JUDGMENT M. Jaichandren, J. 1. This original side appeal has been filed against the order of the learned single Judge of this Court, dated 13.12.2011, made in Application No.4998 of 2011, in C.S.D No.30620 of 2011. 2. The appellant in the present appeal was the plaintiff in the suit, in C.S.D No.30620 of 2011. The appellant had filed the suit, in C.S.D No.30620 of 2011, praying for a judgment and decree against the defendants therein, who are the respondents in the present original side appeal, for the grant of a permanent injunction restraining the defendants, their servants, agents and others claiming through them from, in any manner, infringing the plaintiff's Patent under No.247946, and for a direction, directing the defendants to render true accounts of the quantity of their products sold, including the quantity distributed, as free issue, bonus issue and samples, by infringing the plaintiff's Patent under No.247946. 3. The plaintiff had also prayed that the defendants ought to be directed to pay to the plaintiff the damages caused to it and for the costs of the suit and for other reliefs, as may be deemed fit and proper in the circumstances of the case. 4. The appellant had also filed an application, in A.No.4998 of 2011, praying for the grant of leave to enable the applicant/plaintiff to sue the respondents in the said application before this Court. 5. On hearing the counsels appearing on behalf of the applicant, as well as the respondents, the learned single Judge had passed the order, dated 13.12.2011, in A.No.4998 of 2011, dismissing the said application stating that no cause of action had accrued within the territorial jurisdiction of this court for the granting of the leave to sue, as prayed for by the applicant. 6. The application had been filed stating that the applicant/plaintiff company is manufacturing and marketing top quality and innovative health care products in the sectors of pharmaceuticals, dietary supplements and natural fruit juice based beverages. The applicant had obtained a Patent vide No.247946, for an invention, in respect of fruit juice based electrolyte energy drink. The grant of patent had been advertised in the Patent Journal No.23/2011, dated 10.6.2011. The applicant is exploiting its patent by manufacturing and marketing the fruit juice based electrolyte energy drink, under the brand name RS-L, ORS-L and others. 7. The applicant had obtained a Patent vide No.247946, for an invention, in respect of fruit juice based electrolyte energy drink. The grant of patent had been advertised in the Patent Journal No.23/2011, dated 10.6.2011. The applicant is exploiting its patent by manufacturing and marketing the fruit juice based electrolyte energy drink, under the brand name RS-L, ORS-L and others. 7. It had been further stated that the defendants in the suit, who were the respondents in the application had been manufacturing, marketing and selling a product by name `Juicilyte', which contains the compositions similar to that of the oral rehydration composition invented by the applicant, without obtaining the necessary licence and the consent from the applicant. The process under which `Juicilyte' is manufactured by the respondents is also similar to that of the applicant. Thus, the respondents had committed infringement of the applicant's product and process Patent. 8. It had also been stated that the infringing product namely, `Juicilyte', is available for sale within the jurisdiction of this court. The 4th respondent is selling the infringing product within the jurisdiction of this court. The respondents 1 to 3 are outside the territorial jurisdiction of this Court and therefore, the applicant had filed the application seeking leave to sue, to prosecute the infringement proceedings against all the respondents/defendants, before this Court. 9. It had also been stated that, by their act of infringement, the respondents in the application are not only causing loss to the applicant, but also cheating the unwary customers. Since, the acts of infringement being committed by the respondents had to be stopped, the applicant had initiated the infringement proceedings. However, the applicant was in need of an order granting leave to sue, as respondents 1 to 3 were outside the jurisdiction of this Court. It had been further stated that unless the leave to sue was granted by this Court it would cause severe loss and hardship to the applicant. 10. The learned counsel appearing on behalf of the respondents had raised the objection that the plaintiff had filed the suit, in C.S.D.No.30620 of 2011, before this Court, without obtaining the necessary leave to sue, as the defendants 1 to 3 were outside the territorial jurisdiction of this Court. 10. The learned counsel appearing on behalf of the respondents had raised the objection that the plaintiff had filed the suit, in C.S.D.No.30620 of 2011, before this Court, without obtaining the necessary leave to sue, as the defendants 1 to 3 were outside the territorial jurisdiction of this Court. The plaintiff ought to have obtained the leave of this Court, under Clause 12 of the Letters Patent of the High Court of Madras to institute the said suit. 11. It had been further stated that Clause 12 of the Letters Patent empowers this court to grant leave to sue the respondents, who are outside the territorial jurisdiction of this court, in case the cause of action had arisen, wholly or partly, within the jurisdiction of this Court. Even though the case of the applicant is that a part of the cause of action, i.e. sale of the infringing product, by defendant No.4, falls within the jurisdiction of this court, the applicant had not been in a position to substantiate its claim, by sufficient evidence. Therefore, the applicant is not entitled to the grant of leave to sue the defendants in the suit, who are the respondents in the application, before this Court. 12. Based on the submissions made by the learned counsels appearing on behalf of the parties concerned, the learned single Judge had observed in his order, dated 13.12.2011, that the jurisdiction of this Court is invoked by the applicant pleading that the product `Juicilyte' is available for sale within the jurisdiction of this court and that the 4th respondent is selling the infringing product, within the jurisdiction of this Court. 13. The learned single Judge had noted that the applicant had pleaded in the plaint filed in the suit, in C.S.D.No.30620 of 2011, that the product sold by the 4th defendant is identical to the patented product of the applicant/plaintiff and that it is being sold under the brand name `Juicilyte', which is available for sale in Chennai, within the jurisdiction of this Court. The learned single Judge had observed that the cash bill, dated 19.7.2011, said to have been issued by the 4th defendant, does not show that the 4th defendant is the agent or the distributor of defendants 1 to 3. It had also been noted that the 4th defendant in the suit was only a general merchant selling certain products through the retail shop. 14. It had also been noted that the 4th defendant in the suit was only a general merchant selling certain products through the retail shop. 14. The learned single Judge had also noted that, as per Section 104 of the Patents Act, 1970, no suit for a declaration, under Section 105 or for any relief under Section 106 of the said Act or for infringement of a patent, shall be instituted in any court inferior to a district court having jurisdiction to try the suit. He had also noted that Section 20 of the Civil Procedure Code, 1908, lays down that suits can be instituted where the defendant resides or where the cause of action wholly or in part, had arisen. 15. The learned single Judge in his order, dated 13.12.2011, had come to the conclusion that there were no materials on record to show that the suit could be maintained, as against the respondents/defendants 1 to 3, before this Court. The learned single Judge had found that the 4th respondent in the application for leave to sue was only a general merchant, who had sold the infringing product. However, no materials had been placed before the Court by the applicant/plaintiff to show that the 4th respondent/defendant was an authorized agent, selling the infringing product on behalf of respondents/defendants 1 to 3. 16. The learned single Judge had also held that a cause of action would constitute a bundle of facts, which gives the right to maintain a suit against the parties concerned. The defendants in the suit were, admittedly, manufacturing companies, which are not within the territorial jurisdiction of this Court. It cannot be said that the sale, said to have been made, by the 4th defendant, on 19.7.2011, would give rise to a part of the cause of action to maintain the suit before this Court. 17. Based on the decisions cited by the learned counsels appearing on behalf of the parties concerned, the learned single Judge had come to the conclusion that no cause of action had arisen within the territorial jurisdiction of this court, for the grant of leave to sue, as prayed for by the applicant. Accordingly, the learned single Judge had dismissed the application filed by the applicant, in A.No.4998 of 2011. Accordingly, the learned single Judge had dismissed the application filed by the applicant, in A.No.4998 of 2011. Challenging the said order passed by the learned single Judge, dated 13.12.2011, the applicant/plaintiff had filed the present Original Side Appeal before this Court, in O.S.A.No.235 of 2012. 18. The learned counsel appearing on behalf of the appellant had submitted that the learned single Judge, while disposing of the leave to sue application, had ignored the well settled position in law that the concept of jurisdiction is a mixed question of fact and law and that, to decide as to whether the court concerned has the jurisdiction to try the case, only the plaint averments need to be looked into. 19. The learned counsel had further stated the learned single Judge had failed to apply the provisions contained in Clause 12 of the Letters Patent to the case of the applicant/plaintiff in a proper perspective. As per Clause 12 of the Letters Patent if a cause of action had partly arisen within the jurisdiction of this Court, then the suit is maintainable, subject to the plaintiff obtaining on order of leave to sue, from this Court. In the case on hand a part of the cause of action had arisen within the territorial jurisdiction of this Court as the 4th respondent in the application had sold the infringing product within the territorial jurisdiction of this Court. 20. It had been pleaded that, as per Section 48 of the Patents Act, 1970, the patentee has the exclusive rights, with regard to the patent in question. The 4th defendant had sold the infringing product as the agent of defendants 1 to 3 in the suit. Thus, it is clear that a part of the cause of action had arisen within the jurisdiction of this Court. 21. The learned counsel had further submitted that each of the acts prescribed under the provisions of Section 48 of the Patents Act, 1970, would constitute an independent action, giving the patentee the right to sue. As it was clear that the defendants in the suit were infringing the patent granted in favour of the plaintiff, both in respect of the product and the process of its manufacturing, the leave to sue ought to have been granted in favour of the applicant, in A.No.4998 of 2011. As it was clear that the defendants in the suit were infringing the patent granted in favour of the plaintiff, both in respect of the product and the process of its manufacturing, the leave to sue ought to have been granted in favour of the applicant, in A.No.4998 of 2011. Even though the infringing product might have been developed and manufactured outside the jurisdiction of this Court, the sale of the infringing product, by the 4th respondent, would entitle this Court to try the suit, as the infringement had taken place within the territorial jurisdiction of this Court. 22. The learned single Judge had failed to note that the infringement not only affects the interests of the plaintiff, but also those of the unwary public. The learned single Judge had not followed the well settled position in law for the grant of leave to sue, based on the decided cases. The learned single Judge had wrongly construed the sale made by the 4th defendant, as a sporadic sale, and that it would not amount to a commercial sale. The learned single Judge ought to have granted the leave to sue, as prayed for by the applicant/plaintiff, instead of dismissing the application for leave to sue. 23. The learned counsel had relied on the following decisions in support of his contentions: 23.1. In Parle Products Private Limited Vs. Surya Food and Agro Limited, 2009(40) PTC 638 (Mad.)(DB), it had been held that, for deciding the issue as to whether the leave granted should be revoked, one has to look only to the averments in the plaint and the documents filed by the applicant. As such, when the plaintiff had shown that the 4th defendant had made a sale of the infringing product, within the territorial jurisdiction of this Court, the leave to sue, prayed for by the applicant, ought to have been granted, as a part of the cause of action had arisen within the territorial jurisdiction of this court, as per Clause 12 of the Letters Patent of this Court. 23.2. In Horlicks Ltd. And Anr. Vs. Heinz India (Pvt.) Ltd., 2010 (42) PTC 156 (Del.) (DB), the High Court of Delhi had dealt with the Doctrine of Forum Non Conveniens. 23.2. In Horlicks Ltd. And Anr. Vs. Heinz India (Pvt.) Ltd., 2010 (42) PTC 156 (Del.) (DB), the High Court of Delhi had dealt with the Doctrine of Forum Non Conveniens. It had been held that, if legal proceedings are initiated in a particular forum and if that forum is of the opinion that there is a more convenient forum where such lis should be tried, it would desist from trying the particular lis. It had also held that the principle of Forum Non Conveniens does not apply to civil suits, which are governed by the Code of Civil Procedure, 1908. Thus, it is clear that in the suit filed by the appellant, the learned single Judge ought to have decided that the said suit would be maintainable before this court, as per the provisions of the Civil Procedure Code, 1908. 23.3. The learned counsel for the appellant had also relied on the decision of the Supreme court, in Dhodha House & Patel Field Marshal Industries Vs. S.K. Maingi & P.M. Diesel Ltd., 2006(32) PTC 1 (SC), to state that a suit would be maintainable before this court, as per the principles enunciated in the said judgment 23.4. The learned counsel had relied on the decision reported, in FDC Limited and Ors Vs. Sanjeev Khandelwal and Ors, 2007 (35) PTC 436 (Mad.), with regard to the conditions necessary for the granting of an order of interim injunction. 23.5. The learned counsel for the appellant had relied on the decision, reported in Electronic Machine Tools Limited Vs. Power Engineers and Precitek Components (P) Ltd., 2011 (46) PTC 323 (Mad.), to state that the averments in the plaint are sufficient to decide as to whether a cause of action had arisen for the filing of the suit. 23.6. The learned counsel had cited the case of Wipro Limited and Anr. Vs. Onshadha Chandrika Ayurvedic India (P) Limited and others, 2008(37) PTC 269 (Mad.) (DB), to state that the suit was maintainable, as per Clause 12 of the Letters Patent, as a part of the cause of action had arisen within the jurisdiction of this Court. 23.7. He had relied on the decision of the High Court of Delhi, in LG Electronics India Pvt. Ltd Vs. 23.7. He had relied on the decision of the High Court of Delhi, in LG Electronics India Pvt. Ltd Vs. Bharat Bhogilal Patel and others, 2012 (49) PTC 170 (Del.), to state that the question of jurisdiction has to be decided on merits, after the filing of the written statement. Once a prima facie case had been made out, this court ought to grant an ex parte ad interim injunction restraining the defendant from infringing the patent right of the plaintiff. 23.8. The learned counsel had also relied on the decision of this court, in Regency Officers and workers Vs. Regency Ceramics Ltd. 24. The learned counsel appearing on behalf of the respondents in the present appeal had stated that the learned single Judge was right in dismissing the application, filed by the appellant, for the grant of leave to sue. The learned single Judge had rightly held that the appellant, who had filed the suit, in C.S.D.No.30620 of 2011, had not shown that the 4th defendant was an authorised agent of defendants 1 to 3. Further, a sporadic sale, said to have been made by the 4th defendant, cannot give rise to a cause of action for this court to grant the leave to sue. No commercial sale had been shown to have taken place within the jurisdiction of this court. There are no materials available on record for this court to grant the request of the appellant to sue the defendants before this court. Defendants 1 to 3 are residing outside the territorial jurisdiction of this court. There is no causal link between the defendants 1 to 3 and the 4th defendant. 25. Even if it is true that the 4th defendant had sold the infringing product, it cannot give rise to a cause of action for the plaintiff in the suit, who is the appellant herein, to persuade this court to try the suit. Even though it is not in dispute that the cause of action has to be made out and the right to sue before this court ought to be made out from the averments, no such averments had been made in the plaint filed in the suit to show that this Court has the jurisdiction to try the said suit. 26. Even though it is not in dispute that the cause of action has to be made out and the right to sue before this court ought to be made out from the averments, no such averments had been made in the plaint filed in the suit to show that this Court has the jurisdiction to try the said suit. 26. The learned counsel had relied on the decision of the High court of Punjab and Haryana, reported in Himachal Pradesh Horticulture Produce Marketing and Processing Corporation Ltd. Vs. Mohan Meakin Breweries Limited, wherein it had been held that the said court had no jurisdiction to entertain and try the suit filed before it. Such jurisdiction of the court to try the suit ought to be based on a prima facie evidence shown by the plaintiff that a sale had taken place within the territorial jurisdiction of the court concerned. As such, a causal link has to be shown between the defendants 1 to 3, who are carrying on their business outside the territorial jurisdiction of this court and the 4th defendant, who had sold the goods within the territorial jurisdiction of this court. 27. The learned counsel had relied on the decision, reported in Glen Raven Mills Inc. Vs. Vaspar Concepts Private Limited and another, to state that the sale ought to be of a commercial scale for a court to take cognizance of the same to conduct the trial of the suit. Therefore, a sporadic sale of the infringing goods may not be sufficient to give a court the jurisdiction to try the suit. In the present case there is nothing shown by the appellant to connect defendants 1 to 3 with the 4th defendant in the suit. 28. The learned counsel had also relied on the decision of the Delhi High Court, in A.V.R. Engineers Vs. Sharma Moulding Works and Ors., wherein it had been held that the issue of jurisdiction was fundamental, as it goes to the root of the maintainability of the action before the court concerned. In the case on hand the appellant had not shown that there were triable issues which are to be tried before this Court in the suit filed by the appellant. 29. The learned counsel had also placed reliance on the decision of a Division Bench of this Court, in Shabbir Medical Hall, represented by its Partner I.Salman Taiyebi Vs. In the case on hand the appellant had not shown that there were triable issues which are to be tried before this Court in the suit filed by the appellant. 29. The learned counsel had also placed reliance on the decision of a Division Bench of this Court, in Shabbir Medical Hall, represented by its Partner I.Salman Taiyebi Vs. Mohammed Naseer. This Court had held that the appellant therein had not shown that a part of the cause of action had arisen within the local limits of this court. There were no averments in the plaint, based on which such a cause of action could be inferred. Therefore, the learned single Judge was right in dismissing the application filed by the appellant, in A.No.4998 of 2011, for the grant of leave to sue. 30. In view of the submissions made by the learned counsels appearing on behalf of the appellant, as well as the respondents, and in view of the records available, and on considering the decisions cited supra, we are of the considered view that the appellant, who had filed the suit, in C.S.D.No.30620 of 2011, had not shown that a part of the cause of action had arisen within the jurisdiction of this Court, as per Clause 12 of the Letters Patent of this Court. 31. Even though the appellant had claimed that the 4th defendant had made a sale of the infringing product, by way of a bill, dated 19.7.2011, it cannot be said that a part of the cause of action had arisen for this court to try the suit against the respondents 1 to 3. Therefore, the learned single Judge had rightly dismissed the application filed by the appellant, for the granting of the leave to sue, in A.No.4998 of 2011. Further, no averments were available in the plaint to show that the cause of action had arisen within the jurisdiction of this Court, for the grant of leave to sue, as there was no causal link between defendants 1 to 3 and the 4th defendant. No records had been filed before this Court to show that the 4th defendant was an authorised agent or a stockist of respondents 1 to 3. Even if it is true that the 4th defendant had sold the infringing product, by way of a bill, dated 19.7.2011, it cannot be taken to be a commercial sale. No records had been filed before this Court to show that the 4th defendant was an authorised agent or a stockist of respondents 1 to 3. Even if it is true that the 4th defendant had sold the infringing product, by way of a bill, dated 19.7.2011, it cannot be taken to be a commercial sale. A sporadic sale by the 4th defendant would not give rise to a cause of action for the filing of the suit before this court, as it cannot be taken to be a sale by the 4th defendant, on a commercial scale. 32. It is clear that the appellant had not filed any document before this court, in the suit, in C.S.D.No.30620 of 2011, to show that the 4th defendant had sold the infringing product at the behest of respondents 1 to 3. Further, the cases relied on by the learned counsel appearing on behalf of the appellant are not applicable to the facts of the present case, as held by the learned single Judge, in his order, dated 13.12.2011. In such view of the matter, we are of the considered view that the appellant had not shown that a cause of action had arisen within the territorial jurisdiction of this court for granting the leave to sue, as prayed for by the appellant, in the application, in A.No.4998 of 2011, in C.S.D. No.30620 of 2011. In such view of the matter, the present appeal filed by the appellant is liable to be dismissed. Hence, it is dismissed. No costs.