In common law cases the appellate court could ordinarily review only rulings of law. In equity cases, on the other hand, the appellate court could review findings of fact as well as conclusions of law. The significant thing about common law pleadings in error was that their scope was so limited that they did not bring about a review of the merits of the judgment. The appellate court did not pass on whether or not the judgment below was fair or just, nor on what the correct judgment should have been. Instead, the sole question was, Did the trial judge commit an error? The function of an appellate court in reviewing equity cases, on the other hand, is not to search the record for errors of law, but to examine the result in the light of the evidence to see if justice has been done. Thus, the equity doctrine is in accord with the modern theory that the primary purpose of review is to see that justice is done in the individual case.
The legal system of a country can be identified as either following Common Law system or a Civil law system.
A rough estimation that around Eighty countries follows common Law system, they prefer judges opinion over the statutes.
Common Law Countries based on English Common Law[stare decisis /precedent by courts are binding)
- The United States
Civil Law Countries[Only legislative enactments are considered legally binding]
Other Legal systems are :
- Sharia system
- Halakha system
- Canon Law system
- Hybrid legal system [India]
- Adat or Customary/ Cultural Law [ Indonesia ]
- The Kanun (The Code of Lekë Dukagjini of Albenia and kosovo]
- The European Union Court of Justice mixes Civil Law (based on the treaties), attaching importance of Case Law.
“the common law was an ‘antient collection of unwritten maxims and customs“
English law is said to be rooted in common law. Common law grew from the customs of the English people. It was not made by legal officials, as statutes are. The role of legal officials – particularly judges – was to interpret and declare legal custom; their judgments provided evidence of it. They did not make it or invent it. This mode of development through continual interpretation and reinterpretation of legal inheritance was, according to common lawyers, better adapted to social complexity, change.
After the eleventh-century Norman conquest of England, the King’s Courts gradually extended their sway throughout the kingdom. Institutionally this was at the expense of a variety of local assemblies, tribunals, customary bodies and practices. Substantively, too, the centralized application of written laws had profound transformative effects on oral customs and traditions, even when the courts claimed to be applying customary law (Constable 1994). The law dispensed by the King’s Courts came to be known as the common law.
Now ‘common law’ is a global term for the legal tradition that was developed in Britain by these courts over centuries, and spread to its legal offshoots, such as the USA, Canada, Australia and New Zealand. The common law, in this sense, is most often contrasted with the Civil Law of continental Europe.
In a second and narrower usage, internal to the common law tradition, the law dispensed by the common law courts was distinguished from the specific ‘equitable’
interventions by the Lord Chancellor and the Court of Chancery to supplement traditional common law remedies .
Third, when statutes enacted by Parliament became prominent sources of English law, they were also distinguished from the common law developed by the courts. This third distinction persists, though statutes are more and more general in scope and effect and in many areas have come to override the common law.
English common law practice had many features that distinguished it from other legal traditions. It insisted – to the dismay of Hobbes, Bentham and other legal positivists – that the common law, far from being made by any identifiable institutions or persons – kings or parliaments or even judges – grew from the customs of the English people. As Sir William Blackstone put it in the eighteenth century, the common law was an ‘antient collection of unwritten maxims and customs’ (Blackstone [1765-9] 1979, vol. 1: 17).
Notwithstanding their insistence that the common law reflects and rests upon the customs of the English people, not every custom was law. Customs became recognizably legal in the common law when legal officials recognized them (though this was not, for common lawyers, the source of their authority). Coke, Hale and Blackstone all paid great attention to the activities of such officials. However, whereas legal positivists insisted upon the primacy of legislators, the common law tradition did not. Instead its focus was on the common law judge. The declaration, determination, refinement, alteration and transformation characteristic of common law development were primarily the work of the judges of the common law courts: ‘the depositary of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land’ (Blackstone [1765-9] 1979, vol. 1: 69).
In nineteenth century common law practitioners tended not to think of the law as a collection of substantive rules at all. Rather it was a system of reasoning, and a collection of procedures and remedies, to be adapted to cases as they came before the court. Substance, on this view, came ‘from below, in a constant feeding from society’ (Lobban 1991: 79).
On the other hand, common law theorists did believe that there were substantive rules of the common law, but did not regard them as simply to be applied or made. In any
event, unlike statutes, they did not come in a fixed and delimited textual form, ready to be applied. The meaning and bearing of customs and precedents was rather of continual
argument, interpretation and reinterpretation. More generally, common law theorists regarded the law, not as a systematic collection of discrete rules, but as a traditional or
customary order, of language, thought, maxims, principles, understandings, values and rules – with its own ways of knowing, thinking and arguing, handed down over generations.
Lawyers and judges are trained and participate in this order, and interpret it. The judges are the authoritative guardians of this tradition. They conserve it, bring it to bear on
particular cases, adapt, apply and transmit it. New things are said and done, of course, on this ‘Argonauts Ship’ – but by experts working from inside, not out, with materials
already on board, and with a keen and experienced sense of the risks involved in straying too far.
However, the common law judges are not merely participants in the legal tradition; they are experts in the law. This is an expertise not available to everyone without long experience and training. Rather, as Hale observed, ‘men are not borne Comon Lawyers’ (Hale 1966: 505). Without training and long experience they lack what Coke called ‘the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it’ (Coke 
- Blackstone, Sir W. (1765-9) Commentaries on the Laws of England, 4 vols, Oxford: Clarendon Press, 1787; Chicago, IL: Chicago University Press, 1979.(The 1979 edition
contains valuable editorial introductions to each volume.)
- Burgess, G. (1992) The Politics of the Ancient Constitution, London: Macmillan. (Excellent account of English political and legal thought in the seventeenth century, with thorough and thoughtful revisions to Pocock’s theses about the ‘common law mind’.)
- Coke, Sir E. (1608) ‘Prohibitions del Roy’, in 77 English Reports, London: Stevens and Sons, 1907, 1342-3.(The case was 1608, but is incorporated in the 1907 English
- Constable, M. (1994) The Law of the Other, Chicago, IL: University of Chicago Press.(Study of transformation of the customary institution of the ‘mixed jury’ with
interesting reflections on the replacement of customary law by ‘official’ law.)
- Hale, Sir M. (1665) ‘Considerations Touching the Amendment or Alteration of Lawes’, in F. Hargrave (ed.) A Collection of Tracts Relating to the Law of England, vol. 1, 1787, 249-89; repr. Oxford: Professional Books, 1982.(See §2 above for discussion.) (1713) The History of the Common Law of England, ed. C.M. Gray, Chicago, IL: University of Chicago Press, 1971. (Published posthumously; printed three times, 1713, 1716, 1739, virtually as it stood in manuscript and numerous times thereafter with editorial additions.)
(1966) ‘Sir Matthew Hale’s Criticisms on Hobbes’s Dialogue of the Common Laws’, repr. in Sir W. Holdsworth, A History of English Law, vol. 5, 2nd edn, London:
Methuen, 419-513.(Unpublished in Hale’s lifetime.)
- Kelley, D.R. (1990) The Human Measure, Cambridge, MA: Harvard University Press.(Masterly historical discussion of the role of custom in European legal and social theory.)
- Lieberman, D. (1989) The Province of Legislation Determined, Cambridge: Cambridge University Press.(Excellent discussion of eighteenth-century English and Scottish, common law and positivist, views on the rival claims of common law and legislation – especially as sources of law reform.)
- Lobban, M. (1991) The Common Law and English Jurisprudence, 1760-1850, Oxford: Clarendon Press.(Study of the tensions between common law practitioners’
remedies-focused assumptions about the nature of the common law and the more rule-based focus of eighteenth-century common law system builders, such as Blackstone, and critics of the common law tradition, such as Bentham.)
- Pocock, J.G.A. (1987) The Ancient Constitution and the Feudal Law: A Reissue with a Retrospect, Cambridge: Cambridge University Press.(Classic study of the ‘common law mind’ with extensive reply to critics of the first edition.)
KEYWORDS:-DEFAMATION – COMMON LAW PRINCIPLES-Libellous communication-
AIR 1970 SC 1876 : (1969) 2 SCR 692 : (1970) CriLJ SC 1651
(SUPREME COURT OF INDIA)
|M. C. Verghese||Appellant|
|T. J. Ponnan and another||Respondent|
(Before : J. C. Shah, V. Ramaswami And A. N. Grover, JJ.)
Criminal Appeal No. 46 of 1967, Decided on : 13-11-1968.
Defamation—Libellous communication—Defamatory letter addressed to spouse—Principle of English common law cannot be imported—The communication to spouse is privilege but the other spouse is entitled to prosecute if the communication could be proved by evidence that of other spouse.
It must be remembered that the Indian Penal Code exhaustively codifies the law relating to offences with which it deals and the rules of the common law cannot be resorted to for inventing exemptions which are not expressly enacted.
The exceptions to Section 499 Indian Penal Code must be regarded as exhaustive as to the cases which they purport to cover and recourse cannot be had to the English common law to add new grounds of exception to those contained in the statute. A person making libellous statements in his complaint filed in Court is not absolutely protected in a criminal proceeding for defamation, for under the Eighth Exception and the illustration to Section 499 the statements are privileged only when they are made in good faith. There is therefore authority for the proposition that in determinating the criminality of an act under the Indian Penal Code the Courts will not extend the scope of special exceptions by resorting to the rule peculiar to English common law that the husband and wife are regarded as one.
The complainant claims that he has been defamed by the writing of the letters. The letters are in his possession and are available for being tendered in evidence. We see no reason why inquiry into that complaint should, on the preliminary contentions raised, be prohibited. If the complainant seeks to support his case only upon the evidence of the wife of the accused, he may be met with the bar of Section 122 of the Indian Evidence Act. Whether he will be able to prove the letters in any other manner is a matter which must be left to be determined at the trial and cannot be made the subject matter of an enquiry at this stage.
Evidence Act, 1872—Section 125—Privilege communication—Nullity of marriage—The communication made at the time when the marriage was subsisting—Communication is protected.
The bar to the admissibility in evidence of communications made during marriage attaches at the time when the communication is made, and its admissibility will be adjudged in the light of the status at that date and not the status at the date when evidence is sought to be given in Court.
Penal Code, 1860—Section 499—Defamation—Libellous communication—Defamatory letter addressed to spouse—Principle of English common law cannot be imported—The communication to spouse is privilege but the other spouse is entitled to prosecute if the communication could be proved by evidence that of other spouse.
Privilege communication—Nullity of marriage—The communication made at the time when the marriage was subsisting—Communication is protected.
Counsel for the Parties:
Miss Lily Thomas, Advocate, for Appellant
Dr. W. S. Barlingay, Senior Advocate, (Mr. Gapat Rai, Advocate, with him) (for No. 1) and A. G,. Pudissery, Advocate (for No. 2), for Respondents.
Shah, J—Rathi daughter of M. C. Verghese was married to T. J. Ponnan. On July 18, 1964, July 25, 1964 and July, 30, 1964, Ponnan wrote from Bombay letters to Rathi who was then residing with her parents at Trivandrum which it is claimed contained defamatory imputations concerning Verghese. Verghese then filed a complaint in the Court of the District Magistrate, Trivandrum. against Ponnan charging him with offence of defamation,. Ponnan submitted an application raising two preliminary contentions- (1) that the letters which formed the sole basis of the complaint were inadmissible in evidence as they were barred by law or expressly prohibited by law from disclosure; and (2) that uttering of a libel by a husband to his wife was not “publication” under the law of India and hence cannot support a charge for defamation, and prayed for an order of discharge, and applied that he may be discharged.
2. The District Magistrate held that a communication by a husband to his wife or by a wife to her husband of a matter defamatory of another persons does not amount in law to publication, since the husband and wife are one in the eye of law. In so holding, he relied upon the judgment, in Wennhak vs. Morgan (1888) 20 QBD 635. He also held that the communication was privileged, and no evidence could be given in court in relation to that communication. He accordingly ordered that Ponnan be discharged under S. 253 (2), Code of Criminal Procedure.
3. In a revision application filed by Verghese before the Court of Session, the order was set aside and further enquiry into the complaint was directed. In the view of the learned Sessions Judge the doctrine of the common law of England that a communication by one spouse to another of a matter defamatory of another persons does not amount to publication has no application in India, and S. 122 of the Indian Evidence Act does not prohibit proof in the Court by the complainant of the letters written by Ponnay to his wife.
4. The case was then carried to the High Court of Kerala in revision. The High Court set aside the order of the Court of Session and restored the order of the District Magistrate. The High Court held that from the averments made in paragraphs 9 to 11 of the complaint it was clear that the writing of defamatory matter by Ponnan to his wife Rathi was not in law publication, and that “if the letters written by Ponnan to his wife cannot be proved in court either by herself directly or through her father in whose hands she had voluntarily placed them, the imputations therein fell outside the court’s cognizance and no charge under Section 500, Indian Penal Code could be deemed to be made out”. Against the order passed by the High Court discharging Ponnan, this appeal is preferred with certificate granted by the High Court.
5. It was assumed throughout these proceedings that the letters are defamatory of the complainant. Under the Indian Penal Code in order that an offence of defamation may be committed there must be making or publication of any imputation concerning any persons by words either spoken or intended to be read, or by signs or by visible representations, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person. To constitute the offence of defamation there must therefore be making or publication of an imputation concerning any persons and the making or publication must be with intent to harm or knowing or having reason to believe that such imputation will harm, the reputation of such person. Unless there is publication there can be no offence of defamation committed.
6. In England the rule appears to be well settled that except in certain well defined matters, the husband and wife are regarded as one and in an action for libel disclosure by the husband of the libel to his wife is not publication. In Wennhak’s case, (supra), Manisty, J., observed:
“…the maxim and principle acted on for centuries is still in existence, viz., that as regards this case husband and wife are in point of law one person.”
The learned Judge examined the foundation of the rule and stated that it was, after all, a question of public policy or social policy.
7. But the rule that husband and wife are one in the eye of law has not been adopted in its full force under our system of law and certainly not in our criminal jurisprudence.
8. In Queen-Empress vs. Butchi, (1894) ILR 17 Mad 401 it was held that there is no presumption of law that the wife and husband constitute one person in India for the purpose of the criminal law. If the wife, removing the husband’s property from his house, does so with dishonest intention, she is guilty of theft.
9. In Abdul Khadar vs. Taib Begum, AIR 1957 Mad 339 the Madras High Court again held that there is no presumption of law in India that a wife and husband constitute one persons for the purpose of criminal law, and therefore the English common law doctrine of absolute privilege cannot prevail in India.
10. It must be remembered that the Indian Penal Code exhaustively codifies the law relating to offences with which it deals and the rules of the common law cannot be resorted to for inventing exemptions which are not expressly enacted.
11. In Tiruvengada Mudali vs. Tripurasundari Ammal, ILR 49 Mad 728 (FB) a Full Bench of the Madras High Court observed that the exceptions to S. 499 Indian Penal Code must be regarded as exhaustive as to the cases which they purport to cover and recourse cannot be had to the English common law to add new grounds of exception to those contained in the statute. A persons making libellous statements in his complaint filed in Court is not absolutely protected in a criminal proceeding for defamation, for under the Eighth Exception and the illustration to S. 499 the statements are privileged only when they are made in good faith. There is therefore authority for the proposition that in determining the criminality of an act under the Indian Penal Code the Courts will not extend the scope of special exceptions by resorting to the rule peculiar to English common law that the husband and wife are regarded as one.
12. But we do not deem it necessary to record any final opinion on this question, because, in our judgment, this enquiry has to be made when the complaint is tried before the Magistrate.
13. Verghese has complained that he was defamed by the three letters which Ponnan wrote to Rathi. Ponnan, however, says that the letters addressed by him to his wife are not -except with his consent-admissible in evidence by virtue of S. 122 of the Indian Evidence Act, and since the only publication pleaded is publication to his wife, and she is prohibited by law from disclosing those letters, no offence of defamation could be made out. So stated, the proposition is, in our judgment, not sustainable. Section 122 of the Indian Evidence Act falls in Ch. IX which deals with evidence of witnesses in proceeding before the Court. That section provides:
“No persons who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the persons who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.”
The section consists of two branches – (1) that a married person shall not be compelled to disclose any communication made to him during marriage by his spouse; and (2) that the married persons shall not except in two special classes of proceedings be permitted to disclose by giving evidence in Court the communication, unless the person who made it, or his representative in interest, consents thereto.
14. A prima facie case was set up in the complaint by Verghese. That complaint has not been tried and we do not see how, without recording any evidence, the learned. District Magistrate could pass any order discharging Ponnan. Section 122 of the Evidence Act only prevents disclosure in giving evidence in court of the communication made by the husband to the wife. If Rathi appears in the witness box to give evidence about the communications made to her (by-Ed.) husband, prima facie the communications may not be permitted to be deposed to or disclosed unless Ponnan consents. That does not, however, mean that no other evidence which is not barred under section 122 of the Evidence Act or other provisions of the Act can be given.
15. In a recent judgment of the House of Lords Rumping vs. Director of Public Prosecutions, (1962) 3 All ER 256 Rumping the mate of a Dutch ship was tried for murder committed on board the ship. Part of the evidence for the prosecution admitted at the trial consisted of a letter that Rumping had written to his wife in Holland which amounted to a confession. Rumping had written the letter on the day of the killing, and had handed the letter in a closed envelope to a member of the crew requesting him to post it as soon as the ship arrived at the port outside England. After the appellant was arrested, the member of the crew handed the envelope to the captain of the ship who handed it over to the police. The member of the crew, the captain and the translator of the letter gave evidence at the trial, but the wife was not called as witness. It was held that the letter was admissible in evidence. Lord Reid, Lord Morris of BorthY-Gest, Lord Hodson and Lord Pearce were of the view that at common law there had never been a separate principle or rule that communications between a husband and wife during marriage were inadmissible in evidence on the ground of public policy. Accordingly except where the spouse to whom the communication is made is a witness and claims privilege from disclosure under the Criminal Evidence Act, 1898, (of which the terms are similar to S. 122 of the Indian Evidence Act though not identical), evidence as to communications between husband and wife during marriage is admissible in criminal proceedings.
16. The question whether the complainant in this case is an agent of the wife because he has received the letter from the wife and may be permitted to give evidence is a matter on which no opinion at this stage can be expressed. The complainant claims that he has been defamed by the writing of the letters. The letters are in his possession and are available for being tendered in evidence. We see no reason why inquiry into that complaint should, on the preliminary contentions raised, be prohibited. If the complainant seeks to support his case only upon the evidence of the wife of the accuse, he may be met with the bar of section 122 of the Indian Evidence Act. Whether he will be able to prove the letters in any other manner is a matter which must be left to be determined at the trial and cannot be made the subject-matter of an enquiry at this stage.
17. One more question which was raised by counsel for the appellant may be briefly referred to. It was urged that since the matter reached this Court, Rathi has obtained a decree for nullity of marriage against Ponnan on the ground of his impotency, and whatever bar existed during the subsistence of the marriage cannot now operate to render Rathi an incompetent witness. But the argument is plainly contrary to the terms of section 122. If the marriage was subsisting at the time when the communications where made, the bar prescribed by S. 122 will operate. In Moss vs. Moss, (1963) 2 All ER 829 it was held that in criminal cases, subject to certain common law and statutory exceptions, a spouse is incompetent to give evidence against the other, and that incompetence continues after a decree absolute for divorce or a decree of nullity (where the marriage was annulled was merely avoidable) in respect of matters arising during covertime (coverture-Ed.).
18. Counsel for the appellant however urged that the rule enunciated in Moss’s case, (supra) has no application in India, because under Sections 18 and 19 of the Divorce Act no distinction is made between marriage void and voidable. By S. 18 a husband or a wife may present a petition for nullity of marriage to the appropriate Court and the Court has under section 19 power to make the decree on the following grounds:
“ (1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit,
(2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the marriage;
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
Nothing in this section shall affect the jurisdiction of the High Court to make decree of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.”
Marriage with the respondent who was impotent at the time of the marriage or at the time of the institution of the suit is not ab initio void:it is voidable. As stated in Latey on Divorce, 14th Edn., at page No. 194, Art.353:
“Where impotence is proved the ceremony of marriage is void only on the decree absolute of nullity, but then it is void ab initio ‘to all intents and purposes’. Such a marriage “is valid for all purposes, unless a decree of nullity is pronounced during the lifetime of the parties.”
When the letters were written by Ponnan to Rathi, they were husband and wife. The bar to the admissibility in evidence of communications made during marriage attaches at the time when the communication is made, and its admissibility will be adjudged in the light of the status at that date and not the status at the date when evidence is sought to be given in Court.
19. We are therefore, of the view that the appeal must be allowed and the order passed by the High Court set aside. The proceedings will be remanded for trial to the District Magistrate according to law.
KEYWORDS:-COMMON LAW-SUIT IN EQUITY- ELECTION PETITION-
AIR 1973 SC 2077 : (1973) 3 SCR 1016 : (1973) 2 SCC 170
(SUPREME COURT OF INDIA)
|P. Malai Chami||Appellant|
|M. Andi Ambalam and others||Respondent|
(Before : D. G. Palekar And A. Alagiriswami, JJ.)
Civil Appeal No. 649 of 1972, Decided on : 18-04-1973.
Representation of People’s Act,—Section 97—Recrimination petition— Courts in general are averse to allow justice to be defeated on a mere technicality. But in deciding an election petition the High Court is merely a tribunal deciding an election dispute. Its powers are wholly the creature of the statute under which it is conferred the power to hear election petitions. An election petition, as has been pointed out again and again, is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power. It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that the people do not get elected by flagrant breaches of that law or by corrupt practices.
Alagiriswami, J—This appeal arises out of the election held in March 1971 to the Tamil Nadu Legislative Assembly to fill a seat from the Melur (North) constituency in Madurai district in which the appellant was declared elected by a majority of 127 votes receiving 37,337 votes as against 37,210 received by the respondent. 3,381 votes were held invalid. The respondent filed an election petition on 23-4-1971 not only questioning the election of the appellant but also claiming the seat for himself. He made various allegations in his petition which related to infraction of many of the rules regarding the conduct of election. But we may refer to four important matters, which he had referred to in his petition, the importance of which would become clear in due course. In paragraph (g) of his petition he has stated:
“The mixing of the papers, with rapid counting, has resulted in large number of votes polled in favour of the petitioner erroneously added and bundled in the votes polled by the respondent. This has also resulted in wrong counting.”
In paragraph (1) he has stated:
“Therefore the petitioner submits that the ballot papers may be directed to be arranged according to the serial number and then counted. The petitioner submits that this will reveal the introduction of unauthorised ballot papers, if any, and use of different inks for marking.”
Paragraph (n) runs as follows:
“The petitioner states that a number of votes have been declared invalid without any justification whatsoever. Many of the votes declared invalid were cast in favour of the petitioner. In the counting, some of the invalid votes were taken in favour of the first respondent. In view of the mixing of the ballot papers counting was done hastily and rapidly without any opportunity to candidate or his agent to supervise the counting. In fact, some of the numbers of counting were wrongly mentioned and went to the respondent instead of counting in the name of the petitioner. If recount has been taken the petitioner would have been declared elected.” In paragraph (s) it is stated:
“The petitioner also states that at the time of counting the votes in favour of the petitioner were bundled in the bundles containing the votes in favour of the respondent and they were counted for the first respondent. Number of ballot papers were found outside the counting place.”
Finally, he prayed to the Court to:
(a) direct recounting of the votes;
(b) declare the petitioner duly elected;
(c) declare the election of the 1st respondent to Melur North Constituency void, and
2. The appellant in his counter affidavit denied all the allegations in the petition. The respondent filed an interlocutory application for directing a scrutiny and recounting of all the votes. To this application no counter affidavit was at all filed by the appellant. Five witnesses including the petitioner were examined on his side and on the respondent’s side also five witnesses including the Returning Officer, the Assistant Returning Officer as well as the successful candidate were examined at great length. The learned Judge after an elaborate, careful, thorough and meticulous examination, which are almost a model of judicial balance and propriety, passed an order for recount of the votes. We consider it unnecessary to set them out at length. It may be useful to set out the main grounds on which he ordered recount. These are found in paragraph 22 of his order.
“22. From the foregoing discussion, the following facts emerge:
(i) Over-worked and tired personnel were employed for the counting. There are reasonable grounds to think that the counting was not done properly.
(ii) When the counting was in progress, the petitioner admittedly complained about the hasty counting, and there are reasonable grounds to think that on account of the hurry and haste, in which counting was done, the counting was not likely to be correct or proper.
(iii) The unlawful entry of Mr. O. P. Raman into the counting hall when the counting was going on, caused dislocation and disturbance to the counting, which was likely to have affected the accuracy in the counting.
(iv) The Assistant Returning Officer could not have checked each of the ballot papers brought to him in the doubtful bundles in the way in which such papers should have been checked by him, having regard to the time within which he claims to have completed the checking and counting, whereas much longer time would be required to check up these bundles in the proper and prescribed way. This leads to the reasonable inference that each of the ballot papers contained in the doubtful bundles was not checked.
(v) The order of the Returning Officer directing recounting of the ballot papers treated as invalid lends support to the contention of the petitioner that the votes were not properly scrutinised.
(vi) The failure of the Returning Officer to implement his order to recount has vitiated the declaration of the result.
(vii) The Returning Officer and the Assistant Returning Officer totally failed to check up the valid votes and this is clearly a breach of the instructions issued by the Election Commission and also by the State Government. There is no assurance that the votes were properly sorted and counted. There is reasonable possibility to hold that the counting was not proper; and
(viii) The test check conducted by me of some of the ballot papers treated as invalid clearly shows that some valid votes secured by the petitioner and some secured by the respondent have been treated as invalid and rejected. This clearly shows that the counting was wrong.”
It would be noticed that the main attack was in respect of the counting and the findings of the learned Judge also related to the same question. The appellant had very hotly contested the propriety of the request for recount. The learned Judge considered the decisions in Ram Sewak v. H. K. Kidwai, AIR 1964 SC 1249, Jagjit Singh v. Kartar Singh, AIR 1966 SC 773, Jitendra Bahadur v. Krishna Behari, AIR 1970 SC 276, Swami Rameshwara Nand v. Madho Ram, (1968) 8 DEC 153 (SC), Nathu Ram Mirdha v. Gordhan Soni, (1968) 8 DEC 286 (SC) and after a very elaborate consideration of the facts as well as the principles involved in those decisions had held that recount should be ordered. We are satisfied that the High Court has taken into consideration all the material circumstances and has appreciated the evidence from the correct perspective in coming to the conclusion that the circumstances under which the counting was carried out necessitated a recount.
3. The recount was ordered to be done by four advocates acting as tellers, two from each side out of a list of four furnished by each side. Both the parties and their respective counsel were permitted to be present along with four counting agents for petitioner as well as the respondent and an Assistant Registrar of the High Court was appointed to preside over the recount of the ballot papers and to be assisted by the members of staff dealing with election cases. He was ordered to submit his report within two days after the completion of the recounting. It was ordered that on receipt of that report an opportunity will be given to both parties to be heard on that report and necessary orders will be passed thereon. The Assistant Registrar submitted his reports on 19-2-1972, and on 23-2-1972, 24-2-1972, 25-2-1972 and 28-2-1972, the Judge himself took up for decision the validity or otherwise of the various votes which were disputed and dictated orders then and there. Even before him some concessions were made in respect of certain votes by both the parties and some the Judge decided by himself. The Assistant Registrar himself dealt merely with votes which were conceded by one side or the other as having been validly cast in favour of the opposite side. Before him out of the votes which were held invalid by the Returning Officer, 2583 were agreed as rightly held invalid but there was dispute about 804 votes (It thus appears that there was a mistake even in the counting of the invalid votes) From out of the votes counted in rounds 8 to 11, 11,301 votes in favour of the respondent were conceded as valid and 395 were disputed; 11,951 were conceded as valid in favour of the appellant and 567 were disputed. Thus the total of these disputed votes amounting to over 1700 were decided by the Judge himself in the presence of the parties and their advocates, some on the basis of concessions, some as decided by the Judge himself, as already mentioned. It is necessary to mention also that as in the recount from among the votes held invalid by the Returning Officer petitioner conceded 65 were valid votes cast for the respondent. He also conceded that 11 votes counted by the Returning Officer in his favour were valid votes cast for the respondent. 19 votes held by the Returning Officer as validly cast for the petitioner were conceded by him to be invalid. The total came to 95. Similarly 126 votes cast for the petitioner but rejected by the Returning Officer were found valid and 14 votes counted by the Returning Officer as cast for the respondent were found to have been really cast for the petitioner. These facts clearly establish large scale mistakes in counting. As a result of all this it was finally found that the appellant had got 37,372 votes and the respondent 37,297 votes. Thus the majority obtained by the appellant was reduced from 127 to 75.
4. It may be remembered that one of the grounds on which the learned Judge had come to the conclusion that recount should be ordered was that the unlawful entry of a Minister, Mr. O. P. Raman into the counting hall when the counting was going on, had caused dislocation and disturbance to the counting which was likely to affect the accuracy of the counting. The learned Judge had discussed this question at length and before us a special Leave Petition was filed by the Returning Officer questioning the decision of the learned Judge in the petition for recount as well as in the main election petition. We had rejected that petition. But we should make it clear that the learned Judge has been very fair in his discussion of this matter. It seems to have been contended before him that Mr. Raman had a right to enter the place where the counting was going on, under R. 66 of the Conduct of Elections Rules in order to get the certificate. The Minister concerned was the successful candidate for the Melur (South) Constituency, the counting for which was over at 5 a.m. on 11-3-71 in the same building. At 8 a.m. began the counting of the votes for the Melur (North) Constituency, i.e. the election in dispute. Mr. Raman was not a candidate in that election who was entitled under Rule 53 to be present in the room where the counting was going on. We cannot understand the anxiety of the Returning Officer in questioning the orders of the learned Judge in the petition for recount as well as the main election petition. After all the concerned parties were fighting it out under the ostensible excuse of questioning the decision of the learned Judge regarding his interpretation of rules 53 and 66. It has been filed really due to the hypersensitiveness on the part of the Minister. Indeed the learned Judge has made fairly strong remarks against the Returning Officer in other respects. He has stated at one place that the Returning Officer had failed in his duty, and at another place that the Returning Officer and the Assistant Returning Officer came forward with a story totally devoid of truth. Nothing is said in the petition about all this which shows that our inference on this point is correct. The petition on behalf of the Returning Officer was wholly uncalled for. It would appear that he is not a free agent.
5. After the counting was over, as already shown the majority in favour of the appellant was reduced from 127 to 75. Even so his election would have had to be sustained. But on behalf of the respondent it was urged before the learned Judge that in a case where an election petitioner had applied not merely for setting aside the election of the successful candidate but also for declaring himself (the defeated candidate) as elected, it was the duty of the successful candidate to have filed a recrimination application under S. 97 of the Representation of the People Act. This argument was based on the decision of this Court in Jabar Singh v. Genda Lal, (1964) 6 SCR 54. This Court there referred to the earlier decisions on the subject and by a majority of 4 to l held that in such a case it was the successful candidate’s duty to have filed a recrimination petition under S. 97 which would be like a counter petition. It is unnecessary to set out the very instructive discussion in that case at length. It would be enough if the head-note alone is set out:
“The appellant was declared elected having defeated the respondent by 2 votes. Thereafter, the respondent filed an election petition. The respondent challenged the validity of the appellant’s election on the ground of improper reception of votes in favour of the appellant and improper rejection of votes in regard to himself. His prayer was that the appellant’s election should be declared void and a declaration should be made that the respondent was duly elected.
The appellant urged before the Tribunal that there had been improper rejection of the votes, and improper acceptance of the votes of the respondent, and his case was that if recounting and re-scrutiny was made, it would be found that he had secured a majority of votes. The respondent objected to this course; his case was that since the appellant had not recriminated nor furnished security under S. 97 of the Act, it was not open to him to make this plea. The Tribunal rejected the objection of the respondent and accepted the plea of the appellant. The Tribunal re-examined the ballot papers of the respondent as well as the appellant and came to the conclusion that 22 ballot papers cast in favour of the respondent had been wrongly accepted. The result was that the respondent had not secured a majority of votes. The Tribunal declared that the election of the appellant was void and refused to grant a declaration to the respondent that he had been duly elected. Both the appellant and the respondent preferred appeals before the High Court against the decision of the Tribunal. The High Court dismissed both the appeals and the decision of Tribunal was confirmed. Hence the appeal.
Held:(i) The scope of the enquiry in a case falling under Section 100 (l) (d) (iii) is to determine whether any votes have been improperly cast in favour of the returned candidate or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry the onus is on the petitioner to prove his allegation. Therefore, in the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of S. 100 (1) (d) itself. In fact S. 97 (1) has no application to the case falling under Section 100 (1) (d) (iii); the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else.
(ii) There are cases in which the election petition makes a double claim; it claims that the election of a returned candidate is void and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that S. 100 as well as S. 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that S. 97 comes into play. Section 97 (1) thus allows the returned candidate to recriminate and raise pleas in support of his case. The result of S. 97 (l) therefore, is that in dealing with a composite election petition the Tribunal enquiries into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. In this connection the returned candidate is required to comply with the provisions of S. 97 (l) and S. 97 (2) of the Act. If the returned candidate does not recriminate as required by S. 97, then he cannot make any attack against the alternative claim made by the petitioner. In other words the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate.
(iii) The pleas of the returned candidate under S. 97 of the Act, have to be tried after a declaration has been made under S. 100 of the Act. The first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by Section 100 (1) (d) (iii) and the latter part or the enquiry which is governed by S. 101 (a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under S. 97 (l). But even in cases to which S. 97 applies, the enquiry necessary while dealing with the dispute under S. 101 (a) will not be wider if the returned candidate has failed to recriminate and in a case of this type the duty of the Election Tribunal will not be to count and scrutinise all the votes cast at the election. As a result of R. 57, the Election Tribunal will have to assume that every ballot paper which had not been rejected under R. 56 constituted one valid vote and it is on that basis the finding will have to be made under S. 101 (a). Therefore, it is clear that in holding an enquiry either under S. 100 (1) (d) (iii) or under S. 101 where Section 97 has not been complied with it is not competent to the Tribunal to order a general recount of the votes preceded by a scrutiny about their validity.”
Rajagopala Ayyangar, J. was the solitary Judge who dissented from the majority judgment and we have gone through his judgment with all the care and the respect that it deserves and we do not see that it throws much light on the subject. It seems to ignore S. 97. We may also point out that in Bhim Sen v. Gopali, (1960) 22 ELR 288 (SC) which was considered in the above decision it was observed:
“As we have already pointed out, in his first written statement respondent I made a positive averment that no void votes had been allowed to be used by the returning officer and that the returning officer had fully discharged his duties under section 63. It is true that after it was discovered that he had received 37 void votes respondent I attempted to make an allegation that the appellant may likewise have received similar void votes, but it was too late then, because the time for making such an allegation by way of a recriminatory proceeding had elapsed and respondent I had failed to furnish the security of Rupees 1,000 as required by Section 97 (2) of the Act. If under these circumstances respondent I was not allowed to pursue his allegation against the appellant, he is to blame himself.” It was urged before this Court that in a subsequent decision in Shankar v. Sakharam, (1965) 2 SCR 403 this Court itself had differed from the earlier decision. The relevant sentence reads like this:
“We also think that the enquiry under S. 100 (1) (d) (iii) is outside the purview of S. 97. On an enquiry under S. 100 (1) (d) (iii) with regard to improper refusal of votes, the respondent to the election petition is entitled to dispute the identity of the voters without filing any recrimination under S. 97.”
This argument is clearly based on a misapprehension. The question that arises in this case did not arise there nor was the earlier decision in Jabar Singh’s case, (supra) referred to or distinguished. Indeed it was not necessary because they were dealing only with a case falling under S. 100, i.e. a case where the election of the successful candidate was sought to be set aside and not one also falling under S. 101 where the defeated candidate also wants that he should be declared to have been elected.
6. In the present case apparently neither party was aware of the decision in Jabar Singh v. Genda Lal, (supra) till after the counting was over. The learned Judge took the view that in the absence of a recrimination petition under S. 97 the appellant was not entitled to question any votes which might have been improperly received on behalf of the respondent. If that had been done the appellant, as indicated earlier, would still have won by a majority of 75 votes but as he was not entitled to do so the result of leaving out of account votes improperly received on behalf of the respondent and taking into account only the votes which ought to have gone to the respondent, which had been improperly rejected it was found that the respondent had 96 votes more than the appellant and he was declared elected.
“The object of S. 97 is to enable recrimination when a seat is claimed for the petitioner filing the election petition or any other candidate. In his election petition the petitioner may claim a declaration that the election of all or any of the returned candidates is void on one or more of the grounds specified in sub-s. (1) of Section 100 and may additionally claim a further declaration that he himself or any other candidate has been duly elected on the grounds specified in Section 101 (see Sections 81, 84, 98, 100 and 101). It is only when the election petition claims a declaration that any candidate other than the returned candidate has been duly elected that Section 97 comes into play. If the respondent desires to contest this claim by leading evidence to prove that the election of the other candidate would have been void if he had been the returned candidate and an election petition had been presented calling in question his election, the respondent must give a formal notice of recrimination and satisfy the other conditions specified in the proviso to Section 97. The notice of recrimination is thus in substance a counter petition calling in question the claim that the other candidate has been duly elected. In this background, it is not surprising that the legislature provided that notice of recrimination must be accompanied by the statement and particulars required by S. 83 in the case of an election petition and signed and verified in like manner and the recriminator must give the security and the further security for costs required under Ss. 117 and 118 in the case of an election petition.
Looking at the object and scheme of S. 97 it is manifest that the provisions of Ss. 117 and 118 must be applied mutatis mutandis to a proceeding under S. 97. The recriminator must produce a government treasury receipt showing that a deposit of Rupees 2,000 has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commissioner as costs of the recrimination. As the notice of recrimination cannot be sent by post, it must be filed before the Tribunal, and reading S. 117 with consequential adaptations for the purposes of the proviso to S. 97 (1), it will appear that the treasury receipt showing the deposit of the security must be produced before the Tribunal along with the notice of recrimination. It follows that the recriminator must give the security referred to in S. 117 by producing the treasury receipt showing the deposit of the security at the time of the giving of the notice under the proviso to S. 97 (1).
If the recriminator fails to give the requisite security under S. 117 at the time of giving the notice of recrimination, he loses the right to lead evidence under S. 97 and the notice of recrimination stands virtually rejected.”
8. Mr. K. K. Venugopal, appearing on behalf of the appellant made four submissions:
1. Section 97 has no application to a case where a prayer is for total count and rescrutiny.
2. Section 97 has no application to the present case where the returned candidate let in or did not have to let in any evidence on any single vote all of which were produced and tendered in evidence by the election petitioner notwithstanding the respondent’s protest.
3. Since no case has been made out in respect of individual votes and no finding given for inspecting individual votes the petitioner would not be entitled to the benefit of the decision in Jabar Singh’s case, (supra) and his right is only to a general recount or none at all.
4. The respondent is estopped from questioning the result of the recount because of mutual concessions. Though stated in a different form the sum and substance of the very vigorous attempt on behalf of the appellant is to question in effect the validity of the decision in so far as it is held that S. 97 is applicable to the facts of this case. He even went so far as to suggest that this case is totally different from the one in Jabar Singh v. Genda Lal, (supra) and the whole question, if necessary should be reconsidered by a much larger Bench in view of Justice Rajagopala Ayyangar’s dissenting judgment.
He finally urged that the democratic process should be allowed to have full sway and no mere technicality should be allowed to come in the way of justice being done.
9. The last appeal is particularly interesting. Courts in general are averse to allow justice to be defeated on a mere technicality. But in deciding an election petition the High Court is merely a tribunal deciding an election dispute. Its powers are wholly the creature of the statute under which it is conferred the power to hear election petitions. An election petition, as has been pointed out again and again, is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power. It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that the people do not get elected by flagrant breaches of that law or by corrupt practices (see the decisions in Kamaraja Nadar v. Kunju Thevar, (1959) SCR 583 at page No. 596 , Venkateswara v. Narasimha, (1969) 1 SCR 679 at page No. 685=(AIR 1969 SC 872) and Ch. Subbarao v. Member, Election Tribunal, 1964 DEC 270 (SC). We may, therefore, look into the law regarding this matter. Under S. 81 of the Representation of the People Act, 1951 “an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.” Section 83 reads:
(1) An election petition –
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings.
Section 84 reads:
“A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected.
Section 97 reads:
(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.
Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given the security and the further security referred to in Sections 117 and 118 respectively.
(2) Every notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by S. 83 in the case of an election petition and shall be signed and verified in like manner.”
Section 100 reads:
(1) subject to the provisions of sub-section (2) if the High Court is of opinion –
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent:or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected –
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent; or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,
the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied –
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents,
then the High Court may decide that the election of the returned candidate is not void.”
Section 101 reads:
“If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion –
(a) that in fact that the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes ; the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.”
In the present case the grounds for setting aside the election of the petitioner are that the result of the election in so far as the appellant was concerned has been materially affected:
(iii) by improper reception, refusal or rejection of votes which is void, or
(iv) by non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act.
The only ground on which the defeated candidate could be declared to be elected is under S. 101 (a) that in fact he had received a majority of valid votes. But it is in deciding who has got the majority of valid votes that S. 97 comes into play. When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. This right the appellant had but this right is subject to the provision that he shall not be entitled to give evidence to prove that the election of the petitioner in this case i.e. the respondent would have been void if he had been the returned candidate and the petitioner had presented petition calling in question the election unless he had given notice of his intention to give such evidence and also given security and the further security referred to in Ss. 117 and 118 respectively, and every such notice has to be accompanied by the statement and particulars required under S. 83 in case of an election petition and shall be signed and verified in the like manner. None of these things was done in this case. The petition by the respondent had been filed on 23-4-1971. The orders for the appearance of the respondent were passed on 12-7-1971. The appellant, who was the respondent in that petition, should have given notice under S. 97 within 14 days of his appearance i.e. on 26-7-1971 and also complied with the other requirements specified therein. The issues were framed on 27-7-1971, the recount was ordered on 3-2-1972 and the judgment itself was pronounced on 13-3-1972. It was on 10-3-1972 that an attempt was made to file a recrimination petition with a petition to excuse the delay. But even then the other requisites of S. 97 like giving security or the petition being accompanied by statement and particulars required by S. 83 were not complied with. A special leave petition was filed in this Court again applying for permission to receive a recrimination petition. There is, thus, no doubt at all that the appellant did not comply with the requirements of S. 97.
10. The question still remains whether the requirements of S. 97 have to be satisfied in this case. It is argued by Mr. Venugopal that the gravamen of the respondent’s petition was breach of many of the election rules and that he asked for a total recount, a request to which the appellant had no objection and that there was, therefore, no rule or need for filing a recrimination petition under Section 97. This, we are afraid, is a complete misreading of the petition. No doubt the petitioner has asked for a recount of votes. It may legitimately be presumed to mean a recount of all the votes, but such a recount is asked for the purpose of obtaining a declaration that the appellant’s election was void and a further declaration that the respondent himself had been elected. This aspect of the matter should not be lost sight of. Now, when the respondent asked for a recount, it was not a mere mechanical process that he was asking for. The very grounds which he urged in support of his petition (to which we have referred at an earlier stage) as well as the application for recount and the various grounds on which the learned Judge felt that a recount should be ordered showed that many mistakes were likely to have arisen in the counting, and as revealed by the instances which the learned Judge himself looked into and decided. It may be useful at this stage to set out R. 56 of the Conduct of Election Rules, 1961: “56. Counting of Votes.—(1) Subject to such general or special directions, if any, as may be given by Election Commission in this behalf, the ballot papers taken out of all boxes used in a constituency shall be mixed together and then arranged in convenient bundles and scrutinised.
(2) The returning officer shall reject a ballot paper –
(a) if it bears any mark or writing by which the elector can be identified, or
(b) if, to indicate the vote, it bears no mark at all or bears a mark made otherwise than with the instrument supplied for the purpose, or
(c) if votes are given on it in favour of more than one candidate, or
(d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given, or
(e) if it is a spurious ballot paper, or
(f) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established, or
(g) if it bears a serial number, or is of a design, different from the serial number, or, as the case may be, design, of the ballot papers authorised for use at the particular polling station, or
(h) if it does not bear both the mark and the signature which it should have borne under the provisions of sub-rule (1) of rule 38:
Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect.
Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked.
(3) Before rejecting any ballot paper under sub-rule (2), the returning officer shall allow each counting agent present a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper.
(4) The returning officer shall endorse on every ballot paper which he rejects the word “Rejected” and the grounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp and shall initial such endorsement.
(5) All ballot papers rejected under this rule shall be bundled together.
(6) Every ballot paper which is not rejected under this rule shall be counted as one valid vote:
Provided that no cover containing tendered ballot papers shall he opened and no such paper shall be counted.
(7) After the counting of all ballot papers contained in all the ballot boxes used in a constituency has been completed, the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars.
Explanation. For the purpose of this rule, the expression “constituency” shall, in relation to an election from a parliamentary constituency, mean the assembly constituency comprised therein.”
So, when counting goes on the returning officer may have rejected a ballot paper on any one of the grounds mentioned in sub-rule (2) of that rule. He might have made a mistake or his decision may be wrong on any one of the points. That is what explains the large number of concessions made by either side when the recount was made before the Assistant Registrar of the High Court as well as before the learned Judge. So, it is not proper to interpret the respondent’s prayer for recount as a request for a mere mechanical process of counting. It was counting contemplated under Rule 56 with all its implications that he was asking for. The very grounds on the basis of which the recount was ordered by the learned Judge show that there was a possibility of mistakes having arisen under anyone of the grounds set out in Rule 56 (2) clauses (a) to (h) and it is to have them taken into account and decided correctly that the respondent wanted a recount. Now, when he wants a recount for the purpose of setting aside the appellant’s election he necessarily has got to have not merely the benefits of votes which would have originally gone to him but which had been wrongly given to the appellant but also all votes which had been cast in his favour (the respondent) but had been rejected wrongly on one or other of the grounds mentioned in Rule 56 (2) clauses (a) to (h). So, it was necessary for the purpose of the respondent’s case (supra) not merely that votes which were held invalid should be re-scrutinised but also votes which had been held to have been cast in favour of the appellant. The improper reception or rejection, therefore, would include not merely cases where a voter appears before the presiding officer at the time of polling and his vote is received where it should not have been received and his vote rejected where it should not have been rejected. The improper rejection or reception contemplated under S. 100 (1) (d) (iii) would include mistakes or wrong judgments made by the returning officer while counting and exercising his powers under Rule 56 (2), clauses (a) to (h). The fact, therefore, that the respondent asked for recounting of all the votes does not mean that he wanted also that votes which had been wrongly held to have been cast in his favour but should have gone to the appellant as also votes which had been rejected, but which should have gone to the appellant should be taken into account. The respondent was interested in no such thing. He made no such prayer. It was only the appellant that was interested and bound to do it if he wanted to defeat the respondent’s claim that he should be declared elected and Section 97 is intended for just such a purpose. It was asked what was the purpose and where was the need for the appellant to have filed a recrimination under Section 97 and what he could have filed when the respondent had asked for a total recount. What we have stated above furnishes the necessary answer. The appellant knew not only that the respondent wanted his election to be set aside but also that he wanted himself (the respondent) to be declared elected. He should have, therefore, stated whatever material was necessary to show that the respondent, if he had been the successful candidate and the petition had been presented calling in question his election, his election would have been void, in other words comply with Section 83. He could have stated therein setting out that while he had no objection to a recount to be ordered (we have already shown that he strongly opposed the recount) there were many votes which would have rightly gone to him (the appellant) which have wrongly been given to the respondent, that there were many votes which should have rightly gone to him but which have been improperly rejected. He should also have complied with the other requirements of Section 97. If he had done that that could have been taken into consideration. There was no difficulty at all about his doing all this. His contention that he had no objection to the recount and there was no rule or any need for him to file a recrimination is wholly beside the point. He had in his counter to the main election petition repudiated every one of the allegations in the election petition. It was at that stage that he should have filed the petition under Section 97 (of course, within 14 days of his appearance). It was not at the stage when the petitioner filed his application for recount that the opportunity or need for a petition under Section 97 arose.
11. It was then urged that when all the material was before the Court it was unnecessary for him to have done so. As we have already pointed out this is not an action at law or a suit in equity but one under the provisions of the statute which has specifically created that right. If the appellant wanted an opportunity to question the respondent’s claim that he should be declared elected he should have followed the procedure laid down in Section 97. In this connection it is interesting to note that in the decision in (1964) 6 SCR 54 (supra) the successful candidate in his own petition had pleaded that many votes cast in favour of himself had been wrongly rejected, in regard to which details were given, and that similarly several votes were wrongly accepted in favour of the election petitioner and in regard to which also details were given, and it ended with the prayer that if a proper scrutiny and recount were made of the valid votes received by each, it would be found that he – the returned candidate – had in fact, obtained a larger number of votes than the election-petitioner and for this reason he submitted that the election petition ought to be dismissed. In spite of this it was held that he had to fail because he had not filed a recrimination petition under Section 97. So it is not enough to say that what ought to be looked into is the substance and not the form. If a relief provided under a statute could be obtained only by following a certain procedure laid therein for that purpose, that procedure must be followed if he is to obtain that relief.
12. What we have pointed out just now shows that it is not a question of mere pleading, it is a question of jurisdiction. The Election Tribunal had no jurisdiction to go into the question whether any wrong votes had been counted in favour of the election-petitioner, who had claimed the seat for himself unless the successful candidate had filed a petition under Section 97. The law reports are full of cases where parties have failed because of their failure strictly to conform to the letter of the law in regard to the procedure laid down under the Act and the rules.
13. Point 3 raised by the appellant has no substance because it was not necessary to lead evidence in respect of any individual vote about improper reception or improper rejection. The decision about improper reception or improper rejection has been given in this case mostly on concessions by both the parties and in a few cases by the Judge himself scrutinising and deciding about all disputed cases. Indeed, there was no need for any evidence except a proper scrutiny of the votes and a correct decision based on such scrutiny as to the candidate for whom it was cast or whether it was invalid. We may at the risk of repetition point out that the process of recounting included decision regarding the question of improper reception or improper rejection and there is no such thing as a general recount and there is no authority in law for suggesting that all that the respondent could have asked for was either a general recount or none at all. Indeed there is no provision in the Act for a petition to be filed alleging “Let all votes be recounted and whoever gets more votes be declared elected.” Nor do we think that any question of estoppel arises. Estoppel may arise in respect of each individual vote conceded by one party or the other as valid and given in favour of the other in the sense that having conceded that a disputed vote should have gone to one or other of the parties the party who made that concession cannot go back on it. But where the law provides that no evidence can be given about the improper reception of votes in favour of the defeated candidate who had claimed a seat for himself unless the successful candidate had complied with Section 97, no question of estoppel arises. Concession is akin to admission and the use of such an admission would be evidence. What is barred under the proviso to Section 97 is the giving of evidence by the appellant. Appellant can give evidence either by relying on the respondent’s admissions or leading independent evidence. In either case it would be giving evidence. And, since giving of evidence is barred, the concessions cannot be used as evidence in favour of the appellant. This is what the learned Judge has very clearly pointed out in his order. We have earlier quoted from the decision in Bhim Sen v. Gopali (supra) where the provisions of S. 97 had not been complied with. Even though as a matter of fact the valid as well as the invalid votes in favour of both the petitioner as well as the respondent might have been counted, the evidence furnished by such votes was not admissible because of failure to comply with the provisions of Section 97.
14. Finally, we must deal with the appeal made to us that the justice should be done irrespective of technicalities. Justice has got to be done according to law. A Tribunal with limited jurisdiction cannot go beyond the procedure laid down by the statute for its functioning. If it does so it would be acting without jurisdiction.
15. We are, therefore, satisfied that the learned Judge was right in holding that though a general recount had been ordered and an account taken of the valid votes given for both the candidates, it was not possible to take into account any vote in favour of the appellant because of his failure to comply with Section 97. Nor are we satisfied that we would be justified in ordering that this case should be reconsidered by a larger Bench.
16. This appeal is, therefore, dismissed The appellant will pay the 1st respondent’s costs. SLP 1347/72 preferred against Appln. No. 648/72 in Election Petition O. S. 2/1971 is dismissed.
KEYWORDS:- COPYRIGHT – COMMON LAW PRINCIPLES-Infringement of a copyright-
AIR 1978 SC 1613 : (1979) 1 SCR 218 : (1978) 4 SCC 118
(SUPREME COURT OF INDIA)
|R G. Anand||Appellant|
|Delux Films and others||Respondent|
(Before : S. Murtaza Fazl Ali, Jaswant Singh And R. S. Pathak, JJ.)
Civil Appeal No. 2030 of 1968, Decided on : 18-08-1978.
Copyright Act, 1957—Section 51—Considerations—(1) There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. (2) Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant’s work is nothing but a literal imitation of the copyrighted, work with some variations here and there it would amount to violation of the copy-right. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. (3) One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. (4) Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. (5) Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. (6) As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above. (7) Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.
Counsel for the Parties:
Mr. S. N. Andley, Sr. Advocate (Mr. Mahinder Narain and Rameshwar Nath Advocates of M/s. Rajinder Narain and Co. with him), for Appellant
Mr. Hardyal Hardy Sr. Advocate (M/s. H. S. Parihar and I. N. Shroff, Advocates with him), for Respondents 1 and 2.
Fazal Ali, J—This appeal by special leave is directed against the judgment of the Delhi High Court dated 23rd May, 1967 affirming the decree of the District Judge, Delhi and dismissing the plaintiff”s suit for damages against the defendants on the ground that they had violated the copyrighted work of the plaintiff which was a drama called “Hum Hindustani”.
2. The facts have been succinctly stated by the District Judge in his judgment and summarised by the High Court, and, therefore, it is not necessary for us to repeat the same all over again. We would, however, like to give a brief re”sume” of some of the striking facts in the case which may be germane for the purpose of deciding the important issues involved in this appeal. We might mention here that the High Court as also the District Judge negatived the plaintiff”s claim and prima facie the appeal appears to be concluded by finding of fact, but it was rightly argued by Mr. Andley appearing for the appellant that the principles of violation of copyright in the instant appeal have to be applied on the facts found and the inferences from proved facts drawn by the High Court which is doubtless a question of law and more particularly as there is no clear authority of this Court on the subject, we should be persuaded to go into this question without entering into findings of facts. Having heard counsel for the parties, we felt that as the case is one of first impression and needs to be decided by this Court, we should enter into the merits on the basis of the facts found and inferences drawn by the High Court and the District Judge. It is true that both the District Judge and the High Court have relied upon some well established principles to determine whether or not in a particular case a violation of copyright has taken place, but learned counsel for the appellant has challenged the validity of the principles enunciated by the High Court.
3. The plaintiff is an architect by profession and is also a playwright, Dramatist and producer of stage plays. Even before Hum Hindustani the plaintiff had written and produced a number of other plays like Des Hamara, Azadi and Election which were staged in Delhi. The subject-matter of the appeal, however, is the play entitled “Hum Hindustani”. According to the plaintiff, this play was written by him in Hindi in the year 1953 and was enacted by him for the first time on 6th, 7th, 8th and 9th February, 1954 at Wavell Theatre, New Delhi under the auspices of the Indian National Theatre. The play proved to be very popular and received great approbation from the Press and the public as a result of which the play was re-staged in February and September, 1954 and also in 1955 and 1956 at Calcutta. In support of his case the plaintiff has referred to a number of comments appearing in the Indian Express, Hindustan Times, Times of India and other papers.
4. Encouraged by the success and popularity of the aforesaid play the plaintiff tried to consider the possibility of filming it. In November, 1954 the plaintiff received a letter dated 19th November, 1954 from the second defendant Mr. Mohan Sehgal wherein the defendant informed the plaintiff that he was supplied with a synopsis of the play by one Mr. Balwant Gargi a common friend of the plaintiff and defendant. The defendant had requested the plaintiff to supply a copy of the play so that the defendant may consider the desirability of making a film on it. The plaintiff, however, by his letter dated 30th November, 1954 informed the defendant that as the play had been selected out of 17 Hindi plays for National Drama Festival and would be staged on 11th Dec. 1954, the defendant should take the trouble of visiting Delhi and seeing the play himself in order to examine the potentialities of making a film, and at that time the matter could be discussed by the defendant with the plaintiff.
5. The plaintiff”s case, however, is that some time about January, 1955 the second and the third defendants came to Delhi, met the plaintiff in his office where the plaintiff read out and explained the entire play to the defendants and also discussed the possibility of filming it. The second defendant did not make any clear commitment but promised the plaintiff that he would inform him about his re-action after reaching Bombay. Thereafter the plaintiff heard nothing from the defendant. Sometime in May, 1955 the second defendant announced the production of a motion picture entitled “New Delhi”. One Mr. Thapa who was one of the artists in the play produced by the plaintiff happened to be in Bombay at the time when the picture “New Delhi” was being produced by the defendant and informed the plaintiff that the picture being produced by the defendant was really based on the plaintiff”s play “Hum Hindustani”. The plaintiff thereupon by his letter dated 30th May, 1955 wrote to the second defendant expressing serious concern over the adaptation of his play into a motion picture called “New Delhi”. The defendant, however, by his letter dated 9th June, 1955 informed the plaintiff that his doubts were without any foundation and assured the plaintiff that the story treatment, dramatic construction, characters etc. were quite different and bore not the remotest connection or resemblance with the play written by the plaintiff.
6. The picture was released in Delhi in Sept. 1956 and the plaintiff read some comments in the papers which gave the impression that the picture was very much like the play “Hum Hindustani” written by the plaintiff. The plaintiff himself saw the picture on the 9th Sept, 1956 and he found that the film was entirely based upon the said play and was, therefore, convinced that the defendant after having heard the play narrated to him by the plaintiff dishonestly imitated the same in his film and thus committed an act of piracy so as to result in violation of the copyright of the plaintiff. The plaintiff accordingly filed the suit for damages, for decree for accounts of the profits made by the defendants and a decree for permanent injunction against the defendants restraining them from exhibiting the film “New Delhi”.
7. The suit was contested by defendants Nos. 1 and 2 as also by other defendants who adopted the pleas raised by defendants Nos. 1 and 2.
8. The defendants, inter alia, pleaded that they were not aware that the plaintiff was the author of the play “Hum Hindustani” nor were they aware that the play was very well received at Delhi. Defendant No. 2 is a film Director and is also the proprietor of defendant No. 1 Delux Films. The defendants averred that in Nov. 1954 the second defendant was discussing some ideas for his new picture with Mr. Balwant Gargi who is a playwright of some repute. In the course of the discussion, the second defendant informed Mr. Gargi that the second defendant was interested in producing a motion film based on “provincialism” as its central theme . In the context of these discussions Mr. Gargi enquired of defendant No. 2 if the latter was interested in hearing the play called “Hum Hindustani” produced by the plaintiff which also had the same theme of provincialism in which the second defendant was interested. It was, therefore, at the instance of Mr. Gargi that the second defendant wrote to the plaintiff and requested him to send a copy of the script of the play. The defendant goes on to state that the plaintiff read out the play to the second defendant in the presence of Rajinder Bhatia and Mohan Kumar, Assistant Directors of the second defendant when they had come to Delhi in connection with the release of their film “Adhikar”, The second defendant has taken a clear stand that after having heard the play he informed the plaintiff that though the play might have been all right for the amateur stage it was too inadequate for the purpose of making a full length commercial motion picture. The defendants denied the allegation of the plaintiff that it was after hearing the play written by the plaintiff that the defendants decided to make a film based on the play and entitled it as “New Delhi”.
9. The defendants thus submitted that there could be no copyright so far as the subject of provincialism is concerned which can be used or adopted by anybody in his own way. He further averred that the motion picture was quite different from the play “Hum Hindustani” both in content, spirit and climax. The mere fact that there were some similarities between the film and the play could be explained by the fact that the idea, viz., provincialism was the common source of the play as also of the film. The defendant thus denied that there was any violation of the copyright.
10. On the basis of the pleadings of the parties, the learned trial Judge framed the following issues:
1. Is the plaintiff owner of the copyright in the play “Hum Hindustani?
2. Is the film “New Delhi” an infringement of the plaintiff”s copyright in the play “Hum Hindustani”?
3. Have defendants or any of them infringed the plaintiff”s copyright by producing, or distributing or exhibiting the film “New Delhi”?
4. Is the suit bad for misjoinder of defendants and causes of action?
5. To what relief is the plaintiff entitled and against whom?
11. Issue No. 1 was decided against the defendants and it was held by the trial Judge that the plaintiff was the owner of the copyright in the play “Hum Hindustani”. Issue No. 4 was not pressed by the defendants and was accordingly decided against them. The main case however turned upon the decision on issues Nos. 2 and 3 which were however decided against the plaintiff as the learned Judge held that there was no violation of the copy-right of the plaintiff. The plaintiff then went up in appeal to the Delhi High Court where a Division Bench of that Court affirmed the decision of the District Judge and upheld the decree dismissing the plaintiff”s suit. The findings of fact arrived at by the learned trial Judge and the High Court have not been assailed before us. The only argument advanced by the appellant was that the principles enunciated and the legal inferences drawn by the courts below are against the settled legal principles laid down by the courts in England, America and India. It was also submitted by Mr. Andley that the two courts have not fully understood the import of the violation of copyright particularly when the similarities between the play and the film are so close and sundry that would lead to the irresistible inference and unmistakable impression that the film is nothing but an imitation of the play. On the other hand, it was argued by Mr. Hardy counsel for the respondents that the two courts below have applied the law correctly and it is not necessary for this Court to enter into merits in view of the concurrent findings of fact given by the two courts. He further submitted that even on the facts found it is manifest that there is a vast difference both in the spirit and the content between the play “Hum Hindustani” and the film “New Delhi” and no question of violation of the copyright arises.
12. In order to appreciate the argument of both the parties it may be necessary to discuss the law on the subject. To begin with there is no decided case of this Court on this point. Secondly, at the time when the cause of action arose Parliament had not made any law governing copyright violations and the courts in the absence of any law by our Parliament relied on the old law passed by the British Parliament, namely, the Copyright Act of 1911.Sec. 1 sub-sec. (2) (d) defines “copyright” thus:
“(2) For the purposes of this Act, “copyright” means the sole right to produce or reproduced the work or any substantial part thereof in any material form whatsoever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public, if the work is unpublished, to publish the work or any substantial part thereof; and shall include the sole right.
(d) in the case of a literary, dramatic, or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered.”
Section 2 provides the contingencies where a copy-right could be infringed and runs thus:-
“2 (1) Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copy-right.”
It is, therefore, clear that the Act of 1911 defines “copyright” and also indicates the various contingencies where copyright cannot be infringed. The statute also provides exceptions which would not amount to violation of copyright.
13. In the instant case the play written by the appellant falls within S. 1 (2) (d) because it is a dramatic work. The learned District Judge has rightly held that emotions like mere ideas are not subject to pre-emption because they are common property. Quoting from the law of copyright and Movie-rights by Rustom R. Dadachanji the learned Judge observed as follows:-
“It is obvious that the underlying emotion reflected by the principal characters in a play or book may be similar and yet that the characters and expression of the same emotions be different. That the same emotions are found in plays would not alone be sufficient to prove infringement but if similar emotions are portrayed by a sequence of events presented in like manner, expression and form then infringement” would be apparent.”
Similarly in the case of Hanfstaengl v. W. H. Smith and Sons (1905) 1 Ch D 519 it has been held by Bayley, J. that “a copy is that which comes so near to the original as to give to every person seeing it the idea created by the original.”
14. In Halsbury”s laws of England by Lord Hailsham Fourth Edition the following observations are made:
“Only original works are protected under Part I of the Copyright Act 1956, but it is not requisite that the work should be the expression of original or inventive thought for Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of a literary work, with the expression of thought in print or writing … … … … There is copyright in original dramatic works and adaptations thereof, and such copyright subsists not only in the actual words of the work but in the dramatic incidents created, so that if these are taken there may be an infringement although no words are actually copied. There cannot be copyright in mere scenic effects or stage situations which are not reduced into some permanent form.”
Similarly, it was pointed out by Copinger in his book on Copyright 11th Edition that what is protected is not the original thought but expression of thought in a concrete form. In this connection, the author makes the following observations based on the case law:
“What is protected is not original thought or information, but the original expression of thought or information in some concrete form. Consequently, it is only an infringement if the defendant has made an unlawful use of the form in which the thought or information is expressed. The defendant must, to be liable have made a substantial use of this form; he is not liable if he has taken from the work the essential ideas, however original, and expressed the idea in his own form, or used the idea for his own purposes.”
The author also points out that there is no infringement unless the plaintiff”s playwrighted work has been actually used, so that it may be said that the latter work reproduces the earlier one. In this connection, the author observes as follows:-
“A further essential matter, and one which – rather strangely – is not anywhere precisely stated in the Act of 1956 is that there can be no infringement unless use has been made, directly or indirectly, of the plaintiff”s work.”
15. Moreover,it seems to us that the fundamental idea of violation of copyright of imitation is the violation of the Eighth Commandment:”Thou shalt not steal” which forms the moral basis of the protective provisions of the Copyright Act of 1911. It is obvious that when a writer or a dramatist produces a drama it is a result of his great labour, energy, time and ability and if any other person is allowed to appropriate the labours of the copyrighted work, his act amounts to theft by depriving the original owner of the copyright of the product of his labour. It is also clear that it is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the original in a large measure, is sufficient to indicate that it is a copy. In Art. 418 Copinger states thus:-
“In many cases the alleged infringement does not consist of an exact, or verbatim copy, of the whole, or any part, of the earlier work, but merely resembles it in a greater or lesser degree.” In Art. 420 the author lays down the various tests to determine whether an infringement has taken place and observes as follows:-
“Various definitions of “copy” have been suggested, but it is submitted that the true view of the matter is that, where the court is satisfied that a defendant has, in producing the alleged infringement, made a substantial use of those features of the plaintiff”s work in which copyright subsists, an infringement will be held to have been committed; if he has made such use, he has exercised unlawfully the sole right which is conferred upon the plaintiff.”
16. Ball in “law of Copyright and Literary Property” page 364 points out that where the defendant materially changes the story he cannot be said to have infringed the copyright. In this connection, the author observes as follows:-
“In such composition the story is told by grouping and representing the important incidents in the particular sequence devised by the author whose claim to copyright must depend upon the particular story thus composed; and not upon the various incidents, which, if presented individually, without such unique sequential arrangement, would be common literary property. Consequently another dramatist who materially changes the story by materially varying the incidents should not be held to be an infringer.”
It is also pointed out by Mr. Ball that sometimes even though there may be similarities between the copyrighted work and the work of the defendant they may be too trivial to amount to appropriation of copyrighted material. The author observes thus:-
“When two authors portray in literary or dramatic form the same occurrence, involving people reacting to the same emotions under the influence of an environment constructed of the same materials, similarities in incidential details necessary to the environment or setting are inevitable; but unless they are accompanied by similarities in the dramatic development of the plot or in the lines or action of the principal characters, they do not constitute evidence of copying. They are comparable to similarities in two works of art made by different artists from the same original subject, and in the usual case are too trivial and unimportant to amount to a substantial appropriation of copyrighted material.”
The author further says that unless there is any substantial identity between the respective works in the scenes, incidents and treatment a case of infringement of copyright is not made out and observes thus:-
“But there was no substantial identity between the respective works in the scenes, incidents, or treatment of the common theme; the court held that the plaintiff”s copyrights were not infringed by the defendant”s photoplays.”
Dealing with the infringement of copyright of a play by a motion picture which appears to be an identical case in the present appeal, the author observes as follows:-
“In an action for the alleged infringement of the copyright of a play by a motion picture, wherein it appeared that both authors had used life in a boys” reform school as a background, but the only similarity between the two productions consisted of a few incidents and points in dialogue, such as one would expect to find in stories set against the same background, there was no infringement of copyright.”
To the same effect are the following observations of the author:
“Where the only evidence of similarities between two plays was based upon the author”s analysis and interpretation of an extensive list of “ parallel”, from which he inferred that many incidents, scenes and characters in the alleged infringing play were adapted from the plaintiff”s copyrighted play, but no such resemblance would be apparent to an ordinary observer, it was held that the meaning or interpretation which the author gives to his literary work cannot be accepted as a deciding test of plagiarism; and that, in the absence of any material resemblance which could be recognized by an ordinary observation, each play must be regarded as the independent work of the named author.”
17. Similar observations have been made in Corpus Juris Secundum Vol. 18 at page 139 where it is observed as follows:
“An author has, at common law, a property in his intellectual production before it has been published, and may obtain redress against anyone who deprives him of it, or, by improperly obtaining a copy, endeavors to publish or to use it without his consent.”
“This right exists in the written scenario of a motion picture photoplay and in the photoplay itself as recorded on the photographic film. There is, however, no common-law literary property right in the manner and postures of the actors used by them in performing the play.”
“Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by the statute on the owner of the copyright.”
This view was taken by the U. S. Supreme Court in the case of Bobbs-Merrill Company v. Isidor Straus and Nathan Straus (1907) 210 US 339.
18. In the American Jurisprudence also it is pointed out that the law does not recognize property rights in abstract ideas, nor is an idea protected by a copyright and it becomes a copyrighted work only when the idea is given embodiment in a tangible form. In this connection the following observations are made:-
“Generally speaking, the law does not recognize property rights in abstract ideas and does not accord the author or proprietor, the protection of his ideas, which the law does accord to the proprietor of personal property.”
“In cases involving motion pictures or radio or television broadcasts, it is frequently stated that an idea is not protected by a copyright or under the common law, or that there is no property right in an idea, apart from the manner in which it is expressed.”
“When an idea is given embodiment in a tangible form, it becomes the subject of common-law property rights which are protected by the courts, at least when it can be said to be novel and new.”
It was also pointed out in this book as to what constitutes colourable imitation. In this connection, the following observations have been made:-
“Infringement involves a copying, in whole or in part, either in haeca verba or by colourable variation.. … …. A “copy” as used in copyright cases, signifies a tangible object which is a reproduction of the original work. The question is not whether the alleged infringer could have obtained the same information by going to the same source used by the plaintiff in his work, but whether he did in fact go to the same source and do his own independent research. In other words, the test is whether one charged with the infringement made an independent production, or made a substantial and unfair use of the plaintiff”s work.”
“Intention to plagiarize is not essential to establish liability for infringement of a copyright or for plagiarism of literary property in unpublished books, manuscripts, or plays. One may be held liable for infringement which is unintentional or which was done unconsciously.”
“Similarity of the alleged infringing work to the author”s or proprietor”s copy- righted work does not of itself establish copyright infringement, if the similarity results from the fact that both works deal with the same subject or have the same common source …………. Nevertheless, it is the unfair appropriation of the labor of the author whose work has been infringed that constitutes legal infringement, and while identity of language will often prove that the offence was committed, it is not necessarily the sole proof; on the other hand, relief will be afforded, irrespective of the existence or nonexistence of any similarity of language, if infringement in fact can be proved.”
“The appropriation must be of a “substantial” or “material” part of the protected work … … … …. … The test is whether the one charged with the infringement has made a substantial and unfair use of the complainant”s work. Infringement exists when a study of two writings indicates plainly that the defendant”s work is a transparent rephrasing to produce essentially the story of the other writing, but where there is no textual copying and there are differences in literary style, the fact that there is sameness in the tricks of spinning out the yarn so as to sustain the reader”s suspense, and similarities of the same general nature in a narrative of a long, complicated search for a lost article of fabulous value, does not indicate infringement.”
19. We shall now discuss some of the authorities that have been cited at the Bar as also some others with whom we have come across and which throw a flood of light on the point in issue. Dealing with the question of similarities Lord Kekewich, J. in Hanfstaengl case (supra) described various qualities of a copy and observed as follows:-
“In West v. Francis (1822) 1 B and Ald, 737, 743 Bayley J. uses language coming, as Lord Watson says, nearer to a definition than anything which is to be found in the books. It runs thus:”A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original … … … … …. … … …. …. If it were altered thus- “a copy is that which comes so near to the original as to suggest that original to the mind of every person seeing it” – the substance of the definition would be preserved and Lord Watson”s criticism would be avoided.”
The learned Judge aptly pointed out that an imitation will be a copy which comes so near to the original as to suggest original to the mind of every person seeing it. In other words, if after having seen the picture a person forms a definite opinion and gets a dominant impression that it has been based on or taken from the original play by the appellant that will be sufficient to constitute a violation of the copy-right.
20. In the case of Ladbroke (Football) Ltd. v. Nilliam Hill (Football) Ltd. (1964) I All ER 465 Lord Reid made the following pertinent observations:
“But, in my view, that is only a shortcut, and more correct approach is first to determine whether the plaintiff”s work as a whole is “original” and protected by copyright, and then to inquire whether the part taken by the defendant is substantial. A wrong result can easily be reached if one begins by dissecting the plaintiff”s work and asking, could section A be the subject of copyright if it stood by itself, could section B be protected if it stood by itself, and so on. To my mind, it does not follow that, because the fragments taken separately would not be copyright, therefore the whole cannot be.”
Lord Hodson expressed similar views at page No. 475 in the following words:-
“The appellants have sought to argue that the coupons can be dissected and that on analysis no copyright attaches to any of their component parts and accordingly no protection is available. In my opinion this approach is wrong and the coupons must be looked at as a whole. Copyright is a statutory right which by the terms of S. 2 of the Act of 1956 would appear to subsist, if at all, in the literary or other work as one entity.”
This case clearly lays down that a similarity here or a similarity there is not sufficient to constitute a violation of the copyright unless the imitation made by the defendant is substantial.
21. In the case of Corelli v. Gray (1913) 29 TLR 570 Sargant, J. observed as follows:-
“The plaintiff”s case is entirely founded on coincidences or similarities between the novel and the sketch. Such coincidences or similarities may be due to any one of the four hypotheses – namely (1) to mere chance, or (2) to both sketch and novel being taken from a common source; (3) to the novel being taken from the sketch, or (4) to the sketch being taken from the novel. Any of the first three hypotheses would result in the success of the defendant; it is the fourth hypothesis alone that will entitle the plaintiff to succeed.”
“Looking now at the aggregate of the similarities between the sketch and the novel, and the case is essentially one in which the proof is cumulative, I am irresistibly forced to the conclusion that it is quite impossible they should be due to mere chance coincidence and accordingly that they must be due to a process of copying or appropriation by the defendant from the plaintiff”s novel.”
Thus it was pointed out in this case where the aggregate of the similarities between the copyrighted work and the copy lead to the cumulative effect that the defendant had imitated the original and that the similarities between the two works are not coincidental, reasonable inference of colourable imitation or of appropriation of the labour of the owner of the copyright by the defendant is proved. This case was followed by the Master of Rolls in the case of Corelli v. Gray (1914) 30 TLR 116.
22. The case of Hawkes and Son (London) Limited v. Paramount Film Service Limited (1934) 1 Ch D 593 was whether a musical composition made by the owner was sought to be imitated by producing a film containing the said composition. An action for violation of the copy right was filed by the owner. Lord Hansworth, M. R. found that the quantum taken was substantial and a substantial part of the musical copyright could be reproduced apart from the actual film. In this connection, Lord Hansworth observed as follows:-
“Having considered and heard this film. I am quite satisfied that the quantum that is taken is substantial, and although it might be difficult, and although it may be uncertain whether it will be ever used again, we must not neglect the evidence that a substantial part of the musical copyright could be reproduced apart from the actual picture film”.
Similar observations were made by Lord Slesser which may be extracted thus:-
“Anyone hearing it would know that it was the march called “Colonel bogey” and though it may be that it was not very prolonged in its reproduction, it is clearly, in my view, a substantial, a vital and an essential part which is there reproduced. That being so, it is clear to my mind that a fair use has not been made of it; that is to say, there has been appropriated and published in a form which will or may materially injure the copyright that in which the plaintiffs have a proprietary right”.
23. In the case of Harman Pictures N. V. v. Osborne, (1967) 1 WLR 723 it was held that similarities of incidents and situations undoubtedly afforded prima facie evidence of copy and in the absence of any explanation by the defendant regarding the sources, the plaintiffs must succeed. It was however held that there was no copyright in ideas, schemes or systems or method and the copyright is confined only to the subject. In this connection Goff, J. observed as follows:-
“There is no copyright in ideas or schemes or systems or methods; it is confined to their expression …. …. …. ….. …. But there is a distinction between ideas (which are not copyright) and situations and incidents which may be …. …. …. ….. …. One must, however, be careful not to jump to the conclusion that there has been copying merely because of similarity of stock incidents, or of incidents which are to be found in historical, semi-historical and fictional literature about characters in history. In such cases the plaintiffs, and that includes the plaintiffs in the present case, are in an obvious difficulty because of the existence of common sources”.
“But I have read the whole of the script very carefully and compared it with the book and I find many similarities of detail there also…. …. …. ….. …. Again it is prima facie not without significance that apart from the burial of Captain Nolan the play ends with the very quotation which Mrs. Woodham Smith used to end her description of the battle…. …. …. ….. As Sir Andrew Clark points out, some of these might well be accounted for as being similar to other events already in the script, and in any event abridgment was necessary, but that may not be a complete answer”.
24. Similarly in the case of Donoghue v. Allied Newspapers Ltd., (1937) 3 All ER 503 it was pointed out that there was no copyright in an idea and in this connection Farwell, J. observed as follows:-
“This, at any rate, is clear, and one can start with this beyond all question that there is no copyright in an idea, or in ideas. … … … …. …. If the idea, however brilliant and however clever it may be, is nothing more than an idea, and is not put into any form of words, or any form of expression such as a picture or a play, then there is no such thing as copyright at all. It is not until it is (if I may put it in that way) reduced into writing, or into some tangible form, that you get any right to copyright at all, and the copyright exists in the particular form of language in which, or, in the case of a picture, in the particular form of the picture by which, the information or the idea is conveyed to those who are intended to read it or look at it”.
25. Similarly in the case of Robl v. Palace Theatre Ltd., (1911) 28 TLR 69 at page No. 72 Justice Hamilton observed as follows:-
“If similarity between two works was sufficiently strong the evidence of copying would be so cogent that no one would believe any denial, but here the intrinsic evidence was really the other way …. …. …. The matter had been considered by Justice Scrutton in his book on copyright, and the conclusion there come to (Note h p. 83 of fourth edition) was that to which his own reflection during the progress of this case would have led him. He considered, therefore, that where the similarity was a mere coincidence there was no breach of copyright.
26. In the case of Tate v. Fullbrook, (1908) 77 LJ KB 577 Lord Vaughan Williams observed as follows:-
“I do not think that I need go at length through the similarities and dissimilarities of the two sketches. It is practically admitted that, so far as the words are concerned, the similarity is trifling…. …. …. ….. All that we find here is a certain likeness of stage situation and scenic effect, which, in my opinion, ought not to be taken into consideration at all where there is appreciable likeness in the words”.
27. In the case of Frederick B. Chattertom and Benjamin Webster v. Joseph Arnold Cave (1878) 3 AC 483 Lord Hatherley observed as follows:-
“And if the quantity taken be neither substantial nor material, if, as it has been expressed by some Judges, “ a fair use” only be made of the publication, no wrong is done and no action can be brought. It is not, perhaps, exactly the same with dramatic performances. They are not intended to be repeated by others or to be used in such a way as a book may be used, but still the principle de minimis non curat lex applies to a supposed wrong in taking a part of dramatic works, as well as in reproducing a part of a book”.
“I think” my Lords, regard being had to the whole of this case, to the finding of the Lord Chief Justice that the parts which were so taken were neither substantial nor material parts, and the impossibility of damage being held to have accrued to the plaintiff from such taking, and the concurrence of the other Judges before whom the case was brought, that this appeal should be dismissed, and dismissed with costs”.
28. In the case of Sheldon v. MetroGoldwyn Pictures Corporation, (1793) 81 F 2d 49 learned Judge Hand while considering a case which is very similar to the case in this appeal observed as follows:-
“But it is convenient to define such a use by saying that others may “copy” the “theme” or “ideas”, or the like, of a work, though not its “expression”. At any rate so long as it is clear what is meant, no harm is done …. …. …. ….. …. Finally, in concluding as we do that the defendants used the play pro tanto, we need not charge their witnesses with perjury. With so many sources before them they might quite honestly forget what they took; nobody knows the origin of his inventions; memory and fancy merge even in adults. Yet unconscious plagiarism is actionable quite as much as deliberate.”
“The play is the sequence of the confluents of all these means, bound together in an inseparable unity; it may often be most effectively pirated by leaving out the speech, for which a substitute can be found, which keeps the whole dramatic meaning. That as it appears to us is exactly what the defendants have done here; the dramatic significance of the scenes we have recited is the same, almost to the letter …. …. …. ….. …. It is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate”.
In the aforesaid case the Court held that there was no plagiarism or violation of the copyright.
29. In the case of Shipman v. R. K. O. Radio Pictures, (1808) 100 F 2d 533 while holding that an idea cannot be the subject of copyright great stress was laid on the impression which the audience forms after seeing the copy. In this connection, Manton, J. observed as follows:-
“The Court concluded that it was the idea or impression conveyed to the audience which was the determining factor, and since the impressions were the same, held there was an infringement …. …. …. ….. …. From this case stemmed the modern law of copyright cases, with the result that it is now held that ideas are not copyrightable but that sequence of events is; the identity of impression must be capable of sensory perception by the audience.”
30. In the case of Michael V. Moretti v. People of the State of Illinois, (1960) 248 F 2d 799:356 US 947 it was held that law does not recognise property rights in ideas but only in the expression of the same in a particular manner adopted by the author. A writ of certiorari was taken against this judgment to the U.S. Supreme Court which was denied. To the same effect is an earlier decision in the case of Funkhouser v. Loew”s, (1920) 208 F 2d 185 where the following relevant observations were made on the various aspects of the matter:
“We are also mindful that the test used to determine infringement in cases of this class is whether ordinary observation of the motion picture photoplay would cause it to be recognised as a picturization of the compositions alleged to have been copied, and not whether by some hypercritical dissection of sentences and incidents seeming similarities are shown to exist …. …. …. ….. …. It recognised that there were similar incidents in the productions, but such similarities were due to the nature of the subject-matter and not to copying. Both the motion picture and plaintiff”s story “Old John Santa Fe” were set in the same geographical area and both had the typical western background …. …. …. ….. …. Appellant”s attempt to show similarities by comparing a word or phrase taken from his manuscript with the word or words appearing in the lyrics of a song in appellee”s motion picture is not in conformity with the test used in infringement cases and to which we have referred to above. We find no merit in the contention that any of the songs in defendant”s movie were taken from plaintiff”s manuscripts …. …. …. ….. …. Considering that both the movie and the manuscript presented activities of Harvey Girls, and information concerning them was received from the same source, we think it reasonable that some similarities in character portrayal could be discovered.”
31. In view of the aforesaid observation too much stress cannot always be laid on similarities or similar situations. A writ of certiorari against the judgment of the U. S. Court of Appeal to the U.S. Supreme Court was taken but certiorari was denied and the petition was rejected in limine as it appears from 348 US 843. This was also a case where a film was made on the basis of a play claimed to have been written by the plaintiff.
32. The case of Warner Bros. Pictures v. Collumbia Broadcasting System, (1928) 216 F 2d 945 is another illustration of the manner in which a copyright can be violated. Dealing with this aspect of the matter Stephens, J. observed as follows:-
“It is our conception of the area covered by the copyright statute that when a study of the two writings is made and it is plain the study that one of them is not in fact the creation of the putative authority, but instead has been copied in substantial part exactly or in transparent phrasing to produce essentially the story of the other writing, it infringes”.
A writ of certiorari was taken against the decision to the U.S. Supreme Court but was denied as reported in 348 US 971.
33. In the case of Otto Eisenchimi v. Fawcett Publications, (1958) 246 F 2d 598 Duffy, Chief Judge observed as follows:-
“An infringement is not confined to literal and exact repetition or reproduction; it includes also the various modes in which the matter of any work may be adopted, imitated, transferred, or reproduced, with more or less colourable alterations to disguise the piracy. Paraphrasing is copying and an infringement, if carried to a sufficient extent …. …. …. ….. …. The question of infringement of copy-right is not one of quantity but of quality and value”.
A writ of certiorari against this decision was taken to the U.S. Supreme Court but was denied which was reported on (1956) 2 L Ed 260:355 US 907.
34. In the case of Dorsey v. Old Surety Life Ins. Co., 98 F 2d 872 Phillips, J. observed as follows:-
“The right secured by a copyright is not the right to the use of certain words, nor the right to employ ideas expressed thereby. Rather it is the right to that arrangement of words which the author has selected to express his ideas …. …. …. ….. To constitute infringement in such cases a showing of appropriation in the exact form or substantially so of the copyrighted material should be required”.
Similar observations were made in the case of Twentieth Century Fox Film Corporation v. Stonesifer, (1852) 140 F 2d 579 which are as follows:-
“In copyright infringement cases involving original dramatic compositions and motion picture productions, inasmuch as literal or complete appropriation of the protected property rarely occurs, the problem before the court is concrete and specific in each case to determine from all the facts and circumstances in evidence whether there has been a substantial taking from an original and copyrighted property, and therefore an unfair use of the protected work, ………………… The two words involved in this appeal should be considered and tested, not hypercritically or with meticulous scrutiny, but by the observations and impressions of the average reasonable reader and spectator ………………… We find and conclude, as did the court below, that the numerous striking similarities in the two works cannot in the light of all the evidence be said to constitute mere chance. The deduction of material and substantial unlawful copying of appellee”s original play in appellant”s motion picture is more in consonance with the record and with the probabilities of the situation therein disclosed.”
This authority lays down in unmistakable terms the cases where an infringement of the copyright would take place and has pointed out that before the charge of plagiarism is levelled against the defendant it must be shown that the defendant has taken a substantial portion of the matter from the original and have made unfair use of the protective work. The two works involved must be considered and tested not hypercritically but (sic) (nor) with meticulous scrutiny.
35. Similarly, in the case of Oliver Wendell Holmes v. George D. Hurst, (1898) 174 US 82 Justice Brown speaking for the Court and describing the incidents of a violation of the copyright observed as follows:
“It is the intellectual production of the author which the copyright protects, and not the particular form which such production ultimately takes”.
The Judicial Committee in the case of Macmillan and Co. Ltd. v. K. and J. Cooper, 51 Ind App. 109 while pointing out the essential ingredients of the infringement of copyright Lord Atkinson observed as follows:-
“Third, that to constitute piracy of a copyright it must be shown that the original has been either substantially copied or to be so imitated as to be a mere evasion of the copyright”.
36. In the case of Florence A. Deeks v. H. G. Wells, 60 Ind App 26 Lord Atkin speaking for the Judicial Committee summarised the nature of the evidence required to prove a violation of copyright and observed as follows:-
“Now their Lordships are not prepared to say that in the case of two literary works intrinsic evidence of that kind may not be sufficient to establish a case of copying, even if the direct evidence is all the other way and appears to be evidence that can be accepted; but such evidence must be of the most cogent force before it can be accepted as against the oath of respectable and responsible people whose evidence otherwise would be believed by the Court.”
37. In the case of N. T. Raghunathan v. All India Reporter Ltd., Bombay, AIR 1971 Bom 48 it was held that copyright law did not protect ideas but only the particular expression of ideas. In that case, the Bombay High Court however held that the defendant had copied not only the ideas but also the style of abridgment, the expression of ideas and the form in which they were expressed and thus held that a case for violation of copyright was made out.
38. K. R. Venugopala Sarma v. Sangu Ganesan, 1972 Cri LJ 1098 (Mad) was a case of infringement of copyright in picture and it was held that an infringement of the copyright was complete even though the reproduction was not exact, but the effect on the mind by study of the two pictures was that the respondent”s picture was nothing but a copy of the plaintiff”s picture. The Court while applying the various tests observed as follows :-
“Applying this test, the degree of resemblance between the two pictures, which is to be judged by the eye, must be such that the person looking at the respondent”s pictures must get the suggestion that it is the appellant”s picture…. …. …. ….. …. One picture can be said to be a copy of another picture only if a substantial part of the former picture finds place in the reproduction”.
39. To the same effect is an earlier decision of the Division Bench of the Madras High Court in the case of The Daily Calender Supplying Bureau, Sivakasi v. The United Concern, AIR 1967 Mad 381 where the Court observed as follows :-
“What is essential is to see whether there is a reproduction of substantial part of the picture. There can be no test to decide what a substantial part of a picture is. One useful test, which has been followed in several decisions of Courts, is the one laid down by Lord Herschel, L. C. in Hanfstaengl v. Bains and Co., 1895 AC 20:
“……. …. …. ….. …. it depends really, on the effect produced upon the mind by a study of the picture and of that which is alleged to be a copy of it, or at least of its design”.
40. In the case of C. Cunniah and Co. v. Balraj and Co., AIR 1961 Mad 111 the Court applying the test of resemblance observed as follows (at pages 112-13):
“Applying this test, the degree of resemblance between the two pictures, which is to be judged by the eye, must be such that the person looking at the respondent”s picture must get the suggestion that it is the appellant”s picture. In this sense, the points of similarity or dissimilarity in the picture assume some importance “……. …. …. ….. We agree that this could not be the sole test, though, incidentally, the points of resemblance and dissimilarity assume some importance in the case of finding out whether, taken as a whole, the respondents” picture produces the impression in the mind of any observer, which amounts to a suggestion of the appellants” picture”.
“One picture can be said to be a copy of another picture only if a substantial part of the former picture finds place in the reproduction”.
41. In the case of Mohendra Chundra Nath Ghosh v. Emperor, AIR 1928 Cal 359 the Court while defining what a copy is held that a copy is one which is so near the original as to suggest the original to the mind of the spectator and observed as follows:-
“But the question is whether the offending pictures are copies of substantial portions of the copyright picture …. …. …. …… The figures may have been reduced in the offending pictures and slight modifications may have been introduced, or the clothes and colours may have been different, but there can be no doubt whatsoever that the main figures have an identical pose. These are not, in my opinion, coincidences due to the pictures being produced to represent common stock ideas”.
42. Similarly in the case of S. K. Dutt v. law Book Co., AIR 1954 All 570 it was held that in order to be an infringement of a man”s copyright there must be a substantial infringement of the work. A mere fair dealing with any work falls outside the mischief of the Copyright Act.
43. Similarly, in the case of Romesh Chowdhry v. Kh. Ali Mohamad Nowsheri, AIR 1965 J and K 101 a Division Bench of the Court to which one of us (Fazal Ali, J.) was a party and had written the leading judgment it was thus observed :
“It is well settled that in order to be actionable the infringement must be a colourable imitation of the originals with the purpose of deriving profit.”
44. In the case of Mohani Mohan Singh v. Sita Nath Basak, AIR 1931 Cal 233, a Division Bench of the Calcutta High Court while laying down the necessary concomitants of a colourable imitation Mukherji, J. observed as follows:-
“The question, therefore, is whether a colourable imitation has been made. Whether a work is a colourable imitation of another must necessarily be a question of fact. Similarity is a great point to be considered in this connection but mere similarity is not enough as it may be due to any one of four hypotheses as Copinger points out at page No. 134, Edn. 6, viz., (1) to mere chance, (2) to both works being taken from a common source, (3) to plaintiff”s work being taken from the defendant”s and (4) defendant”s work being taken from the plaintiff”s and each case must depend upon its own circumstances”, Guha, J. observed as follows:-
“It has to be determined whether in a particular case the work is a legitimate use of another man”s publication in the fair exercise of a mental operation deserving the character of original work.”
45. Thus, the position appears to be that an idea, principle, theme, or subject matter or historical or legendary facts being common property cannot be the subject-matter of copyright of a particular person. It is always open to any person to choose an idea as a subject-matter and develop it in his own manner and give expression to the idea by treating it differently from others. Where two writers write on the same subject similarities are bound to occur because the central idea of both is the same but the similarities or coincidences by themselves cannot lead to an irresistible inference of plagiarism or piracy. Take for instance the great poet and dramatist Shakespeare most of whose plays are based on Greek, Roman and British mythology or legendary stories like Merchant of Venice, Hamlet, Romeo Juliet, Julius Caesar etc. But the treatment of the subject by Shakespeare in each of his dramas is so fresh, so different, so full of poetic exuberance, elegance and erudition and so novel in character as a result of which the end product becomes an original in itself. In fact, the power and passion of his expression, the uniqueness, eloquence and excellence of his style and pathos and bathos of the dramas become peculiar to Shakespeare and leaves precious little of the original theme adopted by him. It will thus be preposterous to level a charge of plagiarism against the great playwright. In fact, throughout his original thinking, ability and incessant labour Shakespeare has converted an old idea into a new one, so that each of his dramas constitute a masterpiece of English literature. It has been rightly said that “every drama of Shakespeare is an extended metaphor”. Thus, the fundamental fact which has to be determined where a charge of violation of the copyright is made by the plaintiff against the defendant is to determine whether or not the defendant not only adopted the idea of the copyrighted work but has also adopted the manner, arrangement, situation to situation, scene to scene with minor charges or super-additions or embellishment here and there. Indeed, if on a perusal of the copyrighted work the defendant”s work appears to be a transparent rephrasing or a copy of a substantial and material part of the original, the charge of plagiarism must stand proved. Care however must be taken to see whether the defendant has merely disguised piracy or has actually reproduced the original in a different form, different tone, different tenor so as to infuse a new life into the idea of the copyrighted work adapted by him. In the latter case there is no violation of the copyright.
46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:
1. There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant”s work is nothing but a literal imitation of the copyrighted, work with some variations here and there it would amount to violation of the copy-right. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.
7. Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.
47. We would now endeavour to apply the principles enunciated above and the tests laid down by us to the facts of the present case in order to determine whether or not the plaintiff has been able to prove the charge of plagiarism and violation of copyright levelled against the defendant by the plaintiff. The learned trial Judge who had also had the advantage of seeing the picture was of the opinion that the film taken as a whole is quite different from the play written by the plaintiff. In order to test the correctness of the finding of the trial Court we also got the play read to us by the plaintiff in the presence of counsel for the parties and have also seen the film which was screened at C. P. W. D. Auditorium, Mahadev Road, New Delhi. This was done merely to appreciate the judgment of the trial Court and the evidence led by the parties and was not at all meant to be just a substitute for the evidence led by the parties.
48. To begin with, we would like to give a summary of the play Hum Hindustani which is supposed to have been plagiarized by the defendants. The script of the play Ex. P-1 has been placed before us and we have gone through the same.
49. The main theme of the play is provincialism and the prejudice of persons belonging to one State against persons belonging to other States. In the play however the author chooses two families, viz., a Punjabi family and a Madrasi family to show what havoc can be caused by provincial-parochialism possessed by the two families. The Punjabi family and the Madrasi family were living as close neighbours having good and cordial relations and are on visiting terms with each other. The Punjabi consists of Dewan Chand, contractor, his wife Krishna, their grown-up daughter Chander and son Tinnu aged about 8 or 10 years. The Madrasi family however consists of Subramaniam, a Government official, his wife Minakshi and grown up son Amni and daughter Pitto who is aged about 8 or 10 years. As a result of the close association between the two families it appears that Amni the son of Subramaniam falls in love with Chander the daughter of Dewan Chand of the Punjabi family. When the parents are out Amni and Chander meet and talk. Unfortunately, however, the parents of both Amni and Chander are extremely adverse to the matrimonial union of Amni and Chander because the two families belong to two different provinces. When they get some scent of the love affairs between Amni and Chander the parents of Chander make a serious attempt to find a suitable match for her amongst their own caste namely Punjabis. Similarly, the parents of Amni also try to arrange a match for him amongst Madrasis. For this purpose, the services of a marriage broker named Dhanwantri are enlisted by both the parties without knowing that Dhanwantri was trying to negotiate marriages for both the couples. Later on, when this fact is discovered the relations of the two families become strained. Amni and Chander also persuade Dhanwantri to assist them in bringing about their marriage by persuading their parents to agree. This gives a chance to Dhanwantri to make a lot of money out of the two couples. Dewan Chand and his wife Krishna in sheer desperation hurriedly arranged the marriage of their daughter Chander to Bansi, a simpleton, son of Murari Lal who is a friend of Dewan Chand. In fact, Dewan Chand is not very impressed with Bansi but in view of the critical situation arising out of the love affair between his daughter and Amni he prefers Bansi to the Madrasi boy. When Chander and Amni come to know of this Chander asked Amni to speak to his parents in a free and frank manner and express his strong desire to marry Chander. Amni who appears to be a cowardly fellow prefers to commit suicide rather than dare to talk out this matter with his parents. Realising that no hope is left for Chander and Amni to go through the marriage ceremony both of them entered into a suicidal pact and write letters to their parents indicating their intention to commit suicide because they are not prepared to marry anybody else. Dhanwantri, however, intervenes and persuades Chander and Amni not to commit suicide as according to him they were not destined to die unless they had been actually married. Meanwhile, the parents of Amni and Chander on getting the suicide note mourn the loss of their children and it now dawns upon them that they had committed the saddest mistake of their life in refusing to marry the couple and repent for their act. Just at that time Amni and Chander appear on the scene after having been married to each other. The marriage was performed by Dhanwantri himself. Thus ends the story with the realisation by both the families that provincialism helps nobody. This in short is the story of the play written by the appellant.
50. We might mention that before the play starts the author shows some voices reciting various persons proclaiming that they come from different States like the slogan that they belong to a particular State rather than that they belong to India.
51. Analysing therefore the essential features of the play the position is as follows:-
1. That the central idea of the play is based on provincialism and parochialism.
2. The evils of provincialism are illustrated by the cordial relations of the two families being marred because of an apprehended marriage tie which according to both the families was not possible where they belonged to different States.
3. That the Madrasi boy Amni is a coward and in spite of his profound love for Chander he does not muster sufficient courage to talk the matter out with his parents.
4. That in sheer desperation while the parents of the families are trying to arrange a match for the couple belonging to the same State Amni and Chander enter into a suicidal pact and write letters to their parents intimating their intention.
5. It was only after the letters are perused by the parents that they realise the horror of parochialism and are repentant for having acted so foolishly.
6. That after this realisation comes the married couple Amni and Chander appear before the parents and thus all is well that ends well.
52. As the play was read to us by the appellant we find that it was very exquisitely presented and the plot was developed with very great skill. It must be noted however that the author in writing out the play has concentrated only on one aspect of provincialism namely whether there can be a marriage between the persons belonging to one State with those belonging to other States. This is the only aspect of provincialism which has been stressed in the play. The play does not touch any other aspect nor does it contain anything to throw light on the evils of society or that of dowry etc. We have mentioned these facts particularly because the film revolves around not only the aspect of marriage but other aspects also which are given the same importance as the problem of marriage.
53. We shall now give the summary of the film, the script of which is Ex. D-2. The film starts showing Anand a young graduate from Punjab who comes to New Delhi for a course in Radio Engineering. At the Railway Station Anand meets a Madrasi girl Janki and due to some misunderstanding an altercation between the two takes place, as a result of which Janki feels that Anand was trying to tease her. Thereafter Anand comes and stays in a Sarai opposite the Railway station, but he is allowed to stay there only for three days after which he was expected to find accommodation elsewhere. Thereafter Anand runs from house to house trying to get some accommodation but is sadly disappointed because wherever he goes he finds that in every case the landlord is not prepared to give the house to any person who does not belong to his province. We might mention here that this is one of the very important aspect of provincialism which pervades through the entire film viz., that so parochial are the landlords that they were not even prepared to let out their houses or rooms to any person coming from outside their State. This particular aspect is completely absent from the story revealed in the play written by the appellant. One Kumarswamy a South Indian attendant at the Sarai comes to the rescue of Anand and suggests to him that he should attire as a South Indian and then go to any South Indian landlord to get the house. Thereafter Anand disguised as a South Indian approaches one Iyer for giving him accommodation and Iyer is only too glad to accommodate Anand on the ground that Anand is also a South Indian. Anand then meets Subramaniam father of Janki the girl with whom he had an altercation at the station. The film then proceeds involving several sequences of the meeting between Anand and Janki. Murli Dhar the Principal of a Dancing School takes Anand as his student and there he is introduced to Janki who is Professor of Dance and Music in that Institute, Janki then discovers that Anand is a good singer and is slowly and gradually attracted towards him. Janki invited him to her house for the celebration of Pongal festival and Anand goes there as usual attired as South Indian, witnesses the dance performance of Janki. He also comes to know that Janki”s father Subramaniam does not hold any good opinion about the Punjabis. Thereafter Anand leaves the place after making an appointment with Janki to meet near Rashtrapati Bhawan the following day. When Anand returns to his house he comes to know that his father Daulat Ram had been transferred to New Delhi and was expected any moment. Daulat Ram was posted as Manager in the same commercial company in which Subramanim was employed in a subordinate position. Anand receives his parents and his grown up sister Nikki at the railway station and takes them to his house. He also brings Kumarsamy, the attendant, at the Sarai to his own house as a cook. Thereafter Anand goes out on the pretext of taking his sister Nikki around the city. When they reach the Red Fort he meets Ashok Banerjee, a young Bengali painter whom he had met earlier in connection with the search for accommodation of the house but was refused accommodation because Anand did not happen to be a Bengali. Ashok Banerjee is impressed by Nikki and requests her to allow him to make Nikki”s portrait. Leaving his sister there Anand meets Janki and both of them come to the Red Fort. When Anand and Janki meet Nikki and Ashok, Anand in order to conceal his real identity tells Janki that Nikki is the daughter of his father”s friend, which naturally angers Nikki but later Anand apologises to her and explains that he did not want Janki or her father to know that he was not a Madrasi and thus upset the love affair between Anand and Janki. Subramaniam, father of Janki takes a fancy for Anand and asks Janki to invite Anand”s father to the house so that he could negotiate Janki”s marriage with Anand. This puts Anand in a most awkward position. In order to save the situation Anand hits upon an idea by introducing his cook Kumarswamy to Subramaniam as his father. Just at that time Daulat Ram happens to pass by Subramaniam”s house and is called in by Subramaniam, but the situation is saves by Kumarswamy feigning illness as a result of which he is taken to a room where he hides his face in a blanket. Anand leaves the house and returns with a false beard posing as a Doctor. Similarly, Ashok and Nikki get attached to each other and Ashok receives a telegram from his father summoning him to Calcutta. Before he leaves Ashok frankly declares his love to Nikki and gets her consent to marry him. The love affair of Nikki however is not in the knowledge of her parents. Murli Dhar, Principal of the Institution of Dance and Music arranges a performance in which the principal role is played by Anand and Janki. Up to this time neither Janki nor her father Subramaniam had ever known the real identity of Anand but both of them had taken him to be a South Indian. We might like to add that here the picture makes a completely new departure from the story contained in the play where both the parents of the couple knew the identity of each other. Before the performance starts Anand tries to disclose his identity to Janki but is unable to do so because Janki is in a hurry. The performance is applauded by the audience which includes Subramaniam, Daulat Ram and Kumarswamy. In the theater hall where the performance is staged Kumarswamy is given a prominent place as he is taken to be the father of Anand, Daulat Ram resents this fact because Kumarswamy was his servant. After the performance Murli Dhar introduces Subramaniam Janki”s father to the audience. Murli Dhar then calls Kumarswamy and introduces him to the audience as the father of Anand. This infuriates Dault Ram who comes to the stage and gives a thrashing to Kumarswamy. It is at this stage that the entire truth is revealed and both Subramaniam and Janki come to know that Anand was not a South Indian but a Punjabi and his father was Daulat Ram. Daulat Ram also does not like the relations of his son with Janki because he thinks that if the son marries outside the caste that will create difficulties for the marriage of his daughter. Nikki, Subramaniam then starts negotiation for Janki”s marriage with a South Indian boy. Anand goes to Janki and asks her to delay the negotiations for about a month or two till Nikki”s marriage is over after which he would marry Janki. Janki feels completely let down and when she goes home she is given a serious rebuke by her father. In utter frustration Janki decides to commit suicide and leaves a suicide note. She proceeds and Jamuna river. Before she is able to jump into the river she is saved by Sadhu Ram, a Punjabi Ghee Merchant, and a friend of Subramaniam, Sadhu Ram scoffs at the people”s preference for provincialism and their lack of appreciation of intrinsic human values. He takes Janki to his own house and tells Daulat ram that she is his niece and on that basis negotiates for the marriage of Janki with Anand. Daulat ram accepts the proposal because Janki appears as a Punjabi girl. On receiving the suicide note Subramaniam feels extremely sorry and realises his mistake. In the meanwhile when Daulat Ram returns to his house he finds Ashok Banerjee on very intimate terms with Nikki. Daulat Ram gets furious and turns out Ashok from his house. Thereafter Daulat Ram arranges the marriage of his daughter Nikki with the son of one Girdhari Lal. After the marriage party comes to the house of Daulat Ram, Girdhari Lal insists upon ` 15,000 as dowry from Daulat ram. Daulat Ram does not have such a large sum of money and implores Girdhari Lal not to insist and to save his honour but Girdhari Lal is adamant. Daulat Ram tries to enlist the support of his caste men but no one is prepared to oblige him. At this juncture Ashok Banerjee appears on the scene and offers his mother”s jewellery to Daulat Ram to be given in dowry to Girdhari Lal and thus seeks to save the honour of Daulat Ram. This act of Ashok Banerjee brings about a great mental change in the attitude of Daulat Ram, who stops Nikki”s marriage with Girdhari Lal”s son and turns them out along with the men of his brotherhood. Daulat Ram declares his happiness that he has found a bigger brotherhood, namely, the Indian brotherhood and asks Ashok to marry Nikki at the same marriage Pandal. At that time Sadhu Ram requests Daulat Ram that Mohini who is none other than Janki should also be married to Anand. Sadhu Ram discloses the true identity of Janki and then Daulat Ram realises his short-sightedness and welcomes the idea of the marriage of Anand with Janki. Subramaniam who is present there feels extremely happy and blesses the proposed marriage. Ashok and Nikki as also Anand and Janki and then married and thus the film ends.
54. Analysing the story of the film it would appear that it portrays three main themes:(1) Two aspects of provincialism viz, the role of provincialism in regard to marriage and in regard to renting out accommodation (2) Evils of a caste ridden society, and (3) the evils of dowry. So far as the last two aspects are concerned they do not figure at all in the play written by the plaintiff/appellant. A close perusal of the script of the film clearly shows that all the three aspects mentioned above are integral parts of the story and it is very difficult to divorce one from the other without affecting the beauty and the continuity of the script of the film. Further, it would appear that the treatment of the story of the film is in many respects different from the story contained in the play.
55. Learned counsel for the appellant however drew our attention to para 9 of the plaint at pages 18-19 of the paper book wherein as many as 18 similarities have been detailed. The similarities may be quoted thus:-
(i) Before the actual stage play, the producer gives a narrative. He states that although we describe ourselves as Hindustanis we are not really Hindustani. He questions the audience as to what they are and various voices are heard. To say in their own provincial language that they are Punjabis, Bengalis, Gujratis, Marathas, Madrasis, Sindhis, etc. In the said Film the same idea is conveyed and the hero of the picture is shown searching for a house in New Delhi and wherever he goes he is confronted by a landlord who describes himself not as a Hindustani but as a Punjabi, Bengali, Gujarati, Maratha, Madrasi or Sindhi.
(ii) Both the said play and the said film deal with the subject of Provincialism.
(iii) Both the said play and the said film evolve drama around the lives of two families, one a Punjabi and the other a Madrasi family.
(iv) In both the said play and the said film the name of the Madrasi father is Subramanyam.
(v) Both the said play and the said film have their locale in New Delhi.
(vi) Both the said play and the said film show cordiality of relations between the two families.
(vii) Both the said play and the said film show the disruption of cordial relations as soon as the heads of the families discover the existence of a love affair between their children.
(viii) In both the said play and the said film, both the parents warn their respective children not to have anything to do with each other on pain of corporal punishment.
(ix) The entire dialogue in both the said play and the said film before and after the disruption is based upon the superiority of the inhabitants of one Province over the inhabitants of the others.
(x) In both the said play and the said film the girl is shown to be fond of music and dancing.
(xi) In both the said play and the said film the hero is shown as a coward to the extent that he has not the courage to go to his parents and persuade them to permit him to marry a girl hailing from another Province.
(xii) Both in the said play and in the said film, when the parents of the girl are discussing marrying her off to somebody the girl is listening to the dialogue from behind a curtain. Thereafter the girl runs to the boy and explains the situation to him. (xiii) In both the said play and the said film, the girl writes a letter of suicide.
(xiv) In the said play reconciliation takes place when the children of the two families, who were in love, go out to commit suicide by drowning etc., whereas in the said film, it is only the daughter who goes out to commit suicide by drowning herself in the Jamna.
(xv) In the said play the children are stopped from committing suicide by an Astrologer whereas in the said film the girl is stopped from committing suicide by a friend of the family.
(xvi) In the said play reconciliation between the two families takes place only after they have experienced the shock of their children committing suicide on account of their provincial feelings whereas in the film, the father of the girl realised his mistake after experiencing the shock of his daughter committing suicide.
(xvii) In both the said play and the said film, stress is laid on the fact that although India is one country, yet there is acute feeling of provincialism between persons hailing from its various States even though they work together and live as neighbours.
(xviii) Both in the said play and in the said film, even the dialogue centres around the same subject of provincialism.
56. In the course of the argument also our attention was drawn to a comparative compilation of the similarities in the film and the play. The learned trial Judge after considering the similarities was of the opinion that the similarities are on trivial points and do not have the effect of making the film a substantial and material imitation of the play. Moreover apart from the fact that the similarities and coincidences mentioned above are rather insignificant as pointed out by the trial Judge and the High Court, in our opinion, they are clearly explainable by and referable to only the central idea, namely, evils of provincialism and parochialism which is common to both the play and the film. Nothing therefore turns upon the similarities categorised by the plaintiff (in para 9 of the plaint), in the peculiar facts and circumstances of this case.
57. After having gone through the script of the play and the film we are inclined to agree with the opinion of the Courts below. We have already pointed out that mere similarities by themselves are not sufficient to raise an inference of colourable imitation. On the other hand, there are quite a number of dissimilarities also, for instance:
(i) In the play provincialism comes on the surface only when the question of marriage of Amni with Chander crops up but in the picture it is the starting point of the story when Anand goes around from door to door in search of accommodation but is refused the same because he does not belong to the State from which the landlord hails, as a result thereof Anand has to masquerade himself as a Madrasi. This would, therefore, show that the treatment of the subject of provincialism in the film is quite different from that in the play and is actually a new theme which is not developed or stressed in the play.
(ii) Similarly, in the play the two families are fully aware of the identity of each other whereas in the film they are not and in fact it is only when the dance performance of Janki and Anand is staged that the identity of the two families is disclosed which forms one of the important climaxes of the film. Thus, the idea of provincialism itself is presented in a manner or form quite different from that adopted in the play.
(iii) In the film there is no suicidal pact between the lovers but only a suicide note is left by Janki whereas in the play both the lovers decide to end their lives and enter into a suicidal pact and leave suicide note to this effect. Furthermore, while in the play Amni and Chander get married and then appear before the parents in the picture the story takes a completely different turn with the intervention of Sadhu Ram who does not allow Janki to commit suicide but keeps her with him disguised as his niece and the final climax is reached in the last scene when Janki”s real identity is disclosed and Subramaniam also finds out that his daughter is alive.
(iv) The story in the play revolves around only two families, namely, the Punjabi and the Madrasi families, but in the film there are three important families, namely, the Punjabi family, the Madrasi family and the Bengali family and very great stress is laid down in the film on the role played by Ashok Banerjee of the Bengali family who makes a supreme sacrifice at the end which turns the tide and brings about a complete revolution in the mind and ideology of Daulat Ram.
(v) The film depicts the evil of casteridden society and exposes the hollowness of such a society when in spite of repeated requests no member of the brotherhood of Daulat Ram comes to his rescue and ultimately it is left to Ashok Banerjee to retrieve the situation. This aspect of the matter is completely absent in the play.
(vi) The film depicts another important social evil, namely, the evil of dowry which also appears to be the climax of the story of the film and the horrors of dowry are exhibited and demonstrated in a very practical and forceful fashion. The play however does not deal with this aspect at all. The aspects mentioned above which are absent from the play are not mere surplusage or embellishments in the story of the film but are important and substantial parts of the story.
58. The effect of the dissimilarities pointed out above clearly go to show that they far outweigh the effect of the similarities mentioned in para 9 of the plaint set out above. Moreover, even if we examine the similarities mentioned by the plaintiff they are trifling and trivial and touch insignificant points and do not appear to be of a substantial nature. The mere fact that the name of the Madrasi father was Subramaniam in both the film and the play is hardly of any significance because the name of a particular person cannot be the subject-matter of copyright because these are common names.
59. After careful consideration of the essential features of the film and the play we are clearly of the opinion that the plaintiff has not proved by clear and cogent evidence that the defendants committed colourable imitation of the play and have thus violated the copyright of the plaintiff.
60. It was lastly contended by counsel for the appellant that the correspondence between the plaintiff and the defendant would show that defendant No. 2 himself was aware of the story contained in the play even before he proceeded to make the film “New Delhi”. This is undoubtedly so because defendant No.2 admits in his evidence that he had come of Delhi and the entire play was narrated to him by the plaintiff. There is however a serious controversy on the question as to whether the defendant after hearing play said that the play was not suitable for being filmed as alleged. The plaintiff however seems to suggest that defendant No. 2 was undoubtedly attracted by the play and it was on the basis of this play that he decided to make the film. However, there is no reliable evidence to show that defendant No. 2 at any time expressed his intention to film the play written by the plaintiff. There can be no doubt that defendant No. 2 was aware of the story contained in the play and a part of the film was undoubtedly to some extent inspired by the play written by the plaintiff. But the definite case of defendant No. 2 also is that he was in search of a story based on provincialism and the play written by the plaintiff may have provided the opportunity for defendant No. 2 to produce his film though with a different story, different theme, different characterisation and different climaxes.
61. Thus, applying the principles enunciated above and the various tests laid down to determine whether in a particular case there has been a violation of the copyright we are of the opinion that the film produced by the defendants cannot be said to be a substantial or material copy of the play written by the plaintiff. We also find that the treatment of the film and the manner of its presentation on the screen is quite different from the one written by the plaintiff at the stage. We are also satisfied that after seeing the play and the film no prudent person can get an impression that the film appears to be a copy of the original play nor is there anything to show that the film is a substantial and material copy of the play. At the most the central idea of the play, namely, provincialism is undoubtedly the subject matter of the film along with other ideas also but it is well settled that a mere idea cannot be the subject-matter of copyright. Thus, the present case does not fulfil the conditions laid down for holding that the defendants have made a colourable imitation of the play.
62. On a close and careful comparison of the play and the picture but for the central idea (Provincialism which is not protected by copyright), from scene to scene, situation to situation, in climax to anti-climax, pathos, bathos, in texture and treatment and purport and presentation, the picture is materially different from the play. As already indicated above, applying the various tests outlined above we are unable to hold that the defendants have committed an act of piracy in violating the copyright of the play.
63. Apart from this the two courts of fact, having considered the entire evidence, circumstances and materials before them have come to a finding of fact that the defendants committed no violation of the copyright. This Court would be slow to disturb the findings of fact arrived at by the courts below particularly when after having gone through the entire evidence, we feel that the judgment of the courts below are absolutely correct.
64. The result is that the appeal fails and is accordingly dismissed. But in the circumstances there will be no order as to costs in this Court only.
65. JASWANT SINGH, J:-. Bearing in mind the well recognised principles and tests to determine whether there has been an infringement of the law relating to copyright in a particular case which were brought to our notice by the counsel on both sides and which have been elaborately considered and discussed by my learned brother Murtaza Fazal Ali in the course of the judgment prepared by him, we proceeded at the request of the counsel to hear the script of the play “Hum Hindustani” which was read out to us by the plaintiff himself in a fascinating dramatic style and to see the film “New Delhi” produced by defendants 1 and 2, the exhibition of which was arranged by the defendants themselves. On a careful comparison of the script of the plaintiff”s copyrighted play with the aforesaid film, although one does not fail to discern a few resemblances and similarities between the play and the film, the said resemblances are not material or substantial and the degree of similarities is not such as to lead one to think that the film taken as a whole constitutes an unfair appropriation of the plaintiff”s copyrighted work. In fact, a large majority of material incidents, episodes and situations portrayed by defendants 1 and 2 in their aforesaid film are substantially different from the plaintiff”s protected work and the two social evils viz. caste system and dowry system sought to be exposed and eradicated by defendants 1 and 2 by means of their aforesaid film do not figure at all in the plaintiff”s play. As such I am in complete agreement with the conclusions arrived at by my learned brother Murtaza Fazal Ali that there has been no breath on the part of the defendants of the plaintiff”s copyright and concur with the judgment proposed to be delivered by him.
66. PATHAK, J:-. It appears from a comparison of the script of the stage play “Hum Hindustani” and the script of the film “New Delhi” that the authors of the film script have been influenced to a degree by the salient features of the plot set forth in the play script. There can be little doubt from the evidence that the authors of the film script were aware of the scheme of the play. But on the other hand, the story portrayed by the film travels beyond the plot delineated in the play. In the play, the theme of provincial parochialism is illustrated only in the opposition to a relationship by marriage between two families hailing from different parts of the country. In the film the theme is also illustrated by the hostile attitude of proprietors of lodging accommodation towards prospective lodgers who do not belong to the same provincial community. The plot then extends to the evils of the dowry system, which is a theme independent of provincial parochialism. There are still other themes embraced within the plot of the film.Nonetheless, the question can arise whether there is an infringement of copyright even though the essential features of the play can be said to correspond to a part only of the plot of the film. This can arise even where changes are effected while planning the film so that certain immaterial features in the film differ from what is seen in the stage play. The relative position in which the principal actors stand may be exchanged or extended, and embellishments may be introduced in the attempt to show that the plot in the film is entirely original and bears no resemblance whatever to the stage play. All such matters fall for consideration in relation to the question whether the relevant part of the plot in the film is merely a colourable imitation of the essential structure of the stage play. If the treatment of the theme in the stage play has been made the basis of one of the themes in the film story and the essential structure of that treatment is clearly and distinctly identifiable in the film story, it is not necessary, it seems to me, for the Court to examine all the several themes embraced within the plot of the film in order to decide whether infringement has been established. In the attempt to show that he is not guilty of infringement of copyright, it is always possible for a person intending to take advantage of the intellectual effort and labours of another to so develop his own product that it covers a wider field than the area included within the scope of the earlier product, and in the common area covered by the two productions to introduce changes in order to disguise the attempt at plagiarism. If a reappraisal of the facts in the present case had been open in this Court, I am not sure that I would not have differed from the view taken on the facts by the High Court, but as the matter stands, the trial Court as well as the High Court have concurred in the finding that such similarities as exist between the stage play “Hum Hindustani” and the film “New Delhi” do not make out a case of infringement. The dissimilarities, in their opinion, are so material that it is not possible to say that the appellant”s copyright has been infringed. This court is extremely reluctant to interfere with concurrent findings of fact reached by the Courts below and for that reason I would allow the judgment under appeal to stand. In another, and perhaps a clearer case, it may be necessary for this court to interfere and remove the impression which may have gained ground that the copyright belonging to an author can be readily infringed by making immaterial changes, introducing insubstantial differences and enlarging the scope of the original theme so that a veil of apparent dissimilarity is thrown around the work now produced. The court will look strictly at not only blatant examples of copying but also at reprehensible attempts at colourable imitation.
67. The appeal is dismissed, but without any order as to costs.
KEYWORDS:-Admiralty matter-Common law principles- common law of India-
AIR 2000 SC 2826 : (2000) 2 Suppl. SCR 440 : (2000) 8 SCC 278 : JT 2000 (9) SC 184 : (2000) 5 SCALE 618
(SUPREME COURT OF INDIA)
|Tsavliris Salvage (International) Ltd. and others||Respondent|
(Before: S. B. Majmudar And U. C. Banerjee, JJ.)
Civil Appeal Nos. 4578 of 2000 with 4579, of 2000 (@ SLP (C) Nos. 18616 of 1999 with 4410 of 2000), Decided on: 17-08-2000.
Civil Procedure Code, 1908—Section 44A—Foreign decree—Enforcement of—Question whether foreign judgment is judgment in rem or judgment in personam is of no significance.
The Court held that there exists sufficient reasons and justification in the submission of the decree-holder that it is of no significance at all if the English judgment in question be termed to be the judgment in rem or judgment in personam especially in the facts of the matter under consideration having due regard to the domestic law and in particular Section 44A of the Code of Civil Procedure.
Civil Procedure Code, 1908—Section 44A—Foreign judgment—Enforcement of—Scheme provided by Section 44A is different from one for execution of domestic executions.
The scheme for execution of foreign judgment provided in Section 44A is a scheme alien to the scheme of domestic execution as is provided under Section 39(3) of the Code. The scheme under the latter section is completely a different scheme wherein the transferee Court must be otherwise competent to assume jurisdiction and the general rule or the principle that one cannot go behind the decree is a permissible proposition of law having reference to Section 39(3). One can thus from the above conclude that whereas the domestic law, execution scheme is available under Sections 37, 38, 39, 41 and 42. Section 44A depicts an together different scheme for enforcement of foreign judgments through Indian Courts.
Civil Procedure Code, 1908—Section 44A—Foreign judgment—Enforcement of—Section 44A is an independent provision—Displaces common law principles.
Section 44A is an independent provision enabling asset of litigants whose litigation has come to an end by way of a foreign decree and who is desirous of enforcement of the same, it is an authorisation given to the foreign judgments and the section is replete with various conditions and as such independently of any other common law rights, an enabling provision for a foreign decree-holder to execute a foreign decree in this country has been engrafted on to statute book to wit Section 44A of the Code of Civil Procedure.
Civil Procedure Code, 1908—Sections 44A and 11—Foreign decree—Enforcement in India—Section 44A confers an independent right on foreign decree holder—It is fresh cause of action and has no correlation with jurisdictional issues.
Section 44A indicates an independent right, conferred on to a foreign decree-holder for enforcement of its decree in India. It is a fresh cause of action and has no co-relation with jurisdictional issues. The factum of the passing of the decree and the assumption of jurisdiction pertaining thereto, do not really obstruct the full play of provisions of Section 44A. It gives a new cause of action irrespective of its original character and as such it cannot be termed to be emanating from the admiralty jurisdiction as such. The enforcement claimed is of an English decree and the question is whether it comes within the ambit of Section 44A or not. The decree itself need not and does not say that the same pertains to an admiralty matters neither it is required under Section 44A of the Code. Registration in this country, as a decree of a superior foreign Court having reciprocity with this country would by itself be sufficient to bring it within the ambit of Section 44A. The conferment of jurisdiction in terms of Section 44A cannot be attributed to any specific jurisdiction but an independent and an enabling provision being made available to a foreigner in the matter of enforcement of a foreign decree.
Words and phrases—Maritime lien—Meaning of.
There are two attributes to maritime lien, i.e. (a) a right to a part of the property in the res; and (b) a privileged claim upon a ship, aircraft or other maritime property in respect of services rendered to, or injury caused by that property. Maritime lien thus attaches to the property in the event the cause of action arises and remains attached. It is, however, inchoate and very little positive in value unless it is enforced by an action. It is a right which springs from general maritime law and is based on the concept as if the ship itself has caused the harm, loss or damage to others or to their property and this must itself make good that loss.
Counsel for the Parties:
P. Chidambaram, Ashok H. Desai, V. Kotwal, Sr. Advocates, S. Dave, A. Sen, Ms. Bina Gupta, G. K. Banerjee, Venketesh Dhond, R. N. Karanjawala, Ms. Ruby Singh Ahuja, Mrs. Manik Karanjawala, R. Rahim and Kailash Vasdev, Advocates, with them, for appearing parties.
S. B. Majmudar, J—I have gone through the erudite and exhaustive judgment prepared by learned brother, U. C. Banerjee, J., in these appeals. I respectfully agree with the conclusion reached by him. However, as the matter at issue has wide repercussions regarding the scope and ambit of admiralty jurisdiction vested in the Chartered High Courts or their successor High Courts, like the High Court of Andhra Pradesh, I deem it fit to record my reasons for concurring with the decision arrived at by learned brother.
2. At the outset, admitted and well-established facts deserve to be noted in order to appreciate the contours of controversy posed for our consideration. They can be enumerated as under:
1. Respondent No. 2 before this Court has suffered a foreign decree passed by the High Court of Justice, Queen’s Bench Division, Admiralty Court, England in monetary terms by way of damages for breach of contract for salvaging and towing the vessel “M. V. AI Tabish” alleged to be renamed as “M. V. AI Quamar”. Respondent No. 1-company before us is the decree-holder. It had filed the suit in the Admiralty Court in England alleging that pursuant to a contract of salvage entered into by Respondent No. 1 with Respondent No. 2, it had mobilized its tug for salvaging and towing the aforesaid vessel which had met rough weather in the high seas. Its further case against Respondent No. 2 is that though the plaintiff was prepared to render services as per the contract it was prevented from rendering the same by Respondent No. 2 which committed breach of contract and hence this suit in the Admiralty Court for damages for breach of contract pertaining to salvaging the said ship. As the alleged breach of contract for salvage had admittedly taken place in London, the suit was filed in the Admiralty Court, England.
2. After getting notice of the filing of the suit, Respondent No. 2 subsequently remained ex parte and a decree for damages for breach of salvage contract was passed by the English Court on 2-11-1998. It was held by that Court that Respondent No. 2 was liable in the sum of US $ 265,000 together with interest @ 9.51% p.a. from 1-6-1994. It was also ordered that copies of the order and judgment were to be served on Respondent No. 2 at their address in Cyprus and the order was to become final and binding after seven days of service.
3. Admittedly the vessel in question for salvaging the same, the contract was entered into by Respondent No. 1 with Respondent No. 2, was not available for being proceeded against in the English Court and only Respondent No. 2 was joined as a party to the litigation. Consequently, the aforesaid money decree passed by the English Admiralty Court remained a decree in personam against Respondent No. 2.
4. The vessel in question having crossed the high seas for discharging the cargo carried by it ultimately was found to have anchored in Visakhapatnam Port in Andhra Pradesh. Thus, admittedly, the res in question was found located in the territorial waters of Andhra Pradesh within the territorial jurisdiction of Admiralty Court of Andhra Pradesh, being the High Court of Andhra Pradesh, as a successor to the Chartered High Court of Madras.
5. Respondent No. 1 decree-holder having come to know about the anchoring of the said ship at Visakhapatnam filed an execution petition invoking Section 44-A of the Civil Procedure Code (for short “C.P.C.”) for arrest and detention of the ship and for recovering the decretal amount from Respondent No. 2 judgment-debtor on the ground that it had obtained a foreign money decree from competent Admiralty Court against Respondent No. 2, who was the owner of the said res M. V. Al Tabish.
6. In the said execution petition the res in question, namely, M. V. Al Tabish was joined as a party opponent as it was required by the decree-holder to be attached and sold in execution of its decree against Respondent No. 2.
7. The master of the ship M. V. Al Quamar contested the execution proceedings and raised a preliminary objection about their maintainability in the Andhra Pradesh High Court. The Andhra Pradesh High Court, by its impugned judgment, took the view that the execution petition is maintainable and directed that evidence be led as per Order XXI, Rule 58 of the C.P.C. for deciding the question whether the vessel M. V. Al Quamar really belongs to the judgment-debtor-Respondent No. 2 or to a stranger, third party purchaser, who is said to have renamed vessel M. V. Al Tabish as M. V. Al Quamar and, therefore, according to the appellant-master of the said vessel it has no longer remained the property of the judgment-debtor-Respondent No. 2. The resolution of this question on evidence is pending before the High Court.
8. It is not in dispute between the parties that in the aforesaid execution proceedings pending in the Andhra Pradesh High Court on its Admiralty side, original judgment-debtor of English Court who has suffered decree from the Admiralty Court of England though served has not thought it fit to appear before the Andhra Pradesh High Court and to contest these proceedings.
9. By an ad interim order of the Andhra Pradesh High Court, the ship in question has been attached and is lying detained in Visakhapatnam Port awaiting further orders of the Court.
10. The High Court of Andhra Pradesh, in exercise of its Admiralty jurisdiction, falls within the definition of “District Court”, on a conjoint reading of Section 44-A and Section 2(4) as it is the principal Court of original Admiralty jurisdiction as contra-distinguished from its appellate or revisional jurisdiction.
In the light of the aforesaid well-established facts on record, the short question arises for our consideration whether the aforesaid execution proceedings are maintainable before the High Court of Andhra Pradesh as an executing Court for enforcing the foreign decree passed by the English Admiralty Court by attachment and sale of the vessel in question.
3. Mr. P. Chidambaram, learned senior counsel for the appellant, placed two submissions for our consideration in support of these appeals. The same are as under:
1. Invocation of Section 44A of the C.P.C. by Respondent No. 1 decree-holder of a decree passed by the Admiralty Court is misconceived as the said provision gets excluded by Section 112(2) of the C.P.C.
2. In the alternative, it is contended that even assuming that the said provision applies on the facts of the present case, the Andhra Pradesh High Court is not a competent Court which can entertain such execution proceedings under Section 44-A of the C.P.C.
We have to resolve these controversies in the light of the aforesaid admitted and well-established facts on record. It is made clear that if such proceedings are maintainable, then the moot question which arises is whether the attached ship M.V. Al Quamar really belongs to respondent No. 2 judgment-debtor or it belongs to a third party, who is alleged to be the purchaser of the said original ship – M.V. Al Tabish. It admittedly belonged to respondent No. 2 at the time when the suit was filed in the English Admiralty Court by respondent No. 1 on 11-10-1994 and, pending those proceedings, respondent No. 2 is alleged to have sold the said vessel by a Memorandum of Agreement dated 4-2-1997 for a sum of US $ 2,515,000 to a third party and the master of which ship M. V. Al Quamar is contesting the execution proceedings, will have to be resolved and the evidence which is being recorded by the executing Court at present has also to be looked into. We are not concerned with this factual controversy. All that was argued before us and which is to be decided is about the maintainability of the execution petition on demurer, meaning thereby, assuming that the averments in the execution petition are true. That is how Mr. P. Chidambaram, learned senior counsel for the master of the vessel and Mr. F.S. Nariman and Mr. Ashok H. Desai, learned senior counsels for respondent No. 1 decree-holder have addressed us and sought appropriate decision in the present proceedings.
4. I may now proceed to deal with the aforesaid two contentions pressed in service by Mr. P. Chidambaram, learned senior counsel for the appellant in support of these appeals.
CONTENTION NO. 1:
5. So far as applicability of Section 44-A of the C.P.C. is concerned, we may usefully refer to the said provision for appreciating its correct scope. The same is already reproduced in the judgment of brother Banerjee, J.
6. A mere glance at that provision, read with relevant explanations shows that before it is invoked by any decree-holder, he must satify the following conditions.
1. A decree-holder who seeks execution must be armed with a money decree passed by any of the superior Court of any reciprocating terrritory, being any foreign country or territory which the Central Government may, by notification in official gazette, has declared to be a reciprocating territory for the purpose of the Section.
2. Such an execution petition can be entertained by the executing Court in India being the District Court that will be clothed with the legal fiction as if the said foreign decree was passed by itself and whose aid and assistance are required for executing such a decree.
3. Such a decree can be put up for execution before a District Court in India being the principal Civil Court of original jurisdiction and which will include the local limits of the original civil jurisdiction of a High Court.
4. Once such execution petition is filed before the appropriate District Court the entire machinery of Section 47 for execution of Indian decrees would automatically get attracted.
5. In such execution proceedings, the judgment-debtor of a foreign Court decree will be entitled to satisfy the executing Court in India that the foreign decree cannot be executed against him as it is hit by any of the exceptions specified in Clauses (a) to (f) of Section 13 of the C.P.C.
The first grievance voiced by Mr. P. Chidambaram, learned senior counsel for the appellant, is to the effect that Section 44A itself gets excluded by Section 112(2) of the C.P.C. The said provision reads as under:
“112 (2) Nothing herein contained applies to any matter of criminal or admiralty or vice admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts.”
Now if this provision is read in isolation it may project a situation wherein the entire Code may get excluded for governing any matter of criminal or admiralty or vice admiralty jurisdiction. However, a closer look at the said provision exposes the hollowness of the aforesaid contention. We have to keep in view the fact that the C.P.C. is divided into various parts. Section 112 occurs in Part VII dealing with appeals. Sections 96-99A deal with one sub-topic appeals from original decrees. There is a second sub-topic appeals from appellate decrees. They are dealt with by Sections 101-103. The third sub-topic in the said Part VII deals with appeals from orders. They are dealt with by Sections 104-106. Then falls another sub-topic general provisions relating to appeals. They are dealt with by Sections 107-108 and lastly falls the sub-topic appeals to the Supreme Court. This sub-topic appeals to the Supreme Court is dealt with by Sections 109-112. It is pertinent to note that erstwhile Section 110 dealing with ‘value of subject matter in the Supreme Court appeals’ is deleted. Section 111 dealing with ‘bar of certain appeals’ is also deleted. Section 111A dealing with appeals to ‘Federal Court’ is also deleted and then remains Section 112, Sub-sections (1) and (2) thereof, earlier extracted in the judgment of brother Banerjee, J bears repetition.
“112. Savings – (1) Nothing contained in this Code shall be deemed –
(a) to affect the powers of the Supreme Court under Art. 136 or any other provision of the Constitution, or
(b) to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court. (2) Nothing herein contained applies to any matter of criminal or admiralty or vice admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts.”
Mr. P. Chidambaram, learned senior counsel for the appellant , is prima facie right when he contends that the word “herein” is of wide import and may exclude the gamut of the entire Civil Procedure Code including Section 44-A so far as admiralty or vice-admiralty jurisdiction is concerned. However, it is pertinent to note that while sub-section (1) of Section 112 provides for excluding the entire Code in connection with the topics covered by sub-clauses (a) and (b) of sub-section (1) thereof pertaining to powers of the Supreme Court in appeals. Sub-section (2) of Section 112 conspicuously does not contain the same phraseology i.e. “nothing contained in this Code “ instead it uses the phraseology “nothing herein contained”, meaning thereby, nothing contained in the sub-topic “appeals to the Supreme Court” would apply to admiralty or vice-admiralty jurisdiction amongst others and nothing more. The said provision cannot get telescoped into any other part of the C.P.C. nor can it travel beyond the limited scope and periphery of its operation as indicated in the said provision. It has to be kept in view that Part VII deals with appeals’, which is the genus of all the aforesaid sub-topics in Part VII, that dealt with the species i.e. different types of appeals before different Courts in the hierarchy of civil proceedings. It is in this connection that Section 112(2) has to be read. It must, therefore, be held that what is excluded by Section 112 (2) by the phrase “nothing contained herein” is the sub-topic dealing with “ appeals to the Supreme Court”. It is not made applicable by sub-section (2) of Section 112 to admiralty or vice-admiralty jurisdiction, amongst others. In short, the bar of Section 112(2) operates within and is confined to the question of “appeals to the Supreme Court” neither can it go backward to any other Parts from I-VI nor can it go forward and touch upon any other subsequent provisions found in Parts VIII to XI of the C.P.C. It is to be noted that Section 47 dealing with execution proceedings is found in Part II. It is miles away from Part VII dealing with “appeals” wherein is found Section 112(2). This aspect can be further higlighted from having a look at Section 4 which is a general provision excluding the operation of the entire C.P.C. to special jurisdictions or situations as contemplated by sub-sections (1) and (2) thereof, which read as under:
“4. Savings. – (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of the procedure prescribed, by or under any other law for the time being in force.
(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1) nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.”
We do not find any such general exception or exclusion of the entire body of Code to admiralty jurisdiction. We may also turn to Section 140 which is found in Part XI dealing with “miscellaneous provision.” The said Section 140 also bears repetition. It provides as under:
“140 Assessors in causes of salvage, etc. – (1) In any admiralty or vice admiralty cause of salvage, towage or collision, the Court, whether it be exercising its original or its appellate jurisdiction, may, if it thinks fit, and shall upon request of either party to such cause, summon to its assistance in such manner as it may direct or as may be prescribed, two competent assessors; and such assessors shall attend and assist accordingly.
(2) Every such assessor shall receive such fees for his attendance , to be paid by such of the parties as the Court may direct or as may be prescribed.”
This section clearly indicates that it is not the legislative intent to exclude the applicability of the C.P.C. to admiralty jurisdiction whether original or appellate. Consequently, the first submission of Mr. P. Chidambaram, learned senior counsel for the appellant, has to be rejected.
CONTENTION NO. 2:
7. So far as this contention is concerned, it has to be kept in view that basic conditions of Section 44A have clearly been satisfied by the decree holder, respondent No. 1, who seeks to execute foreign decree of Admiralty Court against respondent No. 2 who has suffered the decree in personam, from the English Admiralty Court. Certified copy of the decree is already filed in the execution proceedings . It is, admittedly, a decree passed by the superior Court of Admiralty in England. That Court is situated in reciprocating territory as United Kingdom has been duly notified by the Central Government as a reciprocating territory. However, Mr. P. Chidambaram, learned senior counsel for the appellant, submitted that even if that is so, on a combined reading of Section 44A and Section 39 sub-sections (1) and (3) of the C.P.C. , it must be held that before such execution proceedings can be entertained by the Andhra Pradesh High Court in exercise of its admiralty jurisdiction as successor to the Chartered High Court of Madras, it must be shown that it was a competent Court which could have entertained such a suit of respondent No. 1 against respondent No. 2 seeking decree in personam, against it. He submitted that neither the foreign decree-holder respondent No. 1 nor foreign judgment-debtor respondent No. 2 are Indian Nationals. None of them has any connection with India as residents or having any immovable property in India and no part of cause of action has also arisen in India in favour of respondent No. 1 against respondent No. 2. That the foreign decree of appellate Court is a personal decree against respondent No. 2 who is alleged to have committed breach of contract in London and hence the Admiralty Court’s jurisdiction was invoked in England because the suit filed by respondent No. 1 against respondent No. 2 was pertaining to the breach of salvage contract regarding respondent No. 2’s ship M. V. Al Tabish which, on the date of the filing of the suit in English Admiralty Court, allegedly belonged to respondent No.2. According to Mr. P. Chidambaram, learned senior counsel for the appellant, as no part of cause of action in this case had arisen in India, and, especially within the local territorial limits of the Andhra Pradesh High Court, even though it may be acting as an Admiralty Court such a suit could not have been filed by respondent No. 1 personally against respondent No. 2 in the Andhra Pradesh High Court. If that is so, the Andhra Pradesh High Court is not competent to execute such a decree even by resorting to the legal fiction created by Section 44A by treating such a foreign decree of English Admiralty Court as if it was a decree passed by the Andhra Pradesh Admiralty Court . In order to buttress this contention Mr. P. Chidambaram, learned senior counsel for the appellant, gave an extreme example. He placed a hypothetical illustration for our consideration. An English national files a suit against another English national for breach of contract regarding purchase of movable or immovable property in England. A competent English Court passes a decree at common law by way of damages for breach of contract by the foreign defendant and in favour of foreign plaintiff. If both the decree holder as well as the judgment debtor happen to take a trip to India as tourists and if the English decree holder tourist finds his English judgment debtor to be possessed of costly wrist watch or other costly movable property in Agra when both of them are on a sight seeing tour of Taj Mahal at Agra can execution of such a foreign decree be enforced in the District Court at Agra ? Mr.P. Chidambaram, learned senior counsel for the appellant, posed this question to himself. He submitted that a superficial reading of Section 44A may entitle such a foreign national English decree holder armed with certified copy of the decree to file execution proceedings for recovering his money claim against the foreign judgment-debtor in the District Court at Agra. He submitted that such execution petition would be travesty of justice and would reflect an absurd situation which cannot be countenanced on a conjoint reading of Section 44A and Sections 38, 39 and 44 of the C.P.C.
8. Such an extreme contention by Mr. P. Chidambram, learned senior counsel for the appellant, does not really call for any serious discussion in the present proceedings as we are not concerned with such a hypothetical situation. But the situation is not so alarming as wrongly assumed, with respect by Mr. P. Chidambaram. When we turn to Section 38, we find that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. This section by itself refers to decrees passed by Indian Courts against defendants who may be within the territorial jurisdiction of the competent Civil Court in the light of the correct place for suing in such Courts as laid down by Sections 15 to 20 of the C.P.C. If the nature of the suit against the defendant falls within any of these provisions then, admittedly, such a decree can be executed by the same Court which passed the decree being a competent Court but it can be sent by that competent Court to any other Court for execution if the defendant has properties within the territorial jurisdiction of any other competent Court in India and that is what Section 39(1) provides. The said section reads as under:
“39. Transfer of decree. – (1) The Court which passed a decree may, on the application of the decree holder, send it for execution to another Court of competent jurisdiction, –
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business,or personally works for gain, within the local limits of the jurisdiction of such other Court, or
(b) If such person has no property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
(c) If the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or
(d) if the Court which passed the decree considers for any other reason, which it shall record in writing that the decree should be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.
(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.”
Sub-section (3) of Section 39 provides that such a transferee Court, admittedly situated in India, shall be deemed to be a Court competent to execute such a transferred decree, if at the time of making the application for transfer of decree, it is shown to have jurisdiction to try the suit in which such decree was passed. It must at once be noted that Section 38 refers to executing Courts in India whch have themselves passed the decrees in suits which were within their jurisdiction and were admittedly, therefore, competent Courts. Such decrees passed by competent Courts in India can also be executed by getting the decree transferred to other competent Courts in India provided the requirements of Section 39(1) read with sub-section(3) are satisfied. Therefore, the transferee Court in India must be a competent Court, which at the time of making an application for transfer of decree by the decree holder, should be shown to have jurisdiction to pass such a decree even originally. It is easy to visualise that, this requirement of a transferee Court in India which gets jurisdiction qua such execution proceedings only on transfer from competent executing Court which has passed the decree in India is conspicuously absent, when we turn to Section 44A. It nowhere lays down that the District Court in which decree of any superior Court of a foreign territory is submitted for execution by a foreign decree holder must be a Court which could have been competent to pass such a decree if in the first instance such a suit was filed by a foreign national against another foreign national in India. The second distinguishing feature is that Section 44A permits the foreign judgment debtor to challenge the foreign decree even before the executing Court being the District Court in India on any of the grounds mentioned in Clauses (a) to (f) of Section 13. A transferee Court under Section 39 which is called upon to execute an Indian decree passed by a competent Indian Court against the judgment debtor cannot permit the judgment debtor to go beyond the decree sought to be executed by such transferee Court. But apart from these two distinguishing features and even proceeding on the lines as suggested by Mr. P. Chidambaram, learned senior counsel for the appellant, that in any case the District Court in India which is called upon to execute a foreign decree by treating it as if it was passed by itself should, in the first instance, be shown to be competent to pass such a decree, the result would be the same on the facts of the present case.
9. It is no doubt true that the foreign decree, which is sought to be executed, is a money decree passed by the English Admiralty Court in favour of respondent No. 1 against respondent No. 2. That decree is in personam for the simple reason, that at the time when the suit was filed in England, the res, namely, M.V. Al Tabish was not within the territorial waters of English Admiralty Court. Therefore, the plaintiff Respondent No. 1 had to sue only respondent No. 2 in personam for recovering damages for breach of salvage contract entered into between them. The said decree has become final between the parties. It is also axiomatic that if the res, namely, the vessel M. V. Al Tabish was available within the territorial waters of English Admiralty Court it would have also become co-defendant along with its owner respondent No. 2 and then the decree would have a decree in rem against the vessel but if respondent No. 2 had submitted to the jurisdiction of English Admiralty Court, the proceeding would have been converted into proceedings in personam and then a decree would have been passed also in personam against Defendant No. 2 along with decree in rem against the vessel. If that had happened there would have been no difficulty of the English decree holder in pursuing the vessel M. V. Al Tabish and to get his decree executed against the vessel wherever it went during the course of its voyage over the high seas and its ultimate anchorage in any port for the discharge or reloading of cargo in the course of maritime business. The contract of salvage of such vessel and any proceedings in connection with the execution of such contract or its breach raising claim for damages would remain in the realm of maritime claim legitimately within the jurisdiction of Admiralty Courts. In the absence of a decree in rem against the vessel whose salvage contract have given rise to the present maritime claim the decree passed by competent Admiralty Court in England though remains a decree in personam could validly be executed by English Admiralty Court itself.
10. Once decree of foreign Superior Court is sought to be executed under Section 44A of the C.P.C. as if it is the decree of the Indian Court executing the same, no further question would survive regarding competence of such executing Court. Still let us consider in the alternative the question of competence of the Andhra Pradesh Admiralty Court for entertaining such a suit is in its inception. Then the question arises whether the Andhra Pradesh High Court which is, admittedly, having admiralty jurisdiction as a successor to the Chartered High Court of Madras could have entertained such a suit in the first instance. We have, therefore, to visualise a situation by way of fishback as if a suit had to be filed in the first instance by respondent No. 1 against respondent No. 2 in the admiralty jurisdiction of the Andhra Pradesh High Court in 1994 instead of in an English Court provided the res i.e. the ship was found at that time in the territorial waters of Andhra Pradesh. Then respondent No. 1 could have filed a suit in personam against defendant No. 2 because, admittedly, it was alleged to have committed breach of salvage contract in connection with the sea going vessel M.V. Al Tabish which is a res and which by chance was found within the territorial waters of the port of Visakhapatnam, in 1994. Such a ‘res would have admittedly remained within the original admiralty jurisdiction of the Andhra Pradesh High Court. Respondent No. 1 thus could have validly filed a suit praying for decree in rem against the vessel M.V. Al Tabish making it as Defendant No. 1 along with its owner defendant No. 2. What the English Court could do in connection with the suit validly filed on 11-10-1994 by respondent No. 1 against respondent No. 2 would have been validly done by the Andhra Pradesh High Court if the vessel, respondent No. 1 and respondent No. 2 were all within the territorial admiralty jurisdiction of the Andhra Pradesh High Court at that time. It is the case of respondent No. 1 decree holder that pending the said proceedings, illegally and by way of a fictitious transaction the said vessel is alleged to have been transferred by respondent No.2 in favour of M. V. Al Quamar and the ship’s name is changed to M.V. Al Quamar from M. V. Al Tabish though in fact it still remains the property of respondent No. 2. That is a question which is still to be considered by the Andhra Pradesh High Court in the execution proceedings and for which we are not called upon at this stage to make any observations. But the fact remains that in such settings of the dispute between the parties such a suit could have been validly filed in the Andhra Pradesh High Courts admiralty jurisdiction if the vessel was in its territorial waters on 11-10-1994. In such a contingency suit could then have been validly filed by plaintiff respondent No. 1 against defendant respondent No. 2 and it could have validly joined the vessel also as defendant No. 2. The Admiralty Court, being the Andhra Pradesh High Court, could have under these circumstances validly entertained the suit and would have been perfectly competent to pass a decree in rem against the ship as well as the decree in personam against its owner defendant No. 2 if it had submitted to its jurisdiction for getting the ship bailed out. Such suit is perfectly maintainable in the Andhra Pradesh High Court in exercise of its admiralty jurisdiction as already decided by a Bench of this Court in the case of M.V. Elizabeth v. Harwan Investment and Trading Pvt. Ltd. , Hanoekar House, Swatonta-peth, Vasco-De-Gama, Goa, (1993) 2 Suppl. SCC 433. That was a case in which the res in question was found within the territorial waters of Visakhapatnam, Port. Neither the plaintiff nor the defendant had any nexus with the terriorial limits of the Andhra Pradesh. The cause of action has also had not arise within Andhra Pradesh still because of the presence of res in territorial waters of the Andhra Pradesh, it was held by this Court that the Andhra Pradesh High Court as Admiralty Court had perfect jurisdiction to arrest the ship being used as Defendant No. 1 before judgment. In the light of the aforesaid settled legal position therefore, it must be held that once the vessel, M.V. Al Tabish came within the territorial waters of the Andhra Pradesh, the Andhra Pradesh High Court, as Admiralty Court, had complete jurisdiction to even initially entertain the suit against not only the ship but against its owner, that is alleged to have committed breach of salvage contract qua that ship. If such a suit was maintainable in the inception before the Andhra Pradesh High Court in its admiralty jurisdiction, then at the executing stage when Section 44A was invoked for executing a similar decree passed by competent superior Court in England in exercise of admiralty jurisdiction, such a decree could validly be executed by invoking the aid of corresponding Admiralty Court being the Andhra Pradesh High Court when the res was already within its jurisdiction. Consequently, even reading Section 39(3) with Section 44A, there is no escape from the conclusion that the time when execution petition was moved before the Andhra Pradesh High Court by even treating it as a transferee Court it can be said to be perfectly competent to entertain such a suit even in its inception against the ship as well as its alleged owner and to resolve the dispute between respondent No. 1 and respondent No. 2. It has to be kept in view that if the ship in question which is arrested at Visakhapatnam had sailed out of the territorial waters of Andhra Pradesh then the Andhra Pradesh High Court would have lost its jurisdiction to entertain such a suit or the execution proceedings for executing the decree of foreign Court. But once it was within its territorial waters the ship could have been validly subjected to such a suit not only against itself but against its owner. Whether the subsequent purchaser is a genuine purchaser of the ship and whether the sale transaction is hit by any other provision of law and whether the ship still remains the property of respondent No. 2 would have been validly examined in such a suit if it was originally filed before the Andhra Pradesh High Court in its admiralty jurisdiction. Under these circumstances, it cannot be said in the background of this fact situation that the Andhra Pradesh High Court, in exercise of its admiralty jurisdiction was not competent to even originally entertian such a suit in which a foreign Court had passed the decree which is sought to be executed before it. Both the English Admiralty Court, which is, admittedly a Court of competent jurisdiction, as well as the Andhra Pradesh High Court being a corresponding Court of competent admiralty jurisdiction, could not only entertain such a suit in the first instance but could equally be competent to execute such a decree of Admiralty Court.
11. The aforesaid analysis of Sections 44A, 38 and 39 in the light of the fact situation which is well established on record furnishes a perfect answer to the imaginary apprehension voiced by Mr. P. Chidam-baram, learned senior counsel for the appellant, and to the alleged absurd situation, which, according to him, may result if such execution petitions are entertained under Section 44A for execution of foreign decrees passed between two absolute foreigners who have neither any immovable property nor place of residence in India. It is easy to visualise that a foreign English tourist who might have suffered a money decree against another foreign tourist in England may not be able to execute his decree in the District Court at Agra in India only because his judgment debtor who is a mere tourist is found to be possessed of some valuable property like jewellery or wrist watch etc., as neither wrist watch nor the jewellery nor even any valuable carpet possessed by a foreign judgment debtor can give jurisdiction to the District Court, Agra to even in the first instance entertain such a suit by a foreign national against another foreign national who has no moorings in India and suit against whom does not fall within the four corners of Sections 15-20 of the C.P.C. subject, of course, to one rider i.e. such foreign national had not submitted to the jurisdiction of the District Court, Agra. If he had, then the District Court, Agra could have entertained such a suit in the first instance. Neither the wrist watch nor any other movable valuable properties of the foreign judgment debtor can be equated with a res covered by a maritime claim which can be validly subjected to adjudication for a decree in rem by a competent Admiralty Court within whose territorial jurisdiction the res is found to be available for being subjected to arrest and detention either pending such Admiralty suit or in execution of the decree passed by a competent Admiralty Court, whether local or foreign, as the case, may be subject to such foreign Court being a Court in reciprocal territory as laid down by Section 44 A of the C.P.C. The District Court, Agra could not have passed a decree in rem against wrist watch or carpet treating it to be a res. Consequently, the apprehension voiced by Mr. P. Chidambaram learned senior counsel for the appellant, about such extraordinary unimaginable or horrendous situation would remain nearly imaginary. It is only in the light of the present facts we hold that that Section 44A was rightly invoked by respondent No. 1 against respondent No. 2 and also against the vessel M.V.Al Tabish, which, according to respondent No. 1, is renamed as M.V. Al Quamar and, which according to him, still belongs to its judgment debtor respondent No. 2. Whether the said contention is right or wrong will have to be examined by the High Court under Order XXI, Rule 58 of the C.P.C., as noted earlier. We say nothing on this factual aspect. All that we hold in the present proceedings is to the effect that the execution petition on demurer was rightly held by the High Court as maintainable before it. The second contention of Mr. P. Chidambaram, learned senior counsel for the appellant, therefore, is also devoid of any merits and stands rejected.
12. The appeals, therefore, fail subject to the liberty already given in the judgment of brother Banerjee, J. to the appellant to take away the ship subject to furnishing of suitable bank guarantee of a nationalised bank as indicated therein.
13. Banerjee, J—Leave granted in both the SLPs.
14. By consent of learned Senior Advocates, of the parties, the appeals were heard finally and are being disposed of by this common judgment.
15. Assumption of Admiralty jurisdiction by Andhra Pradesh High Court and passing of an order of arrest in execution of a judgment and decree of the High Court of Justice Queen’ Bench Division, Admiralty Court in London in case No. 1994 Folio No. 1693 dated 9-11-1988, is the key issue for discussion in these appeals by the grant of special leave.
16. Advantage to a brief reference to the factual aspect of the matter at this juncture it appears that an Execution Petition was filed before the learned single Judge of the Andhra Pradesh High Court in terms of Section 15 of the Admiralty Courts Act and Section 44A read with Order XXI Rule 10 of the Code of Civil Procedure for executing the decree issued by the High Court of Justice Queen’s Bench Division Admiralty Court in an action by the first respondent against the second respondent herein claiming damages for repudiation of an L.O.F. salvage contract. Needless to record that the second respondent was said to be the owner of the vessel. M. V. AL QUAMAR ex AL TABITH.
17. The factual score depicts that pending the Execution Petition, the decree holder prayed for an Interlocutory Order to issue a warrant of arrest against the vessel together with Hull, tackle Engines ; Machinery equipments stores etc. The learned single Judge of the Andhra Pradesh High Court on 15th Sept. 1999 granted an interim order as prayed for on a prima face view of the matter that the Execution Petition can be filed in the High Court which is otherwise having original admiralty jurisdiction. The records depict that the appellant herein filed a petition to vacate the interim order principally on the ground that the ownership of the ship having been transferred bona fide and for valuable consideration to Quamar Shipping Ltd., the ship as attached in terms of the order of 15th Sept. 1999 cannot possibly be kept under attachment in execution of the decree against the original owner being the respondent No. 2 herein. The appellant contended that in any event, the latter being, not a party to the judgment, question of execution on the basis thereof would otherwise be a total miscarriage of justice.
18. Incidently, the learned single Judge in his judgment has been pleased to record that the matter in issue involves eminently an arguable case as regards the maintainability of the Execution Petition and the proper course should therefore, be, as the learned Judge pointed out to hear the Execution Petition itself at a date early and to continue interim order during the interregnum.
19. The records depict that the appellant herein subsequent to the order as above moved the Appellate Forum and the Appellate Court while dismissing the appeal observed as below:-
“In our view, the opinion expressed by the learned single Judge that the execution petitioner (first respondent herein) has an arguable case as regards the maintainability of the E.P. and that the contentious issues ought to be dealt with more appropriately at the hearing of the E.P. instead of entering into a discussion at the interlocutory stage, cannot be faulted. The E.P. itself has been posted for hearing and the hearing would have been concluded by now, but for this intervening appeal. Equally, the other reason given by the learned Judge that vacation of the interim order would have the potential effect of making the execution petition infructuous and, therefore, the interim order ought not be vacated before the disposal of the E.P. also appeals to us. Considerations of prima facie case and balance of convenience were rightly taken into account by the learned single Judge. We see no valid ground to suspend the interim order.
The contention of the learned Counsel for the appellant that continuance of interim order should be made conditional upon furnishing of security or at least insisting on an undertaking to indemnify the loss, does not merit acceptance. Incidentally, it may be mentioned that the counsel for the appellant did not express any doubts about the solvency and financial capacity of the first respondent-company.
However, the grievance of the appellant that on account of the interim order, the appellant is incurring substantial expenditure day to day, has to be suitably redressed. To this limited extent, we are inclined to safeguard the interest of the appellant by directing the first respondent to furnish an undertaking to the satisfaction of the Registrar (Judicial) of this Court to pay a maximum amount of ` 600 U.S. Dollars per day from 19-11-1999 (date of hearing this appeal) onwards till the date of disposal of E.P. and also to pay crew’s wages subject to the proof of actual expenditure being furnished by the appellant to the first respondent in respect of all the items.
The O.S.A. is dismissed subject to the above direction. No costs.
We consider it fit to be heard by Division Bench.”
20. In terms of the order as above, the Execution Petition itself was placed before the Bench of the learned Chief Justice wherein upon recording concurrence as regards the maintainability of the petition it was observed that the execution petition be heard on merits and hence the Special Leave Petition before this Court under Article 136 of the Constitution being SLP (c) No. 4410 of 2000. Incidentally, be it noted that there is in the record of this Court another SLP being SLP (c) No. 18616 of 1999 against the judgment of the Division Bench of the High Court as passed earlier and as noticed above, but since both the matters pertains to self same subject matter, this Bench deemed it fit to hear both the appeals together and deal with the same in one judgment.
21. Before adverting to the most illuminating and lucid submissions of the learned Senior Advocates Shri P. Chidambaram, for the appellant and Shri Ashok H. Desai, for the respondent No. 1, a brief backdrop of the admiralty jurisdiction of the country may be a useful introduction:The three erstwhile Presidency High Courts (in common and popular parlance Chartered High Courts) namely, Calcutta, Bombay and Madras were having the Letters Patent for the conferment of the ordinary original civil jurisdiction and by reason of the provisions contained therein read with the Admiralty Court Act, 1861 and subsequent enactment of Colonial Courts of Admiralty Act, 1890 and Colonial Courts of Admiralty (India) Act, 1891, the admiralty jurisdiction of the three High Courts noticed above can be fairly traced. This special admiralty jurisdiction was saved by the Government of India Act, 1915 as also that of 1935 and subsequently protected in terms of Article 225 of the Constitution.
22. By and under the provisions of Colonial Courts of Admiralty Act, 1890, the High Courts of these three Presidency towns were conferred with the same jurisdiction as was vested in the High Court of England and the High Courts were declared to be otherwise competent to regulate their procedure and practice as would be deemed necessary corresponding to the Indian perspective in exercise of the admiralty jurisdiction by way of rules framed in that regard. There is no manner of doubt that there existed or is existing any fetter in regard to the exercise of admiralty jurisdiction insofar as the three High Courts at Calcutta, Bombay and Madras are concerned.
23. The other introductory aspect pertains to the conferment of admiralty jurisdiction on to the Andhra Pradesh High Court. In terms of provisions of Andhra State Act of 1953 (Act 30 of 1953) certain territories from erstwhile State of Madras were included in the State of Andhra Pradesh and the Court at Andhra Pradesh was re-designated as the High Court of Andhra Pradesh when the State was so named under the States Reorganisation Act, 1956. The Andhra Pradesh High Court ‘being the successor’ of the High Court of Madras (presently Tamilnadu) has thus the similar jurisdiction as was so vested in the Madras High Court prior to the transfer. Needless to say that since Visakhapatnam is also included in the State of Andhra Pradesh, the port of Visakhapatnam falls within the admiralty jurisdiction of the High Court of Andhra Pradesh. It is in this context observations of this Court in M. V. Elisabeth v. Harwan Investment and Trading Pvt. Ltd., Goa, AIR 1993 SC 1014 , seem to be of some assistance. This Court in paragraph 26 of the report observed:
“Asssuming that the admiralty powers of the High Courts in India are limited to what had been derived from the Colonial Courts of Admiralty Act, 1890, that Act, having equated certain Indian High Courts to the High Court of England in regard to admiralty jurisdiction, must be considered to have conferred on the former all such powers which the latter enjoyed in 1890 and thereafter during the period preceding the Indian Independence Act, 1947. What the Act of 1890 did was, as stated earlier, not to incorporate any English statute into Indian law, but to equate the admiralty jurisdiction of the Indian High Courts over places, persons, matters and things to that of the English High Court. As the admiralty jurisdiction of the English High Courts expanded with the progress of legislation, and with the repeal of the earlier statutes, including in substance the Admiralty Court Acts of 1840 and 1861, it would have been reasonable and rational to attribute to the Indian High Courts corresponding growth and expansion of admiralty jurisdiction during the pre-independence era. But a restrictive view was taken on the question in the decision of the High Courts cited above.”
24. There is thus no scope to conclude that the admiralty jurisdiction of the Andhra Pradesh High Court stands ‘frozen’ or ‘atrophied’ in any way whatsoever.
25. The discussion above pertaining to the admiralty jurisdiction of the Andhra Pradesh High Court in our view is rather pertinent more so by reason of the submissions that the matter in issue pertains to maritime claim. English legislations after the Admiralty Courts Act, 1890 are galore in the matter of widening the scope and ambit of the jurisdiction of the Admiralty Courts. We however need not go into that aspect of the matter any further, suffice however, to record our concurrence that jurisdiction of the Indian Courts also has not been ‘atrophied’ in any way whatsoever. [Vide MV Elisabeth (supra)].
26. The cardinal issue pertains to the invocation of Section 44-A of the Code in the matter under consideration, for enforcement of a foreign judgment in the Andhra Pradesh High Court stands contradicted by Mr. Chidambaram on two specific counts. The same being on the first count; the Civil Procedure Code cannot possibly be made applicable to any matter of criminal or admiralty or vice admiralty jurisdiction. The basis of the submission however, was laid on Section 112 of the Code. The ouster provision (Section 112) may thus be noted herein- below for its true scope and purport:
“112. (1) Nothing contained in this Code shall be deemed- (a) to affect the powers of the Supreme Court under Article 136 or any other provision of the Constitution, or
(b) to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.
(2) Nothing therein contained applies in any matter of criminal or admiralty or vice-admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts.”
27. Incidentally, Section 112(1)(a) and (b) stand substituted by the Adaptation of laws Order, 1950 and as a matter of fact, the state of affairs prevailing in the pre-Independence period has been set right by the legislation of 1950 (Adaptation of laws Order). A look at the provisions of two Paralled Codes of Civil Procedure, 1882 and 1908 together with the moderation after Independence will obviously clarify the situation. The Parallel Codes and the present Section 112 thus runs:
|Code of 1882||Code of 1908||Present Section 112|
|616. Nothing herein contained shall be understood-||112. (1) Nothing contained in this code shall be deemed-||112. (1) Nothing contained in this Code shall be deemed-|
|(a) to bar the full and unqualified exercise of Her Majesty ‘s pleasure in receiving or rejecting appeals to Her Majesty in Council, or Otherwise howsoever, or||(a) to bar the full and unqualified exercise of His Majesty ‘s pleasure in receiving or rejecting appeals to His Majesty in Council, or Otherwise howsoever, or||(a) to affect the powers of the Supreme Court under article 136 or any other provision of the Constitution, or|
|(b) to interfere with any rules made by the Judicial Committee of the Privy Council, and for the time being in force, for the presentation of appeals to Her Majesty in Council or their conduct before the said Judicial Committee.||(b) to interfere with any rules made by the Judicial Committee of the Privy Council, and for the time being in force, for the presentation of appeals to His Majesty in Council or their conduct before the said Judicial Committee.||(b) to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.|
|[AND] nothing in this Chapter applies to any matter of criminal or admiralty or vice admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts||(2) Nothing herein contained applies to any matter of criminal or admiralty or vice admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts.||(2) Nothing herein contained applies to any matter of criminal or admiralty or vice admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts.|
28. This comparative analysis of the provisions of the Code as amended from time to time unmistakably goes to show that as regards Section 112(a) and (b) in the post-Independence period, the powers of this Court under Article 136 stand substituted in place and stead of His Majesty in Council and the Judicial Committee of the Privy Council. The Adaptation of laws Order however, did not in fact, add to or alter sub-section (2) of Section 112 which also finds place in Section 616 of the 1882 Code in identical language. The non-exclusion of sub-section (2) howsoever surprising it may be in independent India, but the fact remains that the 1950 legislation has chosen not to omit it from the Statute Book and as such a meaning shall have to be attributed thereto. It is significant to note that sub-section (2) of Section 112 even after the Adaptation of laws Order, 1950 speaks of decrees of Prize Courts. In Halsbury’s laws of England (4th Edn., Vol. I), paragraph 309, the following has been stated to be the jurisdiction of the Prize Courts:
309. Assignment to Admiralty Court.- The whole jurisdiction of the High Court belongs to all the divisions alike, and all the Judges of that Court have equal power, authority and jurisdiction. However, every action to enforce a claim for damage, loss of life or personal injury arising out of a collision between ships or the carrying out or omission to carry out a manoeuvre by one or more of two or more ships or non-compliance with the collision regulations is assigned to the Queen’s Bench Division and taken by the Admiralty Court. The same applies to every limitation action, and generally to causes and matters involving the exercise of the High Court’s admiralty jurisdiction, or its jurisdiction as a Prize Court.
29. The word ‘Prize’ has also been dealt with in Halsbury’s laws of England (4th Edn., Vol. I) in paragraph 352 which reads as below:
352. Prize.- The High Court is a prize court within the meaning of the Naval Prize Acts 1864 to 1916, as amended by any subsequent enactment, and has all such jurisdiction on the high seas and throughout Her Majesty’s dominions and in every place where Her Majesty has jurisdiction as, under any Act relating to naval prize or otherwise, the High Court of Admiralty possessed when acting as a prize court. The Admiralty Court takes causes and matters involving the exercise of the High Court’s jurisdiction as a Prize Court.
30. The issue arises as to whether we have after independence, available in this country, the decrees of the Prize Courts or there is even any existence thereof. Admiralty jurisdiction of the Courts as noticed hereinbefore has been by reason of the Letters Patent and certain other legislations saved by the provisions of the Constitution. Apart therefrom, question of ascribing any independent Admiralty Court as Prize Court in the country presently, would not arise:Be that as it may, we do not wish to express any definite opinion in regard thereto by reason of the fact that the same is not called for in the contextual facts of the matter under consideration, suffice it to note that a doubt persists as to the applicability to sub-section (2) of Section 112. In any event, if the intent of the legislation was to do away with the applicability of provisions of the CP Code, in terms of Section 112(2) of the Code then and in that event, question of continuance of Section 140 of the Code would not have arisen. Incidentally, Section 140(1) and (2) is a repetition of Section 645(a) of the 1882 Code. For convenience sake, two Parallel Codes of 1882 and 1908 and the present Section 140 which is in identical language as that of the 1908 Code, is set out out herein- below:
|Code of 1882||Code of 1908/Code of 1976|
|645-A In any Admiralty or vice-Admiralty cause of salvage, towage or collision, the court, whether it be exercising its original or its appellate jurisdiction , may, if it thinks fit, and upon request or either party to such cause shall, Summon to its assistance, in such manner as the Court may [by rule, from time to time,] direct, two competent assessors; and such assessors shall attend and assist accordingly.||140(1). In any Admiralty or vice-Admiralty cause of salvage, towage or collision, the court, whether it be exercising its original or its appellate jurisdiction , may, if it thinks fit, and shall upon request of either party to such cause, Summon to its assistance, in such manner as it may direct or as may be prescribed, two competent assessors; and such assessors shall attend and assist accordingly.|
|Every such assessors shall receive such fees for his attendance as [the Court by rule prescribes. Such fees] shall be paid by such of the parties as the Court [in each case] may direct.||(2) Every such assessors shall receive such fees for his attendance, to be paid by such of the parties as the Court may direct or as may be prescribed.|
It is in th is context a rather old decision of the Bombay High Court seem to be apposite. The learned single Judge of the High Court in the case of The Bombay and Persia Steam Navigation Company Ltd. v. Shepherd and Haji Ismail Hossein, (1888) ILR 12 Bom 237 was pleased to state as below:
“The rules regulating admiralty practice provide that a suit shall be commenced by a plaint according to the provisions of the Code of Civil Procedure. They were framed when the Code of 1859 was in force, and when the power of the Court to regulate its procedure was more extended than it is at present. The rules subsequent to the one abovereferred to, provide for the taking out of a warrant of arrest when the suit is in rem, and make no special provision when the suit is in personam; but Rule 54 directs that proceedings not provided for by the rules shall be regulated by the rules and practice of the High Court in suits brought in it in the exercise of its ordinary original civil jurisdiction. Though these rules do not apparently contemplate a suit in rem and in personam being combined, they do not expressly or by necessary implication forbid it. The Code of Civil Procedure of 1882 applies to proceedings on the Admiralty side of the High Court; Section 645-A shows that this is so.”
31. Needless to record here that in accordance with the salutary principle of interpretation and one of the golden canon of statutory interpretation being that the latter provision shall prevail over the earlier and in the event, the Adaptation of laws Order deemed it expedient to exclude applicability of the Civil Procedure Code in terms of Section 112(2) as is being contended by Mr. Chidambaram, question of incorporating Section 140 or continuing therewith and in any event in the 1976 Code would not have arisen. The learned single Judge in our view has rightly decided the applicability of the Code of Civil Procedure even in Admiralty jurisdiction. Reliance was placed in support of the exlusion of the Code pertaining to admiralty jurisdiction in the decision of the Calcutta High Court in the case of State of Ukraine v. Elitarious:Ltd. (1999 (1) Cal LJ 141) (wherein I was a party). A mere perusal of the judgment of the High Court, however, negates the contention in support of the appellant. As a matter of fact, Mr. Ashok H. Desai, appearing for the respondents relies on the judgment as a judgment in subsilencio and we feel it rightly so, since the judgment dealt with the various provisions of C.P. Code vis-a-vis, the Admiralty actions and the ratio decidendi of the decision being admiralty jurisdiction is not an ordinary original civil jurisdiction and thus not a suit within the meaning of Section 86 of the Code. In paragraph 37 of the decision in State of Ukraine v. Elitarious Ltd. (supra), the High Court upon reference to the Jolly Varghese case (Jolly George Varghese v. The Bank of Cochin, AIR 1980 SC 470) observed as below:
“37. In this connection reference may be made to decision of the Supreme Court in Jolly George Varghese v. The Bank of Cochin, reported in AIR 1980 SC 470. While considering Article 11 of the International Covenant on Civil and Political right to which India is a signatory, the Apex Court in paragraph 6 of the Judgment inter alia made the following observations:-
“…………..India is now a signatory to this covenant and Article 51(c) of the Constitution obligates the State to “foster respect for International law and treaty obligations in the dealings of organised peoples with one another”. Even so until the Municipal law is changed to accommodate the covenant what binds the Court is the former, not the latter. A. H. Robertson in “Human Rights – in National and International law” rightly points out that International Conventional law must go through the process of transformation into the Municipal law before the international treaty can become an internal law………….”
In view of the aforesaid decision of the Supreme Court, in our opinion, even if a suit appears from the statement in the plaint to be barred by any International law the plaint cannot be rejected unless such International law has gone through “the process of transformation into Municipal law”. Thus, we conclude that in order to bring a case within the mischief of Order 7, Rule 11(d) of the Code of Civil Procedure, the suit must appear from the statement made in the plaint to be barred by any State-made law including any Ordinance, Order, Bye-law, Rule, Regulation, Notification, Custom or Usages having in the territory of India the force of law. As the word has not been defined in the Code of Civil Procedure, in arriving at the aforesaid conclusion, we have thought it profitable to take aid of Article 13(3)(a) of the Constitution of India. Thus, we find no force in the second contention of Mr. Mukherji.”
32. On the wake of the aforesaid, we are unable to record our concurrence pertaining to the exclusion of the Code in Admiralty jurisdiction. Significantly, the Admiralty Rules of the High Court at Madras, which stand adopted by the Andhra Pradesh High Court in no uncertain terms also negate the submission in support of the appeal. The relevant Admiralty Rules are however set out herein below:
2. A suit shall be instituted by a plaint drawn up, subscribed and verified according to the provisions of the Code save that if the suit is in rem, the defendants, may subject to such variation as the circumstances may require, be described as “the owners and parties interested in” the vessel or other property proceeded against instead of by name.
29. An attorney instituting a suit against any property in respect of which a Caveat has been entered in the register of Admiralty suits shall forthwith serve a copy of the plaint upon the party on whose behalf the Caveat has been entered or upon his attorney.
32. If when the suit comes before the Court it is satisfied that the claim is well founded, it may pronounce for the amount which appears to be due and may enforce the payment thereof by order and attachment against the party on whose behalf the Caveat has been entered and by the arrest of the property if it then be or thereafter come within the jurisdiction of the Court.
34. Every sale under decree of the court, shall, unless the Judge shall otherwise order, be made by the Sheriff in like manner as a sale of movable property in execution of a decree in an ordinary civil suit.
50. Where no other provision is made by these rules, proceedings in suits brought in the Court in the exercise of its Admiralty Jurisdiction shall be regulated by the Rules and Practice of the Court in suits brought in it in the exercise of its Ordinary Original Civil Jurisdiction.
These rules having co-relation with the ordinary civil jurisdiction thus cannot but be said to be subscribing to a view contra to that canvassed before us by the appellant.
33. In any event Section 112 is in Part VII of the Code dealing with the provisions pertaining to appeals:whereas Sections 96-108 in Part VII of the Code deal with appeals from original decrees, Sections 109-112 deal with appeals to the Supreme Court. The specific words used in sub-section (2) of Section 112 to wit:
“Nothing herein contained” (emphasis supplied) cannot possibly negate the Code in its entirety. The word ‘herein’ as emphasised above has a specific connotation and will have to be given a definite meaning which goes along with the entire legislation. In the event the legislature intended a complete ban, then and in that event the words used in sub-section (1) in the normal course of events would have been used since sub-section (1) used the expression ‘nothing contained in this Code’ – Sub-section (1) pertains to the powers of the Supreme Court and the legislature is specific enough to record the same. In the event of there being similar intent, legislature would have used the similar language and not “herein” as noticed above. The word ‘herein’ thus cannot possibly be meant to include the entirety of the Code but to the group of provisions in which it appear. Section 112 thus evidently have two different areas of operation whereas sub-section (1) is wider in its amplitude, sub-section (2) is limited in scope and restrictive in its applicability. This is more so by reason of the discussion hereinbefore in this judgment pertaining to Section 140 of the Code and the insertion thereof in the Code is clear and unambiguous to the effect that Section 112(2) does not render the Code completely inapplicable to admiralty cases. The Bombay High Court in (supra) has thus came to the conclusion that the Code of Civil Procedure of 1882 applies to proceedings on the admiralty side of the High Court and Section 645-A (presently Section 140) shows the same. We record our concurrence with the observation of the Bombay High Court in (supra) and approve the same in that regard. A recent decision of this Court in the case of Videsh Sanchar Nigam Limited (Videsh Sanchar Nigam Ltd. v. M. P. Kapitan Kud, (1996) 7 SCC 127, also lends concurrence to the applicability of the Code of Civil Procedure in admiralty action as well since Section 140 has been taken recourse to in the matter of appointment of assessors to give their estimate of the anchoring position and the probable involvement of the first respondent (in the case under reference) in breakage of the cable. The applicability of the Code in the admiralty action, as a matter of fact, was not doubted, on the contrary Section 140 was taken recourse to for the purposes of assessment of the situation.
34. Needless to record that exclusion of jurisdiction cannot be inferred readily unless of course there are cogent materials in regard thereto. In the matters under consideration the submissions of Mr. Chidambaram, however, completely overlooks the provisions as contained in Section 4 of the Code. We need not dilate on this issue suffice it to record that Section 4 being a general provision which excludes the operation of the CP Code in specific instances as mentioned therein and since exclusion of admiralty jurisdiction is not specifically mentioned, we are unable to sustain the submissions of Mr. Chidambaram, in any event, since there is no such general exclusion.
35. In that view of the matter, question of having any concurrence with the submissions of Mr. Chidambaram as regards the bar of applicability of the Code of Civil Procedure in Admiralty action does not and cannot arise, though I must frankly confess that the submissions of Mr. Chidambaram at the first blush was very attractive but a closer scrutiny of the provisions as noticed above, with respect, rendered the same totally insignificant.
36. Adverting now to the second count of submissions of Mr. Chidambaram to the effect that the judgment of the English Court cannot but be termed to be the judgment in personam and the Execution Petition for the arrest of the vessel and subsequent order thereon thus is not maintainable:Mr. Chidambaram found fault with the Bench decision of the High Court affirming the maintainability of the Execution Petition since arrest of a ship according to his contentions, operates in rem and not in personam and it is on this score, strong reliance was placed on the decision of the Court of Appeal in the case of The City of Mecca, (1881) 6 PD 106. Jessel M. R. in the decision under reference stated as below:
There is no suggestion from beginning to end that the ship is liable; there is no declaration that the ship is liable, and it does not appear on the proceedings that the ship was even within the jurisdiction at the time the action was commenced against the owners. An action for enforcing a maritime lien may no doubt be commenced without an actual arrest of the ship, but there is no suggestion that they intended anything of the kind, and, in fact, the law does not allow it. An action against a ship, as it is called, is not allowed by the law of Portugal. You may in England and in most countries proceed against the ship. The writ may be issued against the owner of such a ship, and the owner may never appear, and you get your judgment against the ship without a single person being named from beginning to end. That is an action in rem, and it is perfectly well understood that the judgment is against the ship. In the present case the judgment does not affect the ship at all, unless the ship should afterwards come within the jurisdiction of the Portuguese Court, and then it can be made a proceeding by which you can afterwards arrest the ship and get it condemned. Therefore it seems to me to be plain that this is a personal action as distinguished from an action in rem, and it is nothing more or less; and any attempt to make it out something else (because the law of Portugal does not allow actions in rem) is really to change the real nature of the action to meet the exigencies of those who want to make the judgment of the Court of Portugal go further than it really does.”
37. In the similar vein, Lush, J. in The City of Mecca, (supra), also observed:
“Now upon the face of this judgment, there is not a word about a claim against the ship from beginning to end. It is well known that the owner of a vessel that has suffered by collision with another has two remedies. He may bring an action against the Captain or owner of the other vessel and recover damages, or he may sue in the Court of Admiralty and make the ship pay. It has been stated before us that the Court of Admiralty has been abolished in Portugal and the jurisdiction is transferred to a Court of Commerce, and that there is no power now in that country to institute what are called actions in rem. That is what I collect from these proceedings. Whether there is or is not, seems to me immaterial. There certainly is a proceeding by which a vessel can be laid under embargo, that is arrested, if an action is brought against the Captain, in order to secure payment, by lien perhaps, of ultimate damages; but whether that can be carried out to proceedings in rem I do not know, nor does it strike me to be material. But what is material in considering an action of the nature claiming damages alone is that there is nothing about the ship from the beginning to the end, as I have said.
I do not see how it was possible for them to carry and execute a maritime lien when they had not possession of the thing. The vessel was out of their jurisdiction, it was an English vessel, and it naturally left the Portuguese coast; and under the decree of that Court, if a purchaser had to prove his title he could not quote a single word of this judgment or any judgment at all that would justify a sale of that ship. It is a judgment purporting to be a judgment against the persons of the Captain and owners, and if they ever find them within their jurisdiction they may execute according to the process they have at their command the judgment against them individually. But as to any judgment against the ship, I doubt if the ship were found there now that they could seize it. But even if they found the ship there, and they could without further process seize the ship and sell it in satisfaction, that would not make this a judgment in rem which any Court in this country could be called on to execute.”
38. The decision in The City of Mecca (supra) was, lately followed in the ‘Alletta’ (1974) 1 Lloyd’s law Rep 40 and ‘Sylt’ (1991) 1 Llyod’s law Rep 240. The decision of the Queen’s Bench Division (Admiralty Court) in the ‘Despina G. K.’, (1983) 1 All ER 1, has also been very strongly relied in support of the contention that Admiralty jurisdiction is available by a proceeding in rem and not in personam.
39. Mr. Chidambaram, has also placed strong reliance on the Brussels Convention, being the international convention relating to the arrest of seagoing ships of 1952:while it is true that India has not adapted the same, but its relevance however cannot be doubted in any way in the perspective of maritime lien. On this score, however we can usefully note the observations of this Court in MV Elisabeth, (supra), which reads as below:
“Indian legislation has not, however, progressed, notwithstanding the Brussels Protocol of 1968 adopting the Visby Rules or the United Nations Convention on the Carriage of Goods by Sea, 1978 adopting the Hamburg Rules. The Hamburg Rules prescribe the minimum liabilities of the carrier far more justly and equitably than the Hague Rules so as to correct the tilt in the latter in favour of the carriers. The Hamburg Rules are acclaimed to be a great improvement on the Hague Rules and far more beneficial from the point of view of the cargo owners. India has also not adopted the International Convention relating to the Arrest of Sea-going Ships, Brussels, 1952. Nor has India adopted the Brussels Conventions of 1952 on civil and penal jurisdiction in matters of collision; nor the Brussels Conventions of 1926 and 1967 relating to maritime liens and mortgages. India seems to be lagging behind many other countries in ratifying and adopting the beneficial provisions of various conventions intended to facilitate international trade. Although these conventions have not been adopted by legislation, the principles incorported in the conventions are themselves derived from the common law of nations as embodying the felt necessities of international trade and are as such part of the common law of India and applicable for the enforcement of maritime claims against foreign ships.”
40. Mr. Chidambaram in continuation of his submissions rather emphatically contended that the High Court has significantly overlooked the fact that it is only when a decree in rem is passed that a vessel may be arrested for obtaining satisfaction of the claim or the execution of a decree in rem especially in a maritime action having maritime lien. Mr. Chidambaram contended that in the event however, the proceedings are in personam as in the present case then and in that event, exercise of such a power by a foreign litigant would not arise. The appellant contended that the decree-holder has to proceed only against the judgment-debtor and not against the vessel and it is on this count a strong criticism has been levelled against the judgment of the High Court to the effect that there has been a total confusion as regards exercise of admiralty power in execution of a judgment in rem and judgment in personam. Admittedly the decree of the English Court is in personam, and against respondent No. 2 and not the appellant-petitioner herein. It is on this score further reliance was placed on the decision of this Court in the case World Tanker Carrier Corporation v. SNP Shipping Services Pvt. Ltd., (1998) 5 SCC 310, wherein this Court had the following to observe:
“20. Under principles of Private International law, a Court cannot entertain an action against a foreigner resident outside the country or a foreigner not carrying on business within the country, unless he submits to the jurisdiction of the Court here. This principle applies to actions in personam.”
41. Mr. Chidambaram very strongly commented against the judgment of the High Court for lack of appreciation so far as the English decree is concerned and contended that the entire claim was in regard to the damages on the ground of a breach of contract in the matter of performance of salvage operations, which in fact was never performed and as such question of any maritime claim acquired therefrom would not arise. It is on this score that the learned Chief Justice speaking for the Bench of the Andhra Pradesh High Court in the judgment impugned has the following to state:-
“In India there is not much distinction in civil law system between maritime law and other branches of law. The Courts administer them alike. A perspective of the law further emerges from the reading of the said judgment that where the statutes are silent the remedy has to be sought by reference to the basic principle. It is the duty of the Court to devise procedural rules by analogy and expedience. It was observed “the action in rem as seen above were resorted by the Court as a device to overcome the difficulty of personal service on the defendant by compelling him to enter appearance and accept service of summons and for furnishing security for the release of the res or any action proceeded against the res itself by entering a decree and executing the same by sale of the res. This practical procedural device developed by the Courts with a view to render justice in accordance with the substantive law not only in the cases of collision and salvage but also in case of other maritime liens and claims arising by reason of breach of contract for hire of vessel etc. etc.”
By reading of the judgment reported in AIR 1993 SC 1014 , we are of the considered view that the vessel is a juridical person; a maritime claim can be enforced against the vessel; there is no substantive distinction between the Admiralty Court’s jurisdiction and the jurisdiction under the common law for execution of a decree of a foreign origin in view of the provisions of Section 44-A of the Code. Apart from this, the High Court has jurisdiction being a repository of the power to reach its arm to do justice. By reading of the judgment we are unable to agree with the contention of the learned Counsel for the respondent that the Supreme Court has laid down any law that a ship can be arrested only for securing a maritime claim and not in execution of satisfaction of a judgment especially in view of the statutory provisions of Section 44-A of the Code.
42. Mr. Ashok H. Desai for the respondent No. 1 and being the decree-holder, however, in no uncertain terms contended that as a matter of fact it is of no significance at all if the judgment be termed to be the judgment in rem or judgment in personam especially in the facts of the matter under consideration having due regard to the domestic law and in particular Section 44-A of the Code of Civil Procedure. Before however, dealing with the same, a passage from Encyclopedia Britannica (Transportation law) may be of some significance. Learned authors thereof while referring the components of maritime law had the following to state pertaining the maritime liens; a word of caution at this juncture ought to be introduced of the confusion in populas between a maritime claim and maritime lien whereas claim cannot but be termed to be a genus-lien is a particular species arising out of the genus and the two terms namely, claim and lien cannot be identified with each other so as to accord same meaning. Let us, however, address ourselves on maritime lien as is available in the encyclopedia and the same reads as below:
“Maritime liens:although admiralty actions are frequently brought in personam, against individual or corporate defendants only, the most distinctive feature of admiralty practice is the proceeding in rem, against maritime property, that is, a vessel, a cargo, or “freight”, which in shipping means the compensation to which a carrier is entitled for the carriage of cargo.
Under American maritime law, the ship is personified to the extent that it may sometimes be held responsible under no liability. The classic example of personification is the “compulsory pilotage” case. Some State statute impose a penalty on a ship owner whose vessel fails to take a pilot when entering or leaving the waters of the State. Since the pilotage is thus compulsory, the pilot’s negligence is not imputed to the ship owner. Nevertheless, the vessel itself is charged with the pilot’s fault and is immediately impressed with an inchoate maritime lien that is enforcible in Court.
Maritime liens can arise not only when the personified ship is charged with a maritime tort, such as a negligent collision or personal injury, but also for salvage services, for general average contributions, and for breach of certain maritime contracts.”
43. Be it noted that there are two attributes to maritime lien:(a) a right to a part of the property in the res; and (b) a privileged claim upon a ship, aircraft or other maritime property in respect of services rendered to, or injury caused by that property. Maritime lien thus attaches to the property in the event the cause of action arises and remains attached. It is, however, inchoate and very little positive in value unless it is enforced by an action. It is a right which springs from general maritime law and is based on the concept as if the ship itself caused the harm, loss or damage to others or to their property and this must itself make good that loss. (See in this context ‘Maritime law’ Christopher Hill, 2nd Edn.).
44. As regards the concept of proceeding in rem and proceeding in personam, it should be understood as actions being related to the same subject matter and are alternative methods pertaining the same claim and can stand side by side.
45. In this context, reference may also be made to the observations of this Court in M. V. Elizabeth’s case, (supra), as stated below:-
“48. Merchant ships of different nationalities travel from port to port carrying goods or passengers. They incur liabilities in the course of their voyage and they subject themselves to the jurisdiction of foreign States when they enter the waters of those States. They are liable to be arrested for the enforcement of maritime claims, or seized in execution or satisfaction of judgments in legal actions arising out of collisions, salvage, loss of life or personal injury, loss of or damage to goods and the like. They are liable to be detained or confiscated by the authorities of foreign States for violating their customs, regulations, safety measures, rules of the road, health regulations, and for other causes. The coastal State may exercise its criminal jurisdiction on board the vessel for the purpose of arrest or investigation in connection with certain serious crimes. In the course of an international voyage, a vessel thus subjects itself to the public and private laws of various countries. A ship travelling from port to port stays very briefly in any one port. A plaintiff seeking to enforce his maritime claim against a foreign ship has no effective remedy once it has sailed away and if the foreign owner has neither property nor residence within jurisdiction. The plaintiff may therefore detain the ship by obtaining an order of attachment whenever it is feared that the ship is likely to slip out of jurisdiction, thus leaving the plaintiff without any security.
49. A ship may be arrested (i) to acquire jurisdiction; or (ii) to obtain security for satisfaction of the claim when decreed; or (iii) in execution of a decree. In the first two cases, the Court has the discretion to insist upon security being furnished by the plaintiff to compensate the defendant in the event of it being found that the arrest was wrongful and was sought and obtained maliciously or in bad faith. The claimant is liable in damages for wrongful arrest. This practice of insisting upon security being furnished by the party seeking arrest of the ship is followed in the United States, Japan and other countries. The reason for the rule is that a wrongful arrest can cause irreparable loss and damages to the shipowner, and he should in that event be compensated by the arresting party. (See Arrest of Ships by Hill, Soehring, Hosoi and Helmer, 1985).”
46. In Halsbury’s laws of England, the nature of action in rem and the nature of action in personam is stated to be as below:
310. Nature of actions in rem and actions in personam.- An action in rem is an action against the ship itself, but the view that if the owners of the vessel do not enter an appearance to the suit in order to defend their property no personal liability can be established against them has recently been questioned. It has been stated that, if the defendant enters an appearance, an action in rem becomes, or continues also as, an action in personam; but the Admiralty jurisdiction of the High Court may now in all cases be invoked by an action in personam, although this is subject to certain restrictions in the case of collision and similar cases, except where the defendant submits or agrees to submit to the jurisdiction of the Court. The foundation of an action in rem is the lien resulting from the personal liability of the owner of the res. Thus an action in rem cannot be brought to recover damages for injury caused to a ship by the malicious act of the master of the defendant’s ship, or for damage done at a time when the ship was in the control of third parties by reason of compulsory requisition. On the other hand, in several cases, ships allowed by their owners to be in the possession and control of charterers have been successfully proceeded against to enforce liens which arose whilst the ships were in control of such third parties.
The defendant in an Admiralty action in person is liable, as in other actions in the High Court, for the full amount of the plaintiff’s proved claim. Equally in an action in rem a defendant who appears is now liable for the full amount of the judgment even though it exceeds the value of the res or of the bail provided. The right to recovery of damages may however be affected by the right of the defendantt to the benefit of statutory provisions relating to limitation of liability.”
47. The discussion above has shown us the Anglo-American jurisprudence pertaining to the admiralty matters and the distinction between the action in rem and action in personam being within a very narrow margin but before embarking on to a fuller analysis of the same, let us for the time being transfer our attention to the domestic law in the matter in issue. As regards the domestic law Section 44-A of the Civil Procedure Code may be considered as one of the basic elements of domestic law viz. a viz. foreign judgments. Section 44-A of the Code as noted above reads as below:
“Section 44-A. (1) Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.
(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.
(3) The provisions of Section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of Section 13.”
It is on the basis of the above provision that the respondent No. 1 moved the High Court upon having the decree registered in this country for execution of the English Court decree and it is on this score that Mr. Chidambaram contended that Section 44-A cannot possibly be said to be of any assistance to the English decree-holder.
48. Incidentally, a plain reading of Section 44-A would depict the following components:
(i) The decree must be of a superior Court of a reciprocating territory;
(ii) the decree is to be filed in a District court;
(iii) The decree may be executed in India as if it had been passed by the District Court;
(iv) Provisions of Section 47 of the CPC shall apply, subject to the exceptions specified in clauses (a) to (f) of Section 13;
(v) “Decree” means any decree under which a sum of money is payable. (See Explanation II).
49. Section 44-A thus indicates an independent right, conferred on to a foreign decree-holder for enforcement of its decree in India. It is a fresh cause of action and has no co-relation with jurisdictional issues. The factum of the passing of the decree and the assumption of jurisdiction pertaining thereto, do not really obstruct the full play of the provisions of Section 44-A. It gives a new cause of action irrespective of its original character and as such it cannot be termed to be emanating from the admiralty jurisdiction as such. The enforcement claimed is of an English decree and the question is whether it comes within the ambit of Section 44-A or not. The decree itself need not and does not say that the same pertains to an admiralty matter neither it is required under Section 44-A of the Code. Though however in the facts of the matter under consideration, the decree has been passed by the High Court of England (a superior Court) in its Admiralty jurisdiction. Registration in this country, as a decree of a superior foreign Court having reciprocity with this country would by itself be sufficient to bring it within the ambit of Section 44-A. The conferment of jurisdiction in terms of Section 44-A, cannot be attributed to any specific jurisdiction but an independent and an enabling provision being made available to a foreigner in the matter of enforcement of a foreign decree.
50. It is in this context that Mr. Desai placed strong reliance on a decision of the common Wealth of Australia, 1980 (144) CLR 565, Hunt v. B. P. Exploration Co. (Libya) Ltd. and since the summary of the judgment as is available in the report would sub-serve our purpose we need not go in for longish narration in regard thereto. The summary provides:
“A judgment-creditor registered a judgment of the High Court of Justice in England under Section 5 of the Reciprocal Enforcement of Judgments Act, 1959(Q). The judgment-debtor had assets in Queensland but he was not present within the jurisdiction and there was no other fact or circumstances to connect him with the State. He did not submit to the jurisdiction of the Supreme Court. Section 6(1)(c) of the Act enabled Rules of Court to be made providing for the service or a judgment-debtor of notice of the registration of a judgment. No such rules had been made when the judgment was registered.
Held that the judgment had been validly registered. The Act was within the legislative competence of the Queensland Parliament because it provided for the registration of foreign judgments in a Court of the State and their enforcement within the State. The facts that the parties to the judgment had no connection with the State was not relevant to the validity of the registration. Further the Act should not be construed as limited in its application to persons within the State.”
51. The second decision again under the same cause title of the New Zealand Supreme Court at Aukland (Hunt v. B. P. Exploration Co. (Libra) Ltd., (1980) 1 NZLR 104) is also to the same effect. The principle issue in the New Zealand’s case was to the following effect:
“(1) Does the Court have jurisdiction under the Act to register the English Judgment? If that issue is decided in favour of Mr. Hunt, then the injunction and the charging order fell to the ground.”
52. The issue however, was answered by the New Zealand Supreme Court upon consideration of the Black-Clawson’s case (Black Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg Aktiengeselschaft, (1975) AC 591) as also the Australian judgment noticed hereinbefore in the manner following:
“The Act provided a new system for bringing a judgment-debtor in foreign proceedings before the registering Court, whilst preserving his common law defences once he got there.
I am left with a statute, clear and unambiguous in its references to “judgment-debtor” and “judgment of a superior Court of a country to which this Part of this Act applies”. Mr. Hunt clearly comes within those references. The fact that the debtor is not within the jurisdiction of this Court was obviously not considered important. In practice, the Act would normally be applied to debtors with assets within the jurisdiction, although there do not need to be assets within the jurisdiction. See Hospital for Sick Children v. Walt Disney Productions Inc, (1968) Ch 52, 69, 77; (1967) 1 All ER 1005, 1011, 1016, which held that an injunction could issue against a Corporation not within the Court’s jurisdiction and which did not have assets there at the time of the order.
I think that, fundamentally, my decision must come down to this:On the one hand, is the Mareva jurisdiction (for want of a better term) merely an instance of the exercise of the Court’s general jurisdiction conferred in broad terms by S. 16; or is (118) the Mareva jurisdiction to be regarded as legislating in an area which should be left to Parliament? The two opposing points of view are well set out in the various Mareva judgments I have cited on the one hand, and in the South Australian judgments on the other.
I consider that this Court does have a Mareva jurisdiction. I do not accept the view that this jurisdiction is in the nature of legislating in an area forbidden to the Courts. I am not impressed by the “assumption of fearful authority” line of cases. There appears to have been an old English procedure of “foreign attachment” which provides a perfectly respectable ancestry for the procedure. The fact that this procedure accords with that in European countries is, for a New Zealand Court, a matter of coincidence.
The Court has to approach modern problems with the flexibility of modern business. In former times, as lawton, L.J. pointed out, it would have been more difficult for a foreign debtor to take his assets out of the country. Today, vast sums of money can be transferred from one country to another in a matter of seconds as a result of a phone call or a telex message. Reputable foreign debtors of course having nothing to fear; the facts of the reported Mareva cases indicate that the jurisdiction is wholesome; the sheer number of Mareva injunctions granted in London indicates that the jurisdiction is fulfilling a need.
Lord Denning M.R. cited with approval in the Rasu Maritima case, (1978) QB 644, 660-661; (1977) 3 All ER 324, 333-334, the following statement of practical reasons by Kerr, J., a highly experienced commercial Judge:
“A plaintiff has what appears to be an indisputable claim against a defendant resident outside the jurisdiction, but with assets within the jurisdiction which he could easily remove, and which the Court is satisfied are liable to be removed unless an injunction is granted. The plaintiff is then in the following difficulty. First, he needs leave to serve the defendant outside the jurisdiction, and the defendant is then given time to enter an appearance from the date when he is served, all of which usually takes several weeks or even months. Secondly, it is only then that the plaintiff can apply for summary judgment under Order 14 with a view to levying execution on the defendant’s assets here. Thirdly, however, on being apprised of the proceedings, the defendant is liable to remove his assets, thereby precluding the plaintiff in advance from enjoying the fruits of a judgment which appears irresistible on the evidence before the Court. The defendant can then largely ignore the plaintiff’s claim in the Courts of this country and snap his fingers at any judgment which may be given against him. It has always been my understanding that the purpose and scope of the exercise of this jurisdiction is to deal with cases of this nature. To exercise it on an ex parte basis in such cases presents little danger or inconvenience to the defendant. He is at liberty to apply to have the injunction discharged at any time on short notice.”
I, for one, do not always agree with the alleged judicial “law-making” of Lord Denning; on this occasion, I think that he has legitimately spelt out the jurisdiction of the Court and has up-dated old but useful procedures, aimed at enabling the law to deal with the commercial realities of modern business. Accordingly, I am of the view that the Mareva jurisdiction exists in New Zeeland, I find no cause to dissent from the view of Quilliam, J. in Mosen v. Donselaar that the Mareva jurisdiction exists in New Zealand, which view was accepted without argument in the other New Zealand decision.
The principal consideration is whether BP has given has some grounds for believing that there is a risk of Mr. Hunt’s New Zealand assets being removed before the judgment or award is satisfied. Mr. Gatenby, in one of his affirmations, asserted that although the judgment-debtor is reputedly an extremely wealthy and substantial businessman, searches and inquiries conducted by or on behalf of the judgment-creditor reveal relatively few assets in countries where enforcement can be conducted expeditiously and economically through the use of reciprocal enforcement legislation from which the judgment-debtor benefits other than only indirectly through the medium of American-based companies or trusts. He opined that it was apparent that Mr. Hunt has the means and the capability to organise his business affairs in a sophisticated manner. This statement is riddled with hearsay and does not state, as required by R. 185 of the Code, the grounds for the deponent’s belief. I therefore feel that I can take limited account of this statement. My concern at such a hearsay statement is similar to that expressed by lawton, L.J. in the passage cited, although, in its terms, the statement appears to have followed some of lawton, L.J’s guidelines.
All in all, I infer that there is a danger that the assets will be taken out of New Zealand. The situation is different from the usual Mareva type of cases where there is not even a judgment but merely the issue of proceedings. Here, there is a judgment, albeit one subject to an appeal; a judgment obtained after a lengthy defended hearing and one subject to being set aside under the provisions of the Act.
All things considered, I am of the view on the authorities, that there was sufficient justification for the issue of the Mareva injunction which will therefore stand as varied, with liberty to apply reserved to both parties to vary its terms further. I prefer lawton, L.J.’s formulations of the criteria, although read in context, Bridge, L.J. in the Montechhi case (supra), was not purporting to lay down a narrower test. I am of the view also that B.P. is in a stronger position than the average Mareva applicant in that it has a judgment capable of being registered as a Judgment of this Court whereas normally, all the applicant has is a prima facie case. I bear in mind lawton, L.J.’s statement that if nothing is known about a defendant, that may be enough; whilst in one sense, much is known about Mr. Hunt, nothing concrete is known about his willingness to pay the English Judgment if his appeal fails. Had there been some credible statement to this effect, in even one of the various Courts involved thus far, I might not have found enough to justify the Mareva injunction. However, his silence on the point, added to all the other factors, persuades me to sustain the injunction.”
53. The two decisions noted above in our view deal with the situation amply after having considered more or less the entire gamut of judicial precedents. Barker, J.’s judgment in the New Zealand case (supra), very lucidly sets out that the Court has to approach the modern problem with some amount of flexibility as is now being faced in the modern business trend. Flexibility is the virtue of the law Courts as Rosco Pound puts it. The pedantic approach of the law Courts are no longer existing by reason of the global change of outlook in trade and commerce. The observations of Barker, J. and the findings thereon in the New Zealand’s case with the longish narrations as above, depicts our inclination to concur with the same, but since issue is slightly different in the matter under consideration, we, however, leave the issue open, though the two decisions as above cannot be doubted in any way whatsoever and we feel it expedient to record that there exists sufficient reasons and justification in the submission of Mr. Desai as regards the invocation of jurisdiction under Section 44-A of the Code upon reliance on the two decisions of the New Zealand and Australian Courts.
54. The observations of us, as above, do find some concurrence in Dicey and Moris on ‘The Conflict of laws’, Vol. I, 13th Edn., Page 538 which is to the following effect:
“There is no requirement that the judgment-debtor be subject to the personal jurisdiction of the English Court. Enforcement is by registration, and not by action, and the judgment-debtor need have no connection with England…………”
55. In the view as above, the appellants’ contention pertaining to Section 44-A thus cannot be sustained. The apprehension of there being a ‘horrendous consequences’ on the wake of the observations as above thus cannot but be stated to be totally unrealistic and with respect, a figment of imagination.
56. Mr. Chidambaram by way of an alternative submission contended that assuming Section 44-A of the Code is applicable for the execution of a decree in personam obtained from an Admiralty Court in Britan but since Section 44-A is not a self-contained Code for execution of a decree, the same is not exhaustive and the same, as a matter of fact does not displace the common law and it has to be read along with the well-settled principles of common law in matters relating to execution of decree for a sum of money. Strong reliance was placed on the foreign judgment (Reciprocal Enforcement) Act, 1933 and it is on this context, reliance was placed on the decision in Black Clawson’s case (supra). It has been contended that since Section 44-A was introduced by an amendment after the foreign judgment (Reciprocal Enforcement) Act, 1933 it is apparent that the legislature did not think it fit to include in Section 44-A into the 1933 Act. Without dilating much on this score, in our view, the decisions of the New Zealand and the Australian Courts as noticed above, answer the same in no uncertain and unambiguous language. The views expressed by the English Courts in Black Clawson’s case (supra) has been expressly dissented from in both the decisions noticed above and we do feel it expedient to reiterate the views expressed as above more so by reason of the fact that the 1933 Act on which Black Clawson was decided expressly saved the applicability of the common law though to a limited extent by and under Section 8(3) of the Act.
57. As noticed above Section 44-A is an independent provision enabling a set of litigants whose litigation has come to an end by way of a foreign decree and who is desirous of enforcement of the same:It is an authorisation given to the foreign judgments and as noticed above, the Section is replete with various conditions and as such independently of any other common law rights, an enabling provision for a foreign decree-holder to execute a foreign decree in this country, has been engrafted on to statute book to wit:Section 44-A of the Code.
58. Mr. Chidambaram next contended that there are certain fundamental principles of execution in India and referred to a judgment of Sir Ashutosh Mukherji in the case of Begg Dunlop and Co. v. Jagannath Marvari, (1912) ILR 39 Cal 104. The fundamental principles as recorded therein and as strongly contended by Mr. Chidambaram runs as follows:
i. A decree may be executed either by the Court which passed it or by the Court to which it has been sent for execution. (Sec. 38, CPC)
ii. A decree may be sent to another Court of competent jurisdiction; the Court shall be deemed to be a Court of competent jurisdiction, if such Court would have jurisdiction to try the suit where the decree was passed. (Section 39(1) and (3), CPC).
iii. Even after sending the decree to another Court for execution, the original Court does not lose jurisdiction over the matter.
59. Mr. Chidambaram in support of his contention of ‘Fundamental Principles’ has also taken us through the provisions of Sections 16, 17, 19 and 20 of the CP Code. Admittedly and without much dialation Section 20 overlaps Section 19 (see in this context Mulla’s Civil Procedure Code, 15th Edn., Vol. I, page 240). The submissions pertaining to the fundamental principles of execution does not, however warrant, in our view, a fuller and detailed discussion save to note that Section 44-A is a departure from the scheme of execution of domestic decree. By virtue of Section 44-A(3), all defences under Section 13(a) to (f) which reads as under are available to a defendant:
“13. (S. 14) A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.”
60. As a matter of fact this is a scheme alien to the scheme of domestic execution as is provided under Section 39(3) of the Code. The scheme under the latter section is completely a different scheme wherein the transferee Court must be otherwise competent to assume jurisdiction and the general rule or the principle that one cannot go behind the decree is a permissible proposition of law having reference to Section 39(3) of the Code. Section 44-A however is having a in-built scheme of execution which is not in any comparable situation with the scheme in terms of Section 39(3). One can thus from the above conclude that whereas the domestic law, execution scheme is available under Sections 37, 38, 39, 41 and 42, Section 44-A depicts an altogether different scheme for enforcement of foreign judgments through Indian Courts. Reference in this context may also be made to the provisions as contained in Order 21, Rule 22 of the Code which expressly provide that in the event of their being an application for execution and the same been taken out beyond a period of two years after the date of the decree, there is existing a mandatory obligation to serve a notice to show cause against the execution. Such a requirement of the decree being more than 2 years’ old is not mentioned as regards the provisions of execution of decree filed under Section 44-A. This is a new introduction in the 1976 Code and in our view substantiates the reasonings as above and supports the contention of Mr. Desai as regards two separate and independent schemes for execution.
61. On the wake of the aforesaid, it can thus be safely concluded that while it is true that action in rem and in personam have lost much of significance in the present day world but in the facts of the matter under consideration, we are not really concerned therewith and as such we are not expressing any definite opinion in regard thereto suffice however, to record that we are inclined to lend our concurrence with the views expressed by the Australian and the New Zealand Courts’ apropos judgment in personam and in rem as noticed above.
62. In fine, the legal fiction created by Section 44-A makes the Andhra Pradesh High Court, the Court which passed the decree and as such competency of the High Court to entertain the execution proceeding cannot be doubted in any way.
63. In the premises abovesaid, we do not find any merit in the Appeals before us and thus the same are liable to be dismissed subject to the liberty reserved to the appellants as indicated herein below.
64. This order of dismissal however, would not preclude the appellant herein, to obtain release of the attached ship on furnishing a Bank guarantee of a nationalised Bank for suitable amount to the satisfaction of the Registrar (Judl.) of the Andhra Pradesh High Court, pending the execution proceedings. The amount of Bank Guarantee may be fixed by the Registrar (Judl.) after hearing the parties or their advocates. Furnishing of such Bank Guarantee will be in addition to the undertakings required to be furnished by the appellant pursuant to the order of the High Court which is subject-matter of civil appeal arising out of SLP (C) No. 18616 of 1999. Furnishing of such Bank Guarantee will also be without prejudice to the appellants’ rights and contentions regarding the merits of the decree-holders’ claim qua the arrested ship. Once such Bank Guarantee is furnished by the appellant and requisite undertakings as earlier ordered by the High Court are filed, the ship will be released from attachment and will be permitted to sail out of the port of Vishakhapatnam. In case the execution petition ultimately succeeds on merits against the appellant it will be open to respondent No. 1 decree-holder to encash the Bank Guarantee amount towards its claim in the execution proceedings. Subject to the aforesaid modification both the appeals stand dismissed with no order as to costs in each of them.
KEYWORDS:- COMMON LAW PRINCIPLES- INTEREST
“As the Act is a self-contained Code, common law principles of justice, equity and good conscience cannot be extended in awarding interest, contrary to or beyond provisions of the statute”.
AIR 2009 SC 3270 : (2009) 4 SCR 788 : (2009) 5 SCC 339 : JT 2009 (4) SC 208 : (2009) 4 SCALE 363
(SUPREME COURT OF INDIA)
|Mahender Singh and Another||Respondent|
(Before : Arijit Pasayat And Asok Kumar Ganguly, JJ.)
Civil Appeal Nos. 1751 to 1753 of 2009 (arising out of SLP (C) Nos. 2113, 7484 and 7485 of 2007), Decided on : 20-03-2009.
Land Acquisition Act, 1894—Sections 28 and 34—Acquisition of land—Payment of statutory interest—Act is a complete Code and lays down detailed procedure for acquisition of land, payment of compensation including solatium and additional market value—Apart from Sections 28 and 34 which deal with payment of interest to persons entitled to receive compensation, there is no other provision envisaging payment of interest—Collector, Land Acquisition is liable to pay interest on statutory rates to such persons only when possession has been taken over before payment of entire compensation to them under Section 34—Liability to pay interest to claimant arise only in accordance with Section 34—As Act is a self-contained Code, common law principles of justice, equity and good conscience cannot be extended in awarding interest, contrary to or beyond provisions of statute—While exercising jurisdiction under Article 226 of Constitution there is no scope for direction to pay interest in a manner not contemplated by either Section 28 or 34—Impugned judgments of High Court set aside.
Counsel for the Parties:
A. Sharma, ASG, Vishnu B. Saharaya (for M/s. Saharya and Co.), for Appellants
Satpal Singh, N. S. Vashisht, Vishal, Mrs. Kanchan Kaur Dhodi, for Respondents.
Arijit Pasayat, J—Leave granted.
2. Challenge in these appeals is to the judgment of a Division Bench of the Delhi High Court allowing the Writ Petitions filed by respondents under Article 226 of the Constitution of India, 1950 (in short the ‘Constitution’). Prayer in the writ petitions was to direct the present appellant to make payment of statutory interest under Section 34 of the Land Acquisition Act, 1894 (in short the ‘Act’) for the acquisition of the land in terms of the award No.3/1997-98, dated 10.12.1997. The appellant resisted the claim on the ground that such a prayer cannot be accepted in the writ petitions. The High Court, however, held that the writ applications were to be allowed. Accordingly, it directed the respondents in the writ petitions including the present appellant to pay the interest payable to the claimants in terms of Section 34 of the Act and pay costs of Rs.10,000/-.
3. In support of the appeals, learned counsel for the appellant submitted that the direction given by the High Court is clearly contrary to a Full Bench judgment of the Delhi High Court in Net Ram and Another v. Union of India and others (86 (2000) DLT 606).
4. Learned counsel for the respondents on the other hand supported the judgment and submitted that in the background of public accountability which has been highlighted by the High Court, the relief has been rightly granted.
5. The Act is a complete Code and lays down detailed procedure for acquisition of land, payment of compensation including solatium and additional market value. It is to be noted that under Section 34 interest @9% from the date of taking over the possession till payment for the first year @ 15% for subsequent years is payable. Section 28 is the only other provision which deals with the award of interest. The said provision empowers the Court to award interest on the excess amount awarded over and above the amount awarded by the Collector.
6. Sections 28 and 34 read as follows : “28. Collector may be directed to pay interest on excess compensation – If the sum which in the opinion of the court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of (nine percentum) per annum from the date on which he took possession of the land to the date of payment of such excess into Court.
34. Payment of interest- When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited. (Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of 15% per annum shall be payable from that date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.”
7. There is no dispute that apart from Sections 28 and 34 which deal with payment of interest to persons entitled to receive compensation, there is no other provision envisaging payment of interest. Collector, Land Acquisition is liable to pay interest on statutory rates to such persons only when possession has been taken over before the payment of the entire compensation to them under Section 34. In Union of India v. Budh Singh (1995) 6 SCC 233) this Court had the occasion to deal with Sections 28 and 34 and it was observed that these were the only provisions which deal with the payment of interest to land owners. While considering the scope and ambit of the Sections, this Court observed :
“Thus, it could be seen that the statute covers the entire field of operation of the liability of the State to make payment of interest and entitlement thereof by the owner when land has been taken over and possession in consequence thereof, the land owner was deprived of the enjoyment thereof. Thus, it could be seen that the Court has no power to impose any condition to pay interest in excess of the rate and manner prescribed by the statute as well as for a period anterior to the publication of Section 4(1) notification under this Act.”
8. Similar view was expressed in State of Himachal Pradesh v. Dharam Das (1995) 5 SCC 683). It was held that when the statute provides for payment of interest to the land owners, a Court has no power to award interest in a manner other than the one prescribed by the statute. It was specifically observed that there is no other provision empowering the Court to award interest on equitable ground as equitable consideration has no role to play in determination of the compensation and the manner of awarding interest as enjoined under the Act. The same has to be administered in the manner laid in the Act and in no other way. As a concomitance, the equity jurisdiction of the court is taken out and the Act enjoins the Court to grant interest as per the statutory rates specified in the Act. A plea was taken in a case before this Court in a matter relating to Jammu and Kashmir Requisitioning and Acquisition of Immovable Property Act, 1968 which omitted provision for payment of solatium and interest, that in spite of the absence of the provision for solatium and interest in the said Act, the State was bound to pay solatium and interest to the land owners on equitable grounds. This Court negatived the contention. It was observed that there was no substance in the plea that by legislative omission to pay solatium the State enriches itself unjustly at the expense of the private party. (See Union of India v. Dhanwanti Devi and others (1996) 5 SCC 44). In Ashok Nagar Plot Holders Association v. State of U.P. (1997) 10 SCC 77) this Court again observed that liability to pay interest to the claimant arises only in accordance with Section 34 of the Act. As the Act is a self-contained Code, common law principles of justice, equity and good conscience cannot be extended in awarding interest, contrary to or beyond provisions of the statute.
9. In view of what has been indicated above, the conclusion is irresistible that while exercising jurisdiction under Article 226 of the Constitution there is no scope for direction to pay interest in a manner not contemplated by either Section 28 or 34.
10. In view of the above the appeals deserve to be allowed which we direct. The impugned judgments of the High Court are set aside.