DHANRAJ YUGULKISHORE AND CO Vs. BABULAL RAMCHANDRA

JUDGEMENT

(1.) THIS is an application to restrain the defendant from proceeding with suit No.62 of 1942 filed by him in the Court of the Munsif at Bnda (U.P.).

(2.) PLAINTIFFS are commission agents doing business in Bombay. Their present suit is to recover from the defendant Rs. 15.000 and odd due at the foot of the agency account. The transaction between the parties started in 1938 and up to November, 1941, the account is contendd to be adjusted because no disputes were raised. There were certain outstanding transactions at that time including some for April/May 1942 settlement. When the plaintiffs demanded payment the defendant replied that after the outstanding transactions were closed and the amount ascertained he would pay or receive as the case may be, and in the meanwhile the plaintiffs need not have any apprehensions about the balance shown to be outstanding against the defendant. The plaintiffs waited till the due date in April and thereafter sent their letter dated May 1, 1942, demanding the amount now claimed in the suit. The defendant in reply stated that he had already filed a suit at Banda for accounts. The plaintiffs thus came to know of the filing of the suit at Banda by the defendant.

(3.) TWO objections are raised to the plaintiffs' application for stay. First, that the Court has no jurisdiction to grant the application, and the other, that because of the delay the Court should refuse the application. On the first objection it is pointed out that the defendant does not reside or carry on business within the jurisdiction of this Court and he has filed his appearance in this suit under protest. From these facts it was argued that the Court had no jurisdiction to grant the injunction. In my opinion this contention is wrong. The defendant relied on Vanichand v. Lakhmichand (1919) 21 Bom. L.R. 955 and Mulchand Raichand v. Gill, & Co (1919) 21 Bom. L.R. 963 in support of his contention. In the first case Pratt J., in the course of his judgment in discussing the jurisdiction of the Court to grant such injunction, stated as follows ((p. 957): The authorities collected in that judgment [ The Canon Iron Company v. Maclaren (1855) 5 H.L.C. 416] embrace three classes of cases in which this principle has been enforced. There are, firstly, when the foreign suit is vexatious and has been filed by a party to a litigation pending in England in which complete relief may be had; secondly, when the foreign suit is ill-calculated to answer the ends of justice e.g.,...thirdly, the general grounds of equity and good conscience. The matter went in appeal but this aspect of the case was not discussed in appeal. In Mulchand v. Gill & Co. the Court granted an injunction against the constituent who had filed a suit in another Court in British India. Macleod J. (as he then was) granted the injunction. When the matter went in appeal, Marten J. (as he then was) discussed the question of jurisdiction, and to refute the argument advanced in that case against granting the injunction because the defendant did not reside or carry on business within the jurisdiction, stated, "One short answer to this proposition is that it cannot apply where, as here, the defendants have been served and have appeared in the suit without protest." The foundation of the defendant's argument in the present case is this observation in that judgment. In my opinion this argument is based on a complete misunderstanding of the discussion in that judgment. The learned Judge did not convey by his judgment that if that fact did not exist the Court had no jurisdiction to grant the injunction because the defendant did not reside or carry on business within jurisdiction. I may point out that in A. Milton & Co. v. Ojha Automobile Engineering Co. (1930) I.L.R. 57 Cal. 1280 the extent of the Court's jurisdiction under such circumstances came to be considered. Lort-Williams J. held that there was no objection to the Court granting an injunction because the defendant did not reside within the jurisdiction or carry on business within the jurisdiction of the Court. In terms he stated that he agreed with the view expressed by Sale J. in Mungle Chand v. Gopal Ram. (1906) I.L.R. 34 Cal. 101 It may be noticed that that view was not approved in Jumna Dass v. Harcharan Doss (1911) I.L.R. 38 Cal. 405 and Vulcan Iron Works v. Bishumbhur Prosad (1908) I.L.R. 36 Cal. 233. All these cases came to be considered by Engineer J. when an application for a similar injunction was made in Nainmal Pratapmal v. Mohandas Kamalsey (1937) O.C.J. Suit No.738 of 1937, decided by Engineer J. (in Chamber), on June 21, 1937 (Unrep.), and he has followed the principle stated in A. Milton & Co. v. Ojha Automobile Engineering Co. I entirely agree with the view expressed in that judgment. In my opinion there is nothing in law to prevent a Court on the Original Side of a Chartered High Court from granting an injunction to restrain a defendant from proceeding with a suit in another Court, provided it was shown on the face of the plaint that the Court had jurisdiction to entertain the suit before the High Court. On the affidavits the defendant does not even venture to suggest that this Court has no jurisdiction to try the present suit. On the first question therefore the defendant's contention fails.