1. This is an application put forward on behalf of the defendants in an action brought against them for alleged infringement of trade designs, against the plaintiffs asking for security for costs in the sum of Rs. 5,000; or any other sum which is fit and proper.
2. The application is made Under the provisions of Order XXXV, Rule 1 of the 1st Schedule to the Civil Procedure Code which lays down, inter alia,
where at any stage of a suit it is shown that the plaintiff is residing out of British India and that the plaintiff does not possess immovable property within British India other than property in suit, the Court may order security for costs to be given.
3. The application is put forward upon affidavits although the first affidavit appears to be made on behalf of the plaintiff firm in answer I suppose directly to the petition. That affidavit is replied to by an affidavit sworn on the defendants' behalf in Calcutta.
4. The provisions of Order XXXV, Rule 1, are Said to be in principle the same as O. LXV, Rules 1 to 6b of the Rules of the Supreme Court ill England and on that basis I have been cited a dictum of Lord Justice Bowen in Ebrard V. Gassier (1885) 28 ch. D 232 : 54 LJCh. 441 : 52 LT 63 : 33 WR 287. The passage which is relied on in Lord Justice Bowon's judgment is this:
The plaintiffs being abroad were prima facie bound to give security for costs, and if they desire to escape from doing so, they were bound to show that they had substantial properly in this country not of a floating but of a fixed and permanent nature, which could be available in the event of the defendants being entitled to the costs of the action.
5. Lord Justice Fry who was sitting Lord Lord Justice Bowen was of the same opinion. He said that he had come to agree with Lord Justice Bowen with some reluctance, although he felt that he was bound by one of the cases which was cited to the Court.
6. I am asked to interpret the discretion which is indicated by the word 'may' in Order XXXV, Rule 1, in exactly the same way ; that is to say, that I am to look at it as a fettered discretion, a discretion which it would be difficult to escape from using in favour of the petitioner provided the preliminary requirements of the section as to the nature of the property are fulfilled.
7. I must respectfully decline to do this. I have come to the conclusion that the discretion which is allowed to the Court in this order is a discretion which is unqualified and unfettered. I see no reason to deduce from the language of our Order and rule that the view taken by the Judges in England should be slavishly followed. It seems to me that this rule is solely intended to protect defendants from plaintiffs carrying on business out of the jurisdiction of the Court when they can indicate to the Court that these persons are of no financial standing or substance. It is not disputed here in any way that the plaintiffs (about whose business I know nothing whatever except what is contained in the affidavits) are people of very considerable substance. They are said to be carrying on business, not only all over British India, but in many other parts of India. They are further said, and again this is not denied, to have a capital 'at their back of about 50,00,000 and they are said to have also a permanent place of business in Bombay from which place their commercial activities throughout India are controlled. In these circumstances I can see no reason whatever for acceding to the defendants' request here. It is dismissed with costs in any event in the plaintiffs' favour. Counsel's fee to be 4 gold mohurs. Attorney's costs to be taxed.