1. In this application my own inclination was to grant the injunction. It would have been so convenient, if I could grant the injunction. It would have prevented a multiplicity of judicial proceedings. It would have saved the parties costs & harassment of a trial in Madras.
2. The issues in the Madras suit are two of the issues in the Calcutta suit. These two issues as formulated by counsel of the petitioner are (1) whether the plff. was induced by misrepresentation of the deft, to enter into the contract of employment, (2) whether the deft, or the plff. broke the contract, if these issues are decided in the Calcutta suit in favour of the deft, he gets a decree in the Madras suit as a matter of course. If these issues are decided against him, the Madras suit is dismissed.
3. The contract of employment obviously was made in Calcutta at the interview referred to in the letter dated 4-12-1944, from plff. to the deft. Prima facie the witnesses are in Calcutta. The deft, has filed his written statement in this suit & has incurred costs. He has to defend this suit here & fight it out. I think the balance of convenience is to stop the proceedings in the Madras suit & try the Calcutta suit. But how to stop it?
4. Section 10, Civ. P. C. has no application in this case. There are issues in the Calcutta suit which do not arise in the Madras suit, e. g., there is a claim here for damages for libel which is not the subject-matter of the Madras suit. But even if Section 10 were applicable, the jurisdiction to stay the Madras suit under Section 10, Civ. P. C. is of the Madras Court & not of this Court. Therefore, the only way by which I could stop the Madras suit was by granting an injunction in the exercise of the inherent power of this Court restraining the deft, from proceeding with the suit in Madras.
5. Now what are the principles on which this inherent power should be exercised? Under Section 54, Specific Relief Act, a perpetual injunction is granted when it is necessary to prevent a multiplicity of judicial proceedings. The section does not require that the multiplicity of proceedings should be vexatious. Section 54, however, does not in terms apply to temporary injunctions which are regulated by Civil P. C. The Calcutta High Court in its Original Side has inherent power to grant temporary injunctions apart from the provisions of Civ. P. C. If the Court exercises this inherent power, I do not see why the Court cannot take into consideration the principles laid down in Section 54, Specific Relief Act. If perpetual injunction can be granted to prevent a multiplicity of judicial proceedings, why not a temporary injunction? In Woodroffe on Injunctions (Edn. 5 p. 160) we find the following passage:
'The Specific Relief Act passed in 1877 & O. 39 Rr. 1 & 2 of the present Civ. P. C. contain the law now in force upon this, subject. Section 56 of that Act applies no doubt in terms only to perpetual injunction, temporary injunctions being left by Section 53 to be regulated by Civ. P. C. In a general manner, however the same principles must equally apply to the granting of a temporary as to a perpetual injunction & these principles must therefore be sought in the Specific Relief Act itself. By the English Judicature Act an injunction may be granted by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made; & any such order may be made either unconditionally or upon such terms. & conditions as the Court shall think just.'
6. In 'Nusserwanji v. Gordon', 6 Bom. 266 Sargent, C. J. in exercise of the original civil jurisdiction of the Bombay High Court observed at p. 279:
'The Specific Relief Act purports to deal only with perpetual injunctions leaving temporary injunctions to be regulated by Chap. XXXV, Civ. P. C. Ss. 492 & 493 of that Code (Reference is to the Code of 1882) state the particular cases in which a temporary injunction may be granted. It is plain, however that apart from the special circumstances which determine whether the Court should, in its discretion grant an injunction before the hearing of the suit the same general principles must equally apply to the granting of a temporary injunction as to a perpetual injunction & those principles must therefore, be sought in the Specific Relief Act itself.'
See in this connection, 'Commissioners for the Port of Calcutta v. Suraj Mull', 55 Cal 978 at p. 984.
7. On the principles above stated my view was to grant the injunction. But I am unable to exercise the inherent jurisdiction of the Court according to that view, because I am bound by the judgment of Das J. in 'Snow White Pood Products Co. Ltd. v. Punjab Vanaspati Supply Co., 49 C. W. N. 172 which following the principle enunciated in 'Hyman v. Helm', 24 Ch D 531 lays down the rule on which the inherent jurisdiction of the Court is to be exercised in cases of the type under consideration. I proceed to discuss these cases below:
8. In 'Hyman v. Helm', 24 Ch. D. 531 at p. 537 Brett, M. R. said:
'It seems to me that where a party claims this interference of the Ct. to stop another action between the same parties, it lies upon him to shew to the Court that the multiplicity of actions is vexatious, & that the whole burden of proof lies upon him. He does not satisfy that burden of proof by merely shewing that there is a multiplicity of actions; he must go further.'
9. The principle laid down in that case was accepted as sound by Rankin J. in 'Ticamchand v. Santokchand', 24 C. W. N. 735. Das J. in 'Snow-white Pood Products Co. Ltd. v. Punjab Vanaspati Supply Co.', 49 C. W. N. 172, after review of the authorities lays down the proposition of law thus:
'These cases seem to me to be in point & they clearly establish that, balance of convenience is not the only or even the main consideration to induce this Court to issue a temporary injunction restraining the deft, in the suit in this Court from proceeding with his suit in another Ct.; this Court must be satisfied that the other suit is vexatious & an oppressive multiplication of actions. Inconvenience of the plff. in the Calcutta suit does not determine that the other suit is vexatious or oppressive.'
10. In view of these authorities, I cannot grant the injunction in exercise of the Court's inherent jurisdiction though there is undoubtedly the double proceeding, unless I find that the Madras proceeding is vexatious & oppressive. Counsel for the petitioner to come within the rule contends that the Madras suit is vexatious & oppressive. He points out that the Calcutta suit was filed on 29-5-1945. The deft, entered appearance & filed written statement in December 1945. The Madras suit was filed on 29-6-1948. (I take the dates as given by counsel for the petitioner). He submits that if the deft's suit were bona fide, he would have filed this suit in Calcutta & would not have waited so long to file his suit. But the answer is simple. The deft, waited so long to see what the result of the Calcutta suit was. The deft, might very well have thought let me see what the result of the Calcutta suit is before I file my suit & incur costs for recovery of my remuneration'. And when he found that there was no possibility of the Calcutta suit being heard within the period of three years from the date of the breach of the contract, he filed the suit in Madras to save his claim being barred by limitation.
11. As to his not filing the suit in Calcutta it may well be that the procedure in the Madras Court would be more favourable to him & less expensive. He is resident of Madras.
12. It will appear from the observation of Bow-en, L. J. in 'Hymen v. Helm', at p. 535 that convenience of procedure of the Court in which the suit to be stayed is pending, is a matter to be taken into consideration in deciding whether the suit to be stayed, is vexatious or not.
13. Counsel's further contention was that the Madras Court has no jurisdiction to try the suit which has been filed in Madras. He points out that the only averment made in the Madras plaint for the purpose of jurisdiction is, that the remuneration 'is payable in Madras'. I have read carefully the Madras plaint. It is true that no particulars are given in that plaint of the contract of employment. It is further true that it has not been alleged in the Madras plaint as to how & why the remuneration became payable in Madras. It is true that it is not averred anywhere in the Madras plaint that one of the terms of the contract of employment was that the deft's remuneration would be paid in Madras. It may be that the plaint is not happily worded. But I do not think I am entitled to infer that the words 'payable in Madras' have been put in the Madras plaint with a view to create jurisdiction in the Madras Court. Possibly at the time when the suit is heard in Madras, the deft, will give particulars. Possibly he will prove that one of the terms of the agreement was that the remuneration would be payable in Madras. I am not at all sure that the allegation was made frivolously or with a view only to file the suit in the Madras Court.
14. The suit filed in Madras would undoubtedly cause some vexation to the plff. The plff. has got to make arrangement from Calcutta for the conduct of the suit in Madras. He will have to send his man from Calcutta to Madras for the suit. But that does not make the Madras suit vexatious. The expression 'vexatious' has got a definite legal meaning. That meaning has been illustrated by illustrations given in 'Hyman v. Helm'. It is not necessary for me to repeat them here. On the materials before me, I am unable to hold that the suit in Madras has been filed with a view to cause vexations or oppression.
15. The petitioner to quote the words of Brett, M. R. has failed 'to satisfy the burden of proof that is upon him', to satisfy the Court that the double proceeding is vexatious.
16. I, therefore, dismiss the application. Costs costs in the cause.