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TMI Blog1978 (11) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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 the first defendant's coordinating 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 1st defendant to pay a sum of Rupees 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 2lst September, 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 &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without obtaining leave under Clause 12 of the 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, Application No. 1771 of 1978 was filed in the present suit for impleading the Clan Line Steamers Ltd., as the fourth defendant on the ground that the proposed fourth defendant was the principal of the first defendant-company which, has been carrying on the business of Clan Line Steamers Ltd, and the Fourth defendant was a necessary party, inasmuch as it is the principal, first defendant-company; and Application No. 1742 of 1978 was filed by the plaintiff for leave under Clause 12 of the Letters Patent to institute the suit against the proposed fourth defendant. Leave was thereupon granted on 20th April, 1978. It is to revoke that leave that Application No. 2640 of 1978 was filed by the fourth defendant. 5. It was contended on behalf of the proposed fourth defendant that the suit should have been filed against the first defendant, only after obtaining leave under Clause 12 of the Setters Patent. Inasmuch as it has been asserted in the plaint that the first defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst him is not maintainable at all in view of the fact that leave to sue had not been obtained under Clause 12 of the Letters Patent, even though the first defendant does not actually carry on any business within the jurisdiction of this Court and we observed: As regards the objection based on Clause 12 of the 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 within the jurisdiction of this Court, we are prima 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 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the 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 Tribhovandas Choksey and not with the plaintiff firm and that the firm, namely, the six plaintiffs 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 Tribhovandas Choksey, the individual continued the suit in his own name, but no, leave under Clause 12 of the 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 Clause 12 of the Lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 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 causes 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion against the added party requires leave under Clause 12 of the 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 case, 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 Clause 12 of the Letters Patent, and it has been held that in the former case leave under Clause 12 cannot be granted after the institution of the original suit, but in the latter it is open to the Court to grant such leave if 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 and Anr. v. foolibai and Goolibai I.L.R. (1896) 20 Bom. 766, it was held that where a defendant is added who does nor reside within the jurisdiction of the High Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit cannot be received, tried and determined by this Court under Clause 12 of the Letters Patent, why should the leave be not asked for and granted by the 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 Clause 12 of the Letters Patent is necessary before the order of amendment is prayed for, leave under Clause 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the view that if a suit had been instituted against defendant in respect of whom leave to sue under Clause 12 need not be obtained since he is residing or carrying on business within the jurisdiction of the Court but subsequently anew party is sought to be added, against whom, under Clause 12 of the 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 of the 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 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 High Court, or if the defendant at the time of the commencement of the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aiver, for at the earliest opportunity he objection had been taken. 21. It should be noted that the application for impleading the proposed fourth defendant had to be filed because of the contention raised by the other defendants that the proposed fourth 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 proposed fourth 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 Clause 12, would not be a bar to the Court granting leave under Clause 12 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 Clause 12 in view of the fact that that defendant is not residing or carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These observations indicate that even when a plaint is amended by introducing a new cause of action, a Court can grant leave under Clause 12 of the Letters Patent and that there is nothing in Clause 12 of the Letters Patent to show that the plaint instituted under Clause 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 determined 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 Clause 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 Clause 12. This decision of course is in conflict with the view of the Calcutta High Court in Kshitish Kumar Son v. State of Bihar AIR 1953 Cal 639 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 fourth defendant and for amending the plaint is to claim the same reliefs ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 second 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 at such chairman and induced the proposed fourth 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 second 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 in the forum chosen by the plaintiff. 25. We therefore find that Padmanabhan, J. was right in having refused to revoke the leave which he had granted under Clause 12 of the Letters Patent to sue the proposed fourth defendant. This app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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