Andhra HC (Pre-Telangana)
T.N. Seshan, Chief Election ... vs All India Anna Dravida Munnetra Kazagam ... on 8 November, 1995
Equivalent citations: 1996(1)ALT135, 1996 A I H C 4283, (1996) 1 ANDHLD 180 (1996) 1 ANDH LT 135, (1996) 1 ANDH LT 135
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER Prabha Shanker Mishra, C.J.
1. Disposing of four applications for revoking the leave to sue, granted by the Madras High Court under Clause 12 of its Letters Patent and an application for grant of such leave, in all in five suits, a learned single Judge of this Court has ordered in favour of the plaintiff, declined to revoke the leave for instituting four suits by different plaintiffs and granted leave for instituting the fifth suit.
2. The suits are filed mainly complaining that the book titled "Seshan - an Intimate Story" contained references to late Sri C.N. Annadurai, which werep_er_ se defamatory and reference as an affair with M.G. Ramachandran' in the book contained objectionable references to late Sri M.G. Ramachandran, the two leaders of some eminence in public life. As facts disclose Sri T.N. Seshan allegedly narrated his experiences to Sri K. Govindan Kutty and on that basis the latter wrote the book titled " SESHAN--AN INTIMATE STORY". This book was printed and published by Konark Publishers Private Limited and copies of the book were sold to distributors and others. Prior to the sale and distribution, however, some excepts of the book appeared in the news papers and magazines in circulation all over India, including the state of Tamil Nadu. Copies of the book were also sent to Madras book distributors for sale. A formal function for the release of the book was arranged for Monday the 17th October, 1995 in Delhi. Suits, however, were filed by Sri M. Karunanidhi, Sri V. Gopala Swamy, Smt. Rani Annadurai and others and All India Anna Dravida Munnetra Kazhagam alleging defamation caused to late Sri C.N. Annudurai and another by All India Anna Dravida Munnertra Kazhagam alleging defamation caused to late Sri M.G. Ramachandran by the offending publications in the book and seeking the relief of permanent injunction. Four suits, however, i.e., one by Sri M. Karunanidhi, second by Sri V. Gopala Swamy, third by Smt. Rani Annadurai and others, and fourth by All India Anna Dravida Munnetra Kazhagam (the last for the alleged defamation of late Sri M.G. Ramachandran) were taken by the Madras Court on its file, after applications seeking leave to sue were granted under Clause 12 of the Letters Patent of the Court. In the suit, however, filed by All India Anna Dravida Munnetra Kazhagam for the alleged defamation of late Sri C.N. Annadurai was not numbered and the Court issued notice in the application for grant of leave to sue, to the defendants therein. While the proceedings in the suits were at the stage of being processed by the Madras Court, Sri K. Govindan Kutty moved the Supreme Court for transfer of the cases from the Madras High Court to any other competent Court in any other state in the country. The Supreme Court exercised its jurisdiction under Article 139-A(2) of the Constitution of India and transferred the suits for further proceedings to this Court. The first order of the Court by the learned single Judge has gone in favour of the plaintiffs. Hence, the appeal.
3. Learned Single Judge has rightly observed, "for the limited purpose of disposing of these applications, on the basis of the plaint allegations, it is presumed mat the impugned allegations are defamatory", and noted that communication of any defamatory publication by some person, other than the person for whom it has been written, to another, is 'publication' and on facts recorded as follows:
"All the three defendants must have known that the aforesaid books and, particularly the contents of Chapters 9 and 10 may be read atleast by the book sellers immediately on their receipt by them because of their curiosity. In the ordinary course of business the sending of books containing defamatory matter by post or otherwise from the place where it is published to book distributor of another place is publication of that matter at latter place, particularly, when it is read by them and/or others. Under these circumstances, it can be safely presumed that the importance of the aforesaid book containing Chapters 9 and 10 would have aroused the curiosity of atleast the book seller to go through it immediately on its receipt and, therefore, this type of communication amounts to publication of Madras.
As noted above, the excepts of Chapters 9 and 10 of the aforesaid book in local news papers is a distinct publication. Much publicity was given for the sale of the book as is evident from the affidavits of the defendants. Therefore, a presumption regarding awareness of the contents of the concerned newspapers can be raised against all the defendants because out of these defendants only the concerned matter would have been passed on to the newspapers concerned and thus all of them prima facie, appear to be responsible alike for the publication of the alleged defamatory news item in the local news papers."
4. On the basis of the above and also for the reason that the suits are transferred to this Court by a judicial order of the Supreme Court, learned single Judge has held mat the Court shall have jurisdiction to proceed.
5. Original jurisdiction as to suits of the High Court of Judicature at Madras is prescribed by the Letters Patent, Clause 12, which reads as follows:
"Original Jurisdiction as to suits:-And we do further ordain that said High Court of Judicature at Madras, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try and determine suits of every description if, in the case of suits for land or other immovable 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 Causes Court at Madras in which the debt or damage, or value of the property sued for does not exceed one hundred rupees."
6. The plaintiffs have sought leave to sue, as according to them, part of the cause of action for the suit has arisen within the ordinary original civil jurisdiction of the Madras Court. One of us had the occasion to advert to Clause 12 of the Letters Patent of the Madras Court, while sitting in a Bench of the said Court, in K. Murugesan v. Seethalakshmi, 1992(1) Law Weekly 277. The said judgment of the Madras Court has noticed that the Madras Court's special jurisdiction under its Letters Patent has been left free from some of the provisions of the Code of Civil Procedure, including Sections 16,17 and 20, by Section 120 of the Code and, the Letters Patent of the Madras Court has not only fixed a territorial jurisdiction, but has in Clause 12 declared that in the case of suits for land or other immovable property, such land or property should be found within its territorial jurisdiction and in all other cases, if the cause of action is found, either wholly or in part, arising within the jurisdiction of the Court, or the defendant is found, at the time of commencement of the suit, dwelling or carrying on business or personally working for gain within such territory. The judgment has noted that the Court did not have much guidance from the precedents and referred to one of the earlier judgments of the Madras Court in P.H. Parameswara Pattar v. Vivatha Mahadevi, 1992 M.W.N. 641, in which a broad reference has been made to what may be found in the four corners of Clause 12 of the Letters Patent of the Court and quoted a passage from the said judgment, which reads as follows:
"One of the Judges constituting the Division Bench has observed:
"It is urged that, as some of the defendants are within the jurisdiction, this Court has right to bring before it in this suit defendants not within jurisdiction. This is a right which, under Section 20 of the Civil Procedure Code is possessed by Courts in the mofussil. The application of Section 20 to this Court in the exercise of its original jurisdiction is expressly excluded by Section 120 CPC and, if we have the power, it must be found within the four corners of Section 12 of the amended Letters Patent. The words are "or if the defendant at the time of the commencement of the suit shall dwell or carry on business within such limits". The principal defendant does not dwell here. The section does not say, "If the defendant, or if there are more than one defendants, any of them, shall dwell or carry on business within such limits" and, in my view, I cannot read the provisions of the amended Letters Patent conferring jurisdiction upon this Court in case where one or more of the several defendants reside within jurisdiction. The point is free from authority except the case in Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mohomed Hadjee Joosub,and Rahim Bye v. Hadjee Mohomed joshee joosub, 13 Bengal Law Reporter 91, which I read as affirming the view I am now expressing although it has been read by a learned author Mr. Broughton as giving the High Courts, power to grant leave to sue in such cases. However, in the view I have expressed in this case, namely, that on balance of convenience this case should be brought in Malabar and not here, that point too does not directly arise for decision."
The other learned Judge when confronted with this, has answered by saying:
"As to the question whether we should give leave to bring the whole action in this Court merely because most of the defendants reside here while the 5th defendant does not, the hearing and interpretation of Clause 12 of the Letters Patent on this point is a matter of some difficulty and I consider that it would be better not to say more on a point which is not necessary for the decision of the case, since I hold that even if the Court has the power, we should not in this case exercise it to give leave to the plaintiff to sue."
7. The said Madras Bench, however, has approved the observations of a learned single Judge of the Madras Court in these words:
"Srinivasan, J. has taken notice of the commentary on the Civil Procedure Code (X of 1877) by Broughton in which it is stated:-
"The word 'defendant' includes the plural. So that if one defendant dwells within the jurisdiction and another does not the suit cannot be maintained under that head or jurisdiction without an order of Court." After referring Hadjee Ismail Hadjee Hubbeeb's case the Commentary proceeds: "This order may now be made either under this clause or under Section 17 of the Code; but if the defendant who dwells within the jurisdiction consents, no order is necessary".
The learned Judge has commented:
"No doubt, the applicability of Section 17 of the Code has now been excluded by Section 120 of the present Code. The reference to the case in 13 B.L.R. 91 is certainly erroneous. It was not decided in that case that if one of the defendants resides or carries on business within the jurisdiction, then suit could not be instituted with the leave of the Court. In fact, a contrary view was taken by the Division Bench of the Bengal High Court. As laid down in Secretary of State v. Colabrai Paliram (AIR 1932 Calcutta 146) questions of difficulty and importance should not be dealt with by an application to revoke the leave under Clause 12, Letters Patent and to take the plaint off the file and the proper course in such cases is to dismiss the application and to direct that the case do proceed on all points in the usual way and hence I am leaving open mat question to be decided, if raised by the parties, in the suit itself.
We would have preferred this Court and accordingly opined that since this question is not free from difficulty, the parties may raise it in the trial and if necessary invite a judgment on this question be sides other questions on merits. We shall fail, however, in meeting the challenge to the jurisdiction of this Court on this account, if we do not at this stage examine how residence and/or carrying on business etc., of a defendant or defendants if there are more than one, within the jurisdiction of this Court, should be viewed for the purposes of cause of action."
8. This Madras judgment is a clear authority for the proposition that from various definitions of the term 'cause of action' what is culled out to apply for testing whether cause of action has arisen within the territorial jurisdiction of the Court for the purposes of Clause 12 of the Letters patent of the Madras Court, and what is generally accepted meaning of it is, in a factual sense, the fact or facts which give rise to or entitle a party to sustain an action or as referring to the pleading and proof, the facts alleged, or necessary to be alleged and proved to sustain the action, the Court has observed:
"It is however always the whole or bundle of the facts and not the one or two to the exclusion of other facts which go and stand together. In this behalf, he has drawn our attention to a judgment of the Bombay High Court in Baroda Oil Cakes Traders v. Parshottam A Division Bench of the Bombay High Court has first referred to the observations of the Courts in England to point out that cause of action has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeeded and every fact which the defendant has a right to traverse and to state the law as follows:
"It is, however, important to bear in mind that the bundle of facts which constitute the cause of action in a civil suit does not and is not intended to comprise every fact which may be proved in evidence. It is only material facts which must be proved by the plaintiff before he can obtain a decree that constitute the cause of action. Facts which the plaintiff may allege incidentally and facts which may be brought in evidence as res gestae would not necessarily constitute a part of the cause of action. The distinction between facts which are relevant and material and those that are incidental and material is sometimes not easy to be down, but the said distinction is nevertheless important for the purpose of deciding which facts constitute the cause of action and which are not included in it."
A Full Bench of this Court In Re Lakshminarayana Chettiar (67 L.W.132) has defined cause of action as a fact which if traversed would be necessary for the plaintiff to prove in order to entitle him to the judgment of the Court. The Supreme Court in India in the case of State of Rajasthan v. Swaika Properties has defined cause of action to mean every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court, and added in other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant.
There can be hardly any dispute to such a wise approach to understand the expression 'cause of action' and we see no reason to deviate."
9. Learned single Judge has relied upon the judgment of the Supreme Court in A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem, , wherein the above view is affirmed in these words:
"A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant."
10. The Supreme Court has clarified that 'cause of action' must include some act done by the defendant since, in the absence of such an act, no cause of action can possibly accrue and said that it is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree.
11. Learned Single Judge has apparently not done any error in holding that there is no msitake in granting leave to sue by the Madras Court since the facts, as stated in the plaint, clearly show the effect at least of the distribution of the book and publication of the review of the book in Madras has given the requisite cause of action.
12. Before, however, we part with this judgment, we propose to clarify that refusal to revoke the leave is not treated as an order to deny to the defendants the right to challenge the facts or traverse the facts which appear to give rise to the cause of action and in case the facts alleged in the plaint stand rebutted or disproved or not proved by the plaintiff in accordance with law, the Court may take the view that the Court's ordinary civil jurisdiction is not attracted and the suit should be filed somewhere else. One of the settled principles is, while examining whether, on the ground of a part of cause of action of the suit has arisen within the territorial limits of the ordinary civil jurisdiction of the Court, leave should be granted or not, to test the locus convenietite i.e., whether it shall be convenient for the plaintiff and inconvenient for the defendant, or whether it shall be convenient for the defendant and not for the plaintiff, or whether it shall be convenient for both, if the trial is held in the Court and not anywhere else. The principle of balance of convenience of the parties in this regard is stated in a Bench decision of the Madras High Court by one of us in Tuticorin Alkali Chemicals & Fertilisers Ltd. v. Cochin Silicate & Glass Industries.4, In the instant case, however, such a plea is not required to be examined at all for it was a plea of inconvenience of the defendant which prevailed before the Supreme Court and the cases have been transferred from the Madras High Court to this Court.
13. We find no merit in the appeals. The appeals are accordingly dismissed.