Bhagat Singh Bugga v. Dewan Jagbir Sawhney

Lort-Williams, J.:— These are cross-applications, one by Dewan Jagbir Sawhney under s. 10 of the Code of Civil Procedure, 1908, to stay a suit filed in this Court by Bhagat Singh Bugga against Sawhney, and one by Bugga to restrain Sawhney from proceeding with a suit filed by him against Bugga in the Court of the Subordinate Judge at Gujranwala.

The Gujranwala suit was filed on March 20, 1940, and the Calcutta suit on April 1, 1940, but Bugga had filed a previous suit No. 1081 of 1937 in this Court on June 26, 1937, claiming the same reliefs. That suit was withdrawn by consent with liberty to bring a fresh suit if necessary, because the parties had agreed to refer the dispute to arbitration which eventually proved infructuous.

For the last twelve years Bugga has resided with his family consisting of his mother and sisters, and carried on business in Calcutta as a broker and dealer in sticks, and shares and is a member of the Calcutta Stock Exchange. Since 1936, Sawhney has employed him as his broker in various share dealings carried through in accordance with the rules and usages of the Calcutta Stock Exchange.

Sawhney lives at Ramkola in the district of Gorakhpur near Lucknow and used to instruct Bugga by letter or telegram and sometimes orally in Calcutta.

In 1937, a dispute arose over certain instructions given by telephone and telegram, both as to the purport of the messages, the times of receipt, and the state of the market, which resulted in cross-claims to the extent of Rs. 15,445 by Bugga and Rs. 10,724 by Sawhney.

These being the circumstances, it has been argued by Mr. Isaacs on behalf of Sawhney that this Court has no option but to stay the Calcutta suit under the provisions of s. 10 which are mandatory.

The facts disclose one of the most flagrant attempts to abuse the process of the Courts. Bugga lives and carries on his business as a stock-broker exclusively in Calcutta. Sawhney is the manager of the Ramkola Sugar Mills, Ltd., and lives at Ramkola in the district of Gorakhpur. Both these places are many hundreds of miles from Gujranwala where Sawhney has filed his suit. Calcutta is over 1,200 miles, and Ramkola over 1,000 miles, whereas Ramkola is only about 600 miles from Calcutta which is easily accessible. All the transactions between the parties were effected in Calcutta and instructions received there. No part of the cause of action arose in Gujranwala or elsewhere than in Calcutta. All the witnesses necessary for both parties to call in either suit, except Sawhney, live in Calcutta. All the documentary Evidence such as Bugga's books in daily use is here. The facts about the contents and times of receipt of telegrams and telephone messages will have to be proved by Government officials working in Calcutta, the rules and customs of the Calcutta Stock Exchange and the market, rates by officials of that body. If tried at Gujranwala most of this evidence will have to be taken on commission and unnecessary expense incurred.

Sawhney has no connection whatever with the Gujranwala district and it is difficult to conceive how he was permitted to file his suit in that Court. The explanation is that in his plaint he described Bugga as “Landlord and House Proprietor, Wazirabad District, Gujranwala,” who “was for sometime carrying on business as a broker in Calcutta.”

The learned Judge at Gujranwala was induced to assume jurisdiction because Bugga owns an ancestral house and other immoveable property at Wazirabad, and visits that place occasionally. According to Bugga's statement on affidavit the house and all the other properties are let out to tenants. This was confirmed by his own evidence in Court and that of another witness who said that when Bugga visited Wazirabad he used to stay with the witness. Bugga has described himself, in certain deeds registered at Wazirabad and in plaints, as resident there and his name is on the electoral roll. In spite of his statement that he had given up Wazira had as a place of residence and had no intention of returning, the Judge found that he still had the animus revertendi and a lively interest in it, that he had not severed his connection with his kith and kin or sold his ancestral property, that under s. 20 of the Code of Civil Procedure a man may have both a permanent and a temporary residence and therefore the Court had jurisdiction.

With respect to the Judge, residence is not identical with ownership; it means the place where a person eats, drinks and sleeps, or where his family or his servants eat, drink and sleep [Kumud Nath Roy Chowdhury v. Jatindra Nath Chowdhury], of which there was no evidence contradicting that of Bugga and his witnesses. The animus revertendi is not sufficient.

I have no doubt that Sawhney filed his suit at Gujranwala maliciously and with the sole object of harassing Bugga, causing him the maximum of inconvenience and expense and perhaps preventing him altogether from defending the suit. This is confirmed by the fact that he started criminal proceedings against Bugga at Gorakhpur. That the inconvenience caused to Sawhney himself by litigating at Gujranwala will be as great as that caused to Bugga is no justification. He verified his plaint at Ramkola.

In such circumstances this Court; as has been frequently decided, is not powerless to prevent such abuses of its process. There can be no doubt that an injunction may be granted restraining Sawhney from proceeding with the suit at Gujranwala on grounds of convenience alone and in spite of the provision of s. 10 of the Code, of Civil Procedure. For this proposition it is sufficient to refer to the judgment of Sale, J. in Mungle Chand v. Gopal Ram which has been followed repeatedly.

In that case the plaintiffs in a suit instituted in the High Court, obtained an injunction restraining the defendants from proceeding with a suit previously instituted in the Court of the Subordinate Judge at Bareilly. The learned Judge said as follows:—

I think there is no reasonable doubt as to the course I ought to pursue. The plaintiff undoubtedly instituted the suit in this Court, subsequently to the suit filed by the defendant in Bareilly. Og the other hand it is clear that. Very great hardship will accrue to the plaintiff, if this suit is tried at Bareilly. Practically all the accounts of the parties, the transactions in respect of which took place in Calcutta, would, have to be taken in Bareilly. The plaintiff is a commission agent, his books are here, his witnesses are here and it was intended that the goods sent by the defendant should be dealt with in Calcutta. Under these circumstances there is no doubt that the parties intended, and indeed justice requires, that the matters between them should be the subject-matter of a suit in this Court. The question is whether, effect can be given to the requirements of justice by the stay of the suit in the Bareilly Court. I think the powers of this Court to grant temporary injunctions are not confined to the terms of ss. 492 and 493 of the Civil Procedure Code. This Court has acted for a long series of years on the view that its powers of control over persons within its jurisdiction, by injunctions operating in personam are not restricted by the provisions of the Civil Procedure Code, and I think it is too late to ask us to depart from its practice. Therefore I think this Court has power to restrain the defendant from proceeding with the suit at Bareilly, if justice requires the step. The question is whether I should adopt this course.

The Bareilly Court will doubtless stay the defendant's suit in the Bareilly Court, when that Court is informed that this Court has restrained the defendant from proceeding with that suit. I am not to assume that the Judge of the Bareilly Court will take any step unfair to the defendant, or compel him to act in any way inconsistent with his duty of obedience to this Court.

This decision was followed by me in the case of A. Milton & Co. v. Ojha Automobile Engineering Co. in which an injunction was granted restraining one of the parties from proceeding with a previously instituted suit in another Court, mainly on grounds of convenience. Another ground was the existence of an agreement between the parties to litigate only in the High Court of Calcutta, but that fact would, not affect the argument that the Court has, no option but to obey the mandatory provisions of s. 10 of the Code of Civil Procedure.

On the latter ground this decision was followed in the case of Khandesh Lakshmivilas Mills Co. v. Vinayak Atmaram Karpurkar in which an objection to the defendant proceeding with his previously instituted suit was upheld, and a similar decision was given in the case of Tilakram Chaudhuri…Defendant v. Kodumal Jethananad Wadka…Plaintiff . in which an application under s. 10 to stay subsequently instituted suit was refused, and in Becharam Baburam…(Defendant); v. Baldeosahai Surajmal…(Plaintiff).* in which a similar application was refused on the same ground.

In the case of Durgaprasad v. Kantichandra Mukherji Panckridge, J. said:—

It has been urged by the respondent that it will be more convenient to have the suit tried here rather than in Delhi. Having regard to the various authorities to which reference has been made, I think it must be conceded that the Court has jurisdiction to restrain a defendant from litigating in another Court on the grounds of convenience.

Reference may be made also to the judgment in the case of Naskarpara Jute Mills Co., Ltd. v. Nirmal Kumar Jain delivered by me on December 10, 1940.

Apart from these decisions s. 151 of the Code of Civil Procedure provides that—

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

In Durga Dihal Das v. Anoraji it was said by Blair, J. that the Code is not exhaustive, there are cases which are not provided for in it, and he declined to believe that the High Court must fold its hands and allow injustice to be done.

These words were adopted by Woodroffe, J. in the case of Hukum Chand Boid v. Kamalanand Singh and he added that the law cannot (as pointed out by Sir Barnes Peacock, C.J) make express provisions against all inconveniences, and that the Court had, therefore, in many cases where the circumstances warranted it, and the necessities of the case required it, acted upon the assumption of the possession of an inherent power to act ex debito justitice and to do that real and substantial justice for the administration of which it alone exists.

These observations were adopted and followed in Manohar Lal Mahabir Pershad v. Jai Narain Babu Lal; Dhaneshwar Nath Tewari v. Ghanshyam Dhar Misra and Becharam Baburam…(Defendant); v. Baldeosahai Surajmal…(Plaintiff).* (supra).

In the present case the balance of convenience is all one way, and I have no doubt about the orders which I ought to make, or that I have power to make them.

The petition of Dewan Jagbir Sawhney is dismissed with costs as a hearing, and the application of Bhagat Singh Bugga is allowed with costs.

Dewan Jagbir Sawhney is restrained by injunction from proceeding with his suit No. 52 of 1940 in the Court of the Subordinate Judge of Gujranwala pending the disposal of suit No. 664 of 1940 in this Court.

Attorney for plaintiff: P.D Himatsingka.

Attorney for defendant: B.N Dutt.

P.K.D