Kamal Srimal v. Padam Chand Sindhar — 1977 DIGILAW 212 (CAL)

JUDGMENT 1. THE facts, in the instant case, are a little intriguing and the points involved are movel. This is an application for revocation of leave under Clause 12 of the Letters Patent and for certain other consequential reliefs. Sm. Kamal srimal is the daughter of Padam Chand sindhar. Sm. Kamal Srimal instituted a suit against the respondent in this court being suit No. 209 of 1977. In the plaint, the plaintiff tells the story that she is the daughter of the defendant and that the defendant had deposited with her a sum of Rs. 50,000/- and a further sum of Rs. 28,000/- at Calcutta within the jurisdiction of this Court on 4th February 1974 and 13th June, 1975, respectively. The said sums were repayable after 12 years from the respective dates of deposit with simple interest. The plaintiff claims that she is a business-lady of repute and has been carrying on business on a substantial scale. During the year 1974, the plaintiff's husband was the Managing Director of certain company and he had to travel to delhi and the plaintiff used to accompany him. The plaintiff had a Saving's Bank account with the Bank of Baroda, New Delhi. Certain cheque leaves were lost and a complaint was lodged with the notice. It is stated that on 4th March, 1974 the plaintiff received a letter written by khaitan and Partners, Solicitors and Advocate on behalf of the defendant alleging that the defendant had advanced to the plaintiff a sum of Rs. 50,000/- and Rs. 20,000/-by way of loan and by way of repayment of the alleged outstanding the plaintiff had signed, issued and handed over to the defendant a cheque for Rs. 80,000/- which had been dishonored by non payment. The plaintiff alleges that the book containing cheque leaves had been stolen and the signature of the plaintiff had been forged. The plaintiff also claims damages on account of defamation for publication of the alleged fact that the cheque given by the plaintiff had been dishonoured. In the premises, the plaintiff instituted the suit claiming declaration that the cheque for Rs. 80,000/-was void, direction on the defendant to deliver up the cheque and return of the other blank cheque leaves of Bank of Baroda, injunction restraining the defendant from publishing or repeating the statement that the plaintiff had drawn any cheque in favour of the defendant, decree for Rs. 80,000/-was void, direction on the defendant to deliver up the cheque and return of the other blank cheque leaves of Bank of Baroda, injunction restraining the defendant from publishing or repeating the statement that the plaintiff had drawn any cheque in favour of the defendant, decree for Rs. 1,000,000/- as and by way of damages and other consequential declaration about the suras of Rs. 50,000/- and Rs. 28,000/- 2. IT was contended on behalf of the petitioner that this suit was instituted after obtaining leave under Clause 12 of the Letters Patent. It was alleged that the original deposits of rs. 50,000/- and Rs. 28,000/- were made at Calcutta within the jurisdiction containing the terms of repayment after 12 years. The cheque was presented at delhi and the cheque leaves were alleged to have been stolen at Delhi. It is apparent that the suit comprises of different causes of action one of which is damages for defamation. In respect of the same, it alleged that the statement defaming the plaintiff had been published at Calcutta within the jurisdiction of this Court. Therefore, the part of cause of action for damages for defamation has arisen within the jurisdiction of this Court and the jurisdiction of this Court can be validly attracted to the same. The other part of the cause of action is the forgery of the cheque and stealing of the cheque leaves. The Cheque was presented at delhi and therefore the cheque must have been forged at Delhi. It was contended on behalf of the applicant that no part of the cause of action had arisen, in so far as the forgery of the cheque and the stealing of the cheque leaves are concerned within the jurisdiction of this Court and no leave having been obtained under Clause 14 of the Letters Patent of 1865, this Court has no jurisdiction to proceed with the suit. It was urged that no leave had been obtained under Clause 14 of the letters Patent and therefore this joinder of causes of action was bad. 3. IN this application two main questions arise. It was urged that no leave had been obtained under Clause 14 of the letters Patent and therefore this joinder of causes of action was bad. 3. IN this application two main questions arise. First, whether any part of the cause of action so far as the claim based on forgery of the cheque and stealing of the cheque leave is concerned had arisen within the jurisdiction of this Court and, if not, secondly whether the two causes of action could have been combined in one suit as has been done in this cause without leave under clause 14 of the Letters Patent of 1865. So far as the first question is concerned, it is true that the expressions "cause of action" must means those bundles of facts which if traversed are required to be proved to established the claim of the plaintiff and as such in a case based on forgery of a cheque and stealing of cheque leaves all that is necessary to be proved is whether any cheque was forced and secondly whether the cheque leaves had been stolen. But, in order to prove that the cheque was a forged one, it has to be mentioned in this case, that the plaintiff had based her claim not only on the fact that the signature was forged but the fact that the signature was likely to have been forged because the agreement was that the monies deposited with the plaintiff would not be repayable before 12 years. Therefore, this is also a fact which the plaintiff will have to establish in order to prove the bundle of facts to establish that there was forgery in the instant case. The stealing of the cheque leaves and the consequential declaration follow from the allegation that there was no occasion for the plaintiff to draw any cheque in favour of the defendant for repayment of the amount before 12 years. From that point of view it can be said that part of the cause of action based on the forgery of cheque has also arisen within the jurisdiction of this Court. 4. IT is, however, indisputable that, the two claims, the claim for defamation and the claim for forgery, are intimately connected. From that point of view it can be said that part of the cause of action based on the forgery of cheque has also arisen within the jurisdiction of this Court. 4. IT is, however, indisputable that, the two claims, the claim for defamation and the claim for forgery, are intimately connected. So, even if no part of the cause of action for the forgery has arisen within the jurisdiction of this court, as the suit has been instituted after obtaining leave under Clause 12 of the Letters Patent there should be, in my opinion, joined of causes of action in this case. But, on behalf of the petitioner it was claimed that under clause 14 of the Letters Patent no leave could be granted after the institution of the suit. Clause 12 of the Letters patent of 1865 is to the following effect: "12. And we do further ordain, that the said High Court of Judicature at Port William in Bengal, in the exercise of the ordinary original civil jurisdiction, shall be empowered to receive, try and determine suits of every descriptions, 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 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 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; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause court of Calcutta in which the debt or damage, or value of the property sued for, does not exceed one hundred rupees. " Clause 14 of the Letters Patent of 1865 reads as follows: "14. " Clause 14 of the Letters Patent of 1865 reads as follows: "14. And we do further ordain, that where Plaintiff has several causes of action against a Defendant, such causes of action not being for land or other immoveable property, and the said High Court shall have original jurisdiction in respect of one of such causes of action, it shall be lawful for the said high Court to call on the Defendant to show cause why the several causes of action should not be joined together in one suit, and to make such order for trial of the same as to the said High Court shall deem fit. " 5. THE question is in this case when the High Court has original jurisdiction in respect of one cause of action whether the High Court should entertain the other cause of action namely claim based on forgery and stealing of cheque leaves, if no part of that cause of action had arisen within the jurisdiction of this Court. On behalf of the petitioner, it was contended that leave under Clause 14 was necessary and such leave could only have been granted before the institution of the suit. Clause 12 specifically mentions that leave has to be 'first obtained'. Therefore, in order to receive and try a suit leave under Clause 12 of the letters patent has to be obtained first before the Court receives a suit for trial where such leave is required. In a case where the Court has jurisdiction because of the leave under Clause 12 of the letters Patent, the question of granting leave under Clause 14 of the Letters patent would arise only after the Court has received a suit for trial, because, in a case where a part of cause of action only was arisen within the jurisdiction of this Court, the Court could not have the jurisdiction unless leave is obtained under Clause 12 of the Letters Patent and as such leave can only be obtained before the institution of the suit. But only after the institution of the suit with leave under Clause 12, the question of joiner of causes of action and the question of leave under Clause 14 would arise. But only after the institution of the suit with leave under Clause 12, the question of joiner of causes of action and the question of leave under Clause 14 would arise. Therefore, in a suit filed with leave under Clause 12 where only a part of the cause of action has arisen within the jurisdiction of this Count, in ray opinion, the question of leave under Clause 14 of the Letters Patent cannot arise before the institution of the suit. That is the reason why significantly Clause 14 does not use the expression 'first obtained' as has been mentioned in Clause 12 of the Letters patent. In the case of John George dobson v. The Krishna Mills Ltd., I. L. R. 34 Bombay, page 564. Mr. Justice macleod of the Bombay High Court held that an application under Clause 14 of the Letters Patent to join a further cause of action arising wholly outside the jurisdiction, can be made in a case in which leave to sue had to be obtained under clause 12 and his Lordship further held that nor was there anything in Clause 14 to show that the application must be made before the suit was filed. There was nothing to prevent the plaintiff from making the application at any time before the hearing, but it would certainly be advisable for him to make it at me time the application is presented. It appears, however, that Mr. Justice Buckland in suit No. 1441 of 1928 Gour chand Mullick v. Administrator general of Bengal had occasion to consider this question and by a judgment delivered on the 23 May, 1928, Mr. Justice Buckland observed : "clause 14 of the Letters Patent says that in the circumstances stated it shall be lawful for the court to call on the defendant to snow cause why the several causes of action should not be joined together in one suit. That I apprehend means that the defendant shall be called upon to snow cause before the several causes of action have been joined, i. e. before the suit is filed. That I apprehend means that the defendant shall be called upon to snow cause before the several causes of action have been joined, i. e. before the suit is filed. The proper course would, I apprehend, be, to make the application at the time of the presentation of the plaint, as, until the Plaint has been admitted it cannot be said that the suit has been filed and that the time when the defendant should be called upon to show cause has passed. That would enable the necessary notice to the defendant to issue and the application to be decided before the plaint is admitted and filed. Should the application be refused the plaintiff would still be able to abandon his intention of suing or tile a plaint in the ordinary form. In this case it appears that the plaint wag filed yesterday and that being so and no reason being shown why the application should be made at this stage, in my opinion it should not be acceded to. The application must therefore be refused. " 6. THIS procedure which Mr. Justice buckland had suggested to my experience has not been the practice and i had no occasion to come across a situation like this. Therefore, it cannot be said that this rule of procedure suggested by His Lordship has been sanctified by practice or user. There are as I mentioned before certain difficulties in following the practice suggested by His Lordship. In a suit under clause 12 of the Letters Patent the defendant is not called upon at the first instance before leave under Clause 12 is granted to show cause. Leave under Clause 12 is obtained first before the institution of the suit in the absence of the defendant. It is only after the institution of the suit when leave has been granted that the defendant is free to make an application for revocation of leave granted under Clause 12 in appropriate cases. Clause 14 on the other hand, enjoins that before granting leave it shall be lawful for the High Court to call on the defendant to show cause why several causes of action should not be joined. Clause 14 contemplates leave granted upon notice to the defendant. Clause 14 on the other hand, enjoins that before granting leave it shall be lawful for the High Court to call on the defendant to show cause why several causes of action should not be joined. Clause 14 contemplates leave granted upon notice to the defendant. If leave under Clause 12, which is necessary for institution of the suit, can be granted without notice and if Clause 14 enjoins that before leave is granted, notice to the defendant has to be given, then in my opinion it must follow that leave under clause 14 can only be granted after the institution of the suit. Secondly, as mentioned before, clause 12 specifically mentions that leave has to be "first obtained" while clause 14 does not. In that view of the matter I am of the opinion that it is permissible for the Court to grant in an appropriate cases leave under clause 14 of the Letters Patent after the institution of the suit. In the instant case, as mentioned hereinbefore, in respect of the cause of action for the claim based on forgery and stealing of the cheque leaves are concerned, even if no part of that cause of action had arisen within the jurisdiction of this court but as the same is inter-linked with the cause of action for defamation, it is desirable in the interest of justice that these two causes of action should be joined together in one suit and heard together. As the plaintiff has not made any specific prayer for leave under clause 14, I cannot in this application grant this leave suo motto but on this ground the suit also cannot for the reasons mentioned hereinbefore be dismissed. I shall, therefore, direct that the defendant will have six weeks' time to file written statement and the plaintiff will be at liberty to make an application before the trial of the suit for leave under clause 14 of the Letters patent, if she is so advised. Cost of this application will be the cost in the cause. Ordered accordingly.