Madras High Court
G.Rajasuria vs For An Injunction Restraining The
Author: G.Rajasuria
Bench: G.Rajasuria
A.No.3630 of 2009 and A.No.988 of 2010 in C.S.No.659 of 2009 G.RAJASURIA, J.
A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of these two applications would run thus:
(a) The plaintiff filed the suit seeking the following reliefs:
- For an injunction restraining the defendants, their distributors, marketers, franchisees, dealers, agents, stockists, representatives, advertisers, successors-in-business, assigns or any one claiming through or under them from telecasting the offending comparative advertisement in Telugu or Hindi languages, the story boards of which are filed as Plaint Document Nos.5 and 6 or from disparaging the plaintiff's Pond's Dreamflower Talc in any other manner whatsoever;
- For a perpetual injunction restraining the defendants, their distributors, marketers, franchisees, dealers, agents, stockists, representatives, advertisers, successors-in-business, assigns or any one claiming through or under them from in any manner resorting to commercial disparagement of the plaintiff's Pond's Dreamflower Talc under the guise of comparative advertisement in any other manner whatsoever;
- To direct the defendants to pay to the plaintiff a sum of Rs.5,00,00,000/- as special damages for the loss inflicted upon the plaintiff by the disparaging advertisement made by the defendants; and
- For costs.
(b) The same plaintiff filed A.No.3630 of 2009 with the following prayer:
- To grant leave under Clause 14 of the Letters Patent permitting joinder of causes of action and filing a single suit in respect of the two advertisements telecasted by the first respondent, the story board of which are filed as plaint document Nos.5 and 6.
(c) There are also two other applications filed by the same plaintiff with the prayers as under:
-A.No.776 of 2009: To grant an ad interim injunction restraining the respondents, their distributors, marketers, franchisees, dealers, agents, stockists, representatives, advertisers, successors-in-business, assigns or any one claiming through or under them from telecasting the offending comparative advertisement in Telugu or Hindi languages, the story boards of which are filed as Plaint Document Nos.5 and 6 or from disparaging the applicant's Pond's Dreamflower Talc in any other manner whatsoever, pending disposal of the suit.
- A.No.777 of 2009: To grant an ad interim injunction restraining the respondents, their distributors, marketers, franchisees, dealers, agents, stockists, representatives, advertisers, successors-in-business, assigns or any one claiming through or under them from in any manner resorting to commercial disparagement of the applicant's Pond's Dreamflower Talc under the guise of comparative advertisement in any other manner whatsoever, pending disposal of the suit.
(d) Counter filed by R1 denying and refuting, challenging and impugning the averments/allegations in the affidavits filed along with the applications of the plaintiff.
(e) Over and above that, D1 also filed A.No.988 of 2010 so as to get the plaint rejected.
(f) For D2 there is no appearance. The learned counsel for D3 leaves the matter to the Court.
2. When the matter has come up for hearing, the learned Senior Counsel for D1 would implore and entreat that this Court in the fitness of things might take up A.No.3630 of 2009, which is one filed by the plaintiff seeking permission for joinder of causes of action in the plaint and also the other application, A.No.988 of 2010 filed by D1, for rejection of the plaint. I agreed with his submission and accordingly heard both sides in respect of A.Nos.3630 of 2009 and 988 of 2010.
3. Inviting the attention of this Court to the averments in the affidavits accompanying the A.No.3630 of 2009 and the typed set of papers, Mr.P.S.Raman, the learned Senior Counsel for the plaintiff would advance his argument, the gist and kernel of it would run thus:
(i) The first defendant is having his office in Chennai and it is he who instructed D2 and D3 to telecast the Hindi disparaging advertisement as against the plaintiff's well known product 'POND'S DREAMFLOWER TALC'.
(ii) No doubt, the first defendant also is causing a Telugu TV channel to broadcast similar disparaging advertisement as against the plaintiff's product, but that Telugu channel has not been added as a party.
(iii) The advertisements in Hindi as well as in Telugu as found depicted in the typed set of papers would exfacie and prima facie evince and expatiate, demonstrate and display that D1 is bent upon creating bad impression in the mind of the users of the plaintiff's product, namely 'POND'S DREAMFLOWER TALC' and in the meanwhile trying to canvass in support of its own product namely 'EMAMI NAVRATNA COOL TALC'.
(iv) The words used in those advertisements are pellucidly and palpably clear that they are objectionable and no business man would be able to tolerate the same.
(v) Section 21(1) of CPC would contemplate that the objection should be taken at the earliest point of time, but in this case, D1 entered appearance and filed counter and only as an after thought, he has chosen to file A.No.988 of 2010 for rejection of the plaint, which on that ground itself is untenable.
(vi) During trial, this Court has to go into the common issues relating to both the disparaging advertisements, even though there might be some differences slightly in the use of words and that itself would not disentitle the plaintiff from praying permission for joinder of causes of action.
Accordingly, he prays for allowing the A.No.3630 of 2009 and for dismissing the A.No.988 of 2010.
4. By way of torpedoing and pulverising the arguments as put forth on the side of the plaintiff, Mr.Sriram Panchu, the learned counsel for D1 has developed his argument; tour d'horizon of it would run thus:
(i) D2 and D3 being the telecasters are telecasting only the said Hindi advertisements. Whereas, the Television which is telecasting Telugu version has not been added as a party and that is also a serious defect in the case.
(ii) A mere poring over and perusal of the typed set of papers relating to the Hindi advertisement viz-a-viz the Telugu advertisement, would amply make the point clear that the geographical features as found depicted in those advertisements are basically different, the concepts are different and more over, the words are also different. As such, if those two advertisements are intended to be taken together during trial, certainly that would unnecessarily lead to complications and that would even mare the mind of the Court in separating the grain from the chaff and see the reality. Simply because D1 is the person who caused those two advertisements to be telecasted, it does not mean that the plaintiff would be having the automatic right to get those two alleged causes of action clubbed together in one and the same suit.
(iii) By no stretch of imagination, Section 21(1) of CPC could be interpreted as it has been interpreted on the plaintiff's side so as to canvass its point that even much earlier to the time at which A.No.988 of 2010 was filed, the said application should have been filed.
Accordingly, he prays for dismissal of A.No.3690 of 2009 and for allowing A.No.988 of 2010.
5. The points for consideration are as to:
(1) Whether A.No.988 of 2010 is a belated one, which falls foul of Section 21 of CPC as well as Order V Rule 10 of the Madras High Court Original Side Rules?
(2) Whether the plaintiff's attempt to prosecute the case as against the defendants in respect of the aforesaid two alleged objectionable advertisements in one and the same suit, would tantamount to misjoinder of causes of action and thereby would cause confusion in the mind of the Court and consequently put the first defendant into discomfiture in defending the case?
POINT NO.1:
6. It is a trite proposition of law that there should not be any multiplicity of proceedings. With that avowed object alone, joinder of causes of action is contemplated under clause 14 of the Letters Patent and it is extracted here under for ready reference:
"Clause 14. Joinder of several causes of action And We do further ordain that where plaintiff has several causes of action against defendant, such causes of action not being for land or other immovable property, and the said High Court shall have original jurisdiction in respect of one of such causes of action, it shall be lawful for the said High Court to call on the defendant to show cause why the several causes of action should not be joined together in one suit, and to make such order for trial of the same as the High Court shall seem fit."
(emphasis supplied)
7. At this juncture, it is just and necessary also to consider as to whether A.No.988 of 2010 is a belated one at the instance of D1, for which necessarily Section 21(1) of CPC has to be seen and it is extracted hereunder:
"21. Objections to jurisdiction.- (1) No objection as to the place of suing shall be allowed by any Appelalte or Revisional Court unless such objection was taken in the Court of first instance at the earlier possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice."
(emphasis supplied) Along with that, Order V Rule 10 of the Madras High Court Original Side Rules is also extracted here under:
" A defendant or a third party may enter an appearance under protest. Notice of such protest must be endorsed on the memorandum of appearance and on the notice of appearance."
(emphasis supplied)
8. A mere perusal of Section 21(1) of CPC would amply make the point clear, that the law envisages that at the most before the settlement of issues, the defendants could pray the Court to decide the point relating to misjoinder of causes of action. However, the learned Senior Counsel for the plaintiff placing reliance on Order V Rule 10 of the Madras High Court Original Side Rules would submit that even at the time of filing Vakalat itself, it should have been filed under protest. I would like to distinguish and differentiate the purpose for which Order 5 Rule 10 of the Madras High Court Original Side Rules emerged, viz-a-viz, the object of Section 21 of CPC. To hold that A.No.988 of 2010 is maintainable, Section 21(1) of CPC, and more specifically the words "...and in all cases where issues are settled, at or before such settlement..." could be relied on.
9. Undoubtedly, here the case has not reached the stage of settlement of issues and in such a case, the said application would be maintainable.
10. The next question arises as to how the first defendant would get over Order V Rule 10 of the O.S. Rules.
11. The said Rule simply contemplates that if a defendant or a third party wants to enter appearance under protest, such protest must be endorsed on the memorandum of appearance and on the notice of appearance and it does not even specify that in the Vakalat itself it should be endorsed etc.
12. Order V Rule 10 has to be read in conjunction with Section 21(1) of CPC which has not been excluded by Section 120 of CPC in its application to the original side of the High Court and in such a case, a harmonious reading of both provisions, i.e., Section 21 of CPC and Order V Rule 10 of O.S. Rules is necessary. Order V Rule 10 of the Madras High Court Original Side Rules should not be interpreted as a trap for a litigant so as to disentitle him from raising his genuine plea relating to jurisdiction. If a strict interpretation is given to Order V Rule 10 of the Madras High Court Original Side Rules de hors Section 21, that even at the time of filing Vakalat, there should be a recording of protest, then the very object of Section 21 of CPC would be rendered otiose and even genuine objections relating to jurisdiction would go unheard by the Court. It puts me in mind the famous maxim "Verba ita sunt intelligenda ut res magis valeat quam pereat - Words are to be so interpreted as to be effective rather than ineffective."
13. Additionally, I would like to recollect and call up the decision reported in [2005] 4 SCC 480 - Kailash v. Nanhku, relating to technicalities of law, an excerpt from it would run thus:
"28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar10 are pertinent: (SCC p.777, paras 5-6) The mortality of justice at the hands of law troubles a judges conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence processual, as much as substantive. Following the aforesaid decision of the Hon'ble Apex Court, a catena of decisions also emerged which clearly point out that procedural laws are not substantive laws, but they are only handmaids of justice and if it comes in the way of thwarting the very genuine claim of a litigant in putting forth the case before the Court, such procedures should be taken only as directory and not mandatory.
14. However the learned Senior Counsel for the plaintiff cited the decision of this Court reported in 2005 (3) CTC 86 P.T.Ummer Koya v. Tamil Nadu Chess Association, rep. By its Hon.Secretary, Manuel Aaron. The said decision is relating to a case where leave was obtained by the plaintiff concerned to sue the defendant and the defendant in that case filed an application to get revoked the leave after participating substantially in that case. As such, on factual basis, I could differentiate that case from the case on hand. Accordingly, this application cannot be rejected exfacie on the ground that it has been filed belatedly.
Accordingly, point No.1 is decided.
POINT NO.2:
15. A bare poring over and perusal of the typed sets of papers filed by both sides what I could understand is, that the alleged disparaging advertisement in Hindi contains depiction of various scenes showing allegedly the product of the plaintiff as well as the product of D1 and in that the one and the same actor performed double action and he also used the alleged objectionable words so as to indicate that users of the plaintiff's product would be 'Bloody fool" in addition to other disparaging remarks. Whereas, in the Telugu version, those allegedly objectionable words 'Bloody fool' could not be seen.
16. It is quite obvious and axiomatic that in Hindi version of the advertisement, the background as well as the scenary is different from the Telugu version of the advertisement, but the plaintiff's product was allegedly targeted in both. Much of a muchness could be seen in the said Hindi and Telugu advertisements to the effect that both scenes have been arranged in such a manner so as to point of that the usage of the first defendant's product 'EMAMI NAVRATNA COOL TALC' would cause coolness, apart from creating other good effects, whereas, the alleged plaintiff's product could only cause fragrance and it would not have any other effect including cooling effect.
17. No doubt, the core question might arise as to whether one and the same issue to be framed in the suit would be able to cover both the advertisements. Certainly, apart from common issues being framed in this case, one separate issue has to be framed specifically relating to Hindi advertisement touching upon the objectionable words and scenes therein and with regard to Telugu advertisement, similarly a separate issue has to be framed touching upon the objectionable words and scenes used in that advertisement. Simply because slightly two different issues have to be framed relating to those two advertisements, the Court cannot arrive at a conclusion that there should be two separate suits.
18. At this juncture, even though it has not been argued at the Bar, I recollect and call up one other concept that in one and the same suit, there could be separate trials of issues. Certain issues could be tried separately from other issues and before going for trial, if the parties do feel it is open for them to pray this Court to conduct separate trial of the different issues which are to be framed in this case and I leave to the parties to approach the Court at the appropriate time for that purpose, if they choose to do so based on sound legal principles.
19. As such, I am of the considered view that this suit does not fall foul of the misjoinder of cause of action. I would like to agree with the argument advanced on the plaintiff's side that if the plaintiff is driven to the extent of filing a separate suit in this same court, then it will lead to multiplicity of proceedings. I once again to the risk of repetition and pleonasm, but without being tautologous would highlight and spotlight that if for any reason it is felt that there should be separate trial of certain issues, that also could be done before this Court. When such is the position, I do not think that the plaintiff should be driven to file a separate suit with regard to Telugu advertisement alone.
20. Regarding non-joinder of the Telugu T.V.Organisation is concerned I would like to observe that at any time, the plaintiff could get such organisation added as D4 also but as of now, the plaint cannot be rejected in view of such non-impleadment of such a party to this suit. Even D2 and D3 who are only the telecasters are not absolutely necessary parties to this suit in view of the fact that they act only on the instruction of D1. No more elaboration in this regard is required.
21. Indubitably and indisputably, unassailably and unarguably, the D1's advertisements through whatever channel are capable of being seen in Tamil Nadu and in fact the avers that it has been witnesses by the public in Tamil Nadu and in such a case the two causes of action have arisen within the jurisdiction of this court.
22. I would like to highlight further that even if one of the causes of action has arisen within the original jurisdiction of this court, then as per clause 14 of the Letters Patent Act, the one other cause of action which might have arisen elsewhere also could be clubbed with the former one. Here in view of my discussion supra, I am having no hesitation in holding that the two causes of action as prayed by plaintiff could be permitted to be clubbed in one and the same suit, viz., the present suit.
Accordingly A.No.3630 of 2009 is allowed and A.No.988 of 2010 is dismissed.
11.03.2010 gms Issue order copy on 12.03.2010 INDEX : YES INTERNET: YES G.RAJASURIA, J. gms A.No.3630 of 2009 and A.No.988 of 2010 in C.S.No.659 of 2009 11.03.2010