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The Clan Line Steamers Ltd. Vs. Gordon Woodroffe and Co. (Madras) Pvt. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberO.S.A. No. 102 of 1978
Judge
Reported inAIR1980Mad73
ActsIndian Contract Act - Sections 65, 70 and 72
AppellantThe Clan Line Steamers Ltd.
RespondentGordon Woodroffe and Co. (Madras) Pvt. Ltd. and ors.
Appellant AdvocateA.C. Muthanand and ;Subramanian, Advs.
Respondent AdvocateS. Chellaswami, ;M. Subramanian, ;N. Ramamurthi, ;A. Arumainathan, ;K.N. Karthikeyan, ;S. Rajaraman and ;L. Jayakumar, Advs.
Cases ReferredIn Bhulka Bros. Ltd. v. Govindram Bros Ltd. (an
Excerpt:
letter patent, clause 12--suit already instituted--new party to be added, residing outside the jurisdiction--application for grant of leave to institute--suit against the proposed party--whether maintainable. ; by a written agreement entered into between the plaintiff company and the first defendant, the plaintiff was appointed the sole steamer agent for the clan line steamers ltd., u.k., and under the agreement the plaintiff acquired certain share of the clan line vessals. the said agency was terminated and the second defendant was appointed as the agent. the plaintiff filed a suit against the defendants for a permanent injunction restraining them from taking over the steamer agency. subsequently another suit was filed without obtaining leave under clause 12 of the letters patent. the.....1. this appeal has been preferred against the order of padmanabhan j. on appn. no. 2640 of 1978 in c. s. no. 26 of 1978, refusing to revoke the leave to sue granted to the first respondent plaintiff under clause 12 of the letters patent.2. the first respondent plaintiff, m/s. gordon woodroffe & co. (madras) pvt. ltd., filed the suit c. s. no. 26 of 1978 on the original side of this court against respondents 2 to 4 for a declaration that the termination of the plaintiff's appointment as the first defendant's agents at madras, kakinada and visakhapatnam together with the plaintiff's function as the first defendant's co-ordinating agent for the first defendant's trade from india and as the first defendant's controlling agent for cuddalore, masulipatnam, nagapattinam and trivandrum is.....
Judgment:
1. This appeal has been preferred against the order of Padmanabhan J. on Appn. No. 2640 of 1978 in C. S. No. 26 of 1978, refusing to revoke the leave to sue granted to the first respondent plaintiff under clause 12 of the Letters Patent.

2. The first respondent plaintiff, M/s. Gordon Woodroffe & Co. (Madras) Pvt. Ltd., filed the suit C. S. No. 26 of 1978 on the Original Side of this Court against respondents 2 to 4 for a declaration that the termination of the plaintiff's appointment as the first defendant's agents at Madras, Kakinada and Visakhapatnam together with the plaintiff's function as the first defendant's co-ordinating agent for the first defendant's trade from India and as the first defendant's controlling agent for Cuddalore, Masulipatnam, Nagapattinam and Trivandrum is illegal, void, inoperative and not binding on the plaintiff and for a permanent injunction restraining the first defendant or their agents or servants or anybody claiming under or through them from interfering with the possession and enjoyment of the property of the plaintiff, namely, Clan Line Agency for the Ports of Madras, Kakinada and Visakhapatnam, together with the plaintiff's functioning as le first defendant's co-ordinating agent for their trade from India and functioning as their controlling agent for Cuddalore, Masulipatnam, Nagapattinam and Trivandrum, and also restraining the first defendant from taking away the said, agency from the plaintiff and from appointing the second or the third defendant or any other person or company or firm as their agents, or in the alternative directing the first defendant to pay a sum of Rs. one crore to the plaintiff as and for damages.

3. Among the allegations contained in the plaint, the material ones in so far as this appeal is concerned, are the following. By a written agreement dated 21-9-1878 entered into between the plaintiff company and the first defendant, the plaintiff was appointed the sole steamer agent for the Clan Line Steamers Ltd., U. K. and under the agreement the plaintiff acquired 1/64th share of the Clan Line Vessels 'Clan Alpine' and 'Clan Fraser' and accordingly the plaintiff invested large amounts of money for building up and expanding the cargo trade in the three ports of Madras, Kakinada and Visakhapatnam and due to the tremendous, extraordinary and special efforts made by the plaintiff, the cargo traffic had increased by leaps and bounds and the plaintiff company was induced to enter into the aforesaid agreement on the basis that the agency was irrevocable and it was on that basis that the 'Plaintiff expended enormous amounts for building up the agency business; and the plaintiff had always performed the terms of the agency and has always been willing and ready to perform the terms of the agreement. But on 25-10-1977, the second defendant informed Mr. Vishnu Mohan, one of the directors of the plain tiff company that he had received a notice of termination of the agency from the first defendant and on 1-11-1977, the second defendant showed the notice of termination dated 19-10-1977. The plain tiff contends that the termination of the agency is arbitrary, capricious and with out any valid reason and for no sufficient cause and the reasons given in the letter of termination were totally unfounded and without any basis and the termination of the agency by the first defendant was under the erroneous assumption that there was a directive from the Reserve Bank of India to discontinue the agency activities from 1-1-1978 and the first defendant who is persisting in sticking to its decision has appointed the second defendant as its agent even after knowing that the second defendant had made representation and had maneuvered to grab the agency for himself at the expense of the company. The plaintiff further, contended that it was entitled to reasonable notice before termination of the agency and also for compensation. It might be noted that it was asserted in the plaint that the first defendant was carrying on steamer business in India at Calcutta, Bombay, Cochin & Madras and other ports through agents and the third defendant company was started by the second defendant for taking over the agency. The plaintiff had filed the suit C. S. 450 of 1977 against defendants 2 and 3 for a permanent injunction restraining them from taking over the steamer agency. The present suit C.S. 26 of 1978 was subsequently filed.

4. It might be noted that this suit was filed without obtaining leave under cl. 12 Letters Patent, for it is asserted in the plaint that the cause of action arose at Madras where the first defendant carries on business through its agents. Subsequently Appn. No. 1771 of 1978 was filed in the present suit for impleading the Clan Line steamers Ltd., as the 4th defendant an the ground that the proposed 4th defendant was the principal of the first defendant company which has been carrying on the business of Clan Line Steamers Ltd., and the 4th defendant was a necessary party, inasmuch as it is the principal of the first defendant company and Appn. No. 1742 of 1978 was filed by the plaintiff for leave under clause 12, Letters Patent to institute the suit against the proposed 4th defendant. Leave was thereupon granted on 20-4-1978. it is to revoke that leave that Appn. The 4th defendant filed No. 2640 of 1978.

5. It was contended on behalf of the proposed fourth defendant that the suit should have been filed against the 1st defendant, only after obtaining leave under clause 12 Letters Patent. Inasmuch as it has been asserted in the plaint that the first defendant is carrying. on business in Madras through its agent leave to sue under clause 12 was rot obtained when the suit was instituted. Since the other defendants themselves raised the contention that the Proposed fourth defendant was a necessary party to the suit and the suit was bad for non-joiner, the plaintiff had to file the, application for impleading the proposed 'fourth defendant and since the proposed fourth defendant is carrying on business in London, leave has to be necessarily obtained under-clause 12 Letters Patent before the proposed 4th defendant is actually impleaded in the suit,

6. Padmanabhan, J., after considering the matter with reference to the authorities cited by both sides rejected the contention advanced on behalf of the proposed fourth defendant that when the plaintiff seeks to add the proposed fourth defendant as a party,' leave cannot be granted by this court under clause 12 Letters Patent, since leave had not been originally granted at the time of institution of the suit. He further found that the balance of convenience was also in favour of not revoking the leave already granted. The proposed 4th defendant has therefore come up in appeal against that order.

7. It has been contended by Mr. Govind Swaminathan on behalf of the appellant first of all that since leave to sue had not been obtained when the suit was originally filed the suit is non est and consequently there can be no question of adding a new party or obtaining leave in that suit under clause 12 of the Letters Patent subsequent to the institution of the suit even on the ground that a new party is proposed to be added, and secondly that if leave to sue should have been obtained at the time of the institution of the suit that defect cannot be cured by now asking for leave to sue on the ground that a new party is proposed to be added.

8. With regard to the first contention of Mr. Govind Swaminathan, that since leave to sue had not been obtained against the first defendant at the time of the institution of the suit, the suit is, non est and as such there cannot be any addition of any new party and asking for leave to sue in respect of that we have to mention that while disposing of O.S.A 22 of 1978 preferred by the plaintiff against the order of dismissing his application for injunction , we had dealt with the objection of the first defendant that the suit against him its not maintainable at all in view of the fact that leave to sue had not been obtained under clause 12 Letters Patent, even though the 1st defendant does not actually carry on any business within the jurisdiction of this court and we observed

"As. regards the objections based on Clause 12 Letters Patent, that no leave to sue has been obtained before the filing of the suit even though the first respondent does not carry on any business with-, in the jurisdiction of this court, we are prime facie of the view that the first respondent should be deemed to be carrying on its business within the limits of this court through its agent, the appellant and on the date of suit, therefore, the question of obtaining leave to sue does not arise. The question whether the first respondent carried on business through its agent within the limits of this Court is also a matter that requires, elaborate consideration at the time of the trial after evidence is let in".

Therefore it cannot be contended at this stage that the suit filed against the first defendant is non est. It is only during the trial of the suit after evidence is let in that it could be decided whether or not the first defendant is carrying on business within the jurisdiction of this court through its agents and if it is eventually found that the 1st defendant is not carrying on any business within the jurisdiction of this court through its agents and as such leave to sue should have been obtained under Clause 12 Letters Patent, and for want of such leave the suit is not maintainable, the legal consequence arising from that situation would necessarily follow as has been pointed out by Padmanabhan, J As far as the 1st defendant is concerned, undoubtedly, if leave to sue was required under Clause 12 Letters Patent, and if it had not been obtained at the time of the institution of the suit, that defect cannot be cured by subsequently granting leave to sue under Clause 12 Letters Patent. That is a well-settled proposition of law, which cannot be disputed.

9. Where leave under Clause 12 is necessary, the granting of such leave is a condition precedent to the court having jurisdiction to entertain the suit; and therefore such leave has to be obtained at the time of the institution of the suit (Vide Shamchandra Rampratap v. Bhikamchand Ganeshlal, AIR 1929 Bom 468; Motilal Tribhovandas v. Shankarlal Chaganlal, AIR 1939 Bom 345; Bimal Singh Kothari v. Muir Mills Ltd., , Kshitish Kumar v. State of Bihar

and Laliteswar Singh v. Rameswar Singh (1907) ILR 34 Cal 619)).

10. Mr. Govind Swaminathan on be half of the appellant has contended that inasmuch as the suit was not originally instituted after obtaining leave under Clause 12, subsequently leave under Clause 12 cannot be asked for or obtained even when, by way of amendment, a new cause of action or an alternative cause of action is sought to be introduced or an additional party is sought to be impleaded and consequently leave to sue in so far as the proposed 4th defendant is concerned, should not have been granted. In support of his contention, Mr. Govind Swaminathan has relied first of all on the decision in Motilal Tribhuvandas v. Shankarlal Chaganlal AIR 1939 Bom 345. That was a case where a suit was filed by 6 partners in a' firm against the defendant alleging that the defendant has given instructions to the six plaintiffs to effect transactions on his -behalf and they worked as his brokers and as a result of carrying out the transactions those 6 plaintiffs had suffered a loss and they claimed the same from the defendant. Since the defendant was a resident of Surat it was asserted in the plaint that a part of the cause of action had arisen in Bombay within the jurisdiction of the Bombay High Court and as such leave under Clause 12 Letters Patent was obtained at that stage and, the plaint was filed. But subsequently when the defendant appeared in response to the summons he raised the contention that he had dealings only with an individual Motilal Tribhuvandas Choksey and not with the plaintiff firm and that the firm, namely, the 6 Partners together had no cause of action against him at all. Thereupon the learned chamber Judge granted unconditional leave to defend to the defendant, (The suit was filed as a summary suit) and thereafter the plaint was amended and Motilal Tribhuvandas Choksey, the individual continued the suit in his own name, but no leave under Cl. 12 Letters patent was obtained at the time when the amendment was made. It was held by the learned Judge, Kania, J., of the Bombay High Court that the obtaining of leave under Cl. 12 Letters Patent was the foundation of the jurisdiction and such leave must be obtained before the institution of the suit and cannot be granted afterwards and further as held in Rampurtab Samruthroy V. Premsukh Chandamal (1891) ILR 15 Born 93, the leave granted was confined to the cause or causes of action set forward in the plaint at the time the leave was granted and hence the plaint cannot be amended so as to alter the cause Of action and If an amendment which would alter the cause of action was made, it necessarily follows that fresh leave should be obtained in respect of the altered cause of action and no leave having been obtained when Motilal, the Individual, desired to carry on the suit, the suit has to be dismissed. it might be noted that Kania, J. did not consider the question as to whether leave to sue under clause 12 Letters patent could have been asked for and obtained before the Plaint was sought. to be amended by altering the cause of action.

11. The next decision cited by Mr. Govind Swaminathan is the me in Baraset Basirhat Light Rly. Co. Ltd. v. Dist Board, 24 Parganas, ILR (19") 2 Cal 101. There the defendant Board neither resided nor carried on business within the jurisdiction and only part of each cause of action arose within the jurisdiction and consequently leave of the court was required before the court could entertain any of the claim in the suit and leave was obtained under Clause 12 Letters Patent to Institute the suit at the time when the only claim made was under certain agreements. But by an amendment the company, in the alternative, claimed reliefs under Sections 65, 70 and 72 of the Indian Contract Act. It was held that the new reliefs asked' for were not different forms of relief in respect of the cause of action originally contained in the plaint, but each was a fresh cause of action, for which leave was required under clause 12 Letters Patent. Referring to the decision in Rampurtab Samruthroy v. Premsukh Chandamal (1891) ILR 15 Bom 93, where it was held that the grant of leave is, a Judicial act relating solely to the cause of action set forth in the plaint at the time leave was obtained and -that such leave affords the very foundation of the jurisdiction and is not available to confer jurisdiction in respect of a different cause of action which was not Judicially considered at the time leave was granted and that subsequently the plaint cannot be amended so as to alter the cause of action and that therefore the court cannot try a different cause of action save in another suit, Gentle J., of the, Calcutta High Court held that the grant of leave is a condition precedent to the court having jurisdiction to receive such a suit and an amendment to a plaint raising a new cause of action upon which a claim is made is not a fresh suit but is an additional claim made in an existing suit. It was pointed out that leave to sue was not sought with respect to the cause of action in the amendment either at the time application was made to amend or when the leave was given for the amendment or when the plaint with the amendment was presented to the court and as such the court had no jurisdiction to receive, try and determine the claims upon the cause of action in the amendment to the plaint since leave was not previously obtained in respect of those causes of action before the suit in which those claims are made was Instituted. But then, the learned Judge did not consider or decide the question whether leave to sue can be asked for and obtained with respect to the new causes of action at the time when the application was made to amend. Nevertheless, since the learned Judge has pointed out that leave to sue was not sought for, either at the time when the application was made to amend or when leave was given for the amendment it would appear that he was of the view that leave to we could have been asked for and obtained at the time when the application to amend the plaint was made.

12. The third decision cited by Mr. Govind Swaminathan is the one in Kshitish Kumar v. State of Bihar, . In that case, the learned single Judge of the Calcutta High Court, while dealing with an application for amendment of the plaint, by which amendment the cause of action was sought to be altered and a new. cause of action added, held that no such amendment can be ordered if it required leave to be granted under cl. 12 at the time of the amendment; and it follows that leave under clause 12 cannot be granted in such a cause at any stage after the 'institution of the original suit. The learned Judge after referring to a number of authorities, namely, Laliteshwar Singh v. Rameswar Singh (1907) 34 Cal 619, Rampurtab Samruthroy v. Premsukh Chandamal (1891) ILR 15 Bom 93, Motilal Tribhuvandas v. Shankarlal Chaganlal AIR 1939 Bom 345, Baraset Basirhat Light Rly. Co. Ltd. V. Dist. Board AIR 1946 Cal 23 and Benoy Shankar v. Chotelal, summarised the result of those authorities as

follows--

"l. Where leave under Cl. 12 Letters Patent is necessary, the granting of such leave is the condition precedent to the court having jurisdiction to entertain the suit.

2. Therefore, such leave is to be obtained at the time of the institution of the suit.

3. Where by amendment of a plaint, a cause of action is altered or a new cause of action added, it is not a new suit but the old suit in a new form. In such a case, no amendment can be ordered if it requires leave to be granted under cl. 12 Letters Patent at the time of the amendment.

4. It follows that leave under Cl. 12 Letters Patent cannot be granted in such a case, at any stage after the institution of the original suit.

5. But where a new party is added, the suit as regards the added party must be deemed to have been commenced on the date when he was so added. Consequently, if the cause of action against the added party requires leave under Cl. 12, Letters Patent, it is open to the court to grant such leave, if asked for at the time of the amendment; and if such leave has not been asked for or obtained in such a lease, the court has no jurisdiction to entertain the suit against such an added defendant."

13. We notice that in the aforesaid decision a distinction has been made between suits in which by amendment of plaint, the cause of action is altered or a new cause of action is added and suits in which a new party is sought to be added, and the cause of action against the party proposed to be added, requires leave under Cl. 12 Letters Patent, and it has been held that in the former case leave under Cl. 12 -cannot be panted after the institution of the original suit, but in the latter it is open to the court to grant such leave it asked for-at the time of the amendment. It might be noted that the case now before us would come under the latter category.

14. In Rampartab Samrathrai v. Foolibai, (1896) ILR 20 Born 767, it was held that where a defendant is added who does not reside within the jurisdiction of the High Court and against whom the cause of action has not arisen wholly within that jurisdiction leave must be obtained afresh under Cl 12 Letters Patent even if leave had been obtained when the suit was originally filed. Now, it might be noted that in the case before us the proposed 4th defendant who is sought to be added does not reside within the jurisdiction of this court and the cause of action against, him has not arisen wholly within the Jurisdiction of this court and as such leave must be obtained under Cl. 12 Letters Patent afresh to sue him even if leave had been obtained when the suit was originally filed, and the fact that leave had not been obtained when the suit was originally instituted, would not in any way affect the request for leave asked for when the proposed 4th defendant is sought to be added. The aforesaid decision appears to support the contention of Mr. G. Chellasami for the respondent that leave can be obtained under Cl. 12 Letters Patent when a new defendant who does not reside within the jurisdiction of the court and against whom the cause of action has not arisen wholly within that jurisdiction is sought to be added.

15. In Devidatt Ranmiranjandas v. Shriram, AIR 1932 Bom 291, when the suit was instituted the plaintiffs obtained leave under Cl. 12 Letters Patent on the allegation that the material part of the cause of action had arisen in Bombay. But when however some defendants were subsequently added as party defendants the plaintiffs did not obtain fresh leave under Cl. 12. It was held that the force of an order granting leave was exhausted when the suit was filed and where a defendant who was not residing within the jurisdiction was added after the institution of the suit, fresh leave must be obtained at the time of the application to add him as a party if the cause of action had arisen in part only within the jurisdiction. This decision also lends support to Mr. Chellasam's contention.

16. In Amritlal Mullick v. Sesh Prokash Mullick, it has been observed by the learned judge of the Calcutta High Court that 'in a suit when a new party is sought to be added by way of amendment', the suit is, a new suit as against the added party. When amendment is allowed and order made in that behalf a new suit comes into existence. It is not emphatically the old suit. If the new suit cannot be 'received, tried and determined' by this court under Cl. 12 Letters Patent, except by first obtaining leave under Cl. 12, Letters Patent, why should the leave be not asked for and granted by court? Ordinarily a suit is initiated by the presentation of the plaint and when the court accepts it and has it registered and numbered, the plaint is 'received' by the court. The Code also provides that after the institution of a suit a party can be added and the law is that so far as the added parties are concerned, it is a new suit. It is only when the order adding a new party is perfected and plaint amended that the court can be said to have received a suit so far as the added party is concerned. It follows that in suits in which leave under Cl. 12 Letters 'Patent is necessary before the order of amendment is prayed for, leave under Cl. 12 becomes necessary if not imperative. It is a fallacy to contend that a suit can be initiated only by presentation of the plaint and the Court 'receives' a suit when it accepts the plaint and not otherwise. A suit can also be initiated against a new party by making an application for amendment and the court receives the suit as against him when after granting leave the court adds the party and then amends the plaint by bringing the new party on record. The presentation of the plaint and registration of the suit is, therefore, not the only way in which the court "receives' a suit in law. For reasons given above a suit instituted after obtaining leave under Cl. 12 Letters Patent can be amended in law and there is nothing in the wording of Cl. 12 Letters Patent to prevent the court from granting leave under Cl. 12 Letters Patent to amend the plaint by adding parties, in the case of a suit instituted after obtaining leave under Cl. 12 Letters Patent.

17. Mr. Govind Swaminathan, however, emphasises the words 'there is nothing in the wording of Cl. 12 Letters Patent to prevent the court from granting leave under Cl. 12 Letters Patent to amend the plaint by adding parties, in the case of a suit instituted after obtaining leave under Cl. 12 of the Letters Patent', and he has argued that, inasmuch as the suit as originally framed was not instituted after obtaining leave under Cl. 12 of the Letters Patent, leave cannot now be asked for under Cl. 12, even when new parties are to be added. In other words, his argument is that leave under Cl. 12 of the Letters Patent could be asked for and obtained when new parties are added only when originally the suit had been instituted after obtaining leave under Cl. 12, Letters Patent and since in this case leave under Cl. 12 was not obtained before filing the suit as it was originally framed, the court cannot grant leave under Cl. 12, even when new parties are sought to be added. We are however unable to agree with this contention of Mr. Govind Swaminathan, for the preponderance of authorities does not support that contention.

18. In Biswanath Agarwalla v. Sm. Dhapu Debi Jejodia, , it was held that in a suit for land partly situate within and partly outside jurisdiction, instituted after obtaining leave under Cl. 12 no fresh leave for amendment is necessary if the plaint is subsequently amended, by introducing a new cause of action relating to land situate wholly within the jurisdiction of the court. It was observed that, by the amendment a new suit, as it were, is being instituted and since it relates to a land situate wholly within the jurisdiction of that court, no leave under Cl. 12, Letters Patent is necessary. We are of the view that if a suit had been instituted against the defendant in respect of whom leave to sue under Cl. 12 need not be obtained is residing or carrying on business within the jurisdiction of the court, but subsequently a new party is sought to be added, against whom, under Cl. 12, Letters Patent, leave to sue would be required, inasmuch as he does not reside or carry 'on business within the jurisdiction of the court, there could be no objection to the court granting such leave, for in effect a new suit is being instituted against the new party.

19. Clause 12, Letters Patent says that the High Court of Judicature at Madras, in exercise of its ordinary original civil jurisdiction shall be empowered to receive, try and determine suits of every description if, in the case of suits for land or other immoveable property, such land or property shall be situated, or, in all other cases, if the cause of actim 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. On the ground that the first defendant is carrying on business through his agent within the jurisdiction of the court, the plaintiff did not obtain leave under Cl. 12, Letters Patent, for such leave under Cl. 12, Letters Patent, would not be necessary if the first defendant at the time of the commencement of the suit was dwelling or carrying on business or was personally working for gain within the limits of the jurisdiction of this court. But the proposed 4th defendant is not dwelling or carrying on business or -personally working for gain within the jurisdiction of this court and as such leave should be obtained under Cl. 12 only against the proposed 4th defendant. The suit against the proposed 4th defendant would be a new suit and even if the suit against the 1st defendant is held to be not maintainable eventually, on the ground that leave under Cl. 12 of the Letters Patent had not been obtained, the suit against the other defendants, including the proposed 4th defendant, would still remain unaffected. Such being the case, we do not think that the question of grant of leave under Cl. 12 as against the proposed 4th defendant in any way hinges upon the question as to whether the suit against the 1st defendant had been properly received by obtaining leave under Cl. 12, Letters Patent. We are unable to accept the contention of Mr. Govind Swaminathan on behalf of the appellant that inasmuch as in most of the decisions referred to by us above the suits had been originally instituted after obtaining leave under Cl. 12, Letters Patent and when an additional defendant was sought to be added after obtaining leave under CL 12, Letters Patent the court granted such leave afresh in the case of the defendant sought to be newly added, this court cannot grant leave under Cl. 12, Letters Patent, and allow the proposed 4th defendant to be impleaded since originally the suit was instituted against the 1st defendant without obtaining leave under Cl. 12, Letters Patent

20. Mr. Chellaswami on behalf of the first respondent-plaintiff raises also the question of waiver and submission to the jurisdiction of this Court; but we do not think that there is any submission to the jurisdiction of this court- or any waiver, for at the earlier opportunity the objection had been taken.

21. It should be noted that the application for impleading the proposed 4th defendant had to be filed because of the contention raised by the other defendants, which the proposed 4th defendant is a necessary party to the suit and the suit is bad for non-joinder of necessary parties. It should also be noted that on behalf of the plaintiff-company it is contended that when the suit was originally filed there was no necessity. to obtain leave of court, because according to the assertions made in the plaint, the first defendant is carrying on business through its agent in Madras. But since the 4th defendant is carrying on business in London leave has to be necessarily obtained before he is added as a party.. Such being the case, the fact that the suit as originally instituted was instituted without obtaining leave under Cl. 12, would not be a bar to the court granting eave under Cl. 12, Letters Patent, when a new defendant is sought to be added, and when the suit in respect of that defendant can only be instituted after obtaining leave under Cl. 12 in view of the fact that that defendant is not residing or carrying on business within the jurisdiction of the court.

22. In Muthusamy v. Krishnaswamy, , the suit as

originally filed was for specific performance of a contract for the sale of certain lands in Salem District, entered into at Madras and for an injunction restraining the 2nd defendant from bringing about a breach of the said contract and leave was obtained under Cl. 12, Letters Patent. But subsequently on the plaintiff coming to know that the 2nd defendant claimed to be a purchaser of, the same property under a sale deed, filed an application for amendment of the plaint Contending that the sale in favour of the 2nd defendant was sham and nominal and the 2nd defendant was not a bona fide purchaser for value without notice and added the relief of directing the execution of the sale deed by the 2nd defendant also and along with the application for amendment an application for leave to sue- on the basis of the plaint sought to be amended was also filed. The question that arose for confederation was 'does the circumstance that previous leave to institute had been obtained in a suit disentitle the plaintiff from asking for an amendment of the plaint in the suit so instituted. While considering the question, the decisions in Rampurtab v. Premsukh, (1891) 15 Born 93, Motilal v. Sankarlal AIR 1939 Born 345 and Barasat Basirhat Light Railway Co. v. Dist. Board, 24 Parganas, ILR (1944) Cal 101, were considered; and the learned Judge held as follows

"I am of the opinion that in cases where the court, on an application of the plaintiff, considers that the plaint has to be amended so as to include a cause of action, which was not originally in the plaint, on the ground that such an amendment is necessary, it does not prevent the court from granting such an amendment merely for the reason that it was a suit instituted after obtaining previous leave to sup under Cl. 12, Letters patent. It does not also preclude the plaintiff from giving effect to such an order by carrying out the amendment or presenting an amended plaint, before which, however, he should apply for and obtain leave to sue on the cause of action described in the amendment under C1 12 Letters Patent. Such, an application for leave can be filed and leave can be granted, if it comes within the scope of Cl. 12 Letters Patent."

23. These observations indicate that even when a plaint is amended by introducing a new cause of action a court can grant leave under Cl. 12 Letters Patent and that there is nothing in Cl. 12 Letters Patent to show that the plaint in situated under Cl. 12 would not include an amended plaint and if an amended plaint after obtaining the leave to amend is to be received and the cause of action arising therein is to be tried and deter mined which cannot be done without previous leave being obtained, there is no reason why such leave to present an amended plaint should not be granted under Cl. 12 on a fresh application stating the cause of action on which the amendment has been applied. for and the reasons for grant of leave under CU. IL This decision,. of course, is in conflict with the view of the-Calcutta High Court In Kshitish Kumar v. State of Bihar, , in so far as

amendments of plaints, introducing a new cause of action is concerned. In the case now before us, no new cause of action is sought to be introduced. The reason for adding in Clan Line Steamers Ltd., as the 4th defendant and for amending the plaint is to claim the same reliefs against the Clan Line Steamers Ltd., in respect of the same cause of action.

24. Coming now to the question of balance of convenience which was also considered by Padmanabhan J. it has been held in Bimal Singh v. Muir Mills Co. Ltd.,, as follows

"In considering the question whether leave granted should be revoked or not the question of convenience is a material factor, though the convenience of the parties is not to be weighed in a delicate balance. The nature of the suit and the question of comparative expenses are material considerations. But mere balance of convenience is not enough It must be proved to the satisfaction of the court that either the expenses or the difficulties of trial in this court are so great that injustice will be done to the defendant But at the same time, the Court ought not to exercise the jurisdiction, if by so doing an injustice is caused to the plaintiff."

25. Again, in regard to the principle to be followed by the Appellate Court In Interfering with an order passed by a trial Judge refusing to revoke a leave granted under C1 12, Letters Patent,, it has been observed in the said decision as follows:

"The revocation of leave is entirely a matter of discretion with the trial Judge and a court of appeal will be very slow to set aside the discretion, unless' it is Proved that he has misdirected himself as to the facts or on the law. It may be that the Court of appeal does not see eye to eye with the big Judge in such, matter, but that is no ground for setting aside the discretion exercise& by the trial Judge."

26. In Bhulka Bros. Ltd. v. Govindram Bros Ltd. (an unreported decision which has been referred to in the above decision, it was held as follows

"The plaintiff is the dominus litis and has the right to choose him am forum

This right of choice is, however, not absolute, and the court has the power in a proper case to interfere with the plaintiff's choice and revoke leave if the court considers that the forum has been chosen by the plaintiff mala fide or that the forum chosen is such that if the court permits the suit to go on, the other party would be so handicapped in his defence that it would lead. to injustice or that the balance of convenience is decidedly or overwhelmingly against the suit going on in the forum chosen by the plaintiff."

27. It is asserted now before us on behalf of this respondent-plaintiff that the entire evidence regarding the subject matter of the suit would be available only in Madras, for the main ground on which the suit has been filed is that the 2nd defendant, who was the Chairman of the plaintiff company at the relevant time misused his position as chairman .of the company and the trust reposed In him as such chairman and induced the proposed 4th defendant and the first defendant to -terminate the agency of the plaintiff and give it to the third defendant company which was formed by the 2nd defendant Further, in the case now before us there are no circumstances which would show that the plaintiff has chosen this forum mala fide, nor can it be said that the forum chosen is such that if the court permits the suit to go on, the other Party would be so handicapped in his defence that it would lead to injustice or that the balance of convenience is decidedly or overwhelmingly against a suit going on the forum chosen by the plaintiff.

28.We therefore find that Padmanabhan J. was right in having refused to, revoke the leave, which he had granted under Cl. 12, Letters Patent to sue the proposed 4th defendant. This appeal is therefore dismissed with costs.

29. Appeal dismissed


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