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M/s. Tele World Marketing v/s The Joint Commissioner (Drugs), Food & Drugs Administration & Others

    Miscellaneous Appeal No. 1154 of 2017
    Decided On, 27 November 2017
    At, High Court of Madhya Pradesh Bench at Indore
    For the Appellant: A.K. Chitle, Learned Sr. Advocate assisted by Vijay Tulsiyan, Learned Counsel. For the Respondents: R1 & R2, Umesh Gajankush, Milind Phadke, Learned Counsels.

Judgment Text
1. This appeal under Order 43 rule 1(a) CPC by plaintiff is directed against the order dated 18/05/2017 passed by Twelfth Additional District Judge, Indore in C.O.S.No.377-A/2017.

2. The trial Judge while dismissing the application under Order 7 rule 11 CPC filed by the defendants No.1 and 2, further held that as the cause of action has not arisen within the jurisdiction of this Court while seeking relief against the defendants No.1 and 2, the plaint has been returned to the plaintiff to be presented before the Court of competent jurisdiction.

3. Facts relevant and necessary as pleaded in paragraphs 1, 3, 4, 5, 6, 7, 22 (1) to (3) and 28 of the plaint are to the effect that the plaintiff is a direct-response telemarketing firm with Pan-India reach through media advertisement telecast and tele-shows on various television channels. It is the sole distributor of an ayurvedic product called 'Asthijivak' at Indore. Through various TV channels of defendants No. 3 to 6, the advertisement of the aforesaid product is being telecasted and the said defendants are also located at Indore. For the purpose of booking of advertisement and time slots with the aforesaid TV channels the plaintiff has hired the services of defendants No.7; a company engaged in the business of advertisement, etc; located at Indore.

4. The office of defendant No.2 purporting to act under the provisions of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (for short the Act of 1954) at Mumbai had issued common notices to defendants No.3 to 6 asking them to stop telecasting the advertisement of 'Asthijivak' with immediate effect under the pretext that the advertisement was contrary to the provisions under the aforesaid Act and the Rules framed thereunder.

5. It is the case of the plaintiff that the territorial jurisdiction of the defendant No.2 is limited to three zones out of eight zones in Mumbai city, therefore, lacked jurisdiction to exercise such powers as regards different television channels across India. Besides, other grounds of challenge have been made to the action of the defendants No.1 and 2 while issuing the impugned notices, Annexure-P/1 (colly) and the impugned order, Annexure- P/12 dated 20.02.2017. As a result of stoppage of telecast of the advertisement of the product 'Asthijivak', the plaintiff's business has come to a grinding halt, therefore, the suit has been filed seeking declaration that the notices Annexure-P/1 (colly) and the impugned order Annexure-P/12 are illegal, null and void and without jurisdiction and not binding upon the plaintiff and also permanent injunction restraining the defendants No.1 and 2 from taking any steps to stop telecasting the advertisement of the plaintiff's product 'Asthijivak' by all the TV channels including TV channels 3 to 6 and compensation to the tune of Rs.5, 00,50,0000/-.

6. It appears that the defendants No.1 and 2 have filed an application under Order 7 Rule 11 CPC inter alia contending that the defendants No.1 and 2 are having their offices at Mumbai, therefore, no cause of action has arisen at Indore. The suit also suffers from misjoinder of the parties and the Court lacks territorial jurisdiction.

7. The trial Judge though rejected the application under Order 7 Rule 11 CPC but has also ordered for returning the plaint holding that the Court lacked territorial jurisdiction.

8. Learned Senior Counsel Shri Chitale appearing for the plaintiff taking exception to the aforesaid action contends that the plaint averments are well explicit that the plaintiff being the sole distributor of the ayurvedic product, 'Asthijivak', runs its business through advertisement is situated at Indore. The business of advertisement including booking of time slots with TV channels (defendants No.3 to 6) is done by defendant No.7. The offices of the defendants No.3 to 6 and 7 are also situated at Indore.

9. The effect of the notices Annexure-P/1 (colly) and the order dated 20.02.2017 Annexure-P/12 issued purporting to be under the provisions of the Act of 1954 are twofold, namely; (i) it has adversely effected the business of the plaintiff causing recurring business and financial loss; and (ii) the telecast of the advertisement of the plaintiff's ayurvedic product 'Asthijivak' for which the plaintiff is the sole distributor has been stopped by the defendants No.3 to 6. Under the circumstances, part of cause of action has arisen at Indore and then, it is submitted that as such, the case is covered under section 20(c) CPC. Hence, the trial Court has committed patent error of law and facts while returning the plaint under the pretext of lack of territorial jurisdiction.

10. Learned Senior Counsel for the plaintiff, therefore, contends that the facts pleaded in the plaint are such which have a nexus or relevancy with the lis that is involved in the suit giving rise to the cause of action to file the suit at Indore.

11. Relying upon the judgments of the Hon'ble Supreme Court reported in (1994) 4 SCC 711 Oil and Natural Gas Commission vs. Utpal Kumar Basu, (2002) 1 SCC 567 Union of India vs. Adani Exports Limited, (2004) 6 SCC 254 Kusum Ingods & Alloys Limited vs. Union of India, (2014) 9 SCC 329 Nawal Kishore Sharma vs. Union of India and others, learned senior counsel contends that while addressing the objection of lack of territorial jurisdiction the Court must take all the facts pleaded for cause of action into consideration without embarking upon an enquiry as to the correctness or otherwise of the said facts and thereafter, the trial Court is required to address the relevancy of facts so pleaded with the dispute/lis involved in the case and consequential loss or threats thereof. No such exercise has been done by the trial Court. Merely for the reason that the impugned notices and the order (supra) in the suit since are passed in Mumbai the Court lacked territorial jurisdiction, the trial Court has committed patent illegality and jurisdictional error warranting interference by this Court by allowing the appeal.

12. Per contra, Shri Umesh Gajankush learned counsel appearing for the defendants No.1 and 2 supports the order impugned reiterating the reasonings given by the trial Court relying upon the judgment of the Hon'ble Supreme Court reported in (2010) 2 SCC 535 Godrej Sara Lee Limited vs Reckitt Benckiser Australia PTY limited and another.

13. Heard.

14. The crux of the controversy, therefore, revolves around the concept, meaning and dimensions of words 'cause of action, wholly or in part'. The expression 'cause of action' has not been defined either in the Constitution of India or in the Code of Civil Procedure. The cause of action is often described as a bundle of essential facts necessary for plaintiff to prove if disputed or traversed by defendant to succeed in the suit. Failure to prove such facts shall entitle the defendant a right to judgment in his favour, therefore, cause of action gives occasion for and forms the foundation of the suit. In the case reported in (1989) 2 SCC 163, A.B.C. Laminart (P) Ltd. v. A.P. Agencies, the Hon'ble Supreme Court has made the following observations:-

'12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.' Further, In the case reported in (2007) 11 SCC 335 of Alchemist Ltd. And another vs. State Bank of Sikkim and others, wherein upon critical evaluation of ratio of various judgments, the Hon'ble Supreme Court lucidly laid down the following principle of law in the context of meaning of words 'part of cause of action', which reads as under:- 'From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the appellant-petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a 'part of cause of action', nothing less than that.' (Emphasis supplied)

15. In the light of the aforesaid enunciation of law by the Hon'ble Apex Court, there is substantial force in the submission made by learned Senior Counsel for the plaintiff that while addressing on the objection of lack of territorial jurisdiction, the Court must take all the facts pleaded in support of the cause of action without entering into an inquiry as to the correctness or otherwise of the said facts to ascertain the facts pleaded have relevancy or nexus that is involved in the case and there is a consequential injury or threat thereof.

16. The plaintiff a sole distributor of the ayurvedic product 'Asthivijik' is having the office at Indore. The defendant No.7, a company engaged in the business of booking advertisements on behalf of plaintiff for time slots with the TV channels and the TV channels, defendants No.3 to 6 advertising the ayurvedic product of the plaintiff 'Asthivijik' situated and telecasted at Indore has been stopped. As such, the stoppage of telecasting the ayurvedic product 'Asthivijik' through the notices and order of defendants No.1 and 2 have adversely effected the business causing recurring financial loss to the appellant/plaintiff and defendants No.3 to 6 as well as defendant No.7 at Indore. Hence, a part of cause of action has arisen at Indore albeit the notices and the impugned order have been issued at Mumbai. As such, the trial Court has committed grave illegality having concluded that the Court situated at Indore lacked territorial jurisdiction to decide the suit. In view of the facts pleaded in the plaint as discussed in the preceding paragraphs of the order. In the opinion of this Court, the suit filed in the District Court at Indore by the

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plaintiff/appellant is maintainable. 17. The judgment of the Hon'ble Supreme Court relied upon by the trial Court in the case of Godrej Sara Lee Limited (supra) is misplaced and has no bearing to the controversy involved in the instant case, as in the said case the Hon'ble Supreme Court while drawing distinction between the action taken for cancellation of designs under Section 51- A of the Designs Act, 1911 and Section 19 of the Designs Act, 2000 ruled that while under Section 51-A of 1911 Act, allowed a person to move for cancellation directly before the High Court in its original jurisdiction whereas under Section 19 of the 2000 Act, an application for cancellation could only be made to the Controller of Designs, Kolkata. Against the order of Controller of Designs, Kolkata, cancelling the application for design under Section 19 of 2000 Act, an appeal shall lie to the Calcutta High Court and not to the Delhi High Court, as the jurisdiction to entertain a statutory appeal had to be determined on the basis of statutory provisions and not on the basis of dominus litus or the situs of the Appellate Tribunal or the cause of action. 18. Consequently, the appeal is allowed and disposed of.