MESSRS NIGAR PICTURES, KARACHI Versus MESSRS UNITED BROTHERS, LAHORE

By a written agreement dated the 13th February 1962, between the plaintiff and the first defendant (hereafter called the said agreement) the first defendant had under taken to produce three films between 31st March 1963 and 31st March 1965, and the plaintiff was to be the sole distributor of these films for Sind, Baluchistan and Karachi. The first defendant has produced only one film and, according to the plaintiff, in breach of the said agreement, it has sold this film to the 5th defendant, who in conspiracy with all tree defendants has started exhibiting it, therefore the plaintiff has filed this suit in which it seeks inter alia specific performance of the said agreement, a permanent injunction restraining all the defendants and specially defendant No. 5 from committing breach of the said agreement and damages in the sum of rupees two lakhs. The defendants have filed written statements in which they have denied the allegations made against them and they have further contended that the suit is barred both by Order 11, rule 2, C. P. C. and by section 10, C. P. C.; therefore, after issues had been settled by the Court, they fil .d an application that the issues in which these legal objections were raised should be heard as preliminary legal issues under Order XIV, rule 2, C. P. C. As this application was allowed, the case has come up for hearing before me for arguments on these two preliminary legal issues.

2. According to the plaintiff, the facts material to these legal issues are as follows: The plaintiff is a registered firm. The first defendant and the 5th defendant are also firms, and defendants Nos. 2 and 3 are partners of defendant No. 1 while defendants Nos. 6 and 7 are partners of defendant No. 5. On 13th February 1962, as I have pointed out the plaintiff had entered into the said agreement by which the first defendant through its partners was to produce three films and the plaintiff had the sole distribution rights of these films for Sind, Baluchistan and Karachi. The plaintiff had to pay to the first defendant a sum of Rs. 11 lakh as an advance or guarantee for the production of these films, and this payment was to be matte in the manner specified in the said agreement. The plaintiff had paid Rs. 20,000 at the time of the signing of the said agreement and had thereafter paid Rs. 50,000. However, disputes began very soon between the parties. By a letter of the first defendant's Advocate dated the 14th November 1963, the first defendant claimed to forfeit the sum of Rs. 20,000 paid to it by the plaintiff and to rescind the said agreement. The plaintiff did not accept the first defendant's claim to rescind the said agreement and correspondence followed between the parties which is not relevant to the issues under consideration. Mean while, the first defendant had produced the first film under the said agreement which was to be known as Gehra Daag. But subsequently its name was changed to Shohar. I shall refer to this film as the said film, and in December 1963, the plaintiff discovered from an advertisement in the Pakistan Times of 15th December 1963, that the said film was being released through defendant No. 5 and that defendant No. 4 claimed to be its producer. Thereupon the plaintiff published advertisements in the newspapers in which it announced that it had acquired exclusive distribution rights of the said film under the said agreement. The plaintiff had also sent a legal notice dated the 18th February 1964, to the 5th defendant warning the said defendant of its rights, and an exchange of legal notices between the plaintiff and the defendants followed. But as the plaintiff could not obtain any redress from the defendants, on 13th April 1964, it filed a suit against the defendants being Suit No. 95 of 1964 in the Court of the First Civil Judge, First Class at Karachi.

3. On the basis of the facts mentioned above the plaintiff claimed in this suit that the defendants had conspired to commit breach of the said agreement, that compensation would not be an adequate remedy for the said breach, therefore it prayed for speci fic performance of the said agreement. It also sought a declaration that the said agreement was subsisting, and binding on all the defendants, that in view of the said agreement it was the sole distributor of the said film for Sind, Baluchistan and Karachi and that defendants Nos. 5, 6 and 7 could not claim any rights of distribution or exhibition for the said film in Sind, Baluchistan and Karachi. It sought other declaratory relief which is not relevant to the issues under discussion. It further sought a permanent injunction restraining all the defendants and in particular defendants Nos. 5, 6 and 7 from interfering with its right to exhibit and distribute the said film in Sind, Baluchistan and Karachi. Finally it prayed that it should be awarded "adequate compensation . . . . . as assessed and determined by this learned Court for the breach of the contract by the defendants in addition to the aforesaid reliefs". It had also filed with this suit an injunction application to restrain the defendants from exhibiting the said film pending the hearing of the suit. This application was opposed by the defendants, who had also filed an application under Order VII, rule 11, C. P. C. for the dismissal of the suit, and other applications which are not relevant to this suit. The injunction application was disposed of by the learned Judge by an order dated the 7th May 1964 by which he permitted the defendants to exhibit the said film but they were restrained from "receiving or recovering either directly or indirectly their respective shares from any of the exhibitors of the said picture in Karachi, Sind and Baluchistan". The defendants were further directed to deposit the amounts received from their agents in Court. The application of the defendants under Order VII. rule 11, C. P. C. was heard in due course, and by his order dated the 310 August 1964, the learned Civil Judge held that as the amount involved in the suit, to which I shall refer as the first suit, far exceeded Rs. 25, 000, it was beyond the pecuniary jurisdiction of the Court, therefore he ordered the plaint to be returned for presentation to this Court under Order VII, rule 10, C. P. C. The plaintiff filed an appeal against this order, but as the appeal was dismissed, the order of the learned Civil Judge directing the plaint to be presented in this Court under Order VII, rule 10, C. P. C. has become final.

4. The plaintiff did not comply with this order of the learned Civil Judge but instead on 14th October 1964, it filed this suit in this Court impleading all the parties which were defendants in the first suit. The plaint in this suit is much longer than the plaint in the first suit both because it refers to the proceedings in the lower Court and also because of changes in the body of the plaint. However, Mr. Aziz Munshi, learned counsel for the plaintiff, submitted that the changes in the plaint in the present suit were not material except for one change which was a major change. According to learned counsel, the exhibition of the said film had commenced after the plaintiff had filed the first suit in the lower Court, therefore this had created a fresh cause of action in the plaintiff's favour, which entitled it to damages, and the material change in the plaint in this suit was that in addition to the other reliefs sought, which were the same as the reliefs sought in the first suit, the plaintiff had also claimed in this suit damages in the sum of rupees two lakhs.

5. It is also material to observe here that shortly before the filing of the first suit by the plaintiff, the 4th defendant (now deceased) had filed a suit in the Court of the Senior Civil Judge, Lahore against the first defendant and one Mr. Mukhtar Ahmad. The said Mr. Mukhtar Ahmad was described in the heading of the plaint in this suit (to which I shall refer as the Lahore suit) as the proprietor of Nigar Pictures, Bunder Road, Karachi which in fact is the plaintiff's name and address. The prayer in the Lahore suit is for a declaration that the 4th defendant (now deceased) was the sole producer of the said film, that Mr. Mukhtar Ahmed did not have any rights of distribution with regard to this film and for a permanent injunction restraining him from claiming any rights of distribution with regard to this film. Learned counsel for the defendants stated from the Bar that, as the 4th defendant was dead, the suit was being prosecuted by his legal heirs, but none of the learned counsel appeared to know what stage the suit had reached except that it was still pending before the learned Civil Judge.

6. As I have observed, the defendants have filed written statements in which they are contesting the suit on merits. But in view of the first suit and the Lahore suit they have also pleaded in their written statements that the present suit is barred inter alia by Order 11, rule 2, C. P. C. and by section 10, C. P. C. The precise issues framed on the basis of the legal objections advanced by the defendants, which have been heard by me as preliminary issues, are:

(1) Is the suit not barred by section 42 of the Specific Relief Act and Order II, rule 2, C. P. C. particularly as regards the Claim for damages?

(2) Is the suit barred by section 10 C. P. C ?

I shall now consider these issues‑

7. Issue No. 1.‑Mr. Aziz Munshi, learned counsel for the plaintiff, submitted that the cause of action in the present suit, was different from that in the first suit, therefore the plaintiff was not precluded from filing this suit by the order of the learned Civil Judge directing it to present the plaint in the first suit in this Court, and because the cause of action was different, the suit was not hit by Order II, rule 2, C. P. C. either. On the other hand, Mr. Sadiq, learned counsel for the defendants, submitted that the suit was barred not only by Order II, rule 2, C. P. C. but by the provisions of the Specific Relief Act. However with regard to the first issue I have to observe here that the provisions on which Mr. Sadiq relied were sections 19 and 29 of the Specific Relief Act and not section 42.

8. The object of Order II, rule 2, C. P. C. is to prevent multiplicity of proceedings and it provides that every suit shall include the whole of the claim to which a plaintiff is entitled in respect of the same cause of action. The plaintiff cannot split up his cause of action and bring separate suits in respect of each part of any cause of action, therefore if for instance he omits to sue in respect of or intentionally relinquishes any portion of his claim in order to bring the suit within the jurisdiction of any Court without the leave of that Court he is prevented from suing in respect of the portion so omitted or relinquished. Mr. Munshi had therefore to show that the cause of action in the present suit was different from that in the first suit. As the first suit had been filed before the release of the said film for public exhibition, whilst the present suit has been filed after its release for public exhibition, learned counsel submitted that the cause of action in the first suit was only based on the repudiation of the said agreement by the defendants and on the illegal sale of the said film to the 5th defendant, whilst the cause of action in the present suit was also based on the release of the said film for exhibition in Karachi. According to learned counsel, the. release of the said film constituted the fresh cause of action which entitled the plaintiff to file a fresh suit. In support of this submission he referred me to a judgment of the Calcutta High Court in Patti Kumar! Bibi v. Nirmal Kumar (A I R 1948 Cal. 97). and after I had reserved the case for judgment, on 17th December 1959, he submitted another list of "authorities" on the meaning of the words "cause of action". I have examined all the judgments on which learned counsel relied, but none of them refer to the precise point for determination in this suit, namely, whether a plaintiff who complains of breach of contract can file separate suits for specific performance of that contract and for damages for breach of that contract. At the highest, the judgments cited support the plaintiff's case only by way of an analogy but. for the reasons which I shall presently give, I have come to the conclusion that the suit is barred by section 29 of the Specific Relief Act, 1877, therefore it is not necessary to decide learned counsel's argument that the cause of action in the present suit was different from that in the first suit, and I shall now turn to section 29 of the Specific Relief Act.

9. This section states :‑

"The dismissal of a suit for specific performance of a contract or part thereof shall bar the plaintiff's right to sue for compensation for the breach of such contract or part, as the case may be."

On a plain reading of this section a plaintiff cannot file separate suits for specific performance and for damages for breach o contract when his claims for these reliefs arise out of the same contract, therefore in the instant case as the plaintiff's claim for specific performance and for damages both arise out of the said agreement, even if the present suit is not barred by Order II, rule 2, C. P. C., it is clearly barred by section 29 of the Specific Relief Act.

10. Mr. Munshi then submitted that, as the first suit was filed before the release of the said film for public exhibition the plaintiff could not have claimed damages in it, therefore it was entitled to file a fresh suit for damages. In the first place, the argument is not even factually correct because the plaintiff has expressly prayed for damages in para. 25 (iv) of the plaint in the first suit. Secondly, even if the plaintiff was not able to claim damages in the first suit when it was filed, on the footing that a fresh cause of action had accrued in its favour on the release of the said film, it was entitled to amend its plaint and claim damages. It is also relevant to observe here that section 19 of the Specific Relief Act confers express power on the Court to award damages either in addition to or in substitution of specific performance whenever the Court considers the award of damages to be just; and it is settled law that damages for breach of contract can be awarded in a suit for specific performance even though the plaintiff has not claimed damages‑‑See Callianji v. Narsi (I L R 19 Bom. 764), Arya Pradeshak Pritinidhi Sabha v. Lahore Mal (I L R 5 Lah. 509) and S'zushilendra v. Kallash (A I R 1945 All. 395). If a plaintiff can thus obtain damages without even seeking such relief in its plaint it is obvious that the plaintiff could easily have obtained damages for breach of contract in the first suit by amending its plaint after the release of the said film for exhibition, provided the claim was within the Court's jurisdiction.

11. Mr. Munshi then submitted that the plaintiff was entitled to file the present suit because the damages claimed by the plaintiff were rupees two lakhs, while the jurisdiction of the District Court, in which the first suit was filed, was limited to Rs: 25,000 only. It is true that the plaintiff's claim for damages was beyond the jurisdiction Court in which the first suit was filed, but this did not entitle it to file a separate suit for damages. The plaintiff had other remedies to prosecute its claim for damages even if it was beyond the jurisdiction of the Court of the Civil Judge and it has not explained its failure so to do, therefore to accept learned counsel's argument would be to read into section 29 a qualification which is not only not warranted by the language of the section but would defeat the very object of the section, which is to avoid multiplicity of proceedings. However, learned counsel submitted that his argument was supported by a Division Bench judgment of the Bombay High Court in Keshavlal Sakhtdas Sanghani v. Amarchand Somchand (35 B L R 630). The facts of that case were that the plaintiff was a minor and during his minority his mother had been appointed his guardian by the High Court of Bombay. As his guardian she had sold some immovable property owned by him, which was situated outside Bombay, in Thana, to the second defendant. After her death, the plaintiff's uncle was appointed his guardian and he filed a suit in the Original Side of the Bombay High Court against the second defendant for setting aside the sale of the plaintiffs' property to the second defendant. After this suit was decreed, as the second defendant had leased out the property to the first defend ant, he filed another suit for trespass against both the defendants in the Thana Court within whose jurisdiction the property in dispute was situated. The defendants contended that the suit was barred by Order II, rule 2, C. P. C. on account of the first suit. The Bombay High Court held that it was not barred by Order II, rule 2, C. P. C. because the cause of action in the two suits was different and because the plaintiff could not have sued in the first suit for possession of property situated in Thana, as Thana was beyond the jurisdiction of the Original Side of the Bombay High Court in which the first suit had been filed. In reference to this second ground Patkar, A. C. J. observed at page 634 "the property being outside the jurisdiction of the Original Side of the High Court, it should not have granted the relief for possession". According to Mr. Munshi, these brief observations support his argument that the plaintiff was entitled to file a second suit for damages because the amount claimed by it for damages was beyond the jurisdiction of the Court in which it had filed the first suit. But the judgment cited turned only on the construction of Order II, rule 2, C. P. C., and as I have pointed out, this rule is attracted when a plaintiff omits to sue for relief which he could have claimed in the earlier suit filed by him. But the provisions of section 29 of the Specific Relief Act are different from this rule. Unlike this rule, which penalizes an omission on the plaintiff's part, section 29 totally debars plaintiff from filing a second suit for damages when he has filed c a suit for specific performance, therefore the provisions of this section go much farther in prohibiting multiplicity of proceedings than Order II, rule 2, C. P. C., and the judgment cited is of no relevance to learned counsel's argument.

12. Mr. Munshi then submitted that such a construction of section 29 would create hardship, but the Court has to interpret the section as it stands. Although the Legislature was aware of the existence of Courts of limited jurisdiction in the Sub -Continent the section does not contain any exception in favour of a plaintiff who chooses to file a suit for specific performance in a Court which is not competent to grant his claim for damages, therefore to accept learned counsel's argument would be to read into the section a qualification which is not warranted by the plain language of the section. Further, the Civil Procedure Code contains ample provision for relief to a plaintiff who finds that the Court in which he has filet a suit for specific performance is not competent to entertain his claim for damages. The plaintiff's difficulties, if any, are therefore self‑induced, and I see no merit in learned counsel's argument.

13. Finally, learned counsel, who has argued a difficult case with ability, submitted that the plaintiff's claim for specific performance and for damages were alternative reliefs which could not have been granted in the same suit therefore it was entitled to file separate suits for specific performance and for damages. In support of this argument learned counsel referred me to a Full Bench judgment of the Lahore High Court reported in Parmeshri Das v. Fakeria and others (A I R 1920 Lah. 1) and a judgment of the Bombay High Court in Shripad Gopalkrishna Chandavarkar v. Sidram Satappa Dodamani and others (A I R 1951 Born. 167). Both these judgments relate to suits filed by mortgagors against mortagagees and turn on the construction of mortgage deeds. In the Lahore judgment the mortgage deed contained a stipulation that if the mortgagor failed to pay the annual interest, the mortgagee was entitled either to file a suit for the recovery of the interest due or to file a suit for the possession of the mortgaged property. As the mortgagor committed default in the payment of interest, the mortgagee filed a money suit and obtained a decree against him for the interest then due. As the mortgagor again committed default, the mortgagee filed a second suit, but this time for the recovery of the mortgaged property. The mortgagee contended in his defence that the second suit was barred by Order II, rule 2, C. P. C. in repelling this contention, the learned Judges of the Full Bench observed at page 3

"As we read the document (the mortgage deed) we think that there can be little doubt that the mortgagee could, when he brought the earlier suit, have sued either for interest or for possession, but was not entitled to include in the same suit both the claims. And if, under the terms of the instrument, which regulates the jural relations of the parties, he could not have claimed both the reliefs at one and the same time, then it would be futile to contend that he omitted to sue in respect of or intentionally relinquished, any portion of the claim which he was then entitled to make."

Thus the judgment turned solely on the interpretation of Order 11, rule 2, C. P. C. and was based on the finding that the mortgagee was precluded by the terms of the mortgage deed from suing for possession and for interest at the same time. This judgment was followed by a Division Bench of the Bombay High Court in Shripad v. Sidram. There the facts were that in the event of default in any payment by the mortgagor the mortgagee was given two remedies either to file a suit for the recovery of his dues or, as in the Lahore case, to file a suit for the possession of the mortgaged property. As the mortgagor committed default, the mortgagee filed a money suit which was dismissed for default. He then filed a suit for possession, and the question before the Bombay High Court was whether this suit for possession was barred under Order II, rule 2, C. P. C. in view of the first suit. The Bombay High Court held that under the mortgage deed the mortgagee could either file a money suit or sue for possession therefore it followed the Lahore judgment and held that the mortgagee's second suit was not barred by his first suit. Thus this case also turns on the interpretation of Order II, rule 2, C. P. C. and on the finding that the plaintiff was prevented by the contract under which he claimed from combining in one suit the reliefs claimed by him in the two suits. But in the instant case the rights of the plaintiff are governed by the provisions of the Specific Relief Act. Contrary to the terms of the mortgage deeds in the judgment cited, not only does section 29 of the Specific Relief Act prohibit the plaintiff from filing separate suits for specific performance and for damages, but section 19 of the said Act further prescribes that "any person suing for the specific performance of a contract may also ask for compensation for its breach, either in addition to, or in substitution for, such performance". It also empowers the Court to grant damages in lieu of or in addition to decree for specific performance. In view of the express provisions of section 19 learned counsel's argument that the plaintiff could not have sued both for specific performance and for damages in the first suit is totally devoid of merit.

No other argument was advanced on this issue, and I hold that the suit is barred under section 29 of the Specific Relief Act.

14. Issue No. 2.‑According to Mr. Sadiq, the suit is barred under section 10 of the Civil Procedure Code by the Lahore suit. Section 10 reads as follows :‑

"10. No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Pakistan having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Pakistan established or continued by the Central Government and having like jurisdiction, of before the Supreme Court."

Explanation.‑The pendency of a suit in a foreign Court does not preclude the Courts in Pakistan from trying a suit founded on the same cause of action."

Mr. Sadiq and Mr. Desa submitted that the suit was barred on account of the Lahore suit. The suit is obviously not barred by the Lahore suit but, as the Lahore suit was filed before the present suit, the only point for determination is whether this suit should be stayed until the Lahore suit is decided. In order to obtain a stay of further proceedings in the suit, the defendants t have to show that the questions in issue and the parties in the two suits are the same. Mr. Aziz Munshi therefore submitted that the cause of action in the two suits was different and that the parties were also different because the Lahore suit was filed against a person by the name of Mr. Mukhtar Ahmed, whilst no such person is impleaded in the present suit. Learned counsel's submissions are correct. In the first place, the cause of action in the present suit is based on the said agreement. Assuming for the sake of argument that the plaintiff in the present suit is to be treated as claiming through the defendant Mukhtar Ahmed in the Lahore suit, the only averment against that defendant in the Lahore suit is that he was illegally claiming distribution rights for the said film. The plaintiff in the Lahore suit has deliberately avoided reference to the said agreement. But the consequence of this is that the cause of action and specially the evidence in the two suits would be very different, therefore the defendants are not entitled to stay the suit under section 10 of the C. P. C.

14. In the result, in view of my finding on the first issue, the suit is dismissed. But as the points of law involved are difficult and not free from doubt I make no order as to costs.

A. E. Suit dismissed.