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Rekhab Chand JaIn Vs. Paras Das Bhartiya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 38 of 1968
Judge
Reported inAIR1970Cal394
ActsCode of Civil Procedure (CPC) , 1908 - Section 20; ;Arbitration Act - Section 34
AppellantRekhab Chand Jain
RespondentParas Das Bhartiya
Cases ReferredBadhkaran Kabra v. A. Karamally
Excerpt:
- .....i was inclined to come to the conclusion and to hold that the plaintiffs intention to file this suit in calcutta evinced a mala fide motive on his part to satisfy the old grudge against the defendant. 25. by considering all these points, i have no hesitation to come to the conclusion that leave under clause 12 of the letters patent which was already granted at the time of the institution of the suit should be revoked and i revoke the leave accordingly. it is recorded that dr. das appearing on behalf of the defendant has given an undertaking that the point of limitation will not be taken if the suit would be filed within a reasonable time from the date hereof at the proper court in uttar pradesh. i need not consider the effect of such undertaking but it is recorded in the manner it was.....
Judgment:
ORDER

R.M. Datta, J.

1. This is an application for revocation of leave granted under Clause 12 of the Letters Patent 1865 and for other reliefs. The suit was filed on or about 3rd January, 1968 and at that time on the ex parte prayer of the plaintiff the Court granted the leave to institute this suit.

2. The suit is for damages for Rupees 80,000/- for libel supposed to be contained in a letter dated 3rd July, 1967, addressed by the defendant to the District Inspector or Schools.

3. Before the filing of the suit the plaintiffs solicitor wrote to the defendant stating that the copy of the letter dated 3rd July, 1967, was forwarded to several persons of Jain Community in Calcutta and the letter was published in Calcutta and received wide publicity and the same was to the knowledge of the defendant. It is necessary here to set out the relevant portion of the said letter which ran as follows:--

'Our client's attention has been drawn to a copy of your letter dated the 3rd July, 1967, addressed to the District Inspector of Schools, Mainpuri. A copy of that letter has been forwarded to several persons of the Jain Community in Calcutta, The letter has been published in Calcutta and has received wide publicity.'

4. In the plaint also the plaintiff does not make out a definite case that the defendant had published the copy of the said letter or the contents of the said letter at Calcutta amongst divers members of the Jain Community nor is that fact admitted by the defendant. The relevant paragraph which is paragraph 3 of the plaint is set out below:--

'The said letter dated 3rd July, 1967, and/or copies thereof have been widely published to and/or circulated amongst divers persons in the State of Uttar Pradesh out side the aforesaid Jurisdiction. The, said letter was also widely published to and/or circulated amongst divers members of the Jain Community in Calcutta within the said jurisdiction and in particular to one Babu-lal Saraogi at premises No. 196, Jamunalal Bajaj Street, Calcutta, within the said jurisdiction by whom the said letter was in the ordinary course of business opened and read, the defendant well knowing that the said letter would and intending that it should be so opened and read.'

5. Previous to that in paragraph 2 of the plaint the plaintiff has stated that the defendant had written the said letter to the District Inspector of Schools at Mainpuri outside the jurisdiction of this Court and that fact is admitted by the defendant before me in this application.

6. The plaintiff next relies on paragraph 5 of the plaint for invoking this Court's jurisdiction. It has been pleaded there that the plaintiff has been lowered in the estimation of right-thinking members of the Society and in particular or the Jain Community in Calcutta within the said jurisdiction. Here also the plaintiff has not stated anywhere that the defendant is responsible for publishing this letter to the members of the Jain Community in Calcutta.

7. The plaintiff lastly relies on the statement made in paragraph 8 of the plaint for the purpose of invoking this Court's jurisdiction. The averments made therein are to the effect that the said sum of Rs. 30,000/- is due and payable by the defendant to the plaintiff as his creditor 'at the said address of the plaintiff in Calcutta within the said jurisdiction.

8. I shall now deal with the said three contentions to find out whether on the aforesaid pleadings the jurisdiction of this Court has been properly invoked in the plaint or not and whether leave under Clause 12 of the Letters Patent 1865 was properly granted or not.

9. It is settled law that for the purposes of invoking jurisdiction of the Court the expression 'Cause of action' has a distinct connotation. Merely saying that something has happened within the jurisdiction of this Court would not be effective in conferring jurisdiction on the Court or to ask for leave under Clause 12 of the Letters Patent. It must first be a cause of action in the suit; secondly, such cause of action must arise within the jurisdiction of this Court and thirdly, that part of the cause of action on which jurisdiction is sought for, must affect the defendant or defendants against whom relief is asked for. In this case, the averments made in paragraph 2 of the plaint have been made to establish that the defendant has written, signed and published the impugned letter containing the alleged defamation at Mainpuri. That makes out a good cause of action for the purpose of proceeding against the defendant in a suit. The causeof action for damages is complete but that part of the cause or action would not confer jurisdiction on this Court because that has arisen outside the jurisdiction of this Court. Therefore, the plaintiff has to make some more averments whereby the defendant would be made liable to the plaintiff.

10. Each publication of the defamatory matter would give rise to a separate cause of action, Publication in Calcutta of the said letter is a distinct cause of action. It may be done by the defendant or by any body else. It may be done by some body at the instigation of the defendant which facts are necessary to be pleaded for the purposes of making out the cause of action to confer jurisdiction on this Court. Merely to say, that the said letter was published and circulated in Calcutta within the jurisdiction of this Court would not make the defendant liable unless it is specifically pleaded that the defendant is responsible for such publication in Calcutta. In my opinion, in the absence of such pleading in paragraph 3 of the plaint the plaintiff cannot be allowed to rely on the said averments for the purposes of conferring jurisdiction on this Court to recover his damages against the defendant who alone has been impleaded as the defendant in this suit.

11. Mr. Chatterjee wanted me to read paragraph 3 along with paragraph 2 of the plaint. But those two averments constitute separate and distinct causes of action which are independent of each other. In my opinion, both the solicitor's letter as also paragraph 3 of the plaint could not be interpreted to suggest at this stage that the defendant was responsible for the publication of the said letter in Calcutta within the jurisdiction of this Court. It appears to me that paragraph 3 of the plaint has been intentionally and purposely framed in that vague manner because it is not the plaintiff's case that the defendant was responsible for publishing the said letter or the copy thereof to any body in Calcutta. Had it been otherwise, there could be no reason why the same would not be pleaded in a definite manner either in the said letter of the solicitor or in paragraph 3 of the plaint.

12. It follows therefore that the averments made in paragraph 5 of the plaint also cannot be relied on for the same reason as above for the purposes of conferring jurisdiction on this Court to make the defendant liable.

13. There remains the question to determine whether the plaintiff can be called a creditor for the said sum of Rs. 30,000/- which the plaintiff says is due and payable at the plaintiff's address in Calcutta within the jurisdiction of this Court so as to confer jurisdiction on this Court on the said averments. The principle that the debtor must find out the creditor to pay his debt, has been applied in cases arising out of contracts or where a sum is payable as a liquidated amount or debt from the defendant to theplaintiff. In such cases, applying that principle Courts have assumed jurisdiction where moneys would be payable at a place within the Court's jurisdiction. That is not the case here. The plaint proceeds on the basis of damage alleged to have been suffered by the plaintiff from the defendant. It is the plaintiff's estimate that the said sum is payable by the defendant to the plaintiff as damages suffered by the plaintiff. Until the figure is agreed to by the parties or until the Court determines the said amount or finds any other amount, it is not possible for the defendant to pay the amount. The claim remains unascertained and cannot be called a debt due to the plaintiff. Under those circumstances, in my opinion, this is not a cause of action and cannot be relied on by the plaintiff as a part of the cause of action for the purposes of vesting this Court with jurisdiction.

14. Under those circumstances, I should revoke the leave already granted on the ground that the causes of action showing the jurisdiction of this Court as pleaded in the plaint do not amount to causes of action for the purpose of vesting jurisdiction in this Court.

15. The next point that has been argued before me is about the balance of convenience. On behalf of the defendant it is contended that the balance of convenience is overwhelmingly in favour of the suit being tried in the Uttar Pradesh Court where admittedly the letter was written and published and specially when the proposed defence as indicated in this application would be justification. It is contended that the letter complained of speaks of failure on the part of the plaintiff to render accounts in respect of the charitable trust for quite some time past and the said letter was written by the defendant as the auditor of the said trust and of the plaintiff who was the treasurer thereof. According to the defendant he was duty bound to call for such accounts specially when persons interested in the trust were asking him to audit such accounts and to place them before them. The registered office of the said trust is in Uttar Pradesh; the books of accounts are all in Uttar Pradesh. The plaintiff might be living in Calcutta and doing business in Calcutta but in the matter of the said trust the plaintiff was acting as a treasurer in the said distant place at Uttar Pradesh. The persons who were asking the defendant to call for such accounts from the plaintiff and who have to be called as witnesses in support of the plea of jurisdiction, are all residents of Uttar Pradesh. The inspector of Schools to whom the letter was sent and published was at Uttar Pradesh and the records of the said Inspector of Schools which would be necessary at the trial are all at Uttar Pradesh.

16. On behalf of the plaintiff it is contended that the plaintiff has the choice of forum and the plaintiff would have to call all those persons of the Jain Community whoare residents of Calcutta to establish how and in what manner and to what extent the plaintiff had been lowered in their estimation. The plaintiff has also to prove the publication of the letter in Calcutta to one Babu-lal Saraogi who resides at premises No. 196, Tamunalal Bajaj, Street, Calcutta, by calling him to give evidence in Calcutta. The plain-tiff's other witnesses are in Calcutta particularly one Chakresh Kumar Jain and one Lalchand Asofa who have filed affidavits in support of the plaintiff on 30th April, 1968. I find that the said two affidavits have little evidentiary value.

17. In support of his contention Mr. Chatterjee has relied on an old decision in the case of Geffert v. Ruckchand Mohla, reported in (1888) ILR 13 Bom 178. That decision was based on an application under the then Section 20 of the Code of Civil Procedure (Act XIV of 1882) which provided as follows:--

'Section 20. If a suit which may be instituted in more than one Court is instituted in a Court within the local limits of whose jurisdiction the defendant or all the defendants does not or do not actually and voluntarily reside, or carry on business, or personally work for gain, the defendant or any defendant may, after giving notice, in writing to the other parties of his intention to apply to the Court to stay proceedings, apply to the Court accordingly;

and if the Court, after hearing such of the parties as desire to be heard, is satisfied that justice is more likely to be done by the suit being instituted in some other Court, it may stay proceedings either finally or till further order, and make such order as it thinks fit as to the costs already incurred by the parties or any of them.

In such case, if the plaintiff so requires, the Court shall return the plaint with an endorsement thereon of the order staying proceedings.

Every such application shall be made at the earliest possible opportunity, and in all cases before the issues are settled; and any defendant not so applying shall be deemed to have acquiesced in the institution of the suit.'

18. That was also a case of defamation. The plaintiff who was a dismissed employee charged the defendant with having defamed him in Bombay by publishing in the Bombay Gazette a notice or his dismissal from the office of the Secretary and agent to the Company. The defendant was the Chairman of the said Company. There also the defence was justification. Before the filing of the said suit for defamation the plaintiff filed a suit against the said company claiming damages for wrongful dismissal. That suit was filed in the Court at Wardha, The defendant who was the chairman of the said company contended in the said application under Section 20 of the Code of Civil Procedure 1882 that the plaintiff should not be permit-ted to bring the present suit in Bombay andthat it could be more conveniently tried at Wardha. The Court proceeded on the basis that the plaintiff had the right to file the suit in the Bombay Court where the libel complained of by the plaintiff was published, and refused to make an order on the said summons and accordingly discharged the same. From a careful study of the said case it will appear that the said case was decided on the basis of the provisions of the then Section 20 of the Code of 1882 where it was provided that the Court might make such an order if it was satisfied that justice was more likely to be done by the suit being instituted in some other Court. There is no equivalent provision in the present Code of 1908. Accordingly, in my opinion, the case reported in (1888) ILR 13 Bom 178 cannot be cited as an authority in an application for revocation of leave under Clause 12 of the Letters Patent.

19. In my opinion, the averments in the petition make out a case whereby the Court can come to a conclusion that the balance of convenience would be overwhelmingly in favour of the defendant in having the suit heard in the Uttar Pradesh Court and the prejudice which will be suffered by the defendant would amount to injustice if the suit is allowed to be proceeded with in the Calcutta Court.

20. The next point that has been argued on behalf of the plaintiff is that if at this stage the leave is revoked then the plaintiff's suit if instituted at this stage at the Uttar Pradesh Court would be barred by limitation, It is necessary here to set out certain dates in order to appreciate the correct position. The suit was filed on 4th January, 1968, the writ of summons was served on 3rd February, 1968 and the present application was taken out on 18th March, 1968. It appears that the affidavit-in-opposition on behalf of the plaintiff was filed as late as on 7th May, 1968, and the affidavit-in-reply was filed on 4th June, 1968, and since thereafter no attempt was made by either party to have this application disposed of. The question is, should the plaintiff be heard to say now that injustice would be caused to the plaintiff if leave is revoked at this stage when the plaintiff himself has failed to expedite the hearing of this application and allowed the time to expire The further question is would the Court fetter its own hands on this point when otherwise the Court finds that the case is one where leave should be removed (revoked?)?

21. Reliance has been placed on a decision of this Court in the case of Shalimar Paints Ltd. v. Omprakash Singhania, reported in : AIR1967Cal372 where it was held that if there would be any possibility of the claim being barred by limitation if the claim was to be referred to arbitration on a stay of the suit, that fact would be a relevant and material consideration in exercising the discretion conferred on the Court under Section 34 of the Arbitration Act This pointalso came up recently for consideration before a division bench of this Court in the case of Union of India v. Promode Kumar Agarwalla in Appeal No. 234 of 1966 (Gal), where the Division Bench considered the said case of Shalimar Paints Ltd., amongst many other cases and held that the possibility of the claim being barred by limitation before the arbitrators was not a relevant consideration for the exercise of discretion under Section 34 of the Arbitration Act. In fact, this very point was previously considered by this Court as early as in the year 1949 in the case of Basantlal Jagatramka v. Dominion of India, unreported judgment D/- 4-5-1949 in Suit No. 2743 of 1948, (Cal), where S. B. Sinha, J., allowed an application for stay of a suit pending the arbitration proceedings even though the consideration of the suit being barred by limitation was raised and considered by him. There was an appeal from that order of S. B. Sinha, J., in the case of Basantlal Jagatramka v. Dominion of India reported in, : AIR1952Cal340 where the Division Bench of this Court observed as follows:--

'On the last day of limitation, the appellant brought a suit for damages for breach of 'contract. The respondent applied for a stay of the suit pending arbitration, The appellant objected to the stay being granted firstly on the ground that if a stay was granted his claim would be barred by limitation. The learned Judge very rightly pointed out that by filing the suit on the very last day of limitation the appellant took a very grave risk. It appears that the respondents were prepared to undertake not to raise this question of limitation before the arbitrators. But whether that undertaking is a valid one or not I need not consider.'

22. In my opinion, the Court's hands cannot be fettered, if the Court is otherwise inclined, on the facts of the case before it, I hold that leave should be revoked, by reason of the consideration that to do so would result in the plaintiffs case being barred by limitation. In my opinion, in an application for revoking leave under Clause 12 of the Letters Patent the possibility of the suit being barred by limitation should not be of any consideration for the Court if it otherwise comes to the conclusion that such leave should be revoked.

23. The last point that has been argued on behalf of the petitioner is that the suit is wholly mala fide. There are previous disputes between the parties for which litigations are still pending as between the defendant's father on the one side and the plaintiff and his wife on the other. It is contended that to satisfy the old grudge and to harass the defendant this suit has been filed particularly in Calcutta where it would put the defendant into serious difficulties in the matter of prosecuting this suit. Mr. Chatterjee relies on the case of Parasram Har-nandrai v. Chetandas, reported in : AIR1952Cal82 where it was observed that the Court could not decide the question of mala fide of the plaintiff in instituting the suit in a particular forum except at the trial of the action. That observation was taken from the judgment of Badhkaran Kabra v. A. Karamally & Sons, unreported judgment of the Division Bench of this Court D/- 19-11-1948 in Appeal' Nos. 83 and 84 of 1948 (Cal.).

24. That being the position I am bound by the said observation even though on the facts and circumstances of this case' I was inclined to come to the conclusion and to hold that the plaintiffs intention to file this suit in Calcutta evinced a mala fide motive on his part to satisfy the old grudge against the defendant.

25. By considering all these points, I have no hesitation to come to the conclusion that leave under Clause 12 of the Letters Patent which was already granted at the time of the institution of the suit should be revoked and I revoke the leave accordingly. It is recorded that Dr. Das appearing on behalf of the defendant has given an undertaking that the point of limitation will not be taken if the suit would be filed within a reasonable time from the date hereof at the proper Court in Uttar Pradesh. I need not consider the effect of such undertaking but it is recorded in the manner it was given. The plaintiff will bear the costs of this application and would pay the same to the defendant.


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