Madras High Court
Vinod K. Sharma vs Chandi Prasad
A.No.3785 of 2012 in C.S.No.274 of 2012 VINOD K. SHARMA,J., The applicants / defendants 3 & 4 have filed this application, by invoking Order XIV Rule 8 r/w Order III Rule 1 and Clause 12 of the Letters Patent to revoke the leave granted vide A.No.1878 of 2012 in C.S.No.274 of 2012 on 17.04.2012, giving liberty to sue the defendant nos.3 & 4 in this Court.
2. It is submitted that the leave granted to the plaintiff / applicant to sue the applicants, is liable to be revoked, as the plaint does not disclose any cause of action against the applicants / defendants 3 & 4.
3. The plaintiff / non applicant filed a suit against defendants 1 to 4 for perpetual injunction, restraining the defendants from in any manner issuing, circulating, publishing the offending advertisements, which seek to disparage / denigrate the plaintiffs products.
4. It is the case of applicants / defendants 3 & 4, that according to the averments made in the plaint, the cause of action arose to the plaintiff / non applicant in middle of March, 2012, when the offending advertisement was published by defendants 1 & 2 and by virtue of the advertisement by defendant nos.1 & 2, severe damage was caused to the reputation and goodwill of the plaintiff. It is submitted, that even as per the averments in the plaint, there is no cause of action against the applicants / defendants.
5. It is also the case of applicants / defendants 3 & 4, that the jurisdiction of this Court has been invoked by pleading, that the advertisement issued by defendants 1 & 2 has been circulated in Dinamalar a regional Tamil newspaper and Times of India a national newspaper circulated at Chennai within the jurisdiction of this Honble Court. That the 1st defendant has regional office at Chennai within the jurisdiction of this Court, but there is no mention about the applicants / defendants 3 & 4.
6. It is submitted by the applicants / defendants, that the registered office of the 3rd defendant is at Delhi. The Comparative testing of the products was done in the labs situated at Delhi and test reports were published in the applicant / 3rd defendants magazine Consumer Voice by the 4th defendant at Delhi.
7. It is thus submitted, that even if the publication of the results in its magazine gives any cause of action, the same can be only at Delhi, as no cause of action or part of cause of action against the applicants have arisen at Chennai. Nor the applicants are residing or carrying on the business within the jurisdiction of this Court.
8. It is also the case of the applicants / defendants, that the allegation against the applicants / defendants 3 & 4 is, that comparative testing of the product was carried out in an arbitrary manner, therefore, the test report given by applicants is not a valid. It is submitted, that in that case, the plaintiff / non applicant should have challenged the test report, but this has not been done, but the applicants have been added as parties in the suit for permanent injunction to restrain the offending advertisements, being published.
9. It is further case of the applicants / defendants 3 & 4, that challenge to the test can only be before the competent Court, having jurisdiction to try the case, i.e., Delhi and not this Court and as per the averments made in the plaint, the complaint is with regard to the action, which took place prior to the month of February, 2012, but it is submitted in the plaint, that cause of action arose in the month of March, 2012, when the offending advertisement was published, therefore, the suit against the applicants is not maintainable.
10. The plea is also raised, that the suit is bad for misjoinder of cause of action, as the acts complained arose out of different acts and series of transactions, which are not part of the same transaction. That no notice was served upon the applicants regarding grant of leave to sue till date and even in the suit summons, the relevant portion was struck off leaving an impression that the suit was preferred against the applicants without obtaining the leave of the Court. The applicants immediately on coming to know about the leave by this Court have filed this application.
11. This application is opposed by raising preliminary objection, that after having submitted to jurisdiction of this Court by filing a written statement to the plaint as also counter to the interim applications, it is not open to the applicants now to seek revocation of the leave granted by this Court.
12. It is submitted that the averments made in the plaint and affidavit filed in support of A.No.1878 of 2012, clearly disclose cause of action for filing the present suit. The application is also challenged on the ground, that the applicants have failed to raise objection relating to misjoinder of defendants under Order 1 Rule 3 of CPC or misjoinder of cause of action under Order 2 Rule 3 of CPC on or before the first hearing, i.e. at the earliest possible opportunity, which cannot be allowed to be taken at this belated stage.
13. It is further submitted, that the objections raised in this application was not raised either in the written statement or in the counter affidavit filed to the interim applications. The stand of the applicants, that, this Court has no jurisdiction, as the test was conducted at Delhi, is totally frivolous as it ignores the provisions of Clause 12 of the Letters Patent, which allows the suit to be instituted in Court within the local limits of whose jurisdiction the cause of action wholly or partly arises.
14. That the advertisement was issued by defendant nos.2 & 3 in the Tamil newspaper falling within the territorial jurisdiction of this Court, furthermore, the advertisement was issued on the comparative testing done by the applicants, who have permitted the defendants 1 & 2 to use the slogan of the Government, namely, Jago Grahak Jago.
15. The application is also challenged, on the ground of delay, by submitting that leave was granted by this Court on 17.04.2012, whereas the present application was moved in August, 2012.
16. In support of this submission, reliance is placed on the judgment of the Honble Supreme Court in Prem Lala Nahata vs. Chandi Prasad, (2007) 2 SCC 551, wherein it has been laid down as under:
"12. Thus, in a case where a plaint suffers from the defect of misjoinder of parties or misjoinder of causes of action either in terms of Order I Rule 1 and Order I Rule 3 on the one hand, or Order II Rule 3 on the other, the Code itself indicates that the perceived defect does not make the suit one barred by law or liable to rejection. This is clear from Rules 3A, 4 and 5 of Order I of the Code, and this is emphasised by Rule 9 of Order I of the Code which provides that no suit shall be defeated by reason of non- joinder or misjoinder of parties and the court may in either case deal with the matter in controversy so far as it regards the rights and interests of the parties actually before it. This is further emphasised by Rule 10 of Order I which enables the court in appropriate circumstances to substitute or add any person as a plaintiff in a suit. Order II deals with the framing of a suit and Rule 3 provides that save as otherwise provided, a plaintiff may unite in the same suit several causes of actions against the same defendant and any plaintiffs having causes of actions in which they are jointly interested against the same defendant may unite such causes of action in the same suit. Rule-6 enables the Court to order separate trials even in a case of misjoinder of causes of action in a plaint filed.
15. It is well understood that procedure is the handmaid of justice and not its mistress. The Scheme of Order I and Order II clearly shows that the prescriptions therein are in the realm of procedure and not in the realm of substantive law or rights. That the Code considers objections regarding the frame of suit or joinder of parties only as procedural, is further clear from Section 99 of the Code which specifically provides that no decree shall be reversed in appeal on account of any misjoinder of parties or causes of action or non-joinder of parties unless a Court finds that the non-joinder is of a necessary party. This is on the same principle as of Section 21 of the Code which shows that even an objection to territorial jurisdiction of the Court in which the suit is instituted, could not be raised successfully for the first time in an appeal against the decree unless the appellant is also able to show consequent failure of justice. The Suits Valuation Act similarly indicates that absence of pecuniary jurisdiction in the Court that tried the cause without objection also stands on the same footing. The amendment to Section 24 of the Code in the year 1976 confers power on the Court even to transfer a suit filed in a Court having no jurisdiction, to a Court having jurisdiction to try it. In the context of these provisions with particular reference to the Rules in Order I and Order II of the Code, it is clear that an objection of misjoinder of plaintiffs or misjoinder of causes of action, is a procedural objection and it is not a bar to the entertaining of the suit or the trial and final disposal of the suit. The Court has the liberty even to treat the plaint in such a case as relating to two suits and try and dispose them off on that basis."
17. On merit, it is submitted, that the reading of Paragraph Nos.4, 6, 7, 13, 24, 25, 27, 28, 30 to 40, 42 to 44 & 47 to 51, disclose cause of action against the applicants. The reference is thereafter made to Section 20 of the Civil Procedure Court. It is submitted, that there are allegations of collusion between defendant nos.1 & 2 and defendant nos. 3 & 4. In support of collusion, reference is made to averments in the written statement filed by the applicants to the suit filed by the plaintiff / non applicant. The counter stand is, that the applicants have taken inconsistent and contradictory pleas, which show the close connection, collusion and conspiracy of the applicants with defendant nos.1 & 2. The application therefore is opposed, on the ground of maintainability, delay and laches as also that the plaint does disclose cause of action against defendants, which arose within the jurisdiction of this Court.
18. Learned Senior Counsel appearing on behalf of the applicants vehemently contended, that the suit filed by the plaintiff / non applicant is for perpetual injunction, restraining the defendants from issuing, circulating, publishing and offending advertisement, which is filed as Document No.1 and any other similar advertisement or to publish any article in the magazine published in Consumer Voice, which shows, that no relief is claimed against the applicants.
19. Learned Senior Counsel also referred to Paragraph No.55 of the plaint, which reads as under:
55. The Plaintiff states that the cause of action arose in or around middle of March 2012 when the offending advertisement was published by the Plaintiff. The Plaintiff states that the Defendant is continuing with the offending advertising campaign till date. Thus the cause of action is a continuing cause of action and is causing irreparable loss and injury to the Plaintiffs goodwill and reputation as the Defendant has continued with its advertisement.
20. By referring to Para 55 r/w prayer, it was vehemently contended, that even reading of the plaint shows, no cause of action against the applicants to maintain the suit.
21. Learned Senior Counsel for the applicants thereafter referred to the magazine Consumer Voice, wherein it is recorded as under:
All rights reserved. No article, story, test report can be reproduced from this magazine, without a written permission from the Editor. Material, test report, data from Consumer VOICE cannot be used for any marketing or promotional purposes.
All disputes are subject to the exclusive jurisdiction of competent courts in Delhi/New Delhi only.
Libel Insurance: The Consumer VOICE libel insurance policy extends to include typesetters, printers, distributors, co-publishers, and newspaper advertisements by VOICE. to contend, that in absence of any allegations, that the applicants had given written permission to defendants 1 & 2 to use it for marketing and promotional purposes, no cause of action can be said to have arisen against applicants / defendants, thus, leave to sue deserves to be revoked.
22. In support of this contention, learned Senior Counsel for the applicants / defendants placed reliance on the judgment of this Court in G.Nagaraj vs. Govindaswamy, CDJ 1983 MHC 420, wherein this Court had accepted the legal principle laid down by the Honble Calcutta High Court with regard to revocation of leave, which reads as under:
11. In Madanlal Jalan v. Madanlal3, Das, J., of the Calcutta High Court, on a consideration of the legal principles established by judicial decisions, delineated the following propositions:-
(a) that an application lies for revoking leave granted under clause 12 of the Letters Patent;
(b) that such an application should be made at an early stage of the suit and delay and acquiescence may be a bar to such an application;
1(c) that if the application depends on difficult questions of law or fact, the Court should not revoke leave on a summary application but should decide the question at the trial;
(d) that if the defendant shows clearly that no part of the cause of action arose within jurisdiction, the leave should be invoked as a matter of course;
(e) that if only a part of the cause of action arose within jurisdiction, then it is a question of discretion for the Court to give or refuse leave or where leave has already been granted to revoke or maintain the leave;
(f) that assignment is a very important part of the cause of action in a suit by the assignee;
(g) that in giving or refusing leave or maintaining or revoking leave the Court will ordinarily take into consideration the balance of convenience and may, if the balance is definitely in favour of the defendant, apply the doctrine of forum conveniences;
(h) that the Court may refuse leave on the ground of balance of convenience although there be no evidence of bad faith or abuse of process on the part of the plaintiff;
(i) that if the cause of action is founded on an assignment within jurisdiction of a negotiable instrument, the Court will, in recognition of the principle of negotiability, insist on a far greater degree of balance of convenience in favour of the defendant and will more readily give or maintain leave than in other cases of assignments; and
(j) that if the Court is satisfied that the suit has been filed mala fide for the purpose of harassing or oppressing the defendant or might result in injustice, the Court should in all cases readily refuse leave or if leave has already been granted, revoke the leave as a matter of course.
23. Learned Senior Counsel vehemently contended, that there is no delay in moving this application, as no notice of the application for leave to sue, was served on the applicants and even in the suit summon, relevant portion was struck off. This application has been moved immediately on coming to know about the leave granted by this Court, which deserves to be revoked.
24. Learned Senior Counsel appearing on behalf of the plaintiff / non applicant on the other hand vehemently contended, that this application is not maintainable, as the applicants / defendants 3 & 4 have submitted to the jurisdiction of this Court, by filing reply to the application as also filing written statement to the suit, to contest the claim of the plaintiff on merit.
25. Learned Senior Counsel also contended, that leave granted cannot be revoked, if the cause of action arises within the jurisdiction of this Court and in order to know the cause of action, it is pleadings in the plaint, which have to be looked into and not the defense.
26. Reliance in support of this contention was placed by the learned Senior Counsel on the judgment of this Court in Physique India Ltd., vs. Physique, [A.No.4885 of 2011 in C.S.No.724 of 2008] decided on 25.11.2011, wherein it has been laid down as under:
"9. There can be no dispute with the proposition canvassed by the learned counsel for the applicant/defendant, that this Court can decline the leave, but the question here is whether in exercise of discretion of this Court to grant leave, can be revoked, on this ground.
10. The Hon'ble Division Bench of this Court, in the case of Ramu Hosieries, rep. by M.Murugeshan Vs. Ramu Hosieries, rep. by Pandela Ramu [1999 PTC (19) 183 (DB)], was pleased to lay down as under:-
"Normally, the jurisdiction of the Civil Court in relation to movable property has to be determined with reference to cause of action. Right or interest in a trade mark can only be a movable property having regard to the definition in the General Clauses Act. Admittedly, the trade mark has been put to use and exploited and registered at Madras. Therefore, the cause of action in such suit can be taken to arise where the property is situate or where it was marked or exploited and registration assumes all significance, because in a suit for infringement of a trade mark, the plaintiff has to establish the cause of action by showing that he has a property right in a trade mark and the same has been infringed by the other party. Where the infringement had taken place partly in one jurisdiction by way of advertisement and rest in another jurisdiction by marketing the product, then, the registered owner of the trade mark can maintain the suit either at the place where the cause of action arose partly or wholly which includes the place of registration, advertisement or marketing. This can be by showing that his trade mark has been registered with the Registrar of Trade Marks. Therefore, it cannot be said that no part of the cause of action arose at Madras."
11. The above referred judgment has been followed by this Court in the case of S.P.S. Jayam & Co., Vs. Gopi Chemical Industries, India (1997 Madras Law Journal, 286.) and the other judgment.
12. It is the consisted view of this Court, that registration of trade mark gives a part of cause of action to the plaintiff to maintain the suit, at a place where the trade mark is registered.
13. Once the part of cause of action is admittedly arisen within the jurisdiction of this Court, as trade mark was registered at Chennai and this Court has granted the leave to sue, by exercising jurisdiction under Clause 12 of the Letters Patent, it will not be open for the successor of Court, to take a different view to revoke the leave already granted. The leave can only be revoked in cases where a positive finding is recorded that suit as framed is not competent in this Court, and not on the ground that view different to the one taken would have been better.
14. Consequently, this application is dismissed. No costs."
27. In support of the contention, that part of cause of action has arisen against the defendant nos.3 & 4, learned Senior Counsel for the plaintiff / non applicant referred to prayer C of the plaint, which reads as under:
"C. Perpetual injunction restraining the Defendants, its men, servants, agents, assigns, directors, officers, or any person claiming through or under them, from conducting the tests for biological efficacy for liquid vaporizers or any other product which seek to disparage/ denigrate the Plaintiffs products by making false and misleading representations either directly or indirectly or in any other manner whatsoever.
28. It was contended, that reading of the plaint shows, that the plaintiff has challenged the basis of test carried out by the defendants 3 & 4, to be not in accordance with the recognized procedure, therefore, it has no value at all. Reference was made to the paragraphs in the plaint, where the plaintiff has challenged the test carried out by the defendants 3 & 4.
29. It was further contended by the learned Senior Counsel, that the report was used by the defendant nos.1 & 2 within the jurisdiction of this Court to cause damage to the reputation and commercial interest, therefore the part of cause of action to sue defendant nos.3 & 4 has arisen within the territorial jurisdiction of this Court. No ground is thus made out to revoke the leave granted, specially when the written statement has already been filed and the defendant nos.3 & 4 have submitted to the jurisdiction of this Court.
30. On consideration, I find no force in this application. It is not disputed, that defendant nos.1 & 2 did use the test report published by the defendants 3 & 4 in its magazine Consumer Voice to the detriment of the plaintiff / non applicant.
31. It is also not disputed, that the plaintiff / non applicant have in fact challenged the procedure adopted by defendants 3 & 4 and also claimed the relief against defendant nos.3 & 4. Furthermore, the magazine Consumer Voice has circulation within the jurisdiction of this Court.
32. Though prayer A is against defendants 1 & 2, but at the same time, relief is also claimed against defendant nos.3 & 4, therefore, it cannot be said, that no cause of action has accrued against the applicants / defendant nos.3 & 4.
33. The Honble Supreme Court in Om Prakash Srivastava vs. Union of India and another, 2006 (3) RCR (Civil) 720, has been pleased to lay down as under:
"8. By "cause of action" it is meant 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, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. (See Bloom Dekor Ltd. v. Subhash Himatlal Desai and Ors. (1994 (6) SCC 322).
9. In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908) "cause of action" means every fact, which it is necessary to establish to support a right to obtain a judgment. (See Sadanandan Bhadran v. Madhavan Sunil Kumar (1998 (6) SCC 514).
10. It is settled law that "cause of action" consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise. (See South East Asia Shipping Co. Ltd. v. Nav Bharat Enterprises Pvt. Ltd. and others. (1996 (3) SCC 443).
11. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action". (See Rajasthan High Court Advocates' Association v. Union of India and Ors. (2001 (2) SCC 294).
12. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh v. Munsha Singh (1977 (1) SCC 791).
13. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person. (See Black's Law Dictionary). In Stroud's Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra and Ors. (2000 (7) SCC 640).
14. In Halsbury Laws of England (Fourth Edition) it has been stated as follows:
"Cause of action has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action".
15. As observed by the Privy Council in Payana v. Pana Lana (1914) 41 IA 142, the rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action or different causes of action, even though they arises from the same transaction. One great criterion is, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit whether the same evidence will maintain both actions. (See Mohammad Khalil Khan v. Mahbub Ali Mian (AIR 1949 PC 78).
34. From the reading of the plaint in totality, it cannot be said, that no cause of action had accrued to the plaintiff / non applicant against defendants. Once it is held, that part of cause of action has arisen against defendants 3 & 4 within the jurisdiction of this Court, then in view of the law laid down by this Court in Physique India Ltd., vs. Physique (supra), no ground is made out to revoke the leave granted to sue the applicants.
35. No merit. Dismissed. No costs.
11.01.2013 Index: Yes Internet: Yes ar Note: Issue order copy on 11.01.2013 VINOD K. SHARMA,J., ar Pre-Delivery Order in A.No.3785 of 2012 in C.S.No.274 of 2012 1/2 11.01.2013