INDIAN PERFORMING RIGHTS SOCIETY LTD. Vs. SANJAY DALIA & ANR
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 10643-10644 of 2010, Judgment Date: Jul 01, 2015
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.10643-10644 OF 2010
Indian Performing Rights Society Ltd. ... Appellant
Vs.
Sanjay Dalia & Anr. ... Respondents
(With C.A. No.4912/2015 @ SLP [C] No.8253/2013)
J U D G M E N T
ARUN MISHRA, J.
1. Leave granted in SLP[C] No.8253 of 2013.
2. In the appeals, the question arising for consideration is as to the
interpretation of section 62 of the Copyright Act, 1957 and section 134(2)
of the Trade Marks Act, 1999 with regard to the place where a suit can be
instituted by the plaintiff.
3. The plaintiff/appellant in Civil Appeal Nos. 10643-44/2010 had filed
a suit praying for relief against defendant No.1 so as to prevent
infringement of the rights of the plaintiff without obtaining the licence.
The defendant owns cinema halls in Maharashtra and Mumbai where
infringement is alleged and the entire cause of action, as alleged in the
plaint, has arisen in Mumbai, Maharashtra.
4. Civil Suit FAO (OS) No. 359/2007 has been filed in the High Court at
Delhi, by virtue of the fact that the Branch Office of the plaintiff is
situated at Delhi and the plaintiff is carrying on the business at Delhi.
However, it is not disputed that the plaintiff’s Head Office is situated at
Mumbai. The objection was raised by the defendant with regard to the
territorial jurisdiction of the court at Delhi. The single Bench and the
Division Bench of the High Court have upheld the objection and held that
the suit should have been filed in the facts of the case, in the court at
Mumbai. Hence, the impugned order has been questioned in the appeals.
5. In Civil Appeal arising out of SLP [C] No. 8253/2013 – (Advance
Magazine Publishers Inc. & Anr. v. Just Lifestyle Pvt. Ltd.), the suit has
been filed with respect to the infringement of the trademark. The
registered office of “Vogue India” is in Mumbai. The magazine is processed
and published in Mumbai. It was submitted that because the plaintiff has
branch office at Delhi, it had sufficient ground for invoking the
jurisdiction under section 134 of the Trade Marks Act. The plaintiff filed
an application seeking an amendment in the plaint under Order 6 Rule 17 of
the Code of Civil Procedure so as to indicate how the court at Delhi would
have the jurisdiction. The magazine is sold and circulated to the
subscribers at Delhi. The application seeking amendment has also been
dismissed by the High Court as even if allowed, amended pleadings would not
confer jurisdiction upon the court. Merely situation of branch office is
not enough as no cause of action as per the plaint, has arisen in Delhi.
The Division Bench has allowed the appeal and set aside the order passed by
the Single Bench, allowing the amendment. The said order has been impugned
in SLP [C] No.8253/2013.
6. It was submitted by Shri T.R. Andhiarujina, learned senior counsel
representing the appellants, that a special right has been conferred under
section 62(2) of the Copyright Act and section 134 of the Trade Marks Act
containing non-obstante clause to the applicability of the Code of Civil
Procedure or any other law for the time being in force, and the plaintiff
has been conferred a right to file a suit where it carries on its business.
That cannot be whittled down by combining with it the cause of action. The
impediment of section 20 of the Code of Civil Procedure is not applicable.
Section 62(2) of the Copyright Act and section 134 of the Trade Marks Act
have no co-relation to the cause of action and suit can be filed where
plaintiff resides or carries on his business or personally works for gain.
The interpretation made by the High Court is contrary to the aforesaid
provisions. Convenience of the defendant is not a relevant consideration.
The binding decision of this Court in Exphar SA & Anr. v. Eupharma
Laboratories Ltd. & Anr [2004 (3) SCC 688] has been violated. The judgment
has not been taken into consideration though it was decided earlier to the
passing of the impugned decision. Reliance has also been placed on the
decisions of this Court in Dhodha House v. S.K. Maingi [2006 (9) SCC 41],
Dabur India Ltd. v. K.R. Industries [2008 (10) SCC 595] and various other
decisions of the High Court of Delhi viz., Smithkline Beecham & Anr. v.
Sunil Singhi & Anr. [2000 (1) PTC 321 (Del.)], Caterpillar Inc. v. Kailash
Nichani & Ors. [2002 (24) PTC 405 (Del.)], Intas Pharmaceuticals Ltd. v.
Allergan Inc. [132 (2006) Delhi Law Times 641] to contend that under the
aforesaid provisions accrual of cause of action wholly or in part is not
necessary at a place where the plaintiff chooses to file a suit where he is
carrying on business.
7. On behalf of the applicants in C.A. Nos. 10643-44/2010, Mr. Sudhir
Chandra, learned senior counsel, submitted that while interpreting section
62 of the Copyright Act and section 134(2) of the Trademarks Act, the
intention of Parliament is to be gathered from plain and natural meaning.
Heydon’s ‘rule of mischief’ is not attracted where the words of the statute
are clear and unambiguous. There is no challenge to the vires of section 62
of the Copyright Act. Thus, the court cannot invoke the doctrine of reading
down the provisions. Section 62 of the Copyright Act is a special
legislation and confers a special right on the plaintiff where it carries
on business or resides. Reading the Explanation to section 20 of the Code
of Civil Procedure into section 62 will do violence to the Copyright Act.
The requirement of cause of action or Explanation as to the corporation of
Section 20 C.P.C. cannot be added to the aforesaid provisions. Facts of
few cases cannot be considered so as to make interpretation of provisions.
Interpretation of the statute is to be made de hors the facts of individual
cases. The intention of legislation is also clear from the Parliamentary
Debates and where the law has held the field for a long time it should not
be unsettled. The decision in Dhodha House (supra) holds the field. As
such, if a different interpretation is to be made, the case should be
referred to a larger Bench of this Court. Non-obstante clause cannot be
diluted.
8. On the other hand, on behalf of the respondents, it was submitted
that abuse of provisions of section 62 of the Copyright Act and section 134
of the Trade Marks Act cannot be permitted at the hands of multi-national
corporations to harass the defendant/s. With respect to the suit being
filed by the Corporation, section 20 is not inapplicable. ‘Carrying on
business’ cannot be defined subjectively. Reliance has been placed upon
Patel Roadways Ltd., Bombay v. Prasad Trading Co. [1991 (4) SCC 270]. The
object of the Parliament behind enacting section 62 of the Copyright Act
and section 134 of the Trade Marks Act has to be taken into consideration
while interpreting the said provisions. The mischief rule of Heydon has
been pressed into service so as to prevent harassment of the defendants and
abuse of the said provisions. Court is duty-bound to avoid disproportionate
counter mischief while interpreting a provision. Public policy and
convenience to parties have to be taken into consideration. The
interpretation of provisions must be such so as to avoid hardship and
absurdity. The decisions relied upon by the appellants have been sought to
be distinguished.
9. The Code of Civil Procedure, 1908 contains the provisions under
section 20 with respect to institution of the suits where defendant resides
or cause of action arose. Section 20 of the Code of Civil Procedure reads
thus :
“Section 20 - Other suits to be instituted where defendants reside or cause
of action arises. -- Subject to the limitations aforesaid, every suit shall
be instituted in a Court within the local limits of whose jurisdiction --
(a) the defendant, or each of the defendants where there are more than
one, at the time of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of
the commencement of the suit, actually and voluntarily resides, or carries
on business, or personally works for gain, provided that in such case
either the leave of the Court is given, or the defendants who do not
reside, or carry on business, or personally work for gain, as aforesaid,
acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
[Explanation]. : A corporation shall be deemed to carry on business at its
sole or principal office in India or, in respect of any cause of action
arising at any place where it has also a subordinate office, at such
place.”
10. In order to amend and consolidate the law relating to copyrights, the
matter was referred to a Joint Committee. The Joint Committee of the Houses
submitted the report which contained the object of the provisions of
section 62 is that many authors are deterred from instituting infringement
proceedings because the court in which the proceedings are to be instituted
are at a considerable distance from the place of their ordinary residence.
Such impediments should be removed and the proceedings may be instituted in
the local court where the person instituting the proceedings ordinarily
resides, carries on business etc. Clause 61 of the Report of the said
Committee is extracted below :
“Clause 61 (Original clause 65). --Sub-clause (2) of the original clause 65
has been omitted and replaced by a new sub-clause. The Committee feels that
the provisions of the original sub-clause (2) would virtually make
registration of copyright compulsory and would be an undue restriction on
the owner of the copyright to exercise his rights. In the opinion of the
Committee many authors are deterred from instituting infringement
proceedings because the court in which such proceedings are to be
instituted is situated at a considerable distance from the place of their
ordinary residence. The Committee feels that this impediment should be
removed and the new sub-clause (2) accordingly provides that infringement
proceedings may be instituted in the district court within the local limits
of whose jurisdiction the person instituting the proceedings ordinarily
resides, carries on business, etc.”
(emphasis supplied by us)
Section 62 of the Copyright Act is extracted below :
“62. Jurisdiction of court over matters arising under this Chapter. --
(1) Every suit or other civil proceeding arising under this Chapter in
respect of the infringement of copyright in any work or the infringement of
any other right conferred by this Act shall be instituted in the district
court having jurisdiction.
(2) For the purpose of sub-section (1), a "district court having
jurisdiction" shall, notwithstanding anything contained in the Code of
Civil Procedure, 1908 (5 of 1908), or any other law for the time being in
force, include a district court within the local limits of whose
jurisdiction, at the time of the institution of the suit or other
proceeding, the person instituting the suit or other proceeding or, where
there are more than one such persons, any of them actually and voluntarily
resides or carries on business or personally works for gain.”
Section 134 of the Trade Marks Act is also extracted below :
“134. Suit for infringement, etc., to be instituted before District Court.
-- (1) No suit--
(a) for the infringement of a registered trade mark; or
(b) relating to any right in a registered trade mark; or
(c) for passing off arising out of the use by the defendant of any trade
mark which is identical with or deceptively similar to the plaintiff's
trade mark, whether registered or unregistered,
shall be instituted in any court inferior to a District Court having
jurisdiction to try the suit.
(2) For the purpose of clauses (a) and (b) of sub-section (1), a
"District Court having jurisdiction" shall, notwithstanding anything
contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law
for the time being in force, include a District Court within the local
limits of whose jurisdiction, at the time of the institution of the suit or
other proceeding, the person instituting the suit or proceeding, or, where
there are more than one such persons any of them, actually and voluntarily
resides or carries on business or personally works for gain.
Explanation.--For the purposes of sub-section (2), "person" includes the
registered proprietor and the registered user.”
11. Following portion of the Parliamentary Debates as to Copyright Act
has been relied upon :
“Shri P. Trikamdas: Ordinarily it should fall within the jurisdiction of
the court where the infringing copy was published. But there is nothing to
prevent Parliament from making a law, as for instance in the case of
divorce, and saying that the cause of action may also arise at any place
where the author resides or where the original publication took place, so
that you could drag the infringer to that court. Instead of making the
another run all over the country facing the infringer, the right may be
given to the injured party-the author-to sue the main in the place where
the author resides or where the first copy was published.
Dr. Raghubir Sinh: So you agree to that?
Shri P. Trikamdas: Yes, and I am obliged to you for asking me that
question.
Dr. Raghubir Sinh: Does Mr. Masani also approve of it?
Shri Masani : Yes.
Shri P. Trikamdas: It is desirable, also because it may act as a
deterrent on the infringer when he knows that he may have to go a few
hundred miles off to a High Court where the author lives or where the book
got published first.”
12. Considering the very language of section 62 of the Copyright Act and
section 134 of the Trade Marks Act, an additional forum has been provided
by including a District Court within whose limits the plaintiff actually
and voluntarily resides or carries on business or personally works for
gain. The object of the provisions was to enable the plaintiff to institute
a suit at a place where he or they resided or carried on business, not to
enable them to drag defendant further away from such a place also as is
being done in the instant cases. In our opinion, the expression
“notwithstanding anything contained in the Code of Civil Procedure” does
not oust the applicability of the provisions of section 20 of the Code of
Civil Procedure and it is clear that additional remedy has been provided to
the plaintiff so as to file a suit where he is residing or carrying on
business etc., as the case may be. Section 20 of the Code of Civil
Procedure enables a plaintiff to file a suit where the defendant resides or
where cause of action arose. Section 20(a) and section 20(b) usually
provides the venue where the defendant or any of them resides, carries on
business or personally works for gain. Section 20(c) of the Code of Civil
Procedure enables a plaintiff to institute a suit where the cause of action
wholly or in part, arises. The Explanation to Section 20 C.P.C. has been
added to the effect that Corporation shall be deemed to carry on business
at its sole or principal office in India or in respect of any cause of
action arising at any place where it has subordinate office at such place.
Thus, ‘corporation’ can be sued at a place having its sole or principal
office and where cause of action wholly or in part, arises at a place where
it has also a subordinate office at such place.
13. Learned author Mulla in the Code of Civil Procedure, 18th Edn., has
observed that under clauses (a) to (c) of section 20, plaintiff has a
choice of forum to institute a suit. The intendment of the Explanation to
section 20 of the Code of Civil Procedure is that once the corporation has
a subordinate office in the place where the cause of action arises wholly
or in part, it cannot be heard to say that it cannot be sued there because
it did not carry on business at that place. The linking of the place with
the cause of action in the Explanation where subordinate office of the
corporation is situated is reflective of the intention of the Legislature
and such a place has to be the place of the filing of the suit and not the
principal place of business. Ordinarily the suit has to be filed at the
place where there is principal place of business of the corporation.
14. ‘Corporation’ in the Explanation would mean not only the statutory
corporation but companies registered under the Companies Act, as held by
this Court in Patel Roadways Ltd., Bombay v. Prasad Trading Co. etc. [1991
(4) SCC 270] and New Moga Transport Co., through its Proprietor v. United
India Insurance Co. Ltd. & Ors. [2004 (4) SCC 677]. The domicile of the
company is fixed by the situation of its principal place of business as
held in Jones v. Scottish Accident Insurance Co. (1886) 17 QBD 421. In the
case of companies registered under the Companies Act, the controlling power
is, as a fact, generally exercised at the registered office, and that
office is therefore not only for the purposes of the Act, but for other
purposes, the principal place of business, as held in Watkins v. Scottish
Imperial Insurance Co. (1889) 23 QBD 285. A company may have subordinate or
branch offices in fifty different jurisdictions and it may be sued in any
one of such jurisdictions in respect of a cause of action arising there,
has been held in Peoples’ Insurance Co. v. Benoy Bhushan [AIR 1943 Cal.
190]; Home Insurance Co. v. Jagatjit Sugar Mills Co. [AIR 1952 Punj. 142];
and Prag Oil Mils Depot v. Transport Corpn. of India [AIR 1978 Ori. 167].
15. Accrual of cause of action is a sine qua non for a suit to be filed.
Cause of action is a bundle of facts which is required to be proved to
grant relief to the plaintiff. Cause of action not only refers to the
infringement but also the material facts on which right is founded. Section
20 of the CPC recognises the territorial jurisdiction of the courts inter
alia where the cause of action wholly or in part arises. It has to be
decided in each case whether cause of action wholly or in part arises at a
particular place. As held by this Court in Rajasthan High Court Advocates
Association v. Union of India & Ors. [AIR 2001 SC 416]. Thus, a plaintiff
can also file a suit where the cause of action wholly or in part arises.
16. On a due and anxious consideration of the provisions contained in
section 20 of the CPC, section 62 of the Copyright Act and section 134 of
the Trade Marks Act, and the object with which the latter provisions have
been enacted, it is clear that if a cause of action has arisen wholly or in
part, where the plaintiff is residing or having its principal
office/carries on business or personally works for gain, the suit can be
filed at such place/s. Plaintiff(s) can also institute a suit at a place
where he is residing, carrying on business or personally works for gain de
hors the fact that the cause of action has not arisen at a place where
he/they are residing or any one of them is residing, carries on business or
personally works for gain. However, this right to institute suit at such a
place has to be read subject to certain restrictions, such as in case
plaintiff is residing or carrying on business at a particular place/having
its head office and at such place cause of action has also arisen wholly or
in part, plaintiff cannot ignore such a place under the guise that he is
carrying on business at other far flung places also. The very intendment of
the insertion of provision in the Copyright Act and Trade Marks Act is the
convenience of the plaintiff. The rule of convenience of the parties has
been given a statutory expression in section 20 of the CPC as well. The
interpretation of provisions has to be such which prevents the mischief of
causing inconvenience to parties.
17. The intendment of the aforesaid provisions inserted in the Copyright
Act and the Trade Marks Act is to provide a forum to the plaintiff where he
is residing, carrying on business or personally works for gain. The object
is to ensure that the plaintiff is not deterred from instituting
infringement proceedings “because the court in which proceedings are to be
instituted is at a considerable distance from the place of their ordinary
residence”. The impediment created to the plaintiff by section 20 C.P.C. of
going to a place where it was not having ordinary residence or principal
place of business was sought to be removed by virtue of the aforesaid
provisions of the Copyright Act and the Trade Marks Act. Where the
Corporation is having ordinary residence/principal place of business and
cause of action has also arisen at that place, it has to institute a suit
at the said place and not at other places. The provisions of section 62 of
the Copyright Act and section 134 of the Trade Marks Act never intended to
operate in the field where the plaintiff is having its principal place of
business at a particular place and the cause of action has also arisen at
that place so as to enable it to file a suit at a distant place where its
subordinate office is situated though at such place no cause of action has
arisen. Such interpretation would cause great harm and would be juxtaposed
to the very legislative intendment of the provisions so enacted.
18. In our opinion, in a case where cause of action has arisen at a place
where the plaintiff is residing or where there are more than one such
persons, any of them actually or voluntarily resides or carries on business
or personally works for gain would oust the jurisdiction of other place
where the cause of action has not arisen though at such a place, by virtue
of having subordinate office, the plaintiff instituting a suit or other
proceedings might be carrying on business or personally works for gain.
19. At the same time, the provisions of section 62 of the Copyright Act
and section 134 of the Trade Marks Act have removed the embargo of suing at
place of accrual of cause of action wholly or in part, with regard to a
place where the plaintiff or any of them ordinarily resides, carries on
business or personally works for gain. We agree to the aforesaid extent the
impediment imposed under section 20 of the CPC to a plaintiff to institute
a suit in a court where the defendant resides or carries on business or
where the cause of action wholly or in part arises, has been removed. But
the right is subject to the rider in case plaintiff resides or has its
principal place of business/carries on business or personally works for
gain at a place where cause of action has also arisen, suit should be filed
at that place not at other places where plaintiff is having branch offices
etc.
20. There is no doubt about it that the words used in section 62 of the
Copyright Act and section 134 of the Trade Marks Act, ‘notwithstanding
anything contained in CPC or any other law for the time being in force’,
emphasise that the requirement of section 20 of the CPC would not have to
be complied with by the plaintiff if he resides or carries on business in
the local limits of the court where he has filed the suit but, in our view,
at the same time, as the provision providing for an additional forum,
cannot be interpreted in the manner that it has authorised the plaintiff to
institute a suit at a different place other than the place where he is
ordinarily residing or having principal office and incidentally where the
cause of action wholly or in part has also arisen. The impugned judgments,
in our considered view, do not take away the additional forum and
fundamental basis of conferring the right and advantage to the authors of
the Copyright Act and the Trade Marks Act provided under the aforesaid
provisions.
21. The provisions of section 62(2) of the Copyright Act and section 134
of the Trade Marks Act are pari materia. Section 134(2) of the Trade Marks
Act is applicable to clauses (a) and (b) of section 134(1) of the Trade
Marks Act. Thus, a procedure to institute suit with respect to section
134(1)(c) in respect of “passing off” continues to be governed by section
20 of CPC.
22. If the interpretation suggested by the appellant is accepted, several
mischiefs may result, intention is that the plaintiff should not go to far
flung places than that of residence or where he carries on business or
works for gain in order to deprive defendant a remedy and harass him by
dragging to distant place. It is settled proposition of law that the
interpretation of the provisions has to be such which prevents mischief.
The said principle was explained in Heydon’s case [76 ER 637]. According to
the mischief rule, four points are required to be taken into consideration.
While interpreting a statute, the problem or mischief that the statute was
designed to remedy should first be identified and then a construction that
suppresses the problem and advances the remedy should be adopted. The
Heydon’s mischief rule has been referred to in Interpretation of Statutes
by Justice G.P. Singh, 12th Edn., at pp. 124-125 thus :
“(b) Rule in Heydon’s case; purposive construction: mischief rule
When the material words are capable of bearing two or more
constructions the most firmly established rule for construction of such
words “of all statutes in general (be they penal or beneficial, restrictive
or enlarging of the common law)” is the rule laid down in Heydon’s case (76
ER 637) which has “now attained the status of a classic [Kanailal Sur v.
Paramnidhi Sadhukhan AIR 1957 SC 907]. The rule which is also known as
‘purposive construction’ or ‘mischief rule’ [Anderton v. Ryan 1985 2 ALL ER
355], enables consideration of four matters in construing an Act: (i) What
was the law before the making of the Act, (ii) What was the mischief or
defect for which the law did not provide, (iii) What is the remedy that the
Act has provided, and (iv) What is the reason of the remedy. The rule then
directs that the courts must adopt that construction which “shall suppress
the mischief and advance the remedy”. The rule was explained in the Bengal
Immunity Co. v. State of Bihar [AIR 1955 SC 661] by S.R. DAS, CJI as
follows: “It is a sound rule of construction of a statute firmly
established in England as far back as 1584 when Heydon’s case (supra) was
decided that for the sure and true interpretation of all Statutes in
general (be they penal or beneficial, restrictive or enlarging of the
common law) four things are to be discerned and considered:
1st - What was the common law before the making of the Act?
2nd - What was the mischief and defect for which the common law did not
provide?
3rd - What remedy the Parliament hath resolved and appointed to cure the
disease of the commonwealth, and
4th - The true reason of the remedy;
and then the office of all the judges is always to make such construction
as shall suppress the mischief, and advance the remedy, and to suppress
subtle inventions and evasions for continuance of the mischief, and pro
private commodo, and to add force and life to the cure and remedy,
according to the true intent of the makers of the Act, pro bono publico.
[Bengal Immunity Co. v. State of Bihar (supra)].”
23. Considering the first aspect of aforesaid principle, the common law
which was existing before the provisions of law were passed was section 20
of the CPC. It did not provide for the plaintiff to institute a suit except
in accordance with the provisions contained in section 20. The defect in
existing law was inconvenience/deterrence caused to the authors suffering
from financial constraints on account of having to vindicate their
intellectual property rights at a place far away from their residence or
the place of their business. The said mischief or defect in the existing
law which did not provide for the plaintiff to sue at a place where he
ordinarily resides or carries on business or personally works for gain, was
sought to be removed. Hence, the remedy was provided incorporating the
provisions of section 62 of the Copyright Act. The provisions enabled the
plaintiff or any of them to file a suit at the aforesaid places. But if
they were residing or carrying on business or personally worked for gain
already at such place, where cause of action has arisen, wholly or in part,
the said provisions have not provided additional remedy to them to file a
suit at a different place. The said provisions never intended to operate in
that field. The operation of the provisions was limited and their objective
was clearly to enable the plaintiff to file a suit at the place where he is
ordinarily residing or carrying on business etc., as enumerated above, not
to go away from such places. The Legislature has never intended that the
plaintiff should not institute the suit where he ordinarily resides or at
its Head Office or registered office or where he otherwise carries on
business or personally works for gain where the cause of action too has
arisen and should drag the defendant to a subordinate office or other place
of business which is at a far distant place under the guise of the fact
that the plaintiff/corporation is carrying on business through branch or
otherwise at such other place also. If such an interpretation is permitted,
as rightly submitted on behalf of the respondents, the abuse of the
provision will take place. Corporations and big conglomerates etc. might be
having several subordinate offices throughout the country. Interpretation
otherwise would permit them to institute infringement proceedings at a far
flung place and at unconnected place as compared to a place where plaintiff
is carrying on their business, and at such place, cause of action too has
arisen. In the instant cases, the principal place of business is,
admittedly, in Mumbai and the cause of action has also arisen in Mumbai.
Thus, the provisions of section 62 of the Copyright Act and section 134 of
the Trade Marks Act cannot be interpreted in a manner so as to confer
jurisdiction on the Delhi court in the aforesaid circumstances to entertain
such suits. The Delhi court would have no territorial jurisdiction to
entertain it.
24. The avoidance of counter mischief to the defendant is also necessary
while giving the remedy to the plaintiff under the provisions in question.
It was never visualised by the law makers that both the parties would be
made to travel to a distant place in spite of the fact that the plaintiff
has a remedy of suing at the place where the cause of action has arisen
where he is having head office/carrying on business etc. The provisions of
the Copyright Act and the Trade Marks Act provide for the authors/trade
marks holders to sue at their ordinary residence or where they carry on
their business. The said provisions of law never intended to be oppressive
to the defendant. The Parliamentary Debate quoted above has to be
understood in the manner that suit can be filed where the plaintiff
ordinarily resides or carries on business or personally works for gain.
Discussion was to provide remedy to plaintiff at convenient place; he is
not to travel away. Debate was not to enable plaintiff to take defendant to
farther place, leaving behind his place of residence/business etc. The
right to remedy given is not unbriddled and is subject to the prevention of
abuse of the aforesaid provisions, as discussed above. Parliament never
intended that the subject provisions to be abused by the plaintiff by
instituting suit in wholly unconnected jurisdiction. In the instant cases,
as the principal place of business is at Mumbai the cause of action is also
at Mumbai but still the place for suing has been chosen at Delhi. There may
be a case where plaintiff is carrying on the business at Mumbai and cause
of action has arisen in Mumbai. Plaintiff is having branch offices at
Kanyakumari and also at Port Blair, if interpretation suggested by
appellants is acceptable, mischief may be caused by such plaintiff to drag
a defendant to Port Blair or Kanyakumari. The provisions cannot be
interpreted in the said manner devoid of the object of the Act.
25. It was also submitted that Heydon’s rule is not applicable where the
words of the statute are clear. Reliance has been placed on M/s. Hiralal
Rattanlal etc. etc. v. State of U.P. and Anr. etc. [1973 (1) SCC 216] in
which it has been observed that when the provision is unambiguous and if
from the provision legislative intent is clear, the court need not call
into aid the other rule of construction of statutes such as that of
‘mischief’. However, we opine, when two interpretations are possible, the
court has to adopt the one which furthers the object as provided in the
statute itself.
26. Reliance has been placed on Padmasundara Rao (Dead) & Ors.v. State of
Tamil Nadu and Ors. [AIR 2002 SC 1334] in which it has been observed that
the intention of the Legislature must be found in the words used by the
Legislature itself. Reliance has also been placed on Grasim Industries Ltd.
v. Collector of Customs, Bombay [2002 (4) SCC 297] in which it has been
observed that wherever the language is clear, the intention of the
Legislature is to be gathered from the language used. While doing so, what
has been said as also what has not been said, has to be noted. There is no
dispute with the aforesaid proposition. However, the object of the Act and
the intention of the Legislature is clear which is to the otherwise.
27. Bennion on Statutory Interpretation in section 318 in Part XXI has
mentioned that strict construction may be avoided or at least reduced by
limiting the remedy where a counter mischief would arise if the remedy
provided by the Act was eschewed widely. It may appear to the court that
one of the opposing construction of the enactment, if adopted, would
operate a mischief of its own. The prospects of this would constitute a
negative factor in weighing the applicability of the construction in
question. The court also has in mind the consequences for the public
welfare. Bennion has discussed thus :
“General presumption against ‘absurdity’ For the general presumption that
an ‘absurd’ result is not intended, of which the present section depicts
one aspect, see Code s.312.
Mischief As to the ‘mischief’ to which an enactment is directed see
Code s.289.
Counter-mischief Clearly it would be absurd to suppose that Parliament
intended to abolish one mischief only at the cost of establishing another
which is just as bad, or even worse. Many legal rules have adverse side-
effects, and the policy of the law is to discard possible rules whose
disadvantages outweigh their benefits.
Example 318.1 Lord Bingham of Cornhill said:
‘My Lords, s.4 of the Statute of Frauds was enacted in 1677 to address a
mischief facilitated, it seems, by the procedural deficiencies of the day….
It quickly became evident that if the seventeenth century solution
addressed one mischief it was capable of giving rise to another….’
Regulatory Acts Some types of remedy necessarily carry in their train
corresponding drawbacks. One of the most frequent and inescapable of these
is the loss of freedom that accompanies a regulatory measure. Such
consequences are manifest, and must be treated as part of Parliament’s
intention.
Strict construction Where a counter-mischief would arise if the
remedy provided by the Act were construed widely, the court may avoid or at
least reduce it by limiting the remedy.
Example 318.2 Section 1 of the Domestic Violence and Matrimonial
Proceedings Act 1976 (repealed) empowered the county court to make orders
excluding a violent husband from the matrimonial home. No limit was
specified for the duration of such exclusion orders. The courts held that,
to reduce the counter-mischief of keeping a man out of his own home,
exclusion orders should be made only for a brief period. In one case
Viscount Dilhorne inferred that the purpose of the 1976 Act was ‘immediate
relief not permanent resolution’. In another case Ormrod LJ said the 1976
Act was to be regarded as ‘a short-term remedy essentially’.
It may appear to the court that one of the opposing constructions of the
enactment, if adopted, would create a mischief of its own. It is not
unusual for a construction contended for by one of the parties to have as
one of its consequences the infliction of a serious injustice on the other
party. The prospect of this would constitute a negative factor in weighing
the applicability of the construction in question. The court also has in
mind the consequences for the public welfare.
x x x x x
Often it is reasonable to assume that the counter-mischief that has arisen
was quite unforeseen by Parliament. Enacted law suffers by comparison with
unwritten law in that it involves Laying down in advance an untried
remedy.....”
As observed, such a counter mischief to the defendant was
unforeseen by Parliament and it is the court’s duty to mitigate the counter
mischief.
28. Strong reliance has been placed by the appellants on the discussions
made by Bennion on avoiding disproportionate counter-mischief at page 1006
thus :
“the Court seeks to avoid a construction that cures the mischief the
enactment was designed to remedy only at the cost of setting up a
disproportionate counter-mischief since this is unlikely to have been
intended by Parliament. Sometimes there are overriding reasons for applying
such a construction, for example, where the Parliament really intended it
or a literal meaning is too strong.”
We find no overriding reasons to apply construction solicited
by the appellants as that was never intended by the Parliament.
29. Bennion has also observed that public policy must inform the court’s
interpretation of the relevant statutory provision and that public policy
ascertained from the Act of the Parliament. In our opinion, right to
approach the court/pursuing the legal remedy cannot be made a farce or
oppressive as that would not be conducive for the effective administration
of justice.
30. Justice G.P. Singh in ‘Principles of Statutory Interpretation’, 12th
Edition, has observed that regard be had to the subject and object of the
Act. The court’s effort is to harmonise the words of the statute with the
subject of enactment and the object the Legislature has in view. When two
interpretations are feasible, the court will prefer the one which advances
the remedy and suppresses the mischief as envisioned. The relevant portion
is extracted below :
“As stated earlier (Chapter 1, title 2 ‘Intention of the Legislature’, text
and notes 57 to 69, pages 14 to 17) and as approved by the Supreme Court:
"The words of a statute, when there is doubt about their meaning, are to be
understood in the sense in which they best harmonise with the subject of
the enactment and the object which the Legislature has in view. Their
meaning is found not so much in a strict grammatical or etymological
propriety of language, nor even in its popular use, as in the subject or
in the occasion on which they are used, and the object to be attained".
[Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, AIR
1958 SC 353, p.356 ...] The courts have declined "to be bound by the
letter, when it frustrates the patent purposes of the statute". [Cabell v.
Markham, 148 F 2d 737 92nd cir 1945), (Judge Learned Hand). In the words
of SHAH, J.: "It is a recognised rule of interpretation of statutes that
expressions used therein should ordinarily be understood in a sense in
which they best harmonise with the object of the statute, and which
effectuate the object of the Legislature". [New India Sugar Mills Ltd. v.
Commissioner of Sales Tax, Bihar, AIR 1963 SC 1207, p. 1213 ...].
Therefore when two interpretations are feasible the court will prefer that
which advances the remedy and suppresses the mischief as the Legislature
envisioned. [Carew & Company v. Union of India, AIR 1975 SC 2260, p.
2270...]. The Court should adopt an object oriented approach keeping in
mind the principle that legislative futility is to be ruled out so long as
interpretative possibility permits. (Busching Schmitz Private Ltd. v. P.T.
Menghani, AIR 1977 SC 1569, pp. 1575, 1576...]. The object oriented
approach, however, cannot be carried to the extent of doing violence to the
plain language used by rewriting the section or substituting words in place
of the actual words used by the Legislature. [CIT v. Budhraja and Company,
AIR 1993 SC 2529, p. 2535].
Having regard to the object of the U.P. Bhoodan Yagna Act, 1953 to
implement the Bhoodan movement, which aimed at distribution of land to
landless labourers who were versed in agriculture and who had no other
means of subsistence, it was held that the expression 'landless persons' in
section 14, which made provision for grant of land to landless persons,
was limited to landless labourers as described above and did not include a
landless businessman residing in a city. [U.P. Bhoodan Yagna Samiti v. Braj
Kishore, AIR 1988 SC 2239].”
31. In Busching Schmitz Private Ltd. v. P.T. Menghani [1977 (2) SCC 835],
it has been observed that purposive interpretation may be made having
regard to the object of the provisions and to avoid any obvious lacuna.
32. The learned author Justice G.P. Singh in Interpretation of Statutes,
12th Edn. has also observed that it is the court’s duty to avoid hardship,
inconvenience, injustice, absurdity and anomaly while selecting out of
different interpretations. The doctrine must be applied with great care and
in case absurd inconvenience is to be caused that interpretation has to be
avoided. Cases of individual hardship or injustice have no bearing for
enacting the natural construction. The relevant discussion at pages 132-133
and 140-142 is extracted hereunder :
“(a) Hardship, inconvenience, injustice, absurdity and
anomaly to be avoided
In selecting out of different interpretations "the court will adopt that
which is just, reasonable and sensible rather than that which is none of
those things" [Holmes v. Bradfield Rural District Council, (1949) 1 All ER
381, p. 384] as it may be presumed "that the Legislature should have used
the word in that interpretation which least offends our sense of justice".
[Simms v. Registrar of Probates, (1900) AC 323, p. 335 CPC] If the
grammatical construction leads to some absurdity or some repugnance or
inconsistency with the rest of the instrument, it may be departed from so
as to avoid that absurdity, and inconsistency. [Grey v. Pearson, (1857) 6
HLC 61, p. 106]. Similarly, a construction giving rise to anomalies should
be avoided. [Veluswami Thevar v. G.Raja Nainar, AIR 1959 SC 422, pp. 427,
428]. As approved by VENKATARAMA AIYAR, J., "Where the language of a
statute, in its ordinary meaning and grammatical construction, leads to a
manifest contradiction
of the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or injustice, presumably not intended,
a construction may be put upon it which modifies the meaning of the words,
and even the structure of the sentence.” [Tirath Singh v. Bachittar Singh,
AIR 1955 SC 830].”'
x x x x x
“Consideration of hardship, injustice or absurdity as avoiding a particular
construction is a rule which must be applied with great care. "The argument
ab inconvenienti", said LORD MOULTON, "is one which requires to be used
with great caution". [Vacher & Sons v. London Society of Compositors,
(1913) AC 107]. Explaining why great caution is necessary LORD MOULTON
further observed: "There is a danger that it may degenerate into a mere
judicial criticism of the propriety of the Acts of Legislature. We have to
interpret statutes according to the language used therein, and though
occasionally the respective consequences of two rival interpretations may
guide us in our choice in between them, it can only be where, taking the
Act as a whole and viewing it in connection with existing state of the law
at the time of the passing of the Act, we can satisfy ourselves that the
words cannot have been used in the sense to which the argument points".
[Vacher & Sons v. London Society of Compositors, (1913) AC 107]. According
to BRETT, L.J., the inconvenience necessitating a departure from the
ordinary sense of the words should not only be great but should also be
what he calls an “absurd inconvenience”. Moreover, individual cases of
hardship or injustice have no bearing for rejecting the natural
construction, [Young & Co. v. Leamington Spa Corporation, (1993) 8 AC 517],
and it is only when the natural construction leads to some general
hardship or injustice and some other construction is reasonably open that
the natural construction may be departed from. It is often found that laws
enacted for the general advantage do result in individual hardship; for
example laws of Limitation, Registration, Attestation although enacted for
the public benefit, may work injustice in particular cases but that is
hardly any reason to depart from the normal rule to relieve the supposed
hardship or injustice in such cases. [Lucy v. Henleys Telegraph Works,
(1969) 3 All ER 456]. "It is the duty of all courts of justice", said LORD
CAMPBELL, "to take care for the general good of the community, that hard
cases do not make bad law". [East India Company v. Odichurn Paul, 7 Moo PC
85]. 'Absurdity' according to WILLES, J., should be understood "in the same
sense as repugnance that is to say something which would be so absurd with
reference to the other words of the statute as to amount to a repugnance".
[Christopherson v. Lotinga, (1864) 33 LJ CP 121]. "Absurdity", said LORD
GREENE, M.R., "like public policy, is a very unruly horse". [Grundt v.
Great Boulder Proprietary Gold Mines Ltd., (1948) 1 All ER 21]. He
proceeded to add: "There is one rule, I think which is clear that, although
the absurdity or the non-absurdity of one conclusion as compared with
another may be and very often is, of assistance to the court in choosing
between two possible meanings of ambiguous words, it is a doctrine which
must be applied with great care, remembering that judges may be fallible in
this question of an absurdity and in any event it must not be applied so as
to result in twisting language into a meaning which it cannot bear. It is a
doctrine which must not be used to re-write the language in a way different
from that in which it was originally framed". [Grundt v. Great Boulder
Proprietary Gold Mines Ltd. (supra)]. The alternative construction
contended for must be such which does not put an undue strain on the words
used; [Kanailal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907] and does not
require recasting of the Act or any part of it. It must be possible to
spell the meaning contended for out of the words actually used. [Shamrao V.
Parulekar v. District Magistrate, Thana AIR 1952 SC 324].
No doubt in cases of ambiguity that construction which better serves the
ends of fairness and justice will be accepted, but otherwise it is for the
Legislature in forming its policy to consider these elements. [IRC v.
Mutual Investment Co. (1966) 3 All ER 265]. If no alternative construction
is open, the court cannot ignore a statutory provision "to relieve what it
considers a distress resulting from its operation; a statute has to be
given effect to whether the court likes it or not". [Martin Burn Ltd. v.
Calcutta Corporation, AIR 1966 SC 524]. The function of the court is to
find out what is legal and not what is right. [Chandavarkar Sita Ratna Rao
v. Ashalata S.Guram, (1986) 4 SCC 447]. It is presumed that a legislative
body intends which is the necessary effect of its enactments; the object,
the purpose and the intention of the enactment is the same; it need not be
expressed in any recital or preamble; and it is not competent for any court
judicially to ascribe any part of the legal operation of the statute to
inadvertence. [Kariapper v. Wijesinha, (1967) 3 All ER 485].
The Courts should as far as possible avoid a construction which results in
anomalies. [N.T.Veluswami Thevar v. G.Raja Nainar, AIR 1959 SC 422].”
33. Bennion on ‘Statutory Interpretation’ has mentioned law to same
effect under section 312 and has observed that there is a presumption that
absurd result is not intended and in section 314 it has been observed that
the court has to avoid an inconvenient result while interpreting a
provision. It was stated that it can be presumed that Parliament intends
that while construing an enactment the court will avoid a construction that
is unworkable or impracticable, inconvenient, anomalous or illogical as the
same is unlikely to be intended by the Parliament. In Rosali V. v. Taico
Bank and Ors. [2009 (17) SCC 690], this Court referring to Halsbury’s
Commonsense construction rule held that it is a well-settled principle of
law that common sense construction rule should be taken recourse in certain
cases.
34. This Court in Sonic Surgical v. National Insurance Co. Ltd. [2010 (1)
SCC 135] has also laid down law to the same effect and has discussed the
term ‘branch office’ used in section 17(2) of the Consumer Protection Act,
1986 in the context of cause of action. Section 17(2) of the said Act
reads thus :
“17(2) A complaint shall be instituted in a State Commission within the
limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are
more than one, at the time of the institution of the complaint, actually
and voluntarily resides or carries on business or has a branch office or
personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the
time of the institution of the complaint, actually and voluntarily resides,
or carries on business or has a branch office or personally works for gain,
provided that in such case either the permission of the State Commission is
given or the opposite parties who do not reside or carry on business or
have a branch office or personally works for gain, as the case may be,
acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.]”
This Court while interpreting the provision held that the
term ‘branch office’ as used in the amended section 17(2)(b) has to be
interpreted to mean only that branch office where the cause of action has
arisen. Thus, the court departed from the plain and literal meaning of the
words of section 17(2)(b) of the Consumer Protection Act in order to avoid
absurdity. The decision in Somic Surgical (supra) has been approved by this
Court in State of Madhya Pradesh and Anr. v. Narmada Bachao Andolan & Anr.
[2011 (7) SCC 639] inasmuch as this Court has observed that in case the
natural meaning leads to mischievous consequences, it must be avoided by
accepting other permissible construction.
35. Reliance has been placed by the appellants on the decision in Union
of India & Anr. v. Deoki Nandan Aggarwal [1992 Supp. (1) SCC 323] so as to
contend that the court cannot usurp the legislative intention and cannot
supply omissions to a statute. There is no dispute with the aforesaid
proposition. However, we are simply interpreting the provisions considering
the object of the Act.
36. Respondents have placed reliance on Patel Roadways Ltd., Bombay v.
Prasad Trading Co. etc. [1991 (4) SCC 270] in which this Court has
considered the provisions of section 20 of the CPC. This Court has observed
thus :
“12. We would also like to add that the interpretation sought to be placed
by the appellant on the provision in question renders the Explanation
totally redundant. If the intention of the legislature was, as is said on
their behalf, that a suit against a corporation could be instituted either
at the place of its sole or principal office (whether or not the
corporation carries on business at that place) or at any other place where
the cause of action arises, the provisions of clauses (a), (b) and (c)
together with the first part of the Explanation would have completely
achieved the purpose. Indeed the effect would have been wider. The suit
could have been instituted at the place of the principal office because of
the situation of such office (whether or not any actual business was
carried on there). Alternatively, a suit could have been instituted at the
place where the cause of action arose under clause (c) (irrespective of
whether the corporation had a subordinate office in such place or not).
This was, therefore, not the purpose of the Explanation. The Explanation is
really an Explanation to clause (a). It is in the nature of a clarification
on the scope of clause (a) viz. as to where the corporation can be said to
carry on business. This, it is clarified, will be the place where the
principal office is situated (whether or not any business actually is
carried on there) or the place where a business is carried on giving rise
to a cause of action (even though the principal office of the corporation
is not located there) so long as there is a subordinate office of the
corporation situated at such place. The linking together of the place where
the cause of action arises with the place where a subordinate office is
located clearly shows that the intention of the legislature was that, in
the case of a corporation, for the purposes of clause (a), the location of
the subordinate office, within the local limits of which a cause of action
arises, is to be the relevant place for the filing of a suit and not the
principal place of business. If the intention was that the location of the
sole or principal office [pic]as well as the location of the subordinate
office (within the limits of which a cause of action arises) are to be
deemed to be places where the corporation is deemed to be carrying on
business, the disjunctive “or” will not be there. Instead, the second part
of the Explanation would have read “and, in respect of any cause of action
arising at any place where it has a subordinate office, also at such
place”.
13. As far as we can see the interpretation which we have placed on this
section does not create any practical or undue difficulties or disadvantage
either to the plaintiff or a defendant corporation. It is true that,
normally, under clauses (a) to (c), the plaintiff has a choice of forum and
cannot be compelled to go to the place of residence or business of the
corporation and can file a suit at a place where the cause of action
arises. If a corporation desires to be protected from being dragged into
litigation at some place merely because a cause of action arises there it
can save itself from such a situation by an exclusion clause as has been
done in the present case. The clear intendment of the Explanation, however,
is that, where the corporation has a subordinate office in the place where
the cause of action arises, it cannot be heard to say that it cannot be
sued there because it does not carry on business at that place. It would be
a great hardship if, in spite of the corporation having a subordinate
office at the place where the cause of action arises (with which in all
probability the plaintiff has had dealings), such plaintiff is to be
compelled to travel to the place where the corporation has its principal
place. That place should be convenient to the plaintiff; and since the
corporation has an office at such place, it will also be under no
disadvantage. Thus the Explanation provides an alternative locus for the
corporation’s place of business, not an additional one.”
This Court has considered while interpreting the provision of
section 20 CPC that no practical or undue difficulties or disadvantage
either to the plaintiff or the defendant corporation could be caused. It
has also been observed that it would be a great hardship if in spite of the
corporation having a subordinate office at a place where the cause of
action arises, such plaintiff is compelled to travel where the corporation
has its principal office. That place should be convenient to the plaintiff
and the corporation has an office at such place, will also be under no
disadvantage.
37. Under clauses (a) to (c) of section 20 CPC, a plaintiff has a choice
of forum and cannot be compelled to go to a place of business or residence
of the defendant and can file a suit where the cause of action arises. The
intendment of the Explanation has also been taken into consideration by
this Court in New Moga Transport Co. (supra) thus :
“9. Normally, under clauses (a) to (c) the plaintiff has a choice of forum
and cannot be compelled to go to the place of residence or business of the
defendant and can file a suit at a place where the cause of action arises.
If the defendant desires to be protected from being dragged into a
litigation at some place merely because the cause of action arises there it
can save itself from such a situation by an exclusion clause. The clear
intendment of the Explanation, however, is that where the corporation has a
subordinate office in the place where the cause of action arises it cannot
be heard to say that it cannot be sued there because it does not carry on
business at that place. Clauses (a) and (b) of Section 20 inter alia refer
to a court within the local limits of whose jurisdiction the defendant
inter alia “carries on business”. Clause (c) on the other hand refers to a
court within the local limits of whose jurisdiction the cause of action
wholly or in part arises.
10. On a plain reading of the Explanation to Section 20 CPC it is clear
that the Explanation consists of two parts: (i) before the word “or”
appearing between the words “office in India” and the words “in respect
of”, and (ii) the [pic]other thereafter. The Explanation applies to a
defendant which is a corporation, which term would include even a company.
The first part of the Explanation applies only to such corporation which
has its sole or principal office at a particular place. In that event, the
court within whose jurisdiction the sole or principal office of the company
is situate will also have jurisdiction inasmuch as even if the defendant
may not actually be carrying on business at that place, it will be deemed
to carry on business at that place because of the fiction created by the
Explanation. The latter part of the Explanation takes care of a case where
the defendant does not have a sole office but has a principal office at one
place and has also a subordinate office at another place. The expression
“at such place” appearing in the Explanation and the word “or” which is
disjunctive clearly suggest that if the case falls within the latter part
of the Explanation it is not the court within whose jurisdiction the
principal office of the defendant is situate but the court within whose
jurisdiction it has a subordinate office which alone has the jurisdiction
“in respect of any cause of action arising at any place where it has also a
subordinate office”.
38. In Exphar SA (supra), this Court had considered the provisions
contained in section 62 of the Copyright Act and has observed that the word
‘include’ shows that the jurisdiction for the purpose of section 62 is
wider than that of the court as prescribed under the Code of Civil
Procedure, 1908. This Court has laid down thus:
“12. We would like to emphasise the word "include". This shows that the
jurisdiction for the purposes of Section 62 is wider than that of the Court
as prescribed under the Code of Civil Procedure, 1908. The relevant extract
of the report of the Joint Committee published in the Gazette of India
dated 23-11-1956 which preceded and laid the foundation for
Section 62(2) said :
"In the opinion of the Committee many authors are deterred from
instituting infringement proceedings because the court in which such
proceedings are to be instituted is situated at a considerable distance
from the place of their ordinary residence. The Committee feels that this
impediment should be removed and the new sub-clause (2) accordingly
provides that infringement proceedings may be instituted in the District
Court within the local limits of whose jurisdiction the person instituting
the proceedings ordinarily resides, carries on business etc."
13. It is, therefore, clear that the object and reason for the introduction
of sub-section (2) of Section 62 was not to restrict the owners of the
copyright to exercise their rights but to remove any impediment from their
doing so. Section 62(2) cannot be read as limiting the jurisdiction of the
District Court only to cases where the person instituting the suit or other
proceeding, or where there are more than one such persons, any of them
actually and voluntarily resides or carries on business or presently works
for gain. It prescribes an additional ground for attracting the
jurisdiction of a court over and above the “normal” grounds as laid down in
Section 20 of the Code.”
This Court held therein that the Delhi court had jurisdiction
since the plaintiff had averred that it has its registered office in Delhi
and seize and desist notice was also received by the appellants at Delhi.
The decision in Exphar SA (supra) does not oust the applicability of the
provisions of section 20 of the Code of Civil Procedure as this Court has
laid down that section 62 has prescribed an additional ground other than
the normal ground prescribed in section 20 of the CPC. The question posed
before us in the instant cases is different. In our considered opinion, the
decision in Exphar SA (supra) buttresses the interpretation adopted by us.
39. Reliance has also been placed on decision in Dhodha House (supra) in
which this Court considered the question about the maintainability of the
composite suit for infringement of the Copyright Act, and the Trade and
Merchandise Marks Act, 1958. The Trade Marks Act, 1999 was also considered.
This Court has laid down that composite suit may be maintainable under the
Copyright Act and the Trade and Merchandise Act, 1958 but that may not be
relevant for the purpose of determining the question of a forum where a
suit can be instituted. In case the court is not having jurisdiction under
one of the Acts, merely by combining the causes of action, the jurisdiction
cannot be conferred upon the court. In that context, this Court has
observed thus :
“20. The jurisdiction of the District Court to determine a lis under the
1957 Act as also the 1958 Act must, thus, be instituted where the whole or
a part of cause of action arises. Sub-section (2) of Section 62 of the 1957
Act provides for an additional forum therefore in the following terms:
"(2) For the purpose of sub-section (1), a "district court having
jurisdiction" shall, notwithstanding anything contained in the Code of
civil Procedure, 1908 (5 of 1908), or any other law for the time being in
force, include a district court within the local limits of whose
jurisdiction, at the time of the institution of the suit or other
proceeding, the person instituting the suit or other proceeding or, where
there are more than one such persons, any of them actually and voluntarily
resides or carries on business or personally works for gain."
Admittedly, no such additional forum had been created in terms of the
provisions of the 1958 Act.
x x x x x
44. A cause of action in a given case both under the 1957 Act as also
under the 1958 Act may be overlapping to some extent. The territorial
jurisdiction conferred upon the court in terms of the provisions of the
Code of civil Procedure indisputably shall apply to a suit or proceeding
under the 1957 Act as also the 1958 Act. Sub-section (2) of Section 62 of
the 1957 Act provides for an additional forum. Such additional forum was
provided so as to enable the author to file a suit who may not otherwise be
in a position to file a suit at different places where his copyright was
violated. The Parliament while enacting the Trade and Merchandise Marks Act
in the year 1958 was aware of the provisions of the 1957 Act. It still did
not choose to make a similar provision therein. Such an omission may be
held to be a conscious action on the part of the Parliament. The intention
of the Parliament in not providing for an additional forum in relation to
the violation of the 1958 Act is, therefore, clear and explicit. The
Parliament while enacting the Trade Marks Act, 1999 provided for such an
additional forum by enacting sub-section (2) of Section 134 of the Trade
Marks Act. The court shall not, it is well well-settled, readily presume
the existence of jurisdiction of a court which was not conferred by the
statute. For the purpose of attracting the jurisdiction of a court in terms
of sub-section (2) of Section 62 of the 1957 Act, the conditions precedent
specified therein must be fulfilled, the requisites wherefor are that the
plaintiff must actually and voluntarily reside to carry on business or
personally work for gain.
x x x x x
47. A corporation in view of Explanation appended to Section 20 of the Code
would be deemed to be carrying on business inter alia at a place where it
has a subordinate office. Only because, its goods are being sold at a place
would thus evidently not mean that it carries a business at that place.”
(emphasis supplied by us)
In Dhodha House (supra), the question which is posed before
us did not come up for consideration and it has been observed that the Act
provides for an additional forum. Such additional forum was provided so as
to enable a plaintiff who may not be otherwise in a position to file a suit
at different places where the copyright was violated. We have anxiously
considered the aforesaid observations made and the object of the Act, we
find that the interpretation made by us does not militate against the
observations made by this Court in Dhodha House (supra), the precise
question which is before us, was not involved in the aforesaid case. A
decision is not to be construed like a statute nor by inferential process
it can be assumed that this Court has decided the question also which is
before this Court in the instant cases.
40. This Court in Paragon Rubber Industries & Ors. v. Pragathi Rubber
Mills & Ors. [2014 (57) PTC 1(SC)] held that a composite suit would not be
maintainable unless the court had jurisdiction to entertain the suit in
relation to both the Copyright Act and the Trade Marks Act. No such
question is involved in the cases.
41. In Dabur India Ltd. (supra), the question was whether composite suit
of infringement of copyright and passing off could be filed in a court
having jurisdiction where the plaintiff actually and voluntarily resides or
carries on business or personally works for gain as provided under section
62 of the Copyright Act. This Court answered the question in the negative,
dismissed the appeal and held that Order 2 Rules 2 and 3 of the CPC can be
exercised only in the event when the court has otherwise jurisdiction in
respect of the cause of action wherefor the action has been brought. This
Court has observed with respect to section 62 of the Copyright Act thus :
“32. There cannot be any doubt whatsoever that the Parliament having
inserted sub-section (2) in Section 62 of the 1957 Act, the jurisdiction of
the court thereunder would be wider than the one under Section 20 of the
Code. The object and reasons for enactment of sub-section (2) of Section 62
would also appear from the report of the Committee, as has been noticed by
this Court being a provision which has been specially designed to confer an
extra benefit upon the authors who were not in a position to instate
copyright infringement proceeding before the courts. It is in the
aforementioned context the law laid down by this Court in paragraph 13
of Dhodha House (supra) must be understood.
x x x x x
34. What then would be meant by a composite suit? A composite suit would
not entitle a court to entertain a suit in respect whereof it has no
jurisdiction, territorial or otherwise. Order 2 Rule 3 of the Code
specifically states so and, thus, there is no reason as to why the same
should be ignored. A composite suit within the provisions of the 1957 Act
as considered in Dhodha House (supra), therefore, would mean the suit which
is founded on infringement of a copyright and wherein the incidental power
of the court is required to be invoked. A plaintiff may seek a remedy
which can otherwise be granted by the court. It was that aspect of the
matter which had not been considered in Dhodha House (supra) but it never
meant that two suits having different causes of action can be clubbed
together as a composite suit.”
(emphasis supplied by us)
This Court in Dabur India (supra) with respect to the
maintainability of a composite suit observed that a composite suit would
not entitle a court to entertain a suit in respect whereof it has no
jurisdiction territorial or otherwise. The decision in Dabur India (supra)
is of no help to the cause espoused by the appellants.
42. Now, we advert to various decisions of High Courts:
(a) The decision of the Delhi High Court in Smithkline Beecham (supra)
has been relied upon. As the registered office was situated in Delhi, it
was held that the plaintiffs were entitled to institute a suit in Delhi
court and the questions of cause of action etc. did not come up for
consideration.
(b) Delhi High Court in Caterpillar Inc. v. Kailash Nichani (supra) has
observed that section 62 of the Copyright Act makes a significant and
obvious departure from the norm that the choice of jurisdiction should
primarily be governed by convenience of the defendants.
(c) In the decision in Intas Pharmaceuticals Ltd. (supra), Delhi High
Court has considered the provisions of section 20 of the CPC and section
134 of the Trade Marks Act. The High Court has observed in para 17 of the
report that the court has jurisdiction by virtue of the provisions
contained in section 20(c) of the CPC as the defendant is selling the
offending drug in Delhi.
(d) In Ford Motor Co. & Anr. v. C.R. Borman & Anr. [2008 (38) PTC 76
(Del.)], Delhi High Court considered that the plaintiff carried on the
business in commercial quantities in Delhi and have authorised agents also.
The pleadings of plaintiff have to be taken into consideration at the time
of rejection of the plaint under Order VII Rule 11 CPC. It was observed on
averments made that the Delhi High Court possessed territorial jurisdiction
to entertain the suit as plaintiff carried on business at Delhi.
(e) In Sap Aktiengesellschaft & Anr. v. M/s. Warehouse Infotech [IA No.
11153/2009 in CS(OS) No.623/2009 decided on 19.11.2009], the question came
up for consideration whether the plaintiff had a right a file a suit if he
carries on business in the territorial jurisdiction of Delhi. The High
Court held that in the plaint, jurisdiction was invoked on the ground that
the defendants are voluntarily residing and carrying on business at Delhi.
The plaintiff has branch office at Delhi and plaintiff’s authorised partner
was offering the products from its office at Delhi. The judgment was
delivered considering the provisions of Order VII Rule 10, C.P.C. taking
the plaint averments to be correct.
(f) In Wipro Ltd. & Anr. v. Oushadha Chandrika Ayurvedic India (P) Ltd. &
Ors. [2008 (37) PTC 269 Mad.], the High Court at Madras has observed that
the provisions of section 20 CPC are not applicable as far as the High
Court at Madras is concerned. Therefore, the scope of section 62 of the
Copyright Act and section 134 of the Trade Marks Act, cannot be curtailed
by reference to section 20 CPC or clause 12 of the Letters Patent.
(g) In Hindustan Unilever Ltd. v. Ashique Chemicals & Ors. [2011 (47) PTC
209 (Bom.)], the Bombay High Court has dealt with the territorial
jurisdiction and held that section 134 of the Trade Marks Act conferred
upon the plaintiff the benefit of bringing an action stipulated therein
notwithstanding the provisions of the Code of Civil Procedure or any other
law.
(h) In the case of Ultra Tech Cement Ltd. & Anr. v. Shree Balaji Cement
Industries & Ors. [2014 (58) PTC 1 (Bom.)], the High Court held that it has
the jurisdiction as the plaintiff carries on business within the
jurisdiction of the court and plaintiff No.1 has registered office and
plaintiff No.2 has corporate office within the jurisdiction of the said
court, though the defendants did not carry on business nor do they have
place of business within the jurisdiction of that court.
The facts of the instant cases and the question posed is different which
did not come up for consideration in any of the aforesaid decisions
rendered by the High Courts and even otherwise any observations in any of
aforesaid decisions contrary to our decision cannot hold the field.
Interpretation of provisions cannot be so wide so as to open it to be
misused, it has to be subject to object of the Act as explained above.
43. Coming to submission that vires of Section 62 has not been
questioned. There is no doubt about it that the challenge to the vires of
section 62 has not been made. However, the question is that of
interpretation and not that of vires of the provisions which has been
considered by us. There will be no violence to section 62 of Copyright Act
and section 134 of Trade Marks Act by the interpretation adopted by us and
the right of the plaintiff which has been conferred under the provisions,
also remains intact. There is no question of giving disadvantage to the
plaintiff vis-a-vis the defendant but both will stand to gain by proper
interpretation.
44. We also find the submission to be futile that the law as to the
otherwise on the basis of aforesaid decisions, has prevailed for a long
time as such there should not be any interference. Firstly, the judgments
are of recent origin. Even otherwise, we have considered each and every
decision threadbare which has been referred to us. It cannot be said that
the precise question involved in the cases before us was involved in the
aforesaid decisions or came up for consideration. In Dhodha House (supra)
also, the question posed for consideration was different and the
observations made therein are not supporting the cause raised on behalf of
the appellants. We are not taking a view contrary to any of the said
decisions of this Court. Thus, there is no need to refer the case to a
larger Bench.
45. It was also submitted that as the bulk of litigation of such a nature
is filed at Delhi and lawyers available at Delhi are having expertise in
the matter, as such it would be convenient to the parties to contest the
suit at Delhi. Such aspects are irrelevant for deciding the territorial
jurisdiction. It is not the convenience of the lawyers or their expertise
which makes out the territorial jurisdiction. Thus, the submission is
unhesitatingly rejected.
46. It was also submitted that the suit may be ordered to be transferred
to Delhi. We cannot order transfer of suit in these proceedings. In case
parties so desire, they are free to file appropriate application but the
suit is required to be presented in the court of competent jurisdiction
only thereafter the question of transfer would be germane.
47. In our opinion, the provisions of section 62 of the Copyright Act and
section 134 of the Trade Marks Act have to be interpreted in the purposive
manner. No doubt about it that a suit can be filed by the plaintiff at a
place where he is residing or carrying on business or personally works for
gain. He need not travel to file a suit to a place where defendant is
residing or cause of action wholly or in part arises. However, if the
plaintiff is residing or carrying on business etc. at a place where cause
of action, wholly or in part, has also arisen, he has to file a suit at
that place, as discussed above. Thus, for the aforesaid reasons mentioned
by us in the judgment, we are not inclined to interfere with the orders
passed by the High Court. Appeals are hereby dismissed. No costs.
..........................................J.
(Jagdish Singh Khehar)
New Delhi;
........................................J.
July 01, 2015. (Arun Mishra)