JANARDHAN MOHANDAS RAJAN PILLAI Vs. MADHUBHAI PATEL

JUDGEMENT

(1.) THE present Notices have been issued in Execution Applications filed by the defendants against the plaintiff for recovering the costs which have been awarded to them by the English Courts. The matter in dispute has arisen as follows : an article was published in the issue of the "sunday" dated 13/19-6-1993 concerning the plaintiffs and which they found to be defamatory. The plaintiffs, therefore, filed a suit for damages in the English Court in 1993 alleging that the article was defamatory. Defendant No. 3 was the publisher and defendant No. 4 was the Distributor of the magazine. On 13-8-1993, defendant No. 4 made an application before the Master Queen's Bench Division for stay of the suit on the ground that the English Court had no jurisdiction to try the suit as the magazine was published from India and the proper court would be the Indian Court. This application of defendant No. 4 was dismissed by the Master on 28-3-1994. An appeal was preferred by defendant no. 4 against he order of the Master to the learned Chamber Judge, French, j. On 9/10-6-1994, the appeal of defendant No. 4 was allowed on merits after hearing both sides on the issue as to whether the Indian Courts were the proper forum or the English Courts to try a suit for defamation in respect of a publication from India. The suit was accordingly stayed and the plaintiffs were directed to pay costs to defendant No. 4. Aggrieved by this order, the plaintiffs approached the Court of Appeal on 6-7-1994. An application was made by defendant No. 4 to the Registrar of the Court of Appeal for security of costs to be furnished by the plaintiffs. On 28-7-1993, defendant No. 3 made an application to the Master for stay of the suit on the ground of lack of jurisdiction of the English Court. The application was referred to the learned Chamber Judge, in view of the order passed in the appeal preferred by defendant No. 4. The application of defendant No. 3 was allowed and the suit was stayed. Costs were reserved to the court of Appeal. This order was passed on 27-10-1994 against which the plaintiffs preferred an appeal. Defendant No. 3 then made an application for security of costs in the sum of 20850 to defendant No. 4 and 12371 to defendant No. 3. The plaintiffs accordingly, deposited the amount for defendant No. 4 but not for defendant No. 3. The Court of Appeal on 8-6-1995 dismissed the plaintiffs appeal with costs to be paid to defendant Nos. 2 and 4. The plaintiffs had remained absent at the hearing of the appeal. Again, this order was passed after the Court of appeal decided the same on merits. On 28-6-1996, the Taxing Master quantified the costs for the proceedings. Defendant Nos. 3 and 4 were awarded 26835. 30 and 64175. 05 respectively for the proceedings before the Master and the learned Chamber Judge for which Notice Nos. 1774 of 1997 and 1773 of 1997 have been taken out in this Court. Defendant No. 4 was awarded 32594. 67 as costs for the proceedings before the Appeal Court. Out of this amount, a sum of 20850 was recovered from the security furnished by the plaintiffs and Notice No. 1772 of 1997 has been issued to recover the balance 11744. 67. The Notices issued have been served on the plaintiffs who oppose the same.

(2.) MR. Grover, learned Counsel appearing for the plaintiffs, submits that the award of costs cannot be recovered by execution proceedings as this was not a judgment as contemplated under section 13 of the C. P. C. He further submits that since no evidence was led while delivering the order, it is not a judgment which is conclusive as it has not been given on merits of the case as required under section 13 (b) of the C. P. C. for this, (R. Vishwanathan and others v. Abdul Wajid) A. I. R. 1963 S. C. 1, (K. M. Abduljabbarv. Indo Singapore Tradersp. Ltd.), A. I. R. 1981 Madras 118, (Algemene Bank Nederland NV v. Satish Dayalal Choksi), A. I. R. 1990 Bombay 170, and (M/s. International woollen Mills v. M/s. Standard Wool (U. K.) Ltd.), A. I. R. 2001 S. C. 2134. He further submits that a decision in respect of forum non-conveniens is not an adjudication and therefore, section 13 of the Code is not attracted. He submits that although the plaintiff was heard and was represented before the learned Chamber Judge, the appeal was decided ex parte. No evidence was led before the learned Chamber Judge and therefore there was no decree which could be executed. The main issue according to the learned Counsel was the defamatory article and the suit for damages which the plaintiffs have filed. He submits that it was only if the decision in the suit for damages had been given a foreign Court could it be conclusive as the evidence would have been led and there would have been a final adjudication on the matter. The learned Counsel then submits that the Taxing Master had issued notices to the plaintiffs which they did not receive. The order was passed on 28-6-1996 quantifying the costs. Plaintiff No. 1 died in custody in India on 7-7-1995. Therefore, the decision of the Taxing Master was admittedly without hearing plaintiff No. 1. He then submits that in any event. Plaintiff No. 2 who is the wife of plaintiff No. 1 does not reside in Mumbai and has no establishment in mumbai and, therefore no proceedings for execution could have been initiated in this Court. He also submits that before initiation of the execution proceedings, the defendants ought to have sought for permission as required under the Foreign Exchange Regulation Act. He then submits that the order directing costs to be paid to defendant Nos. 3 and 4 is not based on any right of the defendants to claim costs. He submits that under Order 62, Rule 2, the rules of the Supreme Court of England, the English Courts may award costs as a matter of right to a party; whereas before the Indian Courts, costs are a matter of discretion and, therefore, the execution of an order for payment of costs would not lie in this Court.

(3.) ON the other hand, Dr. Tulzapurkar interpreted section 13 to mean "that" any matter" that is any issue which was adjudicated by a foreign Court would be a judgment which was conclusive under section 13 of the Code if the exceptions listed in section 13 are not attracted. He submits that issue which was decided by the English Courts was forum non-conveniens. There was an adjudication on this matter and that adjudication was on the merits of the issue forum non-conveniens and since the parties were heard, section 13 was clearly attracted and an execution application would lie. He further submits that the decision in appeal was also on merits as the grounds raised in the appeal memo were that the order passed by the learned Chamber Judge on the issue of forum non-convenience were wrongly decided. He urges that the appeal was decided on merits and the plaintiffs chose not to be present when the appeal was decided. Therefore, they could not now take shelter of their absence at the proceedings before the appeal Court. As regards Mr. Grover's submission that the Taxing master had decided the costs without notice to plaintiff No. 1 who had already expired, he submits that plaintiff No. 2 had been served and she was the heir and legal representative of plaintiff No. 1. Therefore, there was no need to serve her afresh or to bring the other heirs on record. He submits that if one heir of the deceased is on record, there is no need to bring the other heirs on record as that heir would represent the other legal heirs and representatives. In any event, according to the learned Counsel, the decision was taken by the learned Chamber Judge and the Court of appeal to award costs and Taxing Master merely quantified the same. He then submits that a proper reading of Order 62, Rule 2 would establish the fact that the costs to be awarded even by English Courts are discretionary and not by way of any entitlement or right of the parties. As regards the submission of the learned Counsel for the plaintiffs that this Court would have no jurisdiction to decide the execution application, Dr. Tulzapurkar submits that under section 44-A of the Code an execution application passed by a Court in reciprocating territories could be filed in the District Court. The high Court could be considered as the District Court and, therefore, execution of the foreign decree would lie in this Court as well. The concept of resi-dence of the judgment Debtor need not be taken into consideration for the purpose of filing of an execution application as it would lie in any District court. He also urgos that none of the exceptions of section 13 are attracted as the decisions of both the learned Chamber Judge and the Court of appeal were on merits and the decision of the Court of appeal though exparte was not by way of default. In these circumstances, he urges that the notices be made absolute.