Om Prakash Srivastava Vs. Union of India and Anr
 Insc 444 (24
Pasayat & Altamas Kabir
out of SLP (Crl.) No. 282 of 2006) ARIJIT PASAYAT, J.
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
facts sans unnecessary details are as follows:
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 No.54 of 2005 before this Court which was withdrawn by him in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.
counsel for the appellant submitted that the choice of the High Court is
entirely that of the writ petitioner.
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.
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
terms of Extradition Act as provided in Section 21 thereof.
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
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
(2) of Article 226 of the Constitution is of great importance. It reads as follows:
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.
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).
"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).
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).
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
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).
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).
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).
Laws of England (Fourth Edition) it has been stated as follows:
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
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".
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.
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).
would be appropriate to quote para 61 of the said judgment, which reads as
"xxx xxx xxx
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.).
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.
If the evidence
to support the two claims is different. (Brunsoon v. Nurnphroy (1984 14 Q.B.O.
The causes of
action in the two suits may be considered to be away if in substance they are
identical (Brunsoon v, Numphroy, supra).
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 .. 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
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
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.
appeal is disposed of as aforesaid. No costs.