The Judgment of the Court was delivered by
Tyabji, J.:— This application has been referred to us by Sankaran Nair, J., sitting in Chambers on the original side of the High Court under R. 177, O. 15, of the Rules of the High Court of Madras. We are therefore sitting as the High Court in its original civil jurisdiction, and not in the exercise of the appellate jurisdiction in appeal from decisions in the exercise of its original jurisdiction.
2. The application is that all further proceedings in this suit which have been instituted on the original side of this High Court be “indefinitely stayed under Ss. 22, 23, 24 and 151 of Act 5 of 1908.” The suit is instituted by a limited liability company for recovering damages for defamation from the editor, printer and publisher of a newspaper in Lahore. Section 22 of the CPC, refers to cases where a suit may be instituted in any one of two or more Courts, and is instituted in one of such Courts. In such cases an, application may be made by any defendant for transfer of the suit to another Court. S. 22 does not provide to which Court the application for transfer has to be made. That matter is provided for in S. 23. The sub-section of S. 23 which is suggested as being applicable is sub-S. 3. That sub-section however refers to the case where the several Courts having jurisdiction are subordinate to different High Courts. One of the difficulties in the way of applying this sub-section to the present case is that the two Courts which the applicant suggests have jurisdiction, viz. (1) the original side of the Madras High Court, (2) the Chief Court of the Punjab cannot be said to be “subordinate to different High Courts.” The section defining which Courts are subordinate to the High Court is Section 3 of the CPC. S. 3 refers to District Courts, but not to the High Court in the exercise of its original civil jurisdiction. S. 2(4) defines a “District” so as to include the local limits of the ordinary original civil jurisdiction of a High Court; but it does not refer to the High Court in the exercise of its ordinary original jurisdiction as a District Court. The collocation of words in S. 3 does not suggest that it was intended that the expression “District Court” should be applicable to the High Court, and Section 3(15) of the General Clauses Act prevents the High Court in the exercise of its ordinary original civil jurisdiction being included in the expression “District Judge,” and Cl. 24 of the same section defines a High Court in terms which do not throw any light on the question I am considering.
3. It seems to me therefore very doubtful whether the provisions of S. 22 and S. 23 can be said in their terms to apply to the present case. Subject to this doubt I agree with the learned Chief Justice in his remarks on these two sections and his examination of the Indian authorities on this point.
4. The application is however supported before us mainly on the ground that we have under Section 151 of the CPC, inherent power to prevent abuse of the process of the Court. The existence of the jurisdiction cannot be denied. The circumstances in which the Courts will in the exercise of this jurisdiction stay proceedings on the ground that the process of the Court is being abused, are referred to and explained in Norton v. Norton(1), Egbert v. Short(2) and Logan v. Bank of Scotland(3).
5. These decisions refer to cases where the cause of action had arisen outside England and where the English Courts were sought to be given jurisdiction on the ground that the defendant was, at the time when the writ was issued, residing within the jurisdiction of the English Courts. In the case now before us the learned pleader for the applicants asked us to decide the case on the basis that it must be assumed for the purposes of this application that the whole of the cause of action had arisen in Madras. Where the jurisdiction is sought to be snatched from a Court by means of the accidental circumstances that the defendant happens temporarily to be within the jurisdiction of a Court other than that in the local limits of which Court he ordinarily resides, the case bears a very different aspect from such a case as the present. For the libel upon which this action is based expressly refers to the local agents of the limited liability company which is alleged to have been libelled, and “the attention of the local Government of Madras is most reapectfully invited to the letters” by the editor of the newspaper. The facts therefore that have to be determined in deciding this suit have direct reference to the conduct of the local agents of the Madras branch of the company. In these circumstances the plaintiffs may well claim that, inasmuch as the question on which they seek adjudication has reference to people residing in Madras and the acts that will be the subject of investigation have taken place in Madras, it would be more beneficial to the plaintiffs that the suit should be tried by the Court in Madras.
6. It cannot be said that in these circumstances the facts before us have any analogy to such facts as were before the English Courts in the decisions cited to us. There it was clearly pointed out that the plaintiff was seeking to put the defendant in the position referred to by Vaughan Willaims, L.J, in Norton v. Norton. He says: “I have come to the conclusion, not only that this is a case in which it is more natural and more convenient to try the question in dispute in India because the settlement was made in India and refers entirely to property in India but, further, that Mrs. Norton has brought the action in England, not for the purpose of any legitimate advantage which she might gain by so doing, but for the purpose of putting her husband in such a position that he would be practically compelled to settle the action.” In the present case owing to the facts to which I have referred, it seems to me to be clear that at least on the materials now before us it is impossible to say that the plaintiffs have brought the suit in Madras not for the purpose of any legitimate advantage which they might gain by so doing, but for the purpose of putting the defendants in such a position that they will be practically compelled to settle the action. Conceding for the purposes of the application that the defendants may have some difficulty in proving their cases that they may find it necessary to examine their witnesses on commission, it is the plaintiffs who have the choice of the forum and it does not follow that because the defendants may find it more difficult to make their defence in one forum than in another, the plaintiffs should be restricted in their choice. That difficulty may be a matter which the Judge trying the action may take into consideration when the defence is before him. It does not prevent the plaintiffs from bringing a suit in the Court which they may find more convenient, unless for some such reasons' as have been referred to in the decisions of the English Courts.
7. I therefore agree that the application must be dismissed with costs.
White, C.J:— This matter came before the learned Judge sitting in Chambers in the original side of this Court and under R. 177 of the Original Side Rules he has referred it to us. A suit has been instituted in this Court for damages for an alleged libel in a newspaper. A Judge's summons has been taken out by the defendants, in which they ask for an order that all further proceedings in the suit in this Court should be stayed and for a direction that the plaintiffs should file their suit in a proper Court in the Punjab. It has not been seriously argued that it would be within our powers to direct the plaintiffs to file the suit in a proper Court in another Province. The contention has been that the case is one in which we ought to make an order staying all further proceedings in the suit in this High Court.
8. The plaintiffs are a limited liability company with their registered office at Gujranwala near Lahore. The paper in which the alleged libel was published is printed and published at Lahore. It is not denied that there has been publication of the alleged libel in Madras. The question as to whether the cause of action for this suit arose wholly within the local limits of the jurisdiction of the Madras High Court has not been argued by the learned vakil for the defendants, but for the purposes of this application he is prepared to assume that it did. Assuming that the matter is libellous, publication within the jurisdiction being admitted, I think there can be no question that the cause of action or a cause of action with reference to this alleged libel arose within the jurisdiction. We have been asked to make an order staying the suit on two grounds: first under express provisions of the Code; and secondly, in exercise of the inherent jurisdiction which is now recognized in S. 151 of the Code. The express provisions are Ss. 22 and 23 of the Code. S. 22 provides as follows: “Where a suit may be instituted in any one of two or more Courts and is instituted in any one of such Courts, any defendant …. may …… apply to hive the suit transferred to another Court, and the Court to which such application is made …… shall determine in which of the several Courts Having jurisdiction the suit shall proceed.” (I assume this suit could have been instituted in a Punjab subordinate Court or in the Madras High Court, though damages are only claimed in respect of the publication in Madras). The first sub-section of S. 23 clearly does not apply.
9. Then the section goes on to say: “Where such Courts are subordinate to different appellate Courts but to the same High Court, the application shall be made to the said High Court.” The case does not fall within sub-S. (2). Sub-S. (3) says: “Where such Courts are: subbordinate to different High Courts the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.” The Court in which this suit has been instituted is not a Court sub-ordinate to a High Court. Therefore, S. 23 does not apply. It was argued that 22 gives the jurisdiction and S. 23 could not out it down. It seems tome however that the two sections should be read together and if we find that S. 23 contains no provision as to the Court to which the application should be made, it may reasonably be held that S. 22 has no application, to the particular facts of this case. Moreover Ss. 23 and 21 deal with the power of the Court to transfer, not with the power of the Court to stay. Certain authorities have been cited. The first case was Tula Ram v. Harjiwan Das(4). That was a case in which the application was made under S. 24 of the old Code and the suit which was asked to be stayed was not instituted in a High Court, but in a Court subordinate to the High Court, and the learned Judges while intimating that they had jurisdiction declined to exercise it. Geffert v. Ruckchand Mohla(5) is a decision of Scott, J., sitting alone. In some respects it is not unlike this case. There the plaintiff brought a suit in the High Court of Bombay claiming damages for libel. He had previously brought a suit in the Court of the Deputy Commissioner of the Central Provinces in which he had asked for damages for wrongful dismissal an application was made by the defendant in the suit in the Bombay High Court asking for an order staying the proceedings in the Bombay High Court. The learned Judge; no doubt, assumed that he would have had jurisdiction to make the order asked for. The question of jurisdiction however does not seem to have been argued and on the merits he declined to make any order. With reference to this suit before him, he makes the observation that the plaintiff “desires to vindicate his character in the place where he alleges it has been defamed,” and he adds: “I can find no authority for preventing him doing so.” Our attention has also been drawn to a decision of the Oudh Judicial Commissioner's Court in Rabban Bibi v. Sohadra Bibi(6). There again the facts were similar to those in Tula Ram v. Harijiwan Dass.
10. The application was for the transfer of a suit pending a subordinate Court within the jurisdiction of the Oudh Judicial Commissioner's Court and it was asked that the suit should be transferred to a subordinate Court within the jurisdiction of the Allahabad High Court. The learned Judge on the merits made an order that the subordinate Court, subject to the jurisdiction of the Allahabad High Court, was the proper Court, having regard to the real interest of the parties and the general convenience of the witnesses in which the suit should proceed. The facts in the Oudh case are clearly distinguishable. As regards our inherent jurisdiction, I have no hesitation in holding that apart from the express provisions of the Code there is an inherent jurisdiction in the High Court to stay any suit which is an abuse of the process of this Court. The jurisdiction, in my opinion, existed prior to the Code of 1908 and it is recognized in S. 151. Then the question is, in the circumstances, is this suit an abuse of the process of this Court? I do not propose to read the whole affidavit on which the defendants rely, but in so far as the affidavit consists of allegations of fact and not expressions of opinion, I am prepared to accept all the allegations in the affidavit. Do those allegations establish that the bringing of the suit here is an abuse of the process of this Court? We start with this that we are assuming for the purposes of this application and the assumption seems to me to be well founded in law that the cause of action arose wholly within the jurisdiction of this Court. The alleged libel is set out in the plaint. It contains this passage: “The attention of the Local Governments of Bengal, Madras, the Central Provinces and the Punjab is most respectfully invited to the letters of our correspondents.” These letters the plaintiffs say form part of the libel. That the articles were published in Madras is undisputed. The plaintiffs ask for damages so far as this Presidency is concerned. I do not think it necessary to discuss what may be the legal effect of limiting their claim to damages accruing in this Presidency. But we do find that in the plaint they expressly limit their claim. The learned vakil for the defendants has not been able to call our attention to any Indian case in which this inherent jurisdiction has been exercised. The principle however is well recognized and has been given effect to in several English decisions. I would only refer to two cases, both of which curiously enough were Indian cases. In both cases disputes had arisen between husband and wife and in both cases the question was whether an action should proceed in England or in India.
11. The first case is Norton v. Norton That was a suit in which the plaintiff claimed an account under a settlement. The settlement had been made in India. The wife had gone to England and she alleged that she intended to reside in England permanently. The husband and one of the trustees of the settlement were served with a writ during their temporary presence in England, and the husband and the other defendant applied to stay the proceedings in England. The application was in the Court of first instance refused, but on appeal an order was made staying the proceedings in England. Vaughan Williams, L.J, in delivering the judgment of the Court of appeal says at p. 479: “In my opinion, it must be proved to the satisfaction of the Court that either the expense, or the difficulties of a trial in this country, are so great that injustice will be done, is this sense, that it will be very difficult, or practically impossible, for the litigant who is applying for the stay to get justice in this country.” It is scarcely necessary to observe that the facts of the present case do not come anywhere near the test suggested by Vaughan Williams, L.J The other case is the case of Egbert v. Short. There a deed of separation had been executed in India, between the plaintiff and her husband. The defendant was the trustee under the deed. There was default in paying the allowance under the deed, and the defendant happened to be in England on a holiday and he was served with a writ. He applied to have the proceedings, stayed and they were stayed. The learned Judge in his order in staying the proceedings observes at p. 214: “On the whole the conclusion at which I have arrived is that this action is brought in the tribunal in which it has been brought not bona fide for the purpose of obtaining justice, but for the purpose of harassing and annoying the defendants, and of, obtaining something to which the plaintiff may not in justice be entitled.” It cannot be suggested in this case that if the plaintiff proves in this Court that be has been defamed, if he proves that the defamatory matter has been published within the local limits of the jurisdiction of this Court, and that he has suffered damage within the local limits of the jurisdiction, of this Court by reason of the publication it cannot be suggested that the suit is brought within the local limits of the jurisdiction of this Court “for the purpose”, to use the words of the learned Judge in Egbert v. Short, “of obtaining something to which he may not in justice be entitled.” It seems to me that the defendants have failed to make out that the institution of the suit in this Court is an abuse of the process of this Court.
12. I would dismiss the application with costs.
S.N/R.K
13. Application dismissed.