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CASE NO.: Appeal (crl.)  786 of 2006

PETITIONER: Om Prakash Srivastava

RESPONDENT: Union of India and Anr

DATE OF JUDGMENT: 24/07/2006

BENCH: ARIJIT PASAYAT & ALTAMAS KABIR

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 282 of 2006)

ARIJIT PASAYAT, J.

       Leave granted.  

       Appellant calls in question legality of the order passed by  a learned Single Judge of the Delhi High Court disposing of  the Writ Petition (W.P. (Crl.) No.201/2005) filed by the  appellant holding that the Allahabad High Court would have  also jurisdiction to deal with grievances of the writ petitioner  and can deal with conditions of prisoners in that State more  effectively, though the Delhi High Court may have jurisdiction.

       Background facts sans unnecessary details are as  follows:

       Appellant had filed a Writ Petition before the Delhi High  Court taking the stand that he was being tried in several cases  contrary to the extradition decree. Appellant came to India by  way of extradition from Singapore. Presently, the appellant  was facing trial in eight cases which is in complete violation of  the provisions of Section 21 of the Extradition Act, 1962 (in  short the ’Extradition Act’).  He had also pleaded that he was  being kept in solitary confinement without proper medical aid  in the Central Jail in the State of U.P. It is to be noted that the  appellant had filed the Writ Petition (Crl.) No.54 of 2005 before  this Court which was withdrawn by him in order to enable him  to move appropriate High Court for redressal of his grievances,  if any. Appellant had filed a writ petition as afore-noted in the  Delhi High Court which came to be disposed of by the  impugned order.  

       Learned counsel for the appellant submitted that the  choice of the High Court is entirely that of the writ petitioner.  It is not in dispute that in terms of Article 226(2) of the  Constitution of India, 1950 (in short the ’Constitution’) the  appellant could file the writ petition in Delhi High Court.  Merely because he had a choice of going before the Allahabad  High Court, the Delhi High Court should not have refused to  consider the writ petition stating that the Allahabad High  Court can deal with conditions of prisoners in the State of  Uttar Pradesh more effectively.  It is submitted that the basic  grievance of the appellant related to alleged violation of the

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terms of Extradition Act as provided in Section 21 thereof.  Learned counsel for the Union of India submitted that there is  no violation of any term, practically no part of the cause of  action had arisen in Delhi and the Delhi High Court has  rightly observed that the appellant can pursue his remedy if  any before the Allahabad High Court.  

       In the present appeal, we are not concerned with the  question whether there is any violation of the terms of  Extradition Act. The only question that needs consideration is  whether the Delhi High Court had jurisdiction to deal with the  matter. The Delhi High Court accepted that it may have  jurisdiction but it was of the view that the grievance can be  more effectively dealt with by the Allahabad High Court.  

       Clause (2) of Article 226 of the Constitution is of great  importance. It reads as follows:          "(2)    The power conferred by clause (1) to issue  directions, orders or writs to any Government,  authority or person may also be exercised by  any High Court exercising jurisdiction in  relation to the territories within which the  cause of action wholly or in part, arises for the  exercise of such power, notwithstanding that  the seat of such Government or authority or  the residence of such person is not within  those territories."  

       The question whether or not cause of action wholly or in  part for filing a writ petition has arisen within the territorial  limits of any High Court has to be decided in the light of the  nature and character of the proceedings under Article 226 of  the Constitution. In order to maintain a writ petition a writ  petitioner has to establish that a legal right claimed by him  has prima facie either been infringed or is threatened to be  infringed by the respondent within the territorial limits of the  Court’s jurisdiction and such infringement may take place by  causing him actual injury or threat thereof.  

       Two clauses of Article 226 of the Constitution on plain  reading give clear indication that the High Court can exercise  power to issue direction, order 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 direction, order or writ is issued is not  within the said territories. (See Oil and Natural Gas  Commission v. Utpal Kumar Basu and Ors. (1994 (4) SCC  711).

       By "cause of action" it is meant every fact, which, if  traversed, it would be necessary for the plaintiff to prove in  order to support his right to a judgment of the Court. In other  words, a bundle of facts, which it is necessary for the plaintiff  to prove in order to succeed in the suit. (See Bloom Dekor Ltd.  v. Subhash Himatlal Desai and Ors. (1994 (6) SCC 322).

       In a generic and wide sense (as in Section 20 of the Civil  Procedure Code, 1908) "cause of action" means every fact,  which it is necessary to establish to support a right to obtain a  judgment. (See Sadanandan Bhadran v. Madhavan Sunil  Kumar (1998 (6) SCC 514).  

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       It is settled law that "cause of action" consists of bundle  of facts, which give cause to enforce the legal inquiry for  redress in a court of law. In other words, it is a bundle of facts,  which taken with the law applicable to them, gives the plaintiff  a right to claim relief against the defendant. It must include  some act done by the defendant since in the absence of such  an act no cause of action would possibly accrue or would  arise. (See South East Asia Shipping Co. Ltd. v. Nav Bharat  Enterprises Pvt. Ltd. and others. (1996 (3) SCC 443).

       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 fact, 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". (See Rajasthan High Court  Advocates’ Association v. Union of India and Ors. (2001 (2)  SCC 294).

       The expression "cause of action" has sometimes been  employed to convey the restricted idea of facts or  circumstances which constitute either the infringement or the  basis of a right and no more. In a wider and more  comprehensive sense, it has been used to denote the whole  bundle of material facts, which a plaintiff must prove in order  to succeed. These are all those essential facts without the  proof of which the plaintiff must fail in his suit. (See Gurdit  Singh v. Munsha Singh (1977 (1) SCC 791).

       The expression "cause of action" is generally understood  to mean a situation or state of facts that entitles a party to  maintain an action in a court or a tribunal; a group of  operative facts giving rise to one or more bases of suing; a  factual situation that entitles one person to obtain a remedy in  court from another person. (See Black’s Law Dictionary). In  Stroud’s Judicial Dictionary a "cause of action" is stated to be  the entire set of facts that gives rise to an enforceable claim;  the phrase comprises every fact, which if traversed, the  plaintiff must prove in order to obtain judgment. In "Words  and Phrases" (4th Edn.) the meaning attributed to the phrase  "cause of action" in common legal parlance is existence of  those facts, which give a party a right to judicial interference  on his behalf. (See Navinchandra N. Majithia v. State of  Maharashtra and Ors. (2000 (7) SCC 640).

       In Halsbury Laws of England (Fourth Edition) it has been  stated as follows:

"Cause of action has been defined as meaning  simply a factual situation the existence of  which entitles one person to obtain from the  Court a remedy against another person. The  phrase has been held from earliest time to  include every fact which is material to be  proved to entitle the plaintiff to succeed, and  every fact which a defendant would have a  right to traverse. ’Cause of action’ has also

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been taken to mean that particular act on the  part of the defendant which gives the plaintiff  his cause of complaint, or the subject matter of  grievance founding the action, not merely the  technical cause of action".

       As observed by the Privy Council in Payana v. Pana Lana  (1914) 41 IA 142, the rule is directed to securing the  exhaustion of the relief in respect of a cause of action and not  to the inclusion in one and the same action or different causes  of action, even though they arises from the same transaction.  One great criterion is, when the question arises as to whether  the cause of action in the subsequent suit is identical with  that in the first suit whether the same evidence will maintain  both actions. (See Mohammad Khalil Khan v. Mahbub Ali  Mian (AIR 1949 PC 78).          It would be appropriate to quote para 61 of the said  judgment, which reads as follows:-          "61. xxx                        xxx                         xxx

(1) The correct test in cases falling under Order  11 Rule 2, is whether the claim in the new suit  is in fact founded upon a cause of action  distinct from that which was the foundation of  the former suit (Moonshee Buzloor Fuheer v.  Shumroonnissa Begum, (1967)11 Moo I 551  (P.C.).

(2) The ’cause of action’ means every fact  which will be necessary for the plaintiff to  prove it tranversed to order to support his  right to the judgment (Real v. Brown  (1889) 22  Q.B.O. 138).

(3) If the evidence to support the two claims is  different. (Brunsoon v. Nurnphroy (1984 14  Q.B.O. 141),

(4) The causes of action in the two suits may  be considered to be away if in substance they  are identical (Brunsoon v, Numphroy, supra).

(5) The cause of action has no relation whether  to the defence that may be act up by the  defendant nor does it depend upon the  character of the relief prayed for the plaintiff. It  refers \005\005.. to media upon which the plaintiff  sake the Court to arrive at a conclusion in his  favour. (Mst. Chand Kour v. Pratap Singh  (1887)15 I. A. 185(PC). This observation was  made by Lord Watson in a case under section  43 of the Act of 1882 (corresponding to Order  II, Rule 2) where plaintiff made various claim  in the same. "

       In the instant case the High Court has not dealt with the  question as to whether it had jurisdiction to deal with the writ  petition. It only observed that the Delhi High Court may have  jurisdiction, but the issues relating to conditions of prisoners  in the State of U.P. can be more effectively dealt with by the  Allahabad High Court. As noted supra, there were two  grievances by the appellant.  But only one of them i.e. the

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alleged lack of medical facilities has been referred to by the  High Court. It was open to the Delhi High Court to say that no  part of the cause of action arose within the territorial  jurisdiction of the Delhi High Court. The High Court in the  impugned order does not say so. On the contrary, it says that  jurisdiction may be there, but the Allahabad High Court can  deal with the matter more effectively. That is not certainly a  correct way to deal with the writ petition. Accordingly, we set  aside the impugned order of the High Court and remit the  matter to it for fresh hearing on merits.  A prayer has been  made for release of the appellant on parole for the reasons  indicated in the application.  We are not inclined to pass any  order on the said application. The same is rejected.           The appeal is disposed of as aforesaid.  No costs.