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The perusal of the inspection report dated 25.9.2001 reveals that the meter was got installed by the complainant inside the hospital whereas as per rules it was to be installed at the front portion of the hospital. In other words the complainant was getting benefit of the hole in the meter by getting the meter installed inside so that theft of energy could be easily made. It is well settled principle of law that a consumer in whose custody the meter is provided by the Nigam is under a legal obligation to keep it intact and any tempering with it directly or indirectly shall be termed theft of energy under the circumstances of the case. In the present case admittedly the checking was conducted by the Vigilance staff in the company of other officials of the Nigam and their report cannot be disbelieved without any cogent, convincing and corroborating evidence contrary to it. The complainant in the present case has miserably failed to disclose as to what was the reason for developing a hole inside the meter. Checking report dated 25.9.2001 which is signed by the complainant as well as the members of the checking party, is sufficient to prove it a case of theft of energy. The observations of the District Consumer Forum, Sirsa that the seals were found intact and therefore, there was no question of committing theft of electric energy but this observation of the District Forum is not sustainable for the reason that it is a novel way of committing theft of energy because consumer inserts some hard object through the hole of the meter to stop the movement of the disc in order to abstract energy dishonestly without tempering of the seal. It is further observed that by drilling a hole it is the complaint who is to be benefited with respect to committing of theft of energy by inserting some hard object in the hole of the meter to stop the movement of the disc. It is not the case of the complainant that at the time of installation of the meter the said hole was there. It is also not the case of the complainant that the hole has developed due to any climatic change or with passage of time. The appellants-opposite parties have produced the meter in question which has a drilling hole in it. Admittedly the drilling process is the outcome of the nefarious and illegal designs of complainant to commit theft of energy through the hole. No person would drill a hole in the meter unless he gets any benefit from it. Hence this case is distinguishable from the observation made in Gautam Plastic and Ram Nath case (supra).
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 2390 OF 2010 (From the Order dated 11.05.2010 in Appeal No. 2994/2002 of the Haryana State Consumer Disputes Redressal Commission, Panchkula) Dr. Laxman Dass Bansal Petitioner C/o Bansal Hospital Old Bus Stand, Rania Tahsil Rania Rania District Sirsa Versus 1. Executive Engineer Respondents (OP) Division Dakshin Haryana Bijli Vitran Nigam Ltd. Sirsa Distt. Sirsa 2. SDO (OP) Sub-Division Ph-1, Sas Nagar Branch … Continue reading
2. Petitioners were the complainants before the District Forum. They alleged deficiency in service on the part of the respondents, in that the respondents had failed to execute the agreement for sale even after the complainants had made full payment of the consideration for the flats and received the possession thereof from the respondents. The respondents/opposite parties (OPs) resisted the complaint mainly on the ground that the cost of construction had risen steeply leading to their demand for escalation charges at the rate of Rs.200/- per square foot and that each of the complainants had not paid Rs.2,40,000/- towards the original agreed sale price of the flat.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3129 OF 2011 (From the order dated 25.03.2011 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in First Appeal no. A/09/941) Ankit Bhatnagar C/o P. K. Bhatnagar Petitioner Resident of 25, Panvel Co-operative Industrial Estate Panvel – 410206 versus 1. Vijay Constructions 305/C, 3rd Floor, Raikar Bhavan Sector 17, Vashi, Navi Mumbai Respondents 2. Vijay Angre 305/C, 3rd Floor, Raikar Bhavan Sector 17, Vashi, Navi Mumbai … Continue reading
MEDICAL NEGLIGNECE= there was no medical negligence committed by respondent No. 1 in treating the patient. It was the heart failure which led to the death of the patient. However, respondent No. 1 has committed unfair trade practice in employing the untrained and unqualified staff in his hospital. In these circumstances, the appellants are awarded compensation to the extent of Rs.50,000/- which will be payable by respondent No. 1 alone.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2629 OF 2011 [Against the order dated 06.04.2011 in First Appeal No. 1452/2005 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh] Jassi Hospital & Heart Care Centre College Road, Fazilka Through Dr. Yashpaul Jassi … Petitioner Versus 1. Bhupinder Singh Brar S/o Shri Chanan Singh R/o Radha Swami Colony, Fazilka District Ferozepur 2. Nirvair Singh S/o Bhupinder Singh Brar R/o Radha Swami Colony, Fazilka District Ferozepur … Respondents Before : HON’BLE MR. JUSTICE R.C. JAIN, … Continue reading
or.21, rule 102 of c.p.c ?= the power of the General Power of Attorney agent =“The mortgages executed by the agent were valid and binding on the appellant. The consideration that it was very unreasonable to expect that the appellant should inform the whole world that she had cancelled the power of attorney given to the person, was not relevant in the face of the clear words of the Section 208 of the Contract Act. The policy of the law, apparently in the interests of trade and commerce, is that the agent’s action should bind the principal, even though the principal might have cancelled the agent’s authority unless the third person with whom the agent enters into contracts knew of the termination of the agency.”
HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE K.S. APPA RAO C.C.C.A.Nos.111 and 113 of 2011 COMMON ORDER: (Per Hon’ble Sri Justice K.S. Appa Rao) These appeals are filed against the orders, dated 25-03-2011 passed in E.A.Nos.59 of 2010 and 62 of 2010 respectively in E.P.No.39 of 2008 in O.S.No.108 of 2007 on the … Continue reading
discharge of accused =Though the name of the petitioner is mentioned in the first information report, no specific overt act is attributed against him in the complaint. Further, the statements of the witnesses recorded by the Investigating Officer do not disclose that the petitioner was present either at the scene of occurrence or he participated in the crime, as rightly contended by the learned counsel for the petitioner. In such a situation, this Court is of the view that pending of the case against the petitioner amounts to abuse of process of law.
HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.2275 of 2011 ORDER: This Criminal Revision Case is filed by the petitioner-accused No.1, under Sections 397 and 401 of Cr.P.C., against the order dated 17.10.2011 made in Crl.M.P.No.35 of 2011 in S.C.No.147 of 2011 on the file of the III Addl. Assistant Sessions Judge, Kakinada, … Continue reading
MESNE PROFITS =The Commissioner in his report under the heading observations has mentioned that most of the witnesses felt sorry for the plaintiff for receiving such low rent of Rs.36,000/-. After completion of the examination, while leaving P.W.2 informed them that he got it done another registered lease deed for Rs.65/- per sq. ft which is 100 mts away from A.2 towards suit schedule property. After completion of the examination of P.W.3 informed them that the existing market value for sq. ft is Rs.60/- and h has given for cheaper rate as the present rates are sky rocketed. After completion of the examination of P.W.4 he has requested the counsel for the defendant not to trouble the plaintiff by paying meager rent and requested him to pay the existing market value. The P.W.7 after completion of the examination while leaving the premises expressed that he is lucky enough as the present existing market value per sq. ft is on an average of Rs.45/-. Therefore, the said observations are unwarranted to be recorded by the Commissioner because whenever he wanted to record he ought to have been recorded in the evidence of the witnesses but not out of the record. The learned Commissioner has not followed proper procedure for arriving at the mesne profits. Thus, the said report of the learned Commissioner cannot be taken as basis for deciding the mesne profits. With regard to the quantum of mesne profits granted by the lower court, the lower court has granted mesne profits@ Rs.30/- per sq. feet as the plaintiff has claimed the same in the plaint. The claim made by the plaintiff in the plaint is not a basis for fixing the mesne profits. The court has to fix the mesne profits basing on the evidence and material placed before it for ascertaining the same. The lower court has observed that the Commissioner has arrived the mesne profits @ Rs.46.06 ps per sq. feet. The evidence adduced by the petitioners and documents relied upon by them would prove that the property situated in and around the suit schedule property fetch the rents more than Rs.60/- per sq. feet since the petitioners claiming Rs.30/- per sq. yard only in their plaint which was filed in the year 2005 which is not far back, the court below considered that the petitioners cannot claim more than what they pleaded in their original plaint. He further observed that the evidence of R.W.1 would show that he is getting Rs.27.50 ps per sq. yards which is situated near by the schedule property. Therefore, he accepted the evidence of R.W.1 to show that the property is situated near the suit schedule property would fetch more than Rs.30/- per sq. feet and thereby fixed the mesne profits for the suit schedule property at Rs.30/- per sq. feet. R.W.1 is not the owner of the property and according to him he has leased out the premises bearing No.483, Road No.36, Jubilee Hills to one G. M. Singh and the said property belongs to his sister K. Radha and he leased out the said premises of 2000 sq. yards for rent @ Rs.55,000/- per month. But the said R.W.1 has not produced any documents to show about the rent that he has been receiving by him for the said premises. Therefore, relying upon the evidence of R.W.1 by the lower court for arriving at the prevailing rent is without reliable evidence. Since the Commissioner has not properly enquired into the matter and the lower court has not come to the conclusion with regard to the mesne profits basing on the material placed before it, we hold it is just and proper to set the order of the lower court and remit back for making fresh enquiry with regard to the mesne profits. Hence, the order of the lower court is not just, legal and valid. In the result, both the appeals are allowed and the matter is remitted the matter back to the lower court for fresh disposal in accordance with law we made it clear that both parties are at liberty to adduce evidence on their behalf. In the circumstances, both the parties have to bear their own costs.
HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A Nos.26 & 79 of 2008 Date: 28.02.2011 Between: M. Raja Gopala Rao and another ….Appellants. And: Sri K. Vinay Reddy …..Respondent. C.C.C.A No.79 of 2008 Between: Sri K. Vinay Reddy ….Appellant. And: M. Raja Gopala Rao and another …..Respondents. HON’BLE … Continue reading
HINDU SUCCESSION ACT, 1956: ss. 6 and 8 – Coparcenery property in the hands of sole coparcener – On his death, shares claimed by his daughters, children of deceased daughter and the son born out of the second marriage – Held: The son would inherit the properties not as coparcener – Therefore, s. 8 would apply and not s.6 – Hindu Marriage Act, 1955 – ss.5 and 16 – Evidence Act, 1872 – s.50 Evidence Act, 1872 – s. 50 – Opinion of relationship – Factum of marriage – Held: Evidence of relatives was admissible not only from the point of view that they were the persons who could depose about the conduct of parties but they were also witnesses to various documents executed by the wife. The predecessor-in-interest of the parties, namely, `K’, a coparcener along with his brother, on a partition which took place in 1941, was allotted the suit property. He married twice. From the first wife, namely, `P’, he had three daughters, and from the second wife, namely, `Y’, whom he was stated to have married in 1960, he had a son by name `D’. `K’ died in the year 1969. In the year 1998 one of his daughters from the first wife also died. Two partition suits were filed – one by the children of K’s deceased daughter, the appellants, claiming 1/3rd share and denying the second marriage of `K’, and the other suit was filed by the two surviving daughters from the first wife and the son `D’ from second wife. The trial court held that mother of `D’ was validly and legally married to `K’ and on that premise held that `K’ and `D’ formed a coparcenery and the appellants being the heirs and legal representatives of the daughter of `K’ inherited 1/10th share in the properties left by him. The High Court upheld the judgment. In the instant appeals it was contended for the appellants that `Y’ not being validly married to `K’, her son `D’ did not inherit any share in the property; and that since `D’ was born after coming into force of the Hindu Succession Act, 1956, he was not a coparcener and, therefore, s.8 of the Act would apply and not s.6. =Allowing the appeals, the Court HELD: 1.1. Evidence in different forms may be adduced before the court; information evidence may be one of them. But for the purpose of arriving at a conclusion as to whether a valid marriage has been performed or not, the court would be entitled to consider the circumstances thereof. There may be a case where witnesses to the marriage are not available. There may also be a case where documentary evidence to prove marriage is not available. It is in such a situation, those who had the occasion to see the conduct of the parties may testify with regard to the information they have, from probably the conduct of the persons concerned. Section 50 of the Evidence Act in that sense is an exception to the other provisions of the Act. [Para 10 and 11] [47-D-G] Badri Prasad v. Dy. Director of Consolidation & Ors. AIR 1978 SC 1557; Tulsa & Ors. v. Durghatiya & Ors. (2008) 1 SCALE 434, relied on. 1.2. In the instant case, the evidences of two daughters of `K’ were admissible evidence not only from the point of view that they were the persons who could depose about the conduct of `K’ and `Y’, but they were also witnesses to various documents executed by `Y’. The High Court has itself noticed the applicability of s.50 of the Evidence Act. In that view of the matter, the finding that `K’ married `Y’ need not be interfered with. [Para 11 and 12] [47-G-H; 48-A, D] 2.1. It is now well-settled that the property in the hands of sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. [Para 16] [50-B] Commissioner of Wealth Tax, Kanpur And Others v. Chander Sen And Others (1986) 3 SCC 567; Sheela Devi & Ors. V. Lal Chand & Anr. 2006 (10) SCALE 75; Bhanwar Singh v. Puran & Ors. 2008 (2) SCALE 355, relied on Eramma vs. Veerupana & Ors. AIR 1966 SC 1879, referred to 2.2. Section 5 of the Hindu Marriage Act, 1955 prohibits a marriage where either party thereto has a spouse living at the time of marriage. Marriage between `K’ and `Y’ took place in 1960 and, as such, the said marriage was clearly hit by s. 5 of the Hindu Marriage Act. `D’, therefore, would inherit the properties not as a coparcener. [Para 13] [48-E-G] 2.3. `D’ was admittedly born after the coming into force of the Hindu Succession Act. However, the Hindu Marriage Act, carved out an exception to the matter of inheritance of children of such marriages by creating a legal fiction u/s 16 of the Hindu Marriage Act. Therefore, as on the date of death of `K’ all his daughters as also `D’ will take in equal shares being the relatives specified in Class I of the Schedule appended to the Hindu Succession Act. Therefore, the trial court as also the High Court were not correct in opining that `D’ would be a coparcener and the appellants would inherit only 1/10th share in the said properties . The share of the appellants would be 1/3rd. [Para 13-15 and 19] [49-G-H; 53-D; 48-G] Case Law Reference: AIR 1978 SC 1557 relied on para 9 (2008) 1 SCALE 434 relied on para 9 (1986) 3 SCC 567 relied on para 16 2006 (10) SCALE 75 relied on para 17 2008 (2) SCALE 355 relied on para 17 AIR 1966 SC 1879 referred to para 18 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4818-4819 of 2009. From the Judgment & Order dated 16.11.2007 of the High Court of Karnataka at Bangalore in RFA No. 1403 of 2003 C/w 1404 of 2003. G.V. Chandrashekhar, N.K. Verma, Anjana Chandrashekar for the Appellants. S.N. Bhat, B. Subrahmanya Prasad, Ajay Kumar, V.N. Raghupathy for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4818-4819 OF 2009 ARISING OUT OF S.L.P. (C) NO. 5964-5965 OF 2008 M. YOGENDRA & ORS. ….. APPELLANTS VERSUS LEELAMMA N. & ORS. ….. RESPONDENTS JUDGMENT SINHA J. Leave granted. Interpretation of the application of the provisions of Section 6 of the … Continue reading
Code of Civil Procedure, 1908 – Order XVI, Rules 1 and 2 r/w s.151 – Partition suit – Defendants filed application for permission to file a list of witnesses, which included the name of the plaintiff’s Advocate – Trial Court granted the defendants the leave to file the list of witnesses but rejected their prayer for permission to cite the plaintiff’s advocate as a witness on ground that no reason therefor was assigned in the application – Justification of – Held: Justified – If the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together – Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate – Therefore, it would be a prudent exercise of discretion by the Court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness – In the instant case, the concerned advocate was engaged by the plaintiffs almost 11 years prior to the filing of application by the defendants – During this long interregnum, the defendants never objected to the appearance of the plaintiff’s advocate by pointing out that he was interested in the subject matter of the suit – The prayer made by the defendants for being allowed to cite the plaintiff’s advocate as a witness was not only misconceived but also mischievous ex-facie with an oblique motive of boarding him out of the case. Constitution of India, 1950 – Articles 226 and 227 – Interlocutory order passed by Subordinate Court – Challenge to – Exercise of powers under Arts. 226 and 227 – Scope – Held: In the instant case, the High Court totally ignored the principles and parameters laid down by this Court for exercise of power u/Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. Advocates – Relationship between lawyer and his client – Duty imposed upon an Advocate – Discussed – Held: An Advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client – If an Advocate has reason to believe that he will be a witness in the case, he should not accept a brief or appear in the case – Principles of `uberrima fides’ – Bar Council of India Rules, 1975 – Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV. Appellant Nos.1 to 3 and one other person filed suit for partition and separate possession of 1/6th share each in the suit property and also for grant of a declaration that sale deed dated 10.7.1997 executed by appellant Nos.4 to 6 was not binding on them. Respondent Nos.1 and 2 filed written statement, and subsequently, also filed an application under Order XVI Rule 1(1) and (2) read with Section 151 C.P.C. supported by an affidavit of respondent No.1 for permission to file the list of witnesses, which included the name of `NRK’, the Advocate who had been representing the appellants in the suit from the very beginning. The trial Court partly allowed the application of respondent Nos.1 and 2 and granted them leave to file the list of witnesses but rejected their prayer for permission to cite `NRK’ as a witness on ground that no reason therefor was assigned in the application. The respondents challenged the order of the trial Court by filing a petition under Articles 226 and 227 of the Constitution insofar as their prayer for citing `NRK’ as a witness was rejected. The High Court allowed the petition and set aside the order of the trial Court holding that reasons were not required to be assigned to justify the summoning of a particular person as a witness. In the instant appeal, the questions arising for consideration were: 1) whether the High Court committed serious error by interfering with the order of the trial Court without recording a finding that the said order was vitiated due to want of jurisdiction or any patent legal infirmity in exercise of jurisdiction; and 2) whether a litigant filing the list of witnesses is bound to indicate, howsoever briefly, the relevance of the witness to the subject matter of the suit etc., and, in any case, one party to the proceedings cannot cite the advocate representing the other side as a witness and thereby deprive the latter of the services of the advocate without disclosing as to how his testimony is relevant to the issues arising in the case. =Allowing the appeal, the Court HELD:1. The High Court totally ignored the principles and parameters laid down by this Court for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. [Para 10] [427-H; 428-A-B] Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675 and Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329 – relied on. 2.1. The relationship between a lawyer and his client is solely founded on trust and confidence. A lawyer cannot pass on the confidential information to anyone else. This is so because he is a fiduciary of his client, who reposes trust and confidence in the lawyer. Therefore, he has a duty to fulfill all his obligations towards his client with care and act in good faith. Since the client entrusts the whole obligation of handling legal proceedings to an advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty. [Para 12] [428-F-G] 2.2. The duties of an advocate to the Court, the client, opponent and colleagues are enumerated in Chapter II of Part IV of the Bar Council of India Rules, 1975. Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV of the Rules, regulate the duty of an advocate to the client. An analysis of the above Rules show that one of the most important duty imposed upon an advocate is to uphold the interest of the client fearlessly by all fair and honourable means. An advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client. If he has reason to believe that he will be a witness in the case, the advocate should not accept a brief or appear in the case. [Paras 13, 14] [428-H; 429-A-B; H; 430-A] 2.3. If the prayer made by the respondents for being allowed to cite `NRK’ as a witness is critically scrutinized in the backdrop of the duties of an advocate towards his client, it is clear that the same was not only misconceived but was mischievous ex-facie. Neither in the written statement nor the additional written statement filed by them before the trial Court, the respondents had attributed any role to `NRK’ in relation to the subject matter of the suit. The concerned advocate was engaged by the plaintiffs- appellants in 1996 i.e. almost 11 years prior to the filing of application by the respondents under Order XVI Rule 1(1) and (2) read with Section 151 CPC. During this long interregnum, the respondents never objected to the appearance of `NRK’ as an advocate of the appellants by pointing out that he was interested in the subject matter of the suit. Notwithstanding this, the respondents cited him as a witness in the list filed along with the application. The sole purpose of doing this was to create a situation in which the advocate would have been forced to withdraw from the case. Luckily for the appellants, the trial Court could see the game plan of the respondents and frustrated their design by partly dismissing the application. The Single Judge of the High Court ignored that the respondents had included the name of `NRK’ in the list of witnesses proposed to be summoned by them with an oblique motive of boarding him out of the case and passed the impugned order by recording one line observation that the respondents were not required to give reasons for summoning the particular person as a witness. [Para 15] [430-G-H; 431- A-D] 2.4. If the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together. Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate. Therefore, it would be a prudent exercise of discretion by the Court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness. The impugned order of the High Court is set aside and the one passed by the trial Court is restored. The respondents shall pay cost of Rs.50,000/- to the appellants. [Para 16] [431-E-H] Mange Ram v. Brij Mohan (1983) 4 SCC 36 and V. C. Rangadurai v. D. Gopalan (1979) 1 SCC 308 – relied on. Case Law Reference: (2010) 8 SCC 329 relied on Para 6, 9 (1983) 4 SCC 36 relied on Para 6, 11 (2003) 6 SCC 675 relied on Para 7, 8 (1979) 1 SCC 308 relied on Para 14 CIVIL APPELLLATE JURISDICTION : Civil Appeal No. 2015 of 2011. From the Judgment & Order dated 24.2.2010 of the High Court of Karnataka at Bangalore in W.P. No. 2610 of 2007 (GM-CPC). Krian Suri for the Appellants. S.N. Bhat for the Respondents.
1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(s).2015 OF 2011 (Arising out of SLP(C)No.20821/2010) KOKKANDA B. POONDACHA AND OTHERS Appellant(s) VERSUS K.D. GANAPATHI AND ANOTHER Respondent(s) J U D G M E N T Leave granted. Whether the respondents (defendant Nos.5 and 6 in the suit filed by the … Continue reading
Copyright Act, 1957 – ss.55, 62(1) – Trade Marks Act, 1947 – Two suits having different cause of action – Maintainability of – Held: Not maintainable – Composite suit of infringement of copyright and passing off would thus not lie in the same forum – Code of Civil Procedure, 1908 – O.2 r.3. The question which arose for consideration in the present appeal is whether the High Court was right in holding that the composite suit of infringement of copyright and passing off would not lie in the same forum and that the relief for passing off is covered by decision of Supreme Court in *Dhodha House Case. =Dismissing the appeal, the Court HELD: 1.1. Sub-section(1) of s.55 of Copyright Act, 1957 provides for the remedies in terms whereof the plaintiff shall be entitled to all reliefs by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right. It must be read as `ejusdem generis’. It must take its colour from the words, `any proceeding’ namely the right to obtain a decree by way of injunction, decree for damages, accounts or other incidental reliefs which can be granted by a civil court. Such a provision can be found in the Code of Civil Procedure also, namely Order VI Rule 7 thereof. It is, therefore, correct to read the word “as are or may be conferred by law’ to mean, any other law, violation whereof although would give rise to separate and distinct cause of action. Under the Code, claims arising under a statutes governing substantive procedural law, a number of remedies may be combined. The Court may grant an order of injunction even in a passing off action. It is trite that where the court has the jurisdiction/power to adjudicate, it will necessarily have the incidental power therefor. It may, however, be different if the Court may have exercised a power which is not provided for as a supplemental proceeding. Thus, whereas an incidental power is inherent in the court, a supplemental power may also be exercised, keeping in view the ultimate relief which may be granted by it. [Paras 23, 24] [666-B-G] 1.2. If a person is found to be guilty of violation of copyright he will be bound to pay damages. For the purpose of quantification of damages, taking of the accounts may be necessary and it is in this behalf the Parliament thought it fit to use the word “otherwise”. Thus the power conferred by law within the meaning of sub-section(1) of Section 55 of 1957 Act qualifies the power of the court to grant remedies as envisaged thereunder if any other cause of action arose under a different Act. An action for passing off is common law right but the same does not determine the jurisdiction of the court. For exercising such jurisdiction, the provisions of the Code would be applicable. 1957 Act being a special law would, thus, prevail over the general law, viz., the Code. [Para 25] [667-A,B,C] Exphar Sa & Anr.v. Eupharma Laboratories Ltd.& Anr.(2004) 3 SCC 688 – held inapplicable. State of Punjab and Anr. v. Devans Modern Brewaries Ltd. and Anr. (2004) 11 SCC 26 – relied on. 2. There cannot be any doubt whatsoever that the Parliament having inserted sub-section(2) in section 62 of the 1957 Act, the jurisdiction of the Court thereunder would be wider than the one under Section 20 of the Code. If the impediment is sought to be removed by inserting an incidental provision, there cannot be any doubt the court could be entitled to pass an interim order, but the same cannot be extended to a cause of action which is founded on separate set facts as also rights and liabilities of a party under a different Act. [Paras 27, 28] [668-A,B,D] 3. A composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Order II Rule 3 of the Code specifically states so and, thus, there is no reason as to why the same should be ignored. A plaintiff may seek a remedy which can otherwise be granted by the court. It was that aspect of the matter which had not been considered in *Dhoda House but it never meant that two suits having different causes of actions can be clubbed together as a composite suit. [Para 29] [669-A,B,C] *Dhoda House v. S.K. Maingi (2006) 9 SCC 41 – distinguished. Surendra Kumar Maingi v. M/s. Dhodha House AIR (1998) Allahabad 43; Sakri Vasu v. state of U.P. and Ors. (2008) 2 SCC 409 and Hindustan Lever Ltd. v. Ashok Vishnu Kate (1995) 6 SCC 326 – referred to. Fali S. Nariman, Praveen Anand, Hari Shankar K., Subhash Sharma, Sagar Chandra, Abhishta Kumbhat, Vikas Singh Jangra for the Appellant. Shailen Bhatia and Balraj Dewan for the Respondents.=2008 AIR 3123, 2008(9 )SCR652 , , 2008(8 )SCALE385 ,
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3637 OF 2008 (Arising out of SLP (C) No.20941 of 2006) Dabur India Ltd. … Appellant Versus K.R. Industries … Respondent JUDGMENT S.B. SINHA, J. 1. Leave granted. 2. Appellant is a manufacturer of a product known as `Dabur Red Tooth Powder’ … Continue reading
Partition Act, 1893-Section 4-Right of pre-emption-Exercise of- Dwelling house belonging to undivided family-Transfer of share to a stranger-No suit for partition by stranger transferee-Effect of-Held, co-sharer family members do not acquire right of pre-emption. Interpretation of statutes Liberal interpretation-Grant of-Held, while giving liberal interpretation the legislative intent and clear wordings of the section should not be ignored. Words & Phrases “Dwelling-house belonging to an undivided family”, “such family”- Meaning of in the context of Section 4 of the Partition Act, 1893. A residential Property was sold by its original owner to a third party. After the death of the said third party, his heirs gifted the residential property in favour of three persons two of them being sons and the third being the grandson of the original owner. The said property was subsequently inherited by their legal heirs. Appellant, who was one of the legal heirs and continued to stay in one room of the suit premises after the death of his father, purchased l/9th share of another legal heir in the dwelling house. Respondents 1 and 2 who were closely related to the appellant, filed a suit for partition of the property and for a declaration that sale in favour of appellant was illegal, void and not binding on them. They also file an application under S.4 of the Partition Act, 1893 claiming pre-emptive right to purchase the share sold to the appellant stranger. Trial Court while passing preliminary decree for partition, kept the application under S.4 of the Act pending for decision after recording evidence. However on appeal, High Court held that appellant was not a member of the family and respondents 1 and 2 were entitled under S.4 of the Act to pre-empt the sale made in favour of appellant. Hence the present appeal. On behalf of appellant-transferee it was contended that appellant was a member of the family as he was closely related to respondents through a common ancestor and therefore S.4 of the Act contemplating sale to an absolute outsider cannot be invoked; that the appellant had not sued for partition and therefore sale in his favour cannot be pre-empted under S.4 of the Act. On behalf of respondents 1 and 2 it was contended that share in the dwelling house belonging to an undivided family of the grand son of the original owner, was sold to appellant who was not a member of the said undivided family and therefore S.4 was rightly invoked; that it was not necessary that the stranger/outsider should actually file a suit for partition; that in any suit for partition filed by an outsider or member of family, the position of all parties was inter changeable and irrespective of whether the stranger/outsider asked for a separate allotment or not, any co-sharer can claim a right for pre-emption under S.4 of the Act. =Disposing of the appeal, the Court HELD: 1.1. The right to pre-empt purchase by co-sharer under S.4 of the Partition Act, 1893 cannot be exercised till the stranger/outsider sues for partition. There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus, strangers/outsiders can purchase shares even in a dwelling house. However, Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. Thus, before the right of pre-emption, under Section 4, is exercised the condition inter alia laid down therein that the outsider must sue for partition must be complied with. [744-G, H; 745-A, B] 1.2. Though S.4 of the Act should be given a liberal interpretation but giving liberal interpretation does not mean that the wordings of the section and the Legislative intent should be ignored. The legislature did not provide that the right for pre-emption could be exercised “in any suit for partition”. The Legislature only provided for such right when the “transferee sues for partition.” Mere assertion of a claim to a share without demanding separation and possession (by the outsider) is not enough to give to the other co-sharers a right of pre-emption. In the instant case, at no stage has the appellant asked for partition or demanded possession of his shares. Thus, High Court was not justified in allowing Respondents 1 and 2 to exercise a right of pre-emption under S.4 of the Act. [743-F; 745, E, F; 746-C] 2. Appellant-transferee could not be said to be a member of the family within the meaning of S.4 of the Partition Act, 1893. The relevant wordings in the Section are “dwelling house belonging to an undivided family”. The further requirement is that the transfer must be to a person who is not a member of “such family”. The words “such family” necessarily refers to the undivided family to whom the dwelling house belongs. In the instant case, the undivided family is not the undivided family of the common ancestor but that of his grandson. Appellant has not claimed that he is a member of the undivided family of the latter. Consequently, appellant cannot be said to be a member of the undivided family to whom the dwelling house belongs. Merely because he is related by blood through a common ancestor does not make him a member of the family within the meaning of the term as used in S.4 of the Act. Thus, the High Court was justified in holding that the sale was not to a member of the family. [743-F, G, H; 744-A, B] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5942 of 2000. From the Judgment and Order dated 11.9.98 of the Calcutta High Court in F.A. No. 152 of 1993. S.B. Sanyal, Atanu Saikia and AviIjit Bhattacharjee for the Appellants. Bhaskar Pd. Gupta, G.S. Chatterjee, Raja Chatterjee, Ms. Aruna Mukherjee and Soumya Ray for the Respondents. =2001 AIR 61, , 2000( 8 )SCC 330, 2000( 7 )SCALE145 , 2000( 1 )Suppl.JT 614
CASE NO.: Appeal (civil) 5942 of 2000 PETITIONER: GAUTAM PAUL RESPONDENT: DEBI RANI PAUL AND ORS DATE OF JUDGMENT: 17/10/2000 BENCH: V.N. KHARE & S.N. VARIAVA JUDGMENT: JUDGMENT 2000 Supp(3) SCR 733 The Judgment of the Court was delivered by S.N. VARIAVA, J. Leave granted. This Appeal is against an Order dated 11th September, 1998 … Continue reading
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