1. This is a summons by the defendants in the suit for revocation of the leave granted under Clause 12 of the Letters Patent to the plaintiff. It raises some important and rather difficult questions. Briefly, the claim in the suit is as follows:
2. That the plaintiffs, by plaintiff No. 2 on behalf of both of them, orally agreed with defendant No. 29, on behalf of all the thirty defendants, at Victoria Terminus Station, Bombay, on or about September 19, 1944, that a company of artists led by the first (or female) plaintiff would give a performance at the All India Music Congress to be held the following December or January at Calcutta-the dates to be later specified by or on behalf of the defendants-in consideration of having their travelling expenses to and from Calcutta and a reasonable remuneration for their, and, in particular, the first (or female) plaintiff's services, paid to them: and that the defendants did specify the dates for the purpose. That the plaintiff and her troupe did proceed to Calcutta but, according to the defendants, when they got there, they, and in particular, the first (or female) plaintiff, misconducted themselves (I do not use that term in the technical sense in which it is used in matrimonial cases, but in its more general sense) by performing badly, according to the defendants, on the first and only night when they performed at all, and by not performing at all on the other nights on which they were required to perform. The plaintiffs deny any misconduct, and, as I understand it, say that they were justified in refusing to perform after the first night in consequence of the insufficient and defective arrangements that were made for them by the defendants.
3. There the matter stands. There is no dispute that at some time or other there was a contract between the parties, and there is no dispute that it was broken by one side or by the other; by non-payment by the defendants, or by non or mal-performance by the plaintiffs. The plaintiffs, who are carrying on business in Bombay, and apparently live at Khar, just outside Bombay, started this suit in this Court against the thirty defendants alleged to be the Committee responsible for the running of the Indian Music Congress, every single one of whom lives in Calcutta. The plaintiffs started their suit first, but not long after them the defendants filed a suit against the plaintiffs in H. M. High Court at Port William in Bengal on the same subject-matter as the present suit, claiming damages greatly exceeding the sums claimed by the plaintiffs in the present case.
4. The plaintiffs were within their rights in starting the present suit in this Court, provided that the cause of action arose, at least in part, within the territorial limits of the ordinary original civil jurisdiction of this Court (see Clause 12 of the Letters Patent).
5. The only material event which anybody alleges to have happened within those territorial limits is the oral contract which, according to the plaintiffs, was made at Victoria Terminus. According to the defendants, no such contract was made at Victoria Terminus, but the contract in suit is contained in, or to be inferred from, certain subsequent correspondence, terminating in a telegram despatched by or on behalf of the plaintiffs at Khar, outside those territorial limits. On this question of fact I find it impossible to come to a satisfactory conclusion merely on the evidence before me, one party swearing (on paper) point-blank against what the other party states, and the subsequent correspondence being, in my view, inconclusive; it is consistent with the defendants' case, but not by any means inconsistent with the plaintiffs' case. It has been argued before me that if even one part, however small, of the cause of action arose within the territorial limits, the Court has no jurisdiction to revoke the leave under Clause 12, once granted. As. to that proposition, the first question I have to consider is, what do the words 'cause of action' mean? As far as this Court is concerned, I think it is now well settled that the classic definition given by Lord Esher in Bead v. Brown (1888) 22 Q.B.D. 128 is right, that is to say, '' every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.' There is no doubt that the contract in question here, if traversed, would have to be proved before the plaintiffs could succeed. In this connection, I respectfully agree with the Calcutta High Court in Harnathrai Binjraj v. Churamoni Shah (1933) 37 C.W.N. 1139 that in an, action by an assignee of a debt, the assignment is itself for this purpose (in Delation, that is, to space and not in relation, for purposes of limitation, to time) a part of the 'cause of action'; but I, equally respectfully, differ from the learned Judge (if indeed he meant that) in thinking that even if the assignment was made at a place remote from the place of residence of both the defendant and the original creditor, the Court could not revoke leave once granted under Clause 12 of the Letters Patent; and I agree with the same Court in the person of Mr. Justice Das in Madanlal Jalan v. Madanlal (1945) 49 C.W.N. 357 that leave is not granted as of right, and, if granted, is not granted irrevocably, where some small part of the cause of action has arisen within the jurisdiction; but that the Court is entitled, and bound, in such cases, to take into consideration the balance of convenience, meaning, of course, the balance of convenience not to one party but to both parties. If that very distinguished Judge, Mr. Justice Ameer Ali, meant to express disapproval of the decision of the bench of the Madras High Court in Seshagiri Row v. Nawab Askur Jung Aftal Dowlah Mushral Mulk I.L.R (1907) Mad. 438, I can only say that I most respectfully differ from him. I think that that decision was perfectly right. A Bench of the Rangoon High Court in The Jupiter General Insurance Co, Ltd. v. Abdul Aziz I.L.R (1933) Ran. 226 came, to the conclusion that where property was insured by an owner in Rangoon with insurers carrying on business in Rangoon, the property being situated at Pegu, and the property was destroyed by fire, in a suit brought on the policy in the Pegu Court, the latter Court had no jurisdiction to entertain it under what is now Section 20 of the Civil Procedure Code, Again, with the utmost respect, I can say here what I could not say formerly, namely, that 1 disagree with that decision. It seems to me (and, here, it is bound so to seem to me because I am bound by decisions of this Court) that Lord Esher's opinion as to what 'the cause of action' means, namely, 'every f act which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court,' is right, and it is quite clear that in the unlikely event of the fact of the fire being disputed, i.e. in the unlikely event of the insurers saying that the property had never been burnt at all but still existed, the plaintiff would have to prove the fact of the fire, and therefore the fire is a part of the cause of action. I do not myself think that the case put by Mr. Justice Lentaigne in that case at pp. 254, 255 is on all fours with the case before me. He states the case of a dealer in precious stones contracting at Rangoon for the sale at Rangoon of a 'Mogok Ruby,' (that is, a ruby obtained from 1he ruby mine at Mogok) who afterwards tendered a ruby alleged to be a Siamese or Ceylon ruby. He says-quite rightly-that it would be absurd to suppose that the District Court at Mogok had jurisdiction to try the resulting suit between the two dealers. The answer to that, it seems to me, is that for the purpose of a suit (if the stone tendered really was a Mogok ruby) it would be quite immaterial when it was excavated from the land. It might have been excavated even before the contract was made, and it would be open to the defendant to prove, by any means he liked, that it was a Mogok ruby. He would not necessarily be bound to call the man who originally excavated it from the bowels of the earth. He must satisfy the Court that it is a Mogok ruby, and he might do so, if he could, merely by calling experts who could say that they could recognise a Mogok ruby when they saw one, and. had looked at it, and that it was a Mogok ruby. The case seems to be well covered by what Lord Esher himself said in the very next sentence to that which I quoted some time ago, 'It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.' 'Therefore, while thinking that if the plaintiff is right, a part of the cause of action undoubtedly arose here, even though it is a matter which is unlikely to be in dispute, except for the purpose of determining whether the Court has jurisdiction or not, still the question of the making of the contract at Victoria Terminus is one which, if the plaintiffs are right about it, gives the Court jurisdiction, provided it does not see fit to revoke the leave which it has granted.
6. The question, therefore, remains whether that leave, if rightly granted, should be revoked. One is, at first, tempted to say that it should be revoked. Every single fact, which seems likely to be seriously in dispute, happened, or did not happen, at Calcutta and the place of making the admitted contract is, except for the present purpose, utterly immaterial. Calcutta was where the plaintiffs had given their performance, and where (if at all) they would be entitled to receive their remuneration immediately after their performance, since, immediately after their performance in Calcutta they would necessarily be in Calcutta. So, the place where the plaintiffs were entitled to be paid would be Calcutta. If, on the other hand, the plaintiffs broke their contract by performing badly, or not performing at all, it was at Calcutta that they broke their contract and became presently liable to pay damages. Therefore, whichever party be right on the merits, substantially, the whole dispute arose in Calcutta and not here. While not assuming that every one of the thirty defendants will be a witness, there are thirty people whose convenience has to be considered as against two people on the other side, and as this thing happened at Calcutta, it is inherently likely that there will be a larger number of people who know about it; and can give evidence in Court about it, at Calcutta than here.
7. The plaintiffs, on the other hand, have the advantage (assuming that this Court has jurisdiction at all) of having started their case here first, and due weight must be given to the principle 'first come, first served', and they tell me that they are proposing to call seven persons, and perhaps others, who went from Bombay to Calcutta on this occasion, and will be material witnesses on their behalf. Further, I have to bear in mind that if the plaintiffs had commenced their suit at Calcutta they would, in all probability, be refused a commission on the ground that they had chosen their forum: consequently, they would have had to toil all the way back to Calcutta themselves for the second time, after a journey for which, according to them, they ought to have been paid but were not paid-a very annoying and expensive course of things for them. The trouble here is that the question whether the contract was made at Victoria Terminus or not cannot satisfactorily be determined at this stage. I have not actually seen the written statement of the defendant in the present suit, because it has not been filed, and the trouble should narrow down still more after discovery is obtained and interrogatories administered, and that should considerably narrow one point to be determined, viz. whether the suit can be tried more conveniently here or at Calcutta.
8. I understand that in the Calcutta suit an application has been taken out under Section 10 of the Civil Procedure Code for a stay on the ground that there is a prior suit pending in a Court of competent jurisdiction. If it turns out that leave was properly granted and should not be revoked, that application, as far as I can see, will necessarily succeed. If, on the other hand, the decision of the present matter is held up for a time, nothing fatal will happen at Calcutta, because the Worst (from the point of view of the present defendants) that the Calcutta Court can do is to stay the suit, and, if ultimately, the present suit ceases to be pending, the suit in Calcutta will cease to be stayed and will proceed, because there will be no longer a suit on the same subject-matter pending in another Court. If I merely adjourn this summons into Court, it would have its turn after a number of 'adjourned chamber matters', a limbo in which it -would not be reached for a long time and then would involve two bites at a cherry. Therefore, the order J make is 'no order on the present summons except that it be adjourned to the hearing, and that the following issues he tried as preliminary issues at the hearing, namely,
1. Was the contract sued on between the plaintiffs and the defendants made in Bombay or at Khar?
2. If in Bombay, will this suit be mote justly and conveniently tried (a) here, OT (6) at Calcutta?
3. Should leave under Clause 12 of the Letters Patent be revoked ?
9. The plaintiffs not to object to an adjournment of a month, if asked for by the defendants, in case the foregoing issues be determined in the plaintiffs' favour, and the defendants not to object to a commission issuing in the Calcutta suit to examine the plaintiffs or any of their witnesses resident in the Province of Bombay, if these issues be determined in the defendants' favour, Costs reserved to the trial Judge. Counsel certified.
10. In this order, I am substantially following the order male by a Bench of the Calcutta High Court in Secretary of State for India in Council v. Golabrai Paliram I.L.R (1924) Pat. 378.
11. Written statement and counter-claim, eight weeks. Reply, if counter-claim, three weeks. Discovery, three weeks thereafter, and inspection, forthwith thereafter. Suit to be on some board for disposal of the preliminary issues, subject to a part heard, on January, 15, 1946.