The compliance of mandatory provisions of Clause (c) of Section 16 of the Specific Relief Act is a condition precedent for grant of relief in favour of the person applying for. In the present case, except pleading that the plaintiff has always been ready and willing to perform the contract, the plaintiff did not adduce any cogent and convincing evidence to substantiate the said pleading. Proof of availability of funds is also an indispensable factor which needs to be demonstrated by the person pleading so. In the instant case, the evidence of PW.1 shows vividly the absence of the same at all relevant points of time. Solvency of the persons cannot be equated with the willingness of the parties unless such solvency translates into reality as per the provisions of Section 16 (c) of the Act.

2016 http://judis.nic.in/Judis_Andhra/list_new2.asp?FileName=13729

THE HONBLE SRI JUSTICE A.V.SESHA SAI       

A.S.No.262 of 2010 

26-9-2016 

Sri Raghupathi Venkata Ratnam Naidu Trust, rep. by its Secretary Dr.Y.Veera

Prakash ...Appellant

Karri Veera Swami (died), per L.Rs....Respondents

Counsel for Appellant : Sri V.L.N.G.K.Murthy

Counsel for Respondents: Sri P.Kamalakar & Sri Jitendar Rao 

<GIST: 

>HEAD NOTE:    

? Cases referred:

1.AIR 1970 SC 504  

2.(2000) 2 SCC 428 

3.(2012) 8 SCC 706 

4.(2015) 8 SCC 695 

5.(2000) 2 SCC 428 

THE HONBLE SRI JUSTICE A.V.SESHA SAI       

A.S.No.262 of 2010 

JUDGMENT:   

        Plaintiff in O.S.No.298 of 1995 on the file of the Court of the I

Additional Senior Civil Judge, Kakinada, East Godavari district is the Appellant

in the present Appeal Suit, filed under Section 96 of C.P.C.  This Appeal is

directed against the judgment and decree dated 15.4.2008 rendered in the

said suit.

2.      The appellant herein instituted the said O.S.No.298 of 1995 for specific

performance of agreement of sale dated 19.8.1989 or in alternative for

refund of advance amount with interest and costs.  The plaint schedule

property is an extent of Ac.6-27 cents in Sy.No.88 of Thimmapuram village,

Kakinada Rural Mandal, East Godavari district.  Defendants 1 to 26 are the

owners of various extents of lands out of the plaint schedule property and

Defendant No.27 is their General Power of Attorney holder.  The defendants/

respondents resisted the suit by filing written statements.  Basing on the

pleadings available on record, the learned Senior Civil Judge framed the

following issues and additional issue:

(1)     Whether the plaintiff is entitled to seek specific performance of

the suit agreement of sale against the defendants or in the

alternative for refund of the advance amount with interest?

(2)     To what relief?

Additional Issue

Whether the suit agreement of sale is binding on Defendant

Nos.36 to 38? 

3.      During the course of trial, on behalf of the plaintiff, P.Ws.1 to 4 were

examined and Exs.A1 to A30 were marked and on behalf of the defendants,  

D.Ws.1 to 3 were examined and Exs.B1 to B39 were marked.  The learned   

Senior Civil Judge, by way of impugned judgment and decree dated

15.4.2008 dismissed the suit for specific performance and ordered refund of

advance amount with interest. The said decree reads as under:

(i)    that the defendants 2, 6 to 27 and 29 to 38 do pay to the plaintiff

trust a sum of Rs.8,61,505/- together with interest @ 12% p.a.

from 24.11.1995 the date of suit till the date of decree and

thereafter @ 6% p.a. till realization on Rs.4,25,000/- being the

amount of advance; 

(ii)    that a charge be and the same is hereby created on the plaint

schedule property till the payment of decreetal amount by D2, D6

to D27 and D29 to D38 to the plaintiff as directed in Clause(i)

above;

(iii)   that the defendants 2, 6 to 27 and 29 to 38 do pay to the plaintiff a

sum of Rs.38,452-00 towards proportionate costs of this suit

bearing their own cosrts;

(iv)    that the suit for the relief of specific performance of the agreement

of sale be and the same is hereby dismissed;

(v)     A copy of the plaint schedule hereunto annexed.

4.       Heard Sri V.L.N.G.K. Murthy, learned counsel for the Appellant and Sri

E.Manohar, learned Senior Counsel and Sri Jitender Rao for Respondents,

apart from perusing the material available before the Court.

5.      Submissions/contentions of the learned counsel for the Appellant

 (1)    The judgment and decree rendered by the trial Court are erroneous,

contrary to law, weight of evidence and probabilities of the case.

(2)     The Court below ought to have decreed the suit for the primary relief

in view of Ex.A7 Agreement of Sale dated 19.8.1989 and Exs.A1 to A6 Powers  

of Attorneys executed by Defendants 1 to 26 in favour of Defendant No.27.

(3)     The Court below failed to see that Defendant No.27 executed Ex.A7

Agreement of Sale in favour of S/Sri Darapureddi Dharma Rao and

Veerabhadra Rao for the benefit of the Plaintiff Trust and received the

amounts also, as such, the Court below ought to have decreed the suit for

primary relief.

(4)     The Court below failed to see that the plaintiff was always ready and

willing to perform its part of contract and the delay, if any, was due to the

conduct of the defendants.

(5)     The Court below ought to have seen that on receipt of Ex.A14 notice

dated 16.12.1992, Defendant No.27 requested time for completion of process

of execution of sale deed by making Ex.A11 endorsement dated 18.12.1992.  

(6)     The Court below ought to have seen that by mistake, the name of the

Trust was mentioned as Raghupathi  Educational Trust instead of

Raghupathi Venkataratnam Naidu Trust in Ex.A7 Agreement of Sale dated 

19.8.1989.

(7)     Since the Defendants 1 to 26 received advance amount through 

defendant No.27, even after expiry of four months time stipulated in Ex.A7

Agreement of Sale, it cannot be said that the time is the essence of the

contract.

6.      Submissions/contentions of learned Senior Counsel Sri E.Manohar 

appearing for Sri P.Kamalakar, learned counsel for Respondents and

Sri Jitender Rao

(1)     Since there is no privity of contract between the plaintiff trust and the

defendants, the Court below is perfectly justified in dismissing the suit by

refusing to grant primary relief.

(2)     Ex.A7 Agreement of Sale dated 19.8.1989 was executed by Defendant   

No.27 in favour of S/Sri Darapureddi Dharma Rao and Veerabhadra Rao for

Raghupathi Educational Trust and neither the said individuals nor the said

Trust filed a suit nor they assigned Ex.A7 Agreement in favour of plaintiff

Trust nor the said individuals were examined.

(3)     Ex.A14 legal notice dated 16.12.1992 was issued on behalf of

Raghupathi Educational Society and the said Trust is not before the Court.

(4)     By the time of Ex.A7 Agreement of Sale dated 19.8.1989, the Plaintiff

Trust was not in existence and the Plaintiff Trust came into being by virtue of

Ex.A12 Trust Deed with effect from 27.9.1989 and the stamp papers for

Ex.A27 were also purchased for Raghupathi Educational Trust on 19.7.1989. 

(5)     Ex.A7 dated 19.8.1989 stipulated four months time, but the plaintiff

did not adhere to the same and filed the suit on 24.11.1995.

(6)     P.W.1 categorically admitted about the non-availability of funds, as

such, no relief can be granted in favour of the plaintiff.

(7)     Exs.A1 to A6 Powers of Attorney do not authorize the sale of land

without making them into plots as per the recitals of the same, as such, the

very execution of Ex.A7 is impermissible and as such the transactions flowing

therefrom have no validity.

        To bolster his submissions/contentions, the learned Senior Counsel

placed reliance on the following judgments:

(1)     J.C.Chacko v. The State Bank of Travancore

(2)     Ram Awadh (dead) by LRs and others v. Achhaibar Dubey   

and another

(3)     Church of Christ Charitable Trust and Educational

Charitable Society, rep. by its Chairman v. Ponniamman

Educational Trust, rep. by its Chairperson/Managing

Trustee

(4)     Padmakumari and others v. Dasayyan and others   

7.      In the above backdrop, the points that emerge for consideration and

determination by this Court are:

(1)     Whether the plaintiff proved the existence of privity of contract

between the plaintiff and defendants, which would enable the plaintiff to seek

performance of contract by the defendants?

(2)     Whether the plaintiff proved its readiness and willingness for due

performance of the contract?

(3)     Whether the judgment and decree impugned in the Appeal warrant  

any interference of this Court under Section 96 of C.P.C?

8.       The information available before this Court vividly discloses that the

case of the plaintiff is that inadvertently the name of the Plaintiff Trust was

wrongly mentioned as Raghupathi Educational Trust instead of Raghupathi 

Venkataratnam Naidu Trust.  On the other hand, the case of the defendants

is that the plaintiff trust was not in existence by the time of execution of

Ex.A7 Agreement of Sale dated 19.8.1989 and the plaintiff trust came into

being by virtue of Ex.A12 Trust Deed dated 27.9.1989.   There is absolutely

no controversy on the reality that Defendant No.27, GPA holder executed

Ex.A7 Agreement of Sale on 19.8.1989 in favour of S/Sri Darapureddi Dharma

Rao and Veerabhadra Rao for Raghupathi Educational Trust and the stamp  

papers were purchased on 19.7.1989 in the name of Raghupathi Educational 

Trust only.  It is equally a reality that the plaintiff did not examine even Sri

Darapureddi Dharma Rao, despite his availability in whose favour Ex.A7

Agreement of Sale was executed along with Sri Veerabhadra Rao to prove the 

assignment of Ex.A7 in favour of plaintiff.  No such evidence is placed on

record to show that the existence of such assignment in favour of the

plaintiff.  There is also no plausible explanation forthcoming as to why the

said Sri Dharma Rao was not examined.  Another significant aspect which

cannot be lost sight off is that even Ex.A14 legal notice dated 16.12.1992 was

issued in the name of Raghupathi Educational Trust, but not in the name of

plaintiff and no valid reason is forthcoming for the same.  P.W.1 categorically

admitted during the course of cross-examination with regard to availability of

S/Sri Darapureddi Dharma Rao and Veerabhadra Rao by the date of filing of

the suit.  P.W.1 also admitted that Dharma Rao is available.  P.W.4, scribe of

Ex.A7 during the course of cross-examination deposed that they used to

maintain the register for the scribe and registered documents and while

saying so he also said that the register maintained by him does not reflect

the suit agreement.  He also said that he did not scribe Ex.A7 basing on

Exs.A1 to A6. In the impugned judgment, the learned Senior Civil Judge

considered the scope of Section 19 of the Specific Relief Act and found no

privity of contract between the plaintiff and defendants.   The learned Senior

Civil Judge also took note of the crucial fact with regard to absence of any

reference of Ex.A7 either in Ex.A12 Trust Deed or Ex.A.13  Supplementary

Trust Deed.  The learned Senior Civil Judge also took note of the issue that

there is no resolution by the Trust accepting Ex.A7 Agreement of Sale and

communication of the same to the defendants.  As observed by the learned

Senior Civil Judge, the Plaintiff Trust did not fulfil the conditions as

stipulated

under Section 19(e) of the Specific Relief Act.  In this connection, it may be

appropriate to refer to the judgment of the Honble Apex Court in J.C.Chacko

v. The State Bank of Travancore (1 supra).  In the said judgment, the

Honble Apex Court at paragraph 9 held as under:

9. The Kottayam Bank not being party to the deal was not bound by the

covenants in the deed, nor could it enforce the covenants. It is settled

law that a person not a party to a contract cannot subject to certain well

recognised exceptions, enforce the terms of the contract : the

recognised exceptions are that beneficiaries under the terms of the

contract or where the contract is a part of the family arrangement may

enforce the covenant. In Krishna Lai Sadhu v. Parmila Bala Dasi I.L.R.

cal. 1315 Rankin, C.J observed :

Clause (d) of Section 2 of the Contract Act widens the definition of

'consideration' so as to enable a party to a contract to enforce the

same in India in certain cases in which the English Law would

regard the party as the recipient of a purely voluntary promise and

would refuse to him a right of action on the ground of nudum

pactum. Not only, however, is there nothing in Section 2 to

encourage the idea that contracts can be enforced by a person

who is not a party to the contract, but this notion is rightly

excluded by the definition of 'promisor' and 'promisee'.

Under the English Common Law only a person who is a party to a 

contract can sue on it and that the law knows nothing of a right gained

by a third party arising out of a contract : Dunlop Pneumatic Tyre

Company v. Selfridge and Company [1915] A.C. 847 It has however  

been recognised that where a trust is created by a contract, a beneficiary

may enforce the rights which the trust so created has given him. The

basis of that rule is that though he is not a party to the contract his

rights are equitable and not contractual. The Judicial Committee applied

that rule to an Indian case Khwaja Muhammad Khan v. Husaini 

Begam (1910) 37 I.A. 152In a later case Jaman Das v. Ram Autar [1911] 

39 I.A. 7 the Judicial Committee pointed out that the purchaser's

contract to pay off a mortgage debt could not be enforced by the

mortgagee who was not a party to the contract. It must therefore be

taken as well settled that except in the case of a beneficiary under a

trust created by a contract or in the case of a family arrangement, no

right may be enforced by a person who is not a party to the contract.

9.      In the instant case, the plaintiff neither proved the existence of any

privity of contract with the defendants nor it adopted the procedure as

contemplated under clause (e) of Section 19 of the Specific Relief Act.  In

view of the above reasons, Point No.1 is answered against the

plaintiff/appellant and in favour of respondents/defendants.

10.     POINT No.2  

        Section 16 of the Specific Relief Act reads as under:

       Section 16 - Personal bars to relief

Specific performance of a contract cannot be enforced in favour

of a person--

(a) who would not be entitled to recover compensation for its

breach; or

(b) who has become incapable of performing, or violates any

essential term of, the contract that on his part remains to be

performed, or acts in fraud of the contract, or wilfully acts at

variance with, or in subversion of, the relation intended to be

established by the contract; or

(c) who fails to aver and prove that he has performed or has

always been ready and willing to perform the essential terms of

the contract which are to be performed by him, other than terms

of the performance of which has been prevented or waived by

the defendant.

Explanation.--For the purposes of clause(c),--

(i) where a contract involves the payment of money, it is not

essential for the plaintiff to actually tender to the defendant or to

deposit in court any money except when so directed by the

court;

(ii) the plaintiff must aver performance of, or readiness and

willingness to perform, the contract according to its true

construction.

        

11.     It is evident from a reading of clause (c) of Section 16 of Specific

Relief Act that a person who fails to aver and prove his due performance and

fails to prove his readiness and willingness to perform his/her part of contract

is not entitled for the equitable relief of specific performance of contract of

sale.  P.W.1, during the course of cross-examination, in clear terms admitted

the absence of any documentary proof to show the availability of amount in

the credit of the Trust and on the other hand, he categorically stated that he

was not having any documentary evidence to show that the said amount was  

available with the Trust.  P.W.1 also admitted the non-availability of amount

at present also.  It is also not the evidence of P.W.1 that the balance sale

consideration was available.  Taking note of all these admissions made by

P.W.1, the learned Senior Civil Judge came to the conclusion that the Plaintiff

Trust was never ready and willing to perform its part of contract and also

observed that the obligation to produce the income tax clearance certificate

by the defendants pleaded in the plaint, for the delay does not find place in

the terms and conditions of Ex.A7.   In this connection, it may be appropriate

to refer to the judgment cited by the learned Senior Counsel in Padmakumari

v. Dasayyan (4 supra) and at paragraphs 19 to 22, the Honble Supreme

Court held as under:

19.    The said legal contention urged on behalf of Defendant Nos. 12

to 15 has been strongly rebutted by learned Counsel on behalf of the

Plaintiff contending that the question of payment of balance

consideration amount of Rs. 63,000/- within nine months would have

arisen after the terms and conditions of the contract agreed upon by

Defendant Nos. 1 to 11 if they had measured the suit schedule property.

They have not discharged their part of the contract stipulated in the

agreement to sell, therefore, it is urged by him that time was not the

essence of the contract as Defendant Nos. 1 to 11 themselves have

failed to perform their part of the agreement.

20. The said contention urged on behalf of the Plaintiff is unacceptable

to us that the question of taking measurement would not arise before

the Plaintiff perform his part of the contract regarding the balance

consideration within the period stipulated in the agreement.

Undisputedly, that had not been done by the Plaintiff in the instant case

within the stipulated time and the notice was issued by the Plaintiff only

after one year, therefore, the Plaintiff has not adhered to the time which

is stipulated to pay the balance consideration amount to Defendant Nos.

1 to 11 which is very important legal aspect which was required to be

considered by the Courts below at the time of determining rights of the

parties and pass the impugned judgment. The Courts below have 

ignored this important aspect of the matter while answering the

contentious Issue Nos. 1 and 2 in favour of the Plaintiff and granted

decree of specific performance in respect of the suit schedule property.

The said finding of fact is contrary to the terms and conditions of the

agreement, pleadings and the evidence on record. Accordingly, we

answer the said issues in favour of Defendant Nos. 12 to 15 after setting

aside the concurrent finding of fact recorded by the High Court.

21.     The second important legal contention raised by Defendant Nos.

12 to 15 is that the pleadings of the Plaintiff is not in conformity with

Order 6 Rule 3 Code of Civil Procedure, Clause 3 of Form No. 47 in

Appendix 'A', extracted hereinabove. By a careful reading of paragraph 6

of the plaint makes it very clear that the averment as provided Under

Clause 3 is not in stricto sensu complied with by the Plaintiff. The same

is evidenced from the averments made at paragraph 6 of the plaint

which reads thus:

6. The Plaintiff is ready and willing to perform his part of the

contract by paying the balance of sale consideration of Rs.

63,000/- and take the sale deed in accordance with the provisions

of the agreement deed dated 19.04.1992. 

22. Upon a careful reading of the abovesaid paragraph we have to hold

that the Plaintiff has not complied with the legal requirement which is

mandatory as provided Under Section 16(c) of the Specific Relief Act.

Section 16(c) fell for consideration and has been interpreted by this

Court in a number of cases, referred to supra, upon which reliance has

rightly been placed and the said decisions are applicable to the fact

situation in support of Defendant Nos. 12 to 15 and, therefore, we have

to hold that the concurrent finding of fact recorded by the High Court on

Issue No. 1 is erroneous in law and is liable to be set aside.

12.     In the instant case also, except advancement of pleading in the written

statement that the plaintiff has always been ready, the plaintiff did not make

any attempt to substantiate its claim by adducing either oral or documentary

evidence.  Therefore, in the absence of compliance of mandatory

requirements of Section 16 of Specific Relief Act, the plaintiff trust is not

entitled for any equitable relief of specific performance of agreement of sale.

Therefore, point No.2 is also answered against the plaintiff and in favour of

defendants.

13.     Another significant and important aspect which needs mention in this

context is that it is the contention of the learned Senior Counsel that as per

Exs.A1 to A6- powers of attorneys, it is incumbent upon the GPA holder to

get the land divided into plots after getting layout permission and to sell the

same thereafter.  In this context, it may be appropriate to refer to the

judgment of the Honble Apex Court in Church of Christ Charitable Trust and

Educational Charitable Society, rep. by its Chairman v. Ponniamman

Educational Trust, rep. by its Chairperson/Managing Trustee (3 supra).  In

the said judgment, the Honble Supreme Court at paragraph 19 held as

under:

                Next, we have to consider the power of attorney.  It is settled

that a power of attorney has to be strictly construed. In order to agree

to sell or effect a sale by a power of attorney, the power should also

expressly authorise the power to agent to execute the sale

agreement/sale deed i.e. (a) to present the document before the

Registrar; and (b) to admit execution of the document before the

Registrar.  A perusal of the power of attorney, in the present case,

shows that it only authorises certain specified acts but not any act

authorising entering into an agreement of sale or to execute sale deed or

admit execution before the Registrar.

14.     In the instant case, according to Exs.A.1 to A.6, it is incumbent on the

part of the General Power of Attorney i.e., defendant No.27, to secure the

lay-out and to make the land into plots before sale and without being

preceded by the same, Ex.A.7 was executed.  Therefore, on that ground also

Ex.A.7 cannot be given any credence. 

15.     The contention that the subsequent purchasers cannot advance any 

contention touching the readiness and willingness on the part of the plaintiff

falls to the ground in view of the language employed in Section 16 (c) of the

Specific Relief Act and the principles laid down in RAM AWADH v.

ACHHAIBAR DUBEY  wherein the Honble Apex Court at paragraph No. 6     

of the judgment held as under:

     6. The obligation imposed by Section 16 is upon the Court

not to grant specific performance to a plaintiff who has not met the

requirements of Clauses (a), (b) and (c) thereof. A Court may not,

therefore, grant to a plaintiff who has failed to aver and to prove

that he has performed or has always been ready and willing to

perform his part of the agreement the specific performance

whereof he seeks. There is, therefore, no question of the plea

being available to one defendant and not to another. It is open to

any defendant to contend and establish that the mandatory

requirement of Section 16(c) has not been complied with and it is

for the Court to determine whether it has or has not been complied

with and, depending upon its conclusion, decree or decline to

decree the suit. We are of the view that the decision in Jugraj

Singh's case AIR 1995 SCW 901 : AIR 1995 SC 945 is erroneous.  

16.     This Court also finds sufficient force in the submission of the learned

Senior Counsel that D.1 to D.26 did not authorise Defendant No.27 to extend

the period stipulated in Ex.A.7.  It is also to be noted that as per the

recitals

in Ex.A.7, balance payment should be made within four months to the

vendors, but not to the G.P.A as pleaded by the plaintiff under Ex.A.11.

17.     The compliance of mandatory provisions of Clause (c) of Section 16 of

the Specific Relief Act is a condition precedent for grant of relief in favour

of

the person applying for.  In the present case, except pleading that the

plaintiff has always been ready and willing to perform the contract, the

plaintiff did not adduce any cogent and convincing evidence to substantiate

the said pleading.  Proof of availability of funds is also an indispensable

factor

which needs to be demonstrated by the person pleading so.  In the instant

case, the evidence of PW.1 shows vividly the absence of the same at all

relevant points of time.  Solvency of the persons cannot be equated with the

willingness of the parties unless such solvency translates into reality as per

the provisions of Section 16 (c) of the Act.

13.     For the aforesaid reasons and having regard to the principles and

parameters laid down in the judgments referred to supra, this Court does not

find any valid reason to meddle with the well considered judgment and

decree rendered by the learned Senior Civil Judge in O.S.No.298 of 1995 on

the file of the Court of the I Additional Senior Civil Judge, Kakinada, East

Godavari district.  Accordingly, the Appeal stands dismissed, confirming the

judgment and decree passed by the Court below.  As a sequel, the

miscellaneous petitions, if any, shall stand closed.  There shall be no order as

to costs.

______________  

A.V.SESHA SAI, J  

Date: 26.9.2016

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."

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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