Section 5 of the limitation Act.=delay of (3776) days in filing the aforementioned proposed first appeal suit =the plaintiff at the instance of the villagers had committed that he would not execute the decree.- It is hard to believe that the plaintiff, who had obtained a decree on merits, after a serious and long drawn contest, had made such a commitment. Further, even if any such commitment was said to have been made, still, the Government officer concerned should have approached the Assistant Government Pleader and ought to have obtained his opinion and ought to have got preferred a first appeal and ought to have got the settlement recorded in the said appeal.;The next cause urged for condonation of delay is that the record was misplaced and could not be traced till the execution petition reached an advanced stage of the evidence on the side of the judgment debtors/ Government. The said averment lays bare that even after the execution petition was filed, no sincere efforts were made by the officer and his staff concerned for tracing the file. Therefore, the reasons assigned ex facie appear to be not sufficient and valid reasons for condonation of the long delay of more than (3500) days.

CRP 200 / 2016

CRPSR 15960 / 2015

CASE IS:DISPOSED

PETITIONER RESPONDENT THE MANDAL DEVELOPMENT OFFICER, KONIJERLA & 3 ORS   VS BODAPOTHULA VENKAIAH & 2 ORS PET.ADV. : GP FOR ARBITRATION (TG) RESP.ADV. : RAMANA SUBJECT: C.P.C. DISTRICT:  KHAMMAM

FILING DATE:  13-07-2015 POSTING STAGE :  FOR PRONOUNCEMENT OF ORDERS DISPOSED ON  18-03-2016 DISMISSED REG. DATE    :   13-01-2016 LISTING DATE :  18-03-2016 STATUS   :  CAV

HON'BLE JUDGE(S):     M.SEETHARAMA MURTI

THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI
Civil Revision Petition No.200 of 2016
ORDER:
This Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (‘the Code’, for brevity) by the petitioners/appellants/ defendants 1 to 4 is directed against the orders dated 05.02.2015 of the learned Principal District Judge, Khammam passed in I.A.no.182 of 2013 in an unregistered first appeal suit-ASSR no.179 of 2013 filed under Section 5 of the Limitation Act for condonation of the delay of (3776) days in filing the aforementioned proposed first appeal suit against the decree and judgment dated 16.08.2002 of the learned II Additional Junior Civil Judge, Khammam passed in O.S.no.71 of 2002.
2. I have heard the submissions of the learned Government Pleader for Arbitration representing the petitioners/appellants/defendants 1 to 4 (‘the defendants 1 to 4’, for brevity) and the learned counsel for the 1 st respondent/plaintiff (‘the plaintiff’, for brevity). I have perused the material record.
3. The facts, as borne out by the record and as per the submissions made at the hearing, in brief, as follows: The sole plaintiff brought the suit against the defendants 1 to 4, the officials of the Government, and two other unofficial defendants for recovery of property viz., dry land admeasuring 1848 square yards, i.e., Ac.0.15 ½ guntas (756 feet X 22 feet) in Sy.no.362/C and 363/D/A situated at Konijerla village and Mandal of Khammam District, morefully described in the schedule annexed to the plaint. In the said suit, damages at the rate of Rs.2,000/- per annum were also claimed. The defendants 5 and 6 had remained ex parte. The defendants 1 to 4 had filed a written statement resisting the suit. After full-fledged trial, the trial Court had decreed the suit of the plaintiff as prayed for. Aggrieved of the decree and judgment of the trial Court, the defendants 1 to 4 had preferred the [unnumbered] first appeal suit. The said first appeal suit was not registered as the said first appeal suit was preferred after the expiry of the time allowed under law for preferring the first appeal. Therefore, the defendants 1 to 4 had filed I.A.no.182 of 2013 for condoning the delay of (3776) days in filing the said proposed first appeal suit. The said application for condonation of delay was dismissed by the 1 st appellate court, by orders dated 11.02.2014. Therefore, the defendants 1 to 4 had preferred C.R.P.no.2470 of 2014 before this Court. When the said revision came up for hearing before this Court on 14.10.2014, this Court while giving an opportunity had directed the District Collector, Khammam/3 rd revision petitioner to look into the matter and file a detailed additional affidavit by 24.10.2014 stating as to what action the State intends to take against the erring officers. Pursuant to the said directions of this Court in the revision, the District Collector, Khammam had filed his affidavit on 09.11.2014. Subsequently, this Court had disposed of the aforementioned revision on 18.11.2014 and remitted the matter to the learned District Judge, Khammam to consider the additional affidavit filed by the District Collector and pass appropriate orders afresh in I.A.no.182 of 2013. Further, this Court had also granted liberty to the plaintiff to file a counter. On such remand of the matter to the District Court, the learned District Judge having heard the submissions of the learned counsel for the parties had once again dismissed the application of the Government (defendants 1 to 4) by the impugned order. Therefore, the defendants 1 to 4 are before this Court.
 4. The learned Government Pleader would submit as follows: “Initially the application filed for condonation of delay in preferring the first appeal suit was supported by an affidavit of the MDO concerned. In the said affidavit, sufficient explanation is given in support of the request for condonation of delay. The plaintiff/Decree Holder is making hectic efforts to execute the decree that was granted by the trial Court and recover possession of the property. The said property is a road being used by the public at large. The Decree Holder had committed before the villagers that the decree would not be executed as the property in question is a road and is being used daily by thousands of people. In the circumstances, the then MDO having thought that the matter has subsided did not approach the Government Pleader for taking necessary steps for preferring an appeal. Subsequently, the file could not be traced. Therefore, the matter could not be brought to the notice of the higher officials. Even after filing of the execution petition and till the execution petition has reached the stage of evidence on the side of the judgment debtor, the file could not be traced. Therefore, steps could not be taken for preferring the first appeal within the time allowed under law. Later, the MDO concerned had taken an opinion of the Government Pleader and had got preferred the appeal. Non-filing of the appeal in time is not intentional; and the delay in filing the first appeal suit had occasioned due to inadvertence of the then MDO. In the peculiar facts and circumstances of the case, it became imminent to prefer the first appeal after lapse of nearly (3776) days of delay. During the pendency of the earlier revision, the District Collector, as per the direction of this Court, had filed an affidavit before this Court narrating all the facts that lead to the delay in filing the first appeal suit by the Government. The District Collector had also stated in his affidavit that the property in question is a cart track. The District Collector had further stated in his affidavit that he had examined the entire matter and that on such examination, it came to light that the erring officers in the present case are the then Mandal Parishad Development Officer, M. Vidyalatha (presently working as Mandal Parishad Development Officer, Mandal Praja Prarishad, Bonakal of Khammam District) and Sunkar Rama Mohan Rao (now retired)-the then Deputy Executive Engineer, Panchayat Raj, Khammam and that the disciplinary authority of the Mandal Parishad Development Officer is the Commissioner, PR & RE, Telangana, Hyderabad as per the CC&A Rules, 1991 and that the disciplinary authority of the Deputy Executive Engineer is the Engineer-in-Chief, Panchayat Raj, Telangana, Hyderabad and that already memos were issued to the said two erring officers calling upon them to offer their explanations and that their explanations were also received and that articles of charges were also framed against the said officers and served upon them and that the Additional Joint Collector, Khammam has been appointed as the Enquiry Officer, vide Proceedings Rc.No.A1/3659/2014 to conduct regular enquiry under Rule 22 of the AP CC&A Rules, 1991 against the said erring officers. In the circumstances of the case, if the road that was laid upon the cart path is destroyed by executing the decree, the public at large who are using the road for their passage would suffer. Irreparable loss will be caused to the public at large; and the same cannot be compensated in any manner. Therefore, the delay may be condoned in the interests of justice by allowing the revision and setting aside the impugned order.”
5. On the other hand, the learned counsel for the plaintiff while supporting the orders of the Court below, had vehemently opposed for the condonation of the long delay and had inter alia contended as follows: “A perusal of the judgment of the trial Court would show that the plaintiff had established his right to recover possession of the suit schedule property, which is his private property. The officers concerned of the Government are not only not diligent but also were grossly negligent in the matter. The long delay was caused due to their deliberate inaction in the matter. The said delay that had occasioned due to the willful and wanton conduct of the officers of the Government cannot be condoned. The judgment of the Court below was delivered on 16.08.2002. But, the application for condonation of delay with annexed proposed first appeal suit was filed on 19.01.2013. The said application for condonation of delay was supported by an affidavit of the MDO concerned. In the said affidavit, no explanation, much less valid explanation was offered for the long delay. The grounds urged to the effect that the plaintiff had committed before the villagers not to execute the decree and that the file was not traced for a long time are false and invented grounds. The plea that the file was not traced till after the filing of the execution petition and till the execution petition had reached the stage of JDR’s evidence, would only show the further gross negligence on the part of the officers concerned of the Government. The Government did not acquire the land of the plaintiff for laying the road. No prejudice would be caused if the order of the Court below is sustained as the Government can always, and if it so desires, acquire the property in accordance with procedure established by law, by paying adequate compensation. Absolutely no grounds, much less valid grounds were urged and made out for condoning the delay. No cause, much less sufficient cause is shown for showing indulgence to the defendants 1 to 4. The well-reasoned order of the Court below is sustainable under facts and in law and does not call for any interference.”
6. I have gone through the pleadings in the interlocutory application and the affidavit of the learned District Collector. The District Collector admittedly had no personal knowledge in regard to the delay that had occasioned in preferring the first appeal. His affidavit shows that departmental action was initiated against the two officers, who were prima facie found to have been responsible for the delay in filing the appeal. The questions whether or not they are really responsible for the delay and whether or not they would be liable for any punishment will have to be decided at the conclusion of the departmental enquiries initiated against them and the said matter is not relevant for consideration in the present revision petition. Therefore, the contents of the affidavit of the present District Collector, filed as per the directions of this Court in the earlier revision in regard to the circumstances that lead to the granting of the decree by the trial Court, the filing of the EP by the Decree Holders/plaintiffs, and the other chronology of events in regard to the dismissal of the petition for condonation of delay etcetera are therefore, not germane for consideration in this revision petition, which is filed assailing the orders of the learned District Judge whereby the petition for condonation of delay in preferring the first appeal suit was dismissed. Therefore, the affidavit of the learned District Collector who has no personal knowledge of the matters is not helpful to the defendants/revision petitioners. Hence, what remains for consideration is the affidavit of the then MDO, which was filed in support of the petition for condonation of delay. A perusal of the said affidavit of the then MDO would reveal that two main grounds were urged in support of the request for condonation of delay. The first ground is that after passing of the decree by the trial Court in the year 2002, at the instance of the villagers, the plaintiff had orally committed to the villagers at large that he would not execute the decree as thousands of people are daily using the road even by the date of the decree and that on such commitment of the plaintiff, the then MDO had thought that the matter has subsided and therefore, did not approach the office of the Assistant Government Pleader for taking necessary steps for preferring the appeal. The second ground is to the effect that subsequently, the file was not traced and therefore, the then MDO could not bring the facts to the notice of the higher officials and that the file could not be traced till the execution petition has reached the stage of adduction of evidence on the side of the judgment debtors. It is also stated that after the file is traced, an opinion was obtained and the appeal was preferred along with an application for condonation of delay and that in the facts and circumstances, the delay had occasioned due to inadvertent acts of the then MDO and that the said delay is not due to intentional reasons. The affidavit of the MDO discloses that the length of delay is (3680) days. However, the material record including the order of this Court in the earlier revision would disclose that the delay is (3776) days. In the earlier orders, this Court observed that the delay is enormous and abnormal and the affidavit that was filed in support of the petition for condonation of delay is a perfunctory and casual affidavit. However, since the matter is remitted to the learned District Judge by orders dated 18.11.2014 passed in CRP no.2470 of 2014, in the well-considered view of this Court, the learned District Judge rightly considered the merits of the application for condonation of delay uninfluenced by the aforementioned observations of this Court. Be that as it may, since the learned District Judge had dismissed the application for condonation of delay, now it is to be examined as to whether any sufficient cause was shown by the Government for condonation of delay.
7. Though no decisions are cited in view of the fact that the legal position is well settled, it is apt to note the following settled propositions on the settled legal aspects regarding condonation of delay: ‘The statutory provision mandates that while considering the applications for condonation of delay, the applicants are required to show sufficient cause for condonation of such delay. Condonation of delay is a matter of discretion of the Court. The words ‘sufficient cause’ under Section 5 of the Limitation Act should receive liberal construction so as to achieve substantial justice. However while condoning the delay; the Court should not forget the opposite party altogether. A liberal approach is to be adopted in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the limitation Act. The concept of such a liberal approach cannot be equated with doing injustice to the other party. The court cannot condone the delay in a case where the Court concludes that there is no justification for the delay. The discretion has to be exercised within the reasonable bounds known to the law. Whims or fancies, prejudices or predilections could not form the basis for exercising the discretionary power. When the delay is directly a result of negligence or default or inaction of a party, such delay cannot be condoned on mere asking of that party. When an applicant makes an incorrect statement in an application seeking condonation of delay, the Court ought to refuse to condone such delay or inordinate delay. When the explanation offered is a sufficient cause for condonation of delay, but the delay that deserves to be condoned is a long delay, such delay is generally condoned by imposition of adequate costs as compensation to offset the delay in hearing and disposal of the case. Length of delay is no matter and the acceptability of the explanation is the only criterion. If there is no acceptable explanation, sometimes a delay of shorter length may also be uncondonable whereas in certain other times, the delay of a very long range can be condoned provided sufficient cause is shown.” The expression ‘sufficient cause’ is a cause for which the defendant could not be blamed. [Vide the decision of the Supreme Court in Parimal v. Veena [1] ]. In this decision, it was also held as follows: ‘However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion it has to be exercised judiciously.’
8. Reverting to the facts of the case, it is to be first noted that the then MDO did not obtain the opinion of the learned Assistant Government Pleader in regard to the requirement of preferring a first appeal or not. The explanation for not obtaining an opinion promptly in that regard is that the plaintiff at the instance of the villagers had committed that he would not execute the decree. The details of such commitment like the names of the elders amongst such villagers who were present at the time of the alleged commitment and the date or an approximate period of time at which such a commitment was made etcetera are not pleaded in the affidavit filed in support of the petition for condonation of the delay. It is hard to believe that the plaintiff, who had obtained a decree on merits, after a serious and long drawn contest, had made such a commitment. Further, even if any such commitment was said to have been made, still, the Government officer concerned should have approached the Assistant Government Pleader and ought to have obtained his opinion and ought to have got preferred a first appeal and ought to have got the settlement recorded in the said appeal. Such a course, which is expected of him, is not followed. The next cause urged for condonation of delay is that the record was misplaced and could not be traced till the execution petition reached an advanced stage of the evidence on the side of the judgment debtors/ Government. The said averment lays bare that even after the execution petition was filed, no sincere efforts were made by the officer and his staff concerned for tracing the file. Therefore, the reasons assigned ex facie appear to be not sufficient and valid reasons for condonation of the long delay of more than (3500) days. In the facts and circumstances of the case, there is no material to hold that the cause for the delay is not wilful or unintentional. On the other hand, as rightly held by the Court below, the delay that had occasioned is only a direct result of the negligence/default or inaction of the officers of the Government/defendants and that the said delay is deliberate. In the wellconsidered view of this Court, if such long delay, which is unexplained by showing sufficient cause, is condoned at this distance of time, it would result in injustice to the plaintiff/decree holder in whose favour, a right has accrued. In the facts and circumstances of the case, this Court is of the well-considered view that the explanation offered for the long delay does not afford sufficient ground for exercising the discretion in favour of the Government/the defendants 1 to 4. Hence, this Court finds that there is no justification for the delay and that such long delay, which is a result of deliberate inaction and negligence cannot be condoned on the mere asking of the defendants 1 to 4/the appellants in the unregistered appeal. Having regard to the reasons, this Court finds that the order impugned does not warrant interference.
9. In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this revision shall stand closed. _____________________ M.SEETHARAMA MURTI, J
18 th March, 2016 RAR
[1] AIR 2011 SUPREME COURT 1150

Order 18 Rule 2, in cases where there are several defendants, some supports the plaintiff and some opposes the same, what should be the order of leading evidence or cross examination amongst such defendants = basically on the principle that the party supporting the plaintiff should first lead the evidence, before the defendants opposing the plaintiff 10. Lastly, in the basic judgment as , Shah Hiralal Himatlal and Ors. v. M.G. Pathak and Ors., while dealing with the provisions of Order 18 Rule 2, in cases where there are several defendants, some supports the plaintiff and some opposes the same, what should be the order of leading evidence or cross examination amongst such defendants, the principle as laid down is reproduced as under : "4. So far as the defendants go, the question which of the defendants should begin has not been dealt with in Order 18, Civil Procedure Code. But on general principle, if any of the defendants supports the plaintiff in whole or in part, then he should address the court and lead his evidence first before the other defendants who do not support wholly or in part the plaintiffs case. The order in which the defendants lead evidence becomes important only when some of them support the case of the plaintiffs in whole or in part while the others do not. If all the defendants completely oppose the plaintiff's case, then the question of order of leading evidence amongst the defendants is immaterial. It is only when the defendants are divided into two groups, one group consisting of the defendants supporting the plaintiff's case in any part, that the question of order of leading evidence becomes important. In such cases among defendants the order of leading evidence should be as follows : 1. Those defendants who fully support the case of the plaintiff; 2. Those defendants who partly support the case of the plaintiff; 3. Those defendants who do not support the case of the plaintiff in any part."

Bottom of Form

Bombay High Court

Sunil Chhatrapal Kedar vs Y.S. Bagde And Anr. on 17 June, 2004

Equivalent citations: 2004 (4) MhLj 620

Author: A V Mohta

Bench: A V Mohta

JUDGMENT Anoop V. Mohta, J.

1. Heard learned Counsel for the Parties. Very small controversy is raised in this petition as to which defendant's should be allow to cross examine first, those who support the plaintiff or those who opposes the plaintiff.

2. The petitioner herein, the Ex-Chairman, along with others Ex-Directors of the Nagpur District Central Co-operative Bank, respondent No. 2 herein, are charge-sheeted under the provisions of Maharashtra Co-operative Societies Act, 1960 and Maharashtra Co-operative Societies Rules, 1961 (for short 'the Act' and 'the Rules' respectively).

3. An application has been filed by the petitioner to cross-examine the witnesses of respondent Bank, after the completion of cross-examination of other respondents. The respondent No. 2 and other respondents have resisted the same basically, on the ground that, initially when the matter was fixed for the cross-examination there was no such objection from the petitioner, to proceed with the matter with such a mode of cross-examination. However, on the date of the cross examination itself, such application was filed. The whole purpose of such application and/or conduct of the petitioner was to prolong the matter. There were various other applications filed to delay the proceedings and same were disposed of from time to time.

4. In the present matter, therefore, after hearing all the parties by an order dated 15-5-2004, the said application of the petitioner was rejected. While disposing of the said application the learned respondent No. 1, even though referred the cases cited by the petitioner, but failed to take into consideration the basic purpose and finding as declared in those judgments, in support of the issue, i.e. who should cross examine first, amongst the respondents. The respondents are, as contended, one way or the other some are supporting and some are opposing the contesting parties.

5. There is no doubt so far as the trial or such proceedings are concerned, that, the trial Judge is the master of his own proceedings. It is his domain, where he can fix and adjust the scope and mode of cross-examination. Normally there is no question of interference in such matters, as the discretion, in the facts and circumstances of the case, need to be exercised by the concerned trial Court. It is expected that such trial Court in view of the settled provisions and of principles of natural justice, or even otherwise normally, accommodate the concerned Advocates as well as, the parties, subject to convenient and availability. The Court normally proceed with the matter and allow the available parties to cross-examine.

6. However, if such application is made and if case is made out, based on the judgments cited by the petitioner's counsel, in my view there is no reason to discard such application totally. The other contesting respondent or respondents can, if facts and circumstances permit, proceed to cross examine. One cannot overlook the fact that there are more than 29 respondents in this matter. The enquiry is quite serious. Therefore, the matter could have been proceeded for cross-examination by the other respondents, to avoid further delay of the said proceeding,

7. One cannot overlook the conduct of the petitioner. Initially it was agreed unconditionally to proceed with the matter. However, at the later stage, such application was filed. The observation in the order dated 15-5-2004, speaks for itself.

8. Strikingly, this aspect has been already considered by the various courts including our Court, as reported in 1986 Mh.L.J. 643, Mandabai Ramkrishna Tumsare and Ors. v. Ramlal Hiramanji Hiwarkar and Ors., based on the Order 18 Rule 2 of Civil Procedure Code, and Section 135 of the Evidence Act. If case is made out then, authorities should consider such judgment, while dealing with such application. Para Nos. 9 and 10 is clear, and the same is reproduced as under :

"9. Rule 2 of Order 18, Civil Procedure Code runs as under :

"2.(1) On the day fixed for hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence [if any] and many then address the court generally on the whole case.

(3) The party beginning may then reply generally on the whole case.

(4) Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage."

Reading the two rules of Order 18 together, it is apparent that in a given case where he has admitted the facts alleged in the plaint, the defendant has a right to begin provided he contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of any relief. Further, it is apparent that after deciding which party has a right to begin, the court has to permit that party having the right to begin to state his case and produce his evidence in support of the issues, the burden of which is cast upon him. It is after this stage that "the other party" shall then state his case and produce his evidence and address the Court generally on the whole case. Sub-rule (4) of Rule 2 categorically states, notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage. Thus, as to the order in which evidence is to be taken, the rule is that the plaintiff and such of the defendants as support his case, wholly or in the party, must address the Court and call their evidence and then "the other party" i.e. the other defendants contesting the plaintiffs claim should address the court and call their evidence. Examination-in-chief of a witness, cross-examination by the adverse party and re-examination by the party who called the witness are defined in Section 137 of the Evidence Act. Under Section 138 of the Evidence Act, witnesses shall be first examined in chief, then [if the adverse party so desires] cross-examined, then [if the party calling him so desires] re-examined. It is in the light of these provisions of the Evidence Act and Order 18 of Civil Procedure Code, it appears that the trial Court has to bear in mind which is the party who has a right to begin and which is the adverse party who has a right to cross-examine." "10. In the circumstances of the present case, it is apparent that the plaintiff's case is fully supported by defendants 6 to 8. They are, therefore, not an adverse party to the plaint, but are proforma defendants through whom the plaintiff is claiming a right to the property. In a case like this, the evidence of the plaintiff having been recorded, it would be just and proper to ask the proforma defendants 6 to 8 to initially cross-examine the plaintiff and then direct the contesting defendants 1 to 5 to cross-examine the plaintiff. The reason is simple. For the administration of fair and just trial, it must be noted that the plaintiff's evidence, if cross-examined by the adverse party, may reveal certain lacunae which could be got corrected by the defendants supporting the plaintiff when they cross examined the plaintiff subsequently inasmuch as they are interested in the claim of the plaintiff. By way of cross-examination, the supporting defendants can put leading questions and get the necessary answers. It is for this purpose, to meet the ends of justice, the trial Court should permit the contesting defendants to cross-examine the plaintiff last, particularly when the adverse party so desires. Thus if there are more than one defendant in a such, the order of their cross-examination is a matter which rests on the discretion of the Judge. To put it in other words, cross-examination as defined in Section 137 of the Evidence Act, is the examination of the witness by "adverse party" and the defendants who are supporting the plaintiffs case are not an adverse party. Therefore, their formal cross-examination should be brought on record and it is then the "contesting defendants". Which is the "real adverse party" should be directed to cross-examine the plaintiff."

9. The issue in respect of preference in leading evidence is also decided in , Jumpha Bewa and Ors. v. Sahadeb Rout and Ors.. In the facts and circumstances of the case, the court can consider to allow or refuse the particular defendants to cross-examine before other defendants, basically on the principle that the party supporting the plaintiff should first lead the evidence, before the defendants opposing the plaintiff. The relevant para No. 4 is reproduced as under:

"4. According to the scheme of Rule 2, Order 18 of the Code of Civil Procedure ('Code' for short), on the day fixed for the hearing of the suit or any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Thereafter, the other party shall state his case and produce his evidence, if any, and may then address the court generally on the whole case. A further opportunity is given to the party beginning the case to reply generally on the whole case. According to this scheme, the plaintiff of a suit leads evidence on the day of hearing. After he closes his evidence, if there are several defendants and they independently contest the suit, they lead evidence one after the other. But according to the rule of prudence there is an exception. The exception has been best illustrated by a decision . Shah Hiralal Himatlal and Ors. v. M. G. Pathak."

10. Lastly, in the basic judgment as , Shah Hiralal Himatlal and Ors. v. M.G. Pathak and Ors., while dealing with the provisions of Order 18 Rule 2, in cases where there are several defendants, some supports the plaintiff and some opposes the same, what should be the order of leading evidence or cross examination amongst such defendants, the principle as laid down is reproduced as under :

"4. So far as the defendants go, the question which of the defendants should begin has not been dealt with in Order 18, Civil Procedure Code. But on general principle, if any of the defendants supports the plaintiff in whole or in part, then he should address the court and lead his evidence first before the other defendants who do not support wholly or in part the plaintiffs case. The order in which the defendants lead evidence becomes important only when some of them support the case of the plaintiffs in whole or in part while the others do not. If all the defendants completely oppose the plaintiff's case, then the question of order of leading evidence amongst the defendants is immaterial. It is only when the defendants are divided into two groups, one group consisting of the defendants supporting the plaintiff's case in any part, that the question of order of leading evidence becomes important. In such cases among defendants the order of leading evidence should be as follows :

1. Those defendants who fully support the case of the plaintiff;

2. Those defendants who partly support the case of the plaintiff;

3. Those defendants who do not support the case of the plaintiff in any part."

11. I am of the view that, admittedly the petitioner was the Ex-Chairman of the respondent Bank at the relevant time. Whatever may be the consequences of the charges framed against all other respondents, ultimate corporate responsibility and endorsement of Ex-Chairman, cannot be overlooked. Therefore it is expected that such Authorities should consider the principles as referred in the judgments delivered by the High Courts, while conducting the trial.

12. In view of this, I am declined to pass any order or any specific order in the matter.

13. However, as observed above, the learned Authority respondent No. 1, should take into consideration above principles and if case is made out by the parties and should accordingly proceed with the trial, without delaying the matter further.

14. Petition was filed on 21-5-2004 and above named two respondents were only made party. Notice was issued for final disposal of the petition, and accordingly the matter is being heard.

15. It may be noted that an application bearing Civil Application No. 3533 of 2004, for addition of parties and amendment has been filed on 7-6-2004, for adding other respondents/Ex-Directors, as party in the cause title of the petition. At this stage I am declined to pass any order on this belated and afterthought application, as main petition itself is disposed of as observed above. As objected by the respondents, this will again lead to delay the proceeding, therefore, without going into further controversy on this application, in view of the above circumstances, the said application is rejected.

16. With these observations the petition itself is disposed of. No order as to cost.

17. Steno copy of this order, duly authenticated be furnished to the learned Advocates for the parties.

Order XXXIX, Rules 1 and 2 CPC read with Section 151 CPC for grant of ad-interim injunction restraining the defendant from manufacturing, selling, marketing, advertising, distributing of the product Karl Fisher Reagent bearing the plaintiffs trade name Stable 2Y++ Single Solution KF Reagent pending disposal of the suit. = When plaintiff is using the trade mark of KF 2Y, no cause of action arises for granting of injunction, as such, granting of injunction restraining the defendant from using the trade mark KF 2Y++ is erroneous. A perusal of Exs.P3 to P13 and Exs.R2 to R5 goes to show that labels and style of font mentioning as Stable 2Y++ and the colour and logo are also not similar and back ground is also not similar. Besides the logo, the plaintiff is using the word Standard Reagents whereas the defendant is using Shine Chem Laboratories. As far as Single Solution is concerned, it is descriptive word and Stable 2Y++ even according to the plaintiff, is descriptive in nature. The numeral 2 along with Y++ refers to the stability period being 2 years and single solution refers to composition of the solution. The mark Stable 2Y++ Single Solution of the plaintiff does not have any distinctiveness and the descriptive sentence Single Solution KF Reagent cannot be called as a proprietary mark or the trademark. Whether the words Stable 2Y++ has attained secondary meaning regarding the products of the plaintiff has to be gone into in the suit after evidence is let in by both parties.

2016 April - http://judis.nic.in/Judis_Andhra/list_new2.asp?FileName=13609

THE HONBLE SRI JUSTICE A.RAJASHEKER REDDY          

C.M.A. No.784 of 2015

29-04-2016

M/s. Shine Chem Laboratories, A Partnership firm, rep. by its Proprietor
M.Dasanjaneyulu. ... Appellant

Standard Reagents Private Limited,  Rep. by its MD Sri M.Srinivas....Respondent

Counsel for the Appellant:  Sri Ashok Ram Kumar

Counsel for the Respondent: Sri Venkatesh Deshpande.

>HEAD NOTE:  

? Cases referred

1.(1996) 5 Supreme Court Cases 714
2 2008 (36) PTC 168 Del
3 2003 (26) PTC 593 Delhi
4 (2011) 8 SCLR 030
5 2010 (1) ALD 199
6 Civil Appeal Nos.6314_15 of 2001
7AIR 2005 Supreme Court 1999  
8 (2004) 5 Supreme Court Cases 257
9 AIR 1998 Andhra Pradesh 86
10 AIR 2002 Supreme Court 275(1)
11 1944 (2) AII ER 269


HONBLE SRI JUSTICE A.RAJASHEKER REDDY        

CMA No. 784 OF 2015  

JUDGMENT:  
         This appeal is filed challenging the order dated
21.07.2015 passed in I.A.No.658 of 2014 in O.S.No.1067 of
2014 by the XVI Additional District Judge and Sessions Judge
cum XVI Additional Metropolitan Sessions Judge, Ranga Reddy
District at Malkajgiri, wherein the injunction petition filed by the
respondent/plaintiff was allowed and the defendant was
restrained from manufacturing and selling his product Karl
Fisher Reagent under Trade name of Stable 2Y++, pending
disposal of the suit.
2.      Defendant in the suit is the appellant herein.  The parties
hereinafter will be referred to as arrayed in the suit.
        The plaintiff filed petition under Order XXXIX, Rules 1 and
2 CPC read with Section 151 CPC for grant of ad-interim
injunction restraining the defendant from manufacturing,
selling, marketing, advertising, distributing of the product Karl
Fisher Reagent bearing the plaintiffs trade name Stable 2Y++
Single Solution KF Reagent pending disposal of the suit.   The
plaintiff is a Private Limited Company incorporated under
Companies Act.  It has been doing business of manufacturer of
sales of high performance laboratory solvents, reagents,
standard solutions and fine chemicals.  By using specific
proportion of Aromatic Heterocyclic Compound with other raw
material as ingredients to produce a Pyridine-free Karl-Fisher
Reagent Solution of the strength 5.0 to 6.0 mg/ml of water, with
minimum two years stability and as such it is named as Stable
2Y++ Single Solution KF Reagent and is being approved for its
stability for a minimum of 2 years from the recognized and
authorized laboratories.  The words Stable 2Y++ Single Solution
KF Reagent describe the produce as to the stability of the
produce in the packed bottle for a minimum period of 2 years.
The Managing Director of the plaintiff-company made an
application to Registrar of Trademarks for registering the brand
name of the trade name and same is pending.   The plaintiff has
been using the said trademark since the year 2005 onwards and
no other company in India using the same.  The plaintiffs trade
mark signifies the highest standards of quality, innovation,
reliability, output and integrity.
3.        The proprietor of the defendants Company worked in the
plaintiffs Company as a Marketing Manager for a period of 7
years from the year 2002-2009. Thereafter, he started a separate
business and imitated the label, the trade name of the product
Stable 2Y++ Single Solution KF Reagent and packed the
product in a similar looking bottle and packing case and selling
the same in the open market exhibiting as if the product being
sold by the defendant as of his own product similar to that of the
plaintiffs product with an intention to create confusion and
deception in the minds of the customers and with an ulterior
motive to injure his business, reputation and goodwill. That the
said action of the defendant came to the knowledge of the
plaintiff in the first week of September, 2014 and on that the
plaintiff procured a sample of the product manufactured and
marketed by the defendant.  The act of defendant amounts to
gross misrepresentation and passing off of goods branded
deceptively in the name of the plaintiffs Company.  Hence
petition for injunction as noted above.
4.      The defendant filed counter denying the allegations in the
affidavit filed in support of the petition stating that there cannot
be a passing off for a product KF Reagent as the origin inventor
was one Mr.Karl Fisher, who is a German Chemist.  The KF
Reagent itself indicates the person Karl Fisher Reagent.  The
word Single Solution is a common English word and no one
can claim proprietorship over the same.  Further the word
connotes that there is only one solution as an old process
Pyridine which has two solutions. The words Stable 2Y++ Single
Solution KF Reagent significantly describes as to the stability of
the product in the packed bottle which is for a minimum period
of two years.  Thus, the trade mark is an indicative of the nature
of the product which is a generic word and the plaintiff has no
exclusive rights over the generic words.   The registered
partnership firm of the defendant consists of four partners,
constituted for the purpose of doing business of manufacturing
and trading of all types of industrial and laboratory chemicals,
laboratory glassware and laboratory instruments.  The
defendant is doing business since the year 2014 onwards.  One
of the partners of the defendant firm was former employee of the
plaintiff.  In the year 2009, the said partner left the services of
the plaintiff and started M/s. Shine Chem Laboratories in the
year 2014 for the purpose of manufacturing Karl Fisher
Reagent and doing business in the said product.  That most of
the chemical companies are manufacturing Karl Fisher
Reagent without pyridine in their style of process, as such,
Karl Fisher Reagent without Pyridine has become a generic
product and it is not an invention of anybody.  The product
packed in the bottle will be shown in the symbolic 2Y, 2Y++ or
5Y etc.,  Thus, the usage of 2Y++ along with a trade mark of the
plaintiff does not confer any right over it.   That the application
of the plaintiff for registration is still pending and the same does
not qualify for being registered under Section 9 of Indian Trade
Marks Act, 1999 as the trade mark is descriptive in nature.  The
defendant sold its generic Karl Fisher Reagent with its own
conceived and coined Trade Mark of KF 2Y with very distinctive
coloured (yellow) packing slip.  Since all the buyers of the
plaintiff are educated, having scientific background, the
question of purchasing the product of the defendant as that of
the plaintiffs product does not arise.  The package label of the
defendant is distinctive, unique and shall not have any
resemblance with that of the plaintiffs product.   The defendant
has his own version of generic product of Karl Fisher Reagent
with brand of KF 2Y, which is distinctive and shall not have
any similarity or deceptive similarity with the Trade mark of the
plaintiff that is Stable 2Y++.   The defendant has not
misrepresented and misused the Trade Mark or good will of the
plaintiff, as such, passing off goods should not be attributed to
the defendant as the product of the plaintiff has not attained
secondary meaning.  The Trade Mark of the plaintiff Stable
2Y++ itself is not having the essentials of a Trade Mark for not
having distinctiveness and therefore, the plaintiff is not entitled
for relief of injunction.
5.      The trial Court, after considering the documentary
evidence i.e., Exs.P1 to P85 marked on behalf of the plaintiff and
Exs.R1 to R5 marked on behalf of the defendant, granted ad-
interim injunction restraining the defendant from
manufacturing, selling and marketing his product Karl Fisher
Reagent under Trade name of Stable 2Y++ pending disposal of
the suit.   Aggrieved by the same, present appeal is filed.
6.     Sri Ashok Ram Kumar, learned counsel for the defendant-
appellant, strenuously contended that since the Stable 2Y++
Single Solution KF Reagent is nothing but a descriptive nature
of the product being reagent and the plaintiff is questioning the
description of the product and not passing off of a brand.  He
also contends that there cannot be a claim of proprietorship on
a descriptive terminology as there are several descriptive
terminologies such as Karl Fisher, Pyridine Free, Reagents,
Longer Shelf Life, Stability and Single Solution etc.  He also
submitted that the trial Court having found that the defendant
is selling its product under Trade Mark KF 2Y and not Stable
2Y++, erred in restraining the defendant from selling its product
of Karl Fischer Reagent KF 2Y++.  That the impugned order
will adversely affect the prosperous business of the defendant
and there is likelihood of stamping the defendant as pirate.  He
further contended that any mark which is descriptive in nature
is not protected since the same should be allotted to use by
different vendors of the similar product to describe the product
in their marketing literature.   In support of his contentions, he
relied on the decisions reported in N.R.Dongre v. Whirlpool
Corporation , Cadila Healthcare Ltd., v. Gujarat Co-operative Milk ,
Micronix India v. Mr.J.R.Kapoor , Commissioner of Central Excise,
Mumbai v. M/s.Kalvert Foods India Pvt. Ltd., .

7.      On the other hand, learned counsel for the plaintiff
submits that plaintiff-company is the owner of the trade mark
Stable 2Y++ Single Solution KF reagent and enjoying exclusive
right over the same.  It has been using the said trade mark since
the year 2005 and no other company in India is using the same
trademark.  The proprietor of the defendant company is an ex-
employee of the plaintiff company, who worked as Marketing
Manager during the years 2002-2009.   The trade mark of the
plaintiff signifies highest standards of quality, innovation,
reliability, output and integrity.  The plaintiff company has
gained enormous goodwill over a period of 10 years in respect of
the product.  He further submits that the trade mark of the
defendants product is deceptively similar as that of the
trademark of the plaintiffs product, which is creating any
amount of confusion among the customers and there is every
likelihood of the customers believe that the product marketed by
the defendants company in the name of Stable 2Y++ Single
Solution KF Reagent as that of the product of the plaintiffs
company.  He further submits that the defendant wants to trade
upon the goodwill, name and reputation of the plaintiffs
company, which it has built-up during the last 10 years and the
conduct of the defendant in branding their product as that of
the plaintiffs product is fraudulent.  In support of his
submissions, reliance has been placed on the following
decisions: a)Ashwini Chemical Works, Hyderabad v. Aswini Homeo  
Pharmacy, R.R.District ; b) T.V.Venugopal v. Ushodaya Enterprises
Ltd., ; c) Dhariwal Industries Ltd., v. M/s.M.S.S. Food Products ; d)
Godfrey Philips India Ltd., v. Girnar Food & Beverages (P) Ltd., ; e) Sri
Sai Agencies Pvt. Ltd., v. Chintala Rama Rao  and f) Laxmikant V. Patel
v. Chetanbhat Shah .
8.         In view of above rival contentions, the following points
emerge for consideration in this appeal.
        1) Whether the alleged trade mark of the
              Plaintiffs product is descriptive in nature and whether
              the same has attained secondary meaning?

        2) If so, whether ad-interim injunction granted in
            favour of the plaintiff is liable to be vacated?

9. POINTS 1 and 2:
           It is relevant to extract the provisions of Sections 27 and
134 of the Trade Marks Act, 1999 reads as under:
        27.No action for infringement of unregistered trade mark:
1)      No person shall be entitled to institute any proceeding to prevent,
or to recover damages for the infringement of an unregistered
trade mark.
2)      Nothing in this Act shall be deemed to affect rights of action
against any person for passing off goods or services as the goods
of another person or as services provided by another person, or
the remedies in respect thereof.

       Section 134. Suit for infringement, etc., to be instituted before
District
              Court:
(1)     No suit.
a)      For the infringement of a registered trade mark; or
b)      Relating to any right in a registered trade mark; or
c)      For passing off arising out of the use by the defendant of any
trade mark which is identical with or deceptively similar to the
plaintiffs trade mark, whether registered or unregistered,
shall be instituted in any court inferior to a District Court having
jurisdiction to try the suit.
          A reading of the above provision shows that no action for
infringement will lie in respect of an unregistered trade mark,
but recognises the common law rights of the trade mark owner
to take action against any person for passing off goods as the
goods of another person or as services provided by another
person or the remedies thereof.  In order to prove passing off by
the defendant, the plaintiff has to establish that the defendant is
misrepresenting to the general public to sell his product as that
of the products of the plaintiff, damaging the business or
goodwill of the plaintiff.
9.         A trademark is said to be infringed when a registered
trademark is used by a person who is neither the registered
proprietor nor the licensee of the said trademark in relation to
the goods or services for which it is registered. From the scheme
of the Act, it is discernable that trademark infringement means
violation of exclusive rights granted to the registered proprietor
under the Act, to use the same in relation to the goods or
services in respect of which the trademark is registered.  Section
29 and Section 30 of the Act, provides for protection of
registered trademark in case the same is infringed upon by a
person not being a registered proprietor or a licensee.
        Action for Passing off the goods arises when an
unregistered trademark is used by a person who is not the
proprietor of the said trademark in relation to the goods or
services of the trademark owner.  Passing off is a tort actionable
under common law and mainly used to protect the goodwill
attached with the unregistered trademarks.  It is founded on the
basic tenant of law that one should not benefit from the labour
of another.  An action for infringement for registered trademark
or tort of  passing off for both registered as well as unregistered
trademark  are essentially two ways of achieving the same
objectives i.e. protection of goodwill attached with a mark.
10.        A perusal of the averments in the affidavit in respect of
the injunction petition filed by the plaintiff goes to show that the
Managing Director of the defendants company invented the
process using specific proportion of aromatic Heterocyclic
Compound with other raw material as ingredients to produce a
Pyridine-free Karl Fisher Reagent solution with minimum two
years stability, which was named as Stable 2Y++ Single
Solution KF reagent and same has been approved for its
stability, for a minimum of 2 years, from the recognized and
authorized laboratories through lab tests conducted for 2 years
by M/s. Startech Labs, who issued the analysis reports during
the period from April, 2003 to March, 2005 and confirmed that
the said product has stability for minimum 2 years.  The words
Stable 2Y++ Single Solution KF Reagent significantly describe
the produce as to the stability of the produce in the packed
bottle for a minimum period of 2 years.  The unique quality of
the product is described by these words and same was being
produced and marketed by the plaintiff company under the
brand name Stable 2Y++ Single Solution KF reagent since
2005.  The said product has attained good reputation among the
customers and goodwill in the business. The products of the
plaintiff with trade name Stable 2Y++ Single Solution KF
Reagent are being advertised and doing business as such.  The
plaintiff made application to Registrar of Trade Marks, Chennai
vide TM Application No.2310332 on 04.04.2012 for registering
the trade name Stable 2Y++ Single Solution KF Reagent which
in chemical equations indicates that the product stability is for a
minimum period of 2 years.  Moreover, the application made by
the plaintiffs company is pending consideration for registration.
11.        That these averments in the affidavit of the plaintiff go to
show that Stable 2Y++ is a descriptive term for describing the
stability of the product for a minimum period of 2 years and the
words Stable 2Y++ is description of the product regarding
stability of the product.  As such, it can safely be held that the
words Stable 2y++ indicates description of the product
regarding stability and it is not a trade name.
12.       The words Karl Fisher Reagent is invented by one Karl
Fisher, who is a German Scientist. When once it is not disputed
that Karl Fisher who is a German Scientist invented the
Reagent, named as Karl Fisher Reagent, nobody can claim
proprietorship over such invention, as such, the plaintiff cannot
claim proprietorship over Karl Fisher Reagent.   As far as the
words Single Solution are concerned, they are in the nature of
generic words, and no one is permitted to claim proprietorship
over generic words, unless those words attain secondary
meaning.   The entire alleged trademark is clearly indicative of
the nature of the product, which otherwise is a disqualification
for registration under Section 9 (1) (a) of the Act.   Section 9(1)
(a) of the Act reads as follows:
        9. Absolute grounds for refusal of registration:
(1)     The trade marks-
(a) which are devoid of any distinctive character, that is
to say, capable of distinguishing the goods or services of
one person from those of another person;
             (b)
              (c ).
                shall not be registered.

           A perusal of the trade mark which is sought to be
registered under Trade Marks Act, i.e., Stable 2Y++ Single
Solution KF reagent, there is no distinctive character capable of
distinguishing the goods with that of the plaintiffs Stable 2Y++.
As such, no exclusive right is conferred on the plaintiff.   It is
pertinent to note that the defendant had sold generic Karl Fisher
reagent with its own conceived and coined trade mark of KF 2Y
with very distinctive coloured (Yellow) packing slip and
corrugated packaging box and that there is huge distinction and
variation in the phonetics as well as the colour combination of
the labels adopted by both the parties.
13.      A perusal of the said labels of both products show
printed matter pertaining to science, warnings and precautions
as well as descriptions and directions, which are mandatory as
per the provisions of law.  The packing of the product of plaintiff
is in blue colour and the packing of the defendants is in yellow
colour.   Moreover, the logo used by the plaintiff is Standard
Reagents and the defendant is using its logo as Shine Chem
Laboratories.  As such, the contention of the plaintiff that the
labels used by the defendant are deceptively similar to that of
plaintiffs, cannot be accepted.   There is a substantial difference
between both the labels i.e., KF Reagent used by the
defendants product and Stable 2Y++ Single Solution KF
Reagent used by the plaintiffs product.   Since the product of
the defendant is sold as KF Reagent, there is no passing off as
alleged by the plaintiff.
   a) In N.R.Dongre and others v. Whirlpool Corporation and another
(supra), the Honble Apex Court held as follows:
        An infringement action is available where there is violation
of specific property right acquired under and recognised by
the statute. In a passing- off action, however, the plaintiffs
right is independent of such a statutory right to a trade
mark and is against the conduct of the defendant which
leads to or is intended or calculated to lead to deception
Passing- off is said to be a species of unfair trade
competition or of actionable unfair trading by which one
person, through deception, attempts to obtain an economic
benefit of the reputation which another has established for
himself in a particular trade or business. The action is
regarded as an action for deceit. The tort of passing-off
involves a misrepresentation made by the trader to his
prospective customers calculated to injure, as a reasonably
foreseeable consequence, the business or goodwill of
another which actually or probably, causes damages to the
business or good of the other trader.....".

        In the above cited judgment, suit is in the nature of
passing off action filed by the respondents to restrain the
appellants from manufacturing, selling, advertising or in any
way using the trade mark Whirlpool in their product (washing
machine) deceptively or confusingly.   In the said case, the
respondent has long association with the word Whirlpool who
acquired trans-India reputation in respect of the same and that
there was no reliable evidence of the appellants having marketed
their product in that name for a considerable length of time and
that irreparable injury would be caused to respondents
reputation and goodwill as the product of appellants baring that
mark was of lower standard and quality.  Accordingly, the
Honble Supreme Court, confirmed the injunction granted by the
High Court in favour of the respondent therein. No evidence is
produced in this case to show that the alleged trademark
attained secondary meaning.  In the instant case on hand,
plaintiff has also not produced any evidence to show that the
product sold by the defendant is deceptively similar to that of
the plaintiffs product thereby causing irreparable injury to
reputation and goodwill of the product of the plaintiff.
      b) The Supreme Court in Cadila Healthcare Ltd., v. Gujarat Co-
operative Milk (supra)  laid down certain broad principles, while
granting injunction, the relevant portion is as follows:-
        18. Over the years, the Law of Passing off has gradually undergone a
paradigm shift. Whilst the principles of the Law have not changed in
principle, the judicial approach whilst adjudicating upon an action for
passing off has gradually changed as the Courts have become more
circumspective of those who complain of deception. This is primarily
owing to the propensity of traders in adopting purely descriptive words as
trade marks, which, in effect, has a direct bearing on other potential traders
intending to use such descriptive words for highlighting the characteristic
attributes of their products. Though there is no restrain on traders from
using purely descriptive words as trade marks, any trader who adopts a
trade mark of such nature is proscribed by the cannone of fair competition
to claim monopoly or exclusivity in respect of thereof. Even though an
action for passing off, in essence, continues to protect the distinctiveness
associated with trade marks, it has become a challenge for Courts of law to
ensure that no passing off action results in creating monopoly rights in the
use of trade marks which are inherently descriptive or public Jurisdiction in
nature.

       51. It is noteworthy that throughout the course of the
proceedings before this Court, the main plank of the plaintiff's
contentions has been that the right to use a descriptive word even
when it has acquired a secondary meaning would be permissible if
and only if that is the only manner in which the product can be
described and in no other. To make good its point, the plaintiff has
proposed various similar permutations and combinations, viz. 'No
Sugar', 'Without Sugar', 'Free of Sugar', etc., using which the
defendant can convey the special attributes of its product Pro
Biotic Frozen Dessert. This contention of the plaintiff per se does
not impress me. Simply because a number of alternatives are
available to defendant to describe its product Pro Biotic Frozen
Dessert does not imply that the plaintiff be allowed to arrogate to
itself the monopoly to use the expression 'Sugar Free', especially
when the said expression being inherently descriptive in nature
has become public Jurisdiction in relation to foods and beverages.
       54. It is important to be borne in mind that use of a descriptive
expression as a trade mark by a trader, irrespective of the said trade
mark having acquired a secondary meaning and distinctiveness in
relation to the trader's products, does not entitle such trader from
precluding other traders from using the said expression for the
purposes of describing the characteristic features of their products. I
have no hesitation in stating, albeit without prejudice to the rights
and interests of the plaintiff in the present suit, that by adopting
such a purely descriptive and laudatory expression 'Sugar Free' as
its trade mark, the plaintiff must be prepared to tolerate some degree
of confusion which is inevitable owing to the wide spread use of such
trade mark by fellow competitors. Simply because the plaintiff claims
to be using the expression 'Sugar Free' as a trade mark much prior
to the launch of the defendant's product Pro Biotic Frozen Dessert in
the market does not give this Court a good ground for imposing a
blanket injunction on the defendant from using the expression
'Sugar Free', especially when the defendant intends to use this
expression only in its descriptive sense and not as a trade mark, and
even otherwise, when the use of this expression is widespread in
relation to foods and beverages.
       57. No doubt that the confusion emanating from the conspicuous
display of the expression 'sugar free' on the packaging of the
defendant's product is hard to ignore. However, I am afraid that
imposing a blanket injunction on the use of a public Jurisdiction
expression like 'sugar free' will inequitably allow the plaintiff to
monopolise the use of such expression, and this, in effect, will be
antithetical to fair competition in trade and commerce. Thus, the
challenge, in essence, before this Court is to provide such relief
which would maintain the balance between the private right of the
plaintiff to use the expression 'Sugar Free' as its trade mark and the
larger public right of traders to use the said expression in its
descriptive sense.

                As held in Cadila Healthcare Ltd., v. Gujarat Co-operative Milk
(supra) imposing a blanket injunction on the use of a public
jurisdiction expression will be antithetical to fair competition in
trade and commerce.
       
        c) In Commissioner of Central Excise, Mumbai v. M/s.Kalvert
Foods India Pvt. Ltd., (supra), the Honble Supreme Court held as
follows:
  32. In our considered opinion, the aforesaid brand name "New
Improved Quick Frozen French Fries" is a descriptive word and the
same could not have been termed and coined either as a "house name"
or a "brand name" under any circumstances. There can be no dispute
therefore with regard to the proposition of law laid down by this Court
in the aforesaid decision..
       In the instant case on hand, the use of descriptive words
Stable 2y++ Single Solution KF reagent describes the stability
and quality of the product, cannot be claimed by the
respondent/plaintiff as its trade mark, there is every likelihood
of confusion which is inevitable owing to the wide spread use of
such trade mark by fellow competitors. Simply because the
respondent/plaintiff claims to be using the expression Stable
2y++ Single Solution KF reagent as a trade mark much prior to
the launch of the appellants product Stable 2y++ in the market
is not a good ground for imposing a blanket injunction on the
appellant from using the expression 'Stable 2y++, especially
when the appellant/defendant intends to use this expression
only in its descriptive sense and not as a trade mark, and even
otherwise.  As stated supra, the words Stable 2Y++ Single
Solution KF reagent is descriptive in nature.  It has been held
that no one can claim proprietorship over the trade mark in
respect of descriptive words.   As such, the appellant/defendant
cannot be prevented from using a descriptive term in its original
descriptive sense, unless it has wholly lost that descriptive sense
and become distinctive of the respondent/plaintiff in every
context.
14.       In Ashwini Chemical Works, Hyderabad v. Aswini Homeo
Pharmacy, R.R.District and another (supra),  the trade mark of the
appellant/defendant Ashwini is held deceptively similar in
sound as that of the trade mark of the respondents/plaintiffs
i.e., Aswini and there is any amount of confusion among the
customers believe that the detergent cake marketed by the
appellant/defendant in the nature of Ashwini as that of
respondent/plaintiff.    The purchasers on looking at the product
of the appellant/defendant with trademark Ashwini there is
every likelihood of their believing that the product is that of the
respondents/plaintiffs. As the respondents/plaintiffs therein
have satisfied all the essential ingredients for grant of temporary
injunction, the injunction granted in favour of the
respondent/plaintiff is confirmed by this Court.
15.        A descriptive trade mark may be entitled to protection
if it has assumed a secondary meaning which identifies it with
a particular product or as being from a particular source. A
mark which is prima facie descriptive will only be protected if
it can be shown to have acquired secondary meaning that is to
say, if it has become distinctive of the respondent/plaintiff.
No doubt, injunction can be granted in respect of passing off
action even in respect of descriptive word when the same has
attained secondary meaning as held in T.V.Venugopal v.
Ushodaya Enterprises Ltd.s case (supra), wherein it is held as
follows:
       100. The respondent companys mark Eenadu has acquired
extra-ordinary reputation and goodwill in the State of Andhra Pradesh.
Eenadu newspaper and TV are extremely well known and almost
household words in the State of Andhra Pradesh.  The word Eenadu
may be a descriptive word but has acquired a secondary or subsidiary
meaning and is fully identified with the products and services provided
by the respondent company.
16.      In Office Cleaning Services Limited v. Westminster Office
Cleaning Association  wherein the Court observed that the word
office cleaning was held to be a descriptive word, for it is a
descriptive of the business they carry on.    It was held that the
plaintiff could assume or establish monopoly on the said word
only when they show that they have acquired a secondary or
subsidiary meaning.  But in the present case, no evidence is let
in to show that the Stable 2y++ has attained secondary
meaning regarding the product of the respondent/plaintiff.
Moreover, the application for registration of trade mark applied
by the respondent/plaintiff in respect of the subject trade mark,
admittedly is pending and the same has to be considered by the
Registrar of Trade Marks.  The trial Court erroneously held that
the appellant/defendant has not placed any material before the
Court to show that there is definite formula to describe the
product as Stable 2y++.   In fact, the plaintiff himself stated in
the affidavit in support of the injunction petition that the word
Stable 2Y++ is indicative of stability of the product.  In fact, the
burden of proof lies on the plaintiff to prove his case.
17.       In Sri Sai Agencies Pvt. Ltd., v. Chintala Rama Rao (supra),
this Court observed that the seller introducing products earlier
is entitled for injunction.  It is a case wherein the producers of
ghee using the trade marks as Mathura ghee and Mathurag
ghee and the only difference between two trade marks is
alphabet G.  Both the trade marks are phonetically similar and
there is not much of difference in pictorial and monogram and
the use of trade mark Mathurag by rival producer commencing
after lapse of five years is likely to deceive and confuse
customers.  The owner of the trade mark Mathura popularized
his mark by investing huge amount for advertisements, through
different media right from the date of marketing his goods.  As
such, the prior user of the product i.e., Mathura is entitled for
injunction.
18.      Though the Court below held that Stable 2Y++ is unique
style of the plaintiff to describe its product, but no evidence is
placed evidencing the same.  The Court below also found that
the defendant is using his product under trade name KF 2Y
and not as Stable 2Y++.  When plaintiff is using the trade mark
of KF 2Y, no cause of action arises for granting of injunction, as
such,  granting of injunction restraining the defendant from
using the trade mark KF 2Y++ is erroneous.    A perusal of
Exs.P3 to P13 and Exs.R2 to R5 goes to show that labels and 
style of font mentioning as Stable 2Y++ and the colour and logo
are also not similar and back ground is also not similar.
Besides the logo, the plaintiff is using the word Standard
Reagents whereas the defendant is using Shine Chem 
Laboratories. As far as  Single Solution is concerned, it is
descriptive word and Stable 2Y++ even according to the
plaintiff, is descriptive in nature.  The numeral 2 along with
Y++ refers to the stability period being 2 years and single
solution refers to composition of the solution.  The mark Stable
2Y++ Single Solution of the plaintiff does not have any
distinctiveness and the descriptive sentence Single Solution KF
Reagent cannot be called as a proprietary mark or the
trademark.   Whether the words Stable 2Y++ has attained
secondary meaning regarding the products of the plaintiff has to
be gone into in the suit after evidence is let in by both parties.
In view of above facts and circumstances other decisions relied
on by both sides have no application to the facts of the case.
19.         Apart from above, the plaintiff had not produced any
documentary evidence showing that it has suffered damage or is
likely to suffer damage because of the sale of the product by the
defendant as that of the plaintiff.  In the absence of the same,
there cannot be any passing-off by the appellant as claimed by
the respondent/plaintiff.
       In  LAXMIKANT V. PATELs case ( supra), the Supreme
Court has explained the essentials which constitute passing off
action, by holding as under:
        12The three elements of passing off action are the
reputation of goods, possibility of deception and likelihood of
damages to the plaintiff.  In our opinion, the same principle,
which applies to trade mark, is applicable to trade name.
        13. In an action for passing off it is usual, rather
essential, to seek an injunction, temporary and ad-interim.  The
principles for the grant of such injunction are the same as in the
case of any other action against injury complained of.  The
plaintiff must prove a prima facie case, availability of balance of
convenience in his favour and his suffering an irreparable injury
in the absence of grant of injunction.

      Accordingly, both the points are answered in favour of the
appellant.
       In view of above facts and circumstances, the impugned
order of the Court below is set aside.  It is needless to state that
the Court below shall dispose of the suit, after considering the
oral and documentary evidence of both sides, without being
influenced by any of the observations made hereunder.
        Accordingly, the Civil Miscellaneous Appeal is allowed.
There shall be no order as to costs.  As a sequel thereto,
miscellaneous petitions, if any, pending shall stand closed.
____________________________    
A.RAJASHEKER REDDY, J    
29.04.2016

Order VII Rule 14(3) CPC = to decide the quantum of compensation, earnings of the victim is a relevant factor -Petitioner has explained the reasons for not filing these documents along with the O.P. and that explanation was not disputed by the opposite parties. The Tribunal instead of allowing the claimant to produce those documents in evidence dismissed the applications merely on hyper technicalities.- Considering these aspects, I feel that the Tribunal has grossly erred in dismissing both the applications and failed to exercise the judicial discretion vested in it.

CRP 1279 / 2016

CRPSR 11164 / 2014

CASE IS:DISPOSED

PETITIONER RESPONDENT PADALA SRINIVASA RAO   VS MADIREDDY ADINARAYANA & 2 OTHERS PET.ADV. : CHANDRA SEKHAR ILAPAKURTI RESP.ADV. : SRINIVASA RAO VUTLA SUBJECT: ARTICLE 227 DISTRICT:  EAST GODAVARI

THE HON’BLE SRI JUSTICE S. RAVI KUMAR
C.R.P. Nos. 1202 of 2012 and 1279 of 2016
COMMON ORDER:
These two Revisions are preferred against common order dt.09.01.2012 in I.A.No.64 of 2012 and I.A.No.65 of 2012 in MVOP.No.264 of 2010 on the file of the Motor Accidents Claims Tribunal-cum-District Court, East Godavari District at Rajahmundry (for short ‘the Tribunal’).
2. These two petitions are filed by the claimant in the above referred O.P., one to receive documents by condoning delay and the other to recall him for the purpose of marking those documents.
3. The contesting respondent in the O.P. reported no counter for the reliefs claimed in the two petitions.
4. The Tribunal dismissed the said applications purely on technical ground that Order VII Rule 14(3) CPC is incorporated in CPC to minimize the delay in disposal of the cases and filing this type of applications would amount to protract the proceedings.
5. Heard both sides.
6. Admittedly, main case before the Tribunal is claiming compensation for the injuries sustained by the revision petitioner in a motor accident. It is also not in dispute that the legislation under the Motor Vehicles Act is a beneficial legislation and the Courts have to show a liberal approach in dealing with such cases.
7. The revision petitioner sought to file 
(1) disability certificate issued by the District Medical Board, Kakinada, 
(2) appointment letter of Scott Willsion India (P) Ltd., (under NHAI), 
(3) approved letter issued by NHAI, 
(4) confirmation letter of Scott Willsion (P) Ltd under NHAI, 
(5) salary slips issued by Scott Willsion (p) Ltd under NHAI showing that he is drawing a salary of Rs.22,000/- per month, and 
(6) service certificate from Nov., 2006 to 2010 issued by Scott Willsion under NHAI. 
8. It is not in dispute that, to decide the quantum of compensation, earnings of the victim is a relevant factor. Petitioner has explained the reasons for not filing these documents along with the O.P. and that explanation was not disputed by the opposite parties. The Tribunal instead of allowing the claimant to produce those documents in evidence dismissed the applications merely on hyper technicalities. Claim petition filed by the revision petitioner remained as pending, because of the stay granted by this Court, in these revisions.
9. Considering these aspects, I feel that the Tribunal has grossly erred in dismissing both the applications and failed to exercise the judicial discretion vested in it.
10. For these reasons, the impugned order dt.09.01.2012 in I.A.No.64 of 2012 and I.A.No.65 of 2012 is set aside. Consequently, I.A.No.64 of 2012 and I.A.No.65 of 2012 are allowed. As it is an old matter, the Tribunal is directed to dispose of the OP.No.264 of 2010 within a period of two (02) months from the date of receipt of a copy of this order. 11. Accordingly, both the Civil Revision Petitions are allowed. No costs. 12. As a sequel, miscellaneous petitions, if any, shall stand dismissed. ____________________ S. RAVI KUMAR, J 22 nd July, 2016. gra

Suit for Declaration the alleged sale deeds of which they are not parties are null and void and not binding on them and also for injunction – court fee is only on Notional value but not on the value of sale deeds as per sec.24 of A.P.C.F. & S.V.ACT= 46. The reliance on Section 24 by the court below in this regard also cannot be sustained since the provisions therein would be attracted only if the petitioners have sought a declaration of their title and sought relief of possession/injunction or if they sought for a declaration that documents to which they are parties are null and void or a declaration of any nature other than one sought for in the plaint. The said provision would have no application in a situation where the petitioners are not parties to the documents which they wish to be declared as null and void and not binding on them. 2015 Oct. http://judis.nic.in/Judis_Andhra/list_new2.asp?FileName=13278

THE HONBLE SRI JUSTICE M.S. RAMACHANDRA RAO

CRP.No.4485 of 2012

27-10-2015

Nade Ali Mirza, S/o.Late Haider Ali Mirza, And othersRevision Petitioners

Mrs.Khalida Mohammed Salim Dawawala, W/o.Mohd. Saleem Dawawala, and

others....Respondents

Counsel for the petitioners: Sri Sri P.Venugopala Rao

Counsel for respondent Nos.1 to 7: Sri Rakesh Sanghi

Counsel for respondent No.30 : Sri Asadullah Sharif

<GIST:

>HEAD NOTE:

? Cases referred

1. ILR 34 Cal. 329 (P.C.)

2. AIR 1940 Mad. 113

3. 2007 (5) ALD 863

4. AIR 1976 AP 199

5. 1989 (3) ALT 629

6. 2005 (6) ALD 132

7. 1972 (2) APLJ 100

8. 2009 (1) ALT 219

9. 2000 (5) ALD 102

10. 2003 (4) ALD 345

11. 2007 (4) ALD 458

12. AIR 1939 Madras 462

13. AIR 2010 AP 178

14. AIR 2010 SC 2777

15. AIR 2014 SC 1286

16. AIR 2002 SC 233

17. AIR 1973 SC 2384

18. AIR 2010 SC 2807

19. (1980) 4 SCC 354

20. (1993) 2 ALT 48 (FB)

21. 35 Indian Appeals 98

22. 1956 An.W.R. 1033

23. 1948 (I) M.L.J. 270

24. AIR 1966 SC 216

25. (1891) 14 Mad 26

26. (2004) 13 SCC 480

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO

C.R.P.No.4485 of 2012

ORDER:

This Revision Petition is filed under Article 227 of the

Constitution of India challenging the order dt.31-07-2012 in

O.S.No.324 of 2011 of the Principal District Judge, R.R. District at

L.B. Nagar, Hyderabad.

THE SUIT

2. The petitioners herein are plaintiffs in the above suit.

They filed the said suit against respondent Nos.1 to 143 for the

following reliefs:

(a) for a perpetual injunction restraining them from interfering with

the alleged peaceful possession and enjoyment of the petitioners over

the plaint schedule property and also not to alienate the same to any

third party; and

(b) to declare 107 registered sale deeds and agreements of sale cum-

GPAs mentioned therein which were registered in the office of the

Sub Registrar, Rajendranagar, Ranga Reddy District as null and void.

3. The subject matter of the suit is an extent of Ac.39.11

gts. in Sy. Nos.310, 311 and 312 of Budwel village, Rajendranagar

Mandal, Ranga Reddy District.

4. The petitioners valued the relief of perpetual injunction

notionally at Rs.18.00 lakhs and the relief of declaration to declare the

above documents as null and void also at Rs.18.00 lakhs and paid

court fee thereon.

THE APPLICATION UNDER SEC.11(2) OF RESPONDENT NO.S 1-7

5. Respondent Nos.1 to 7 herein who are defendant Nos.99,

100, 109 to 113 filed I.A.No.3373 of 2011 under Section 11 (2) of the

AP Court Fee and Suit Valuations Act, 1956 (for short the Act)

praying the Court below to decide the correctness of the valuation and

Court Fee paid by the petitioners insofar as the relief of declaration

that the 107 documents (mentioned in the plaint) are null and void is

concerned.

6. They alleged that the petitioners had grossly under

valued the suit schedule property showing that its entire value as only

Rs.20.00 lakhs; that although this Court had issued instructions on the

administrative side to subordinate District Courts to ensure that parties

filed market value certificate issued by the concerned Sub

Registrar/Registrar, to ensure that correct payment of Court Fee is

made by a litigant, and to prevent under valuing of suit claims, the

petitioners did not enclose the market value certificate of the

concerned Sub Registrar along with the plaint; in fact as per a market

value certificate obtained by the respondent Nos.1 to 7, the market

value of the suit schedule property is Rs.47,52,27,500/-, but the

petitioners have not paid court fee on this basis; and since the suit

claim is under valued, it amounts to playing fraud on the Court and

the plaint should be thrown out. They contended that although an

objection as to valuation of the reliefs was initially raised by the Court

below, subsequently the said objection was heard by the Court below

and not pressed by it, but later at the instance of the respondent Nos.1

to 7 who objected to the valuation, the Court permitted the suit to be

registered subject to objection. They contended that even as per the

averments in the plaint, the petitioners did not prove the paramount

title and ownership of late Haider Ali Mirza as regards the suit

schedule property even though the petitioners are claiming through

him, that they also did not produce any document in support of their

above plea and so the petitioners are bound to seek relief of

declaration of their title to the plaint schedule property under clauses

(a) or (b) of Section 24 of the Act. They contended that the relief of

declaration that the documents in favor of defendant Nos.9 to 144 are

illegal, null and void virtually amounts to seeking cancellation of the

said documents and the petitioners ought to have valued it under

Section 37 of the Act. It is further contended that by trick of pleading,

the petitioners had grossly under valued the suit and misled the Court

below to grant relief of declaration of title without valuing it under

Section 24 (a) and / or (b) of the Act and they cannot rely on Section

24 (d) of the Act. They therefore contended that the market value of

the property covered by each of the 107 documents questioned by the

petitioners should be taken into account for the purpose of calculation

of Court Fee and that since the said valuation is Rs.47,52,27,500/-, the

petitioners should be directed to pay Court Fee on the said valuation

under Section 24 (d) of the Act.

THE COUNTER AFFIDAVIT OF PETITIONERS

7. Counter affidavit was filed by the petitioners disputing

the above contentions and asserting that the suit has been valued

correctly and Court Fee was also correctly paid. The petitioners

denied that they played any fraud and contended that the respondent

Nos.1 to 7 had no locus standi to dispute the same. The petitioners

insisted that the valuation of the declaratory relief sought in the plaint

under Section 24 (d) of the Act is correct and valid. They contended

that they are successors to Haider Ali Mirza and are absolute owners

of the plaint schedule property and entitled to question the validity of

107 documents executed among the defendants and to have them

declared as null and void. They contended that they are not parties to

those 107 documents which they seek to be declared as null and void,

that they are not binding upon them, and that they need not show

separate value of each document since they have pleaded that the

documents are false and bogus. They contended that without filing

Written Statement, it is not open to the respondent Nos.1 to 7 to file

this application. They claim that defendant Nos.1 to 4 and 8 in their

Written Statement had admitted that the original pattedar is the father

of the petitioners and so the paramount title was admitted to be with

the petitioners. They contended that Section 24 (a) or (b) of the Act

are not attracted and that only Section 24 (d) is attracted. They

alleged that there is no need for the petitioners to seek cancellation of

the 107 documents or value them under Section 37 of the Act. They

contended that the respondent Nos.1 to 7 cannot contend that

valuation of the suit should be determined on the basis of

consideration mentioned in the sale deeds and the said I.A. be

dismissed.

THE ORDER OF THE TRIAL COURT

8. By order dt.31-07-2012, the Court below allowed the

said I.A. and directed the petitioners to value the suit insofar as the

relief of declaration declaring the 107 sale deeds as null and void and

not binding on the plaintiffs as per the valuation certificate Ex.A-1

dt.27-07-2011 issued by the Sub Registrar, Rajendranagar, Ranga

Reddy District filed by the respondent Nos.1 to 7 valuing the suit

schedule property at Rs.47,52,27,500/-, and pay the Court Fee thereon

before 14-08-2012 failing which it directed that the plaint would be

rejected.

9. After referring to the case laws cited by both sides, the

Court observed that there is no prayer for declaration of title sought by

the petitioners in the plaint and they had sought only injunction

simplicitor; that without seeking relief for declaration that the

petitioners are absolute owners and possessors of the suit schedule

property, the petitioners want to declare all the 107 documents

executed by some of the defendants as null and void and not binding

on them; the relief of injunction simplicitor, which is shown as the

main relief in the plaint, cannot be treated as a main relief when the

relief of declaration of whatever nature is added to it, and at best it

can be treated as a consequential/ancillary relief. It held that whenever

a declaration is sought for, it is incumbent on the part of the

petitioners to value the suit as per Section 24 (d) of the Act and for

that purpose, they should take the total value of the suit property into

consideration. It held that the petitioners had filed Form No.8

showing market value of the land as only Rs.20.00 lakhs and paid

Court Fee thereon while Ex.A-1 market value certificate issued by the

Sub Registrar on 27-07-2011 shows that the market value is more than

Rs.47.52 crores, and since the petitioners are seeking a declaration in

respect of that land and also seeking the documents to be declared as

null and void, they should value the suit as per the said market value

and cannot notionally fix the market value at Rs.18.00 lakhs and pay

Court Fee as they did.

THE REVISION BY PETITIONERS

10. Challenging the same, this Revision Petition is filed.

11. Heard Sri P.Venugopala Rao, learned counsel for the

petitioners, Sri Rakesh Sanghi, learned counsel for respondent Nos.1

to 7 and Sri Asadullah Sharif, learned counsel for respondent No.30.

The respondents 8-143 have been shown as not necessary parties to

the Revision.

THE CONTENTIONS OF COUNSEL FOR PETITIONERS

12. The learned counsel for the respective parties reiterated

the stand taken by them in the Court below. In addition, the counsel

for the petitioners contended that since the petitioners are not eo

nominee parties to the 107 documents in respect of which declaratory

relief was sought by them in the plaint, they are not bound to sue for a

declaration or for cancellation of each of them and such a prayer even

if it is there, needs to be ignored and Court Fee need not be paid

thereon. He relied upon Bijoy Gopala Mukerji Vs. Krishna

Mahishi Debi , Ramaswami Ayyangar Vs. Rangachariar and

Mohd. Ikramuddin Vs. Sangram Bosle and others . He further

contended that the view taken by the Court below that the petitioners

should pay Court Fee on the basis of market value of the suit schedule

property in respect of the relief of declaration sought by the

petitioners, is contrary to law, and that the Court below is not correct

in concluding that the petitioners are in fact seeking a declaration in

respect of the suit schedule land. He also disputed the finding of the

Court below that the relief of injunction sought for by the petitioners,

in the facts and circumstances of the case, is not a main relief but only

a consequential/ancillary relief.

CONTENTIONS OF COUNSEL FOR RESPONDENTS

13. The learned counsel for the respondent Nos.1 to 7

contended that the reasoning of the Court below is correct and that

there is no substance in the contentions raised by the counsel for the

petitioners. According to him, the purpose of payment of Court Fee is

for the benefit of the State and the petitioners cannot be allowed to

under value the suit by a trick of pleading and get away with it. He

contended that the petitioners are bound to seek declaration of their

title to the plaint schedule property and since they have not chosen to

do so, the plaint is liable to be rejected. He contended that the

petitioners ought to have valued the suit under Section 24 (a) and (b)

of the Act and not under Section 24 (d) of the Act and they should

have paid Court Fee on the market value of the property on the date of

filing of the suit. He contended that the relief of declaration claimed

by the petitioners in effect amounts to seeking relief of cancellation of

the documents/sale deeds and under Section 37 of the Act they should

pay Court Fee on the market value of the property comprised in the

sale deeds. He also contended that the Revision itself is not

maintainable. He relied upon Mohd. Shahbuddin and another Vs.

Ahmed Saifulah Hussain and others , Satyanarayana Vs. Om

Prakash and others , D.D.Nirmal Kumar and others Vs.

G.Sundera Shekhar and others , N. Kuru Murthy v.

M. Narasaiah , Koganti Sujani Vs. Vissamsetti Sankar Babu and

others , V.Rajeshwar Rao Vs. N.Yadagiri and others , State of AP

and others Vs. Narender Reddy and others , Chirala Rate Payers

and Civic Amenities Association Chirala, Prakasam District Vs.

Chirala Municipality , Kolachala Kutumba Shastri Vs.

Lakharaji Bala Tripura Sundaramma and others ,

M/s.Lakshminagar Housing Welfare Association, Hyderabad Vs.

Syed Sami and others , Satheedevi Vs. Prasanna and others and

Polamrasetti Manikyam and another Vs. Teegala Venkat

Ramayya and others .

14. I have noted the submissions of both sides.

POINT FOR CONSIDERATION

15. Therefore, the point for consideration is whether the

Court below was correct in holding that for the relief prayed by the

petitioners seeking declaration that 107 documents executed among

the defendants are null and void and not binding on them, the

valuation of the suit and the payment of Court Fee thereon by them is

not correct and that the petitioners are bound to pay court fee on the

market value of the plaint schedule property ?

THE CONSIDERATION BY THE COURT

16. From the plaint copy filed by petitioners, it is clear that

the petitioners contend that the plaint schedule property belongs to

their late father Hyder Ali Mirza, that they have inherited it from him,

and that they are in possession and enjoyment thereof. They alleged

that that the respondents have no right, title or interest therein and the

respondents have executed 107 registered sale deeds and agreement of

sale cum GPAs nominally and collusively even though they have

no valid title to the plaint schedule property. They have sought in the

plaint two reliefs : (a) for perpetual injunction restraining the

respondents nos.1 to 143 from interfering with the peaceful possession

and enjoyment of the petitioners over the plaint schedule property and

(b) to declare 107 registered sale deeds and agreement of sale cum -

General Power of Attorneys executed amongst the

defendants/respondents as null and void and not binding on them.

Re: Section 11(1) (a) :

17. Clause (a) of Sub-section (1) of Section 11 of the Act

mandates a Court before which a plaint is presented, to register it as a

suit only after deciding, on the allegations contained in the plaint and

the materials furnished by the plaintiff, the proper court fee payable

thereon. Clause (b) of sub-section (1) of Section 11 thereof makes the

decision of the Court under Clause (a) regarding the proper fee

payable subject to review, from time to time, as occasion requires.

18. In Kamaleshwar Kishore Singh v. Paras Nath Singh

and others , the Supreme Court held that, the decision on court fee

can normally only be based on the plaint as framed and not on the

plaint as it ought to have been framed, that, in certain circumstances

the Court can however come to the conclusion that the drafting of the

plaint was such that the plaintiff is attempting to evade payment of

correct court fee or that there is a provision of law requiring the

plaintiff to value the suit and pay the court fee in a manner other than

the one adopted by the plaintiff. It held that a court is enjoined to

begin with an assumption, for the purpose of determining the court

fees payable on the plaint, that the averments made therein by the

plaintiff are correct and that this did not preclude the court from

interfering if there is an arbitrary valuation of the suit property having

no basis at all for such valuation and made so as to evade payment of

court fee, or given for the purpose of conferring jurisdiction on some

court which it did not have, or depriving the court of jurisdiction

which it would otherwise have. It is the substance of the relief sought

for and not the form which will be determinative of the valuation and

payment of court fee. The defence taken in the written statement may

not be relevant for the purpose of deciding the payment of court fee

by the plaintiff. If the plaintiff is ultimately found to have omitted to

seek an essential relief which he ought to have prayed for, and without

which the relief sought for in the plaint as framed and filed cannot be

allowed to him, the plaintiff shall have to suffer the dismissal of the

suit.

19. In view of this settled principle of law, the court has to

proceed on the basis of the averments in the plaint. At this point of

time, when even a written statement is not filed by respondents 1-7, it

is not possible to say that by a trick of pleading the petitioners are

evading payment of court fee. So the contention of the respondents

that the petitioners should have also sought for declaration of title

specifically in the plaint and valued the same on the basis of the

market value of the property comprised in the 107 documents sought

to be declared as null and void, cannot be accepted because whether

such a relief also ought to have been prayed for by the petitioners,

without which the reliefs sought in the plaint by them as framed

cannot be granted, is a matter to be decided after trial and after

arguments are heard in the suit after the suit is registered.

Re: Sec.11(2) and Sec. 11 (3)

20. Sub-section (2) of Section 11 gives an option to any

defendant to plead that the subject matter of the suit has not been

properly valued or that the fee paid is not sufficient. It enjoins that all

questions arising on such pleas shall be heard and decided before the

hearing of the suit as contemplated by Order 18 C.P.C. It directs that

if the Court decided that the subject matter of the suit is not properly

valued or that the fee paid is not sufficient, the court shall fix a date

before which the subject matter of the suit shall be valued in

accordance with the courts decision and the deficit fee shall be paid.

It however directs that if within the time allowed, the subject matter of

the suit is not valued in accordance with the courts decision or if the

deficit fee is not paid, the plaint shall be rejected and the court shall

pass such order as it deems just regarding costs of the suit. This

decision of the trial court on the aspect of court fee can also be gone

into by the Court of Appeal either suo moto or on the application of

any party. [Section 11 (3) of the Act]

21. Sub-section (2) of Section 11 is the provision relied on

by the respondent nos.1 to 7 in I.A.No.3373 of 2011 seeking a

decision of the court below on the correctness of the valuation of the

suit and the court fee paid by the petitioners on the relief of

declaration that the 107 sale deeds/agreements of sale cum - GPAs

are null and void and not binding on the petitioners.

22. This provision was interpreted by a Division Bench of

this Court in Satyanarayana (5 supra). The Bench held that the

words in Section 11 (2) of the Act shall be heard and decided before

the hearing of the suit are only directory and not mandatory. The

Bench held that the purpose for which the provision is made is only to

see that proper court fee is collected from the plaintiff by the court

and the defendant is only given a right to point out regarding the

deficiency of the court fee paid and that should be limited and should

not be extended to enable him to protract the trial of the suit. It

further held that the defendant is not aggrieved by any such decision

and merely because he is given a right to contest the valuation, he

cannot be permitted to use the same as a weapon to protract the

litigation. It held that only in cases where the question of payment of

court fee affects the very pecuniary jurisdiction, it is necessary for the

court to investigate and examine and then decide it as a preliminary

issue, if it is satisfied that the jurisdictional question is involved and

that in such cases only, the defendant can move the higher courts on

the ground that the dispute regarding court fee is not tried as a

preliminary issue. In other disputes relating to payment of court fee, it

should be left to the discretion of the court to try the same as a

preliminary issue or try jointly along with other issues. The Bench

also considered the view in Mohd. Shahbuddin and another

(4 supra) and overruled the same. Therefore, the counsel for

respondent nos.1 to 7 is not entitled to place any reliance on the

decision in Mohd. Shahbuddin and another (4 supra).

23. In the present case, the plaint was presented in the

District Court at Ranga Reddy, the Court which has unlimited

pecuniary jurisdiction. So it cannot be said that to approach a court

with lesser pecuniary jurisdiction, the plaint was undervalued.

REVISION FILED BY PETITIONERS MAINTAINABLE

24. The Division Bench in Satyanarayana (5 supra)

followed the decision of Supreme Court in Shamsher Singh v.

Rajendra Prasad in holding that no Revision would lie against the

decision on the question of adequacy of court fee at the instance of a

defendant. Similar view has been taken in N. Kurumurthy (7 supra)

and Koganti Sujani (8 supra).

25. The counsel for respondents nos.1 to 7 sought to rely on

the judgment in Satyanarayana (5 supra), N. Kurumurthy (7 supra)

and Koganti Sujani (8 supra) to contend that the petitioners cannot

file a Revision challenging the order of the court below passed in

exercise of its power under Section 11 (2). This contention is not

tenable for the reason that the petitioners are not defendants in the suit

and they are plaintiffs and the impugned order affects their rights to

prosecute the suit. Therefore, in my considered opinion, the

petitioners are entitled to question the same under Article 227 of the

Constitution of India.

IS A PLAINTIFF, WHO IS NOT PARTY TO A SALE

DEED/CONVEYANCE/DEED AND WHO SEEKS TO QUESTION IT,

BOUND TO SEEK CANCELLATION OF IT ?

26. This issue was considered in Suhrid Singh v. Randhir

Singh while considering the provisions of the Court Fee Act (7 of

1870). The Supreme Court held that where the executant of a deed

wants it to be annulled, he has to seek cancellation of the deed but if a

non-executant seeks annulment of a deed, he has to seek a declaration

that the deed is invalid, or non est or illegal or that it is not binding on

him. The Court explained the difference between a prayer for

cancellation and declaration in regard to a deed of

transfer/conveyance by giving an illustration. In the said illustration if

A and B are two brothers and A executes a sale deed in favour of C

and later wants to avoid it, he has to sue for cancellation of the deed.

On the other hand, if B, who is not an executant of the deed, wants to

avoid it, he has to sue for a declaration that the deed executed by A is

invalid/void and non est/illegal and he is not bound by it. It observed

that in essence both may be suing to have the deed set aside or

declared as not binding, but the form is different and the court fee is

also different.

27. Admittedly, in the present case, the petitioners are not

parties to the 107 documents which they seek to be declared as null

and void and not binding on them. Therefore, in view of the above

decision, it cannot be said that they are bound to seek relief of

cancellation of the 107 documents and compute court fee on the

market value of the land comprised therein.

28. It is not disputed by both parties that only if the

petitioners were to seek relief of cancellation of the 107 documents

mentioned in the plaint, Section 37 of the Act would get attracted.

29. The said Section 37 directs that in a suit for cancellation

of a decree for money or other property having money value, or other

document which purports or operates to create, declare, assign, limit

or extinguish, whether in present or in future, any right, title or

interest in money, moveable or immovable property, fee shall be

computed on the value of the subject matter of the suit. It enjoins that

such value shall be deemed to be, (a) if the whole decree or other

document is sought to be cancelled, the amount or value of the

property for which the decree was passed or other document was

executed, and (b) if part of the decree or other document is sought to

be cancelled, such part of the amount or of the value of the property.

Sub-section (2) is not relevant for our purpose.

30. Though a Full Bench of this Court in Lakshminagar

Housing Welfare Association (13 supra) took the view following the

Full Bench decision of the Madras High Court in Kolachala

Kutumba Sastri (12 supra) that the court fee should be computed, in

a suit for cancellation of a deed of conveyance, on the market value of

the property which is subject matter of the said deed, the said decision

was over-ruled in Polamarasetti Manikyam (15 supra) by the

Supreme Court. The Supreme Court followed its decision in Sathee

Devi (14 supra) while interpreting Section 37 of the Act and held that

the term value of property mentioned in the said provision does not

mean market value of the property and that court fee has to be

calculated on the sale consideration mentioned in the sale

deed/conveyance.

31. However, as stated above, since the petitioners are not

parties to the 107 documents which they seek to be declared as null

and void and not binding on them, they are not bound to seek the

relief of cancellation of these 107 documents and they are not bound

to pay court fee as computed under Section 37 of the Act. Therefore,

the above decisions cited by the counsel for respondent nos.1 to 7

cannot be applied to the present case.

IF A SALE DEED/CONVEYANCE/DEED IS NULL AND VOID,

SPECIFIC PRAYER TO SET IT ASIDE IS UNNECESSARY

32. If a sale deed, according to the plaintiff is null and void,

and non-est in the eye of law he need not seek to have it set aside.

This principle was laid down in Mahadeo Prasad Singh v. Ram

Lochan by the Supreme Court. It held:

32.Thus considered, the sale of the immovable property

ordered by the Munsif in execution of the decree of the Court of

Small Causes transferred to him, was wholly without jurisdiction

and a nullity.

33. Once we come to the conclusion that the sale in question

was totally null and void, the alternative contention of the

appellants with regard to the suit being barred by Section 47 of the

Code of Civil Procedure, does not survive.

34. This is not a case of an irregular or voidable sale which

continues to subsist so long as it is not set aside, but of a sale

which was entirely without jurisdiction. It was non est in the eye of

law. Such a nullity does not from its very nature, need setting

aside. (emphasis supplied)

33. A Full bench of this Court in Employees Association v.

Sri Chennakesava Swami temple , reiterated the principle that if a

sale is void, there is no necessity to seek cancellation of it, following

Mahadeo Prasad Singh (18 supra). In Employees Association

(20 supra), a the suit was filed for setting aside a sale conducted

pursuant to the sanction given by the Commissioner and the

Government under Section 74 of the A.P. Charitable & Hindu

Religious Institutions & Endowments Act, 1966 without challenging

the said orders. The Bench held that not only was a civil suit

maintainable to set aside the sale but it also held that the sale is void.

It observed:

In support of the contention that the plaintiffs could have even

filed a simple suit for recovery of possession of the suit land without

seeking cancellation of the sale deed which was null and void under

Section 74 of the Act, the learned counsel for the plaintiffs-respondents

have relied on the decision of the Privy Council in T.P. Petherpermal

Chetty v. R. Muniandi Servai and Ors. , , the relevant portion of

which is as follows:

"As to the point raised on the Indian Limitation Act, 1877,

their Lordships are of opinion that the conveyance of June

11, 1895, being an inoperative instrument, as, in effect, it

has been found to be, does not bar the plaintiff's right to

recover possession of his land, and that it is unnecessary

for him to have it set aside as a preliminary to his obtaining

the relief he claims." (emphasis supplied)

38. In a matter arising under the Court Fees Act, 1870, a learned

Judge of this Court held in Srimathi Mokhamatla Kondamma and

Anr. v. Srimathi Mokhamatla Venkatalakshmi Devi , that as in

the case of a reversioner, it is open to the junior widow to ignore the

adoption by a senior widow as a nullity and file a suit for possession

after the death of the senior widow. A junior widow, the learned Judge

observed, is entitled to ignore the adoption and file a suit for recovery

of her half share against the senior widow. If the junior widow is not

bound under substantive law to sue for a declaration that the adoption

is invalid, in order to obtain the relief of partition and separate

possession, it does not matter whether the alleged adopted son is

impleaded or not as a party or that an unnecessary relief for

declaration is sought for in the plaint. It is not necessary for the junior

widow to seek relief either for setting aside the adoption in order to

obtain the relief of partition and separate possession or for a

declaration that the alleged adoption is not true and valid. In a matter

arising under the Madras Court Fees Act, 1870, a Division Bench of

the Madras High Court held in Sahul Hamed Rowther v. K.C.P.

Mohideen Pichai that-

" Where a plaintiff alleged that a sale deed executed by him

in favour of the defendant was sham and nominal and prays

for a declaration to that effect and an injunction

restraining the defendant from interfering with the

plaintiff's possession it is not necessary for the plaintiff to

pray for cancellation of the deed."

From the above decisions it is clear that since the petitioners

herein are contending that the impugned documents are null and void,

they need even specifically seek a relief for their cancellation.

ON WHAT BASIS THE PETITIONERS SHOULD HAVE VALUED THE

RELIEF OF DECLARATION THAT THE 107 DOCUMENTS ARE NULL

AND VOID AND NOT BINDING ON THEM ?

34. In Bijoy Gopala Mukerji (1 supra), the Privy Council

was of the view that the relief for declaring that a sale deed is null and

void when prayed in a plaint by a party, who is not eo nominee a party

to it, is in fact an unnecessary relief. In that case, a reversioner sued

for a declaration that a lease granted by the widow of the last male

owner was not binding on him and for khas possession. It was

objected that the omission to plead setting aside of the lease by a suit

instituted within the time limited by Article 91 of the Limitation Act,

was fatal to the suit. The Privy Council held that an alienation by a

Hindu widow though not absolutely void, is prima facie voidable at

the election of the reversionary heir, who may affirm it, or treat it as a

nullity, without the intervention of any court. It held that he shows his

election to do the latter by commencing an action to recover

possession of the property and in such an event there is, in fact,

nothing for the court either to decide or cancel as a condition

precedent to the right of action of the reversionary heir. It held that

though the appellants before it prayed in the plaint that a declaration

that the lease was inoperative as against them be granted, as leading

up to their prayer for delivery to them of khas possession, it was not

necessary for them to do so. It observed that they might have merely

claimed possession, leaving it to the defendants to plead and (if they

could) prove the circumstances which they relied on for showing that

the Ijara or any derivative dealing with the property were not in fact

voidable, but were binding on the reversionary heirs. It observed :

6. in such cases, even if the plaint contains a prayer for

a declaration or cancellation, there is good reason for holding it to be

one for a purely incidental but unnecessary relief. ..

35. The above decision was approved by the Supreme Court

of India in Radha Rani v. Hanuman Prasad . The Supreme Court

held:

In this connection, it is necessary to consider whether the heirs

of the widow were necessary parties to a suit against the alienee either

for a declaration that the alienation is void beyond her lifetime or for

possession of the alienated property. In the case of an alienation by a

Hindu widow without legal necessity, the reversioners were not bound

to institute a declaratory suit during the lifetime of the widow. They

could wait until her death and then sue the alienee for possession of

the alienated property treating the alienation as a nullity without the

intervention of any court. See Bijoy Gopal Makherji v. Krishna

Mahishi Debi. To such a suit by the reversioners for possession of the

property after the death of the widow, the heirs of the widow were not

necessary parties. The reversioners could claim no relief against the

heirs of the widow and could effectively obtain the relief claimed

against the alienee in their absence. Instead of waiting until her death,

the next reversioner as representing all the reversioners of the last full

owner could institute a suit against the alienee for a declaration that

the alienation was without legal necessity and was void beyond her

lifetime.

36. The decision in Bijoy Gopala Mukerji (1 supra), was

followed by a Full Bench of the Madras High Court in Ramaswami

Ayyengar (2 supra). In that case, a suit had been filed for partition of

the estate of a joint Hindu family by the minor son of a Hindu father

through his mother and next friend before the Sub-ordinate Judge of

Kumbakonam. He contended that his father had engaged in reckless

speculation in land, in trade, and in litigation dissipating the cash

resources of the family and by selling and mortgaging family

properties. He further alleged that the said transactions are not

binding on the family, but he did not seek any prayer for setting aside

of the alienations of the family properties or for declarations that his

fathers other transactions are unenforceable against the estate. The

court below directed him to pay court fee by deeming him to be

constructively a party to a mortgage and other transactions entered

into by his father and directed him to pay court fee in accordance with

the ad valorem scale specified in Article 1 of Schedule I of the

Court Fee Act, 1870. The Full Bench held that in respect of

transactions entered into by his father in respect of which the plaintiff

is not bound under the substantive law by which he is governed to sue

for a declaration or cancellation, no court fee is payable. It held :

if a person not having authority to execute a deed, or having

such authority under certain circumstances which did not exist,

executes a deed, it is not necessary for persons who are not bound by

it, to sue to set it aside, for it cannot be used against them and that

they may treat it as non-existent and sue for their right as if it did not

exist.

It followed the decision in Unni v. Kunchi Amma .

37. The Supreme Court approved the decision in

Ramaswami Ayyengar (2 supra) in Nagappan v. Ammasai .

38. The above decisions of the Privy Council in Bijoy

Gopala Mukerji (2 supra) and Ramaswami Ayyengar (1 supra)

were followed by a single Judge of this Court in Mohd. Ikramuddin

(3 supra).

39. In Mohd. Ikramuddin (3 supra), the plaintiff had filed

a suit for declaration of title and recovery of possession of plaint

schedule properties. He also sought a declaration that a sale deed

executed by 2nd defendant in favour of 1st defendant is null and void.

Since it was a suit for declaration of title and recovery of possession,

he paid court fee under Section 24 (d) of the Act.

40. The said provision states :

24. Suits for declaration : --

(d) In other cases, whether the subject-matter of the

suit is capable of valuation or not, fee shall be computed on

the amount at which the relief sought is valued in the plaint

or at which such relief is valued by the Court whichever is

higher.

41. The trial court took an objection about the payment of

court fee and directed him to pay court fee under Section 37 of the Act

since he is asking for declaration that a registered sale deed was null

and void and not binding on him. This was questioned in Revision

before this Court. This Court held that since the plaintiff was not a

party to the registered sale deed, he need not ask for cancellation of it

and he is perfectly justified in asking for consequential relief of

declaration that the sale deed is not binding on him. It held that

merely because, to be on the safe side, the plaintiff sought for the

relief for declaration that the sale deed is null and void and paid the

court fee under Section 24 (d) of the Act, it did not mean that the suit

falls under Section 37 and not Section 24 (d). It further held that such

a prayer for declaration or cancellation could as well be ignored and

court fee need not be paid thereon. It held that according to the plaint,

when the plaintiff is not a party to the sale deed, he need not ask for

cancellation of the sale deed as the cancellation implies that the

person suing should be an actual or constructive party to a valid or

operative document. It held that a third party like the plaintiff is not

bound by a document of the description in question and is not obliged

to sue for cancellation. It set aside the order of the court below

directing the plaintiff to pay court fee under Section 37 of the Act but

not under Section 24 (d) and held that since according to the plaintiff

it is a sham transaction, he need not pray for its cancellation and even

if such a prayer is made, he need not pay court fee.

42. In the present case also, the petitioners contend that the

title to the plaint schedule property belongs to them and they are the

heirs to their father late Hyder Ali Mirza and the respondents cannot

deal with the plaint schedule properties without any right, title or

interest therein. Since they are not parties to the 107 sale

deeds/agreements of sale cum GPAs mentioned in the plaint, and

they contend that they are sham, invalid, null and void and collusive

documents and have sought a declaration that they are null and void

and not binding on them, they not only need not seek relief that these

documents be cancelled, but they are also not bound to pay any court

fee on this relief of declaration in view of the decisions in Bijoy

Gopala Mukerji (2 supra), Radha Rani ( 24 supra), Ramaswami

Ayyengar (1 supra), Nagappan ( 26 supra) and Mohd. Ikramuddin

(3 supra).

43. Therefore conclusion of the court below that the

petitioners are bound to pay court fee for the said relief on the market

value of the plaint schedule properties as indicated in Ex.A.1 market

value certificate dt.27.07.2011, is unsustainable.

44. The court below also erred in observing that the relief of

injunction simplicitor cannot be treated as main relief since the relief

of declaration is also prayed for by the petitioners in the plaint. In the

facts and circumstances of the present case, the relief of injunction

sought by petitioners has to be held to be a main relief and cannot be

said to be an ancillary relief.

45. A plaintiff in possession and claiming title can

undoubtedly ask for relief of injunction as a primary relief and if he

does not prove either his title or possession, he may be denied such

relief, but that is a different matter.

46. The reliance on Section 24 by the court below in this

regard also cannot be sustained since the provisions therein would be

attracted only if the petitioners have sought a declaration of their title

and sought relief of possession/injunction or if they sought for a

declaration that documents to which they are parties are null and void

or a declaration of any nature other than one sought for in the plaint.

The said provision would have no application in a situation where the

petitioners are not parties to the documents which they wish to be

declared as null and void and not binding on them.

47. The other decisions in D.D. Nirmal Kumar (6 supra),

V. Rajeswara Rao (9 supra), V.Narender Reddy (10 supra),

Chirala Rate Payers and Civic Amenities Association (11 supra),

cited by counsel for respondents, have no application and turn on the

peculiar facts of those cases.

48. For the above reasons, I am of the opinion that the

impugned order cannot be sustained. It is accordingly set aside and

the C.R.P. is allowed. No costs.

49. As a sequel, the miscellaneous petitions pending, if any,

shall stands closed.

__________________________________

JUSTICE M.S.RAMACHANDRA RAO

Date: 27-10-2015