Chhogalal, rep by power of attorney agent C.Pukhraj Jain, sole propr: of Sha Jetmull Ganmull vs G. Ramalingam

K.M. Natarajan, J.—This application is filed to grant leave to the plaintiff to institute the suit in this Court. It is alleged in the affidavit filed in support of the application that the plaintiff has filed the suit for recovery of a sum of Rs. 1,65,000, together with interest due from the defendant in respect of the loan and borrowing, in default to sell the plaint schedule property which was mortgaged with the plaintiff and the said property is situate within the jurisdiction of the District Judge, Chingleput. Hence leave is sought for. It is further alleged that a part of the cause of action arose within the jurisdiction of this Court at Madras, where the defendant executed a promissory note and the letter depositing the title deeds and actually handed over the title deeds of the plaint schedule property for creating the equitable mortgage. The defendant agreed to pay the amount at the plaintiff''s place i.e. Madras and in fact the defendant made part payments at the plaintiff''s place within the jurisdiction of the court. On going through the plaint, I find that the entire cause of action for the suit arose only at Madras within the jurisdiction of this Court. The allegation in the affidavit that only a part of the cause of action arose within the jurisdiction of this Court is not correct. The learned counsel for the plaintiff submits that in view of the fact that the defendant is residing outside the jurisdiction of this Court, this Court can grant leave to sue as prayed for, and in this connection the learned counsel relied on the decision of this Court reported in Bank of Madurai Ltd. v. Balaramadass and Bros 97 L.W. 485 = 1985-1-M.L.J. 245., where it was held that the High Court has jurisdiction to hear a suit whatever be the nature of the suit, in case the defendants reside within its territorial jurisdiction, irrespective of the place of the immovable property. The learned counsel relied on the ratio laid down in the said decision and submitted that in view of the fact that the defendant resides outside the jurisdiction of this Court, leave has to be granted. I do not find any force in the said contention. Under Cl.12 of the Letters Patent, if the defendant at the time of the commencement of the suit dwells or carries on business or personally works for gain within such limits, this Court is having jurisdiction to entertain the suit. Leave of the court under Cl. 12 is contemplated only in cases where part of the cause of action arose within the jurisdiction of the court and not the entire cause of action arose. It has to be noted that under sub-Cl.(1) of S. 120 C.P.Code, Ss. 16, 17 and 20 C.P.Code shall not apply to the High Court in the exercise of its original civil jurisdiction. Hence the question of granting leave in cases where the defendant resides outside the jurisdiction does not arise. In the instant case, the suit is for recovery of money and it cannot be said that it is a suit for land or other immovable property. As such, the fact that the property which was hypothecated is outside the jurisdiction of this Court is immaterial. In view of the fact that the entire cause of action arose within the jurisdiction of this Court, no leave is necessary. As such this application is dismissed.