Walter Schwabe, C.J.
1. This case comes by way of interlocutory appeal from an order of Kumaraswami Sastri, J., in which he set aside leave to sue which had been granted in the suit.
2. The plaintiff in the suit is a surety for the due performance of his duties and the due accounting by the agent of the Kizhakke Kovilagam. Some years ago, proceedings were taken in Malabar against the agent by the then head of the Kovilagam, it being alleged that he had not properly accounted for monies that he had received, and the present plaintiff was brought into that suit as a surety. A decree having been obtained, and the, then agent, who was the first defendant in those proceedings, having been found to be indebted to the Kovilagam and being a person of no means, the present plaintiff as surety had to pay. In this suit the surety wishes to set aside the decree in the earlier suit. He makes as parties the present representatives of the agent and the present Ranee who is the representative of the then principal and is now the head of the Kovilagam. The defendants other than the Ranee reside in Madras. They are not British subjects but are subjects of the State of Cochin. In order to bring this suit within the Ordinary Original Civil Jurisdiction of this Court, an application was made and granted for leave to sue this lady who lives in Malabar. That application was necessary under Section 12 of the Amended fetters, Patent which provides that the Court should have jurisdiction '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 Civil Jurisdiction of the High Court.' It was then alleged that the cause of action arose in part in Madras. In order to ascertain whether that is correct or not, the learned Judge having held that no part did arise within the jurisdiction, I must look at the plaint. There in paragraph 12 it is stated that the cause of action arose partly in Madras in September 1919 when the plaintiff came to know of the existence of the securities and of the fact of the concealment of certain documents. If that paragraph stood alone, I should have no hesitation in saying that that does not show the arising of any part of the cause of action in Madras, for, in my judgment, the discovery of the fraud is no part of the cause of action. The cause of action is the fraud. But we are referred also to paragraph 8. In paragraph 8, it is stated that 'neither the 5th defendant's predecessor (the 5th defendant being the Ranee) or her agent the said Appu Pattar, nor his legal representative brought to light, in the previous litigation, though repeatedly called upon to produce by the Court and by the sureties, the collection papers including certain accounts and ledgers and thus effectively keeping it beyond the reach of the sureties and no one being in a position then to expose the frauds committed by them, the Courts had to pass a decree.' It. is said that what happened was this. That decree having been obtained in Malabar by false evidence and concealment of these very documents, he appealed to this Court, and that the guardian of certain minor respondents and the 5th defendant's predecessor conspired together to prevent the Court from ascertaining, as was a fact, that these documents said to be material were in the possession of one or another of those parties. The guardian put in an application to this Court supported by an affidavit alleging that he was unable to advise his minors whether they should go on with the case or not, as those documents had been concealed and without those documents he could not judge their position properly. The 5th defendant's predecessor answered that by an affidavit saying 'Those, documents might be of considerable use to me possibly to you, I have not got them. You, as the representative of the then first defendant the agent, have got them.' It is alleged that that was all done by both parties in conspiracy and that really the agent and his representatives after his death and his then principal had said to each other in effect, 'we will confuse everybody about those documents. You say, I have got them, I say you have got them, nobody knows where they are. Then judgment will go on against you the agent and you the agent have no money. I the principal will get it unjustly from your surety.' I must confess that, if it had been the intention of the Pleader to have made out that case, it could and should have been done in very much clearer language than is employed in paragraph 8. But I think the words of paragraph 8 referring to the previous litigation and frauds committed by them on the Courts are wide enough to cover such a charge and I think/therefore, that it is right to say that there is in this suit an allegation that 'fraud' was committed before the High Court here and, in my judgment, such fraud does form part of that cause of action. I am not surprised that the learned Judge did not appreciate that because I am fairly sure that he was not told of that view and no one would read it out of paragraph 8 without the clearer explanation of the true inward meaning of paragraph 8 which has been made to us in this Court. That being so, in my judgment, this Court has jurisdiction to grant the leave.
3. It is then said that it really does not give a cause of action at all and if the fact alleged to have taken place in Madras does not give a cause of action, it follows that no part of the cause of action, arose in Madras, because it must be an admissible cause of action. That contention is put on the ground that it has been decided by the Full Bench of this Court in Kadirvelu Nainar v. Kuppuswami Naicker 45 Ind. Cas. 774 : 41 M.L.J. 590 : 23 M.L.T. 372 : 8 L.W. 103 : (1918) M.W.N. 514 that no action lies to set aside a decree obtained by a fraud committed before the Court in the sense of production of false perjured evidence or the suppression before the Court of the truth. Whether that applies to the case now suggested, namely, two defendants conspiring outside the Court but going into the Court and both giving false evidence there, with the intention that the defendant party of those two should have a decree made against him which it was known he could not satisfy, with a view to make the surety pay an amount which was, not really due by anybody is a very difficult question and is one about which I do not desire to express an opinion, obiter.
4. Turning to the question whether this Court, assuming it has power, ought to grant the leave under Section 12 of the Amended letters Patent, I agree that the learned Judge was really not exercising the discretion, because he held that no part of the cause of action arose within jurisdiction; so I do not think it right to say we should be interfering with his discretion, because I think it is more correct to say that this discretion has not been exercised. We have to exercise ours. On the whole, I think we should refuse.
5. The real question to be considered is the balance of convenience. Nearly the whole of this alleged cause of action arose in Malabar. There would be no ground at all in my judgment for bringing it here if it did not happen that two of the defendants reside here who, it is alleged, have in their power here a very material document. I do not think that some difficulty which is anticipated in getting this document produced in Malabar is a sufficient ground for saying that this suit, which is essentially a Malabar suit, not a Madras suit should be brought in Madras and not in Malabar. That being our view, it is unnecessary to express an opinion as to whether Kadirvelu Nainar v. Kuppusami Naicker 45 Ind. Cas. 774 : 41 M.L.J. 590 : 23 M.L.T. 372 : 8 L.W. 103 : (1918) M.W.N. 514 applies or not.
6. A second point is taken and it is this: It is urged that, as some of the defendants are within jurisdiction, this Court has a right to bring before it in this suit defendants not within jurisdiction. That is a right which, under Section 20 of the Civil Procedure Code, is possessed by Courts in the mufussil. The application of Section 20 to this Court in the exercise of its Original Jurisdiction is expressly excluded by Section 120, Civil Procedure Code, and if we have the power it must be found within the four corners of Section 12 of the Amended letters Patent. The words are 'or if the defendant at the time of the commencement of the suit shall dwell or carry on business within such limits.' The principal defendant does not dwell here. The section does not say 'if the defendant or if there are more than one defendant any of them shall dwell or carry on business within such limits' and I cannot read the provision of the Amended letters Patent as conferring jurisdiction upon the Court in case where one or more of the several defendants reside within the jurisdiction. The point is free from authority except the case in Hadjee Ismael Hadjee Hubeeb v. Hadjee Mahomed Hadjee Joosub 13 B.L.R. 91 : 21 W.R. 303 which I read as affirming the view I am now expressing, although it has been read by a learned author, Mr. Broughton, as giving the High Court power to grant leave to sue in such cases. However on the view I have expressed in this case, viz., that on the balance of convenience the case should be brought in Malabar and not here, that point, too, does not directly arise for decision. On these grounds this appeal must be dismissed with costs and we must order the plaintiff to pay the Court-fee which he should have paid if he had not been permitted to sue as a pauper.
7. The plaint on a perusal of which we are expected to express our minds in this case is culpably vague in not clearly setting out the cause of action in Madras, i.e., the specific fraud alleged to have taken place in Madras nor the date when it arose. But as the plaintiff's real case has been put before us, it resolves itself into three main points.
8. First, fraud by way of collusion between the predecessor of defendants Nos. 1 to 4 and the predecessor of the 5th defendant in that they colluded to defraud and so got a decree against the plaintiff for an amount not really due.
9. Second, for damages for conspiracy between the above-mentioned persons who are all now dead and these damages are now sought to be recovered from the Kovilagam which the defendant now represents; and Third, for the accounting for and recovery from the fifth defendant of certain securities or concealed properties. The whole of the reliefs Nos. 2 and 3 is, therefore, sought against the 5th defendant or her estate: and as regards relief No. 1 most of the collusion alleged was prior to the suit in the original Court and in connection with the proceedings in that Court. Whether the plaintiff has any cause of action at all on the ground of fraud on the High Court is open to grave doubt under the ruling in Kadirvelu Nainar v. Kuppusami Naicker 45 Ind. Cas. 774 : 41 M.L.J. 590 : 23 M.L.T. 372 : 8 L.W. 103 : (1918) M.W.N. 514 . But it is a matter which, in the view I take, may be left for the Trying Court to decide and I would not say anything which would hamper it in trying that point. But assuming that a small portion of the relief which plaintiff seeks is based on any cause of action arising in this Court, I do not think we should exercise our diseretion under Clause 12 of the letters Patent considering that that portion of the plaintiff's relief which arises in the Court was not clearly set out by plaintiff until it was put forward in argument in this Court and that by far the major portion of the relief which he wishes was to be recovered from the 5th defendant who resides in Malabar or from her estate which is situated in Malabar.
10. As to the question whether we should give leave to bring the whole action in this Court merely because most of the defendants reside here while the 5th defendant does not, the bearing and interpretation of Clause 12 of the Letters Patent on this point is a matter of some difficulty, and I consider that it would be better not to say more on a point which is not necessary for the decision of the case, since I hold, even if the Court has the power, we should not in this case exercise it or give leave to the plaintiff to (sic). On the merits I agree that our discretion should not be used in the plaintiff's favour.