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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.10643-10644 OF 2010

Indian Performing Rights Society Ltd. ... Appellant

Vs.

Sanjay Dalia & Anr. ... Respondents

(With C.A. No.4912/2015 @ SLP [C] No.8253/2013)  

J U D G M E N T

ARUN MISHRA, J.

1. Leave granted in SLP[C] No.8253 of  2013.

2. In the appeals, the question arising for consideration is as to

the interpretation of section 62 of the Copyright Act, 1957 and section

134(2) of the Trade Marks Act, 1999 with regard to the place where a

suit can be instituted by the plaintiff.

3. The  plaintiff/appellant  in  Civil  Appeal  Nos.  10643-44/2010

had filed  a  suit  praying for  relief  against  defendant  No.1  so  as  to

prevent infringement of the rights of the plaintiff without obtaining the

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licence. The defendant owns cinema halls in Maharashtra and Mumbai

where infringement is alleged and the entire cause of action, as alleged

in the plaint, has arisen in Mumbai, Maharashtra.  

4. Civil Suit FAO (OS) No. 359/2007 has been filed in the High

Court  at  Delhi,  by virtue of  the fact  that  the Branch Office of  the

plaintiff  is  situated  at  Delhi  and  the  plaintiff  is  carrying  on  the

business at Delhi. However, it is not disputed that the plaintiff’s Head

Office  is  situated  at  Mumbai.  The  objection  was  raised  by  the

defendant  with  regard  to  the  territorial  jurisdiction  of  the  court  at

Delhi. The single Bench and the Division Bench of the High Court

have upheld the objection and held that the suit should have been filed

in the facts of the case, in the court at Mumbai. Hence, the impugned

order has been questioned in the appeals.

5. In  Civil  Appeal  arising  out  of  SLP  [C]  No.  8253/2013  –

(Advance Magazine Publishers Inc. & Anr. v. Just Lifestyle Pvt. Ltd.),

the  suit  has  been  filed  with  respect  to  the  infringement  of  the

trademark. The registered office of “Vogue India” is in Mumbai. The

magazine is processed and published in Mumbai. It was submitted that

because  the  plaintiff  has  branch  office  at  Delhi,  it  had  sufficient

ground for invoking the jurisdiction under section 134 of the Trade

Marks Act. The plaintiff filed an application seeking an amendment in

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the plaint under Order 6 Rule 17 of the Code of Civil Procedure so as

to indicate how the court at Delhi would have the jurisdiction. The

magazine  is  sold  and  circulated  to  the  subscribers  at  Delhi.  The

application seeking amendment has also been dismissed by the High

Court  as  even  if  allowed,  amended  pleadings  would  not  confer

jurisdiction upon the court. Merely situation of branch office is not

enough as no cause of action as per the plaint, has arisen in Delhi. The

Division Bench has allowed the appeal and set aside the order passed

by the Single  Bench,  allowing the amendment.  The said  order  has

been impugned in SLP [C] No.8253/2013.

6. It  was  submitted  by  Shri  T.R.  Andhiarujina,  learned  senior

counsel  representing  the  appellants,  that  a  special  right  has  been

conferred under section 62(2) of the Copyright Act and section 134 of

the  Trade  Marks  Act  containing  non-obstante  clause  to  the

applicability of the Code of Civil Procedure or any other law for the

time being in force, and the plaintiff has been conferred a right to file

a suit where it carries on its business. That cannot be whittled down by

combining with it the cause of action. The impediment of section 20

of the Code of Civil Procedure is not applicable. Section 62(2) of the

Copyright  Act  and  section  134  of  the  Trade  Marks  Act  have  no

co-relation to the cause of action  and suit can be filed where plaintiff

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resides or carries on his business or personally works for gain. The

interpretation  made by the High Court  is  contrary to  the  aforesaid

provisions.  Convenience  of  the  defendant  is  not  a  relevant

consideration. The binding decision of this Court in Exphar SA & Anr.

v. Eupharma Laboratories Ltd. & Anr [2004 (3) SCC 688]  has been

violated. The judgment has not been taken into consideration though it

was decided earlier to the passing of the impugned decision. Reliance

has also been placed on the decisions of this Court in Dhodha House

v. S.K. Maingi [2006 (9) SCC 41], Dabur India Ltd. v. K.R. Industries

[2008 (10) SCC 595] and various other decisions of the High Court of

Delhi viz., Smithkline Beecham & Anr. v. Sunil Singhi & Anr. [2000

(1) PTC 321 (Del.)], Caterpillar Inc. v. Kailash Nichani & Ors. [2002

(24)  PTC 405  (Del.)],  Intas  Pharmaceuticals  Ltd.  v. Allergan  Inc.

[132 (2006) Delhi Law Times 641] to contend that under the aforesaid

provisions accrual of cause of action wholly or in part is not necessary

at a place where the plaintiff chooses to file a suit where he is carrying

on business.   

7. On behalf of the applicants in C.A. Nos. 10643-44/2010, Mr.

Sudhir  Chandra,  learned  senior  counsel,  submitted  that  while

interpreting section 62 of the Copyright Act and section 134(2) of the

Trademarks Act,  the intention of Parliament is to be gathered from

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plain and natural meaning. Heydon’s ‘rule of mischief’ is not attracted

where the words of the statute are clear and unambiguous. There is no

challenge to the vires of section 62 of the Copyright Act. Thus, the

court  cannot  invoke  the  doctrine  of  reading  down  the  provisions.

Section 62 of the Copyright Act is a special legislation and confers a

special right on the plaintiff where it carries on business or resides.

Reading the Explanation to section 20 of the Code of Civil Procedure

into section 62 will do violence to the Copyright Act. The requirement

of cause of action or Explanation as to the corporation of Section 20

C.P.C. cannot be added to the aforesaid provisions. Facts of  few cases

cannot  be  considered  so  as  to  make  interpretation  of  provisions.

Interpretation  of  the  statute  is  to  be  made  de  hors the  facts  of

individual  cases.  The intention of  legislation is  also clear  from the

Parliamentary Debates  and where the law has held the field for a long

time it should not be unsettled. The decision in Dhodha House (supra)

holds the field. As such, if a different interpretation is to be made, the

case should be referred to a larger Bench of this Court. Non-obstante

clause cannot be diluted.  

8. On  the  other  hand,  on  behalf  of  the  respondents,  it  was

submitted that abuse of provisions of section 62 of the Copyright Act

and section 134 of the Trade Marks Act cannot be permitted at the

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hands of multi-national corporations to harass the defendant/s. With

respect to the suit being filed by the Corporation, section 20 is not

inapplicable.  ‘Carrying on business’ cannot be defined subjectively.

Reliance  has  been  placed  upon  Patel  Roadways  Ltd.,  Bombay   v.

Prasad Trading Co. [1991 (4) SCC 270]. The object of the Parliament

behind enacting section 62 of the Copyright Act and section 134 of the

Trade Marks Act has to be taken into consideration while interpreting

the said provisions. The mischief rule of Heydon has been pressed into

service so as to prevent harassment of the defendants and abuse of the

said provisions. Court is duty-bound to avoid disproportionate counter

mischief while interpreting a provision. Public policy and convenience

to parties have to be taken into consideration. The interpretation of

provisions must be such so as to avoid hardship and absurdity. The

decisions  relied  upon  by  the  appellants  have  been  sought  to  be

distinguished.  

9. The Code of  Civil  Procedure,  1908 contains  the  provisions

under  section  20  with  respect  to  institution  of  the  suits  where

defendant resides or cause of action arose. Section 20 of the Code of

Civil Procedure reads thus :

“Section  20  -  Other  suits  to  be  instituted  where defendants reside or cause of action arises. --  Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction --

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(a)  the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit,  actually  and  voluntarily  resides,  or  carries  on business, or personally works for gain; or

(b)  any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily  resides,  or  carries  on  business,  or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work  for  gain,  as  aforesaid,  acquiesce  in  such institution; or

(c)    the cause of action, wholly or in part, arises.

[Explanation]. : A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it  has also a subordinate office,  at  such place.”

10. In  order  to  amend  and  consolidate  the  law  relating  to

copyrights, the matter was referred to a Joint Committee. The Joint

Committee of the Houses submitted the report which contained the

object of the provisions of section 62 is that many authors are deterred

from instituting infringement proceedings because the court in which

the proceedings are to be instituted are at a considerable distance from

the place  of  their  ordinary residence.  Such impediments  should  be

removed  and  the  proceedings  may  be  instituted  in  the  local  court

where the person instituting the proceedings ordinarily resides, carries

on business etc.  Clause 61 of  the Report  of  the said Committee is

extracted below :

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“Clause  61  (Original  clause  65).  --Sub-clause  (2)  of  the original clause 65 has been omitted and replaced by a new sub-clause. The Committee feels that the provisions of the original sub-clause (2) would virtually make registration of copyright compulsory and would be an undue restriction on the  owner  of  the  copyright  to  exercise  his  rights.  In  the opinion of the Committee many authors are deterred from instituting  infringement  proceedings  because  the  court  in which such proceedings are to be instituted is situated at a considerable  distance  from  the  place  of  their  ordinary residence. The Committee feels that this impediment should be  removed  and  the  new  sub-clause  (2)  accordingly provides that infringement proceedings may be instituted in the district court within the local limits of whose jurisdiction the  person  instituting  the  proceedings  ordinarily  resides, carries on business, etc.”

       (emphasis supplied by us)

Section 62 of the Copyright Act is extracted below :

“62. Jurisdiction of court over matters arising under this Chapter. --

(1) Every suit  or other civil  proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act  shall  be  instituted  in  the  district  court  having jurisdiction.

(2)  For  the  purpose  of  sub-section  (1),  a  "district  court having  jurisdiction"  shall,  notwithstanding  anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or  any  other  law  for  the  time  being  in  force,  include  a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person  instituting  the  suit  or  other  proceeding  or,  where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain.”

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Section 134 of  the Trade Marks Act is also extracted below :

“134. Suit for infringement, etc., to be instituted before District Court. -- (1) No suit--

(a)   for the infringement of a registered trade mark; or

(b)   relating to any right in a registered trade mark; or

(c)   for passing off arising out of the use by the defendant of  any  trade  mark  which  is  identical  with  or deceptively  similar  to  the  plaintiff's  trade  mark, whether registered or unregistered,

shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.

    (2)   For the purpose of clauses (a) and (b) of sub-section (1),  a  "District  Court  having  jurisdiction"  shall, notwithstanding  anything  contained  in  the  Code  of  Civil Procedure, 1908 (5 of 1908) or any other law for the time being  in  force,  include  a  District  Court  within  the  local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain.

Explanation.--For the purposes of sub-section (2), "person" includes the registered proprietor and the registered user.”

11.  Following  portion  of  the  Parliamentary  Debates  as  to

Copyright Act has been relied upon :

“Shri  P. Trikamdas:   Ordinarily  it  should  fall  within  the jurisdiction  of  the  court  where  the  infringing  copy  was published.  But there is nothing to prevent Parliament from making a law, as for instance in the case of divorce,  and saying that the cause of action may also arise at any place where the author resides or where the original publication took place, so that you could drag the infringer to that court.

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Instead  of  making  the  another  run  all  over  the  country facing the infringer, the right may be given to the injured party-the  author-to  sue  the  main  in  the  place  where  the author resides or where the first copy was published.

Dr. Raghubir Sinh:  So you agree to that?

Shri  P. Trikamdas:  Yes,  and  I  am  obliged  to  you  for asking me that question.

Dr. Raghubir Sinh:  Does Mr. Masani also approve of it?

Shri Masani : Yes.

    Shri P. Trikamdas:  It is desirable, also because it may act as a deterrent  on the infringer when he knows that he may have to go a few hundred miles off to a High Court where the author lives or where the book got published first.”

12. Considering the very language of section 62 of the Copyright Act

and section 134 of  the Trade Marks Act,  an additional  forum has been

provided by including a District  Court within whose limits the plaintiff

actually and voluntarily resides or carries on business or personally works

for gain. The object of the provisions was to enable the plaintiff to institute

a suit at a place where he or they resided or carried on business, not to

enable them to drag defendant further away from such a place also as is

being  done  in  the  instant  cases.  In  our  opinion,  the  expression

“notwithstanding anything contained in the Code of Civil Procedure” does

not oust the applicability of the provisions of section 20 of the Code of

Civil Procedure and it is clear that additional remedy has been provided to

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the plaintiff so as to file a suit where he is residing or carrying on business

etc., as the case may be. Section 20 of the Code of Civil Procedure enables

a plaintiff  to  file  a  suit  where the  defendant  resides or  where cause  of

action arose. Section 20(a) and section 20(b) usually provides the venue

where  the  defendant  or  any  of  them  resides,  carries  on  business  or

personally works for gain. Section 20(c) of the Code of Civil Procedure

enables a plaintiff to institute a suit where the cause of action wholly or in

part, arises. The Explanation to Section 20 C.P.C. has been added to the

effect that Corporation shall be deemed to carry on business at its sole or

principal office in India or in respect of any cause of action arising at any

place where it has subordinate office at such place. Thus, ‘corporation’ can

be sued at a place having its sole or principal office and where cause of

action wholly or in part, arises at a place where it has also a subordinate

office at such place.  

13. Learned author Mulla in the Code of Civil Procedure, 18 th Edn.,

has observed that  under clauses (a)  to (c)  of  section 20,  plaintiff  has a

choice of forum to institute a suit. The intendment of the Explanation to

section 20 of the Code of Civil Procedure is that once the corporation has a

subordinate office in the place where the cause of action arises wholly or in

part, it cannot be heard to say that it cannot be sued there because it did not

carry on business at that place. The linking of the place with the cause of

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action in the Explanation where subordinate office of the corporation is

situated is reflective of the intention of the Legislature and such a place has

to  be  the  place  of  the  filing  of  the  suit  and  not  the  principal  place  of

business.  Ordinarily the suit  has to be filed at  the place where there is

principal place of business of the corporation.

14. ‘Corporation’ in the Explanation would mean not only the statutory

corporation but companies registered under the Companies Act, as held by

this Court in  Patel Roadways Ltd., Bombay  v. Prasad Trading Co. etc.

[1991 (4) SCC 270] and New Moga Transport Co., through its Proprietor

v.  United  India  Insurance  Co.  Ltd.  &  Ors.  [2004  (4)  SCC  677]. The

domicile of the company is fixed by the situation of its principal place of

business as  held in  Jones v. Scottish Accident  Insurance Co.  (1886) 17

QBD 421. In the case of companies registered under the Companies Act,

the controlling power is,  as a fact,  generally exercised at  the registered

office, and that office is therefore not only for the purposes of the Act, but

for other purposes, the principal place of business, as held in  Watkins v.

Scottish Imperial Insurance Co. (1889) 23 QBD 285. A company may have

subordinate or branch offices in fifty different jurisdictions and it may be

sued in any one of such jurisdictions in respect of a cause of action arising

there,  has been held in  Peoples’ Insurance Co. v. Benoy Bhushan [AIR

1943 Cal. 190]; Home Insurance Co. v. Jagatjit Sugar Mills Co. [AIR 1952

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Punj. 142]; and  Prag Oil Mils Depot v. Transport Corpn. of India [AIR

1978 Ori. 167].

15. Accrual of cause of action is a sine qua non for a suit to be filed.

Cause of action is a bundle of facts which is required to be proved to grant

relief to the plaintiff. Cause of action not only refers to the infringement

but also the material facts on which right is founded. Section 20 of the

CPC recognises the territorial jurisdiction of the courts inter alia where the

cause of action wholly or in part arises. It has to be decided in each case

whether cause of action wholly or in part arises at a particular place. As

held  by  this  Court  in  Rajasthan  High  Court  Advocates  Association  v.

Union of India & Ors.  [AIR 2001 SC 416]. Thus, a plaintiff can also file a

suit where the cause of action wholly or in part arises.                   

16. On a due and anxious consideration of the provisions contained in

section 20 of the CPC, section 62 of the Copyright Act and section 134 of

the Trade Marks Act, and the object with which the latter provisions have

been enacted, it is clear that if a cause of action has arisen wholly or in

part, where the plaintiff is residing or having its principal office/carries on

business or personally works for gain, the suit can be filed at such place/s.

Plaintiff(s) can also institute a suit at a place where he is residing, carrying

on business or personally works for gain de hors the fact that the cause of

action has not arisen at a place where he/they are residing or any one of

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them  is  residing,  carries  on  business  or  personally  works  for  gain.

However, this right to institute suit at such a place has to be read subject

to certain restrictions, such as in case plaintiff is residing or carrying on

business  at  a  particular  place/having its  head office  and at  such  place

cause of action has also arisen wholly or in part, plaintiff cannot ignore

such a place under the guise that he is carrying on business at other far

flung places also. The very intendment of the insertion of provision in the

Copyright Act and Trade Marks Act is the convenience of the plaintiff.

The  rule  of  convenience  of  the  parties  has  been  given  a  statutory

expression  in  section  20  of  the  CPC  as  well.  The  interpretation  of

provisions  has  to  be  such  which  prevents  the  mischief  of  causing

inconvenience to parties.

17. The  intendment  of  the  aforesaid  provisions  inserted  in  the

Copyright Act and the Trade Marks Act is to provide a forum to the

plaintiff  where  he  is  residing,  carrying  on  business  or  personally

works for gain. The object is to ensure that the plaintiff is not deterred

from instituting infringement proceedings “because the court in which

proceedings are to be instituted is at a considerable distance from the

place  of  their  ordinary  residence”.  The  impediment  created  to  the

plaintiff by section 20 C.P.C. of going to a place where it  was not

having ordinary residence or principal place of business was sought to

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be removed by virtue of the aforesaid provisions of the Copyright Act

and the Trade Marks Act. Where the Corporation is having ordinary

residence/principal  place  of  business  and  cause  of  action  has  also

arisen at that place, it has to institute a suit at the said place and not at

other places. The provisions of section 62 of the Copyright Act and

section 134 of the Trade Marks Act never intended to operate in the

field where the plaintiff is having its principal place of business at a

particular place and the cause of action has also arisen at that place so

as to enable it to file a suit at a distant place where its subordinate

office is situated though at such place no cause of action has arisen.

Such interpretation would cause great harm and would be juxtaposed

to the very legislative intendment of the provisions so enacted.  

18. In our opinion, in a case where cause of action has arisen at a

place where the plaintiff is residing or where there are more than one

such persons, any of them actually or voluntarily resides or carries on

business or personally works for gain would oust the jurisdiction of

other place where the cause of action has not arisen though at such a

place, by virtue of having subordinate office, the plaintiff instituting a

suit or other proceedings might be carrying on business or personally

works for gain.       

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19. At the same time, the provisions of section 62 of the Copyright

Act  and  section  134  of  the  Trade  Marks  Act  have  removed  the

embargo of suing at place of accrual of cause of action wholly or in

part,  with  regard  to  a  place  where  the  plaintiff  or  any  of  them

ordinarily resides, carries on business or personally works for gain.

We  agree  to  the  aforesaid  extent  the  impediment  imposed  under

section 20 of the CPC to a plaintiff to institute a suit in a court where

the defendant  resides  or  carries  on business  or  where  the  cause  of

action wholly or  in part  arises,  has been removed. But the right  is

subject to the rider in case plaintiff resides or has its principal place of

business/carries on business or personally works for gain at a place

where cause of action has also arisen, suit should be filed at that place

not at other  places where plaintiff is having branch offices etc.

20. There is no doubt about it that the words used in section 62 of

the  Copyright  Act  and  section  134  of  the  Trade  Marks  Act,

‘notwithstanding anything contained in CPC or any other law for the

time being in force’, emphasise that the requirement of section 20 of

the CPC would not have to be complied with by the plaintiff  if he

resides or carries on business in the local limits of the court where he

has filed the suit but, in our view, at the same time, as the provision

providing for an additional forum, cannot be interpreted in the manner

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that it has authorised the plaintiff to institute a suit at a different place

other than the place where he is ordinarily residing or having principal

office and incidentally where the cause of action wholly or in part has

also arisen. The impugned judgments, in our considered view, do not

take away the additional forum and fundamental basis of conferring

the right and advantage to the authors of the Copyright Act and the

Trade Marks Act provided under the aforesaid provisions.

21. The  provisions  of  section  62(2)  of  the  Copyright  Act  and

section 134 of the Trade Marks Act are  pari materia. Section 134(2)

of the Trade Marks Act is applicable to clauses (a) and (b) of section

134(1) of the Trade Marks Act. Thus, a procedure to institute suit with

respect to section 134(1)(c) in respect of “passing off” continues to be

governed by section 20 of CPC.  

22. If  the  interpretation suggested  by the  appellant  is  accepted,

several mischiefs may result, intention is that the plaintiff should not

go to far flung places than that of residence or where he carries on

business or works for gain in order to deprive defendant a remedy and

harass him by dragging to distant place. It is settled proposition of law

that the interpretation of the provisions has to be such which prevents

mischief. The said principle was explained in  Heydon’s case [76 ER

637]. According to the mischief rule, four points are required to be

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taken into consideration. While interpreting a statute, the problem or

mischief  that  the  statute  was  designed  to  remedy  should  first  be

identified  and  then  a  construction  that  suppresses  the  problem and

advances the remedy should be adopted. The Heydon’s mischief rule

has been referred to in Interpretation of Statutes by Justice G.P. Singh,

12th Edn., at pp. 124-125 thus :

“(b)  Rule  in  Heydon’s  case;  purposive  construction: mischief rule

   When the material words are capable of bearing two or more  constructions  the  most  firmly  established  rule  for construction of  such words “of all  statutes in general  (be they  penal  or  beneficial,  restrictive  or  enlarging  of  the common law)” is the rule laid down in  Heydon’s case (76 ER 637)  which has  “now attained the  status  of  a  classic [Kanailal Sur v. Paramnidhi Sadhukhan AIR 1957 SC 907]. The rule which is also known as ‘purposive construction’ or ‘mischief  rule’  [Anderton  v.  Ryan  1985  2  ALL ER  355], enables consideration of four matters in construing an Act: (i) What was the law before the making of the Act, (ii) What was  the  mischief  or  defect  for  which  the  law  did  not provide, (iii) What is the remedy that the Act has provided, and (iv) What is the reason of the remedy. The rule then directs that the courts must adopt that construction which “shall suppress the mischief and advance the remedy”. The rule was explained in the  Bengal Immunity Co. v. State of Bihar [AIR 1955 SC 661] by S.R. DAS, CJI as follows: “It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon’s case (supra) was decided that for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging  of  the  common  law)  four  things  are  to  be discerned and considered:

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1st - What was the common law before the making of the Act?

2nd -  What  was  the  mischief  and  defect  for  which  the common law did not provide?

3rd -   What  remedy  the  Parliament  hath  resolved  and appointed to cure the disease of the commonwealth, and

4th -      The true reason of the remedy;  

and  then  the  office  of  all  the  judges  is  always  to  make such construction as  shall  suppress  the  mischief,  and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief,  and  pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act,   pro bono  publico.  [Bengal  Immunity  Co.  v.  State  of  Bihar (supra)].”  

23. Considering  the  first  aspect  of  aforesaid  principle,  the

common law which was existing before the provisions of law were

passed was section 20 of the CPC. It did not provide for the plaintiff to

institute a suit except in accordance with the provisions contained in

section 20. The defect in existing law was inconvenience/deterrence

caused to the authors suffering from financial constraints on account

of having to vindicate their intellectual property rights at a place far

away from their  residence  or  the place  of  their  business.  The said

mischief or defect in the existing law which did not provide for the

plaintiff to sue at a place where he ordinarily resides or  carries on

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business  or  personally  works  for  gain,  was  sought  to  be  removed.

Hence,  the  remedy  was  provided  incorporating  the  provisions  of

section 62 of the Copyright Act. The provisions enabled the plaintiff

or any of them to file a suit at the aforesaid places. But if they were

residing or carrying on business or personally worked for gain already

at such place, where cause of action has arisen, wholly or in part, the

said provisions have not provided additional remedy to them to file a

suit at a different place. The said provisions never intended to operate

in that  field.  The operation of  the provisions was limited and their

objective was clearly to enable the plaintiff to file a suit at the place

where  he  is  ordinarily  residing  or  carrying  on  business  etc.,  as

enumerated above, not to go away from such places. The Legislature

has never intended that the plaintiff should not institute the suit where

he ordinarily resides or at its Head Office or registered office or where

he otherwise carries on business or personally works for gain where

the cause of action too has arisen and should drag the defendant to a

subordinate office or other place of business which is at a far distant

place  under  the  guise  of  the  fact  that  the  plaintiff/corporation  is

carrying on business through branch or otherwise at such other place

also.  If  such an interpretation is  permitted,  as  rightly submitted on

behalf of the respondents, the abuse of the provision will take place.

Corporations  and  big  conglomerates  etc.  might  be  having  several

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subordinate  offices  throughout  the  country. Interpretation  otherwise

would permit them to institute infringement proceedings at a far flung

place and at unconnected place as compared to a place where plaintiff

is carrying on their business, and at such place, cause of action too has

arisen.  In  the  instant  cases,  the  principal  place  of  business  is,

admittedly,  in  Mumbai  and  the  cause  of  action  has  also  arisen  in

Mumbai. Thus, the provisions of section 62 of the Copyright Act and

section 134 of the Trade Marks Act cannot be interpreted in a manner

so  as  to  confer  jurisdiction  on  the  Delhi  court  in  the  aforesaid

circumstances to entertain such suits. The Delhi court would have no

territorial jurisdiction to entertain it.

24. The avoidance  of  counter  mischief  to  the  defendant  is  also

necessary while giving the remedy to the plaintiff under the provisions

in question. It was never visualised by the law makers that both the

parties would be made to travel to a distant place in spite of the fact

that the plaintiff has a remedy of suing at the place where the cause of

action has arisen where he is having head office/carrying on business

etc.  The provisions of  the Copyright  Act and the Trade Marks Act

provide for the authors/trade marks holders to sue at their ordinary

residence or where they carry on their business. The said provisions of

law  never  intended  to  be  oppressive  to  the  defendant.  The

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Parliamentary  Debate  quoted  above  has  to  be  understood  in  the

manner that suit can be filed where the plaintiff ordinarily resides or

carries on business or personally works for gain. Discussion was to

provide remedy to plaintiff  at  convenient  place;  he is  not  to travel

away. Debate was not to enable plaintiff to take defendant to farther

place, leaving behind his place of residence/business etc.  The right to

remedy given is not  unbriddled and is subject  to the prevention of

abuse  of  the  aforesaid  provisions,  as  discussed  above.  Parliament

never intended that the subject provisions to be abused by the plaintiff

by instituting suit in wholly unconnected jurisdiction. In the instant

cases, as the principal place of business is at Mumbai the cause of

action is also at Mumbai but still the place for suing has been chosen

at  Delhi.  There  may  be  a  case  where  plaintiff  is  carrying  on  the

business  at  Mumbai  and  cause  of  action  has  arisen  in  Mumbai.

Plaintiff is having branch offices at Kanyakumari and   also at Port

Blair, if interpretation suggested by appellants is acceptable, mischief

may be caused by such plaintiff to drag a defendant to Port Blair or

Kanyakumari. The provisions cannot be interpreted in the said manner

devoid of the object of the Act.

25. It  was  also  submitted  that  Heydon’s  rule  is  not  applicable

where the words of the statute are clear. Reliance has been placed on

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M/s. Hiralal Rattanlal etc. etc. v. State of U.P. and Anr. etc. [1973 (1)

SCC 216] in which it has been observed that when the provision is

unambiguous and if from the provision legislative intent is clear, the

court need not call into aid the other rule of construction of statutes

such  as  that  of  ‘mischief’.  However,  we  opine,  when  two

interpretations  are  possible,  the  court  has  to  adopt  the  one  which

furthers the object as provided in the statute itself.

26. Reliance has been placed on  Padmasundara Rao (Dead) &

Ors.v. State of Tamil Nadu and Ors. [AIR 2002 SC 1334] in which it

has been observed that the intention of the Legislature must be found

in the words used by the Legislature itself.  Reliance has also been

placed on  Grasim Industries  Ltd.  v. Collector of  Customs,  Bombay

[2002 (4) SCC 297] in which it has been observed that wherever the

language is clear, the intention of the Legislature is to be gathered

from the language used. While doing so, what has been said as also

what has not been said, has to be noted. There is no dispute with the

aforesaid proposition. However, the object of the Act and the intention

of the Legislature is clear which is to the otherwise.

27. Bennion on Statutory Interpretation in section 318 in Part XXI

has  mentioned  that  strict  construction  may  be  avoided  or  at  least

reduced by limiting the remedy where a counter mischief would arise

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if the remedy provided by the Act was eschewed widely. It may appear

to the court that one of the opposing construction of the enactment, if

adopted, would operate a mischief of its own. The prospects of this

would constitute a negative factor in weighing the applicability of the

construction in question. The court also has in mind the consequences

for the public welfare. Bennion has discussed thus :

“General  presumption  against  ‘absurdity’ For  the  general presumption that an ‘absurd’ result is not intended, of which the present section depicts one aspect, see Code s.312.

    Mischief As to the ‘mischief’ to which an enactment is directed see Code s.289.

    Counter-mischief Clearly it would be absurd to suppose that Parliament intended to abolish one mischief only at the cost  of establishing another which is just as bad, or even worse.  Many legal rules have adverse side-effects, and the policy  of  the  law  is  to  discard  possible  rules  whose disadvantages outweigh their benefits.

Example 318.1 Lord Bingham of Cornhill said:

‘My Lords, s.4 of the Statute of Frauds was enacted in 1677 to address a mischief facilitated, it seems, by the procedural deficiencies of the day….  It quickly became evident that if the seventeenth century solution addressed one mischief it was capable of giving rise to another….’

Regulatory Acts Some types of remedy necessarily carry in their  train  corresponding  drawbacks.   One  of  the  most frequent and inescapable of these is the loss of freedom that accompanies a regulatory measure.  Such consequences are manifest,  and  must  be  treated  as  part  of  Parliament’s intention.

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Strict construction Where a counter-mischief would arise if the remedy provided by the Act were construed widely, the  court  may avoid or  at  least  reduce  it  by limiting the remedy.

Example 318.2 Section 1 of the Domestic Violence and Matrimonial  Proceedings  Act  1976 (repealed)  empowered the  county  court  to  make  orders  excluding   a  violent husband  from  the  matrimonial  home.   No  limit  was specified  for  the  duration  of  such  exclusion orders.   The courts held that, to reduce the counter-mischief of keeping a man out of his own home, exclusion orders should be made only  for  a  brief  period.   In  one  case  Viscount  Dilhorne inferred that the purpose of the 1976 Act was ‘immediate relief not permanent resolution’.  In another case Ormrod LJ said  the  1976  Act  was  to  be  regarded  as  ‘a  short-term remedy essentially’.

It  may  appear  to  the  court  that  one  of  the  opposing constructions of the enactment, if adopted, would create a mischief  of  its  own.   It  is  not  unusual  for  a  construction contended for by one of the parties to have as one of its consequences  the  infliction  of  a  serious  injustice  on  the other party.  The prospect of this would constitute a negative factor in weighing the applicability of the construction in question.  The court also has in mind the consequences for the public welfare.

x x x x x

Often it is reasonable to assume that the counter-mischief that has arisen was quite unforeseen by Parliament.  Enacted law  suffers  by  comparison  with  unwritten  law  in  that  it involves Laying down in advance an untried remedy.....”

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           As observed, such a counter mischief to the defendant was

unforeseen by Parliament  and it  is  the court’s duty to  mitigate  the

counter mischief.

28. Strong  reliance  has  been  placed  by  the  appellants  on  the

discussions  made  by  Bennion on  avoiding  disproportionate

counter-mischief at page 1006 thus :

“the Court  seeks to avoid a construction that  cures the mischief the enactment was designed to remedy only at the cost of setting up a disproportionate counter-mischief since this  is  unlikely  to  have  been  intended  by  Parliament. Sometimes there are overriding reasons for applying such a construction,  for  example,  where  the  Parliament  really intended it or a literal meaning is too strong.”

 We find no overriding reasons to apply construction solicited

by the appellants as that was never intended by the Parliament.  

29. Bennion has also observed that public policy must inform the

court’s  interpretation  of  the  relevant  statutory  provision  and  that

public  policy  ascertained  from  the  Act  of  the  Parliament.  In  our

opinion, right to approach the court/pursuing the legal remedy cannot

be made a farce or oppressive as that would not be conducive for the

effective administration of justice.

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30. Justice G.P. Singh in  ‘Principles of Statutory Interpretation’,

12th Edition, has observed that regard be had to the subject and object

of the Act. The court’s effort is to harmonise the words of the statute

with the subject of enactment and the object the Legislature has in

view. When two interpretations are feasible, the court will prefer the

one  which  advances  the  remedy  and  suppresses  the  mischief  as

envisioned. The relevant portion is extracted below :

“As  stated  earlier  (Chapter  1,  title  2  ‘Intention  of  the Legislature’, text and notes 57 to 69, pages 14 to 17)  and as approved by the Supreme Court: "The words of a statute, when  there  is  doubt  about  their  meaning,  are  to  be understood in the sense in which they best harmonise with the  subject  of  the  enactment  and  the  object  which  the Legislature has in view. Their meaning is found not so much in  a  strict  grammatical  or  etymological  propriety  of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained".  [Workmen  of  Dimakuchi  Tea  Estate  v. Management of Dimakuchi Tea Estate, AIR 1958 SC 353, p.356 ...]   The courts have declined "to be bound by the letter, when it frustrates the patent purposes of the statute". [Cabell v. Markham,  148 F 2d 737 92nd cir 1945), (Judge Learned  Hand).   In  the  words  of  SHAH,  J.:  "It  is  a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature". [New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar, AIR 1963  SC  1207,  p.  1213  ...].   Therefore  when  two interpretations are feasible the court will prefer that which advances  the  remedy  and  suppresses  the  mischief  as  the Legislature  envisioned.  [Carew  &  Company  v.  Union  of India,  AIR 1975 SC 2260,  p.  2270...].  The  Court  should adopt  an  object  oriented  approach  keeping  in  mind  the principle that legislative futility is to be ruled out so long as

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interpretative possibility permits. (Busching Schmitz Private Ltd.  v.  P.T.  Menghani,  AIR  1977  SC  1569,  pp.  1575, 1576...].  The object oriented approach, however, cannot be carried to the extent of doing violence to the plain language used by rewriting the section or substituting words in place of  the  actual  words  used  by  the  Legislature.  [CIT  v. Budhraja and Company, AIR 1993 SC 2529, p. 2535].  

    Having regard to the object of the U.P. Bhoodan Yagna Act,  1953  to  implement  the  Bhoodan movement,  which aimed at distribution of land to landless labourers who were versed  in  agriculture  and  who  had  no  other  means  of subsistence, it was held that the expression 'landless persons' in  section 14,  which made provision for  grant  of  land to landless  persons,   was  limited  to  landless  labourers  as described above and did not include a landless businessman residing  in  a  city.  [U.P. Bhoodan  Yagna  Samiti  v.  Braj Kishore, AIR 1988 SC 2239].”

31. In  Busching Schmitz Private Ltd. v. P.T. Menghani [1977 (2)

SCC 835], it has been observed that purposive interpretation may be

made having regard to the object of the provisions and to avoid any

obvious lacuna.  

32. The  learned  author  Justice  G.P. Singh in  Interpretation  of

Statutes, 12th Edn. has also observed that it is the court’s duty to avoid

hardship,  inconvenience,  injustice,  absurdity  and  anomaly  while

selecting out of different interpretations. The doctrine must be applied

with great care and in case absurd inconvenience is to be caused that

interpretation  has  to  be  avoided.  Cases  of  individual  hardship  or

injustice have no bearing for enacting the natural construction. The

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relevant  discussion  at  pages  132-133  and  140-142  is  extracted

hereunder :

“(a)   Hardship, inconvenience, injustice, absurdity and           anomaly to be avoided

  In selecting out of different interpretations "the court will adopt that which is just, reasonable and sensible rather than that  which is  none of  those things"  [Holmes v. Bradfield Rural District Council, (1949) 1 All ER 381, p. 384] as it may be presumed "that the Legislature should have used the word in that interpretation which least offends our sense of justice". [Simms v. Registrar of Probates, (1900) AC 323, p. 335  CPC]  If  the  grammatical  construction  leads  to  some absurdity or some repugnance or inconsistency with the rest of the instrument, it may be departed from so as to avoid that absurdity, and inconsistency. [Grey v. Pearson, (1857) 6 HLC 61, p. 106].  Similarly, a construction giving rise to anomalies should be avoided. [Veluswami Thevar v. G.Raja Nainar, AIR 1959 SC 422, pp. 427, 428].  As approved by VENKATARAMA AIYAR,  J.,  "Where  the  language  of  a statute,  in  its  ordinary  meaning  and  grammatical construction,  leads  to  a  manifest  contradiction of  the  apparent  purpose  of  the  enactment,  or  to  some inconvenience  or  absurdity,  hardship  or  injustice, presumably not intended, a construction may be put upon it which  modifies  the  meaning  of  the  words,  and  even  the structure of the sentence.” [Tirath Singh v. Bachittar Singh, AIR 1955 SC 830].”'

x x x x x

“Consideration  of  hardship,  injustice  or  absurdity  as avoiding a particular construction is a rule which must be applied with great care. "The argument ab inconvenienti", said LORD MOULTON, "is one which requires to be used with great caution". [Vacher & Sons v. London Society of Compositors, (1913) AC 107]. Explaining why great caution is necessary LORD MOULTON further observed: "There is a danger that it may degenerate into a mere judicial criticism of  the  propriety  of  the  Acts  of  Legislature.  We have  to interpret statutes according to the language used therein, and

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though  occasionally  the  respective  consequences  of  two rival interpretations may guide us in our choice in between them, it can only be where, taking the Act as a whole and viewing it in connection with existing state of the law at the time of the passing of the Act, we can satisfy  ourselves that the words cannot have been used in the sense to which the argument  points".  [Vacher  &  Sons  v.  London  Society  of Compositors,  (1913) AC 107]. According to BRETT, L.J., the  inconvenience   necessitating  a  departure  from  the ordinary sense of  the words should not  only be great but should  also  be  what  he  calls  an  “absurd  inconvenience”. Moreover, individual cases of hardship or injustice have no bearing for rejecting the natural construction, [Young & Co. v. Leamington Spa Corporation, (1993) 8 AC 517],   and it is only when the natural construction leads to some general hardship  or  injustice  and  some  other  construction  is reasonably  open  that  the  natural  construction  may  be departed from. It  is often found that  laws enacted for the general  advantage  do  result  in  individual  hardship;  for example  laws  of  Limitation,  Registration,  Attestation although enacted for the public benefit, may work injustice in particular cases but that is hardly any reason to depart from the normal  rule  to relieve the supposed hardship or injustice in such cases. [Lucy v. Henleys Telegraph Works, (1969) 3 All ER 456]. "It is the duty of all courts of justice", said LORD CAMPBELL, "to take care for the general good of the community, that hard cases do not make bad law". [East  India  Company  v. Odichurn  Paul,  7  Moo  PC 85]. 'Absurdity' according to WILLES, J., should be understood "in the same sense as repugnance that is to say something which would be so absurd with reference to the other words of  the  statute  as  to  amount  to  a  repugnance". [Christopherson  v.  Lotinga,  (1864)  33  LJ  CP  121]. "Absurdity",  said  LORD  GREENE,  M.R.,  "like  public policy, is a very unruly horse".  [Grundt v. Great Boulder Proprietary  Gold  Mines  Ltd.,  (1948)  1  All  ER  21].  He proceeded to add: "There is one rule, I think which is clear that,  although  the  absurdity  or  the  non-absurdity  of  one conclusion as compared with another may be and very often is,  of  assistance  to  the  court  in  choosing  between  two possible  meanings  of  ambiguous  words,  it  is  a  doctrine which must  be applied with great  care,  remembering that judges may be fallible in this question of an absurdity and in

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any event it must not be applied so as to result in twisting language  into  a  meaning  which  it  cannot  bear.  It  is  a doctrine which must not be used to re-write the language in a way different from that in which it was originally framed". [Grundt  v.  Great  Boulder  Proprietary  Gold  Mines  Ltd. (supra)]. The alternative construction contended for must be such which does not put an undue strain on the words used; [Kanailal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907] and does not require recasting of the Act or any part of it. It must be possible to spell the meaning contended for out of the words actually used. [Shamrao V. Parulekar v. District Magistrate, Thana AIR 1952 SC 324].  

No doubt  in  cases  of  ambiguity  that  construction  which better  serves  the  ends  of  fairness  and  justice  will  be accepted, but otherwise it is for the Legislature in forming its  policy  to  consider  these  elements.  [IRC  v.  Mutual Investment  Co.  (1966)  3  All  ER  265].  If  no  alternative construction  is  open,  the  court  cannot  ignore  a  statutory provision "to relieve what it  considers a distress resulting from its operation; a statute has to be given effect to whether the  court  likes  it  or  not".  [Martin  Burn  Ltd.  v.  Calcutta Corporation, AIR 1966 SC 524]. The function of the court is  to  find  out  what  is  legal  and  not  what  is  right. [Chandavarkar Sita Ratna Rao v. Ashalata S.Guram, (1986) 4 SCC 447].  It is presumed that a legislative body intends which is the necessary effect of its enactments; the object, the purpose and the intention of the enactment is the same; it need not be expressed in any recital or preamble; and it is not competent for any court judicially to ascribe any part of the  legal  operation  of  the  statute  to  inadvertence. [Kariapper v. Wijesinha, (1967) 3 All ER 485].  

The Courts should as far as possible avoid a construction which  results  in  anomalies.  [N.T.Veluswami  Thevar  v. G.Raja Nainar, AIR 1959 SC 422].”

33. Bennion on  ‘Statutory  Interpretation’ has  mentioned  law to

same  effect  under  section  312  and  has  observed  that  there  is  a

presumption that absurd result is not intended and in section 314 it has

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been observed that the court has to avoid an inconvenient result while

interpreting a  provision.  It  was stated that  it  can be presumed that

Parliament intends that while construing an enactment the court will

avoid  a  construction  that  is  unworkable  or  impracticable,

inconvenient,  anomalous  or  illogical  as  the  same is  unlikely  to  be

intended by the Parliament. In Rosali V.  v. Taico Bank and Ors. [2009

(17)  SCC  690],  this  Court  referring  to  Halsbury’s  Commonsense

construction rule  held that  it  is  a  well-settled principle  of  law that

common sense construction rule should be taken recourse in certain

cases.

34. This Court in  Sonic Surgical v. National Insurance Co. Ltd.

[2010 (1) SCC 135] has also laid down law to the same effect and has

discussed  the  term  ‘branch  office’  used  in  section  17(2)  of  the

Consumer Protection Act,  1986 in the context   of  cause  of  action.

Section 17(2) of the said Act reads thus :

“17(2)   A  complaint  shall  be  instituted  in  a  State Commission within the limits of whose jurisdiction,--

(a)  the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the  complaint,  actually  and  voluntarily  resides  or carries on business or has a branch office or personally works for gain; or

(b)  any of the opposite parties, where there are more than one,  at  the  time  of  the  institution  of  the  complaint, actually and voluntarily resides, or carries on business

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or  has a  branch office or  personally works for  gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or  carry on business or  have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or

(c)    the cause of action, wholly or in part, arises.]”

            This Court while interpreting the provision held that the term

‘branch  office’ as  used  in  the  amended  section  17(2)(b)  has  to  be

interpreted to mean only that branch office where the cause of action

has arisen. Thus, the court departed from the plain and literal meaning

of the words of section 17(2)(b) of the Consumer Protection Act in

order to avoid absurdity. The decision in  Somic Surgical (supra) has

been approved by this Court in  State of Madhya Pradesh and Anr. v.

Narmada Bachao Andolan & Anr. [2011 (7) SCC 639] inasmuch as

this  Court  has  observed  that  in  case  the  natural  meaning  leads  to

mischievous  consequences,  it  must  be  avoided  by  accepting  other

permissible construction.

35. Reliance has been placed by the appellants on the decision in

Union of India & Anr. v. Deoki Nandan Aggarwal [1992 Supp. (1)

SCC 323] so as to contend that the court cannot usurp the legislative

intention and cannot supply omissions to a statute. There is no dispute

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with the aforesaid proposition. However, we are simply interpreting

the provisions considering the object of the Act.

36. Respondents  have  placed  reliance  on  Patel  Roadways  Ltd.,

Bombay  v. Prasad Trading Co. etc. [1991 (4) SCC 270] in which this

Court has considered the provisions of section 20 of the CPC. This

Court has observed thus :  

“12. We would also like to add that the interpretation sought to be placed by the appellant on the provision in question renders the Explanation totally redundant. If the intention of the  legislature  was,  as  is  said  on their  behalf,  that  a  suit against a corporation could be instituted either at the place of its sole or principal office (whether or not the corporation carries on business at that place) or at any other place where the cause of action arises, the provisions of clauses (a), (b) and (c) together with the first part of the Explanation would have  completely  achieved  the  purpose.  Indeed  the  effect would have been wider. The suit could have been instituted at the place of the principal office because of the situation of such office (whether or not any actual business was carried on there). Alternatively, a suit could have been instituted at the place where the cause of action arose under clause (c) (irrespective of whether the corporation had a subordinate office  in  such  place  or  not).  This  was,  therefore,  not  the purpose  of  the  Explanation.  The Explanation  is  really  an Explanation to clause (a). It is in the nature of a clarification on the scope of clause (a) viz. as to where the corporation can be said to carry on business. This, it is clarified, will be the place where the principal office is situated (whether or not any business actually is carried on there) or the place where  a  business  is  carried  on  giving  rise  to  a  cause  of action (even though the principal office of the corporation is

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not located there) so long as there is a subordinate office of the corporation situated at such place. The linking together of the place where the cause of action arises with the place where a subordinate office is located clearly shows that the intention  of  the  legislature  was  that,  in  the  case  of  a corporation, for the purposes of clause (a), the location of the  subordinate  office,  within  the  local  limits  of  which a cause of  action arises,  is  to be the relevant  place for  the filing of a suit and not the principal place of business. If the intention was that the location of the sole or principal office

as well as the location of the subordinate office (within the  limits  of  which  a  cause  of  action  arises)  are  to  be deemed to be places where the corporation is deemed to be carrying on business, the disjunctive “or” will not be there. Instead, the second part of the Explanation would have read “and, in respect of any cause of action arising at any place where it has a subordinate office, also at such place”.

13. As far as we can see the interpretation which we have placed on this section does not create any practical or undue difficulties  or  disadvantage  either  to  the  plaintiff  or  a defendant  corporation.  It  is  true  that,  normally,  under clauses (a) to (c),  the plaintiff has a choice of forum and cannot  be  compelled  to  go  to  the  place  of  residence  or business of  the corporation and can file a  suit  at  a place where the cause of action arises. If a corporation desires to be  protected  from  being  dragged  into  litigation  at  some place merely because a cause of action arises there it can save itself from such a situation by an exclusion clause as has been done in the present case. The clear intendment of the Explanation, however, is that, where the corporation has a subordinate office in the place where the cause of action arises, it cannot be heard to say that it cannot be sued there because it does not carry on business at that place. It would be a great hardship if, in spite of the corporation having a subordinate  office  at  the place where  the cause  of  action arises (with which in  all  probability  the plaintiff  has had

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dealings), such plaintiff is to be compelled to travel to the place  where  the  corporation  has  its  principal  place.  That place should be convenient  to the plaintiff;  and since the corporation has an office at such place, it will also be under no  disadvantage.  Thus  the  Explanation  provides  an alternative locus for the corporation’s place of business, not an additional one.”

     This Court has considered while interpreting the provision of

section 20 CPC that no practical or undue difficulties or disadvantage

either to the plaintiff or the defendant corporation could be caused. It

has also been observed that it would be a great hardship if in spite of

the corporation having a subordinate office at a place where the cause

of  action  arises,  such  plaintiff  is  compelled  to  travel  where  the

corporation has its principal office. That place should be convenient to

the plaintiff and the corporation has an office at such place, will also

be under no disadvantage.

37. Under clauses (a) to (c) of section 20 CPC, a plaintiff has a

choice of forum and cannot be compelled to go to a place of business

or residence of the defendant and can file a suit where the cause of

action arises. The intendment of the Explanation has also been taken

into consideration by this Court in  New Moga Transport Co. (supra)

thus :

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“9.  Normally, under clauses (a) to (c) the plaintiff has a choice of forum and cannot be compelled to go to the place of residence or business of the defendant and can file a suit at a place where the cause of action arises. If the defendant desires to be protected from being dragged into a litigation at  some  place  merely  because  the  cause  of  action  arises there it can save itself from such a situation by an exclusion clause. The clear intendment of the Explanation, however, is that where the corporation has a subordinate office in the place where the cause of action arises it cannot be heard to say that it cannot be sued there because it does not carry on business at that place. Clauses (a) and (b) of Section 20 inter alia  refer  to  a  court  within  the  local  limits  of  whose jurisdiction the defendant  inter  alia “carries  on business”. Clause (c)  on the other  hand refers  to a  court  within the local limits of whose jurisdiction the cause of action wholly or in part arises.

10. On a plain reading of the Explanation to Section 20 CPC it  is  clear  that  the  Explanation  consists  of  two  parts:  (i) before the word “or” appearing between the words “office in India” and the words “in respect of”, and (ii) the other thereafter. The Explanation applies to a defendant which is a corporation, which term would include even a company. The first part of the Explanation applies only to such corporation which has its sole or principal office at a particular place. In that event,  the court within whose jurisdiction the sole or principal  office  of  the  company  is  situate  will  also  have jurisdiction  inasmuch  as  even  if  the  defendant  may  not actually  be  carrying  on  business  at  that  place,  it  will  be deemed to carry on business at  that  place because of  the fiction  created  by the  Explanation.  The  latter  part  of  the Explanation takes care of a case where the defendant does not have a sole office but has a principal office at one place and  has  also  a  subordinate  office  at  another  place.  The expression “at such place” appearing in the Explanation and the word “or” which is disjunctive clearly suggest that if the

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case falls within the latter part of the Explanation it is not the court  within whose jurisdiction the principal  office of the  defendant  is  situate  but  the  court  within  whose jurisdiction it has a subordinate office which alone has the jurisdiction “in respect of any cause of action arising at any place where it has also a subordinate office”.

38. In   Exphar  SA  (supra),  this  Court  had  considered  the

provisions  contained  in  section  62  of  the  Copyright  Act  and  has

observed that the word ‘include’ shows that the jurisdiction for the

purpose of  section 62 is  wider than that  of  the court  as  prescribed

under the Code of Civil Procedure, 1908. This Court has laid down

thus:

“12. We would like to emphasise the word "include". This shows that the jurisdiction for the purposes of Section 62 is wider than that of the Court as prescribed under the Code of Civil Procedure, 1908. The relevant extract of the report of the Joint Committee published in the Gazette of India dated 23-11-1956  which  preceded  and  laid  the  foundation  for Section 62(2) said :

       "In the opinion of the Committee many authors are deterred from instituting infringement proceedings because the court in which such proceedings are to be instituted is situated at a considerable distance from the place of their ordinary  residence.  The  Committee  feels  that  this impediment should be removed and the new sub-clause (2) accordingly provides that infringement proceedings may be instituted  in  the  District  Court  within  the  local  limits  of whose  jurisdiction  the  person  instituting  the  proceedings ordinarily resides, carries on business etc."

13. It is, therefore, clear that the object and reason for the introduction  of  sub-section  (2)  of  Section 62 was  not  to

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restrict the owners of the copyright to exercise their rights but  to  remove  any  impediment  from  their  doing  so. Section 62(2) cannot be read as limiting the jurisdiction of the District Court only to cases where the person instituting the suit or other proceeding, or where there are more than one  such  persons,  any  of  them  actually  and  voluntarily resides or carries on business or presently works for gain. It prescribes  an  additional  ground  for  attracting  the jurisdiction of a court over and above the “normal” grounds as laid down in Section 20 of the Code.”

        This Court held therein that the Delhi court had jurisdiction

since the plaintiff had averred that it has its registered office in Delhi

and seize  and  desist  notice  was  also  received  by the  appellants  at

Delhi.  The  decision  in  Exphar  SA  (supra)  does  not  oust  the

applicability  of  the  provisions  of  section  20  of  the  Code  of  Civil

Procedure as this Court has laid down that section 62 has prescribed

an  additional  ground  other  than  the  normal  ground  prescribed  in

section 20 of the CPC. The question posed before us in the instant

cases is different. In our considered opinion, the decision in  Exphar

SA (supra) buttresses the interpretation adopted by us.

39. Reliance has also been placed on decision in  Dhodha House

(supra)  in  which  this  Court  considered  the  question  about  the

maintainability  of  the  composite  suit  for  infringement  of  the

Copyright Act, and the Trade and Merchandise Marks Act, 1958. The

Trade Marks Act, 1999 was also considered. This Court has laid down

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that composite suit may be maintainable under the Copyright Act and

the Trade and Merchandise Act, 1958 but that may not be relevant for

the purpose of determining the question of a forum where a suit can be

instituted. In case the court is not having jurisdiction under one of the

Acts,  merely  by  combining  the  causes  of  action,  the  jurisdiction

cannot be conferred upon the court.  In that  context,  this Court  has

observed thus :

“20.  The jurisdiction of the District Court to determine a lis under  the  1957  Act  as  also  the  1958  Act  must,  thus,  be instituted where the whole or a part of cause of action arises. Sub-section (2) of Section 62 of the 1957 Act provides for an additional forum therefore in the following terms:

"(2)  For  the  purpose  of  sub-section  (1),  a  "district  court having  jurisdiction"  shall,  notwithstanding  anything contained in the Code of civil Procedure, 1908 (5 of 1908), or  any  other  law  for  the  time  being  in  force,  include  a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person  instituting  the  suit  or  other  proceeding  or,  where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain."

Admittedly, no such additional forum had been created in terms of the provisions of the 1958 Act.

x x x x x

44.   A cause of action in a given case both under the 1957 Act as also under the 1958 Act may be overlapping to some extent. The territorial jurisdiction conferred upon the court in terms of the provisions of the Code of civil  Procedure indisputably shall  apply to a suit  or proceeding under the 1957  Act  as  also  the  1958  Act.  Sub-section  (2)  of

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Section 62 of the 1957 Act provides for an additional forum. Such  additional  forum was  provided  so  as  to  enable  the author to file a suit who may not otherwise be in a position to  file  a  suit  at  different  places  where  his  copyright  was violated.  The  Parliament  while  enacting  the  Trade  and Merchandise Marks Act in the year 1958 was aware of the provisions of the 1957 Act. It still did not choose to make a similar provision therein. Such an omission may be held to be  a  conscious  action  on the  part  of  the  Parliament.  The intention of the Parliament in not providing for an additional forum  in  relation  to  the  violation  of  the  1958  Act  is, therefore, clear and explicit. The Parliament while enacting the Trade Marks Act, 1999 provided for such an additional forum  by  enacting  sub-section  (2)  of  Section 134 of  the Trade Marks Act. The court shall not, it is well well-settled, readily  presume  the  existence  of  jurisdiction  of  a  court which was not conferred by the statute. For the purpose of attracting the jurisdiction of a court in terms of sub-section (2) of Section 62 of the 1957 Act, the conditions precedent specified therein must be fulfilled, the requisites wherefor are that the plaintiff must actually and voluntarily reside to carry on business or personally work for gain.

x x x x x

47.  A  corporation  in  view  of  Explanation  appended  to Section 20 of the Code would be deemed to be carrying on business  inter  alia  at  a  place  where  it  has  a  subordinate office.  Only  because,  its  goods are  being sold  at  a  place would thus evidently not mean that it carries a business at that place.”       

                                                                  (emphasis supplied by us)

       In Dhodha House (supra), the question which is posed before us

did not come up for consideration and it has been observed that the

Act  provides  for  an  additional  forum.  Such  additional  forum  was

provided so as to enable a plaintiff who may not be otherwise in a

position  to  file  a  suit  at  different  places  where  the  copyright  was

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violated.   We have anxiously considered the aforesaid observations

made and the object of the Act, we find that the interpretation made by

us does not militate against the observations made by this Court  in

Dhodha House (supra), the precise question which is before us, was

not involved in the aforesaid case.  A decision is not to be construed

like a statute nor by inferential process it  can be assumed that this

Court has decided the question also which is before this Court in the

instant cases.

40. This Court in  Paragon Rubber Industries & Ors. v. Pragathi

Rubber Mills & Ors. [2014 (57) PTC 1(SC)] held that a composite suit

would  not  be  maintainable  unless  the  court  had  jurisdiction  to

entertain the suit in relation to both the Copyright Act and the Trade

Marks Act. No such question is involved in the cases.   

41. In  Dabur  India  Ltd.  (supra),  the  question  was  whether

composite suit of infringement of copyright and passing off could be

filed in a  court  having jurisdiction where the plaintiff  actually  and

voluntarily resides or carries on business or personally works for gain

as  provided  under  section  62  of  the  Copyright  Act.  This  Court

answered the question in the negative, dismissed the appeal and held

that Order 2 Rules 2 and 3 of the CPC can be exercised only in the

event when the court has otherwise jurisdiction in respect of the cause

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of  action  wherefor  the  action  has  been  brought.  This  Court  has

observed with respect to section 62 of the Copyright Act thus :

“32.  There  cannot  be  any  doubt  whatsoever  that  the Parliament having inserted sub-section (2) in Section 62 of the 1957 Act, the jurisdiction of the court thereunder would be wider than the one under Section 20 of  the Code.  The object  and  reasons  for  enactment  of  sub-section  (2)  of Section 62  would  also  appear  from  the  report  of  the Committee,  as  has  been  noticed  by  this  Court  being  a provision which has been specially designed to confer an extra benefit upon the authors who were not in a position to instate copyright infringement proceeding before the courts. It is in the aforementioned context the law laid down by this Court  in  paragraph  13  of Dhodha  House (supra)  must  be understood.

x x x x x

34.  What then would be meant by a composite suit?  A composite suit would not entitle a court to entertain a suit in respect  whereof  it  has  no  jurisdiction,  territorial  or otherwise.  Order 2 Rule 3 of the Code specifically states so and, thus, there is no reason as to why the same should be ignored.  A composite suit within the provisions of the 1957 Act  as  considered  in  Dhodha  House (supra),  therefore, would mean the suit which is founded on infringement of a copyright and wherein the incidental power of the court is required  to  be  invoked.   A plaintiff  may  seek  a  remedy which can otherwise be granted by the court.  It was that aspect  of  the  matter  which  had  not  been  considered  in Dhodha House (supra)  but  it  never  meant  that  two  suits having different causes of action can be clubbed together as a composite suit.”

         (emphasis supplied by us)

         This  Court  in  Dabur India (supra)  with  respect  to  the

maintainability  of  a  composite  suit  observed  that  a  composite  suit

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would not entitle a court to entertain a suit in respect whereof it has no

jurisdiction  territorial  or  otherwise.  The  decision  in  Dabur  India

(supra) is of no help to the cause espoused by the appellants.     

42. Now, we advert to various decisions of High Courts:

(a)    The decision of the Delhi High Court in  Smithkline Beecham

(supra) has been relied upon. As the registered office was situated in

Delhi, it was held that the plaintiffs were entitled to institute a suit in

Delhi court and the questions of cause of action etc. did not come up

for consideration.

(b) Delhi  High  Court  in  Caterpillar  Inc.  v.  Kailash  Nichani

(supra)  has observed that  section 62 of the Copyright  Act makes a

significant and obvious departure from the norm that the choice of

jurisdiction  should  primarily  be  governed  by  convenience  of  the

defendants.  

(c)  In the decision in  Intas Pharmaceuticals Ltd.  (supra), Delhi

High Court has considered the provisions of section 20 of the CPC

and section 134 of the Trade Marks Act. The High Court has observed

in para 17 of the report that the court has jurisdiction by virtue of the

provisions contained in section 20(c) of the CPC as the defendant is

selling the offending drug in Delhi.

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(d) In Ford Motor Co. & Anr. v. C.R. Borman & Anr. [2008 (38)

PTC 76 (Del.)], Delhi High Court considered that the plaintiff carried

on the business in commercial quantities in Delhi and have authorised

agents  also.  The  pleadings  of  plaintiff  have  to  be  taken  into

consideration at the time of rejection of the plaint under Order VII

Rule 11 CPC. It was observed on averments made that the Delhi High

Court possessed territorial jurisdiction to entertain the suit as plaintiff

carried on business at Delhi.   

(e) In  Sap Aktiengesellschaft & Anr. v. M/s. Warehouse Infotech

[IA No. 11153/2009 in CS(OS) No.623/2009 decided on 19.11.2009],

the question came up for  consideration whether  the plaintiff  had a

right a file a suit if he carries on business in the territorial jurisdiction

of  Delhi.  The  High  Court  held  that  in  the  plaint,  jurisdiction  was

invoked on the ground that the defendants are voluntarily residing and

carrying on business at Delhi. The plaintiff has branch office at Delhi

and plaintiff’s authorised partner was offering the products from its

office  at  Delhi.  The  judgment  was  delivered  considering  the

provisions of Order VII Rule 10, C.P.C. taking the plaint averments to

be correct.  

(f) In Wipro Ltd. & Anr. v. Oushadha Chandrika Ayurvedic India

(P) Ltd. & Ors. [2008 (37) PTC 269 Mad.], the High Court at Madras

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has observed that the provisions of section 20 CPC are not applicable

as far as the High Court at Madras is concerned. Therefore, the scope

of section 62 of the Copyright Act and section 134 of the Trade Marks

Act, cannot be curtailed by reference to section 20 CPC or clause 12

of the Letters Patent.  

(g) In Hindustan Unilever Ltd. v. Ashique Chemicals & Ors. [2011

(47) PTC 209 (Bom.)],  the Bombay High Court  has dealt  with the

territorial jurisdiction and held that section 134 of the Trade Marks

Act  conferred  upon  the  plaintiff  the  benefit  of  bringing  an  action

stipulated therein notwithstanding the provisions of the Code of Civil

Procedure or any other law.  

(h) In the case of  Ultra Tech Cement Ltd. & Anr. v. Shree Balaji

Cement Industries & Ors. [2014 (58) PTC 1 (Bom.)], the High Court

held  that  it  has  the  jurisdiction  as  the  plaintiff  carries  on  business

within the jurisdiction of the court and plaintiff No.1 has registered

office and plaintiff No.2 has corporate office within the jurisdiction of

the said court, though the defendants did not carry on business nor do

they have place of business within the jurisdiction of that court.  

The  facts  of  the  instant  cases  and  the  question  posed  is

different  which  did  not  come  up  for  consideration  in  any  of  the

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aforesaid decisions rendered by the High Courts and even otherwise

any observations in any of aforesaid decisions contrary to our decision

cannot hold the field.  Interpretation of provisions cannot be so wide

so as to open it to be misused, it has to be subject to object of the Act

as explained above.   

43. Coming to submission that vires of Section 62 has not been

questioned.  There is no doubt about it that the challenge to the vires

of section 62 has not  been made.  However, the question is  that  of

interpretation and not that of vires of the provisions which has been

considered by us. There will be no violence to section 62 of Copyright

Act and section 134 of Trade Marks Act by the interpretation adopted

by us and the right of the plaintiff which has been conferred under the

provisions,  also  remains  intact.  There  is  no  question  of  giving

disadvantage to the plaintiff vis-a-vis the defendant but both will stand

to gain by proper interpretation.   

44. We also find the submission to be futile that the law as to the

otherwise on the basis of aforesaid decisions, has prevailed for a long

time  as  such  there  should  not  be  any  interference.  Firstly,  the

judgments are of recent origin. Even otherwise, we have considered

each and every decision threadbare which has been referred to us.  It

cannot be said that the precise question involved in the cases before us

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was involved in the aforesaid decisions or came up for consideration.

In  Dhodha House (supra) also, the question posed for consideration

was different and the observations made therein are not supporting the

cause raised on behalf  of the appellants.  We are not  taking a view

contrary to any of the said decisions of this Court. Thus, there is no

need to refer the case to a larger Bench.

45. It was also submitted that as the bulk of litigation of such a

nature  is  filed  at  Delhi  and  lawyers  available  at  Delhi  are  having

expertise in the matter, as such it would be convenient  to the parties

to contest the suit at Delhi. Such aspects are irrelevant for deciding the

territorial jurisdiction. It is not the convenience of the lawyers or their

expertise  which  makes  out  the  territorial  jurisdiction.  Thus,  the

submission is unhesitatingly rejected.

46. It  was  also  submitted  that  the  suit  may  be  ordered  to  be

transferred  to  Delhi.  We  cannot  order  transfer  of  suit  in  these

proceedings. In case parties so desire, they are free to file appropriate

application but  the suit  is  required  to  be  presented  in  the court  of

competent jurisdiction only thereafter the question of transfer would

be germane.       

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47. In our opinion, the provisions of section 62 of the Copyright

Act and section 134 of the Trade Marks Act have to be interpreted in

the purposive manner. No doubt about it that a suit can be filed by the

plaintiff at  a place where he is residing or  carrying on business or

personally works for gain. He need not travel to file a suit to a place

where defendant is residing or cause of action wholly or in part arises.

However, if the plaintiff is residing or carrying on business etc. at a

place where cause of action, wholly or in part, has also arisen, he has

to file a suit at that place, as discussed above. Thus, for the aforesaid

reasons  mentioned  by  us  in  the  judgment,  we  are  not  inclined  to

interfere with the orders passed by the High Court. Appeals are hereby

dismissed.   No costs.                

..........................................J. (Jagdish Singh Khehar)

New Delhi;            ........................................J. July 01, 2015.            (Arun Mishra)

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