Calcutta High Court
Smt. Smriti Jaiswal And Anr. vs Romi Jaiswal And Anr. on 4 March, 1999
Equivalent citations: AIR1999CAL123, AIR 1999 CALCUTTA 123, (1999) 3 ICC 268
Author: Ruma Pal
Bench: Ruma Pal
JUDGMENT M.H.S. Ansari, J.
1. The instant appeal is directed against the error of the learned trial Judge dated 30th November, 1998 on an application of the appellants/defendants Nos. 2 and 3 inter alia, praying for revocation of leave granted under Clause 12 of Letters Patent and for dismissal of the suit. By the said order, the learned single Judge dismissed the application of the appellants/defendants Nos. 2 and 3.
2. For the sake of convenience, reference to the notice in this judgment shall be made as they have been arrayed in the suit being C.S. No. 393 of 1997. The plaintiff is respondent No. 1 in the instant appeal and the defendant No. 1 is respondent No. 2 herein. Defendants Nos. 2 and 3 are the appellants in the instant appeal.
3. The case of the plaintiff as set out in the plaint, briefly stated, is that in or about 1979 Krishna Lal Jaiswal (since deceased) began carrying on business in partnership with his two sons, being plaintiff and one Aswini Kumar Jaiswal under the name and style of M/s. Sujata Picture Palace at 3A, Madan Street, Calcutta. The said Krishna Lal Jaiswal died on September, 1982 and the partnership was reconstituted with plaintiff, his mother being defendant No. 1 and the said Aswini Kumar Jaiswal, as per the Partnership Deed, evidenced by an indenture dated September 15, 1982. At the time of executing the said Deed of Partnership dated 15th September, 1982, all the parties thereto resided at 4, Clive Row, Hastings, Calcutta and the Deed of Partnership was executed at 3A, Madan Street, Calcutta. The said firm is a duly registered partnership firm having its Head Office at 3A, Madan Street, Calcutta. The assets and liabilities of the firm as on 14th September, 1982 and its agreements and commitments upto that date vested in the newly constituted firm. The mother, defendant No. 1 is having 40 paise share in the rupee while the remaining two partners each having the remaining 30 paise share in the rupee. The books of accounts relating to the business of partnership was required to be regularly maintained and kept at the Head Office of the firm. The business of the firm was stated to be exhibiting and distributing cinematographic films and in similar business enterprises.
4. It is further averred in the plaint that the firm from time to time acquired various immoveable properties and other equipments and assets including inter alia, the said office of the partnership firm located at 3A, Madan Street, Calcutta within the jurisdiction of this High Court and two cinema theatres known as Sujata Picture Palace and Sujata Pictures located at 9, Burdwan Compound, Ranchi, Bihar. The business of the firm, at all material times was carried on at 3A, Madan Street, Calcutta and also at 9, Burdwan Compound, Ranchi, Bihar where the cinema theatres, belonging to the firm, were located. The firm maintains bank account inter alia with Indian Overseas Bank, Chowringhee Branch, at 9, C. R. Avenue, Calcutta.
5. The said Aswini Kumar Jaiswal, it is stated, died in a road accident in Bihar on or about October 9, 1997. He is survived by his widow and son being defendants Nos. 2 and 3, respectively.
6. Disputes arose after the death of the said Aswini Kumar Jaiswal when the plaintiff, it is stated, visited Ranchi to perform the last rites of his deceased brother. While at Ranchi, the plaintiff visited the said cinema theatres of the firm known as 'Sujata Picture Palace' and 'Sujata Pictures' for the purpose of managing and/or supervising the administration and business thereof. However, the plaintiff was forcibly and violently resisted by the heirs of the said deceased partner Aswini Kumar Jaiswal and was not allowed to take over the management or administration of the said business. The defendants physically assaulted and evicted the plaintiff from the said cinema halls premises and wrongfully denied the plaintiff's access to the office of the firm located at the cinema halls at Ranchi.
7. The averments in paragraphs 11, 12, 13 and 14 of the plaint are relevant as much stress has been placed upon the said averments by the appellants in support of their contentions and for ready reference the same are extracted hereinbelow :
"11. The defendants and/or each one of them are wrongfully and illegally interested in denying and are denying the rights and entitlements of the plaintiff to take part in the business of the said firm and especially the business of the cinema hallsknownas 'Sujata Picture Palace' and 'Sujata Pictures' located at Ranchi and are interested in grabbing the same.
12. On or about October 29, 1997,thedefend-ant No. 3 wrongfully and maliciously lodged a police complaint against the plaintiff at the local police station alleging that the said late Aswini Kumar Jaiswal and the defendants Nos. 2 and 3 being his legal heirs are entitled to the same to the exclusion of all others. The defendant No. 3 further falsely alleged that the plaintiff had assaulted the defendant No. 3 and had removed Rs. 2,22,642.75 from the till of the said cinema hall.
A copy of the said complaint dated 29th October, 1997 is annexed hereto and marked 'C'. The allegations and statements contained in the said complaint are all untrue and false.
13. Pursuant to the said complaint filed by the defendant No. 3 various criminal proceedings were initiated against the plaintiff and the plaintiff was remanded into police custody in Ranchi. The said criminal charges against the plaintiff are all false and motivated and have been wrongfully filed by the defendants Nos. 2 and 3 in abuse of process of Court and without reasonable or probable cause in an attempt to wrongfully grab the property of the said firm and deprive the plaintiff from his legitimate claim to the assets and income of the business and properties of the said firm.
14. The defendants Nos. 2 and 3 above named being the heirs and legal representatives of the deceased partner Aswini Kumar Jaiswal are interested in denying and are denying the existence of the Indenture of Partnership dated September 15, 1982 and are not interested in being made, partners of the said firm. Instead, the said defendants are wrongfully claiming that the properties of the firm are their own personal properties and that the plaintiff, who is a partner of the firm, has no right, interest or title in the said properties including the cinema halls known as 'Sujata Picture' and 'Sujata Picture Palace' located at 9, Burdwan Compound, Ranchi, Bihar. The defendant No. 1, who never actively took part or showed any interest in the running of the firm, did not object to the illegal and wrongful actions of the defendants Nos. 2 and 3 and the plaintiff apprehends that the defendant No. 1 is also hand in solve with the other defendants and are all interested in depriving the plaintiff from his legitimate share in the firm and its business and properties."
8. The plaint proceeds to recite that the aforesaid action and conduct of the defendants have caused serious prejudice, loss and damages to the plaintiff and also to the business of the said firm. The said fraudulent acts of the defendants is a conspiracy against the plaintiff in an illegal bid to deprive the plaintiff from his legitimate share in the said properties and business of the said firm and as such, it is no longer reasonable for the plaintiff to carry on business in partnership with the defendant No. 1 or the local heirs of the deceased partner Aswini Kumar Jaiswal.
9. In the said plaint, the reliefs prayed for, are as under:
"a) A declaration that the partnership created under the Deed of Partnership dated September 15, 1982 known as M/s. Sujata Picture Palace stood dissolved as on November 10, 1997;
b) Alternatively that the said partnership be dissolved by a decree of this Hon'ble Court."
Apart from the above, reliefs for injunction, receiver, accounts, attachment, costs and further order or directions have been prayed for.
10. From the above, it will be apparent that no relief has been claimed or prayed for in respect of any immoveable property. The suit as framed is for declaration that the firm has been dissolved by notice and on the alternative for dissolution of the firm by decree of Court and for accounts. The dissolution of the firm and accounts appears to be the primary object of the suit. The other reliefs with regard for injunction, receiver/attachment though may pertain to the assets and properties of the firm, the same are in the nature of incidental relief and are of interlocutory nature. The object of the plaintiff is to enforce his rights to get accounts in respect of the partnership business.
11. In a suit for dissolution of partnership and accounts, the necessary pleadings are as set out in Form No. 49, Appendix 'A' of the Code of Civil Procedure. From the said form, it will appear that is not even necessary in a suit for dissolution and for accounts to plead as to what are the different assets of the partnership firm. All that has to be pleaded is that there was a partnership, the terms of the partnership deed and/or the circumstances under which it has been dissolved or it is required to be dissolved and the reliefs that are required to be claimed which are dissolution for partnership and for accounts (See Md. Hassen Hashmi v. Kaberi Roy, ).
12. Section 43 of the Partnership Act provides that if the firm is at will, it can be dissolved by the partner or partners by giving, notice in accordance with provisions of Section 43(1) of the Act. Sub-section (2) stated that the firm is dissolved as on the date mentioned in the notice as the date of dissolution where, no date is so mentioned, as from the date of communication of the notice. A notice for dissolution of the firm is thus a statutory notice and constitutes a part of the case of action. In the instant case, it has been stated that the notice was issued by the plaintiff from and received within the jurisdiction of this High Court by the surviving partner i.e. the defendant No. 1.
13. In Tilokram Ghosh v. Gita Rani Sandhukhan, , relying upon the Supreme Court Judgment in Addanki Narayanappa v. Bhaskara Krishnappa, , it was held that interest of partners in the partnership is movable property.
14. In Sambhu Prasad Agarwal v. I.C.D.S. Ltd., (1994) 2 Cal HN 472, the principles for deciding an application for revocation of leave under Clause 12 and for taking the plaint off the file under Order VII, Rule 11 of C.P.C. have been stated thus :
"First the Court is required to construe the plaint as it stands on the assumption that the allegations contained in the plaint are correct."
"Second, the jurisdiction of this Court under Clause 12 of the Letter Patent extend to matters in which each of the defendants is within the jurisdiction of this Court and where they are not so situated, if part of the cause of action arises within the jurisdiction of the Court."
15. In the instant case part of the case of action as having arisen within the jurisdiction of this High Court has been pleaded in paragraphs 4, 8 and 22 of the plaint, which, if summarised would show that:
(i) That the Deed of Partnership dated 15th September, 1982 was executed within the jurisdiction of this High Court;
(ii) The registered partnership firm has its head office within the jurisdiction of this High Court wherefrom the business of the firm was carried on;
(iii) The cause title in C.S. No. 393 of 1997 shows that the plaintiff as also the surviving partner, defendant No. 1 are all carrying on business from the addresses within the jurisdiction of this Court;
(iv) The notice dated 10-11-97 of dissolution of the firm has been issued and received within the jurisdiction of this Court.
16. In the light of the above, it cannot be said that no part of the cause of action of the plaintiff has arisen within the jurisdiction of this Court on the basis of the averments in the plaint for reliefs as claimed.
17. The defendants Nos. 1 and 2 filed the application for revocation of the leave and dismissal of the suit and in their said application, it has been stated at the very outset that the object of the said petition "is to bring to the notice of this Hon'ble Court that the instant suit is a suit for land, inasmuch as, the primary object of the suit is to assert a title and obtain determination of land situate at Ranchi outside the jurisdiction".
18. It has been stated in the said application that the immoveable properties being plot Nos. 1789/A and 1789/A/2 at village Hindpuri, Ranchi comprising of 21 cottahs 6 chittacks 2 sq. ft. of land as also three storeyed building thereon in which two cinema halls have been construed belonged to late A.K. Jaiswal and after his death inherited by the defendants Nos. 2 and 3 as also two minor daughters of the said deceased.
19. It is further pleaded in paragraph '30' of the said application as under :
"It is clear from the facts aforesaid that the balance of convenience is wholly against the suit being tried in this Hon'ble Court inasmuch as all the evidence which are necessary to be tendered as well as all witnesses are at Ranchi and it will be well neigh impossible for the petitioners to bring them to Calcutta for asserting of their rights against the pretended claims made by the plaintiffs."
20. Mr. Hirak Mitra, learned senior advocate appearing on behalf of the appellants/defendants No. 2 and 3 referred to the averments made in the plaint and more particularly to those extracted in the earlier part of this judgment in support of his submission that the instant suit is a "suit for land". The primary object of the suit as per the averments referred to supra, is to obtain declaration and adjudication of the ownership with respect to the land and the two theatres situate beyond the jurisdiction of this Court and the same has been carefully concealed through the prayers for dissolution and accounts of the properties and assets of the said partnership firm through the cloak or the garb of winding up of the firm.
21. Mr. Hirak Mitra, further contended that the central issue which will have to be decided, is the question of the title to the properties viz., the land and the two cinema halls built thereon which are situated at Panchi beyond the jurisdiction of this High Court. The main issue, therefore, it is contended is with regard to the ownership of the said properties whether they belonged to partnership or to the heirs of late Aswini Kumar Jaiswal. The natural forum where the dispute raised by the plaintiff is to be tried is the appropriate District Court in Ranchi having territorial jurisdiction of the immoveable properties, it was submitted.
22. Suits under Clause 12 of Letters Patent have been divided into two categories;
(i) suits for land or other immoveable property and
(ii) other suits;
23. In the case of suits for land or other immoveable properly i.e. the suits of the first category, the High Court will have jurisdiction to entertain and try such suits, if such land or immoveable property is situated wholly within the local limits of Ordinary Original Jurisdiction of the High Court. Where the land or immoveable property is situate partly within the local limits and partly outside such limits, such suits can be instituted in the High Court only after first obtaining leave of the High Court under Clause 12.
24. In the case of "other suits" i.e. suits falling in the second category referred to supra, such suits can be instituted in the High Court, if the cause of action arises wholly within the local limits of the Ordinary Original Jurisdiction of the High Court or the defendant resides or carries on business and works for gain within such limits. Where, however, the cause of action arises inpart only within such limits, the suit can be instituted after first obtaining leave of the Court under Clause 12.
25. Thus, leave under Clause 12 is required to be taken in the case of suit for land or other immovable property, if a part of such land or other immovable, property is situate within the local limits of the Ordinary Original Jurisdiction of the High Court as defined in Clause 11 and in the case of "other suits", if a part of the cause of action arises within such limits.
26. In respect of "suit for land", jurisdiction is founded on the situation of the land within the local limits of the Court's jurisdiction. In all other cases, it is founded on the accrual of the cause of action, alternatively on the residence of the defendant within the jurisdiction of the Court. Provided that where the cause of action arises in part or when only some of the defendants reside within the jurisdiction of the Court if the leave of the Court is taken, the Court can assume jurisdiction.
27. The majority opinion in Moolji Jaitha and Co. v. The Khandesh Spinning and Weaving Mills Co. Ltd., AIR 1950 FC 83, negatived the contention that in a "suit for land" where the immovable properties are situate beyond the jurisdiction, the High Court would still have jurisdiction to entertain and try the suit by reason of the defendants carrying-on business within the limits of the Court's Ordinary Original Civil Jurisdiction.
28. Moolji Jaitha's case (supra) is one of the earliest judgments of the Federal Court on the quest-on raised for determining the meaning to be assigned to the expression "suit for land". It is an of quoted judgment.
29. In a Division Bench judgment of this Court in Md. Hassen Hashmi's case (cited supra) AIR 1983 Cal 70, the Federal Court judgment as also the decision of the Special Bench of this High Court (Maharaja Prabirendra Mohan Tagore v. State of Bihar), the decision in (Bengal Glass and Silicate Works v. Lalit Bijlani) and a further decision (East Anglia Plastic Ltd. v. State of West Bengal) were considered and it was observed thus :
"........In all the aforesaid decisions, it has been held that what the Court has to see is the primary object of the suit and if the primary object of the suit is to obtain relief with regard to an immovable property outside the jurisdiction of the Court, then it is a suit for land; but if the primary object is otherwise and only incidental relief is claimed as a consequence of the primary object, then it is not a suit for land."
30. It was further observed by the Division Bench in that case that where the primary object of the suit is to enforce the right to get accounts from the defendants in respect of the partnership business.
"It makes no difference whether the property is admitted to belong to the partnership so far as the jurisdiction of the Court is concerned."
31. In Hassen Hashmi's case, (cited supra), the judgment of the Division Bench of this High Court reported in AIR 1992 Cal 97 (Brijmohanlal Rathi v. Smt. Gita Rani Rathi), was noticed and distinguished in the following terms :
".................In the said case even according to the plaintiff the firm was dissolved by mutual consent in 1976. The suit was instituted in 1987, claiming reliefs in respect of a property situate outside the jurisdiction of this Court which admittedly stood in the name of the defendant's predecessor an ex-partner of the dissolved firm. If the firm was dissolved by consent in 1976, there was no scope for any suit for accounts, nor was there any such relief claimed in the suit. It was not the case of the plaintiff that the agreement for dissolution was subject to any accounts to be taken in future."
For the very same reasons, as above, the Brijmohanlal Rathi's case is distinguishable on the facts of the instant case.
32. It was further observed in paragraph '21' of the said judgment of the Division Bench in Hassen Hashmi's case (supra) thus :
"...............Furthermore it cannot be accepted that in a suit for accounts of a partnership, the Court will have jurisdiction of the property -is admitted to belong to the partnership and that the jurisdiction of the Court can be taken away by the defendant by disputing the title. Either the Court has jurisdiction or it does not have jurisdiction. The jurisdiction of the Court does not depend on the volition of the defendant. In a suit for accounts the nature of interest of a partner has been held to be movable even though partnership owns immovable properties outside the jurisdiction."
33. In an earlier judgment, a Division Bench of this High Court in Tilokram Ghosh v. Gita Rani Sandhukhan (cited supra), rejected the contention that where the main assets of the firm, being immovable property situate outside the jurisdiction, this High Court has no jurisdiction to entertain the suit for dissolution of the firm as it is a suit for land. After referring to the judgment of Supreme Court in Addanki Narayanappa's case (cited supra), in paragraph 19 of the judgment it was held as follows ;
"It was, therefore, held by the Supreme Court that the interest of the partners in the partnership is movable property. This Court, on the basis of this authority, rejects the aforesaid contention of the counsel for Sandhukhans. A suit for dissolution of partnership and account cannot be treated as a suit for land even if its assets consist of immovable properties."
34. In Tridandeeswami Bhakti Kusum Sraman Maharaj v. Mayapore Sree Chaitanya Math, , M.M. Dutt, J., opined that where out of several reliefs in the plaint, the claim for the grant of a particular relief which does not relate to title to, or possession, control or management of land or buildings or other immovable property is the primary object of the suit or not has to be decided by applying the test, whether the relief claimed to be the primary object of the suit can be granted to the plaintiffs without the necessity of adjudication on the question of title to any land or buildings or other immovable property or possession control or management thereof. If the relief stands the test, the suit will not be a suit for land or other immovable property within the meaning of Clause 12 of Letters Patent, although the grant of such relief may indirectly affect the land or other immovable property. If, however, by applying the test, it is found that such relief cannot be granted without deciding the question of title to or possession, control or management of land or other immovable property, the claim for the grant of such relief cannot be the primary object of the suit and, in that case the suit will be a suit for land or the other immovable property within the meaning of Clause 12 of the Letters Patent.
35. Relying upon the above observations of M.M. Dutta, J., it was the submission of Mr. Hirak Mitra that the relief as claimed in the instant suit cannot be granted, unless title to and possession and control of the properties situate beyond the jurisdiction of this Court or at Ranchi are first decided.
36. We are in respectful agreement with the ratio laid down in the Division Bench judgments in Hassen Hashmi's case (cited supra) and Tilokram Ghosh's case (cited supra), that a suit for dissolution of partnership and accounts cannot be treated as a "suit for land", even if its assets consist of immovable properties and, therefore, a suit for dissolution and accounts is maintainable in a Court within whose jurisdiction cause of action has arisen in whole or in part, though that Court has no territorial jurisdiction over the assets of the firm which are immovable properties. Where the object of the suit is to enforce the right to get accounts from the defendants in respect of the partnership business, it makes no difference whether the property is admitted to belong to the partnership or is disputed to belong to the partnership so far as the jurisdiction of the Court is concerned, as in the instant case, the nature of business of the partnership, it is not necessary that the land or property should necessarily belong to the partnership.
37. The object of the partnership as noticed in the instant case is to deal in exhibition, and distribution of cinematographic films.
38. It is not in dispute that the said business was carried on in relation to theatres i.e. immovable properties situate at Ranchi and the statutory licence required for exhibiting films in the said two theatres was originally in the name of K.L. Jaiswal and after his death in September, 1982, the statutory licence for exhibition was granted by the concerned authorities in favour of Aswini Kumar Jaiswal and until his death on 9th October, 1997, he carried on the said cinema business in co-partnership with plaintiff and defendant No. 1 (see pg. 298 of the Paper Book, Affidavit-in-opposition on behalf of the defendants No. 2 and 3 to the supplementary affidavit filed by plaintiff before the Trial Judge). That the said Aswini Kumar Jaiswal (deceased) was a partner of the firm in question has been specifically stated in the plaint and that the said two theatres in question have been used for exhibition of the films by the firm in question.
39. What is disputed is that mere user of the property by the partnership firm without any indication as to whom the property was treated as belonging to, will not bring about any change in the beneficial ownership of such property nor would that automatically make the said property a partnership property. The question of title, in the circumstances, arises only incidentally in the instant suit with respect to the said two theatres situated at Ranchi beyond the jurisdiction of this Court and its determination would depend upon the construction to be placed upon the Partnership Deeds and documents that the parties may choose to rely upon and prove in respect of their respective contentions in that behalf. The determination of the said question would not, in our opinion, constitute the suit which is filed for declaration of the dissolution of the partnership or in the alternative for dissolution of the firm by the Court and for accounts into one for a "suit for land."
40. The averments made in the plaint, extracted supra, and so strenuously relied upon by the learned advocate for the defendants No. 2 and 3 have to be looked upon and considered in the light of the relief claimed by the plaintiff under Section 44 of the Partnership Act which lays down that court can dissolve the firm on the grounds mentioned in the various clauses thereunder and perhaps in relation to the interlocutory reliefs claimed by the plaintiff. The said averments made in the plaint cannot be construed as claiming exclusive ownership, title, possession or control in favour of the plaintiff as was the case in Brij Mohan Lal Rathi's case (cited supra) or as in T.B.K.S. Maharaj's case (cited supra), wherein Deed of appointment of which cancellation was sought as the main relief purported to effect and/or interfere with the alleged title of the plaintiff in the said case to the disputed properties and also the right of the plaintiff s claim relating to management, control, possession and administration of the properties. In that case, the success of the plaintiff in getting the Deeds set aside depended upon their proving title of the plaintiff to the disputed properties and its right to manage, control and possess the same. The primary object of the suit it was held could not be said to be setting aside of the Deeds and the suit was a "suit for land." T.B.K.S. Maharaj's case is thus distinguishable on the facts of the instant case as also on the nature of the reliefs claimed in the two suits.
41. In this connection, it may be apposite to refer to certain observations of Mahajan, J. in Moolji Jaithia's case (AIR 1950 FC 83) which are to the following effect:
"........The subject matter of a suit would not be land or immovable property on this construction if the question concerning the land only arises incidentally in a suit, the real subject matter of which is not land or immovable property but say the administration of an estate or of a trust or taking accounts of a partnership in which no decree or order is claimed in respect of proprietary or possessory title to land or immovable property."
42. Even if one were to accept the submission of the appellant that the suit is a suit for land because there is a question of title involved in respect of immovable property, the immovable property claimed in this case as the assets of the partnership firm include the registered office of the firm within the jurisdiction of this Court. In terms of Clause 12 of the Letters Patent therefore this Court would have the jurisdiction to entertain the suit particularly when the leave of the Court has been taken under Clause 12 of the Letters Patent.
43. We must, however, make it clear that we have not gone into the merits of the contentions as to whether the immovable properties situated at Ranchi or at Calcutta are or are not the assets of the partnership firm as it was not necessary to do so for the purposes of this appeal or for purposes of deciding the question as to revocation of leave under Clause 12.
44. As to the question of balance of convenience pleaded by defendants No. 2 and 3 in support of their contention for revocation of leave, the judicial conspectus on this aspect has been noticed in Sambhu Prasad Agarwal's case (1994) 2 Cal HN 472 (cited supra) and it would suffice to extract the relevant passages from that judgments, as under :
"43 :-- It is well established that the question of jurisdiction must be decided on the allegations in the pleadings (See Ritu Sachdev v. Anita Jindal, ). This in my view, would include question of balance of convenience. The decision of a learned single Judge in Sanjoy Trading Co. v. Dal Chemical N. V., that a mere allegation of balance of convenience by the defendant would not be sufficient for the Court to revoke leave under Clause 12 of the Letters Patent would seem to suggest that the important thing is not the allegation but the satisfaction of the Court that the balance of convenience was overwhelmingly in favour of the suit being tried in another Court. The learned Judge held that the Court has to consider and satisfy itself from the materials before it that if the suit is allowed to proceed in this Court, it would amount to gross injustice to the petitioners for revocation of leave under Clause 12.
44:-- Chakraborty, J. in an unreported Bench decision in Ridh Karan Kabra v. A. Karmally and Sons ).
'The Court has to take the field of enquiry to be that envisaged by the whole plaint and it has to take into account the whole mass of evidence which will have to be given by the plaintiff to prove his case and by the defendants to meet it. The Court may also take into consideration the inconvenience likely to be caused to the parties by having to attend personally throughout the trial, as also the expense, and any other local or special condition in the one forum or the other. If on taking in to consideration all these facts, it appeared that that part of the evidence which could be more conveniently given in another Court was so much larger and the inconvenience of compelling the defendant in bringing that evidence to this Court was so much greater that it would be oppressive in the extreme to compel him to do so, then a balance of convenience would be established in favour of the defendant.
"What is to be considered" said Chakravarti, J.
"is not the importance of the matter to be proved but the volume of the evidence, and convenience or inconvenience of producing it. The most vital and fundamental part of a case may well depend upon evidence of a limited volume and yet evidence bearing upon the remaining parts of the case which are only consequential or inconsequential, may be voluminous and troublesome to bring forward."
45 :-- Sinha, J. (as His Lordship then was) in the case of Parasram Harmandrai v. Chitandas, stated :
"In deciding the question of 'balance of convenience', statements of a general nature contained in affidavits affirmed for that purpose, without particulars are useless. The Court must consider the facts and cannot proceed to act on vague allegations, devoid of particulars.
In deciding applications for revocation of leave, it is always useful to consider as to which Court as the 'Natural forum' for an action." "
45. In that case, on the basis of statements contained in the plaint, it was held that the balance of convenience was overwhelmingly in favour of the suit being tried in Karnataka.
46. Applying the principles, as laid down in the case cited supra, to the instant case, it must be held that the appellants/defendants No. 2 and 3 have failed to establish that it would cause gross injustice to defendants No. 2 and 3, if the suit is tried in this Court or that the balance of convenience is overwhelmingly in favour of the suit being tried at Ranchi. The facts pleaded in the plaint are in favour of the suit being tried at Calcutta. The Head Office of the firm is at Calcutta where the accounts of the firm are required to be maintained and are being maintained at Calcutta. Even the accounts of the business at Ranchi, it is admitted, are being sent to the Head Office at Calcutta. The Deed of Partnership was executed at Calcutta within the jurisdiction of this Court. The learned single Judge has observed that parties are residing within the jurisdiction and claiming that suit is to be heard in this Court are holding 70% share in the firm. Also, on the basis of the observations made by the Supreme Court in Morgan Standley Mutual Fund v. Kartick Das, , wherein it was held that:
"As far as India is concerned, the residence of the company is where the registered office is located. Normally, cases should be filed only where the registered office of the company is situate."
47. It was sought to be contended by Mr. Hirak Mitra that a partnership firm need not be registered and, therefore, the legal requirement that a company is to be controlled from its registered office would not apply in the case of a partnership. It was the submission of Mr. Hirak Mitra that in the instant case, the place where the registered office of the partnership is located is of no consequence. Mr. Mitra referred to and relied upon the passage in Cheshire Book on Private International Law, 11th Edition, Page-75, wherein it was stated that the residence of a corporation is to be fixed in the country where it is in fact controlled.
48. On the pleadings of the instant case, the above contention, in our view, is not tenable for the reason that the partnership in question is registered and has its registered office at Calcutta within the jurisdiction of this Court. No averment is made in the pleadings that intimation of opening of any branch office at Ranchi was given to the Registrar of Firms as required under Section 61 of the Partnership Act. It cannot, therefore, be said that the business of the partnership is not controlled from the registered office of the firm.
49. An objection as to the maintainability of the appeal was sought to be raised by the plaintiff. It was the submission of Mr. P.K. Ray, learned Senior Advocate for the plaintiff/respondent No. 1 herein that the order rejecting the application for revocation of leave is not appealable, inasmuch as, it is not a "Judgment" within the meaning of Clause 15 of Letters Patent. We have no hesitation in rejecting the said submission. In (1985) 57 Com Cas 503 : (1984 Tax LR 2091), Calcutta Chemical Co. v. Krishna Das, following the principles in Khimji's case , it was held that seriousness of the prejudice or injustice caused to an aggrieved party by an interlocutory order is the guiding factor on the decision of the question as to whether such an order is a "Judgment" within the meaning of Clause 15. The case directly in point is Shorab Modi's case, wherein it was held that an order refusing to rescind a leave granted under Clause 12 of the Letters Patent is applicable.
50. In the result, the above appeal is liable to be dismissed and is hereby dismissed. Costs in the appeal shall be costs in the suit.
Ruma Pal, J.
51. I agree. Appeal dismissed.