Bawleshwar Films Vs. Dinesh Singh - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - it could very well be argued that this clause did not oust the jurisdiction of the court in respect of litigation. it was the defendant's failure not to supply the print and in such a situation the aforesaid rules 3 and 9 had no application.a.s. tripathi, j.1. this appeal is filed against the order dated 5-10-19% passed by the viii th a.d.j., gwalior granting mandatory injunction to the defendant-appellant for delivering a print of cinema film 'shastra' for exhibiting in the cinema hall of plaintiff-respondent on payment of depositing of rs. 60,000/- by him.2. the undisputed facts on record are that there was an agreement entered into between the parties on 9-9-1994 for providing a print of cinema film 'shastra' to the plaintiff-respondent on certain conditions for exhibiting in delite theatre at gwalior. it was provided in the first column that the picture was to be screened simultaneously with other cinema halls of lashkar and morar. the conditions of the first part were that rs. 9,000/- were to be paid as rent for 28 regular shows, rs. 15,000/- were to be paid for signing of the agreement, and rs. 60,000/- were to be paid 15 days before the taking of the delivery of prints. it was further agreed that all publicity was to be done by the distributors. it is also not disputed that the defendant-appellant was the distributor and the plaintiff-respondent was the exhibitor.3. the claim of the plaintiff was that he had already paid the signing amount of rs. 15,000/-. the plaintiff is also ready to pay rs. 60,000/-for delivery of the print. the defendant was avoiding for its delivery. the defendant had delivered two prints of the same film to two talkies of morar and gwalior whereas the print was not given to the plaintiff-respondent when he was ready and willing to fulfil the conditions. this was an act harming the goodwill and reputation of the cinema hall of the plaintiff which amounted to irreparable loss. the defendant contested on the grounds that the gwalior court had no jurisdiction. it is also alleged by the defendant that the terms of the agreement had expired and the same could not be enforced. there was no irreparable loss to the plaintiff and no injunction could be granted. the only relief which is to be claimed was for the damages of the breach of the contract, if any.4. the trial court had found that the plaintiff had a prima facie case for enforcement of the agreement. there was irreparable loss to the plaintiff in not exhibiting the said cinema simultaneously in a competition with the other two cinema halls affecting the goodwill and reputation of the cinema hall run by the plaintiff. the trial court also held that the gwalior court had jurisdiction and therefore the injunction was granted for delivering one print for exhibiting in the cinema hall of the plaintiff on payment of rs. 60,000/- as per the agreement.5. after hearing the learned counsel for the parties, the first point arose for determination was in respect of the territorial jurisdiction of the gwalior court to entertain such a suit. learned counsel for the appellant raised this point on the basis of clause (8) of the second part of the agreement dated 9-9-1994. clause (8) which is in the category of other terms is quoted below:'8. this agreement is subject to the approval of our principals and subject to only indore jurisdiction.'on the basis of this clause, learned counsel for the appellant argued that even if the cause of action arose at gwalior, in view of this clause only indore court had jurisdiction to try any suit filed by either party. he placed reliance on the case of angile insulations v. davy ashmore india ltd., 1995(2) mpwn (sc) 195 and note (144). in this case, the apex court held that when there is unambiguous agreement for jurisdiction to vest in a particular court, such agreement is not hit by sections 23 and 28 of the contract act. when there is unambiguous conferring jurisdiction to a particular court, the other courts had no jurisdiction and such an agreement ousting jurisdiction of the normal court is neither unlawful nor void.6. the normal forum of jurisdiction is determined under section 20 of the code of civil procedure in respect of territorial jurisdiction either whether the defendants were residing or where the cause of action either wholly or in part arises. in that case, the agreement clause was in the following words :'the work order is issued subject to the jurisdiction of the high court situated in bangalore in the state of karnataka. any legal proceeding will therefore fall within the jurisdiction of the above court only.'7. in the case before the apex court, the agreement was unambiguous and very clear in respect of conferring jurisdiction only to the high court of karnataka at bangalore. but in the present case, the agreement clause is ambiguous in respect that it does not mention that the jurisdiction was to be conferred only to a particular court or a particular high court. the clause as quoted above is too vague in respect of conferring jurisdiction to a particular court. even the word 'court' is not mentioned in clause (8) of the agreement. this clause itself is in two parts. in first part, it was mentioned that this agreement is subject to the approval of our principles and then in second part it was mentioned also subject to only indore jurisdiction. therefore, in such a situation, when any clause which is too vague in nature could not be interpreted to oust the jurisdiction of the normal court. the clause if shown unambiguous, then even it could not be inferred that the clause was clear and was conferring jurisdiction to indore court. the first part was subject to approval of their principles who were at indore. the second part could be interpreted to be the same that any dispute to a place before the principles for approval or non-approval could be settled only at indore. it could very well be argued that this clause did not oust the jurisdiction of the court in respect of litigation. as such, the clause is being too vague in nature and when two views are possible the jurisdiction of the normal courts could not be ousted in such a situation giving any assumed interpretation to this clause. therefore, i find that the trial court was fully justified in holding that the gwalior court had jurisdiction in the matter. it is noteworthy that the agreement was entered into on 9-9-1994. rs. 15,000/- was already paid and the plaintiff was always ready and willing to pay rs. 60,000/- as advance before 15 days on delivery of print. the plaintiff had given notice, but the defendant could not deliver the print. on the other hand, they delivered two prints in other cinema halls and denied the opportunity of the plaintiff to exhibit one print in his own theatre. in this way, the trial court had rightly found that the plaintiff was denied an opportunity for exhibiting an important cinema film in the competition with the two other cinema halls of the same city whereby adversely affecting the goodwill and reputation of the plaintiff's theatre. such type of loss of goodwill and reputation could not be assessed in terms of damages and as such it amounted to irreparable loss to the plaintiff. in such a situation, the trial court was fully justified in directing the defendant to deliver one print for exhibiting the cinema film in the plaintiff's theatre.8. the attention of the court was also drawn to the rules 3 and 9 of the central circuit cine association rules, bhusawal, in which it was provided that any such agreement which comes to an end after one year, could be extended for another one year. learned counsel for the appellant argued that since two years have passed, the said agreement could not be enforced. rules quoted are not statutory in nature. they are quoted in clause (9) of the agreement but since they are not statutory, they could not bind the plaintiff to oust his justified claim which could be enforced under the law. the plaintiff has always been trying for supply of the print. it was the defendant's failure not to supply the print and in such a situation the aforesaid rules 3 and 9 had no application. prima facie, therefore, without recording any finding on merits, it is clear that the plaintiff had a case for injunction and the trial court had rightly granted the same.9. learned counsel for the appellant at this stage argued that sometime be allowed to him for supply of the print to the plaintiff on account of the balance of the amount to be paid as per the agreement.10. after considering the facts and circumstances of the case, it is reasonable that ten days more time be allowed to the appellant to comply with the orders passed by the trial court. it is therefore directed that the appellant shall supply one print to the respondent within ten days from today on payment of balance amount by the plaintiff. except the said modification in granting time to supply the print, this appeal has no force and is hereby dismissed