Judgment :- A. Ramamurthi, J. 1. This application is filed by the applicant/plaintiff under Clause 12 of the Letters Patent Act to permit the plaintiff to file the suit against the respondents before this Court. 2. The case in brief is as follows:- The medicinal and pharmaceutical preparations are manufactured and marketed by the respondent using the impugned trade mark FEXTRAL and it is commercially sold in Chennai within the jurisdiction of this Court. The invoice of M/s. Shanthi Medical, a pharmacy with its shop at 183, V.M. Street, Chennai is also produced by way of evidence. The product of the respondent is sold by various other chemists also at Chennai and as such part of the cause of action had arisen at Chennai within the jurisdiction of this Court. The respondents are carrying on business outside the jurisdiction of this Court and hence this application. 3. The respondents filed a counter affidavit and contended that the affidavit is bereft of particulars. According to Clause 12 of the Letters Patent Act, cause of action shall have arisen either wholly or in part within the local limits of the Ordinary Original Jurisdiction of the Court. The affidavit does not state what is the cause of action the applicants have against the respondents. It is the fundamental rights of the respondents under Article 19 of the Indian Constitution to sell their pharmaceutical/medicinal preparation and it cannot be interfered with. The applicants will have a right to interfere with the respondents commercial sale of FEXTRAL within the jurisdiction of this Court only if it amounts to passing off of the applicant's goods. The product of the respondents bearing the trade mark FEXTRAL is not sold in Chennai commercially. According to the decisions of the Supreme Court, the suit has to be instituted at the place where the respondents are able to defend it without undue trouble. The sole intention of the applicant is to harass these respondents without any just cause. No cause of action has arisen within the jurisdiction of this Court and the respondents have no place of business and there is no passing off and hence, the permission sought by the plaintiff has to be rejected. The respondents are the prior users of the mark FEXTRAL with reference to pharmaceutical preparations. No cause of action has arisen within the jurisdiction of this Court and the respondents have no place of business and there is no passing off and hence, the permission sought by the plaintiff has to be rejected. The respondents are the prior users of the mark FEXTRAL with reference to pharmaceutical preparations. In the present case, both the applicants and the respondents are carrying on business within the jurisdiction of the Bombay High Court and as such that Court has got original jurisdiction to receive and try a suit under the Trade and Merchandise Marks Act. Apart from that the 2nd respondent has filed application before the Office of the Trade Mark Registry at Mumbai. The forum convenient for legal proceedings is the High Court of Bombay and not Madras. 4. Heard learned counsel for the parties. 5. The point that arise for consideration is whether leave can be granted to the applicant to institute the suit against the respondent before this Court. 6. Points : The applicant/plaintiff filed the present application under Clause 12 of the Letters Patent Act seeking permission to institute the suit against the respondents on the ground that part of the cause of action had arisen within the jurisdiction of this Court. The learned counsel for the applicant contended that the respondents are manufacturing and marketing medicinal and pharmaceutical preparations under the impugned trade mark FEXTRAL and they are commercially selling the same within the jurisdiction of this Court. Copy of the Invoice sent to M/s. Shanthi Medical, a pharmacy at Chennai, has also been filed. It is further stated that the respondents' product is being sold by various other chemists at Chennai and in view of the same, the applicant is entitled to get leave. 7. Per contra, the learned counsel for the respondents stated that the applicant as well as the respondents are residents of Mumbai and they are also carrying on business only at Mumbai within the Jurisdiction of Bombay High Court. Now, the applicant is seeking permission to institute the suit before this Court on the ground that the respondents are selling their product within the jurisdiction of this Court. The affidavit is vague and no particulars have been given. Even cause of action paragraph in the plaint is also silent and does not state how part of cause of action had arisen within the jurisdiction of this Court. The affidavit is vague and no particulars have been given. Even cause of action paragraph in the plaint is also silent and does not state how part of cause of action had arisen within the jurisdiction of this Court. Only if the applicant is able to establish that there is a commercial sale of the product of the respondents within the jurisdiction of this Court, then alone leave can be granted. No doubt, some invoice has been filed and the truth and validity cannot be considered at this stage. No doubt, a commercial sale cahe event of refusal of the prayer (iv) lastly he must show a clear necessity for affording immediate protection to save his right or interest which should other thanseriously injured or impaired. Explaning the term "irreparable injury". Spry says quoting Attorney General Versus Hallet as follows: "I take the meaning of irreparable injury to be that which; if not prevented by injunction, cannot afterwards be compensated by any decree which the Court can pronounce in the result of the cause." Ordering Prohibitory injunction is a drastic action, the violating being punishable under Order 39, Rule 2-A. The Court is to exercise great restraint in passing the order. The Court should consider if plaintiff has a prima facie case and in whose favour lies the balance of convenience and wh n confer jurisdiction in the area, but it has to be established. 8. The learned counsel for the respondents stated that the 2nd respondent has already filed an application before the office of the Trade Mark Registry in Mumbai. The fact that the applicant as well as the respondents are carrying on business at Mumbai is not disputed. When all the parties are doing business in Mumbai, there is no reason to file the suit before this Court. When the 2nd respondent has initiated proceedings before the office of the Trade Mark Registry at Mumbai, the applicant has come forward with the application before this Court and in my view, it has been filed only to harass the respondents. No special reasons have been assigned by the applicant to approach this Court. When both parties are residents of Mumbai, it is also pertinent to state that for conducting legal proceedings, the convenience of both parties also is at Mumbai. No special reasons have been assigned by the applicant to approach this Court. When both parties are residents of Mumbai, it is also pertinent to state that for conducting legal proceedings, the convenience of both parties also is at Mumbai. Considering the fact that there is no record to show that the respondents are doing any commercial sale within the jurisdiction of this Court, I am not inclined to grant leave and the point is answered accordingly. 9. For the reasons stated above, the application fails and the same is dismissed.