Anti Suit Injunction in India,Anti Suit Injunction against foreign Divorce case in India,Grant of Anti Suit Injunction,India Anti Suit Law,Foreign Child Custody Anti Suit Injunction,Foreign Suit Injunction in India.
Anti Suit Injunction in Foreign Divorce Proceeding in India
Some Important Judgments of Anti Suit Injunction in Foreign Divorce Cases.Punjab & Haryana High Court
Rakesh Kumar vs Ms. Ashima Kumar on 23 January, 2007
Equivalent citations: AIR 2007 P H 63
Author: H Gupta
Bench: H Gupta
Hemant Gupta, J.
1. The challenge in the present petition is to an order passed by the learned trial Court on 17-1-2007 issuing notice of an ad interim injunction application filed by the petitioner to the defendant on 27-1-2007.
2. The petitioner has filed a suit for mandatory injunction/permanent injunction/ prohibitory injunction restraining the defendant from continuing with the complaint for divorce pending in the Superior Court of New Jersey Chancery Division-Family Part Passaic County (hereinafter referred to aa 'the Foreign Court') and from filing any other suit case against the plaintiff in the Courts at New Jersey (USA) or any other Court abroad, in contravention of the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act').
3. It is the case of the petitioner that the marriage between the parties was solemnized on 27.1.2000 at Dehradun in the State of Uttaranchal. The parties resided as husband and wife at Panchkula. A daughter was born out of the wedlock on 13.9.2002. The defendant initially went abroad without permission and without seeking consent of the plaintiff on 15.6.2005. leaving her three year old child with her relatives in Delhi. On return from England, the defendant again joined the Company of the plaintiff but refused to apologise for her behaviour and remained non committal about her future plan of leaving the country without the con-sent of the plaintiff.
4. It is alleged that the defendant left the matrimonial home on 9.9.2005 in his absence and by taking away the child, all her belongings, jewelleries and other valuables. Now, the respondent has filed a complaint for divorce on 12.12.2006 before the Foreign Court, on the basis of vague allegations and in respect of the period when the defendant stayed at matrimonial home at Panchkula. It is alleged that none of the al-legations fall within the jurisdiction of the Foreign Court, in as much as the plaintiff never resided or even visited the New Jersey, at any point of time. The plaintiff has been directed to answer the complaint within 35 days after the service of the summons. It is also pointed out that the petitioner has submitted reptytaking the objections with regard to the territorial jurisdiction of the Foreign Court, yet the present suit is necessitated on account of open assertions by the father of the defendant that the Foreign Court will pass an ex parle order with regard to the claim made by the defendant. It is alleged that in terms of Section 19 of the Act, the Court at Panchkula had the jurisdiction to entertain the present suit.
5. Learned Counsel for the petitioner insisted that the application for ad interim injunction should have been decided by the learned trial Court ex parte as the Foreign Court is likely to decide the claim of the defendant on or before 2.2.2007. But, the trial Court has called upon the defendant in such ad interim injunction application. The learned Counsel for the plaintiff argued that such process has caused manifest injustice to the petitioner. Learned Counsel for the petitioner has further called upon this Court to pass an order on merits after considering the judgments referred to by the petitioner.
6. Learned Counsel for the petitioner has vehemently argued that anti suit injunction is a principle well recognized by the Hon'ble Supreme Court and, therefore, in the facts of the case, the defendant should be re-strained from prosecuting her complaint which is lodged before the Foreign Court. It is alleged that the Foreign Court has no jurisdiction to deal with the divorce petition with respect to a marriage solemnized under the Act and when the petitioner has never visited the New Jersey State. Learned Counsel for the petitioner has placed reliance on Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd. and Oil and Natural Gas Commission v. Western Co. of North America . Reference was also made to ad interim order passed by the learned single Judge of Delhi High Court in Harmeeta Singh v. Rajat Taneja 2003 (2) RCR (Civil) 197 as well as on the judgments of the Supreme Court in Smt. Satya v. Shri Teja Singh Y. Narasimha Rao v. Y. Venkata Lakshmi and Vikas
Aggarwal v. Anubha .
7. Before dealing with the judgments referred to by the learned Counsel for the petitioner, it may be noticed that the petitioner has not filed proceedings under the Act. The present suit is a suit for injunction restraining the defendant from pursuing or continuing with the complaint for divorce pending in the Foreign Court. The defendant is shown as resident of Deharadun, but now residing in the State of New Jersey. USA. The jurisdiction of such a suit is not to be regulated by the provisions of the Act but by the Code of Civil Procedure. In terms of Section 20 of the Code, every suit is required to be instituted in a Court within the local limits of whose jurisdiction, the defendant actually and voluntarily resides or carries on business or personally works for gain. The suit also be filed within the territorial jurisdiction of the Court, where the cause of action wholly or in part arises. As per the averments made by the plaintiff. Panchayat Court has the jurisdiction to entertain the suit in view of Section 19 of the Act, alone. Thus, in my view, in terms of Section 19 of the Act, the plaintiff cannot seek to file the present suit for injunction before the Courts at Panchkula.
8. As per the averments made in the plaint, the petitioner has filed his objections before the Foreign Court, a copy of which has been attached as Annexure-P.4 with the present petition. The petitioner has raised objections regarding jurisdiction of the Foreign Court to entertain the complaint for divorce before the said Court. It cannot be presumed that such objections shall not be considered by the Foreign Court in accordance with law.
9. Modi Entertainment Network and Oil and Natural Gas Commissioner's case 2003 SC 1177 (supra) pertained to the dispute arising out of a contract. In Modi Entertainment Network's case (supra), the parties have agreed to be governed by the English Law and submitted to the jurisdiction of the English Court but the plaintiff sought an injunction for restraining the defendant from prosecuting the proceedings initiated by the defendant in England. The plaintiffs appeal was dismissed by the Hon'ble Supreme Court. The Court has relied upon the Rules formulated in The Conflict of Law" by Dicey and Morris (13th Edition) on the basis of the judgments of the House of Lords and the Privy Council and held that Clause 5. Rule 31 deals with a case not covered by a jurisdiction agreement whereas Clause 4 of Rule 32 deals with a case involving jurisdictional agreement. The present case is not of an agreement. The jurisdiction issue has to be examined with reference to the relevant statute. In the case, the supreme Court concluded to the following effect:
From the above discussion the following principles emerge:
(1) In exercising discretion to grant an anti-suit injunction the Court must be satisfied of the following aspects:
(a) the defendant against whom injunction is sought, is amenable to the personal jurisdiction of the Court;
(b) If the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and
(c) the principle of comity-respect for the Court in which the commencement or continuance of action/proceeding is sought to be restrained must be borne in mind.
(2) In a case where more forums than one are available, the court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non conveniens.
10. The said judgment provides little assistance to the petitioner as the defendant is not amendable to the jurisdiction of the Court at Panchkula. Still further, even if the injunction is declined, it cannot be said that the ends of justice will be defeated and in-justice will be perpetuated. The effect of the decree for divorce even if it is granted needs to be examined as binding on the plaintiff in terms of Section 13 of the Code of Civil Procedure. The Foreign Court is yet to pass an order on the objections filed. The principles of comity i.e. respect for the Court in which commencement of continuation of action proceedings is sought. has to be borne in mind. Therefore, it is premature for the petitioner to allege that he will suffer any grave injustice.
11. In Oil and Natural Gas Commission's case AIR 1987 SC 674 (supra), the agreement between the parties stipulated jurisdiction of the Courts in India. Initially, the respondent (Western Company of North America) filed the Award in the Bombay High Court but later lodged a complaint in United State District Court, seeking confirmation of the Award and the supplementary Award. The appellant raised objections under Sections 30 and 33 of the Arbitration Act, 1940 for setting aside of the award. ONGC sought an interim order restraining the respondent from proceeding further with the action instituted in the U.S. Court. In the aforesaid circumstances. the Hon'ble Supreme Court found that the facts of the case were suitable for granting a restraint order as prayed by ONGC. The Hon'ble Supreme Court ob served that the Supreme Court sparingly exercises a jurisdiction to restrain the appellant from proceeding further in an action instituted in the Foreign Court, but it would be unjust and unfair not to restrain the respondent therein from proceeding further with the action in the American Court in the facts and circumstances of the case. Hesitation in granting restraint order would be oppressive. The Court also considered an argument that the High Court does not have the jurisdiction to grant such a restraint order even if the proceedings in the Foreign Court are considered to be oppressive in view of the provisions contained in Section 41(b) of the Specific Relief Act, 1963. The Court also considered the judgment in Cotton Corporation of India v. United Industrial Bank . The Hon'ble Supreme Court held that Section 41(b) of the Specific Relief Act, 1963 would be attracted only in a situation where an injunction is sought to restrain a party from instituting or prosecuting any proceeding in a Court subordinate to that from which the injunction is sought. It was held that there is nothing which supports the proposition that the High Court has no jurisdiction to grant any injunction or a restraint order in exercise of its inherent power in a situation like the one in the said case.
12. The said judgment is again not helpful to the petitioner. The Hon'ble Supreme Court has intervened to grant an injunction inter alia for the reason that the respondent has earlier invoked the jurisdiction of the Bombay High Court for making Award as Rule of the Court. The said action was in terms of the agreement. But still, the respondent initiated proceedings in the U.S. Court. Therefore, the injunction was granted in the facts of that case.
13. In Cotton Corporation's case 1983 SC 1272 (supra), the Hon'ble Supreme Court has considered the corresponding provisions contained in Section 56(b) of the Specific Relief Act, 1887. Under the old Act, by a judicial interpretation, a consensus was reached that as injunction acts in personam while the Court by its injunction cannot stay proceedings in a Court of superior jurisdiction. it could certainly by an injunction re-strain a party before it from further prosecuting the proceeding in other Courts may be superior or inferior in the hierarchy of courts. But the provisions have been materially altered while enacting Section 41(b) of the Specific Relief Act, 1963. It was held to the following effect:
The Legislature manifestly expressed its mind by enacting Section 41(b) in such clear and unambiguous language that an injunction cannot be granted to restrain any person, the language takes care of injunction acting in personam, from instituting or prosecuting any proceeding in a Court not sub-ordinate to that from which injunction is sought. Section 41(b) denies to the Court the jurisdiction to grant an injunction restraining any person from instituting or prosecuting any proceeding in a Court which is not subordinate to the Court from which the injunction is sought. In other words, the Court can still grant an injunction restraining a person from instituting or prosecuting any proceeding in a Court which is subordinate to the Court from which the injunction is sought. As a necessary corollary, it would follow that the Court is precluded from granting an injunction restraining any person from instituting or prosecuting any proceeding in a Court of co-ordinate or superior jurisdiction. This change in language deliberately adopted by the Legislature after taking note of judicial vacillation has to be given full effect.
14. Still further, it considered that the expression Court in Section 41(b) of the Specific Relief Act. 1963 is used in its widest amplitude comprehending every forum where relief can be obtained in accordance with law. The Court also considered that there is near unanimous view that the Courts had no jurisdiction to grant interim injunction restraining a person from instituting any proceeding in a Court not subordinate to that from which injunction is sought. In view of the above, the Foreign Court cannot be treated as a Court subordinate to the Panchkula Court. Therefore, in terms of Section 41(a) and (b) of the Specific Relief Act, 1963, injunction cannot be granted.
15. It may be noticed that Cotton Corporation of India , as well as Oil and Natural Gas Commission's cases (supra) are the judgments rendered by a two Judge Bench of the Hon'ble Supreme Court. In Cotton Corporation of India's case (supra), the anti-suit injunction is sought from an Indian Court only. In any case, the Foreign Court cannot be said to be Court subordinate to the learned trial Judge. The Court granted anti-suit injunction in Oil and Natural Gas Commission's case (supra) in the facts of the said case. The judgments in Smt. Satya and Y. Narasimha Rao's cases (supra), pertain to a foreign judgment in terms of
Section 13 of the Code of Civil Procedure. In the present case, the proceedings before the Foreign Court are still pending, therefore, the said judgments provide little assistance to the petitioner. The case of Vikas Aggarwal (supra), deals with an order wherein the challenge was to an order striking off the defence for not appearing before the Court in pursuance of the order calling upon the petitioner to appear in person. Though an argument was raised on the basis of Section 41(a) and (b) of the Specific Relief Act, 1963 but the Court has not given any opinion on the said argument.
16. In Harmeeta Singh's case (supra), the Court granted injunction for a limited period from prosecuting the proceedings in USA after taking into consideration the undisputed fact that neither of the parties is presently residing in Connecticut USA and also taking into consideration that the wife has not received spouse visa and, therefore, she may not be in a position to enter USA and that she has not submitted to the jurisdiction of the Court in America. However, in the present case, the petitioner has submitted his objections and thus, submitted to the jurisdiction of the Foreign Court.
17. In view of the above discussion, I do not find that any case for granting an injunction is made out. Hence, the present petition is dismissed.
DELHI HIGH COURT
Vibha Suri And Ors vs Vikram Suri And Ors.
.* HIGH COURT OF DELHI : NEW DELHI
+ IA No. 10514/2008 in CS (OS) No. 1192/2008
Vibha Suri and Ors. ... Plaintiffs Through: Ms. Malvika Rajkotia with
Mr. Ranjay N., Adv.
Vikram Suri and Ors. ...Defendants Through: Mr. Rajiv Nayyar, Sr. Adv. with
Ms. Meenakshi Arora and
Mr. M. Narayan, Advs. for D-1
Mr. Baldev Malik, Adv. for D- 2
Judgment decided on : February 23, 2010
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may No be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes in the Digest?
MANMOHAN SINGH, J.
1. The present application under consideration has been filed by defendant No. 1 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (―CPC‖ for short) read with Sections 9 and 151 of the CPC, Section 4 of the Hindu Marriage Act, 1955 and Section 5 of the Hindu Minority and Guardianship Act, 1956 for rejection of the plaint.
2. The present suit has been filed by the plaintiff No. 1 praying for the following reliefs :
a) Grant an anti suit injunction restraining the CS (OS) No. 1192/2008 Page 1 of 18 defendant No. 1 from filing, instituting and
continuing, inter alia, any custody proceedings against the Plaintiff in Dubai and from prosecuting any such proceedings already filed; b) Declare that the marriage contracted under Islamic Law by the Defendant No. 1 is void by
virtue of its bigamous nature;
c) Declare that the children would not be subject to the Islamic Law being from Hindu Marriage
solemnized and registered under Hindu Marriage Act, 1955;
d) Declare that the mother is the guardian of the children under the Hindu Minority and Guardianship Act, 1956.
3. The brief facts leading up to the filing of the present suit are that the plaintiff No. 1 and defendant No. 1 were married at Lucknow on 11th March, 1996 and the marriage was registered at New Delhi on 3rd November, 1998. The parties moved to Riyad, Saudi Arabia in 1998 and then to Dubai in 2000. Two children were born of the wedlock, being the minor plaintiff Nos. 2 and 3 herein.
4. By a letter dated 12th December, 2007 from the Indian Embassy at Cairo (defendant No. 3 herein) addressed to plaintiff No. 1 at 11, RBI Road, New Hyderabad, Lucknow, Uttar Pradesh the plaintiff No. 1's parents got to know that the husband of their daughter plaintiff No. 1 i.e. defendant No. 1 had converted to Islam and married a lady by CS (OS) No. 1192/2008 Page 2 of 18 the name of Wassima Khan and the letter enquired if the marriage of plaintiff No. 1 with defendant No. 1 had been dissolved. By letter dated 15th January, 2008 plaintiff No. 1 informed defendant No. 3 that the earlier marriage was subsisting as it had not been dissolved and that defendant No. 1's subsequent marriage was bigamous and void. Defendant No. 1 moved out of the matrimonial home on 1st February, 2008. However, on 20th February, 2008 both the parties negotiated an amicable resolution/ settlement of the dispute and reduced the same into writing. The said agreement contained clauses as to the division of the matrimonial assets as well as visitation rights etc. by virtue of which defendant No. 1 was allowed to visit the minor children on weekends. The said agreement also contained a clause to the effect that if either party violated any term thereof, the other party would have sole custody of the children.
5. It is the plaintiff No. 1's averment that defendant No. 1 started displaying anger towards her and started taunting her etc. even in the presence of the minor children who witnessed this scene every weekend. Plaintiff No. 1, for the sake of her children, continued to be patient with defendant No. 1 despite his unruly and abusive behaviour.
6. On 11th June, 2008, plaintiff No. 1 received an e-mail from defendant No. 1 informing her that he had obtained an order from a Court in Dubai restraining her from moving the minor children out of Dubai. Apprehending that defendant No. 1 may file proceedings for custody of the children in Dubai - and considering the fact that under the Shariat law children must necessarily reside with the father if he so CS (OS) No. 1192/2008 Page 3 of 18 desires - the plaintiff No. 1 filed the present proceedings as the filing of any proceeding before the Dubai Court would be improper since the same was forum non-conveniens and also since the parties would not be governed by their personal law in Dubai but by the Shariat law. Further, defendant No. 1 through the order of the Dubai Court has curtailed the civil and personal liberties of the two minor children by restraining their travel outside Dubai. Thus the present suit was filed before this Court.
7. Defendant No. 1 has raised preliminary objections to the present suit by filing a written statement wherein the following has been submitted :-
a) No action lies before the Civil Court as the remedies sought by the plaintiffs are available under the Hindu Marriage Act, 1955 and the Hindu Minority and
Guardianship Act, 1956 and as such, the present suit is barred by law.
b) This Court has no territorial jurisdiction to entertain the present suit, on reasons elucidated in paragraph 7 of the written statement.
c) As per the agreement between the parties dated 20th February, 2008, a total of US$ 19,25,000/- were to be transferred in favour of the plaintiff No. 1 by defendant No. 1. Out of this amount, assets and property worth approximately Rs.10,50,00,000/- have already been transferred in favour of plaintiff No. 1 and only the amount of US$ 30,000 is left to be transferred. CS (OS) No. 1192/2008 Page 4 of 18 d) When most of the money had been transacted, plaintiff No. 1 began denying the defendant No. 1's visitation rights as regards the children and tried to frustrate all channels of communication between them.
e) Apprehending that plaintiff No. 1 might one day take the children and exit Dubai, defendant No. 1 filed an application in the Dubai Court praying that plaintiff Nos. 1 and 2 may not be taken outside Dubai. The said prayer was granted.
8. Having perused the submissions contained in the written statement, this Court makes a note of the fact that when an application under Order VII Rule 11 of the CPC is under consideration, as per well settled law it is only the averments contained in the plaint that are to be seen and considered. (Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express,(2006) 3 SCC 100, Manmohan Singh Chawla Vs. Rajesh Berry & Anr., 2009 (3) AD (Delhi) 259)
9. In the application for rejection of plaint being I.A. No. 10514/2008, defendant No. 1 has contended that the reliefs prayed for by the plaintiff No. 1 cannot be granted by way of the present civil suit as the remedies available, if any, are under the Hindu Marriage Act, 1955 and the Hindu Minority and Guardianship Act, 1956 and the instant civil suit is barred by law as per the provisions of Section 4 of the Hindu Marriage Act, 1955 and Section 5 of the Hindu Minority and Guardianship Act, 1956.
Section 4 of the Hindu Marriage Act, 1955 provides as CS (OS) No. 1192/2008 Page 5 of 18 under :-
―Section 4. Overriding effect of Act.--Save as otherwise expressly provided in this Act,--
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this
Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have
effect in so far as it is inconsistent with any of the provisions contained in this Act.‖
Section 5 of the Hindu Minority and Guardianship Act, 1956 provides as under :-
―Section 5. Overriding effect of Act --Save as otherwise expressly provided in this Act,--
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this
Act shall cease to have effect with respect to any matter for which provision is made in this Act ; (b) any other law in force immediately before the commencement of this Act shall cease to have
effect insofar as it is inconsistent with any of the provisions contained in this Act.‖
10. It is contended that plaintiff No. 1's relief of declaring the marriage void is covered under the provisions of Section 5, Section 12 and Section 13 of the Hindu Marriage Act, 1955 as the allegations contained in the plaint constitute grounds of divorce and therefore, remedy is available only under the afore said sections of the said Act. Further, the reliefs pertaining to guardianship of the children can only be sought under the Hindu Minority and Guardianship Act, 1956 (under Section 6 specifically) as Section 5 thereof bars the civil courts from entertaining any such suit. It is settled law that when special rights are CS (OS) No. 1192/2008 Page 6 of 18 created by a statute which provides for an enforcement machinery for the same, the Civil Court's jurisdiction over such matters is barred. Therefore, if a party to a marriage has grievances s/he ought to seek remedy under the Hindu Marriage Act, 1955 only. Section 9 of the Code of Civil Procedure, 1908 also bars the Civil Courts from trying any suit the cognizance of which is either expressly or impliedly barred.
11. It has also been argued that this Court does not have the territorial jurisdiction to adjudicate upon the present suit as the cause of action has been alleged to have arisen in Dubai after defendant No. 1 started allegedly repudiating the agreement dated 20th February, 2008 and admittedly, no cause of action has arisen within this Court's jurisdiction and further, none of the parties are currently residing or carrying on their business/ work for gain in Delhi.
12. It has also been submitted that applying the principle of comity of courts and conflict of laws, it is the Dubai Courts which have jurisdiction over the present matter as the parties have resided in Dubai for the last more than 12 years . As per the doctrine of forum non- conveneins, the present suit cannot lie in this Court as the plaintiff No.1 as well as defendant No. 1 both reside in and work for gain in Dubai. Further, the Indian embassies at Cairo and Dubai have been impleaded only to create jurisdiction of this Court as considering that the present matter is a matrimonial one, these parties are not necessary parties. In lieu of this argument it has also been submitted that the present suit fails to disclose any cause of action.
13. In their reply to the application for rejection of plaint the CS (OS) No. 1192/2008 Page 7 of 18 plaintiffs have submitted that firstly, while considering an application under Order VII Rule 11 CPC only the averments in the plaint are to be seen.
14. As regards the argument that this Court does not have territorial jurisdiction over the present matter, it has been submitted that the marriage of defendant No. 1 and plaintiff No. 1was registered in Delhi and the plaintiff No. 2 was born in Delhi. Further, the Indian Embassies at Cairo and Dubai are under the Ministry of Foreign Affairs which is accountable for and in-charge of protection of the plaintiffs' rights. The Ministry is in Delhi and therefore the Delhi Courts have jurisdiction.
15. As regards the contention that the suit is barred under the Hindu Marriage Act, 1955 the plaintiffs have submitted that no relief under the Hindu Marriage Act, 1955 has been claimed in fact, no matrimonial relief has been claimed at all and though Section 13 of the said Act does provide grounds for divorce, plaintiff No. 1 has not sought the decree of divorce. It has been clarified that the declaratory relief claimed by the plaintiff No.1 is not for declaring her marriage to defendant No. 1 void but for declaring that the marriage under Islamic law of defendant No. 1 to Ms. Wassima Khan is void.
16. The plaintiffs have submitted that they had no remedy except to file a suit before this Court to ensure that the minor children's rights are not impinged by forcing them to submit to a personal law that is not their own only for the reason that their father converted to another religion as he wanted the said personal laws to be applicable to him. CS (OS) No. 1192/2008 Page 8 of 18
17. Further, the present suit has been filed on behalf of plaintiff Nos. 2 and 3 who are Indian citizens born out of a Hindu marriage registered in Delhi and whose travel has been curtailed by defendant No. 1's misuse of the state machinery of an alien law and the State of India in its capacity as parens patria has to ensure that its citizens are not victimized under such alien laws. In this regard learned counsel for the plaintiffs has referred to Gaurav Nagpal Vs. Sumedha Nagpal, AIR 2009 SC 557 wherein the court has stated repeatedly to drive the point home that in a case where the custody or upbringing of a minor child is concerned, the issue demanding the court's paramount consideration would be the welfare of the minor child concerned.
18. It is also stated that the argument of this Court being forum non-conveniens can only be taken up by defendant No. 1 after he has filed his written statement and established why the Dubai courts are a more convenient forum for him despite the fact that the said defendant has admittedly signed an agreement acknowledging that Indian Law shall govern the parties. The case of Dhannalal Vs. Kalawatibai & Ors., AIR 2002 SC 2572 has been referred, paragraph 23 whereof holds that in case of conflict of jurisdiction, the choice ought to remain with the plaintiff to choose the most convenient forum as the plaintiff is the dominus litis i.e. master of, or having dominion over, the suit.
19. During the course of hearing, counsel for the plaintiffs argued that the fundamental right of plaintiff Nos.2 and 3 to reside and travel wherever they desire can only be asserted in an Indian Court since the law in Dubai is governed by the Shariat alone. The declaration CS (OS) No. 1192/2008 Page 9 of 18 sought that plaintiff No. 1 is the natural guardian of the plaintiff Nos. 2 and 3 can only be made by a Civil Court as there is no separate machinery under the Hindu Minority and Guardianship Act for such a declaration.
20. A suit such as the present one can only be entertained by a Civil Court and is not covered by any special law. Further, plaintiff No. 1 has not sought the decree of divorce and defendant No. 1 cannot, by astute drafting pleadings and arguments compel the said relief to be made out when the same has not even been sought. Defendant No. 1 plainly wants to take advantage of his bigamous wrong by divorcing plaintiff No. 1 and the latter has no inclination of allowing the former to reap benefits of his immoral conduct.
21. Another contention put forth by counsel for the plaintiffs is that prayer (a) which is the relief of an anti-suit injunction cannot be granted under either the Hindu Marriage Act, 1955 or the Hindu Minority and Guardianship Act, 1956. Only a civil court can grant such an injunction in the interest of justice and equity.
22. Counsel for the plaintiffs has also referred to M.V. Elisabeth& Ors. Vs. Harwan Investment & Trading Co. Pvt. Ltd., 1993 Supp (2) SCC 433 wherein paragraph 64 states as under : ―64. .... Where substantive law demands justice for the party aggrieved, and the statute has not provided the remedy, it is the duty of the court to devise procedure by drawing analogy from other systems of law and practice. ....‖
23. In Dwarka Prasad Agarwal (Dead) By LRs & Anr. Vs. Ramesh Chandra Agarwal & Ors., AIR 2003 SC 2696 the Court held CS (OS) No. 1192/2008 Page 10 of 18 that the bar of jurisdiction of a civil court should not be readily inferred and courts should normally lean in favour of construction upholding retention of its jurisdiction.
24. It is argued by the learned counsel for the plaintiffs that the question as to which law would be applicable to the present suit and that Shariat law alone is applicable in Dubai etc. are all matters of trial and the plaintiffs should not be non-suited at present under the application under Order VII Rule 11 CPC.
25. Along with the main suit, an application for interim injunction being I.A. No.7388/2008 was listed before this Court on 27th June, 2008. At that date, the Court held as under : ―.....
I am of the view that though such power of anti-suit injunction should be exercised with care and caution as it involves the principle of comity of Court the instant case prima facie presents a situation that if some interim protection is not granted, till at least the return of notice, the reliefs as prayed in the suit will become infructuous. In the circumstances, I am inclined to injunct defendant No. 1 from filing any legal proceedings against the plaintiff in the Courts at Dubai till the next date of hearing. .......‖
The said order has been in operation since 27th June, 2008.
26. In view of the facts and circumstances in the present matter and without going into the rival submissions of the parties, the first and foremost point before this Court is to see whether this Court has territorial jurisdiction to adjudicate upon the present case and whether jurisdiction of this Court can be invoked by the plaintiffs on the basis of the cause of action as alleged. Let the present matter be examined on the objection of territorial jurisdiction raised by the defendants. CS (OS) No. 1192/2008 Page 11 of 18
27. The paragraph constituting the cause of action in the plaint is reproduced below :
―24. That the cause of action accrued in favour of the plaintiff No.1 and against the defendant No.1 on 14 th January, 2008 when the plaintiff's parents received at their home in Lucknow a letter dated 12th December, 2007 addressed to the plaintiff by the Indian Embassy at Cairo i.e. defendant No.3 herein informing her of defendant No.1's second marriage after converting himself to Islam. The cause of action further accrued in favour of the plaintiff No.1 and against the defendant No.1 when on confronting him, he himself admitted the fact of conversion to Islam and the marriage under Islamic Law with such woman. The cause of action also further accrued when in spite of the deadline for closure of financial matters as per agreement dated 20th February, 2008, the defendant No.1 did not meet with the same after extending it several times and showed the offensive and uncooperative attitude. The cause of action further arose when during visitation time, the defendant No.1 started displaying anger towards plaintiff No.1, abused and taunted the plaintiff No.1 on her inability to have sustained her marriage with him and comparing her in demeaning terms with the second woman. The cause of action further arose when the defendant No.1 starting repudiating the agreement by falsely alleging that plaintiff was violating the agreement by denying proper access to the children. The cause of action further arose when the plaintiff asked the Consulate of Dubai i.e. defendant No.2 herein to do so moreover have attested the marriage certificate of defendant No.1 with Ms. Khan and in all likelihood issued a visa to Ms. Khan as a spouse despite being aware of defendant No.1's first marriage and having the plaintiff No.1' name on the defendants' passport under the section of ‗name of spouse'. Thereafter the cause of action accrued on 11th June, 2008, when the plaintiff No.1 received an e-mail from the defendant No.1 informing her that he had obtained an order from the Court in Dubai restraining her from removing the children from Dubai thereby reneging the Agreement. The cause of action is still continuing.‖
28. While determining as to what would constitute the cause of action, the Supreme Court in the case of Om Prakash Shrivastava Vs. Union of India, 2006 (6) SCC 207 observed in paras 12 and 13 as under :-
CS (OS) No. 1192/2008 Page 12 of 18 ―12. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh v. Munsha Singh :
13. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person. (See Black's Law Dictionary). In. Stroud's Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra and Ors. :
It is apparent that while examining the cause of action, the Court ought to look at the factual situation that gives rise to an enforceable claim.
29. As far as the next submission which has been argued in favour of this court having jurisdiction i.e. that defendant Nos. 2 and 3 are part of the Government of India with their respective offices at Delhi, in Kusum Ingots and Alloys Ltd. Vs. Union of India & Anr., AIR 2004 SC 2321 the Supreme Court overruled the decision in U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow v. State of U.P. & Ors., MANU/SC/0422/1995 and held that framing of a statute, statutory CS (OS) No. 1192/2008 Page 13 of 18 rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof. The mere existence of seat of Parliament or Executive does not confer cause of action qua jurisdiction. Thus, situs of the office of embassies does not give jurisdiction to this Court unless there is a substantial cause of action or part of cause of action actually arisen within the territory of this Court.
30. Admittedly, the plaintiff No. 1 and defendant No. 1 were married at Lucknow in 1996 and after registration of the marriage in Delhi in 1998, moved to Riyad in the same year and then to Dubai in 2000, where they have been residing since then. A letter was received by the parents of plaintiff No. 1 informing them of defendant No. 1's conversion to Islam and subsequent marriage to a Pakistani national, but this letter was received by them at their residence in Lucknow.
31. The agreement recorded on 20th February, 2008 was agreed upon in Dubai, as was the division of matrimonial assets and child visitation rights etc.
32. After careful analysis of jurisdiction para, it can be inferred that the parties are not carrying on business, residing or personally working for gain within the territory of this Court. Further the parties have been residents of Dubai undisputedly since the year 1998 after the solemnisation of marriage at Lucknow.
33. Para 26 of the plaint states the details as regards territorial jurisdiction. The same is reproduced as under: ―26. That this Hon'ble Court has the territorial CS (OS) No. 1192/2008 Page 14 of 18 jurisdiction to try and dispose the suit by virtue of the fact that the marriage is registered at Delhi and the parties last resided in Delhi before leaving the country and the defendants No.2 and 3 are part of the
Government of India with offices at Delhi.‖
34. None of the parties are residing or carrying on business or working for gain in the jurisdiction of this Court. That the marriage of the parties was registered in Delhi in 1998 and the parties resided in Delhi before leaving the country do not in the least provide this Court with jurisdiction to try the present matter.
35. The fact of the matter is that the marriage was not solemnized in Delhi, that the parties have been residing in Dubai since 2000 and there is no connection between the present suit and this Court's territorial jurisdiction at all since no cause of action, partially or even in a miniscule manner, has arisen in Delhi.
36. In a recent judgment titled Sholay Media Entetainment & Anr. Vs. Yogesh Patel Ors., being CS (OS) 1714/2001 and decided on 27th January, 2010 this Court held as under :
―11. Undoubtedly, the Court has to see only the averments in a plaint, to decide whether the suit discloses a triable cause of action, and whether this Court has jurisdiction. The Supreme Court in Liverpool & London SP & I Asson. Ltd. v. MV Sea Success, (2004) 9 SCC 512, held that for the purposes of rejecting a plaint under Order 7 Rule 11 the Court should not only look at the averments in the plaint but also must look into documents filed along with, in view of Order 7 Rule 14. In Sopan Sukhdeo v. Assistant Commr., (2004) 3 SCC 137, the Court held that for the purposes of deciding an application under Order 7 Rule 11, the averments made in the plaint are germane and that the pleas taken by the defendant in the written statement would be irrelevant. Further, the Court also emphasized that a meaningful and not formal reading of the plaint was to be adopted so as to nip in the bud any clever drafting of the plaint.‖
CS (OS) No. 1192/2008 Page 15 of 18
37. In the case of ONGC Vs. Utpal Kumar Basu, (1994) 4 SCC 711, the Supreme Court held as under :
―12. It must be remembered that the image and prestige of a court depends on how the members of that
institution conduct themselves. If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the court, certain members of the court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation.‖
38. The remedies sought in the present suit have been sought by way of a civil suit. In such case, as regards the question of jurisdiction, only the provisions contained in the Code of Civil Procedure, 1908 would be applicable. Sections 19 and 20 of the CPC would lay down the parameters for determining whether the present suit lies within this court's jurisdiction or not. Section 19 and Section 20 provide as under:-
19. Suits for compensation for wrongs to person or movables.--Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.
20. Other suits to be instituted where defendants reside or cause of action arises.--Subject to the CS (OS) No. 1192/2008 Page 16 of 18 limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-- (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.
39. A perusal of these provisions followed by the careful applicability of the facts of the case to the same shows that this Court simply lacks the territorial jurisdiction to adjudicate upon the present suit. Section 19 is inapplicable as the commission of the wrong as well as the residence/ place of work/ work for gain of the defendant No. 1 do not fall within this court's jurisdiction. It appears that none of the requirements of Section 20 have been fulfilled, thereby the question of the plaintiff instituting the suit in this Court does not arise.
40. This Court is of the clear view that the Court who will pass the interim injunction/ anti suit injunction should be a competent court having the territorial jurisdiction to pass such an order.
41. Without going further into the merits of other aspects of the matter, as this Court has found that it has no territorial jurisdiction to entertain the present suit, the question as to whether the suit is maintainable or not has to be considered by the competent court which CS (OS) No. 1192/2008 Page 17 of 18 shall have jurisdiction to determine the dispute between the parties as per the merit of the case.
42. The plaintiff may initiate appropriate proceedings before he competent court having jurisdiction in accordance with law.
43. Since this Court has no territorial jurisdiction to entertain the present suit, I.A. No.10514/2008 filed by the defendants is partly allowed. The plaint is returned with the liberty to present the same at a Court of competent jurisdiction.
44. The plaint is accordingly rejected for want of territorial jurisdiction.
45. No costs.
MANMOHAN SINGH, J.
* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No. 12539/2009 in CS (OS) No. 1237/2009
Ravinder Singh Mahindra ...Plaintiff Through : Ms. Malvika Rajkotia with
Mr. Ranjay N., Advs.
Param Singh & Ors. ...Defendants Through : Ms. Geeta Luthra, Sr. Adv.
with Mr. Jatin, Adv.
Reserved on : December 3, 2009
Decided on : January 8, 2010
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
MANMOHAN SINGH, J.
1. The present suit has been filed by the plaintiff for declaration,
permanent injunction, rendition of accounts and specific enforcement of
an agreement with the following prayer :
a) Grant an anti suit injunction restraining the defendant from filing any further proceedings against the plaintiff in the USA;
b) Call upon the defendant to render accounts for the purpose of a division of assets in accordance with the agreement entered into by the parties;
c) Award damages for the mental harassment and torture suffered by the plaintiff on account of the acts of the defendant; and,
CS (OS) No. 1237/2009 Page 1 of 13 d) Specifically enforce the agreement dated 12th March, 2008 duly signed by the parties.
2. The brief facts of the case are that the plaintiff and defendant
no. 1 were married at New Delhi on 2nd May, 1993, after which they
moved back to the USA on 4th May, 1993 and resided there till 2004.
They had two children while they were in the USA. When the parties
relocated to India, the plaintiff moved to Bangalore in pursuit of his
contractual job obligation. The plaintiff then moved to Gurgaon on
account of bad health. As per the plaintiff, the defendant no. 1 during
this entire time had been harassing the plaintiff by taking away the
documents of the joint properties etc. and by repeatedly asking for a
divorce. On 29th May, 2008 the plaintiff filed a divorce petition in
Gurgaon which was dismissed on account of lack of jurisdiction and
which has been challenged in the Hon'ble High Court of Punjab and
Haryana at Chandigarh.
3. On 7th June, 2008 defendant no. 1 filed a complaint in the
Police Station at Defence Colony that the plaintiff had been making
telephonic threats to her. On 10th June, 2008 defendant no. 1 moved out
of the matrimonial residence at Gurgaon. On 24th July, 2008 defendant
no. 1 filed another complaint against the plaintiff under the Indian
Passports Act and the Indian Penal Code. Thereafter defendant no. 1
filed a divorce petition in the USA, a judicial separation petition in the
USA and a divorce petition in Delhi along with complaints in the CAW
Cell, Vasant Vihar, New Delhi, Police Station Neb Sarai, Passport
CS (OS) No. 1237/2009 Page 2 of 13 Office, Bhikaji Cama Place as well as a complaint of Domestic Violence
at Patiala House Courts, New Delhi. Therefore the present suit was filed.
4. The suit along with the application for interim injunction
under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908
(hereinafter referred to as the CPC for brevity) being I.A. No. 8650/2009
was listed before this court on 16th July, 2009. In the application for
interim stay, the plaintiff had prayed for an order restraining the
defendant by way of an ex parte ad interim injunction from filing any
legal proceedings against the plaintiff in California, USA and from
prosecuting any proceedings already filed. On that date, this court passed
an order restraining defendant no. 1 from initiating any fresh legal
proceedings against the plaintiff in California, USA with respect to the
matrimonial discord between the plaintiff and defendant no. 1.
5. The defendants filed a written statement on 23rd September,
2009 as well as an application under Order XXXIX Rule 4 of the CPC
for setting aside of the restraining order passed on 16 th July, 2009. The
defendants also filed an application being I.A. No. 12539/2009 under
Order VII Rule 11 of the CPC for rejection of the plaint on the ground
that the present suit does not disclose any valid cause of action and is
also not maintainable. At the time of hearing, both the parties have
made submissions only in the application filed under Order VII Rule 11
6. It is the defendants' averment in the said application that the
present suit has been filed for specific performance of the alleged
CS (OS) No. 1237/2009 Page 3 of 13 agreement dated 12th March, 2008, however, the said agreement has no
sanctity in the eyes of law.
7. Further, the defendants have averred that a perusal of the
plaint shows that it does not contain even a whisper of the alleged
agreement that the plaintiff wants to enforce. In view of the fact that the
said agreement has not been mentioned and therefore, material facts and
particulars with regard to the same have not been averred, no cause of
action has been disclosed.
8. The crux of the defendants' contention is that the alleged
agreement is not a valid agreement as it there was no consensus of the
parties and neither was there any consideration for the same. The
unstamped and unregistered document itself states that it would come
into play only if a mutual consent petition was filed by 19 th March, 2008
and considering that no such petition was filed, the agreement is not
applicable to the parties.
9. It is also the defendants' contention that another agreement
dated 15th March, 2008 was made between the parties which
incorporated certain differences and improvements upon the agreement
dated 12th March, 2008, indicating that the latter agreement was never
meant to be acted upon and is therefore, not enforceable under law.
10. The defendants have then submitted various other
submissions on merit of the case and referred various decisions but the
same are not relevant for the purpose of deciding the present
CS (OS) No. 1237/2009 Page 4 of 13
11. In the reply to this application, the plaintiff has submitted that
the suit filed on his behalf has been filed for various reliefs including,
but not limited to, specific performance of the agreement dated 12th
March, 2008. Therefore, without prejudice to his rights and for the sake
of argument, even if the agreement is held to be not enforceable, there
are other reliefs which have been prayed for which would need to be
12. According to the plaintiff, the agreement dated 12th March,
2008 is submitted to be a spousal agreement which has been
acknowledged and admitted by the defendants and therefore, the same is
enforceable. Further, the said agreement was signed by both the parties
and therefore it is wrong to say that there was consensus between them.
13. The contention of the plaintiff is that the defendants have
filed multiple cases against the plaintiff being a total of nine cases in
Delhi, India and one case in California, USA and have been constantly
harassing the plaintiff and his family. According to the plaintiff, despite
the interim order restraining the defendants from doing so, the defendant
No.1 has initiated fresh proceedings against the plaintiff in USA Court
for the similar relief. Therefore, in order to avoid oppressive or vexatious
proceedings, the present suit has been filed by the plaintiff.
14. The details of pending litigation being civil and criminal
between the parties in India and overseas have been elaborately
mentioned in the plaint in para 9 and 5.
CS (OS) No. 1237/2009 Page 5 of 13
15. In order to determine the present application it is necessary
to refer the plaint wherein there are specific averments as regards the
agreement dated 12th March, 2008 in paras 13 (g) and 14 of the plaint :
g. The parties then tried to negotiate a settlement with the intervention of lawyers. The matter was getting stalled on the issue of financial settlement. This was over several months. Eventually the
parties met at the residence of a mutual friend and came to an agreement with regard to custody and financial settlements.
It is relevant to mention that the custody
arrangement was arrived at on the premise that the parties would be living next to each other in India. However clearly that has changed in that they may not be able to live next to each other. However the spirit of the agreement was that the children would have free and unobstructed access to their parents who would together be caregivers. There was no parenting plan with the plaintiff reduced to a weekend and vacation parent. On
the contrary, the role for him would be that of an equally committed caregiver as the mother.
14. Needless to say the custody aspect of the agreement was never even looked at and acted upon......"
"Specifically enforce the agreement dated 12th March, 2008 duly signed by the parties."
16. In the plaint, the plaintiff has sought the relief on the basis
of the cause of action which is reproduced hereinbelow :
"27. That the cause of action accrued in favour of the plaintiff and against the defendant on 23rd March, 2009 when she invoked jurisdiction of the US court after having submitted t the jurisdiction of the Indian Court in various proceedings and verifying a petition for divorce on the same day for the Indian Court."
CS (OS) No. 1237/2009 Page 6 of 13
17. The law on the issue under consideration is very well settled
and is encapsulated in Mayar (H.K.) Ltd. v. Owners & Parties, Vessel
M.V. Fortune Express,(2006) 3 SCC 100 wherein the Supreme Court,
with regard to the scope of an application under Order VII Rule 11
observed as under :
"12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants."
18. As regards disclosure of cause of action, reliance can be
placed on the finding Om Prakash Srivastava Vs. Union of India &
Ors., (2006) 6 SCC 207 reproduced hereinbelow :
"12. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary
CS (OS) No. 1237/2009 Page 7 of 13 conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action". (See Rajasthan High Court Advocates' Assn. v. Union of India.)
13. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh v. Munsha Singh.)
14. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person (see Black's Law Dictionary). In Stroud's Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra.)"
19. In the case of Union of India & Ors. Vs. Adani Exports Ltd.
& Anr., AIR 2002 SC 126, the Supreme Court observed as under :
"10. ... Cause of action as understood in civil proceedings means every fact which, if traversed,
CS (OS) No. 1237/2009 Page 8 of 13 would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. It is the bundle of facts which taken with the law applicable to them, gives the plaintiff a right to relief against the defendant. Each and every fact pleaded in the writ petition does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned."
20. Thus, from the aforesaid case law it is apparent that while
considering the expression "cause of action", the Court ought to look at
the factual situation that gives rise to an enforceable claim taking into
consideration the averments made in the plaint, which when read
collectively, constitute a bundle of facts that form the basis of institution
of the present suit by the plaintiff.
21. After going through the plaint, in view of the settled law in
this regard, I do not think it prudent to entertain, at this stage of the
proceedings, the contentions of the defendants relating to enforceability
of the agreement dated 12th March, 2008 and other objections raised at
the time of hearing have to be considered at the time when the main
injunction application and application for vacation of injunction
22. The arguments vis-à-vis the unregistered and unstamped
status of the agreement dated 12th March, 2008 have no force at this
stage of matter when the court is dealing with the application under
Order VII Rule 11 CPC nor this court while considering the present
application can determine the validity of the document. Further, the
CS (OS) No. 1237/2009 Page 9 of 13 document has been relied upon for the relief of specific performance
which is not the only relief prayed for. There are other reliefs which
are sought by the plaintiff in the main suit, therefore, it is wrong to
allege by the defendants that the plaint disclose no cause of action.
23. Now I shall discuss the second contention of the defendants
that the suit file by the plaintiff is not maintainable and no order of an
anti suit injunction can be passed as the defendants have the right of
filing a suit or a proceeding in the courts at the foreign courts if their
rights are being impinged or violated. Various decisions have been
referred during the hearing of the case.
24. The landmark judgment laying down the principles which are
to be taken into consideration by a Court at the time of passing an anti
suit injunction is Modi Entertainment Network v. W.S.G. Cricket Pte.
Ltd.,(2003) 4 SCC 341 and the principles laid down are reproduced
"24. From the above discussion the following principles emerge:
(1) In exercising discretion to grant an anti-suit injunction the court must be satisfied of the following aspects: (a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court; (b) if the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and (c) the principle of comity -- respect for the court in which the commencement or continuance of
action/proceeding is sought to be restrained -- must be borne in mind.
(2) In a case where more forums than one are available, the court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties
CS (OS) No. 1237/2009 Page 10 of 13 and may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non- conveniens.
(3) Where jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusive or non-exclusive jurisdiction of the court of choice of the parties are not determinative but are relevant factors and when a question arises as to the nature of jurisdiction agreed to between the parties the court has to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case. (4) A court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it where parties have agreed to submit to the exclusive jurisdiction of a court including a foreign court, a forum of their choice in regard to the commencement or continuance of proceedings in the court of choice, save in an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a contracting party to be relieved of the burden of the contract; or since the date of the contract the circumstances or subsequent events have made it impossible for the party seeking injunction to prosecute the case in the court of choice because the essence of the jurisdiction of the court does not exist or because of a vis major or force majeure and the like.
(5) Where parties have agreed, under a non-exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti- suit injunction will be granted in regard to proceedings in such a forum convenience and favoured forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors before submitting to the non-exclusive jurisdiction of the court of their choice which cannot be treated just as an alternative forum. (6) A party to the contract containing jurisdiction clause cannot normally be prevented from approaching the court of choice of the parties as it would amount to aiding breach of the contract; yet when one of the parties to the jurisdiction clause approaches the court of choice in which exclusive or non-exclusive jurisdiction is created, the proceedings in that court cannot per se be treated as vexatious or oppressive nor can the court be said to be forum non-conveniens. (7) The burden of establishing that the forum of choice is a forum non-conveniens or the proceedings therein are
CS (OS) No. 1237/2009 Page 11 of 13 oppressive or vexatious would be on the party so contending to aver and prove the same."
25. During the course of hearing, it was not disputed that the
defendant no. 1 filed a divorce petition in USA on 8 th December, 2008.
The same was dismissed on 12th March, 2009 on account of no residence
status in the USA. Thereafter, defendant no. 1 filed a petition for judicial
separation in the USA on 23rd March, 2009 and five days later, filed a
divorce petition under Section 13 (i) (ia) of the Hindu Marriage Act,
1955 in the District Court, Delhi. These facts which disclose that
defendant no. 1 has filed multiple proceedings against the plaintiff based
on an almost similar cause of action and for similar relief read with the
details of litigation mentioned in para 9 and para 5 of the plaint.
26. In the case of Magotteaux Industries Pvt. Ltd. & Ors. Vs.
AIA Engineering Ltd., 155 (2008) DLT 73 (DB) referred by learned
Senior counsel for the defendants, the Division Bench of this Court had
the occasion to deal with a similar point with regard to grant of an anti
suit injunction. In that case the injunction was not granted because the
cause of action in both the matters were different and occurred on
different dates which was the relevant consideration of the grant of anti
suit injunction. Paras 57 of the judgment read as under :
"57. It appears that the causes of action in both the matters are different and occur on different dates which becomes relevant for the consideration of the grant of anti- suit injunction. In Suit No.189/2006 there was no specific averment that the respondent has appointed two companies in USA and Italy to deal with the product i.e. composite wear components in question. It was also not alleged by either of the parties that the respondent has actually been exporting the product in question under the infringement
CS (OS) No. 1237/2009 Page 12 of 13 of patent of appellant No.2 granted in India nor there is any averment by the Appellants or respondent that the respondent is exporting composite wear components from India, and/or two companies appointed by the respondent has imported the goods from U.S.A."
In view of the facts mentioned in preceding para 25, this
judgment does not help the case of the defendant no. 1 as the facts in the
present case are quite different.
27. In view of settled law on the subject, prima facie, it appears
as far as filing of present of an anti suit injunction is concerned, the
same is maintainable and the objections raised by the defendants have no
force at this stage of the matter particularly while considering the
present application. This objection is still open which has to be
considered at the time of hearing of the interim application.
28. In view of the above said discussion, the application of the
defendants being I.A. No. 12539/2009 is not maintainable and the same
is disposed of accordingly.
29. List the matter before the roster Bench on 15th February, 2010
for further directions.
MANMOHAN SINGH, J.
JANUARY 8, 2010