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Kanhaiyalal Harkarandas Vs. Mohanlal Ramvallabh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 173 of 1940
Judge
Reported inAIR1941Bom219; (1941)43BOMLR287
AppellantKanhaiyalal Harkarandas
RespondentMohanlal Ramvallabh
Excerpt:
right of suit-cause of action-suit filed in anticipation of criminal complaint--high court-inherent jurisdiction-injunction in personam against party restraining him from proceeding with criminal complaint in court outside high court's jurisdiction-civil procedure code (act v of 1908), section 151.;the mere fact that a is supposed to contemplate the bringing of an action against b or that a may have stated that he has grounds for such an action, does not entitle b to institute an action against a to have it declared that a has not a good cause of action against b.;north eastern marine engineering company v. leeds forge company [1906] 1 ch. 324, followed.;the high court has jurisdiction, under section 151 of the civil procedure code, 1908, to grant an injunction in personam against, a..........plaintiff's claim for rs. 2,000. the letter goes on to inform the defendant that the plaintiff has filed a suit to recover the amount lent and advanced and for a declaration that the claim for the ornaments and moneys made by the defendant was not justified.5. the criminal complaint was filed by the defendant in the court of the city magistrate, benares, on february 14, 1940. a copy thereof is set out in exhibit b to the plaintiff's affidavit of november 12, 1940. it is a complaint made not only against the plaintiff but also against a second accused, who is alleged to be the munim of the plaintiff. that complaint alleges dishonest misappropriation and conversion of ornaments entrusted by the complainant to the munim on the plaintiff's behalf.6. there appears to have been some delay in.....
Judgment:

Blackwell, J.

1. This is a notice of motion taken out by the plaintiff on November 13, 1940, for an order that the defendant may be restrained from proceeding with a complaint filed by him in the First Class Magistrate's Court at Benares. That complaint was filed on February 14, 1940.

2. By a letter dated January 19, 1940, the defendant's advocate alleged that the plaintiff had been entrusted with ornaments by the defendant worth over Rs. 7,600, a list of which was appended to the letter, on the plaintiff's assurance that they would be returned to the defendant whenever required, that the plaintiff had written several letters to the defendant assuring him that he would return the same, that in spite of repeatd demands he had not done so, and had dishonestly misappropriated the ornaments. The letter demanded the return of the ornaments within a week of the receipt of the notice, and stated that in default the defendant would be constrained to take steps for the prosecution of the plaintiff under Section 406 of the Indian Penal Code. That letter was not in fact received by the plaintiff until January 29, 1940. Without replying to that letter the plaintiff on January 31, 1940, filed this suit. In the plaint he alleges that on or about February 10, 1939, he lent Rs. 2,000 to the defendant who promised to pay that amount in Bombay with interest at six per cent. after a month or two, that payment had been demanded and the defendant had refused to pay and by his advocate's letter of January 19, 1940, to which I have referred, and which is exhibit (A) to the plaint, put forward a false claim against the plaintiff. The plaint goes on to allege that the plaintiff had at no time any ornaments of the defendant's wife, and submits that the plaintiff is entitled to a declaration that he is not in possession of any ornaments of the defendant's wife, and that the defendant had no moneys in deposit with the plaintiff, that fact having been alleged both in the letter of January 19, 1940, and in the plaint.

3. It is to be observed that the first cause of action alleged in the plaint is in respect of an alleged loan by the plaintiff to the defendant of Rs. 2,000. The declaration is asked for with the object of getting a decision that the plaintiff had not in his possession at any time the ornaments of the defendant and that he had no moneys on deposit with him from the defendant. I do not express any opinion as to whether that declaration is well founded in law, or not, inasmuch as it will fall to be decided on the hearing of the suit, and it would not be proper for me to do so. I do, however, refer to some observations made by Mr. Justice Joyce in North Eastern Marine Engineering Company v. Leeds Forge Company. [1906] 1 Ch. 324. That case arose out of Section 32 of the Patents, Designs and Trade Marks Act, 1883, but the learned Judge made some observations of a general character, with which I respectfully agree, that seem to be pertinent to the declaration asked for in the present plaint. The learned Judge said (p. 329):-

Speaking generally, in simple cases not within Section 32 of the Act, the mere fact that A. is supposed to contemplate the bringing of an action against B., or that A. may have stated that he has grounds for such an action, does not, in my opinion, entitle B. to institute an action against A. to have it declared that A. has not a good cause of action against B. I think that is so whether the result depends merely upon questions of law, or upon facts, as to which there would, or might be, a conflict of evidence and a protracted trial. No doubt delay may in certain cases furnish a good ground for defence; but, ordinarily, an intending plaintiff may postpone his action as long as he pleases, at the risk of finding himself, ultimately barred by some Statute of Limitations, and he may choose his own time for commencing proceedings.

I am by no means satisfied that that declaration was not asked for in the hope that it might induce the defendant not to launch criminal proceedings, as in my opinion he was clearly entitled to do, and in the hope that he would be persuaded to deal with the matter by way of counter-claim in the present suit.

4. Having launched that suit the plaintiff replied to the letter of January 19 by a letter from his attorneys dated February 1, 1940, in which he referred to the claim put forward by the defendant as a bogus demand intended to forestall the plaintiff's claim for Rs. 2,000. The letter goes on to inform the defendant that the plaintiff has filed a suit to recover the amount lent and advanced and for a declaration that the claim for the ornaments and moneys made by the defendant was not justified.

5. The criminal complaint was filed by the defendant in the Court of the City Magistrate, Benares, on February 14, 1940. A copy thereof is set out in exhibit B to the plaintiff's affidavit of November 12, 1940. It is a complaint made not only against the plaintiff but also against a second accused, who is alleged to be the munim of the plaintiff. That complaint alleges dishonest misappropriation and conversion of ornaments entrusted by the complainant to the munim on the plaintiff's behalf.

6. There appears to have been some delay in serving the criminal process upon the plaintiff. He had certainly been served before May 18, 1940, because on that date he filed a petition to quash the criminal proceedings on the ground that the matter was merely a civil dispute and that the Court had no jurisdiction. The Court dismissed that application, there was an application in revision which was dismissed by the District Magistrate on August 16, 1940, and the matter has now gone to the High Court of Allahabad and is still pending before that Court.

7. Mr. M.V. Desai, who appears for the defendant, concedes that this Court has go the power to make an order in personam against his client to restrain him from proceeding with that criminal complaint, if in the exercise of its discretion the Court thinks proper to do so. A number of authorities were cited to me, but in view of that concession it is, in my opinion, unnecessary to refer to any of them. The grounds upon which the order is asked for are set out in the said affidavit of the plaintiff. In paragraph 3 thereof it is alleged that the complaint filed by the defendant at Benares is only for the purpose of stifling this suit and to put the plaintiff to unnecessary harassment, annoyance and costs, and the same is of a blackmailing character, and that it has been filed for the purpose of bringing undue pressure upon the plaintiff, and similar allegations are made in paragraph 5 of the affidavit.

8. I have to consider whether the complaint was filed for that purpose. I have already drawn attention to the fact that by the letter of January 19, 1940, written on behalf of the defendant to the plaintiff, the claim was made for the return of the ornaments and for payment of moneys alleged to have been deposited, and that letter contains a statement that it was then the intention of the defendant, if his demand was not complied with, to file a criminal complaint for misappropriation. The intention to file that complaint was made before any demand had been put forward on behalf of the plaintiff in respect of the alleged loan of Rs. 2,000 and without even replying to the letter this suit was filed, the curious declaration to which I have drawn attention was inserted and I am now asked to say that the object of that criminal complaint was to stifle a suit which had not even been threatened and in respect of which it had not been suggested that there was any cause of action. I entirely decline to accede to such a suggestion. In my opinion the boot is on the other leg, and the civil suit was filed and that curious declaration was inserted with the object and in the hope of forestalling and if possible preventing the threatened criminal proceedings.

9. I have been strongly pressed by Mr. Somjee, the plaintiff's counsel, to grant an injunction restraining the criminal proceedings upon the ground that the issues are the same and that it is a great hardship upon the plaintiff to have two Courts trying issues of a similar character. Mr. Desai for the defendant, without prejudice to his submission that the motion was unjustified and ought to be dismissed with costs, offered to have the counter-claim stayed pending the hearing and final determination of the criminal proceedings, Mr. Somjee for the plaintiff is unwilling to accede to that suggestion, and that being so, I shall not make any order staying the counter-claim. Mr. Somjee, on the other hand, has pressed me to expedite this suit with the object of getting the issues arising out of the counter-claim decided if possible before the criminal case comes up for hearing.

10. I here point out that this motion was not taken out until November 13, 1940, although the criminal proceedings were instituted on February 12, 1940. After he had been served with the criminal process, instead of applying promptly if so advised to the criminal Court for a stay of the criminal proceedings pending the trial of this suit in which the plaintiff had asked for the declaration to which I have referred, and which according to his contention would have justified an application to the criminal Court for a stay even before the counter-claim was filed, he chose to wait until November 13, 1940, and in the meantime to put the defendant to considerable costs by applying to the criminal Court to quash those criminal proceedings upon the ground that the Court had no jurisdiction. In my opinion, the factor of delay is one that I should consider. On an application of this character, and quite apart from the merits of the matter, I should not have been disposed to make an order on this motion after such a long period of delay.

11. On the merits I am of opinion that the plaintiff makes out no case of harassment. I have already drawn attention to the fact that it does not lie in his mouth to suggest that the complaint was filed for the purpose of stifling this suit which at the time the notice of intention to file such a complaint was given had not even been suggested; nor for the same reason can it be suggested that that complaint was of a blackmailing character, and in my opinion it was grossly improper for the plaintiff even to suggest such a thing in his affidavit in the events which had happened. Whatever the decision before the criminal Court may be, the civil rights and liabilities of the parties on the counter-claim will fall to be determined on the evidence adduced in this Court. I have been strongly pressed by Mr. Somjee to grant an injunction on the ground that if a judgment is given in his favour on the counter-claim in the present suit it would be admissible in evidence in the criminal proceedings and might have great weight with the Magistrate in coming to a conclusion upon the criminal complaint. Having regard however to the fact that that complaint was instituted before this suit was even suggested, that in my opinion the declaration asked for in this suit was for the purpose, if possible, of forestalling the criminal complaint, and that if he can prove criminal misappropriation the defendant is entitled to proceed by way of criminal process, I am clearly of opinion that I ought not to grant an injunction.

12. I may refer to one further aspect of the matter. This application is based upon the inherent jurisdiction of this Court under Section 151 of the Civil Procedure Code. Although a civil Court no doubt has jurisdiction to grant an injunction in personam against a person who has submitted to the jurisdiction to restrain him from proceeding with a criminal complaint in a Court which is not subject to the jurisdiction of this High Court, this is a jurisdiction which in my opinion should be exercised with extreme caution. It was open to the plaintiff if he had been so minded to apply to the criminal Court for a stay of those criminal proceedings. He has not done so. In my opinion he ought not to have resorted to an application to this Court based upon its jurisdiction under Section 151 without first exhausting the other remedy which was open to him by an application to the criminal Court for stay of the criminal proceedings upon the ground that the issues involved had been raised by the plaintiff by his declaration in the civil suit.

13. In all the circumstances I am clearly of opinion that this motion was not justified. I dismiss it with costs. As regards the costs which were reserved, I think it is proper that the defendant should bean those costs himself, and I make no order in relation to them.


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