with whom theapplicants are not on good terms. In fact they took criminal proceedingsagainst the defendant Madanlal which, however, proved unsuccessful and thedefendant Madanlal has instigated this suit to wreak vengeance on them.

26. Two affidavits have been filed in opposition to thisapplication, one by Lachmi Debi and the other by the plaintiff. It ismaintained that Parasram Moniram was a joint family business until separationat the end of S.Y. 1998 and was continuing at the date of the adjustment.Lachmi Debi states that she did deposit moneys and that interest due to her inthe deposit account was calculated and entered in the books of Parasram Moniramby the applicant Ramjidas himself and that a statement of account copied fromthe books of that business was given to her. Besides these moneys she has noother money by which she can carry on any litigation. She used to live with thedefendants in their house at Bhiwani off and on but when disputes arose and shecould live with them. She had nobody to help her and consequently she had noother alternative but to sell the claim. At first she could not secure anybodyto buy the claim but eventually she succeeded in inducing her husbands cousinthe plaintiff herein to take an assignment of her claim. The deed of assignmentwas executed in Calcutta where she has been living with the plaintiff. Theassignment was perfectly bona fide and was actually executed for valuableconsideration. The plaintiff in his affidavit reiterates the circumstances inwhich he had been induced to take the assignment and maintains that he paidvalue for the assignment in good faith. It is pointed out that the applicantsare not at all poor, that they have various landed properties at Bhiwanibesides cash money and other valuable moveable properties. Ramjidas is about 52years old and can easily come to Calcutta and put up with his cousin of thename of Benarsidas. The plaintiff is carrying on business in Calcutta and hasnobody to help him in that business and he will suffer great loss if he has toleave his business and go to Bhiwani for conducting litigation there. If he hasto file a suit in Bhiwani then to establish the claim he will have to take outa commission for the examination of the attesting witnesses to the deed andLachmi Debi at Calcutta where she is now residing which will be costly andwhich will necessitate the presence of the applicants in Calcutta.

27. The applicants have filed an affidavit in replyreiterating and emphasising their contentions as to the inconvenience andharassment sought to be inflicted on them by reason of the plaintiffinstituting and proceeding with this suit in this Court.

28. On the facts now before me, it is impossible to holdthat the assignment of the claim by Lachmi Debi was a mere collusive device tocreate jurisdiction in this Court. She had a claim against her own nearrelations. It is not denied that apart from the claim which is disputed she hasno money of her own with which she can carry on any litigation. Apart from thedefendants themselves there does not appear to be anybody who would take thetrouble of looking after her litigation which, being a pardanashin lady, shecannot possibly personally attend to. Further a disinclination to litigateagainst ones own relations is not unreasonable or unintelligible. Her positionseems to me to be similar to the lady who had assigned the promissory notes tothe 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. Shesays, and in this she is confirmed by the plaintiff, that she got Rs. 3000 asconsideration. The case of collusion between the plaintiff Lachmi Debi and thedefendant Madanlal is at present nothing more than an allegation and a mereinsinuation on which I am not prepared to found a case of gross abuse of theprocess of this Court. There is no grievance on the part of the plaintiff onthe score of delay. In fact written statement has not yet been filed. Mala fideand delay being thus set out of the way the only other factor which mayinfluence my decision is the balance of convenience. Every litigation involvesa certain amount of inconvenience and hardship but such normal inconvenienceand hardship have never been regarded as a sufficient ground for depriving theplaintiff of his choice of forum. Such inconvenience does not give thedefendant any right to have all litigation against him filed in his home Court.It is true that the defendants witnesses may have to be brought down fromBhiwani or examined there on commission; but it is equally true that if theplaintiff has to file his suit at Bhiwani he will have to bring out acommission here to examine the attesting witnesses to establish the deed ofassignment and passing of consideration and to examine Lachmi Debi to establishthe claim all of which are disputed. The applicants or at least one of them mayhave to come here during the examination of these witnesses and at any rate atthe time of the examination of Lachmi Debi. It may be inconvenient for thedefendants to come to Calcutta but it is equally difficult for the plaintiff toleave his business and to go to Bhawani. Therefore the balance of convenience,both as regards witnesses and parties, appears to be fairly even.

29. There is another fact which I cannot overlook. Theaccounts were adjusted on 11th April 1941. The period of limitation for a suiton account stated in writing expired on 11th April 1941. Easter vacationintervened and this suit was filed on 17th April 1941, on the reopening of theCourt. If leave is now revoked and the plaint is taken off the file seriousquestions will arise whether the period between 17th April 1941 and to day willbe excluded under S. 14, Limitation Act. Assuming this period is excluded thequestion will arise whether the whole of the period between 11th April 1911 and17th April 1911, should be excluded. It is well known that the Easter vacationof this Court is longer than the Easter vacation of the mofussil Courts. Whatabout the period when the mofussil Courts were open but this Court was closedfor Easter In one view of the matter, the plaintiff runs the risk of havinghis suit dismissed on the ground of limitation. That is an inconvenience whichought not to be overlooked. Finally only two out of 8 defendants have appliedfor revocation of the leave. If I accede to this application the leave willhave to be revoked as against all the defendants and the result will be thatthe plaintiff will not be able to proceed with the suit and get his decree evenas against the non-appearing defendants and will have to run the risk of havinghis claim barred by limitation as against them also, a consequence not to belightly allowed to occur. Mr. Khaitan says that the plaintiff must pay forhaving wrongfully attempted to harass and overreach the defendants. Thisargument might have had some force had I been satisfied about the bad faith ofthe plaintiff. In my opinion the facts before me do not reasonably justify suchinference of bad faith and much less such as would be sufficient to penalisethe plaintiff even to the extent of depriving him of his entire claim.

30. On a consideration of all the facts and circumstancesnow before me I do not think it would be right to revoke the leave alreadygranted to the plaintiff. Accordingly this application must be dismissed withcosts. Certified for counsel. The applicants will have a months time to filetheir written statements.

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Madanlal Jalan vs. Madanlal and Ors. (20.02.1945 - CALHC)