THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment
delivered on: 03.08.2016
+
FAO(OS)
145/2016
M/S RSPL LIMITED ... Appellant
versus
MUKESH SHARMA & ANR ...
Respondents
Advocates who appeared in this case:
For the Appellant : Mr Akhil Sibal with Mr S.K.
Bansal, Mr Ajay Amitabh
Suman, Mr
Pankaj Kumar, Mr Amit Chanchal Jha and
Mr Vinay
Shukla
For the
Respondents : Mr Kirti Uppal, Sr. Advocate with Mr N.K.
Kantawala,
Mr P.
Sharma and Ms Sahiba
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
BADAR DURREZ AHMED, J
1. This appeal is directed against the judgment dated 05.04.2016,
whereby a learned Single Judge of this Court has allowed the application of the
respondents/defendants under Order 7 Rule 10 of the Code of Civil
Procedure, 1908 (hereinafter referred to ‗as CPC‘). By virtue of the
impugned judgment, the learned Single Judge has held that the plaint filed by
the appellant/plaintiff was liable to be returned under Order 7 Rule 10 CPC as,
according to him, this Court did not have territorial jurisdiction to
FAO(OS) 145/2016 Page 1 of 38
entertain the suit [CS(OS) 124/2015] which was filed by the
appellant/plaintiff.
2. The suit was filed by the appellant/plaintiff under Sections 134 and
135 of the Trade Marks Act, 1999 as also the Copyright Act, 1957 seeking
permanent injunction restraining infringement of its trade mark and copyright.
The suit was also one for injuncting the respondents/defendants, based upon a
passing off action. Rendition of account etc. was also prayed for. It was
claimed by the plaintiff/appellant that its trade mark GHARI/ GHADI label is
registered in Class 30 and also in other classes in India under various
registrations which are still valid and subsisting under the provisions of the
Trade Marks Act, 1999. It is also stated in the plaint that the
appellant/plaintiff had filed various other applications for registration of
the trade mark GHARI/GHADI label in Classes 1 to 42 under the Trade Marks Act
1999 in India. It is also alleged in the plaint that the plaintiff‘s artistic
works in the said trade mark/label are also registered under the provisions of
The Copyright Act, 1957. It is alleged that the appellant/plaintiff is the
owner and proprietor of the said trade mark/ label in relation to the goods and
business and, in view of the plaintiff‘s proprietary rights, it has an
exclusive right to the use thereof. It is further
FAO(OS) 145/2016 Page 2 of 38
stated in the plaint that the defendant No.1/respondent No.1 (Mr Mukesh
Sharma) is a lawyer and proprietor of a law firm – GHARI TRADEMARK COMPANY –
which is situated at 64, Kailashpuri, Bulandshahar, Uttar Pradesh and is
engaged in legal and advisory services in relation to intellectual property
rights‘ matters and that the word ‗GHARI‘ is the most prominent part of the said
firm‘s name.
3.
It is averred that by the adoption and use of the
impugned trade mark
– GHARI TRADEMARK COMPANY– in
relation to the said services, the
defendants are guilty of
infringing the registered trade mark/label of the
plaintiff/appellant. With
regard to the date of knowledge, cause of action
and territorial jurisdiction, the
plaintiff made the following averments:-
―35. That in the month of 3rd Week of November 2014 the Plaintiff
received the caveat petitions filed by the defendants in different District
Courts, Delhi, whereby the defendant alleged to be engaged under the impugned
trade name GHARI TRADE MARK COMPANY under the impugned services. The
plaintiff's further inquiry revealed that the defendants have very recently
started the impugned activity under the impugned trade name. The defendants'
user thereof (if any) utmost would be clandestine, surreptitious, sporadic
restricted, minimal and very recent and all making it very difficult to detect
and verify the precise nature of the Defendants' activities. The defendant's
impugned user, if any, is void-ab-initio.
36. That the cause of action for filing the present
Suit has been detailed in the preceding Paras of the Plaint. The cause of
FAO(OS) 145/2016 Page 3 of 38
action for filing the present Suit has arisen in favour of the plaintiff
and against the defendant in the 3 rd Week of November 2014 the Plaintiff received the caveat petitions filed
by the defendants in different District. Court, New Delhi, whereby the
defendants alleged to be engaged under the impugned trade name GHARI TRADE MARK
COMPANY under the impugned services. The defendants' are indulging in the
impugned activity under the impugned tradename on a daily and continuous basis
and as such the cause of action is a continuous one and shall continue to so
accrue' on daily basis till such time the defendants cease with its impugned
activities under the impugned trade name in relation to impugned services.
37. That this Hon'ble Court has the territorial jurisdiction to try and
adjudicate the present suit. The defendants are committing the impugned acts
within the jurisdiction of this Hon'ble Court by conducting, soliciting,
rendering the impugned services within the impugned trade name within the
territorial jurisdiction of this Hon'ble Court. The plaintiff is having its
corporate office at 3rd Floor, C-1, 2, and 3, Netaji Subhash Place, Wazirpur
District Center, Pitampura, New Delhi - 110034 which is nerve center of the
plaintiff s said business and from where the plaintiff has been carrying on
with , its' important aspects of its business including marketing, distribution
and finance and is carrying on its said goods and business under the said
trademark/label within the territorial jurisdiction of this Hon'ble Court. The
plaintiff is also carrying Out is business activity under the said
trademark/label through its dealers/distributor , within the territorial
jurisdiction of this Hon'ble COiirt (viz. Mauj Pur, Shastri Park, Usmanpur,
Karawal Nagar, Khazoori Khas, Bhajanpura, Sonia Vihar, Gokulpuri etc.). The
name of plaintiff's dealer/distributor within the territorial jurisdiction of
this Hon'ble Court are (i) M/s Garg Enterprises, A-31/7E, Main Road, Maujpur,
Delhi (ii) M/s Paras Enterprises, A-25; Gali No.2, A-Block, Kaithwara, Delhi (iii). M/s Shri Balaji
Enterprises, B-4, Vardhman Cbmplex, C-Block, Yamuna Vihar, Delhi. The plaintiff
has tremendous goodwill and reputation in its said trade mark/label in Delhi
area which is being tarnished by defendants impugned activities of the
defendant in North East Delhi area,
FAO(OS) 145/2016 Page 4 of 38
besides other parts of country. The plaintiff's
said proprietary rights are being prejudicially affected in Delhi area due to
the defendants' impugned activities. This Hon‘ble Court, as such, has the
jurisdiction to try and adjudicate the present suit by virtue of
Section
134 (2) of the Trade Marks Act 1999.‖
4. From paragraph 37 of the plaint, which has been set out above, it is
evident that the plaintiff / appellant has alleged that the defendants are
committing the alleged acts of infringement etc. within the jurisdiction of
this Court by conducting, soliciting, rendering the impugned services under the
impugned trade name within the territorial jurisdiction of this Court. In
addition to this averment, it has also been averred that the
plaintiff/appellant has its corporate office at Netaji Subhash Place, Wazirpur
District Center, Pitampura, New Delhi – 110034. It has also been averred that
the plaintiff also carries on its business under the said trade mark/label
through its dealers/distributors which are situated within the territorial
jurisdiction of this Court. It is also averred that the plaintiff/appellant has
tremendous goodwill and reputation in its said trade mark/label in the Delhi
area which is being tarnished by the defendants‘ impugned activities
specifically in North-East Delhi apart from other parts of the country. It is
again averred that the plaintiff/appellant‘s said proprietary rights are being
prejudicially affected in the Delhi area due to
FAO(OS) 145/2016 Page 5 of 38
the defendants‘ impugned activities. Consequently, it is averred that
this Court has jurisdiction to try and adjudicate the present suit by virtue of
the provisions of Section 134(2) of the Trade Marks Act, 1999.
5.
However, the learned Single Judge
accepted the plea taken by the defendants/respondents in their Order 7 Rule 10
CPC application (IA 11034/2015) that this Court does not have territorial
jurisdiction to entertain the present suit and, therefore, directed that the
plaint be returned.
6.
The learned Single Judge came to
the said conclusion on the basis of his view that no part of the cause of
action arose within the territorial jurisdiction of Delhi. The learned Single
Judge was also of the view that the averments contained in paragraph 37 of the
plaint were vague and bereft of any particulars and did not amount to a
statement of material facts as contemplated under Order 6 Rule 2 CPC. The
learned Single Judge observed that – ―No doubt, the act of soliciting business
would give rise to cause of action, but the plaintiff has not made any specific
averment as to how the defendant is carrying on its business and, inter alia, soliciting work
within the jurisdiction of this court‖. The learned Single Judge was of
the view that merely by making vague and non-specific averments, which were
devoid of particulars, the plaintiff/ appellant could not call upon this Court
FAO(OS) 145/2016 Page 6 of 38
to act upon the said averment on the premise that the plaintiff is not
obliged to lead evidence in his pleadings and that the plea of territorial
jurisdiction should not be decided at this stage and that the same should be left
to be decided only after the parties have led their evidence at trial. The
learned Single Judge was also concerned about the overflowing dockets and
workload of the Courts and, therefore, observed that the Courts are not obliged
to turn a blind eye to frivolous pleas and to swallow unfounded averments. This
led the learned Single Judge to observe that the Court is not helpless to deal
with shallow pleas at the threshold and nip such causes in the bud. The learned
Single Judge also observed that the plaintiff has not pleaded the particulars
of the cause of action which are claimed to have arisen within the jurisdiction
of the Court. According to the learned Single Judge, it is one thing to say
that a party may not be aware of definite particulars of the facts pleaded on
the date of filing of his pleadings, although he had definite knowledge of the
facts pleaded, and quite another thing to say that he has no definite knowledge
of the pleaded fact. According to the learned Single Judge, the
plaintiff/appellant had no definite knowledge with regard to the facts of the
cause of action having arisen within the jurisdiction of this Court. The
learned Single Judge noted that the plaintiff had not filed any document in
relation to the alleged
FAO(OS) 145/2016 Page 7 of 38
―conducting, soliciting and rendering of the impugned services‖ under
the impugned trade name within the jurisdiction of this court. The learned
Single Judge further observed that there is no reason to subject the
defendants/respondents, who are admittedly located outside the jurisdiction of
this Court to continue to face the present proceedings in this Court when the
acts of the defendants, complained of by the plaintiff, have not been
undertaken within the jurisdiction of this Court and the defendants are also
not situated or working for gain within the jurisdiction of this Court.
7. We may also point out that the learned Single Judge referred to the
decision of the Supreme Court in the case of Indian Performing Rights
Society Limited
v. Sanjay Dalia:
(2015) 10 SCC
161 and gave
his
interpretation of the said
decision in the context of Section 134(2) of the
Trade Marks Act, 1999 in the
following manner:-
―21. From the aforesaid decision in Indian Performing Rights Society Limited (supra), and the
decision cited by the Supreme Court
therein, in my opinion, the position that emerges is as follows:
(a)
By resort to Section 134 of the
Trade Marks Act and 62 of the Copyright Act, the plaintiff may institute the
suit where the plaintiff voluntarily resides or carries on business or
personally works for gain. In the context of corporation, which includes a
company incorporated under the Indian Companies Act, 1956,
FAO(OS) 145/2016 Page 8 of 38
such a place would be the place where the
registered office of the company is situated. Thus, a company can maintain a
suit under Section 134 of the Trade Marks Act, or Section 62 of the Copyright
Act, at the place where its registered office is situated, irrespective of the
fact, whether or not, cause of action has arisen within the jurisdiction of the
Court, within whose jurisdiction the registered office of the company is
situated.
(b)
Section 134 of the Trade Marks
Act and Section 62 of the Copyright Act do not take away right of the plaintiff
to institute the suit by resort to Section 20 of the CPC, as Section 134 of the
Trade Marks Act and Section 62 of the Copyright Act provide an additional forum
to the plaintiff alleging infringement of the registered trademark or
copyright, as the case may be. This is clear from the inclusive definition of
the expression, 'District Court having jurisdiction' contained in
Section 134
(2) of the Trade Marks Act and Section 62(2) of the Copyright Act. Thus,
the plaintiff may file a suit for infringement of trademark/copyright either at
the place where the plaintiff voluntarily resides or carries on business or
personally works for gain by resort to Section 62 of the Copyright Act and
Section 134 of the Trade Marks Act, or at the place where,
'the
defendant, or each of the defendants where there are more than one, at the time
of commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain'. [Section 20 (a)]; or where any of the defendants, where there are more than one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or personally works
for gain,
FAO(OS) 145/2016 Page 9 of 38
provided
that in such case either the leave of the Court is given, or the defendants who
do not reside, or carry on business, or personally work for gain, as aforesaid,
acquiesce in such institution [section 20(b)]; or the cause of action wholly or in part, arises [section 20(c)].
(c)
The plaintiff cannot file a suit
alleging infringement of trademark/copyright at a place where it has a
subordinate office, by resort to Sections 134 of the Trade Marks Act or Section
62 of the Copyright Act, unless one of the conditions of
Section 20 CPC are satisfied.‖
At this point itself, we may record that the observations of the learned
Single Judge in sub-paragraphs (a) and (b) are contrary to the interpretation
placed by a Division Bench of this Court in Ultra Home Construction
Private Limited v. Purushottam
Kumar Chaubey and Others: FAO(OS)
494/2015 decided on 20.01.2016. Instead of
following the said decision and accepting the same, the learned
Single Judge has from paragraphs 49 to 67 of the impugned judgment criticized
the same and differed with the said decision. This, the learned Single Judge,
could not have done and was required to follow the said Division Bench‘s decision
in Ultra
Home
(supra) without demur. We shall elaborate on this aspect of the matter later.
FAO(OS) 145/2016 Page 10 of 38
8.
For
now, it is
sufficient to record
that admittedly the
appellant/
plaintiff‘s registered office is at Kanpur. The defendants also have
their office at Bulandshahar, U. P. It is also averred in the plaint that the
plaintiff has a corporate office in Delhi. The plaint also avers that since the
respondents were conducting, soliciting, rendering services under the impugned
trade name – GHARI TRADEMARK COMPANY – within the jurisdiction of this Court,
this Court would have the jurisdiction to entertain the suit.
9.
The learned Single Judge, in our
view, correctly focused on the issue of the location of the cause of action.
But, in our view, the learned Single Judge erred in concluding that no part of
the cause of action had arisen in Delhi.
10.
It must be stated that it is a
settled proposition of law that the objection to territorial jurisdiction in an
application under Order 7 Rule 10 CPC is by way of a demurrer. This means that
the objection to territorial jurisdiction has to be construed after taking all
the averments in the plaint to be correct. In Exphar SA and Another v.
Eupharma Laboratories Limited and Another: (2004) 3 SCC 688,
the Supreme Court observed that when an
FAO(OS) 145/2016 Page 11 of 38
objection to jurisdiction is raised by way of demurrer and not at the
trial, the objection must proceed on the basis that the facts, as pleaded by
the initiator of the impugned procedure, are true. The Supreme Court further
observed that the objection as to jurisdiction in order to succeed must
demonstrate that granted those facts, the Court does not have jurisdiction as a
matter of law. It is also a settled proposition of law that while considering a
plaint from the standpoint of Order 7 Rule 10 CPC, it is only the plaint and
the documents filed along with it, that need to be seen. The written statement
is not to be looked into at all.
11. The learned Single Judge has, while taking the view that the
averments contained in paragraph 37 of the plaint with regard to territorial
jurisdiction are vague and bereft of particulars, tried to bring in the
distinction between ‗material facts‘ and ‗particulars‘ and in doing so
considered the decisions of the Supreme Court in Udhav Singh v. Madhav
Rao Scindia: AIR 1976 SC 744; Mahendra
Pal v. Ram Dass Malanger & Ors.: (2000) 1 SCC 261; and Mahadeorao Sukaji Shivankar v. Ramaratan Bapu and Ors.:
(2004) 7 SCC 181. All these decisions were under the Representation
of the People Act, 1951 in the context of election petitions. These decisions
clearly indicate that Section 83(1)(a) corresponds to and is
FAO(OS) 145/2016 Page 12 of 38
similar to the provisions of Order 6 Rule 2. It is
also clear from the said decisions that the provisions of Section 83(1)(b) of
the Representation of the People Act, 1951 corresponds to Order 6 Rules 4 and 6
CPC.
12. Section 83 of the Representation of the People Act, 1951 and the
provisions of Order 6 Rules 2, 4 and 6 are set out herein below:-
―83. Contents of petition.—(1) An
election petition—
(a)
shall contain a concise statement
of the material facts on which the petitioner relies;
(b)
shall set forth full particulars
of any corrupt practice that the petitioner alleges, including as full a
statement as possible of the names of the parties alleged to have committed
such corrupt practice and the date and place of the commission of each such
practice; and
(c)
shall be signed by the petitioner
and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of
1908) for the verification of pleadings:
Provided that where the petitioner alleges any
corrupt practice, the petition shall also be accompanied by an affidavit in the
prescribed form in support of the allegation of such corrupt practice and the
particulars thereof.
(2) Any schedule or annexure to the petition shall
also be signed by the petitioner and verified in the same manner as the petition.‖
―ORDER VI - PLEADINGS GENERALLY
FAO(OS) 145/2016 Page 13 of 38
xxxx xxxx xxxx xxxx
2. Pleading to state material
facts and not evidence.— (1) Every pleading shall contain, and
contain only a statement in a concise form of the material facts on which the
party pleading relies for his claim or defence as the case may be, but not the
evidence by which they are to be proved.
(2)
Every pleading shall, when
necessary, be divided into paragraphs, numbered consecutively, each allegation
being, so far as is convenient, contained in a separate paragraph.
(3)
Dates, sums and numbers shall be
expressed in a pleading in figures as well as in words.‖
xxxx xxxx xxxx xxxx
―4. Particulars to be given where
necessary— In all cases in which the party pleading relies on any
misrepresentation, fraud, breach of trust, wilful default, or undue influence,
and in all other cases in which particulars may be necessary beyond such as are
exemplified in the forms aforesaid, particulars (with dates and items if
necessary) shall be stated in the pleading.‖
xxxx xxxx xxxx xxxx
―6. Condition precedent— Any
condition precedent, the performance or occurrence of which is intended to be
contested, shall be distinctly specified in his pleading by the plaintiff or
defendant, as the case may be; and, subject thereto, an
averment of the performance or occurrence of all conditions precedent necessary
for the case of the plaintiff or defendant shall be implied in his pleading.
xxxx xxxx xxxx xxxx‖
FAO(OS) 145/2016 Page 14 of 38
13.
From the above provisions, it
will be immediately seen that Order 6 Rule 2 is similar but not identical to
the provisions of Section 83 (1)(a) of the Representation of the People Act,
1951. The difference being the expressions – ―and contain only‖ and ―but not
the evidence by which they are to be proved‖ – which occur in Order 6 Rule 2
CPC, but not in Section 83(1)(a).
14.
There can be no quarrel with the
observations of the Supreme Court in the above mentioned three cases pertaining
to the Representation of the People Act, 1951 in the context of what are ‗material
facts‘ as distinct from
‗material particulars‘.
15. In Virendra
Kashinath Ravat v. Vinayak N. Joshi: (1999) 1 SCC
47, the
Supreme Court made the following observations with regard to the
provisions of Order 6 Rule 2:-
―16. That apart, the averment extracted above
cannot, by any standards be dubbed as bereft of sufficiency in pleading. Under
Order 6 Rule 2(1) of the Code the requirement is the following:
―2. (1) Every pleading shall contain, and contain
only, a statement in a concise form of the material facts on which the party
pleading relies for his claim or defence, as the case may be, but not the
evidence by which they are to be proved.‖
FAO(OS) 145/2016 Page 15 of 38
17. The object of the Rule is twofold. First is
to afford the other side intimation regarding the particular facts of
the case so that they may be met by the other side. Second is to enable the
court to determine what is really the issue between the
parties. The
words in the sub-rule ―a statement in a concise form‖ are definitely suggestive
that brevity should be adhered
to while drafting pleadings. Of course brevity
should not be at the cost of setting out necessary facts, but it does not mean
niggling in the pleadings. If care is taken in the syntactic process, pleadings
can be saved from tautology. Elaboration of
facts in pleadings is not the ideal
measure and that is why the
sub-rule embodied the words ―and contain
only‖ just before the
succeeding
words ―a statement in a concise form of the material facts‖.
18. This Court has indicated the position in Manphul Singh v. Surinder Singh [(1973)
2 SCC 599 : AIR 1973 SC 2158]. On a
subsequent occasion this Court has again reiterated the principle in Ganesh Trading Co. v. Moji Ram [(1978) 2 SCC 91: AIR 1978 SC
484]. Following observations made in the said decision are useful in this
context: (SCC p. 93, para 2)
―2.
Procedural law is intended to facilitate and not to obstruct the course of
substantive justice. Provisions relating to pleadings in civil cases are meant
to give to each side intimation of the case of the other so that it may be met,
to enable courts to determine what is really at issue between parties, and to
prevent deviations from the course which litigation on particular causes of
action must take.‖
(underlining added)
16. It is evident from the above decision that the object of the Rule is
two-fold. First of all, it affords an opportunity to
the other side to meet the
FAO(OS) 145/2016 Page 16 of 38
facts pleaded. Secondly, it enables the court to determine
as to what is the
real
issue between the parties. The observation of the Supreme
Court that
elaboration of facts in pleadings
is not the ideal measure and that is why the
words
―and contain only‖ just before the succeeding words ―a statement in
a concise form of the material
facts‖ have been used, has to be kept in
mind. Thus, it is only the ‗material facts‘ and not
the details thereof which
are required to be pleaded in order to comply with the mandate of Order
6
Rule 2.
17. The
Supreme Court in Hari Shanker Jain v. Sonia Gandhi: (2001) 8
SCC 233 observed,
once again in the context of Section 83(1)(a) of the
Representation of People Act,
1951, as under:-
―23. Section 83(1)(a) of RPA, 1951 mandates that an
election petition shall contain a
concise statement of the material facts on which the petitioner relies. By
a series of decisions of this Court,
it is well settled that the material facts required to be stated are those
facts which can be considered as materials supporting the allegations made. In
other words, they must be such facts as would afford a basis for the allegations made in the petition and would
constitute the cause of action as understood in the Code of Civil Procedure,
1908. The expression ―cause of action‖ has been compendiously defined
to mean every fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of court. Omission
of a single material fact leads to an incomplete cause of action and the
statement of claim becomes
FAO(OS) 145/2016 Page 17 of 38
bad. The function of the party is to present as full a picture of the
cause of action with such further information in detail as to make the opposite
party understand the case he will have to meet. (See Samant N. Balkrishna v. George
Fernandez [(1969) 3 SCC 238 : (1969) 3 SCR 603] , Jitendra Bahadur Singh v. Krishna Behari [(1969) 2 SCC 433] .) Merely quoting the words of the section like
chanting of a mantra does not amount to stating material facts. Material facts
would include positive statement of facts as also positive averment of a negative
fact, if necessary. In V.S.
Achuthanandan v. P.J. Francis [(1999)
3 SCC 737] this Court has held, on a conspectus
of a series of decisions of this Court, that material facts are such
preliminary facts which must be proved at the trial by a party to establish
existence of a cause of action.
Failure to plead ―material facts‖
is fatal to the election petition and no amendment of the pleadings is
permissible to introduce such material facts after the time-limit prescribed
for filing the election petition.‖
(underlining
added)
It is important to note that
merely quoting the words of
a provision
like the chanting of a mantra does not amount to stating material facts.
As observed by the Supreme Court, material facts would include a
positive statement of facts as
also a positive averment of a negative
fact, if
necessary. It has further been
elaborated that material facts are
such ‗preliminary‘
facts which must be proved at the trial by a party to
establish the existence of a cause of action. It, therefore, follows that
if a
plaintiff were merely to state that a court has territorial jurisdiction
FAO(OS) 145/2016 Page 18 of 38
to try and adjudicate a suit,
that would not be sufficient. The
plaintiff
would have
to plead as
a fact as
to how that court would
have
territorial
jurisdiction. But, at the same time, the
plaintiff would not
have to give details of that
material fact or the evidence by which the
material fact is to be proved.
18. In M.
Chinnasamy v. K. C. Palanisamy: (2004) 6 SCC 341, the
Supreme Court, while, once again,
noting that the provisions of Order 6
Rule 2 were more or less the same
as the provisions of Section 83(1)(a) of
the Representation of
the People Act,
1951, examined the
distinction
between ‗material facts‘ and
‗particulars‘ in the following manner:-
―15. It is not in dispute that in relation to an
election petition, the provisions of the Code of Civil Procedure apply. In
terms of Order 6 Rule 2 of the Code of Civil Procedure which is in pari materia
with clause (a) of sub-section (1) of
Section 83 an election petition must contain concise statement of material
facts. It is true as contended by Mr Mani that full particulars are required to
be set forth in terms of clause (b)
of sub-section (1) of Section 83 of the Act which relates to corrupt practice. The
question as to what would constitute material facts would, however, depend
upon the facts and circumstances of each case. It is trite that an order of
re-counting of votes can be passed when the following ingredients are
satisfied: (1) if there is a prima
facie case; (2) material facts
therefor are pleaded; (3) the court
shall not direct re-counting by way of roving or fishing inquiry; and (4) such an objection had been taken recourse to.
38. In Mohan Rawale
v. Damodar Tatyaba [(1994) 2 SCC 392]
this Court observed: (SCC pp. 398-99, paras 12-18)
FAO(OS) 145/2016 Page 19 of 38
―12.
Further, the distinction between ‗material facts‘ and ‗full particulars‘ is one
of degree. The lines of distinction are not sharp. ‗Material facts‘ are
those which a party relies upon and which, if he does not prove, he
fails at the time.
13. In Bruce v. Odhams Press Ltd. [(1936) 1 KB 697: (1936) 1 All ER 287 (CA)] Scott, L.J.
said:
‗The word ―material‖ means necessary for the purpose
of formulating a complete cause of action; and if any one ―material‖ statement
is omitted, the statement of claim is bad.‘
The purpose of ‗material particulars‘ is in the
context of the need to give the opponent sufficient details of the charge set
up against him and to give him a reasonable opportunity.
14. Halsbury refers to
the function of particulars thus:
‗The function of particulars is to carry into
operation the overriding principle that the litigation between the parties, and
particularly the trial, should be conducted fairly, openly and without
surprises, and incidentally to reduce costs. This function has been variously
stated, namely, either to limit the generality of the allegations in the
pleadings, or to define the issues which have to be tried and for which discovery
is required.‘
(See: Pleadings, Vol. 36, para 38)
15. In Bullen and Leake and
Jacob's ‗Precedents of Pleadings‘,
1975 Edn. at p. 112 it is stated:
‗The function of particulars is to carry into
operation the overriding principle that the litigation between the parties, and
particularly the trial, should be conducted fairly, openly and without
surprises and
FAO(OS) 145/2016 Page 20 of 38
incidentally to save costs. The object of
particulars is to ―open up‖ the case of the opposite party and to compel him to
reveal as much as possible what is going to be proved at the trial, whereas, as
Cotton,
L.J. has said, ―the old system of pleading at
common law was to conceal as much as possible what was going to be proved at
the trial‖.‘
16. The distinction between
‗material facts‘ and ‗particulars‘
which together constitute the facts to be proved — or the facta probanda — on the one hand and the evidence by which those
facts are to be proved
—facta probantia
— on the other must be kept clearly distinguished. In Phillipps v. Phillipps [(1878) 4 QBD 127 : 48 LJQB
135 : 39 LT 556 (CA)] Brett, L.J. (QBD at p. 133) said:
‗I will not say that it is easy to express in words
what are the facts which must be stated and what matters need not be stated. …
The distinction is taken in the very rule itself, between the facts on which
the party relies and the evidence to prove those facts. Erle, C.J. expressed it
in this way. He said that there were facts that might be called the
allegata probanda, the facts which ought to be proved, and they were different
from the evidence which was adduced to prove those facts. And it was upon
the expression of opinion of Erle, C.J. that Rule 4 [now Rule 7(1)] was drawn.
The facts which ought to be stated are the material facts on which the party
pleading relies.‘
17. Lord Denman, C.J. in Williams v. Wilcox [(1838) 8 Ad & El 314 : 112 ER 857] said:
‗It is an elementary rule in pleading that, when
a state of facts is relied it is enough to allege it simply, without
setting out the subordinate facts which are
FAO(OS) 145/2016 Page 21 of 38
the means of proving it, or the evidence sustaining the allegations.‘
18. An election petition can be rejected under Order 7 Rule 11(a) CPC if it
does not disclose a cause of action. Pleadings could also be struck out under
Order 6 Rule 16, inter alia, if they are scandalous, frivolous or vexatious.
The latter two expressions meant cases where the pleadings are obviously
frivolous and vexatious or obviously unsustainable.‖
(underlining
added)
19. The Supreme Court reiterated its observations in Mohan
Rawale
v. Damodar Tatyaba :
(1994) 2 SCC 392 to the effect that the distinction between ‗material
facts‘ and ‗particulars‘, which together constitute the facts to be proved — or
the facta probanda — on the one hand
and the evidence by which those facts are to be proved —facta probantia — on the other must be kept clearly
distinguished. The principle cannot,
in our view, be put in better language than that used by Lord Denman, C.J. in Williams v.
Wilcox (supra). It was quoted
with approval by the Supreme Court and which is to the effect that when a
state of facts is relied, it is enough to allege it simply without setting out
the subordinate facts which are the means of proving it, or the evidence
sustaining the allegations.
FAO(OS) 145/2016 Page 22 of 38
20. The
distinction between ‗material facts‘ and ‗particulars‘ was, once
again, drawn by the Supreme Court
in Harkirat
Singh v. Amrinder Singh:
(2005) 13 SCC 511 in the
following manner:-
―48. The expression ―material facts‖ has neither been defined in the Act
nor in the Code. According to the dictionary meaning, ―material‖ means
―fundamental‖, ―vital‖, ―basic‖, ―cardinal‖, ―central‖, ―crucial‖, ―decisive‖,
―essential‖, ―pivotal‖,
―indispensable‖, ―elementary‖ or ―primary‖.
[Burton's Legal Thesaurus (3rd Edn.), p. 349.] The phrase ―material
facts‖, therefore, may be said to be those facts upon which a party relies for
its claim or defence. In other words,
―material facts‖ are facts upon
which the plaintiff's cause of action or the defendant's defence depends. What
particulars could be said to be ―material facts‖ would depend upon the facts
of each case and no rule of universal application can be laid down. It is,
however, absolutely essential that all basic and primary facts which must be
proved at the trial by the party to establish the existence of a cause of
action or defence are material facts and must be stated in the pleading by the
party.‖
xxxx xxxx xxxx xxxx
―51. A distinction between ―material facts‖ and ―particulars‖, however,
must not be overlooked. ―Material facts‖ are primary or basic facts
which must be pleaded by the plaintiff or by the defendant in support of the
case set up by him either to prove his cause of action or defence.
―Particulars‖, on the other hand, are details in support of material facts
pleaded by the party. They amplify, refine and embellish material facts by
giving distinctive touch to the basic contours of a picture already drawn so as
to make it full, more clear and more informative.
FAO(OS) 145/2016 Page 23 of 38
―Particulars‖ thus ensure conduct of fair trial and would not take the
opposite party by surprise.
52. All ―material facts‖ must be pleaded by the party in support of the
case set up by him. Since the object and purpose is to enable the opposite
party to know the case he has to meet with, in the absence of pleading, a party
cannot be allowed to lead evidence. Failure to state even a single material
fact, hence, will entail dismissal of the suit or petition. Particulars,
on the other hand, are the details of the case which is in the nature of evidence a party would be leading
at the time of trial.‖
(underlining
added)
21.
It is important to note the observations of the
Supreme Court to the
effect that what ‗particulars‘ could be regarded to be ‗material facts‘
would depend upon the facts of each case and no rule of universal application
can be laid down. It was, however, pointed out that it is essential that all
basic and primary facts which must be proved at the trial by the party to
establish the existence of a cause of action or defence are ‗material facts‘
and must be stated in the pleading by the party.
22.
As regards
the meaning of
the expression ‗cause
of action‘, the
Supreme
Court in Om Prakash Srivastava v. Union of India: (2006) 6
SCC 207 observed as under:-
―9. By ―cause of action‖ it is meant every fact, which, if traversed, it
would be necessary for the plaintiff to prove in
FAO(OS) 145/2016 Page 24 of 38
order to support his right to a judgment of the Court. In other words, a
bundle of facts, which it is necessary for the plaintiff to prove in order to
succeed in the suit. (See Bloom Dekor
Ltd. v. Subhash Himatlal Desai [(1994)
6 SCC 322] ).‖
xxxx xxxx xxxx xxxx
―12. The expression ―cause of action‖ has acquired a judicially settled
meaning. In the restricted sense ―cause of action‖ means the circumstances
forming the infraction of the right or the immediate occasion for the reaction.
In the wider sense, it means the necessary conditions for the
maintenance of the suit, including not only the infraction of the right, but
also the infraction coupled with the right itself. Compendiously, as noted
above, the expression means every fact, which it would be necessary for the
plaintiff to prove, if traversed, in order to support his right to the judgment
of the court. Every fact, which is necessary to be proved, as
distinguished from every piece of evidence, which is necessary to prove each
fact, comprises in
―cause of action‖. (See Rajasthan High Court Advocates' Assn. v. Union of India[(2001) 2 SCC 294]).‖
(underlining
added)
The Supreme Court in the said
decision clearly held that every fact, which
is necessary to be proved, as distinguished from every piece
of evidence,
which is necessary to prove each
fact, is comprised in the ‗cause of action‘.
23. Upon a consideration of the law as explained by the Supreme Court,
it is
evident that Order 6 Rule 2 requires every pleading, which includes a
plaint,
to contain, ―and contain only‖, a statement in concise form of the
FAO(OS) 145/2016 Page 25 of 38
material facts on which the party pleading relies for his claim, but not
the evidence by which they are to be proved.
24. Coming back to the facts of the present case, the plaintiff/
appellant in paragraph 36 set out the nature of the cause of action, namely,
the defendants/respondents were engaged in providing services under the
impugned trade name ‗GHARI TRADEMARK COMPANY‘. In paragraph 37 of the plaint,
it has been averred, first of all, that this Court has the territorial
jurisdiction to try and adjudicate the present suit. But, this by itself, would
not be sufficient because merely quoting the words of a section or the
ingredients of a provision like the chanting of a mantra would not amount to
stating material facts as noted by the Supreme Court in Hari Shanker Jain (supra).
The material facts would, inter alia,
have to include positive statement of
facts. In the present case, paragraph 37 of the plaint contains the positive
statement of fact that the defendants are committing the impugned acts within
the jurisdiction of this Court by ‗conducting, soliciting, rendering the impugned
services under the impugned trade name‘. Further statements are made in the
very same paragraph that the plaintiff has its corporate office in Delhi and
carries out its business activity in Delhi under its trade mark/label through
its dealers/ distributors located
FAO(OS) 145/2016 Page 26 of 38
in Delhi. A specific averment has also been made that the plaintiff‘s
goodwill and reputation is being tarnished by the alleged activities of the
defendants, particularly in North-East Delhi as also in other parts of the
country and that the plaintiff/appellant‘s proprietary rights are being
prejudicially affected in the Delhi area due to the said activities. While
considering an application under Order 7 Rule 10 CPC, these statements would
have to be taken as correct. This would mean that this Court would have
jurisdiction to try and adjudicate the present suit by virtue of Section 134(2)
of the Trade Marks Act, 1999 read with Section 20 CPC. The material fact that
has been pleaded by the plaintiff is that the defendants/ respondents are
conducting, soliciting, rendering the impugned services under the trade name –
GHARI TRADEMARK COMPANY – within the jurisdiction of this Court. In case the
defendants/ respondents deny this averment (as they have done in their written
statement but, which cannot be looked into at the stage of Order 7 Rule 10
CPC), the issue would arise as to whether the respondents/defendants are
conducting, soliciting, rendering the impugned services under the trade name–GHARI
TRADEMARK COMPANY–within the jurisdiction of this Court? Obviously, the onus of
proof would lie on the appellant/ plaintiff and at the stage of trial, evidence
would have to be placed to substantiate this plea. But, at this stage, in our
FAO(OS) 145/2016 Page 27 of 38
view, it is not necessary as Lord Denman, C.J.
in Williams v. Wilcox (supra), to set out the
subordinate facts which are the means of proving the material fact or the
evidence to sustain the allegation contained in the material fact. We, therefore,
do not agree with the view taken by the learned Single Judge that the plaint is
bereft of any particulars with regard to territorial jurisdiction. We may
observe that the learned Single Judge has also looked at the written statement
and even at the replication in the course of arriving at his decision. This, in
the context of an Order 7 Rule 10 CPC application, cannot be done as already
pointed out by us above. Taking the objection of territorial jurisdiction
raised in the Order 7 Rule 10 CPC application, by way of a demurrer, as it
must, the facts pleaded by the appellant/plaintiff must be taken to be true.
Therefore, if we take the statement of the appellant/plaintiff in paragraph 37
to the effect that the defendants/respondents are committing the impugned acts
within the jurisdiction of this Court by conducting, soliciting, rendering the
impugned services under the impugned trade name to be correct, then, it follows
that this Court would have to proceed with the trial of the suit and cannot return
the plaint under Order 7 Rule 10 CPC.
FAO(OS) 145/2016 Page 28 of 38
25.
Once we hold that on the basis of
the averments contained in the plaint, a part of cause of action has arisen in
the territory over which this Court exercises jurisdiction, the condition
prescribed in Section 20(c) CPC stands satisfied. In addition, the condition
stipulated in Section 134(2) of the Trade Marks Act, 1999 is also satisfied
because the plaintiff has averred that it has a corporate office in Delhi and
part of the cause of action has allegedly also arisen in Delhi. Therefore,
either way, this Court, in our view, would have jurisdiction to entertain the
present suit. The observations and the findings of the learned Single Judge to
the contrary, are wrong and are set aside.
26.
We now come to the issue
pertaining to the learned Single Judge differing with the view taken by a
Division Bench of this Court in Ultra Home (supra). Before we proceed further, it may be pertinent to note
that a Special Leave Petition being SLP (Civil) No. 7551/2016 had
been preferred against the said decision of the Division Bench in Ultra
Home (supra).
The said Special Leave Petition was called on for hearing on 08.04.2016,
when, upon hearing the counsel for the parties, the Supreme Court did not find
any merit in the petition and dismissed the same.
FAO(OS) 145/2016 Page 29 of 38
27. Judicial discipline and propriety requires that a Single Bench
should follow the decision of a Division Bench without demur as the Single
Bench is bound by it. It is all the more so when the Division Bench decision is
of an appellate court and the Single Bench happens to be the trial court. It is
a matter of judicial propriety that the hierarchical system is followed. A
decision of an appellate court may in the view of the trial court be right or
wrong, but the trial court has no option but to follow it. In fact, a Single
Judge cannot even refer a matter for decision by a Bench comprising of more
than two judges. Furthermore, the Single Judge can only refer a matter to be
placed before a Division Bench of two judges if the Single Judge finds that
there is a conflict of decisions of Single Benches. If there are conflicting
decisions of Division Benches of co-equal strength, it is, of course, open to the
Single Judge to follow the later decision. But, in such a situation, the
learned Single Judge cannot seek a reference to a Full Bench of three or more
Judges. That would fall within the domain of a Division Bench. The Supreme
Court in Pradip Chandra Parija v. Pramod Chandra Patnaik:
(2002) 1 SCC 1 observed as
under:-
―5. The learned
Attorney-General submitted that a Constitution Bench judgment of this Court was
binding on smaller Benches and a judgment of three learned Judges was binding
on Benches of two learned Judges — a proposition that learned counsel for the
appellants did not dispute. The learned
FAO(OS) 145/2016 Page 30 of 38
Attorney-General drew our attention to the judgment of a Constitution
Bench in Sub-Committee of Judicial Accountability v. Union of India [(1992) 4 SCC 97] where it has been said that ―no coordinate Bench of this Court can even comment
upon, let alone sit in judgment over, the discretion exercised or judgment
rendered in a cause or matter before another coordinate Bench‖ (SCC p. 98,
para 5). The learned Attorney-General submitted that the appropriate course for
the Bench of two learned Judges to have adopted, if it felt so strongly that
the judgment in Nityananda Kar [1991
Supp (2) SCC 516 : 1992 SCC (L&S) 177 : (1992) 19 ATC 236 : 1990 Supp (2)
SCR 644] was incorrect, was to make a reference to a Bench of three learned
Judges. That Bench of three learned Judges, if it also took the same view of Nityananda Kar [1991 Supp (2) SCC 516:
1992 SCC (L&S) 177 : (1992) 19 ATC 236: 1990 Supp (2) SCR 644] , could have
referred the case to a Bench
of five learned Judges.
6. In the present case the Bench of two learned Judges has, in terms,
doubted the correctness of a decision of a Bench of three learned Judges. They
have, therefore, referred the matter directly to a Bench of five Judges. In our
view, judicial discipline and propriety demands that a Bench of two learned
Judges should follow a decision of a Bench of three learned Judges. But if a
Bench of two learned Judges concludes that an earlier judgment of three learned
Judges is so very incorrect that in no circumstances can it be followed, the
proper course for it to adopt is to refer the matter before it to a Bench of
three learned Judges setting out, as has been done here, the reasons why it
could not agree with the earlier judgment. If, then, the Bench of three learned
Judges also comes to the conclusion that the earlier judgment of a Bench of
three learned Judges is incorrect, reference to a Bench of five learned Judges
is justified.‖
(underlining added)
FAO(OS) 145/2016 Page 31 of 38
28. In Sundeep
Kumar Bafna v. State of Maharashtra: (2014) 16 SCC
623 : 2014 SCC 257, the
Supreme Court held as under:-
―21. Recently, in Dinesh Kumar [State of
Haryana v. Dinesh
Kumar, (2008) 3 SCC 222 : (2008) 1 SCC (Cri) 722], this conundrum came to be considered again. This Court adhered to
the Niranjan Singh [Niranjan Singh v. Prabhakar Rajaram
Kharote, (1980) 2 SCC 559 : 1980 SCC (Cri) 508] dicta (as it was bound to do) viz. that a person can
be stated to be in judicial custody when he surrendered before the court and
submits to its directions. We further regretfully observe that the
impugned judgment [Sundeep Kumar Bafna v. State of
Maharashtra, Criminal Bail Application No. 206 of 2014, order dated 6-2-2014 (Bom)] is repugnant to the analysis carried out by
two coordinate Benches of the High Court of Bombay itself, which were duly
cited on behalf of the appellant. The first one
is reported as Balkrishna Dhondu Rani
v. Manik Motiram Jagtap [Balkrishna Dhondu
Rani v.Manik Motiram Jagtap,
(2005) 3 Mah LJ 226 : 2005 Supp Bom CR (Cri) 270] which applied Niranjan Singh [Niranjan Singh v. Prabhakar
Rajaram Kharote, (1980) 2 SCC 559
: 1980 SCC (Cri) 508] ; the second is
by a different Single Bench, which correctly applied the first. In the
common law system, the purpose of precedents is to impart predictability to
law, regrettably the judicial indiscipline
displayed in the impugned judgment [Sundeep Kumar
Bafna v. State of Maharashtra,
Criminal Bail Application No. 206 of
2014, order dated 6-2-2014 (Bom)], defeats it. If the learned Single
Judge who had authored the impugned judgment [Sundeep Kumar Bafna v.State
of Maharashtra, Criminal Bail Application No. 206 of 2014, order dated
6-2-2014 (Bom)] irrepressibly held divergent opinion and found it unpalatable,
all that he could have done was to draft a reference to the Hon'ble the Chief
Justice for the purpose of constituting a larger Bench; whether or not to
accede to this request remains within the discretion of the Chief Justice.
However, in the case in hand, this avenue could also not have been traversed
since Niranjan Singh [Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559 : 1980 SCC (Cri) 508] binds not
only co-equal
FAO(OS) 145/2016 Page 32 of 38
Benches of the Supreme Court but certainly every Bench of any High Court
of India. Far from being per incuriam,
Niranjan Singh [Niranjan Singh v.Prabhakar Rajaram Kharote, (1980) 2 SCC 559 : 1980 SCC (Cri) 508] has
metamorphosed into the structure of stare
decisis, owing to it having endured over two score years of consideration,
leading to the position that even larger Benches of this Court should hesitate
to remodel its ratio.‖
(underlining
added)
29.
In Union of India v. Godfrey Philips India
Ltd:, (1985) 4 SCC 369,
the Supreme Court observed as under:-
―12. There can therefore be no doubt that the
doctrine of promissory estoppel is applicable against the Government in the
exercise of its governmental, public or executive functions and the doctrine of
executive necessity or freedom of future executive action cannot be invoked to
defeat the applicability of the doctrine of promissory estoppel. We must
concede that the subsequent decision of this Court in Jit Ram v. State of Haryana [(1981) 1 SCC 11 : AIR 1980 SC
1285 : (1980) 3 SCR 689] takes a
slightly different view and holds that the doctrine of promissory estoppel is
not available against the exercise of executive functions of the State and the
State cannot be prevented from exercising its functions under the law. This
decision also expresses its disagreement with the observations made in Motilal Sugar Mills case [(1979) 2 SCC 409 : 1979 SCC (Tax) 144 : (1979) 2 SCR 641] that the doctrine of
promissory estoppel cannot be defeated by invoking the defence of executive
necessity, suggesting by necessary implication that the doctrine of executive
necessity is available to the Government to escape its obligation under the
doctrine of promissory estoppel. We find it difficult to understand
how a Bench of two Judges in Jit Ram case [(1981) 1 SCC 11: AIR 1980 SC 1285:
(1980) 3 SCR 689] could possibly
overturn or disagree with what was said by another Bench of two Judges in Motilal Sugar Mills case [(1979) 2 SCC
409: 1979 SCC (Tax) 144: (1979) 2 SCR 641]. If the Bench of two Judges in Jit Ram case [(1981) 1 SCC 11: AIR
FAO(OS) 145/2016 Page 33 of 38
1980 SC 1285: (1980) 3 SCR 689] found themselves
unable to agree with the law laid down in Motilal
Sugar Mills case [(1979) 2 SCC 409: 1979 SCC (Tax) 144 : (1979) 2 SCR 641]
, they could have referred Jit Ram case
[(1981) 1 SCC 11: AIR 1980 SC 1285: (1980) 3 SCR 689] to a larger Bench, but we
do not think it was right on their part to express their disagreement with the
enunciation of the law by a coordinate Bench of the same Court in Motilal Sugar Mills [(1979) 2 SCC 409:
1979 SCC (Tax) 144 : (1979) 2 SCR 641]. We have carefully considered both the
decisions in Motilal Sugar Mills case
[(1979) 2 SCC 409: 1979 SCC (Tax) 144: (1979) 2 SCR 641] and Jit Ram case [(1981) 1 SCC 11: AIR 1980 SC 1285: (1980) 3 SCR 689] and we are clearly of the view that
what has been laid down inMotilal Sugar
Mills case [(1979) 2 SCC 409: 1979 SCC (Tax) 144: (1979) 2 SCR 641] represents
the correct law in regard to the doctrine of promissory estoppel and we express
our disagreement with the observations in Jit
Ram case [(1981) 1 SCC 11: AIR 1980 SC 1285: (1980) 3 SCR 689] to the
extent that they conflict with the statement of the law in Motilal Sugar Mills case [(1979)
2 SCC 409: 1979 SCC (Tax) 144: (1979) 2 SCR
641] and introduce reservations cutting down the full width and amplitude of the propositions
of law laid down in that case.‖
(underlining
added)
30. In Union
of India v.
Raghubir Singh:(1989)
2 SCC 754,
the
Supreme Court observed as under:-
―27. What then should be the position in regard to the effect of the law
pronounced by a Division Bench in relation to a case raising the same point
subsequently before a Division Bench of a smaller number of Judges? There is no
constitutional or statutory prescription in the matter, and the point is
governed entirely by the practice in India of the courts sanctified by repeated
affirmation over a century of time. It cannot be doubted that in
order to promote consistency and certainty in the law laid down by a superior
Court, the ideal condition would be that the entire Court should sit in all
cases to decide
FAO(OS) 145/2016 Page 34 of 38
questions of law, and for that reason the Supreme Court of the United
States does so. But having regard to the volume of work demanding the attention
of the Court, it has been found necessary in India as a general rule of
practice and convenience that the Court should sit in Divisions, each Division
being constituted of Judges whose number may be determined by the exigencies of
judicial need, by the nature of the case including any statutory mandate
relative thereto, and by such other considerations which the Chief Justice, in
whom such authority devolves by convention, may find most appropriate. It is in
order to guard against the possibility of inconsistent decisions on points of
law by different Division Benches that the Rule has been evolved, in order to
promote consistency and certainty in the development of the law and its
contemporary status, that the statement of the law by a Division Bench is
considered binding on a Division Bench of the same or lesser number of Judges.
This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal [(1975) 3 SCC 836 : 1975 SCC (Cri) 255 :
(1975) 3 SCR 211] , a Division Bench of three-Judges found it right to follow
the law declared in Haradhan Saha v.State of West Bengal [(1975) 3 SCC 198 :
1974 SCC (Cri) 816 : (1975) 1 SCR 778] , decided by a Division Bench of five
Judges, in preference to Bhut Nath Mate v. State of West Bengal [(1974) 1 SCC 645 : 1974 SCC (Cri) 300 : AIR 1974 SC 806] decided by
a Division Bench of two Judges. Again in Indira
Nehru Gandhi v. Raj Narain [1975
Supp SCC 1 : (1976) 2 SCR 347] , Beg, J. held that the Constitution Bench of
five Judges was bound by the Constitution Bench of thirteen Judges in Kesavananda Bharati v. State of Kerala [(1973)
4 SCC 225 : 1973 Supp SCR 1]. In Ganapati Sitaram Balvalkar v. Waman Shripad Mage [(1981) 4 SCC 143] , this Court expressly stated that the view taken on a point of law by a
Division Bench of four Judges of this Court was binding on a Division Bench of
three-Judges of the Court. And in Mattulal
v. Radhe Lal [(1974) 2 SCC 365:
(1975) 1 SCR 127], this Court specifically observed that where the view
expressed by two different Division Benches of this Court could not be
reconciled, the
FAO(OS) 145/2016 Page 35 of 38
pronouncement of a Division Bench of a larger number of Judges had to be
preferred over the decision of a Division Bench of a smaller number of Judges.
This Court also laid down inAcharya
Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of Gujarat[(1975)
1 SCC 11: (1975) 2 SCR 317] that even
where the strength of two differing Division Benches consisted of the same
number of Judges, it was not open to one Division Bench to decide the
correctness or otherwise of the views of the other. The principle was
reaffirmed in Union of India v. Godfrey Philips India Ltd. [(1985) 4 SCC 369: 1986 SCC (Tax)
11] which noted that a Division Bench
of two Judges of this Court in Jit Ram
Shiv Kumar v. State of Haryana [(1981) 1 SCC 11: (1980) 3 SCR 689] had differed from the view taken
by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State
of U.P. [(1979) 2 SCC 409: 1979 SCC
(Tax) 144: (1979) 2 SCR 641] on the
point whether the doctrine of promissory estoppel could be defeated by invoking
the defence of executive necessity, and holding that to do so was wholly
unacceptable reference was made to the well accepted and desirable practice of
the later Bench referring the case to a larger Bench when the learned Judges
found that the situation called for such reference.
28. We are of opinion that a pronouncement of law by a Division Bench of
this Court is binding on a Division Bench of the same or a smaller number of
Judges, and in order that such decision be binding, it is not necessary that it
should be a decision rendered by the Full Court or a Constitution Bench of the
Court. We would, however, like to think that for the purpose of imparting
certainty and endowing due authority decisions of this Court in the future
should be rendered by Division Benches of at least three-Judges unless, for
compelling reasons, that is not
conveniently possible.‖
(underlining added)
31. In this backdrop, it is indeed unfortunate that the learned Single
Judge has
embarked upon an adventure to disagree with the decision of a
FAO(OS) 145/2016 Page 36 of 38
Division Bench in Ultra Home (supra), albeit, ‗as a student of law‘. It is not open to a Single
Judge (and more particularly a trial court) to differ from or critically
appraise a decision of a Division Bench (and more particularly of an appellate
court). Once it is recognized that the decision of the Division Bench is
binding on the Single Judge, there is no need to express any difference of
opinion or disagreement or purport to give reasons for the said difference of
opinion or to even suggest that the decision of the Division Bench may need
re-consideration. That is only in the domain of another Bench of co-equal
strength. In any event, the findings and observations of the learned Single
Judge with respect to its interpretation of the Supreme Court decision in Sanjay
Dalia (supra), to the extent
they are contrary to the decision of the Division Bench in Ultra Home (supra), are set aside.
32. Lastly, and with some anguish, we may observe that we find it
difficult to comprehend as to why the learned Single Judge went to such lengths
so as to devote 18 paragraphs spanning from page 29 to page 43 of the impugned
judgment to record his difference of opinion with the decision in Ultra
Home (supra) when, according
to the learned Single Judge himself, the so-called difference of opinion did
not come in his way
FAO(OS) 145/2016 Page 37 of 38
in deciding the present case as it had ‗no relevance‘, according to him,
to the present case. Such an unnecessary pursuit and adventure has been
undertaken by the learned Single Judge while at the same time the learned
Single Judge rued over the fact of overflowing dockets and heavy workloads of
courts. Why was such a fruitless and futile ‗academic‘ exercise undertaken by
the learned Single Judge? This would remain a mystery?
33. In sum, for the reasons discussed, the impugned judgment of the
learned Single Judge cannot be sustained. The same is set aside. The suit shall
now be listed before the concerned Bench as per Roster on 17.08.2016, in the
first instance, for further proceedings.
BADAR DURREZ AHMED, J
SANJEEV SACHDEVA, J
AUGUST 03, 2016
SR
FAO(OS) 145/2016 Page 38 of 38
