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.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.10643-10644 OF 2010
Indian Performing Rights Society Ltd.
Vs.
Sanjay Dalia & Anr.
(With C.A. No.4912/2015 @ SLP [C] No.8253/2013)
Citation;AIR 2015 SC 3479
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 in3
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 plaintiff4
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 from5
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 the6
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 --7
(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 : 8
“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.”9
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.10
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 195213
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. 16
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 manner17
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 be18
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:19
1
st - What was the common law before the making of the
Act?
2
nd
- What was the mischief and defect for which the
common law did not provide?
3
rd - What remedy the Parliament hath resolved and
appointed to cure the disease of the commonwealth, and
4
th - 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 on20
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 several21
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. The22
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 on23
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 arise24
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.25
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.....”26
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.27
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 as28
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. The29
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, and30
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 in31
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 has32
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 business33
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 dispute34
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 is35
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
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 had36
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 : 37
“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 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 disjunctive38
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 to39
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 down40
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) of41
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 was42
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 cause43
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 suit44
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. 45
(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 Madras46
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 the47
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 us48
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. 49
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)
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