TMI Blog1957 (3) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; had been completed. The appointment was for a period of seven years from the date of the delivery of the first censored print of each of the three pictures. Under the terms of the agreement, the distributors were to pay to the producer a certain sum in certain instalments and were to receive as their remuneration commission at certain rates. Clause 22 of the agreement provided that, in addition to other remedies, the producer would have the right to terminate the agreement summarily and forfeit all sums paid to him by the distributors in the case of breach or non-performance of any of the conditions or in the case of default in making the stipulated payments or submitting statements of accounts. Clause 28 of the agreement provided for the method by which the parties were to enforce their rights, if necessary. It said inter alia that if either party proceeded in a Court of Law, it must not do so at any place other than Bombay. 3. On the same day, another- agreement was entered into by and between the same parties about the distribution rights of the same films on precisely the same terms and conditions, except that the area covered by this agreement was 'the Bengal Circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July 1954, some acrimonious correspondence between the parties followed, the distributors complaining of misrepresentation and seeking to avoid the agreements and the producer denying misrepresentation and complaining of default. Apparently because ,,of that dispute, the instalment of ₹ 60,000 due on the 15th July 1954, was not paid. Ultimately, by letter, dated the 19th July 1954 written through his solicitors, the producer terminated the agreements and notified forfeiture of all moneys paid by the distributors. This was done in purported exercise of the powers reserved to the producer by Clause 22 of the agreements. 7. Thereafter, on the 23rd July 1954, the producer instituted a suit against the distributors in the Bombay High Court in his own name for the recovery of ₹ 60,000 with interest thereon or, in the alternative, damages of the same amount or any other amount that the Court might adjudge, as also for a return of all publicity materials relating to the picture 'Waris' already supplied to the distributors. By a letter of the same date, the solicitors for the producer gave intimation of the institution of his suit to the solicitors for the distributor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration or, in any event, as moneys had and received. It was also said that the purported termination of the contracts on the 19th July 1954, had been wrongful, because the time for the payment of the third instalment had been extended up to that date. 13. The appeal from the final order of injunction made by Coyajee, J., of the Bombay High Court was disposed of by the Court of Appeal on the 16th November 1954, when it was allowed and the injunction dissolved. The trial Judge had held that Mansata's suit in Calcutta had been brought in violation of Clause 28 of the agreements and therefore they were liable to be restrained from proceeding with that suit. The Appeal Court held that Clause 28 would apply only when the parties wanted to litigate their rights under the agreements. The Calcutta suit had been brought, not to enforce any such rights, but on the other hand, to avoid the agreements altogether. The learned Chief Justice added that the Court could not exercise its inherent jurisdiction by way of restraining a party to a suit before it from proceeding with a subsequent suit instituted by him in another Court. If the two suits were based on the same cause of action, the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is no ground whatsoever for treating the earlier suit of Modi as a mala fide suit. He has pleaded two business agreements which are not denied, set out the letters passed between the parties which are also not denied and asked the Court to decide whether or not, on the facts pleaded by him, he is entitled to the reliefs claimed. The allegation of misrepresentation on which Mansata have founded their own suit was not concealed in Modi's plaint, but was expressly referred to and thus an opportunity was openly extended to them to prove their allegation, it they could, and defeat the suit. Like the learned trial Judge, I see no trace whatsoever of any mala fides in Modi's suit in Bombay and no reason to restrain its further prosecution by an injunction. Appeal No. 80 of 1955 must fail on the merits and therefore it is not necessary to consider whether it is maintainable in law or not. 18. As to Appeal No. 64 of 1955, it is really directed, as I have already said, against two orders. Unfortunately, there is even no mention of the prayer for revocation of leave in the learned Judge's judgment, although it was the first prayer in the Notice of Motion, It was not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey used the word 'judgment', one would perhaps have to make a search in the vocabulary of old English lawyers, as appearing in contemporary rules and judicial decisions. But such search is no longer necessary because, by reason of judicial interpretation, the term, as used in the Letters Patents, Indian High Courts, has now acquired an Indian meaning. The two leading decisions are The Justices of the Peace for Calcutta v. The Oriental Gas Co., 8 Beng LR 433 (F), a decision of this Court, given in 1872 and Tuljaram Row v. Alagappa Chettiar, ILR 35 Mad 1 (G), a decision of the Madras High Court, given in 1910. To that must now be added the decision of the Supreme Court in Asrumati Dehi v. Rupendra Deb , [1953]4SCR1159 , which is itself an interpretation of the two leading High Court decisions in their application to a particular type of order. All other decisions that can be found in the books justify themselves by referring to one or other of the above decisions ,or some part or other of them. 21. The test, according to the Calcutta decision, is that in order to be a 'judgment', a decision must affect 'the merits of the question between the parties by determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties in the suit itself, nor did it terminate or dispose of the suit on any ground, nor was it at all an order made by the Court in which the suit was pending. It was only an order made by a superior Court, by which a live suit was transferred from one forum to another. It appears to me that since the Supreme Court did not frame an exhaustive definition of the word 'judgment' which would be applicable in all cases, it would not be correct to hold that no order can be a 'judgment', if any of the negative reasons given by the Supreme Court for holding the order before them to be not appealable, applies. 23. In view of the somewhat indeterminate terms in which the tests laid down in the two leading High Court decisions were framed, the task of deciding whether a particular order is or is not a judgment is not easy. But it appears to me that at least where a question of the jurisdiction of the Court to entertain or proceed with a suit or proceeding is involved and a decision on that question is given, such decision affects the merits of the controversy between the parties. It is true that it does not touch the actual dispute regarding the respective rights and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er suit is pending; and when the earlier suit is determined, the matter in issue in this suit will probably be res judicata. Therefore, the decision of the Judge under Section 10 really determines the rights of the plaintiffs to sue in this Court; and it seems to me that such a decision is a 'judgment' within Clause 15 of the Letters Patent and the authorities under that clause and that such a decision is not a mere order relating to procedure in the suit. 24. These reasons were adopted or similar reasons were given in the other decisions to which I have referred where it was held that an order under Section 10 of the Code was a 'judgment'. 25. Proceeding from what I have so far said, I think I can reasonably go a little further. An order staying a suit under Section 10 of the Code can be said to affect even the actual dispute between the parties on the merits, because it compels the plaintiff to take the decision of the other Court on the questions in controversy, however they may be decided, instead of the decision of the Court of his choice which might well have been different. The merits of a controversy are, till they are decided, only claims and it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular Court and to compel the defendants who are not within its jurisdiction, to come in and defend the suit, or if they do not, to make them liable to have a decree passed against them in their absence. 29. In Asrumati Debi's case (H), the Supreme Court had occasion to refer to orders of leave granted under Clause 12 of the Letters Patent and orders refusing to revoke such leave and in that context they referred to this decision. It is true that they disapproved of its application to orders passed under Clause 13 of the Letters Patent, but they did not say that even as regards orders under Clause 12, it was wrong. As to the general question regarding orders under Clause 12 of the Letters Patent, Mukherjea. J., observed as follows:-- Leave granted under Clause 12 of the Letters Patent constitutes the very foundation of the suit which is instituted on its basis. If such leave is rescinded, the suit automatically comes to an end and there is no doubt that such an order would be a judgment. If, on the other hand, an order is made, dismissing the Judge's summons to show cause why the leave should not be rescinded, the result is ,as Sir Lawrence Jenkins pointed out, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards the order made under Section 10, it appears to me, if I may say so. with respect, that the learned Judge was under a misapprehension. He thought that since the decision of the Bombay Court of Appeal was a decision binding on the parties and by that decision it had been held that the two suits were based on different causes of action, it was no longer open to him to apply Section 10 of the Civil Procedure Code. That view of the Bombay-judgment is hot correct, although I am free to confess, again with respect, that I find some confusion of language in the appellate judgment of the Bombay High Court. The scheme of the judgment, however, is clear. The learned Chief Justice first points out that Clause 28 of the agreements cannot apply, because, the Calcutta suit was not a suit under the agreements, but a suit de hors them. It was also a subsequently instituted suit. If Clause 28 of the agreements was not attracted, there was no reason to injunct the Calcutta plaintiff against proceeding with his suit on the ground that he had brought it in breach of the agreement. Again, since his was a subsequently instituted suit, there could be no question of his having made an attempt to fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that the Bombay plaintiff had an alternative remedy in Section 10 of the Code, as thought by the learned Judge, holding thereby that the subject-matter of the two suits or their 'causes of action' were identical, but he did so on the ground that the Calcutta suit was a subsequent suit and therefore it could not be stayed by an injunction and he added that the plaintiff might seek his relief in Calcutta under Section 10, if that section applied. The only positive opinion expressed by the learned Chief Justice, was that the Calcutta suit was not a Suit for the enforcement of rights under the contract, but it was a suit for avoiding the contract. He does not appear to have said anything about the nature of the Bombay suit. But assuming that he did say that the Bombay suit was a suit under the contract for the enforcement of rights conferred thereby, I am unable to see that the matter in issue in the two suits might not yet be substantially the same, though different reliefs might have been claimed by the two different plaintiffs on the basis of their respective cases. It is true that no written statement has yet been filed in the Calcutta suit, but what the defence in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Calcutta suit is the company Kapurchand Limited, to which the payments due to Modi under the agreements were to be made. No allegation is made against the company except that some money was paid to it and that it was a party to and knew of the misrepresentations made by Modi. I do not think that the joinder of Kapurchand Ltd., on such allegations raises any separate and substantial issue as between it and the Mansata so as to make Section 10 inapplicable. 35. As to the prayer for revocation of leave, I see no reason to grant it. The plaintiff has made a case in the plaint, according to which a part of the cause of action did arise in Calcutta. Since the suit is being stayed and the main question will be tried at Bombay, the question of convenience hardly survives. 36. In the result, Appeal No. 64 of 1955 is allowed in part. The order of the learned Judge, dated the 28th April 1953, in so far as, by it, he refused to stay the present Suit under Section 10 of the Code is set aside and it is directed that the suit be and do remain stayed so long as the Bombay suit, viz., Suit No. 1069/X of 1954, may remain pending. The rest of the order is upheld. Costs of this appeal, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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