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S. Nagaraj Vs. S. Govindaswamy and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberO.S.A. No. 222 of 1982
Judge
Reported inAIR1984Mad212; (1983)IIMLJ314
ActsCode of Civil Procedure (CPC), 1908 - Order 5, Rule 2(1)
AppellantS. Nagaraj
RespondentS. Govindaswamy and anr.
Appellant AdvocateD. Peter Francis, Adv.
Respondent AdvocateAdv. General for ;S. Subramanian, Adv., ;R. Sashidaran and ;K. Radhakrishnan, Advs.
Cases ReferredIn Madanlal Jalan v. Madanlal
Excerpt:
.....- only branch bank of respondent 2 was at madras - this would not suffice for maintaining suit at madras - order passed to place present plaint before proper forum within specific time limit. - - krishnamurthi, learned advocate general arguing for the respondents contended that there, is absolutely no cause of action for the plaintiff to sue the respondent at madras and that the convenience of~ the parties will be better served by filing the suit at coimbatore. (3) dates, sums and numbers shall be expressed in a pleading in figures as well as in words. at best, the above averments, will indicate that the parties wanted to do business by selling lottery tickets. (d) that if the defendant shows clearly that no part of the cause of action arose within the jurisdiction the..........respondent at madras and that the convenience of~ the parties will be better served by filing the suit at coimbatore. when the whole cause, of' action has arisen.7. we have carefully gone through the pleadings and other materials on record. in para 1 of the plaint it has been stated as follows-'the plaintiff is a resident of coimbatore and. he is a carpenter working in prs coimbatore. the first defendant is a friend. of, the plaintiff and the plaintiff and the first defendant were in the habit of purchasing lottery tickets jointly and that the said lottery tickets will be kept in the house of the plaintiff..'it is further stated in the said para that the plaintiff has purchased ticket no. a.891076 of the royal bhutan lottery from one k. s. sundaram, who is a sub-agent. thus, it is clear.....
Judgment:

Gokulkrishna, J.

1. This original side appeal' filed under Clause 15 of the Letters Patent arises out of the order of Sbaturnikbam. J. -dated m12-1982, made in Appln. No. 4651 of 1982, revoking the leave to granted in Appln. No. 4340 of 1982.

2. The appellant herein filed the suit in. C. S, No. 614 of 1982 on the file of the Original Side of this Court praying for a declaration that the appellant and respondent 1 heating are the winners of the first prize under tictet No. A.891076 of the Royal Bhutan Lottery, in respect of the draw held on 2-61982, in the 147th draw and. also the owner. of the amount realised there from by the defendants, viz., towards the shade. of the plaintiff Rs. 2,50,000, standing to the credit of defendant I in defendant 2 bank at Oppanakara. St, Coimbatore, and also for permanent injunction' restraining respondent$ I and 2 herein from in any way dealing, with the amount of Rs. 2,50,000, standing to the credit of defendant 1 in defendant 2 bank at Oppannakara St, Coimbatore.

3. According to the plaintiff, be purchased the lottery ticket, in question and entrusted the same with his, wife. On 2-61982, it was known that the: ticket A.891076 of Royal Bhutan lottery had won the first prize. of Rs. - 10,00,000. According to the plaintiff, he and respondent 1 were jointly* carrying on trade in selling lottery -tickets.

On 1-6-1992, respondent 1 cam6 ti) the house, of the plaintiff and took the winning ticket' froth the plaintiff's wife, whittle plantain was absent from his house after informing the wife of the plaintiff :that the ticket was wanted for verification as to whether -the said ticket had won the first prize or not. Subsequently, there was a police complaint and finally the money was collected and deposited with respondent 2 herein. It is the further case of the plaintiff that in the mediation the panchayatdars decided to direct respondent I to execute a promissory note for a sum of Rs. 1,75,000 in favour of the plaintiff and settle the dispute subsequently. According to the plaintiff, be has to get half of the prize amount and deducting the sum of Rs. 1,75,000, for which a promissory note as been executed, respondent 1 has to pay the balance of the amount.

4. The first defendant refuted The claim of the plaintiff. It is unnecessary for -us to, go into the details of the pleadings. 'The plaintiff in his Appln. No. 4340 of 1982 obtained leave to sue and filed the suit with the above said prayers. Subsequently, Appln. No. 4651 of 1982 was filed to revoke the leave granted on the, ground that no part 04 ,the cause of action arose within the- jurisdiction of this Court and leave to sue granted has to be revoked. The learned single Judge of this Court after going through the decided cases and the facts of the present.case, revoked the leave granted by allowing Appln. No. 4651 of 1982. It is as against this order, the present appeal has been filed under Cl. 15 of the Letters Patent.

5. Mr. M. Srinivasan, learned counsel for the appellant, contends that there is an agreement at Madras, between the plaintiff and respondent I in respect of the dealing in lottery tickets and as such, part of the cause of action has arisen within the jurisdiction of the original side of this Court. Mr. Srinivasan next contended that the money in deposit with respondent 2 is being 'claimed by the plaintiff and respondent 2 bank was one of the panchayadhars to the dispute between the plaintiff and despondent 1, that the branch of respondent 2 is at Madras and that the suit can be filed at Madras in such circumstances.

6. Mr. R. Krishnamurthi, learned Advocate General arguing for the respondents contended that there, is absolutely no cause of action for the plaintiff to sue the respondent at Madras and that the convenience of~ the parties will be better served by filing the suit at Coimbatore. when the whole cause, of' action has arisen.

7. We have carefully gone through the pleadings and other materials on record. In para 1 of the plaint it has been stated as follows-

'The plaintiff is a resident of Coimbatore and. he is a carpenter working in PRS Coimbatore. The first defendant is a friend. of, the plaintiff and the plaintiff and the first defendant were in the habit of purchasing lottery tickets jointly and that the said lottery tickets will be kept in the house of the plaintiff..'

It is further stated in the said para that The plaintiff has purchased ticket No. A.891076 of the Royal Bhutan Lottery from one K. S. Sundaram, who is a sub-agent. Thus, it is clear from the above said averments in the plaint that it was at Coimbalore that the ticket was purchased. In para. 3 of the plaint, it has been stated as follows-

'..... the -plaintiff approached the second defendant's Manager at Coimbatore branch who also took part in the mediation. ,Thereafter it was represented to the plaintiff that the first defendant will pay only a sum of Rs. 1,75,000 since the amount realised was only a sum of Rs. 3,00,000, and that the rest of the amounts were taken by the Government for capital gains tax and income-tax and' other taxes and the plaintiff was taken forcibly to the second defendant bank at Oppannakara St., Coimbatore and the plaintiff was made to sign the receipt there on 16-9-1982. In fact, the receipt was not even read over to the plaintiff and the banks typewritten receipt was filled up by the Manager of the second defendant bank at Coimbatore.

Even' here, it has been made clear that the plaintiff was made to sign the receipt without' knowing the actual contents therein at Coitnbatore only. In para 7 of the l5lLint it has been stated that the plaintiff who is the owner of the lottery ticket A.891076 is suing the defendants to realise a sum of Rs. '2.5C.OOC after giving credit to a sum of Rs. 1175,000. In the cause of action para, viz., para 8, it has been specifically stated as follows-

'The cause of action for the suit arose partly within tbf- jurisdiction of this Honour. able Court as against The first defendant when the plaintiff entered agreement with the first defendant in April 1982 in Madras. and' the second defendant is carrying on business within the jurisdiction of this Horourable Court. The cause of action are on 25-5-1982, when the. plaintiff purcahsed the ticket again when the plaintiff came to know that the plaintiff is the successful first prize winner of 376-1982 and: again when the plaintiff. has come.t6 know of the misrepresentations and fraud played by defendants I and 2 on 9-11-1982, an& again when the plaintiff approached the second defendant bank's manager at be-ad office in Madras on 16-11-1982 and subsequently.'

8. Nowhere in the plaint it has beta alleged that there was an agreement between the plaintiff and defendant I at Madras for the purpose of purchasing a lottery ticke4 from Royal Bhutan Lottery and sharing the prize money, if won, equally between them. Mr. M. Stinivasan, learned counsel for The appellant, fairly conceded that there is 134D specific averment to the above said effect in the plaint. But nevertheless the learned counsel submits that reading the plaint a$ a whole, it can be assumed that the parties intended to share any prize money, if won from the Bhutan lottery. We are afraid tbai we cannot assume such a thing when there is absolutely no averment as regards such agreement in the plaint itself.

9. Order V), Rule 2 (1), C. P. C., rea4l as follows-

2(l): Every pleading shall contain, and~ contain only. a statement in a concise fiord-, of the material facts on which the Party pleading relies for his claim or defence, as the case may be, but not the evidence by-which they are to be proved.

(2) Every pleading shall, where necessary be divided into paras, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.

(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.'

9-A. In the present plaint. there is absolutely nothing to confirm to Order Vt. Rule 2. C. P. C., as regards the allegation in the effect that there was an agreement I or purchase of Royal Bhutan Lottery ticket Madras or about the sharing of the prize money, if won. In the additional affixed filed by the appellant between, it has been stated in para 2 as follows-

'I state that myself and the first defendant came to Madras in April 1980 and we said at Anna Nagar West, Madras. 40; in Our relation's house at door No. 33 Jagadambig.)i St. West Anna Nagar, Madras 40. Where we were staying in Madras. in the above said relation's house, we entered into an agreement in and by which the first defendant will purchase and sell lottery tickets by the money entrusted by the plaintiff and also the first defendant will put 1/4th of the amount invested by the plaintiff. Accordingly, the plaintiff invested, Rs. 2000 in the business and the first defendant put a sum of Rs. 500 for, the business and as the plaintiff was a carpenter working in P. R. C. Coimbatore, the business was agreed to be done by the first defendant in his petty shop owned by him at Coimbatore.'

10. From these averments, Mr.. Srinivasan wants to submit before this Court that the agreement was entered into between the plaintiff and defendant 1 at Madras. On a -reading of the above averments, it is too much for us to presume that the parties intended to purchase lottery tickets at Madras and share the prize, if any, between themselves. At best, the above averments, will indicate that the parties wanted to do business by selling lottery tickets. Further, we have to go only by the averments in the plaint and not by the averments in the affidavit. This position it has been made very, clear in. Muttra Electric Supply Co; Ltd. v. Gopal Saran Kulastesthi, : AIR1955Cal295 referred to by the learned Advocate General. In this decision, it has been stated that in an application for revocation of leave under Clause 12, the plaint is the most material document on which the decision should rest. although such decision does not rest merely on a criticism of the pleading. The petition and the affidavits in support of and against the revocation of leave and relevant. but must be read subject to the overriding considerations and facts pleaded in the plaint. It is not unusual that in such petition and affidavits the plaintiff and the defendant are prone to overstate their respective cases for and against the leave. and such overstatement should be led down by reference to the plaint. In re Lakshminarayana. : AIR1954Mad594 (FB)a full bench of this court has held as follows (Head Note)

'Cause of action' means the bundle of essential facts which is necessary for the plaintiff to Prove before he can succeed in the suit. or to put it differently. it refers to the media upon which the Court arrives at a conclusion in his favour. A cause of action is something more than a ground or. unity of title, It not only includes the -facts necessary to support the plaintiff's title, but also the facts which entitle him to relief against a particular defendant.' In the present case, the plaint allegations do not satisfy the ratio enunciated in the above decision.

11. Mr. M. Srinivasan then contended that since one of the branches of the second defendant is at Madras, the cause of action to file the suit on the, Original Side of this Court will enure to the appellant herein. Clause 12 of the Letters Patent reads as follows:-

'Original jurisdiction as to suits: And we do further ordain that the said High Court of Judicature at Madras, in exercise of its ordinary original civil junsdiction, shall be empowered 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 action 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 it 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; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Madras. m which the debt or damage, or value of the property sued for does not exceed one hundred rupees'.

12. In Madanlal Jalan v. Madanlal, ILR (1945) Cal 333 : AIR 1949 Cal 495. Das, J. of the Calcutta High Court, on a consideration of the legal principles established by judicial decisions, delineated the following proposition:-

(a) that an application lies for revoking leave granted under Clause 12 of the Letters Patent;

(b) that such an application should be made at an early stage of the suit and delay and acquiescence may be a bar to such an application:

(c) that if the application depends on difficult questions of law or fact. the Court should not revoke leave on a summary application the trial:

(d) that if the defendant shows clearly that no part of the cause of action arose within the jurisdiction the leave should be invoked as a matter of course;

(e) that if only a part of the cause of action arose within jurisdiction, then it is but should decide the question at a question of discretion for the Court to give or refuse leave or where leave bar, already been granted to revoke or maintain the leave;

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

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

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

(i) that if the cause of action is founde4 on an assignment within jurisdiction of a negotiable instrument, the Court will, in recognition of the principle of negotiability, insist on a far greater degree of balance of convenience in favour of the defendant and will more readily give or maintain leave than in other cases of assignment; and

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

The learned Judge has reiterated the- well accepted proposition that when the defendant shows clearly that no part of the cause of action arose within the jurisdiction, the leave should be revoked as a matter of course. in our view, the only implication of Clause 12 of the Letters Patent is that where no, part of the cause of action arose within the jurisdiction of the Court, the revocation of the leave is a must. Applying the said principle to the facts of the present case, we hold that the plaintiff not having shown that any part of the cause of action arose within the jurisdiction of the Original Side of this Court, the revocation order is fully justified. The facts of the present case as pleaded in the plaint clearly establish that the ticket was purchased at Coimbatore, the Money was deposited in the bank at Coimbatore, the panchayat was held at Coimbatore and the plaintiff and the first defendant are at Coimbatore. The only pleading in the suit to file it at Madras is that the branch of the second respondent is at Madras. This would not suffice for maintaining the suit at Madras against defendant 1. The plaintiff obviously cannot split up the, prayer to maintain the suit against defendant 2 alone at Madras. The plaint as laid in this Court on the Original Side cannot be entertained and rightly the leave was revoked by the learned single Judge of this Court. We are not in a position to accept the proposition of Mr. M. Srinivasan, counsel for the appellant, that the matter involves complicated questions of law and facts and hence they have to be relegated for trial in the suit itself. This is a case where the plaint allegations do not patently show that any part of the cause of action arises within the jurisdiction of the Original Side of this Court. For all these reasons, the appeal is dismissed., No costs.

13. After we have pronounced judgment in open Court on 3rd March 1983, Mr. Peter Francis, appearing for the appellant mentioned to us to have the matter posted before us for orders today. Accordingly, the matter comes up before us today.

14. Mr. Peter Francis submits that this Court may direct the office of the Registry to return the plaint in order to enable the appellant to present the same before the proper forum and also wants this Court to specify the time limit within which the plaint has to be presented before the proper forum. Learned counsel prays for stay of the direction to retain the money with the second defendant bank.

15. We are afraid, we cannot accede to the request for stay. As regards the return of the plaint, we are inclined to accede to the request and we direct the Registry on the Original Side of this Court to return the plaint to the counsel for the appellant herein on or before 11-3-1983 in order to enable him to present the same before the proper forum within three weeks from t1ke date of return of the plaint.

16. Appeal dismissed.


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