Times Publishing House Limited and Another vs Registrar of Newspapers for India and Others

Ajit J. Gunjal, J.—The Petitioners are questioning the two orders dated 15.05.2009 and 29.11.2009 issued by the Registrar of Newspapers for India, the first Respondent, copies of which are to be found at Annexures-P and Q and also for a writ of mandamus or a direction to Respondent not to verify, approve, authenticate or register the titles "Financial Times Facsimile" and/or "FT Weekend Facsimile".

When the matter is taken up, an application is moved by the Respondents seeking dismissal of the writ petition for want of territorial jurisdiction. The said application is seriously opposed by the Petitioners on the ground that the entire matter could be heard in its entirety instead of adjudicating on the application moved. Nevertheless, I have heard on the application filed by the Respondents to determine whether this Court has territorial jurisdiction to resolve the dispute inter se between the Petitioners and the Respondents.

To appreciate the query which is posed, the facts which are germane for deciding this question are required to be noted.

The proceedings would commence some time in the year 1993. The first Petitioner applied for the newspaper title "Financial Times" in English language in Bangalore. The first Petitioner was granted the newspaper title "Financial Times" by the Registrar of Newspapers for India (for short, ''RNI'') pursuant to registration No. 50386/90. The Times Publishing House (for short ''TPH'') started publishing the said newspaper in English from Bangalore which publication was stopped briefly and then restarted again in 1993. Respondent No. 6. Financial Times Ltd., UK filed a suit in O.S. No. 7087/93 against the TPH before City Civil Court at Bangalore on the ground that it has a registered trade mark. It appears, an ex parte order of temporary injunction was granted by the trial Court and the same was questioned by the Petitioners in CRP 3448-49/93. The TPH was also granted the second newspaper title "Financial Times" by the RNI pursuant to a registered No. 57252/93 and it started publishing the said newspaper in English from Delhi. Temporary injunction was granted in favour of Respondent No. 6 by the City Civil Court restraining the Petitioner from publishing the newspaper with the same title.

Suffice it to say that the matter came to up to this Court at the interlocutory stage in MFA 330/1994. Interim order of injunction granted by the City Civil Court was suspended pending disposal of the appeal. Suffice it to say the MFA was allowed and the order of injunction granted in favour of the Respondent No. 6 stood dissolved. It appears, aggrieved by the said order, Respondent No. 6 was before the Apex Court and the order of this Court was confirmed. It appears, an observation was made by this Court in MFA that the matter is required to be decided not with reference to the Trade Marks Act but with reference to the Press and Registration of Books Act, inasmuch as, it was observed that the registration of a newspaper under the Trade Marks Act merely protects the name of the newspaper which is granted by the Registrar of Newspapers subject to the availability on the basis of titles already registered by it. Thus, the trial Court was required to consider the case of the Petitioners vis-a-vis that of the Respondent with reference to the Press and Registration of Books Act (for short, ''the PRB Act'').

The learned trial Judge pursuant to his elaborate judgment dismissed the suit of the sixth Respondent as against which a Regular First Appeal is filed in RFA No. 193/2003. It is submitted at the Bar that the said appeal is still pending and there is no interim order. It appears, there were some proceedings before the High Court of Delhi, in respect of cancellation of the certificate of Registration of Trade Marks "Financial Times" granted in favour of the TPH. The said order was questioned by the Petitioners before the High Court of Delhi by way of a writ petition against the suo inotu order of the Assistant Registrar of Trade Marks. Incidentally, it is to be noticed that the Financial Times (UK) was not impleaded as a party. An ex parte stay order was granted in favour of the TPH for staying the suo inotu order. It appears, some proceedings are also initiated as against the TPH before the Intellectual Property Appellate Board. It is submitted as on today, the proceedings are still pending. In the meantime, Respondents 5 and 6 applied for permission to publish a facsimile of its UK publication in the month of May 2009.

A representation was sent by the TPH to the RNI requesting not to permit publication under the title with suffix and/or prefix or any other variant thereof to Financial Times. Apprehending that the applications of Respondents 5 and 6 are likely to be considered by the RNI a preventive suit was filed by the first Petitioner in CS (OS) No. 1083/2009 before the High Court of. Delhi seeking various reliefs of declaration and injunction. During this interregenura, the Additional Commissioner of Police (Licencing Branch) at New Delhi i.e., Respondent No. 3 exercising the authority of a Magistrate u/s 6 of the PRB Act wrote a letter to the first Respondent, copy of which is received by the first Petitioner in the first week of June 2009 that they had received two applications for title verification in relation to the title "Financial Times Facsimile" and "FT Weekend Facsimile". The abbreviation FT would stand for Financial Times. The claim of the Petitioner is that the Financial Times is already registered is favour of the first Petitioner. The claim of the Petitioner is that "Financial Times Facsimile" and "FT Weekend Facsimile" cannot be permitted to be published in India. An application for injunction was also moved along with the plaint before the High Court of Delhi and it appears, the matter was deferred and no orders were passed on the application, inasmuch as notice was ordered on 15.06.2009. The first Respondent approved the title of "Financial Times Facsimile" and "FT Weekend Facsimile" us favour of Respondent No. 5. A copy of the letter dated 30.06.2009 was received by the Petitioners on 03.07.2009. The specific contention of the Petitioner is that the Additional Commissioner of Police had filed his written statement wherein he had taken a specific stand that the title "Financial Times Facsimile" and "FT Weekend Facsimile" are similar to the title authenticated in favour of the first Petitioner. Since pursuant to the impugned communications, the titles were given in favour of Respondents 5 and 6 the Petitioner sought leave of the High Court to withdraw the suit with liberty to file fresh proceedings and the first Petitioner was permitted to withdraw the said suit with liberty to initiate fresh proceedings. In these circumstances, the Petitioners and the Respondents are before this Court.

The facts narrated are not disputed either by the Petitioners or by the Respondents. The core question according to the Respondent is as to where the situs of the litigation would lie, whether it is in Delhi or in Bangalore and whether this Court has jurisdiction.

Mr. Ajay Kumar Gupta, learned senior counsel appearing for Respondents 5 and 6 in furtherance of his preliminary objection regarding maintainability would press into service decisions of the Apex Court commencing from State of Rajasthan and Others Vs. Swaika Properties and Another, culminating in Alchemist Limited and Another Vs. State Bank of Sikkim and Others, He would contend that Respondents 5 and 6 have objected to the jurisdiction of this Court to entertain the present writ petition in the first instance, inasmuch as this Court is required to decide the question of jurisdiction first and there after hear the matter on merits. According to him, the present writ petition is vexations arid abuse of process of the Court and the petition has been filed with an ulterior motive for collateral purpose. He would contend that the filing of the writ petition before this Court would amount to forum shopping. He would contend that the Respondents 5 and 6 have their registered office at New Delhi. The impugned order is passed by Respondent No. 1 whose office is also at New Delhi so also the registered office of the Petitioner. Hence he submits that no part of the cause of action would arise in Karnataka so as to enable the Petitioners in invoking the writ, jurisdiction of this Court under Article 226 of the Constitution of India. He would submit that the Petitioners themselves, at first blush, were of the view that only the Courts at Delhi have jurisdiction to decide the vexed question between the Petitioners and Respondents. He submits that indeed Respondents 5 and B had taken a contention before the High Court of Delhi in the suit filed by the Petitioners to the effect that the Courts at Delhi had no jurisdiction to decide the question as to the grant of relief which was sought for by the Petitioners. But however, he would hasten to add that they had stated that the High Court at Delhi may have territorial jurisdiction to decide the vexed question between the Petitioners and the Respondents. He would submit that a reading of Article 226(2) of the Constitution of India read with Section 20of Code of Civil Procedure, makes it abundantly clear that no part of the cause of action has arisen in Karnataka. The fact, that the Petitioners have their office at Bangalore and the suits were filed by the Respondent No. 6 in Bangalore, does not clothe the Petitioners with a right in filing the writ petition in this Court with the assumption that this Court has jurisdiction.

Mr. Udaya Holla, learned senior counsel appearing for the Petitioner would submit that indeed this Court has jurisdiction to decide the subject matter of the writ petition. He submits that it is not necessary for the Petitioner to travel to Delhi and file petitions there. He submits that the Branch office of the Petitioner is at Bangalore. He also submits dial the registration of newspapers is in Bangalore and the publication of the newspapers is also from Bangalore. Hence, in the circumstances, the Courts at Bangalore have jurisdiction.

He submits that Respondent No. 6 had filed a suit in the City Civil Court at Bangalore. Thus, Respondent No. 6 was of the view that it is only the Courts in Karnataka, more so, at Bangalore have jurisdiction to decide the question regarding the trade marks. He further submits that at least a part of the cause of action has arisen in Karnataka. Hence, writ petition is maintainable. He would also press into service decisions rendered by this Court in MFA and also the observation made therein.

Incidentally, both the senior counsel referred to certain provisions of the PRB Act, more so with reference to Sections 5 and 6 read with Rule 7 of the Rules. With reference to Section 5 both of them would contend that no newspaper shall be published in India except in conformity with the rules made therein and under Sub-section (2), the printer and the publisher of every such newspaper shall appear in person or by accent authorised in this behalf in accordance, with rules made u/s 20of the Act. Both the senior counsel would make a reference to Section 6 which would refer to authentication of declaration and Rule 7 which would relate to the maintenance of the register- Sub-Rule 3 of Rule 7 was also pressed into service wherein the Press Registrar shall, in respect of every newspaper, cause relevant entries to be made in the register and before making any entry, he is required to make such verification of the statement furnished to him by the newspaper as he may consider necessary.

Indeed, it is not necessary for this Court to refer to certain other provisions pressed into service by both the senior counsel. The moot question which falls for consideration in this proceeding is whether this Court has territorial jurisdiction to decide the issue on hand and further, any part of she cause of action has arisen in Karnataka, more particularly, in Bangalore.

To appreciate the contention of the learned senior counsel for the Respondents, it is necessary to look into Article 226(2) of the Constitution of India. Article 226(2) of the Constitution of India reads thus:

The High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the directions, order or writ is issued is not within the said territories.

The expression "cause of action" means the bundle of facts, which the Petitioner must prove, if traversed, entitles him to a judgment in his favour by the court. Hence, while determining the objections to lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. Hence the question of territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial.

The Apex Court in the case of State of Rajasthan and Others Vs. Swaika Properties and Another, has observed with reference to territorial jurisdiction thus:

... We are satisfied that the case of action neither wholly nor in part arose within the territorial limits of the Calcutta High. Court and therefore the learned Single Judge had no jurisdiction to issue a rule nisi on the petition filed by the Respondents under Article 226of the Constitution or to make the ad interim ex parte prohibitory order restraining the Appellants from taking any steps to take possession of the land acquired.

Indeed, the Apex Court in the ease of Oil and Natural Gas Commission Vs. Utpal Kumar Basu and Others, while dealing specifically with the scope of Article 226(2) of the Constitution of India in relation to territorial jurisdiction has observed in para 8 thus:

In the present case even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court. The advertisement itself mentioned that the tenders should he submitted to EIL at New Delhi; that those would be scrutinized at New Delhi and that a final decision whether or not to award the contract, to the tenderer would be taken at New Delhi. Of course the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because NICCO read the advertisement at Calcutta, submitted the offer from Calcutta, made representations from Calcutta and sent fax messages from Calcutta and received a reply thereto at. Calcutta would not constitute facts forming an integral part of the cause of action.

The Apex Court in the case of Kusum Ingots and Alloys Ltd. Vs. Union of India (UOI) and Another, has observed thus:

6 Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has however, been judicially interpreted inter alia to mean that every fact which would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the Defendant an immediate right to judgment, would be part of cause of action. Its important is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be shall he rejected summarily.

In the same decision, the Apex Court has further observed thus:

In order to confer jurisdiction on a High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the court to decide the dispute and that the entire or a part of it arose within its jurisdiction.

The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to go with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.

Passing of a legislation by itself in our opinion does not confer any such right to file a writ petition unless a cause of action arises therefore.

A distinction between a legislation and executive action should be borne in mind while determining the said question.

It is further observed thus:

Keeping in view the expressions used in Article 226(2) of the Constitution indisputedly even if a small fraction of cause of action accrues within the jurisdiction of the High Court, the High Court will have jurisdiction in the matter. However, even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not, be considered to be a determinative factor, compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.

(emphasis supplied)

The Apex Court in the case of Eastern Coalfields Ltd. and Others Vs. Kalyan Banerjee, on the question of cause of action has observed thus:

"Cause of action" for the purpose of Article 226(2) of the Constitution of India, for all intent and purport, must be assigned the same meaning as envisaged u/s 20(e) of the Code of Civil Procedure. It means a bundle of facts which are required to he proved. The entire bundle of facts pleaded, however, need not constitute a cause of action as what 18 necessary to be proved is material facts whereupon a writ petition can he allowed.

(emphasis supplied)

In the case of Om Prakash Srivastava Vs. Union of India (UOI) and Another, the Apex Court has observed thus:

The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every facts, which it would be necessary for the Plaintiff to prove, if traversed in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action".

In the case on hand, it is to be noticed that the entire cause of action arises within the jurisdiction of the Delhi territory. The fact that the Petitioner Company has branch office in the State of Karnataka, the same by itself would not confer jurisdiction upon this Court, particularly, that the Head Office had everything to do with the order passed by the first Respondent.

The Apex Court in the case of Alchemist Limited and Another Vs. State Bank of Sikkim and Others, has observed thus:

It may by stated that the expression "cause of action" has neither been defined in the Constitution nor in the Code of Civil Procedure, 1908. It may, however, be described as a bundle of essential facts necessary for the Plaintiff to prove before he can succeed. Failure to prove such facts would give the Defendant a right to judgment in his favour. Cause of action thus gives occasion for and forms the foundation of the suit.

The classic definition of the expression "cause of action" is found in Cooke V. Gill wherein Lord Bret! observed:

''cause of action'' means every fact which it would be necessary for the Plaintiff to prove, it traversed, in order to support his right to the judgment of the court.

For every fiction there has to be a cause of action. If there is no cause of action, the plaint or petition has to be dismissed."

In the same decision, it is observed:

From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the Appellant-Petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small faction of the cause, of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a "part of cause of action", nothing less than that.

Mr. Udaya Holla, learned senior counsel would also press into service Kusum Ingots and Alloys Ltd. Vs. Union of India (UOI) and Another, to buttress his contention that at least a part if not the whole, of the cause of action has arisen at Bangalore. Thus, this Court has jurisdiction to entertain the writ petition. He would also press into service the decision in the ease of Om Prakash Srivastava Vs. Union of India (UOI) and Another, to hold that the Petitioner is required to establish that a legal right claimed by him has prima facie been infringed or is threatened to be infringed by the Respondent within the territorial limits of the Court. Hence, it would be a part of cause of action, which would confer jurisdiction on this Court.

In fact, a perusal of I he decisions would disclose that both the counsel have pressed into service the same decisions to support their contention. Another contention of Mr. Udaya Holla, learned senior counsel is that the Petitioner being a Dominus Litus, inasmuch as he can initiate proceedings where at least a part of a cause of action has arisen.

It is to be noticed that the suits of the office of Respondent would be a relevant factor. In the case on hand, it is to be noticed that the Petitioners have their registered office at New Delhi. The impugned order emanates from New Delhi and that of the office of the Respondents 5 and 6 is also at New Delhi I am of the view that no part of cause of action has arisen in any part of Karnataka, except the fact that the Petitioners have their publishing centre at Bangalore. The fact that the Respondent No. 6 had instituted proceedings against the Petitioner in a civil Court at Bangalore doe not necessarily give the Petitioners a right to file a writ petition in this Court.

Apparently, the Respondent No. 6 was compelled to file a suit in this Court for the reason that the cause of action had arisen at Bangalore and the publication was taking place from Bangalore. Indeed, in this regard, Section 20of the CPC is also required to be looked into, inasmuch as, a suit is required to be instituted where the Defendant is residing.

Section 20of the CPC would relate to the suits to be instituted where Defendants reside or cause of action arises. Section 20(a) and (b) would be relevant for our purpose. It would indicate that the suits are to be instituted where the Defendant or each of the Defendants where 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 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.

A compendious reading of Article 226(2) of the Constitution of India and Section 20of the CPC makes it abundantly clear that none of the ingredients are to be found so as to arm the Petitioners in tiling these petitions before this Court. Once attain, it is reiterated are that the order emanates from Delhi, the Respondents 5 and 6 have then office at Delhi and the Petitioner is also having its registered office at Delhi.

Insofar as what constitutes the cause of action is that it implies that it is a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes die cause of action. Indeed, the cause of action is not defined in any statute. But however, it has been judicially interpreted inter alia to mean that every tact which would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It is also to be noticed that the facts pleaded in the writ petition must have nexus on the basis whereof a prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court. A distinction between the legislative and executive action should be borne in mind while determining the said question.

Having given my anxious-consideration lo the submissions made by the learned-senior counsel for the Petitioners as well as Respondents. I am of the view that the fact that the Financial Times is being published from Bangalore, does not confer territorial jurisdiction except that the end use is in Karnataka. A perusal of the pleadings in memorandum of writ petition does not disclose, in any manner, for me to hold that this Court has territorial jurisdiction. I am of the view that this by itself cannot be a determining factor to hold that this Court has territorial jurisdiction. It is reiterated that a bundle of facts which constitute cause of action for me to exercise jurisdiction are wanting and not forthcoming in the petition itself. I am of the view that the end result of cause of action will not confer jurisdiction, inasmuch as, it is not a cause of action by itself. In fact, an identical view is taken by a Division Bench of this Court of which I was a patty in W.P. No. 17828/2006 decided on 2 July 2008.

Having said so, I am of the view that the petition is liable to be rejected on the ground of tack of territorial jurisdiction.

Petition stands dismissed. All contentions are left open. Since the writ petition itself is disposed of, all interlocutory applications do not survive for consideration, stands disposed of.

After disposal of the writ petition for want of jurisdiction, Mr. Udaya Holla, learned senior counsel submits that the order may not be given effect to for a period of two weeks. The same is seriously opposed by Smt. Nalina M. It is to be noticed that when an interim order is granted by this Court and was in operation till the disposal of the writ petition, there is no reason as to why the same should not be continued for a period of another two weeks.

Ordered accordingly.