1. This matter illustrates what injury, damage and injustice a long lasting interim injunction can do to a defendant who succeeds finally. The question that arises here is whether such injury and injustice is redressable or is without a remedy. Does our system of administration of justice administer justice or injustice. If injustice and injury results by an interim injunction obtained by a party and granted by Courts, can the aggrieved party ask for compensation on proof of direct damage suffered by it? The appellant contends that the interim injunction obtained by it had judicial sanction and, therefore, even if the appellant ultimately failed and even if any direct damage is proved to the other side, it cannot be redressed and the Court cannot give any relief.
2. The learned City Civil Court Judge had held that the appellant is liable in tort of abuse of process of Court and has passed a decree against the appellant for a sum of Rs. 3,00,000/-with costs and interest in Civil Suit No. 4107/77. Hence the present appeal by the defendant.
3. At the admission hearing of this appeal, record and proceedings were called for and at the hearing the learned counsel for the appellant has extensively referred to the relevant material pleadings, documents and evidence. The tort of abuse of process of Court arises from the previous litigation. In 1961-62, Liberty Theatre of Ahmedabad had vested in Court Receivers-trustee, in Insolvency Petition No. 45/54. It belonged to the insolvent debtors who had leased the theatre at a monthly rent of Rs. 1731/- plus electric charges to a firm Liberty Talkies (old lessee) of which Mehbubmiya Ahmedmiya Faruki and Shambhuprasad Raval were the partners. They surrendered their lease-hold rights in favour of the Court receivers-trustees. Under a duly sanctioned compensation deed the receivers-trustees were authorised to sell the theatre and accordingly on 28th Aug., 1963 the receiver-trustees sold the theatre and handed over the vacant possession of the theatre for a sum of Rs. Two Lacs (Rs. 130,000/- for the theatre and Rs. 70,000/for the machinery etc.) to Baldevdas Shivial (plaintiff 1 in the present proceedings and whose heirs are respondents 1, 1A and 1B in this appeal). Plaintiff 1 the purchaser leased out the theatre-to plaintiff No. 2 (respondent 2 herein) at a monthly rent of Rs. 2500/- for the theatre and Rs. 1500/- for the machinery and fixtures i.e. total Rs. 4000/-pet month, and the plaintiff 1 handed over the possession of the theatre to the new lessee-plaintiff 2. On the same day i.e. 28-8-63 plaintiff No. 2 entered into the agreement with M/s. Shah & Co. to exhibit the movies supplied by M/s. Shah & Co. who were to pay weekly hire charges of Rs. 3500/-.
4. Oncoming to know of this, the present appellant M/ /s. Filmistan Distributors (India) Pvt. Ltd.) filed H. R. P. Suit No. 1465/63 in the Ahmedabad Small Causes Court on lst Sept. 1963 alleging that there was a contract between them (Filmistan and the firm of Liberty Cinema, the original tenant) dt.27-11-54 (Ex. 113) to exhibit the films supplied by Filmistan, who were to pay weekly hire charges of Rs. 1450/- which was increased from time to time and in 1962-63 it was Rs. 2300/, per week (Ex. 112). The present appellant Filmistan claimed in that suit that it was a lessee or a sub-lessee and on the original lessee (the firm of Liberty Cinema) surrendering their lease-hold rights to the receivers trustees, the appellant company became a direct tenant and was entitled to possession and to exhibit films; and on that basis it prayed for perpetual injunction against the present plaintiffs (who are defendants in the suit) regarding possession, disposal, exhibiting any film whatsoever, alter, demolishing or renovating the theatre, etc.
5. The present appellant also prayed for interim injunction in similar terms as per Para 21(a)(1) of the injunction application which is at Ex. 111 along with order thereon passed on 17th Sept., 1963 (Ex. 111). In Para 19 of that application, the appellant (plaintiff in that suit) made the following averments for obtaining the interim injunction:
' 19 The plaintiffs say that as a result of the said wrongful dispossession from the said theatre the plaintiffs have suffered and are suffering grave and irreparable injury in that they are unable to exhibit their pictures there in since 28th Aug., 1963. The plaintiffs have entered into and would be entering into agreements with various distributors for the exhibition of various pictures at the said theatre and the aforesaid wrongful conduct of the defendants thus continues to cause grave and irreparable damage to the plaintiffs. The plaintiffs further say that the distributors with whom, the plaintiffs have entered into agreement for exhibition of their pictures would immediately claim damages from the plaintiffs for non-exhibition of their pictures and the plaintiffs, who are well established as a reputed concern in the film trade, would suffer great loss of reputation and prestige, which cannot be compensated in terms of money.
In Para 21 following prayers were made and ex parte ad interim injunction was granted as prayed in Para 21(a);
'21. The plaintiffs, therefore, pray
(a) That pending the hearing and final disposal of the above suit, defendants I to 4, their servants and agents be restrained by an order and injunction from in any manner directly or indirectly (1) interfering with the plaintiffs' rights to obtain and remain in possession of the said theatre or any part thereof and to exercise their right of exhibiting motion pictures at the said theatre; (2) entering upon or remaining, at the said theatre or any part thereof; (3) dealing with or disposing of the said theatre or 4ny part thereof in a manner prejudicial to the plaintiffs' rights, (4) part with the possession of the said theatre or any part thereof to any person or party other than the plaintiffs; (5) exhibiting and/ or releasing in the said theatre any picture other than that supplied by the plaintiffs; and (6) altering, demolishing, or renovating the said theatre or acting in any manner prejudicial to the rights of the plaintiffs as sub-lessees in respect of the said theatre.'
After hearing the parties it was largely confirmed by the Small Cause Court by the order at Ex. 111. In Para 14 the Court observed as follows for granting the interim injunction and by Para 17 of that order granted the interim injunction in the following terms
'14. The plaintiffs do the business of distributing films. For distributing films in Ahmedabad, they had taken a lease of the theatre known as Liberty Talkies, in 1954 and continued, to exhibit films there till August 1963. It is not suggested that they were in a position to make similar arrangements at any other theatre in Ahmedabad. If they are unable to exhibit their films in the city they would suffer a loss of reputation which cannot be compensated by damages and it would not be possible to assess in respect of films which have not been exhibited .I there fore hold that pecuniary compensation would not afford adequate relief to the applicants and that they are entitled to an injunction in order that the status quo may be maintained.'
'17. Defendants Baldevdas Shivial and Sabbir Husainkhan Bashir Mohmmadkhan Tejabwala, their agents and servants are restrained by an injunction from (i) interfering with the plaintiffs right to enter upon and remain at the theatre known as Liberty Cinema or any part thereof as sub-lessees thereof for the purpose of exhibiting motion picture at said theatre (ii)dealing with or disposing of the said theatre or any part thereof in a manner prejudicial to the rights of the plaintiffs as sub-lessees thereof; (iii) delivering possession of the said theatre or any part thereof to any person other than the plaintiffs; (iv) exhibiting in the said theatre any other picture than that supplied by the plaintiffs; (v) demolishing the said theatre and (vi) altering or renovating the said theatre in any manner prejudicial to the rights of the plaintiffs as sublessees thereof, defendants Nos. 1 and 4 should pay the plaintiffs costs of this application.'
Immediately after the aforesaid order dt. l7th Sept., 1963, on 20th Sept., 1963 the advocate for the defendants (plaintiffs herein) wrote a letter without prejudice to their right of appeal to the appellant Company that except theatre licence the theatre was in a condition to exhibit pictures and necessary staff was engaged and his clients were ready and willing to exhibit pictures supplied by the appellant Company. However, the licence could not be obtained because of the objection of the appellant, and therefore, the appellant was called upon to withdraw the objection otherwise liability to pay the weekly hire charges of Rs. 2300/- would remain on the appellant. That letter is at Ex. 84. By a reply dt. 24th Sept., 1963 Ex. 85 the appellant company stated that the appellant company was the direct tenant and none else had the right to exhibit films in that theatre and they refused to recognise the locus standi of the clients of the learned advocate Shri B. B. Thakor and persisted that the objection against the theatre licence was rightly taken. Next day the appellant company addressed another letter dt. 25-9-83 Ex. 103 to the advocate Shri B. B. Thakor for implementing the interim order of the trial Court and requiring the present respondents, their agents and servants to allow the appellant's representatives to enter and remain at the said theatre for the purpose of exhibiting motion pictures. It was replied on the next day 26-9-63 by Ex. 104 and it was pointed out that without cinema licence there could not be any exhibition of motion pictures and since the cinema licence had been objected by the appellant it was not obtained and the attempt to take the cinema theatre under the guise of entering the cinema for the purpose of exhibition of films was resisted. It was also inquired as to which picture was to be exhibited on 27-9-63 as mentioned in the notice of the appellant. It appears that there was no reply to this by the appellant.
6. By a letter dt. 22nd Oct., 1963 Ex. 106, the learned advocate Shri Thakor addressed to the learned Advocate Shri D. C. Shah for the appellant company, without prejudice to the contentions in Appeal from Order No. 38/63, it was pointed out that the cinema licence and booking licence had been obtained and his clients were in a position to exhibit films or pictures which the appellant company would supply for the purpose of exhibiting the same at the theatre, for which the appellant company had secured injunction from the Small Cause Court. It was also pointed out that the appellant company should also pay weekly hire charges of Rs. 2300/- as usual. to this also there does not appear to be any reply by the appellant.
7. Both the sides preferred Appeals Nos. 38 and 39 of 1963 before the Appellate Bench of the Small Cause Court, Ahmedabad, against the order on the interim injunction application. Appeal No. 39/63 was by the appellants because it was aggrieved by the refusal to grant relief claimed in Para 21(a)(2) for entering upon or remaining, at the said threatre without any condition, restriction or purpose. Appeal No. 38/63 was filed by the present respondents. The appeal of the present appellant regarding possession was dismissed. In the appeal of the present respondents, the interim injunction granted by the trial Court was largely confirmed with a modification by vacating the interim injunction granted by Para 17 Clause (1) of the order of the trial Court. Thus the appellant was refused the right to enter upon and remain in the theatre but the interim order in Clause (4) was confirmed which restrained the present respondents from exhibiting in the said theatre any picture other than supplied by the appellants. That order is at Ex. 131. In Para 39 the Appellate Bench has observed as under:
'39. The learned trial Judge observes that the plaintiff-company which had been doing the business of distributing films and which had continued to exhibit films in the suit theatre from 1954 to Aug., 1963, would suffer a loss of reputation which could not be compensated by damages, if it was unable to exhibit its films in the city of Ahmedabad. He also observed that it would not be possible to assess damages in respect of films which have not been exhibited. The learned trial Judge therefore came to the conclusion that the plaintiffs were entitled to an injunction in order that 'status quo' may be maintained'.
In Paras 42 and -43 the Court observed as under:
'42. Now, so far as the present case is concerned, in view of our finding that the plaintiffs have got a prima facie case, the defendants' possession of the suit theatre as against the plaintiffs can be said to be wrongful. If the defendants are left free to use the said theatre for the purpose of exhibiting films etc. having regard to the nature of the property which includes cinema machinery, fixtures, etc. it is quite probable that the property will have to undergo serious deterioration and damage as a result of its continuous user by the defendants and it will be difficult to ascertain the damage that may be occasioned to the plaintiffs, and the injury to the plaintiff will be irreparable or at least serious. Even so far as the balance of convenience is concerned, it is in favour of the plaintiffs, because the loss likely to be caused to the defendants by the grant of injunction would be the loss of rent and the amount of the licence while so far as the plaintiffs are concerned, if the injunction is withheld it is probable that as a result of continuous deterioration and damage, it would be difficult to restore the property to its present condition and the plaintiffs Would be deprived of a substantial share of the fruits of the litigation in the event of their success. Similarly in order to avoid multiplicity of proceedings and complications it would be quite proper to restrain the defendants from demolishing, altering, renovating and disposing of the property so that the status quo may be preserved.
43. But so far as the prayer by which the plaintiffs sought an injunction 'restraining the defendants Nos. 1and 4 from exhibiting in the suit theatre any motion pictures other than that supplied by the plaintiffs' and which is granted by the learned trial Judge by Clause (IV) of Para 17 of the order is concerned, we fail to understand on what ground that prayer is made. The form in which the injunction is sought implies as if the plaintiffs seek this injunction to prevent a breach of obligation on the part of defendants 1 and 4 . Now indisputably there is no contract between the plaintiffs on the one hand and defendants 1 to 4 on the other hand by which the plaintiffs are liable to supply motion pictures and the defendants 1 and 4 are liable to exhibit them in the suit theatre. There being no privity of contract between them there is no obligation express or implied on the part of defendants 1 and 4 to exhibit in the suit theatre the motion pictures supplied by the plaintiffs. It would have been quite understandable if the plaintiffs had sought an injunction restraining defendants 1 and 4 from using the suit theatre for the purpose of exhibiting any pictures whatsoever. The injunction sought by them implied that the plaintiffs want that defendents 1 and 4 should exhibit the pictures supplied to them by the plaintiffs and that they have no objection if defendants Nos.1 and 4 use the theatre for that purpose. Therefore as the plaintiffs themselves sought this injunction, and as it has been granted by the learned Judge, we do not consider necessary to interfere with it. Summing up the result of the above discussion we would dissolve the injunction granted by Clause (1) of Para 17 of the order passed by the learned trial Judge. The rest of the order will stand.'
8. Clause (4) of the interim injunction is the most crucial and material for the present purpose. By obtaining that injunction the present plaintiffs were restrained from exhibiting in the theatre any picture other than those supplied by t he appellant Filmistan. Soon after this appellate order (Ex. 131) dt. 61- 1964, the present plaintiffs-respondents sent a notice dt. 18th Jan., 1964 (Ex. 86) to the appellant that they were ready and willing to exhibit motion pictures supplied by the appellant on the same terms and conditions the appellant was having under the weekly hire contract. It was also pointed out that the requisite cinema licence and the booking licence were also obtained and the theatre was kept in ready condition with adquate staff and the appellant was called upon to supply the films and to pay weekly hire charges. But in view of the total non-co-operation of the present appellant, the present respondents made an application dt. 2 1 st Feb., 1964 to the Appellate Bench which by its order dt. 3-9-64 (Ex. 87) dismissed the same. That application was resisted by the present appellant. The order (Ex. 87) observed as follows:
'Now, it is true that in Para 43 of our order dt. 18-1-64 (sic it should be 6-1-1964) we expressed a sense of incomprehension regarding the prayer by which the plaintiffs respondents sought an injunction 'restraining the defendants 1and 4, their agents and servants from exhibiting in the suit theatre any motion pictures other than those supplied by the plaintiffs'. The reason why we expressed that sense of incomprehension was that there was no contract between the plaintiffs on one hand and defendants 1 and 4 on the other hand by which the plaintiffs were liable to supply motion pictures and the defendants 1 and 4 were liable to exhibit them in the suit theatre. However, as the plaintiffs themselves had sought the injunction in that form and as it was granted by the trial Court we incidentally observed in that para that the injunction sought by the plaintiffs implied that the plaintiffs wanted that defendants 1 and 4 should exhibit the pictures supplied to them by the plaintiffs and that the plaintiffs had no objection if the defendants 1 and 4 used the suit theatre for that purpose. We have made no observation in that para that the plaintiffs are liable to supply motion pictures to defendants 1 and 4 and that defendants 1 and 4 are liable to exhibit such pictures in the suit theatre. We do not find anything in the observations made in para 43 which could enable us to pass an order directing the plaintiffs-respondents to deliver motion pictures to the present appellants for exhibiting the suit theatre. It is, however, quite a different thing if as the prayer made by the - plaintiffs for seeking the above injunction implies, the plaintiffs want to supply motion pictures to defendnats 1and 4 for exhibiting them in the suit theatre. In case, it would be for the parties concerned to enter into some sort of arrangement or understanding.'
As a result of the above the interim injunction restraining the present respondents from exhibiting any picture other than supplied by the present appellant and the voluntary act of refusal of the present appellant to supply the pictures, the theatre remained idle for a long period of 11 years and 13 weeks during which the present respondents had to pay Rs. 93000/by way of municipal tax, besides losing hire charges and benefits of the agreement with M/s. Shah and Company and the present respondents estimated the loss and damage due to such wrongfully obtained interim injunction to nearly 14 lakhs of rupees but restricted the claim in the present suit to Rs. 3,00,000/- only which has been fully decreed by the trial Court.
8A. The Small Cause Court finally decreed the H. R. P. Suit No. 1465/63 on 13th Dec., 1969 by its judgment (Ex. 67) and the appellants were declared to be lawful and sub-lessees of the Cinema Theatre and were declared to be direct tenants of these premises on the terms mentioned at Ex. 211 (which fixed the weekly hire charges of Rs.2300/-) and the appellant was directed to be handed over peaceful and vacant possession from the present respondents. The appellant was also directed to pay the deficit Court fees on the basis of rental payable for one year on the basis of Rs. 2300/- per, week.
9. In view of their success in the suit in the Small Cause Court, the appellant addressed notice to the respondents on 28tb Oct., 1970 (Ex. 127). In that notice it was claimed that from 1st Sept., 1963to28thOct., 1970 (date of the notice) the appellants were wrongfully deprived of the possession of the said theatre during which period they would have made a profit of Rs. 13,00,000/- had they been in possession of the Liberty Theatre to which they were entitled and asked the present respondents to pay up the said amount of Rs, 13 laks within 48 hours. A reply dt. 10th Nov., 1970 (Ex. 128) was given by the present respondents and it was pointed out that they had already preferred an appeal to the Appellate Bench. It was also pointed out that the respondents were all along ready and willing to exhibit motion pictures supplied by the appellant on the same terms and conditions under which the appellant was previously exhibiting the films, but the appellant had all along followed a policy of non-co-operation and thereby the appellant had caused heavy loss and damage to the respondents for which the appellant was liable. In Para 8 it was further stated that without prejudice to their right of appeal, the present appellants were ready and willing over possession of the theatre to the appellant as per the judgment of the trial court on weekly hire of Rs.2300/- If the appellant refused to take possession then also the liability to pay hire charges at the rate of Rs. 2300/- per week would continue. There was no response from the appellant to the above. It is rather curious. Here the appellant was offered possession of the theatre as per the decree of the Small Cause Court and the appellant was asked to pay weekly hire charges at the rate of Rs. 2300/- again as per the decree of the Small Cause Court. Yet the present appellant failed to take possession or supply motion pictures and to pay the weekly hire charges.
10. Both the sides preferred appeals to the Appellate Bench of the Small Cause court. Appeal No. 116/70 was filed by the present appellant on the question of Court fees. It was contended that they had rightly valued the suit and paid the Court fees on the basis of monthly rent of Rs. 1731 /- and the trial Court was in error in asking the appellant to pay the Court fees on the basis of the annual hire charges based on weekly hire charges of Rs. 2300/-. Said appeal was dismissed by a common judgment whereby the appeal, of the present respondents being Appeal No. 121/70 was allowed and the suit of the present appellant was dismissed. That judgment is at Ex. 68. It held that the agreements Exhs. 201 and 211 in that suit were commercial transactions for exhibiting the films and were not transactions of lea se or sub-lease, and, therefore, the suit failed and the appeal of the present respondents was allowed with costs of both the Courts.
11. Being aggrieved by the judgments and decree of the Appellate Bench in the two appeals, the present appellant got an order to continue the interim injunction from the appellate Bench itself so as to enable it to approach the High Court and the present appellant preferred two Civil Revision Applications Nos. 921 and 922 of 1972 and again obtained interim injunction. Both the Revision Applications were dismissed by the High Court on 21st Oct., 1972 by a common judgment (Ex. 69) but at the instance of the present appellant, the interim injunction was continue in the following terms:
'The Interim injunction granted in Civil Revision Application No. 1514 of 1974 must normally stand vacated. But at the oral request of the learned advocate for the petitioner plaintiff (defendant company here) ad interim injunction is continued for a period of four weeks after certified copy of this judgment becomes ready for delivery on condition that the plaintiff deposits in the trial Court amount of Rs. 2300/- (Rs.Two thousand three hundred only) per week every week from the date of this order and on condition that in the case of three defaults in depositing this amount, ad interim injunction shall stand vacated. There will be liberty to defendant No. I to withdraw the amount so deposited on giving security to the satisfaction of the trial Court.'
11A. It appears from Ex. 69 that the copy was applied for on 2-11-1974 and the same was ready on 20-12-74, but in the meantime, defendant company had filed Special Leave Petitions (Civil Nos. 2979/74 and 2980/84) before the Hon'ble Supreme Court of India and both these petitions were called on for hearing on 28-11-74 and the Supreme Court upon hearing the counsel for the parties dismissed both the said petitions by order Ex. 70. Thus with the dismissal of the special leave petitions on 28th Nov., 1974 the interim injunction finally came to an end. The present suit is filed within three years from that day on 27th,Nov., 1977'
12.In the present suit the respondents plaintiffs have averred in plaint Para-7 that the present appellant with present appellant with a view to take undue advantage and to cause injury to the present plaintiff and with a view to extort possession of the theatre and to get things done as per their desire, H.R.P suit no 1463/63 was their desire, filed and injunction application was made and ex parte ad interim injunction as prayed in Para2l(a)(1) was obtained and it was confirmed on 17th Sept., 1963 in terms of Cls. (I) to (VI) of that order. It was also pointed out in Para 8 that interim order contained in Clause (I) was vacated and interim injunction in C ls. (II) to (VI) was confirmed; thus by Clause (IV) the present plaintiffs-respondents were restrained from exhibiting in the said theatre any motion picture other than supplied by the present appellants. In Para 9 of the plaint it is stated that the main dispute was regarding the contracts or the agreements which the appellant company had entered and for exhibiting the films supplied by them and not to exhibit the films supplied by anyone else. It is also averred in the same para that the present respondents were ready and willing to exhibit the pictures accordingly. In Para 10 of the plaint, it is pointed out that by several letters and notices and without prejudice to their contentions even during the pendency of the suit and the proceedings the plaintiffs respondents were ready and willing to exhibit motion pictures supplied by the appellant as per the contract on weekly hire of Rs. 2300/ and the present appellant had obtained interim injunction. However, the appellant by false and illegal objections prevented the present respondents from exhibiting any picture in the said theatre even though it was kept in running condition with necessary staff. In Para 11 of the plaint it is mentioned that even after the judgment and decree of the trial Court during the pendency of the appeal the respondents had offered 'the appellant to exhibit the motion pictures but the appellant did not pay any heed and, therefore, the theatre had to be kept idle for all these years and the respondents-plaintiffs suffered huge damage due to the acts and omission of the appellant and such acts and omission of the appellant were with a view1o cause wrongful loss to the respondents. The plaintiffs, therefore, made a claim for damages and restricted the claim to Rs. 3,00,000/-.
13. By the written statement (Ex. 31) the appellant stated that the claim arose directly from the order of injunction which was obtained on sufficient grounds and that the suit of the appellant was not malicious and without reasonable and proper cause and the grant of interim injunction was a judicial act. Para 2 of the written statement reads as under:
'The plaintiffs claim in the suit allegedly arises directly from the order of injunction of this Hon'ble Court. The defendants submit that the interim injunction was granted on Sufficient grounds and the perpetual injunction by way of decree was granted on merits and after full trial of the Suit No. 1463 of 1963. The suit instituted by the defendants inter alia against the plaintiffs was not malicious and without reasonable and probable cause. The grant of interim injunction and/or perpetual injunction by way of decree is a judicial act. The said injunction and decree were passed after the Hon'ble Court was satisfied that the defendants were not acting maliciously and without reasonable and probable cause. The defendants, therefore, submit that the present suit is not maintainable and is liable to be dismissed with costs.'
'The pleadings of the respondents were thus understood and replied by the present appellant and it was pleaded by the present appellant that their acts, omissions and conduct in obtaining the interim injunction and not supplying the films was not malicious and was not without reasonable and probable cause; and, therefore, the suit was not maintainable. It was submitted that the interim injunction was continued and confirmed by all Courts after hearing both sides and the appellant had succeeded in the suit itself in the first Court. It also denied the alleged loss or damage and also pleaded bar of limitation.
14. The learned trial Judge raised 9 issues and decreed the claim of the plaintiff by negativing all the contentions of the appellant. On behalf of the appellant none entered the witness box.
15. The learned counsel for the appellant has raised the same contentions again and argued the matter at length after receipt of the record and proceedings from the trial Court.
16. It appears that the learned counsel for the appellant never expected to be called upon to argue the matter for getting the appeal admitted because right from the beginning Mr. Mehta tried to draw support from a decision in the case of Umakant Vishnu Junnarkar v. Parshuram Damodar Vaidya : AIR1973SC218 , which in terms laid down that when the appeal raises an arguable question of law, it cannot be summarily dismissed. In that case the summary rejection was in a single word dismissed without reasons. There cannot be any dispute regarding the said weighty proposition and hence Mr. Mehta was heard at length and Mr. Mehta with usual vehemence and tenacity hammered his contentions for hours on end Mr. Mehta assailed the judgment of the learned trial Judge mainly on the ground that in a suit for damages for abuse of process, of law the plaintiff must necessarily plead and prove that there was absence of reasonable and probable cause for filing the said suit and that there was an element of malice present. According to Mr. Mehta, merely because the suit ultimately terminated in favour of the respondents would not necessarily give them cause of action for filing a suit for damages.
17. Let us, therefore, consider whether the malice and absence of reasonable and probable cause is a necessary ingredient for the plaintiff to prove -in order to succeed in the present suit and secondly whether the plaintiff has proved the same.
18. In the instant case the suit of the respondent is based on the tort known as abuse of the process of law, which is alleged to have been committed by the appellant company by wrongfully obtaining temporary injunction in peculiar terms and the appellant's act of voluntary refusal to supply films for exhibition which had injuriously affected the property rights of the respondents. The injunction that was prayed for by the appellant in the said suit, as stated above, contained one peculiar prayer and it was to the effect that the respondent shall be restrained by exhibiting any motion pictures other than those supplied by the appellant in the said Liberty Theatre. It cannot be disputed that in the first round of contest (interim injunction) the appellant succeeded. In the appeal before the appellate Bench of the Small Cause Court, the injunction was modified but the injunction g ranted by the trial Court qua the above prayer was not disturbed and it was only at the subsequent tiers (the final contest) that the appellant lost.
19. The words in which the said prayer was Couched, indicate that the appellant wanted that the respondent should not use the said theatre for exhibiting any pictures other than those supplied by the appellant. This by itself would indicate that the Court was misted into believing at least at the initial stage that the theatre was not sought to be kept idle with consequent loss to the respondent but the Court was led to believe and the Court found a prima facie case on the solemn averments made by the appellant that they had a right to exhibit pictures distributed by them in the said theatre, and if the appellant was not allowed to exhibit their films, they, would suffer loss of reputation and the distributors with whom the appellant had entered into and would be entering into agreements for exhibition for various pictures at the theatre would claim damages from the appellant. Subsequent events, however, had gone to establish that the appellants even during the pendency of the proceedings at the upper levels of the judicial hierarchy, when they were asked by the respondents to supply the pictures, had obdurately refused to do the same and Mr. Mehta nonchalantly argued before us that when the Courts had found that the appellants were under no obligation to supply the pictures, the appellants cannot be said to have abused the process of the Court. This, to say the least, was a blatant exercise in commercial blackmail in guise of the order obtained in a judicial proceeding by making the averments which the appellant knew were not correct because all throughout their stand was that if the appellant was not allowed to exhibit the pictures supplied by it, it would suffer irreparable loss of reputation and damages. If they were not under such obligation or need, then they had no business and no reason whatsoever to obtain the injunction restraining the respondent from exhibiting pictures other than those supplied by the appellant. Once having obtained the interim injunction in such terms, the refusal to supply the films for exhibition was wholly unjustified and wrongful and such refusal on part of the defendant-appellant was its own voluntary act.
20. The learned counsel for the appellant attacked the judgment of the trial Court on the ground that the trial Court had relied on the judgment of Calcutta High Court in the case of Bhuthnath Pal v. Chandra Binode Pal, (1912) 16 Cal U 34. However, the law declared in that case was overruled by another Division Bench judgment of the Calcutta High Court in the case of Bhupendra Nath Chatterjee v., Sm. Trinayani Devi : AIR1944Cal289 which held that there was no justification for the decision in (1912) 16 Cal LJ 34 and that the decision in(1912) 16 Cal LJ34 could no longer be looked upon as a binding authority in view of some decisions of the Judicial Committee referred to in the judgment (page 296). The learned counsel -for the appellant has also attacked the reliance placed upon by the learned trial judge on the questions from the learned authors Fleming on Torts and Street on Tortsin Paras 17 and2l of the judgment of the trial Court.
21. Fleming on Torts under the heading 'abuse of process' has discussed this question. He has first dealt with the question of malicious prosecution in Chap. 24 and held that elements of absence of reasonable and probable cause and malice are necessary ingredients for action on Tort of malicious prosecution. Then under the second head of 'abuse of process' has observed that 'Quite distinct, however, are cases where a legal process, not itself devoid of foundation, has been perverted to accomplish some collateral purpose, such as extortion or oppression. Here an action will lie at the suit of the injured party for what has come to be called abuse of process.'
After referring to the case of Grainger v. ill (1838) 4 Bing. N. C. 212, in which case the plaintiff was allowed to recover his loss without proof that the proceedings were destitute of reasonable and probable cause, the learned author observed that
'Unlike malicious prosecution, the gist of this tort lies not in the wrongful procurement of legal process or the wrongful initiation of criminal proceedings, but in the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish. It involves the notion that the proceedings were 'merely a stalking horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate, and it is, therefore, immaterial whether the suit which that process commenced was founded on reasonable cause or even terminated in favour of the person initiating it. The improper purpose is the gravamen of liability.'
Another learned author Street on Torts has also defined 'abuse of process' thus:
'It is a tort to use legal process in its proper form in order to accomplish a purpose other than that for which it was designed and thereby cause damage'.
He has also relied on the leading case of Grainger v. Hill (supra); and has further observed that:
'The case decides that in this tort the plaintiff need not prove want of reasonable and probable cause; nor need the proceedings have terminated in his favour. The plaintiff must show that the defendant has used the process for some improper purpose.'
Thus, according to both the learned authors 'abuse (in contradiction to proper use) of legal process is the crucial element of tort.' Both the learned authors have emphasised that when legal process has been improperly used (abused) to accomplish some collateral purpose, such as oppression it makes the defendant liable for damages. It is thus the improper purpose which is the gravamen of liability and when that is proved no question of further proof of malice and absence of reasonable and probable, cause arises; and that is not a necessary element to be proved in such cases. It must be borne in mind that such improper purpose is not an act of Court nor does the Court give any judicial sanction to such improper purpose while granting the interim injunction. The Court grants the interim injunction for proper purpose of protecting the interest of the party seeking injunction. However, if such party were to abuse. Such injunction, (which has been granted to protect its interest) for other improper and collateral purpose of oppression or harming the other party, that would be clearly abuse of process of Court. By voluntary acts, of tile party who obtains the interim injunction blame cannot be laid at the door of the Court and the argument cannot be sustained that such improper purpose was sanctioned by the judicial order. It must be emphasised that the gravamen of this tort is the abuse or improper purpose in obtaining the legal process and not the legal process itself. If it was a case of mere legal process resulting in damage to a party, the question of absence of reasonable and probable cause and malice would be relevant and necessary. However, when it is shown that it was not a case of mere legal process causing damage but the improper purpose and abuse of such legal process by a party that has caused damage, no further proof of any other element is required. Now let us consider the various judgments which have been cited and read before us by the learned counsel for the appellant.
22. The first case is Kissorymohun Roy v. Hursook Dass, (1889) 17 Ind App 17. In that case Judicial Committee of the Privy Council held that wrongful attachment being the direct act of a party and not of the officer of tile Court, the injured party was entitled to recover full indemnity and he was Dot bound to prove that the party effecting attachment had litigated maliciously and without probable cause. Thus the Privy Council held that even though tile order of attachment is by the Court, the actual attachment of the goods shown by a party is not an act of the officer of the Court even though such officer was acting in pursuance of the Court's order. In the present case also, as seen earlier, by the interim injunction itself granted by the Court, no damage had occurred. The Court had, as desired by the appellant, granted the injunction restraining the respondent from exhibiting any films other than supplied by the appellant. The appellant desired this injunction because as stated by the appellant in its affidavit unless such injunction was granted they would be faced with claims of damages from the distributors with whom they had entered into and would be entering into agreements for exhibiting the films and their reputation would suffer and the loss cannot be compensated in terms of money. After obtaining the injunction in these terms on this assurance and when the respondents had expressed their readiness and willingness to exhibit pictures supplied by the appellant and asking the appellants to supply the same, the refusal by the appellant is a direct and voluntary act of the appellant arid that has caused the damage to the respondents plaintiffs, Thus this judgment of the Privy Council on the contrary shows that when the damage is attributable to an act of a party, though acting in pursuance of Court's order, no proof is required to prove malice and absence of reasonable and probable cause in order to recover damages.
23. The second case is of Bhutlinath Pal v. Chandra Binode Pal, (1912) 16 Cal LJ 34: 16 Ind Cas 443. The trial Court has relied on this judgment and that reliance has been criticised by the learned counsel for the appellant on the ground that it has been held to be no longer good law in Bhupendra Nath v. Trinavani Devi (AIR 1944 Ca1289) (supra).
24. The next case is Norendra Nath Koer v. Bhusan Chandra Pal, AIR 1920 Cal 357 (FB). In tile referring judgment of the Division Bench, a doubt was expressed about the correctness of the judgment in the case of Bhuth Nath (supra). However, the Full Bench consisting~ of five Judges does not seem to have agreed with the referring Division Bench. 'The Full Bench, on the contrary, approved both sets of decisions and referred the matter back to the Division Bench to be decided on facts. The Full Bench observed that reference was not necessary and there were two sets of decisions in the reports, in one set it is laid down that a person who unlawfully interferes with the exercise of the property rights of another commits an act in the nature of trespass to property and is liable for damages in an action for trespass; in the other series of cases it is laid down that no suit ties for damages against a defendant for maliciously and without reasonable and probable cause instituting a civil action, and Bhuth Nath's case was held to be an illustration of the former class and Mohini Mohan Misser v. Surendra Narain Singh, AIR 1915 Cal 173 was held to be an illustration of the latter class. The Full Bench held that there was no conflict in principle between the two classes of cases and the question in, controversy really is which set of decisions governs the present case on its special facts, and therefore the matter was referred back to the Division Bench. The decision of the Division Bench is at page 846(2) - Bhushan Chandra Pal v. Narendra Nath Koer, AIR 1920 Cal 846(2). The Division Bench consisted of the two members of the five Judge Full Bench. It was a case of damages due to wrongful attachment. The head note reads as under:
'In as much as a decree-holder is responsible for the attachment of moveable property seized in execution of his decree as the property of his judgment-debtor, a suit by the rightful owner of such property is maintainable against him for wrongful attachment. The mere fact that there is a subsequent order that the property should not be released and returned to the rightful owner-pending the decision of a suit by the decree-holder that the property was liable to attachment, would afford no protection against a claim for damages.' Kissorimohun Roy v. Hursook Das's case ((1889) 17 Ind App 17) was also referred to and followed. The argument that even after the attachment of the goods shown by the party the Court had by reason of subsequent judicial determination, ordered that the property should not be released and returned to the plaintiff would afford protection against the claim of damages, was negatived. The Court pointed out that the root of the mischief was the wrongful attachment affected at the instance of the defendant who pointed out the oil mill as the property of the judgment- debtor and, therefore, the case fell within the principle laid down in Clissold v. Cratchley, (1910) 2 KB 244, which was followed in Bhuthnath's c5se 0912) 16 Cal LJ34) and the suit was held maintainable. In the present case also the mischief ties in the improper purpose and abuse by the appellant by voluntarily refusing to supply the films and not in the legal process or the injunction, itself.
25. The next case referred is Albert Borman v. Imperial Tobacco Co. AIR 1929 PC 222 (arising from : AIR1928Cal1 ). However in the Privy Council the contention was not pressed and the Privy Council observed that 'they make no pronouncement upon this aspect of the case which may require further consideration on some farther occasion'; but the Privy Council found in the facts of that case that the cancellation of the contract to purchase goods was not due to the granting of the injunction but was a voluntary act on the part of the appellant, who was not prepared to wait to see whether the injunction was to be continued.
26. The next is the case of Ramanathan Chetty v. Mira Saibo Marikar . In that case the Privy Council observed as u nder:
'.....once it was shown as it has been to their Lordships' satisfaction, that the respondent was the cause of the appellant's goods having been seized by the Fiscal under a warrant which only directed him to seize property of the firm, the case against the respondent was complete, and he became liable to the appellant in damages without proof of malice.'
In the present case also we are satisfied that it is the appellant's wrongful refusal without any justification to supply the films that had caused the damage to the respondent and, therefore, the case against the appellant is complete and the appellant is liable to the respondent without proof of malice.
27. Now coming to the case of Bhupendra Nath : AIR1944Cal289 (supra) on which strong reliance has been placed by the learned counsel for the appellant, it is rather curious that in spite of Full Bench of five Judges having approved of the ratio in the case of Bhuthnath 0 912) 16 Cal 34) (supra) as pointed out earlier, the Division Bench in Bhupendra Nath's case observed that there was no justification for the decision in Bhathnath's case and that it can no longer be looked upon as a binding authority. In the case of Bhupendranath reference was made to the decisions of the Privy Council referred to above and the distinction between the acts done by a party after judicial order and the act of judicial order was clearly maintained. In that case also the Division Bench held that if the goods were seized under a writ of warrant which authorised the seizure, the seizure is lawful'; but if it 'did not authorise the seizure of the goods seized, the action would lie for damages occasioned by wrongful seizure without proof of malice'. It is thus clear that if the Court injunction which restrained the respondent from exhibiting films other than supplied by the appellant, had further issued a contrary and inconceivable direction and authorised the appellant not to supply the films, the appellant could argued that the refusal to supply the films was authorised by the court's order. In the present case there is no such Court's authority or judicial sanction and the act of refusal to supply the films is purely a Voluntary act of the appellant itself and, therefore, even as per this judgment for such wrongful refusal and improper purpose in obtaining the interim injunction the suit would lie without proof of malice and proof of absence of reasonable and probable cause. Even this judgment which is the trump card of the appellant, does not help the appellant at all.
28 In the case of Ram Pratap v. Narain Singh Chaudhary : AIR1966All172 , the distinction between acts done without judicial sanction and acts done under Judicial sanction, which is improperly obtained, w as recognised as laid down by series of decisions earlier mentioned and the Allahabad High Court held as under:
'The Courts have sometimes drawn a distinction between acts done without judicial sanction and acts done under judicial sanction improperly obtained. The present case falls in the latter category because here the appellants got an order of the Court on false and baseless allegations and thereby caused injury to the respondent's property. Thus the injury suffered by the respondent was the direct and proximate result of the appellants' action in obtaining the order of injunction on wholly improper and unjustifiable grounds.'
Thus, even an act of a party obtaining an order from the Court on false and baseless allegation is treated to be an act of a party and the protection of judicial sanction is denied. If such is not the law and concept of justice, the persons causing wrongful injury to others would lay the blame on the Courts, judicial processes and judicial administration and the parties suffering would be denied justice and in fact would be done injustice by Courts of Justice.
29. In view of the above discussion we hold that the learned trial Judge was right in holding that the appellant was entitled to succeed in the suit without proof of malice and of want of reasonable and probable cause because the plaintiff has succeeded in proving tort of abuse of legal process, the gravamen of which is improper use and purposes of obtaining the legal process. We hold that the appellant had obtained the interim injunction in peculiar terms and abused the same for improper purpose of harming and oppressing the appellant (sic).
30. Even assuming that the malice and absence of reasonable and probable cause was necessary to be alleged and proved, the facts in the present case are so eloquent that there is no escape from the conclusion that these ingredients are also proved in the present case. As pointed out earlier, the interim injunction in such peculiar terms was obtained on the promise solemnly affirmed that if the injunction was not granted in those terms the appellant would be faced with claims of damages from the distributors with whom they had entered into and would be entering into agreements for exhibiting films in this theatre and that the appellant would suffer greatly in reputation and loss could not be compensated' in terms of money. On these solemn averments the Courts were pursuaded to grant the injunction in the terms prayed for by it. Having obtained that injunction and the other side having applied to comply with that injunction and having made written requests several times that the theatre was ready, the exhibition and book in licences were also obtained and the staff was engaged, yet the appellant utterly failed to avail of the same. Even after the appellant succeeding in the suit a written offer was made by the respondents to hand over possession and exhibit films as per the decree in favour of the appellant, yet the appellant refused and no reason whatsoever is shown for not complying with the offers made by the respondents. Merely to say that the appellant was under no obligation to supply the films is refusing to give the reason. Refusal to give the real reason clearly shows the absence of reasonable and probable cause the improper purpose and abuse of obtaining such injunction. This is an instance of oppression and clearly a commercial blackmail and malice is written large on such voluntary act of refusal of the appellant.
31. The learned counsel for the appellant has submitted that there is no pleading of malice and absence of reasonable and probable cause in the plaint and there is no issue and, therefore, no finding could be given and the appellant had no opportunity to meet such case in the trial Court. We have narrated the averments in the plaint earlier particular in Paras 7 to 10 of the plaint and written statement of the defendant, particularly Para 2 thereof wherein they have clearly understood the averments in the plaint and denied that there was malice or absence of reasonable and probable cause. Thus in terms the defence taken and pleaded and issues Nos. 4 and 5 cover the acts of omissions and commissions by the appellant and that takes care of the situation. Both sides were fully aware of the controversy between the parties and lengthy arguments have been advanced before the trial Court on this issue. Therefore, there is no need to direct remand of the suit on that ground. The parties had sufficient opportunity and the appellant failed to lead any evidence. Even at the hearing of this appeal, the learned counsel for the appellant was not able to justify refusal to supply the pictures, except by saying that there was no obligation to supply the same. That is no answer and this is no cause much less a reasonable an d probable cause.
32. The leamed counsel for the appellant has submitted that the suit is barred under the provisions of S. 144(t)(2) of C. P. C. which provides for an application to be made by a party entitled to any benefit by way of restitution if a decree or order is modified in appeal, revision or other proceeding and on such application being made such restitution can be ordered so far as it may place the parties in position which they would have occupied but for such decree or order, and it is further provided no suit shall be instituted for the purpose of obtaining any restitution or other reliefs which could be obtained by application under S. 144(l). The present case cannot by any stretch of imagination fall under this provision. Here the suit is for damages in tort of abuse of legal process, gravamen of which is improper and collateral purpose of obtaining such judicial order. It is not a case of restitution or reversal of any order. It is an independent cause of action for which an application under S. 144 would not be maintainable and the only and proper remedy is regular suit and S. 144(2) is no bar to such suit and such an application could not have placed the parties in the same position in which they would have been.
33. The learned counsel for the appellant has lastly urged that the suit is barred by limitation. As pointed out earlier, the interim injunction had continued till 28th Nov., 1974 when the Supreme Court dismissed Special Leave Applications by its order Ex. 70 and the suit has been filed within three years from that date. Any suit filed prior to the end of the previous litigatiton would have been premature based on incomplete cause of action. Moreover, the wrong committed by the appellant was a continuing wrong and a continuing tort of abuse of legal process and it had continued right till the litigation ended on 28th Nov., 1974 and, under S. 22 of the Limitation Act fresh period of limitation runs during all such period. In this connection the learned trial Judge has rightly relied on the Supreme Court case in AIR 1959 SC 798.It makes no difference that the temporary injunction ended when the Small Cause Court decreed the suit and granted the permanent injunction, because, by the permanent injunction the same situation continued, because permanent injunction was granted in the same peculiar terms restraining the respondent from exhibiting any films other than supplied by the appellant and the appellant continued to refuse to supply the films even when written request was-made after the decree. Therefore, there was no change or break in the continuity of the cause of action. It is only after the disposal of the Special Leave Petitions by the Supreme Court that injunction ceased and till then it had continued all along till 28th Nov., 1974 and the suit is filed within time, and, therefore, this contention of the appellant also fails.
34. These were the only contentions urged before us and all of them fail and therefore the appeal is rejected at admission stage.
35. Appeal rejected.