Full Judgment
S. Jagadeesan, J.
1. The appeals arise out of common order of the learnedsingle Judge dated 10.1.2001 in Application Nos.855, 856, 4371to 4373 and 4631 of 2000 in C.S.685 of 2000.
2. The appeals are taken up for final disposaljointly with the consent of the counsel appearing for therespective parties. The appellant filed the said suit C.S.685of 2000 seeking the following reliefs:
'(a) declaring that the resolution dated 27.6.2000 passed bythe first defendant bank, holding that the non disclosure ofinterest by the plaintiff at the time when the proposals ofthe third defendant were discussed at the Board meeting of thefirst defendant Bank would be violation of the provisions inSection 299 of the Companies Act, causing automatic vacationof office of the Director of the first defendant Bank, as nulland void and unenforceable, illegal, arbitrary withoutjurisdiction and violating of the principles of naturaljustice and equity, and
(b) consequently for mandatory injunction directing the firstdefendant bank to restore the office of the Directors of thefirst defendant Bank to the plaintiff
(c) declaring that the opinion dated 24.6.2000 and 27.6.2000given by the second defendant to the plaintiff is maliciouswithout any basis, arbitrary, made in violation of theprinciples of natural justice and equity and defenately. Byway of permanent injunction restraining the first defendantBank from interfering with functioning of the plaintiff as theBoard of Director of the first defendant Bank, till thecompletion of his full term of office.
(e) Directing the defendants 1 and 2 jointly and severally topay the plaintiff, a sum of Rs.10,00,000/- as a damage andcompensation.
(f) By directing the defendants 1 and 2 to pay the plaintiffthe costs of the suit and
(g) to grant such other relief or reliefs as this HonourableCourt may deem fit and proper in the circumstances of the caseand thus render justice.
3. It is unnecessary to extract elaborately the pleadings ofthe parties, since the question involved for the decision ofthis court falls in a narrow compass. For the sake ofconvenience the parties are arrayed with their rank in thesuit. The plaintiff was removed from the directorship of thefirst defendant bank by resolution dated 27.6.2000. The suitwas laid for declaration that the said resolution is null andvoid and unenforceable and for consequential reliefs.Originally he filed a suit in O.S.224 of 2000 on the file ofthe District Munsif, Tuticorin for a declaration that he iscontinuing as the Director of the defendant bank till theannual general meeting of the defendant bank. In the saidsuit he impleaded the bank alone as defendant, which is thefirst defendant in the present suit. The said suit waswithdrawn with liberty to file a fresh suit on the same causeof action on the ground that the plaintiff wants to impleadthe Company Secretary as a party in order to bring out realfacts happened in the Board meeting of the first defendantbank. Having withdrawn the said suit, the plaintiff filed thepresent suit on 31.8.2000 on the file of this court byimpleading the defendants 2 to 4. However, the plaintiff didnot implead the Company Secretary as stated in his affidavitfiled to withdraw the suit before the Principal DistrictMunsif, Tuticorin.
4. In the plaint filed in the present suit, paragraph 106deals with the cause of action. In the said paragraph, it isstated that the cause of action arose at Madras, where theSolicitors Firm having their legal profession on the date onwhich they gave the opinion to the first defendant. Virtuallythe said paragraph deals with the opinion given by the seconddefendant, the Solicitor. In fact the suit was laid afterobtaining the leave of the court in Application No.35 58 of2000.
5. The second defendant herein filed Application Nos.4371 to4 373 of 2000 to strike out their name from the plaint; tostrike out the pleadings which are unnecessary, scandalous,frivolous and vexatious which may tend to prejudice the imageand reputation of the second defendant as contained inparagraphs 72, 77, 78, 88, 89, 90, 93, 94, 100 and 101 of theplaint; and to reject the plaint as there is no cause ofaction arising at Madras for this court to try the suitrespectively.
6. Application No.4631 of 2000 was filed by the firstdefendant bank to revoke the leave granted by this courtby order dated 7.9.20 00 in Application No.3558 of 2000.
7. Application Nos.855 and 856 of 2000 were filed by theplaintiff seeking temporary injunction restraining the firstdefendant bank from in any way filling up the post of Directorin the first defendant bank.
8. The learned single Judge by order in appeal allowed theapplications filed by the first and second defendants anddismissed the injunction applications filed by the plaintifffinding that there is no cause of action for the plaintiff tomaintain the suit and the second defendant cannot be sued onthe basis of the opinion given by them. Aggrieved by thesame, the present appeal has been filed by the plaintiff.
9. Mr.S. Subbiah, the learned counsel for the appellantvehemently contended that it is the duty of the court toconsider the averments made in the plaint as a whole for thegrant of leave for the plaintiff to maintain the suit. Inthis case, the first defendant bank passed a resolutionremoving the plaintiff from the directorship of the bank onthe basis of the opinion given by the second defendant. Thefirst relief sought for in the plaint relates to theresolution of the first defendant bank. The third reliefrelates to the opinion of the second defendant. When once thesecond defendant is having the office within the jurisdictionof this court, the suit is maintainable and the leave grantedcannot be revoked. Further the averments made against thesecond defendant is with regard to the opinion given by themto the first defendant. Hence it is open to the plaintiff tochallenge the value of the opinion given by the seconddefendant as the first defendant had acted upon the same whichultimately prejudice the right of the plaintiff fromcontinuing as the Director of the first defendant. If theplaintiff establishes the opinion given by the seconddefendant is illegal, it is open to the plaintiff to claimdamages on the principle that they mislead the firstdefendant, thereby causing damage to the reputation of theplaintiff. Hence it is a matter for evidence and at thisstage it is not open to the court to consider the merits ordemerits of such averments to non suit the plaintiff. He alsorelied upon some of the judgments of the Apex Court as well asthis court to contend that the plaint as a whole to be lookedinto to consider the question of the maintainability of thesuit. Since there is no dispute with regard to thatproposition, we are not referring those judgments to discussthe said principle.
10. Mr.R. Krishnamoorthy, the learned senior counselappearing on behalf of the first defendant contended that theplaintiff filed the suit O.S.224 of 2000 before the PrincipalDistrict Munsif, Tuticorin against the first defendant for theidentical relief. Having withdrawn the said suit with libertyto file a fresh suit on the ground that the Company Secretarywas not impleaded as a party to the proceeding and since he isa necessary party, liberty may be given to implead the saidCompany Secretary as a party, now it is not open to theplaintiff to file the suit before this court by impleadingtotally different persons as defendants. Hence the suit isliable to be dismissed as barred.
11. Mr.G. Subramaniam, the learned senior counsel appearingon behalf of the second defendant contended that the Solicitorwho offered the opinion to his client cannot be made a partyto the suit by a third person. It is a matter between theSolicitor and his client. It is always open to the client toact upon such opinion or not. In case if the client actedupon the opinion and if he feels that he suffered any damage,it is for the said client to proceed against the counsel orthe solicitor who gave opinion to his client. More over theopinion of the solicitor or the counsel cannot be the basis toclaim any damages, since the opinion is only the view of theconcerned solicitor or the counsel. Hence the suit againstthe second defendant cannot be maintained and the learnedsingle Judge has rightly considered the same and allowed theapplications and as such there is no illegality in the orderof the learned single Judge.
12. We carefully considered the above contentions of both thecounsel. The points arise for consideration in this appealare: (1) Whether the suit is maintainable on the basis of thecause of action mentioned in the plaint against the firstdefendant? (2) Whether the liberty obtained by the plaintiffwhile withdrawing the suit O.S.224 of 2000 on the file of theDistrict Munsif, Tuticorin would enable the plaintiff tomaintain this suit? (3) To what relief the parties areentitled to
13. The admitted facts are: Pursuant to the resolution ofthe first defendant bank dated 27.6.2000 the plaintiff ceasedto be the director of the first defendant bank. The suit waslaid challenging the said resolution. While doing so, thesecond defendant was impleaded as party to the proceeding onthe basis that the first defendant acted upon the opiniongiven by the second defendant pursuant to which the resolutionwas passed to the effect that the plaintiff ceased to be oneof the directors of the first defendant bank. The plaintifffiled O.S.224 of 2000 on the file of the District Munsif,Tuticorin against the first defendant herein alone praying fora declaration that he continues to be a director of thedefendant bank till the annual general meeting of thedefendant bank. The said suit was sought to be withdrawn byfiling an application with liberty to file a fresh suit on thesame cause of action.
14. The averments made in the said affidavit are as follows:'In the meanwhile during the pendency of suit I have gotcertain particulars to substantiate my case. I have toimplead the Company Secretary as a party in order to bring outthe real facts that happened in the Board Meetings. Becausehe is the person who recorded the minutes of the meetings.The records to substantiate my case is based on the recordingof Board Meetings. Hence I have to implead him also party..... Hence I am adviced to withdraw the present suit with thepermission to file a fresh suit on the same cause of action.'
15. On the basis of the above averments the said suit waspermitted to be withdrawn and thereafter the present suit wasfiled by the plaintiff before this court.
16. It may be pertinent to note that in the suit filed beforethe District Munsif, Tuticorin the first defendant bank alonewas the defendant. In the present suit, the defendants 2 to 4were impleaded as parties. Even though the present suit wasfiled for declaration to declare the resolution of the firstdefendant dated 27.6.2000 as null and void, the further reliefis sought for on the ground that the first defendant actedupon the opinion given by the second defendant as Solicitorand since the opinion of the second defendant being not inaccordance with law and mislead the first defendant andthereby the first defendant passed the impugned resolutionaffecting the rights of the plaintiff. Hence the plaintiff isentitled to claim damages against the first and seconddefendants and equally for the relief of declaration that theopinion given by the second defendant dated 24 .6.2000 and27.6.2000 is malicious. From the averments made in para 1 04of the plaint it is also clear that the present suit was filedon the basis of the liberty obtained by the plaintiff to filea fresh suit on the same cause of action by withdrawing thesuit O.S.224 of 200 0 on the file of the District Munsif,Tuticorin.
17. It may be pertinent to have a look at Order 23, Rule 1C.P.C which reads as follows: Withdrawal of suit orabandonment of part of claim. (1) At any time after theinstitution of a suit, the plaintiff may as against all or anyof the defendants abandon his suit or abandon a part of hisclaim. .... (2) .... (3) Where the court is satisfied, (a)that a suit must fail by reason of some formal defect, or(b)that there are sufficient grounds for allowing theplaintiff to institute a fresh suit for the subject matter ofa suit or part of a claim, it may, on such terms as it thinksfit, grant the plaintiff permission to withdraw from such suitor such part of the claim with liberty to institute a freshsuit in respect of the subject matter of such suit or suchpart of the claim (4) Where the plaintiff-(a) abandons anysuit or part of claim under sub rule (1) or (b) withdraws froma suit or part of a claim without the permission referred toin sub rule (3) he shall be liable for such costs as the courtmay award and shall be precluded from instituting any freshsuit in respect of such subject matter or such part of theclaim. (5) .... Sub rule (4) deals with the bar of thesecond suit in case if the earlier suit filed by the plaintiffwas withdrawn without any liberty to file a fresh suit. Subrule (3) deals with the jurisdiction of the court to grantpermission to the plaintiff to withdraw the suit or such partof the claim with liberty to institute a fresh suit in respectof the subject matter of such suit or such part of the claim.
18. Hence it is clear that the plaintiff having obtained theleave of the court at Tuticorin to withdraw the suit O.S.224of 2000 with liberty to file a fresh suit on the same cause ofaction and on the same subject matter,it is not open to theplaintiff to file the present suit with totally differentcause of action and different subject matter by impleadingother parties. The permission granted by the court atTuticorin is only in respect of the same subject matter. Inthe said suit, the subject matter is the resolution of thefirst defendant herein alone. It has nothing to do with theopinion given by the second defendant and the second defendantherein was not a party to the said proceeding.
19. When the appellant was permitted to file a fresh suit onthe same cause of action and on the same subject matter, wehave no hesitation to come to the conclusion that the presentsuit not being one on the same cause of action and on the samesubject matter, cannot be maintained. Consequently we answerthis issue against the plaintiff.
20. The next question arises for consideration is whether theplaintiff can maintain a suit against the second defendant andwhether the order of the learned single Judge striking out thesecond defendant from the proceedings is correct
21. The second defendant being a Solicitor they are entitledto give opinion in a given subject to their client. It is amatter between the Solicitor and their client. At times theclient may seek a second opinion from any other Solicitor orAdvocate. It is for the client to accept the opinion and toact or not to act on the basis of such opinion.
22. The plaint averments are to the effect that the opinionof the second defendant is arbitrary and malicious and thefirst defendant had acted upon such opinion and hence both arejointly liable to pay compensation to the plaintiff andfurther the relief sought for is for declaration that theopinion given by the second defendant is capricious. Asalready stated, it is a matter between the Solicitor and hisclient and if the client suffers any damage or loss due to theill advice or bad opinion of the Solicitor, it is for suchclient to proceed against their Solicitor. Even there, oneshould see that the opinion of the Solicitor is only a viewexpressed by them. The opinion may be sustained in a court oflaw or may be negatived. In such instance, it has to be seenwhether the opinion of the Solicitor is bonafide so far as hisclient is concerned and not in relation to any third party.If the plea of the appellant is sustained then it will amountto opening of the flood gates to file suits against theadvocates appearing for the other side on the basis that theother side acted upon the advice of his counsel, which advicecannot be sustained in law. Even on principle, the plaintiffwas not mislead by the solicitor of the first defendant. Ifthe first defendant had been mislead by their Solicitor andthereby the plaintiff is affected, it is open to him toproceed against the first defendant alone. In case if thefirst defendant's action is held to be illegal, then it is amatter between the first defendant and the plaintiff.
23. So far as action against the second defendant isconcerned, the plaintiff cannot be in the picture anywhere.Hence we are of the view that the learned single Judge hasrightly allowed the application filed by the second defendantfor striking out their name from the plaint.
24. The averments made in the plaint with regard to thesecond defendant also unwarranted so far as the plaintiff isconcerned. He has no business to make such averments inrespect of the opinion offered by a Solicitor to a thirdparty. When no cause of action arises for the plaintiff tomaintain the suit against the second defendant, then naturallythe suit is not maintainable in this court. Consequently theleave already granted has to be revoked. The learned singleJudge has rightly done the same.
25. So far as the appeal filed against the dismissal of theinjunction application is concerned, there is no need todiscuss the matter elaborately in view of our finding that thesuit itself is not maintainable before this court.
26. For the reasons stated above, we do not find any meritsin the appeals and accordingly the same are dismissed.However, there will be no order as to cost. Consequentlyinjunction application C.M.P.21606 of 2001 isclosed.