Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Vulcan Iron Works vs Bishumbhur Prosad on 7 December, 1908
Equivalent citations: (1909) ILR 36 Cal 233
Author: Fletcher
Bench: Fletcher


Fletcher, J.

1. This is a motion by the plaintiffs to restrain the defendant from proceeding with a suit, which he has instituted in the Court of the Subordinate Judge of Farruckabad.

2. The facts may be shortly stated as follows:

The plaintiffs instituted this suit on the 4th of July last against the defendant to recover the sum of Rs. 6,209/- alleged to be due to the plaintiffs from the defendant on three promissory notes all dated the 10th of September 1906.

3. It is admitted that the defendant resides and carries on business at Farruckabad in the United Provinces outside the jurisdiction of this Court. This suit was instituted by the plaintiffs by leave granted under Clause 12 of the Charter on the ground that part of the plaintiffs’ cause of action arose within the limits of the Original Civil Jurisdiction of this Court. The defendant on the 20th August last filed a suit in the Court of the Subordinate Judge at Farruckabad praying for a declaration that the said three promissory notes are null and void. To this suit one Eaton the original payee of the promissory, notes is made a co-defendant with the present plaintiffs. Eaton has been adjudicated an insolvent and is, it is said, now a prisoner in the Rangoon Jail.

4. From the evidence that has been filed on this motion I have no doubt but that the suit in Court at Farruckabad, which has been instituted by the present defendant, has been so instituted for the purpose of harassing the present plaintiffs. The questions arising in that suit could have been raised and decided in the present suit.

5. The question, however, for my decision is, whether. I can restrain the defendant from proceeding with his suit at Farruckabad having regard to the fact that the defendant does not reside within the jurisdiction of this Court.

6. That Courts of Equity have jurisdiction to restrain persons within their jurisdiction from prosecuting suits in Foreign Courts can not be doubted. The principles on which Courts of Equity act are clearly laid down by Lord Cranworth in his judgment in the well-known case of The Carron Iron Co. v. Maclaren (1855) 5 H.L.C. 416, 436.

7. “There is no doubt as to the power of the Court of Chancery to restrain persons within its jurisdiction from instituting or prosecuting suits in Foreign Courts wherever the circumstances of the case make such an interposition necessary or expedient. The Court acts in personam and will not suffer any one within its reach to do what is contrary to its notions of Equity merely because the act to be done may be in point of locality beyond its jurisdiction.” And again at page 442 the noble and learned Lord proceeds:

8. But here the appellants not only had property in England, but agents for the sale of goods. How does that vary the case. The existence of such an agency may in some cases enable third parties to sue the principals though out of the jurisdiction by reason of their being for certain purposes represented by their agents. But I can discover no principle, which would justify the Courts of this country in holding that the existence of an agency here for the sale of goods can deprive a foreign principal of his rights as a creditor in his own country.

9. And later in the same case Lord Brougham in the course of his speech to the House points out that jurisdiction is limited to. cases where the party sought to be restrained is within the limits of jurisdiction of the Court, for the only remedy for breach of the injunction is by way of process for contempt, which being proceedings of a quasi-criminal nature could not be enforced against a party resident out of the jurisdiction.

10. The principle therefore appears to be clear that a Court of Equity can only restrain a person from proceeding with a suit in a Foreign Court, if the person sought to be restrained is within the jurisdiction of the Court. It has been argued by the learned Counsel on behalf of the plaintiffs that none of the Courts in British India are Foreign Courts as they do not fall within the definition of “Foreign Court” in the Code of Civil Procedure.

11. That no doubt is true for the purposes of the Civil Procedure Code, but the definition “Foreign Court” in that Code is for the purposes of that Code only. I think there is little difference on this point between the Courts in British India and the Courts in England, Scotland and Ireland. For some purposes the, Courts in Scotland and Ireland are not “Foreign” to the Courts in England, but for the purpose of restraining suits they have always been considered foreign. The plaintiff’s counsel has however placed much reliance on the case of Mungle Chand v. Gopal Ram (1906) I.L.R. 34 Calc. 101 where Sale J. granted an injunction restraining the defendant in that suit, who resided at Bareilly, from proceeding with a suit in the Court at Bareilly.

12. The learned judge in the course of his judgment says: “This Court has acted for a long series of years on the view that the powers of control over persons within its jurisdiction by injunctions operating in personam are not restricted by the provisions of the Civil Procedure Code.” With this statement of the law. I am in thorough accord. But I take leave to differ from the learned judge in the latter portion of his judgment when he says that “the Bareilly Court will doubtless stay the. defendant’s suit in the Bareilly Court, when that Court is informed that this Court has restrained the defendant from proceeding with that suit.” This statement of the learned judge is a wide extension of the view that he states this Court has acted on for along series of years, viz., to exercise powers of control over persons within its jurisdiction and appears to me to be in direct conflict with the decision of the House of Lords in The Carron Iron Co. v. Maclaren (1855) 5 H.L.C. 416, 436. Then it has been argued that Farruckabad is within the jurisdiction of this Court as being a place in British India. To this argument I am unable to assent. The limits of the jurisdiction of the High Court at Calcutta are those which were formerly possessed by the Supreme Court at Calcutta and continued to the High Court by the Indian High Courts Act, 1861, viz., to have jurisdiction over all persons in Bengal, Behar and Orissa.

13. Can it be suggested that this Court has jurisdiction over persons resident within the Original Jurisdiction of the High Court of Bombay. The Court at Farruckabad for the purpose of the suit now pending before it and which the plaintiffs desire to restrain the defendant proceeding with, is just as much a Court of co-ordinate jurisdiction with this Court as the High Court at Bombay is in the case of a suit properly pending before it.

14. It follows in my opinion that the jurisdiction of this Court to restrain proceedings in Courts outside its jurisdiction is governed by the same principles as those that govern Courts of Equity in England, namely, the party, whom it is sought to restrain, is within the limits of the jurisdiction of this Court so that in the event of an injunction being granted against him and being disobeyed he would be subject to process of contempt. The proper course of proceeding in this case would have been for the plaintiffs to apply to the Court at Farruckabad to stay all proceedings in the suit before it, pending the determination of the present suit.

15. This motion therefore fails. The plaintiffs must pay the costs of the motion.

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