1. This case is a somewhat difficult one but I am convinced on the whole that the two cases which Mr. Sen has sited to me are applicable to the facts as I understand them. I think the case reported in Hyman v. Helm (1883) 24 Ch. D. 531 : 49 L.T. 376 : 32 W.R. 258 and the case in which that case was referred to, reported in Vardopulo v. Vardopulo (1909) 25 T.L.R. 518 : 63 S.J. 469, are very strong authorities in favour of Mr. Sen's contentions.
2. The application before me is to restrain the defendant before decree from commencing or, rather, from prosecuting an action in a foreign Court about the same subject matter. The first point 1 notice is that the application is entirely late. The action in Bikanir has been going on for a considerable time and I think it is an essential condition of such an order as I am asked to make that it should be applied for very promptly and that it should not be applied for after a considerable amount of time and trouble has been expended in the foreign suit. As regards the actual institution of the suits, it appears that the suit in this Court was instituted on 5th June but that the writ of summons was not served upon the defendant in the suit until somewhere about 12th July, i.e., a week after the defendant in this suit had instituted the suit in the Court of Bikanir. It is said against that that before the action brought here the plaintiff had given notice to the defendant that he was about to bring the suit. The defendant went to Bikanir, it appears, sometime before the 5th July and started his suit there. He now comes and explains that the plaintiff in this suit has got property in Bikanir. He says that he thought that advisable for the reason that money due to him under a decree could be realised much more readily and more speedily against the present plaintiff if he brought the suit in Bikanir, I am not prepared to find against that contention and the circumstances of this case are not, I think, so strong as to induce me to do what, apparently, has never or very rarely been done, viz, to restrain a defendant sued in one country from bringing an action in another country where he believes himself to have a more convenient forum. If the matter had beer a question between this Court and some other Court in Bengal, or even some other Court in British India, other considerations would apply. It is quite true that the partnership appears to have been carried on in Calcutta, but, on the other hand, the two parties appear both to be subjects of His Highness the Maharajah of Bikanir. On the whole, I think that I should be running the risk of impairing the very sound principle laid down in the two cases to which Mr. Sen has referred if, in this case, I were to give the injunction asked for. That being so, I shall dismiss this application but the costs of to-day will be reserved.