Partners Right in Trademark

Hem Corporation Pvt. Ltd. & Orsbest payday loans v/s ITC Limited 2012 (52) PTC 600 (BOMBAY)  dt. 4/11/2012]

HEADNOTE:

Trade Mark Act, 1999 Section 24 - Registration of Trade mark owned by Partnership Firm - certificate of registration issued in the name of firm or in the name of a person as Partner of the firm would deem to include the names of all the Partners. Trade Mark Act, 1999 Section 9 - Registration of Trade mark `Madhur' - Defence that mark was descriptive as madhur means `Sweet Fragrance' - Use of the word "Mangal Deep Madhur" as Trade Mark is not descriptive of the product - As long as registration of the mark exists in favour of the defendant, Plaintiff cannot claim injunction against Registered Proprietor.
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Unauthorized Musical Performance - Damage Awarded

Indian Performing Right Societybest payday loans v/s AD Venture Communication India P. Limited dt. 9/25/2012
Citation: 2012 (52) PTC 621 

HEADNOTE:

Copyright Act, 1957 Section 14(a)(iii), 17 - Obligatory to ensure that no copyright infringed - Case of the plaintiff was that defendant infringed its copyright by communicating the above referred works to the public - The plaintiff has accordingly sought an injunction restraining the defendant from organizing the events including communicating plaintiff's repertoire of musical works administered to the public without obtaining license from it or doing any other act infringing its copyright - The rights granted to the plaintiff-society expressly include a right to bring an action for infringement of PRS's copyright in respect of doing or authorizing the doing of any act restricted by the performing rights in the repertoire for which IPRS has granted licence to PRS under the agreement - Held : Defendant restrained from organizing any event involving live performance in respect of the lyrics(s), musical score(s) copyright in which are held by the plaintiff-company - It shall be obligatory for the defendant to ensure that no copyright of the plaintiff-company is infringed in any event organized by it - The defendant also directed to pay Rs 5 lakh by way of punitive damages to the plaintiff - Petition allowed. [Paras 4, 12, 16] A perusal of clause 1.1 would show that subject to exceptions and reservations set out in clauses 2 and 2A and to the provisions of clauses 8 and 8A, PRS and IPRS each granted to the other non-exclusive licence and authority to exercise and enforce the performing rights in the repertoire within the territory in accordance with the provisions of the agreement. The rights, so granted, to each other include the right to grant licence in respect of other's performing rights to persons requiring such licences. These rights include the right to collect royalties from licencees in consideration of the grants of such licences and to institute and prosecute proceedings against persons infringing the performing rights and to collect damages or compensation for the unauthorized doing of any part of the performing right. The rights granted to the plaintiff-society expressly include a right to bring an action in accordance with chapter XII and XIII of Copyright Act, 1957 for infringement of PRS's copyright in respect of doing or authorizing the doing of any act restricted by the performing rights in the repertoire for which IPRS has granted licence to PRS under the agreement. This power expressly includes the power to institute legal proceedings, sign and verify pleadings and appoint legal counsels before the Indian Courts. The exceptions and reservations mentioned in Clause 2 and 2A are not relevant for the purpose of this suit and, therefore, need not be discussed. The copyright of Dunbar Sly, Everton Bonner, Oliver Willis in the song Angel Eyes and the rights of Duane Michael Dyer in the song Can't Get Enough stood transferred to PRS and by virtue of the agreement between PRS and IPRS, the plaintiff has the legal right to grant licence for live performance, involving the aforesaid works. Therefore, the defendant infringed the copyright which the plaintiff holds and is entitled to enforce in respect of the work Angel Eyes and Can't Get Enough. As regards the rights of Onkar Prasad Nayar in the song Can't Get Enough, the same stands assigned directly to the plaintiff-society vide Assignment Deeds Ex.PW-1/10 (Colly) and the plaintiff-society, therefore, is competent to grant licence in respect of live performance of the aforesaid work and is also competent to execute legal proceedings in case of infringement of the aforesaid work by the defendant. In the case before this Court, the defendant has sold ticket of the event in which Raghav performed for Rs 500 each. Thus, they exploited the work in which copyright is held by the plaintiff, for their commercial advantage and to the detriment of the authors and composers of the works. As far as grant of damages is concerned, the live performance in an event organized on a commercial basis by selling tickets needs to be treated differently from the live performance say in a family function. A soft view, while awarding damages against a person infringing copyrights of the others to earn unlawful profits, by organizing live events, would be wholly misplaced and uncalled for. If the damages awarded against such persons are token in nature and do not pinch the infringer that would only encourage the infringer to repeat such acts in future at the cost of some other copyright holder. For the reasons stated hereinabove, the defendant is restrained from organizing any event involving live performance in respect of the lyrics(s), musical score(s) copyright in which are held by the plaintiff-company. It shall be obligatory for the defendant to ensure that no copyright of the plaintiff-company is infringed in any event organized by it. The defendant is also directed to pay Rs 5 lakh by way of punitive damages to the plaintiff. If the damages are not paid within four weeks, interest on the amount of damages would be payable at the rate of 6% per annum from the date of decree till realization of the amount.

Courtesy: Patent and Trademark Cases
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Consent of heirs needed if bequest exceeds a third of estate - Livemint

Is it true that a Muslim can bequeath only one-third of his property through a will? Is there any provision through which he can give all his property to any one he wants through a normal will? Can he make a gift of all his property without any restriction of one-third in a gift deed?
—Neha Jaiswal

Muslims are governed by their personal (Sharia) law and by the rules of intestate succession as provided in this law. Strictly speaking, there is no restriction as to the person to whom a property can be given through a will. However, under Muslim law, there are a few restrictions as to the persons to whom a bequest can be made.

Bequest to an heir: Under Shiite law, Muslims can bequest one-third of their estate without consent of heirs. Consent of heirs is required if bequest exceeds one third of estate. Under Sunni law, bequest to an heir is invalid unless consent of heirs is obtained after death of testator.

Bequest to an unborn person: Under Shiite law, if the child in the womb is born within 10 lunar months, it is valid. Under Sunni law, the bequest to an unborn person is void, unless a child in womb is born within 6 months of the will.

Bequest to murderer: Under Shiite law if death is not caused intentionally, only then is it valid. Under Sunni law bequest to murderer is void.

The will of a Muslim is not required to be in writing. If it is in writing, it need not be signed and if it is in writing and signed, it need not be attested. Here are the essentials of a valid gift under Mohammedan law:

1. The donor must be at least 18 years of age and of sound mind. He may dispose of the whole of his property by gift to any person including a stranger.
2. There must be a declaration of the gift by donor and an acceptance of the gift by donee.
3. In case of movable property, it should be delivered.
4. In case of immovable property of which the donor is in possession, the donor should physically depart from the property and the donee must make a formal entry.
In case the immovable property of which the donor reserves the right to receive rent but continues to be in possession of the property, if the person to whom the gift is made does an act by which the property is conferred on him without possession being actually given, the gift is complete. If the immovable property is in the occupation of tenants, a request by the donor to the tenants to acknowledge the donee as the owner of the property will suffice.
5. In case of incorporeal property, the donor must show a clear intention to confer the property upon the donee.
6. In case of property which is held by a person against the will of the donor, gift of such property is not valid unless the donor recovers possession and puts the donee in possession of it.

source: www.livemint.com
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It is advisable to appoint an executor in your will - Livemint

My husband passed away five years ago and he has not left a will. I have a property that I jointly own with him. My daughter is married. My son is unmarried and he stays with me. I want to make a will. Can I make a will for the entire house or just half of it since I am a joint owner?
—Swati Nair

We are assuming that you and your husband held the said property as co-owners and not as joint owners and that each of you had a 50% share; your husband was a Hindu and was governed by the provisions of the Hindu Succession Act, 1956 (Act) on the date of his demise; the property is self acquired and you and your two children are the only class I heirs of your husband.

Section 8 of the Act lays down the general rules of succession in the case of Hindu males who have died intestate and inter alia states that the property shall devolve firstly, upon the heirs of the deceased, being class I heirs and secondly, if there are no class I heirs, then upon the class II heirs.

Assuming that you and your children are the only class I heirs of your husband surviving at the time of his demise, 50% share of your husband in the said property shall devolve upon you and your children in accordance with the provisions of Section 10 of the Act. Section 10 of the Act lays down the rules for distribution of property among class I heirs of the deceased, and inter-alia states the widow of the deceased shall take one share and the son and the daughter of the deceased shall each take one share in the property of the deceased.

Hence, the 50% share of your husband shall be divided into three equal parts whereby you, your son and daughter shall each be entitled to about 16.66% share in the said property.

You previously being the owner of 50% share in the said property are now the owner of 66.66% share in the said property and your son and daughter each own 16.66% share in it. At the time of drafting your will you can bequeath to any person of your choice your share in the said property.

While drafting a will you must keep in mind that the will must be in writing; the testator (i.e. you in this particular case) must sign it and shall be attested (signed) by two or more witnesses. It is advisable that you appoint an executor in your will. This is done in case the will is challenged. All the property bequeathed under the will shall vest in the executor.

Do remember that under Section 67 of the Indian Succession Act, 1925, a legacy to the attesting witness of a will is void under the section, i.e. you cannot bequeath any part of your property to a person who has signed your will as a witness as that bequest shall be void.

Also as per the Registration Act, 1908, a will is not a compulsorily registerable document and there is no stamp duty payable on a will.

source: www.livemint.com
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You can apply for probate even without a copy of will

My father had inherited some land from his father, who passed away two years ago. But he has lost the copy of the original will and his brother is trying to claim right over the property. Is there any way to nullify this claim?
—Sarvesh
While answering this query, we are assuming that your grandfather was a Hindu and was governed by the provisions of Hindu Succession Act, 1956, on the date of his demise and that your father and your uncle (your father’s brother) were the only surviving class I heirs of your grandfather at the time of his demise. We are further assuming there was no probate of your grandfather’s will applied for/granted by a competent court.
If your father has a copy or a draft of the original will executed by your grandfather, section 237 of the Indian Succession Act, 1925, will be applicable, which reads as follows: “When a will has been lost or mislaid since the testators death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or draft of the will has been preserved, probate may be granted of such copy or draft, limited until original or properly authenticated copy of it is produced.”
Thus, if your father has a copy or draft of the will executed by your grandfather, he may apply for a probate by annexing the said copy or draft. If your father obtains a probate from a court of competent jurisdiction, no right can be claimed by your uncle over any property bequeathed to your father under the said will.
Further, section 238 of the said Act reads as follows: “When a will has been lost or destroyed and no copy has been made nor the draft preserved, probate may be granted of its contents if they can be established by evidence.”
Thus, if your father does not have a copy or draft of the will executed by your grandfather, he can nevertheless apply for a probate. However, the grant of a probate by a competent court is subject to your father having evidence that your grandfather executed a will and also having evidence with regard to the contents of the said will (specifically that the said land was bequeathed to your father under the said will).
If your father does not have a copy or draft of the said will or is not in a position to prove the contents of a will in order to obtain a probate from a competent court, he can apply for letters of administration as if your grandfather had died intestate or without a will. However, it must be noted that if your father applies for letters of administration, the entire property of your grandfather will be divided and there is no guarantee that your father to the exclusion of your uncle will inherit the said land (the land bequeathed to him under the said will). Please note that in such a case, the entire estate of your grandfather shall be equally divided among your father and your uncle.

source: www.livemint.com
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Sale deed not mandatory if property bought from builder

What is the difference between an agreement for sale and a sale deed? I bought an apartment in Mumbai and have entered into an agreement for sale which is duly registered. Should we make a sale deed after full payment? —Jigar Shah

We are assuming that you have purchased the apartment under the provisions of the Maharashtra Ownership of Flats (regulation of the promotion of construction, sale, management and transfer) Act, 1970, (MOFA) and that you have paid 20% or more of the purchase consideration till date and that you have executed a MOFA agreement—an agreement for sale with the builder with respect to the said apartment. Further we are assuming that the said agreement for sale is adequately stamped in accordance with the relevant article contained in schedule I of the Maharashtra Stamp Act, 1958, and that the agreement for sale is registered with the applicable office of the sub-registrar of assurances.

Section 4 of MOFA requires a builder to execute an agreement for sale containing inter-alia the terms as prescribed therein with its purchasers upon receipt of consideration as stated therein with respect to the apartment agreed to be sold by the builder. Thus there is no requirement to execute a sale deed, once the agreement for sale has been executed. However, it is to be noted that in the event that you have paid only part consideration to the builder while executing the agreement for sale, you must ensure that upon payment of the balance consideration the builder gives you receipts. If you pay the balance consideration in instalments, then you must ensure that the builder issues you a receipt for every instalment.

Further you must ensure that on completion of the construction of the building and upon such number of persons as prescribed under section 10 of MOFA having purchased the flats, the builder takes steps to constitute a society or any other organization as contemplated under MOFA agreement. You must also ensure that upon formation of such organization, the builder duly executes a deed of conveyance within such time as contemplated under the MOFA agreement and if not prescribed therein then the time as prescribed under section 11 of MOFA in favour of the organization formed conveying the land on which the said building has been constructed along with the building in favour of the organization. It is also very critical not to take possession of the said apartment without an occupation certificate being obtained by the builder. You must also ensure that upon formation of the society, a share certificate is issued to you by the society stating that you are the owner of a certain number of shares. The said share certificate is to be signed by the chairman of the newly formed society.

Please note that it is only in this situation, that is upon purchase of a flat directly from the builder by executing a MOFA agreement, in accordance with the provisions of MOFA that it is not necessary for you to execute a sale deed subsequent to the execution of the MOFA agreement.

In the event that you are not purchasing a property from a builder, and are purchasing the property from a prior owner of the flat, that is either an individual or a company, it is essential that you execute a deed of transfer (or a sale deed) after the execution of an agreement for sale by the transferee and the builder. This is imperative as the deed of transfer will be your title document. In that situation, it is also advisable that you pay the full stamp duty on the deed of transfer and get the same registered with the office of the sub-registrar of assurances. It is also imperative to inter-alia take custody of the share certificates given to the owner (transferor) of the apartment and the original agreement for sale executed by the transferor and the builder and a no objection certificate from the society in which the said apartment is situated for the sale of the apartment to you and to admit you as a member of the society.

Source: www.livemint.com
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Intergenerational transfer of assets: will or gift deed?

Circa 1963: Devraj Gupta was a leading and astute businessman in Mumbai. Not only had he created a reputed business but also he had created assets and properties for his family. With age not on his side, he had a justified and growing concern: “If something were to happen to me, I should be able to ensure that these properties transfer smoothly to my wife and the next generation.”

On 28 March 1964, Devraj Gupta registered his will bequeathing his properties to his wife and sons in equal measure. He was a satisfied man that he has done what most Indians don’t do—made a will and ensured a smooth transition of his assets. But he couldn’t have been more wrong. It would take almost 50 years after his death for his wish to be fulfilled.

Circa 1969: After his demise in October 1965, as required under law his widowed wife filed a probate petition for the will. Four years later after following the due process, the Bombay high court on 12 March 1973 granted the probate to the will.

On 10 May 2013, the Bombay high court dismissed subsequent petitions filed by other members of the family seeking to revoke the probate and petitions disallowing the respondents in anyway dealing in the said properties. (You can read the complete high court order here: http://bit.ly/WillProb)

This is an exceptional example that demonstrates the need of using the right vehicles for different asset classes during the process of transfer of wealth from one generation to another and also avoiding legally locking up of assets in this process. Effectively the transfer of wealth in such cases skips the generation where it is intended to benefit but the benefits go to the generation after next—the grandchildren—thus delaying the economic value added.

India will see the initiation of intergenerational transfer of assets of over Rs.10 trillion in the next decade. Such a large transfer of wealth from one generation to another will lead to two challenges: Need for tax-efficient low-cost vehicles for this transfer and ensuring effective time-bound transfers to beneficiaries.

A will or testament is a relatively simple way of intergenerational transfer of wealth and given its importance, everyone should have a will irrespective of their age or net worth. On the positive side, it is relatively easy to write and it can be revoked with a new will or amended through a codicil as many times as one wants. Over the years, variants such as video wills and online wills have emerged and are acceptable in India. On the negative side, a will as an instrument is more liable to be challenged thus prolonging the process of transfer of wealth to the rightful owners than other instruments. Another important facet is that law of limitation may not always be applicable for challenging a will thus leading to litigation even after an undefined period especially in the case of immovable properties. Legal disputes could even reduce the resale value of assets or leave heirs to bear hefty fees, eroding the value of inherited assets.

Gift deed as a tool for transfer of wealth

A gift deed is a much more efficient instrument for transferring immovable properties from one generation to another. A gift deed can be used for all asset classes. However, it derives its utility in the case of immovable properties due to the significant benefits it gives to the next generation. The positives of a gift deed are that the transfer of assets happens during the life-time of the testator (donor) and the transfer happens immediately compared with using a will which is a much longer process. The other alternative of formulating a trust—used by a lot of high net worth individuals—for transfer of assets is a legal process which takes some time before the actual transfer can take place. Additionally, a gift deed for immovable properties needs to be registered for it to be effective and by virtue of being registered is difficult to be post-facto challenged by other parties thus making it virtually litigation free. The taxation for gift deeds in being tax-free for both the donor and donee when in favour of defined relatives is also beneficial.

On the flip side, a gift deed is irrevocable once executed and thus does not allow for any changes even if one changes his mind. On the other hand, a will is a living document and any changes can be made till the testator is alive. There are also cost implications in the case of a gift deed for immovable properties in the form of stamp duty for registration. The stamp duty for registration of a gift deed varies from state to state but in most cases is significantly lower than the normal stamp duty and is payable usually at the circle rate or ready reckoner rates as published. Thus the effective cost of executing a gift deed is marginal given the significant benefits it offers.

Source:www.livemint.com
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Gift deed is considered valid when it is made voluntarily

I want to gift a commercial property in a co-operative housing society to my daughter. However, my sale deed is not registered. Is it possible to gift the flat to my daughter? What is the procedure and what are the documents required?
—Krishna Kumar
While answering this query we are assuming that you purchased the said commercial property over 30 years ago. We are further assuming that full stamp duty has been paid on the said sale deed in accordance with the provisions of the Stamp Act applicable to the state where the said commercial property is located.
Section 54 of the Transfer of Property Act, 1882 defines sale as a transfer of ownership in exchange for a price paid or promised or partly paid and partly promised. This section also states that the transfer of tangible immovable property of the value of Rs.100 or more must be by way of registered instrument.
Section 17 of the Registration Act, 1908 lays down the documents, of which, registration is compulsory.
Section 17(1)(b) of the Registration Act inter alia provides that any non-testamentary instrument which creates, or declares whether in present or in future, any right, title or interest, of the value of Rs.100 or more to or in immovable property is a compulsorily registerable document. The sale deed by virtue of which you are entitled to the said commercial property is thus a compulsorily registerable document.
Section 49 of the Registration Act inter alia states that no document which requires compulsory registration either under section 17 of the Registration Act or under any provision of the Transfer of Property Act, shall affect any immovable property comprised therein, or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Which means that the transaction desired to be effected by the document will be inoperative so far as the immovable property is concerned.
Thus, as the sale deed in question has not been registered, it does not affect any immovable property comprised therein, i.e. the said commercial property. However, you may execute a gift deed in favour of your daughter, if a period of 30 years have elapsed since you have been in possession of the said commercial property and no claim can be raised against you, as the maximum period of time within which a person can file a suit in a competent court with respect to an immovable property, as per the provisions of the Limitation Act, 1963, is a period of 30 years. Thus, since we are assuming that you have been in possession of the said commercial property for more than a period of 30 years, no claim can be raised against you.
For the gift to be valid it must be made by you voluntarily, without any exchange of money and it needs to be accepted by your daughter. It is to be noted that the said gift deed is to be executed by you and your daughter and attested by two attesting witnesses.
Further in the event the original vendor (i.e. the person who sold you the said commercial property) is alive it would be advisable, to execute an agreement with him stating that neither he nor anyone claiming through him has any right, title and interest in the said commercial property and that you are the sole owner of the same. You may annex the said agreement to the gift deed. It is also to be noted that stamp duty is payable on a gift deed in accordance with the provisions of the Stamp Act applicable to the state within which the said commercial property is situated. A gift deed is a compulsorily registerable document in accordance as per section 17 of the Registration Act.
Lastly, it is to be noted that the title of your daughter will always be subject to the aforementioned lacuna (i.e. the defect in your title due to non-registration of the sale deed).

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Sale deed not mandatory if property bought from builder - Livemint

What is the difference between an agreement for sale and a sale deed? I bought an apartment in Mumbai and have entered into an agreement for sale which is duly registered. Should we make a sale deed after full payment? —Jigar Shah

We are assuming that you have purchased the apartment under the provisions of the Maharashtra Ownership of Flats (regulation of the promotion of construction, sale, management and transfer) Act, 1970, (MOFA) and that you have paid 20% or more of the purchase consideration till date and that you have executed a MOFA agreement—an agreement for sale with the builder with respect to the said apartment. Further we are assuming that the said agreement for sale is adequately stamped in accordance with the relevant article contained in schedule I of the Maharashtra Stamp Act, 1958, and that the agreement for sale is registered with the applicable office of the sub-registrar of assurances.

Section 4 of MOFA requires a builder to execute an agreement for sale containing inter-alia the terms as prescribed therein with its purchasers upon receipt of consideration as stated therein with respect to the apartment agreed to be sold by the builder. Thus there is no requirement to execute a sale deed, once the agreement for sale has been executed. However, it is to be noted that in the event that you have paid only part consideration to the builder while executing the agreement for sale, you must ensure that upon payment of the balance consideration the builder gives you receipts. If you pay the balance consideration in instalments, then you must ensure that the builder issues you a receipt for every instalment.

Further you must ensure that on completion of the construction of the building and upon such number of persons as prescribed under section 10 of MOFA having purchased the flats, the builder takes steps to constitute a society or any other organization as contemplated under MOFA agreement. You must also ensure that upon formation of such organization, the builder duly executes a deed of conveyance within such time as contemplated under the MOFA agreement and if not prescribed therein then the time as prescribed under section 11 of MOFA in favour of the organization formed conveying the land on which the said building has been constructed along with the building in favour of the organization. It is also very critical not to take possession of the said apartment without an occupation certificate being obtained by the builder. You must also ensure that upon formation of the society, a share certificate is issued to you by the society stating that you are the owner of a certain number of shares. The said share certificate is to be signed by the chairman of the newly formed society.

Please note that it is only in this situation, that is upon purchase of a flat directly from the builder by executing a MOFA agreement, in accordance with the provisions of MOFA that it is not necessary for you to execute a sale deed subsequent to the execution of the MOFA agreement.

In the event that you are not purchasing a property from a builder, and are purchasing the property from a prior owner of the flat, that is either an individual or a company, it is essential that you execute a deed of transfer (or a sale deed) after the execution of an agreement for sale by the transferee and the builder. This is imperative as the deed of transfer will be your title document. In that situation, it is also advisable that you pay the full stamp duty on the deed of transfer and get the same registered with the office of the sub-registrar of assurances. It is also imperative to inter-alia take custody of the share certificates given to the owner (transferor) of the apartment and the original agreement for sale executed by the transferor and the builder and a no objection certificate from the society in which the said apartment is situated for the sale of the apartment to you and to admit you as a member of the society.

source: www.livemint.com
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Probate

What is it?

It is a copy of the will of a deceased person which has been certified under the seal of a court having the competent jurisdiction. The jurisdiction to probate a will lies concurrently with high courts and district courts. Once a probate is granted by the competent court, the will is validated and can be then executed by the executor. A probate is granted to the executor implied in the will, if there is no executor then the court grants a probate on the beneficiary’s demand and appoints an executor to execute the will on behalf of the beneficiaries. It cannot be granted to any person who is a minor or is of unsound mind, nor to any association of individuals unless it is a company that satisfies the conditions that may be prescribed by state government rules.

The Process

The beneficiary or the executor has to approach the court within whose jurisdiction the matter falls by filing a petition. The petition generally mentions the relation of the petitioner with the deceased, the time of the testator’s death, the assets he has left behind and the details of legal heirs and other beneficiaries. The petition is supported by attaching a copy of the last will that is to be probated, the death certificate of the testator and a supporting affidavit of at least one witness. On receipt of the petition, the court issues a notice to the relatives of the testator so that they can file objections, if any. A general notice is also published in a newspaper.

If the will is not contested, then the petitioner has to prove that the testator is dead by producing a death certificate and that the will is valid. The court then grants the probate.

Is it compulsory?

Succession law is included in the state list in the Indian constitution. Thus, the regulations pertaining to a probate are different in every state. A probate is not compulsory in all states.
For Hindus, Buddhists, Sikhs and Jains, a probate is compulsory if the will is made in West Bengal, Bihar, Jharkhand, Orissa and Assam and territories subject to the ordinary original civil jurisdiction of Bombay and Madras high courts. It is also applicable to Parsis if immoveable property is situated within the limits of the high courts of Calcutta, Madras and Bombay. If the will is made outside these regions but bequeaths immoveable property, which is located in any of the specified places, then a probate is compulsory. For a will made outside these places, a probate is not required even if it includes immoveable assets as long as the property is not located in any of the specified regions.

What it costs?

Apart from the lawyers’ fee, the courts levy 2-8% of the value of the assets. However, the upper limit is usually fixed. For instance, in the Bombay high court, the maximum fees is Rs75,000. A simple uncontested will takes about five to seven months to be probated.

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Registering a will and obtaining a probate are mutually exclusive

What is the maximum time limit for getting a probate and the chances of its success if the will is registered? Is it necessary to call witnesses of the registered will? If the distribution of assets is already made as per a registered will, is it necessary to get a probate as the same may involve stamp duty and other expenses? If a registered will says the Hindu Undivided Family (HUF) be dissolved and be distributed among coparceners who are also members, can married daughters, not shown as members in bank records, lay claim?
—B. Kumar

There is no time limit for applying for a probate or obtaining the probate. A registered will merely certifies the authenticity of the will. Against this, a probate is granted to an executor appointed in the will for the purpose of determining whether the will of a testator was duly executed and attested and whether at the time of such execution, the testator was of sound mind and was capable of comprehending the nature and extent of his actions, and establishes the genuineness of the will. So, registration of a will and obtaining a probate are mutually exclusive and your chances of getting a probate do not increase by presenting a registered will for obtaining probate.

Courts have wide powers in matters of grant of probate. If a will is challenged or disputed, the court would generally call the witnesses of a will, irrespective of whether it is registered or not, though it is not absolutely necessary to do so.

If a will has been administered, i.e. if the assets of the deceased person who made the will have already been distributed as per the will, it is not always necessary to get a probate. However, if a probate is obtained even after the distribution of assets as per the will, the acts of the executor of the will in respect of the distribution will be validated. Obtaining a probate will attract payment of court fees and not stamp duty.
One of the things to bear in mind in respect of probate proceedings is to ensure that all the evidence needed to prove the will in court is in place and that the witnesses of the will are able to testify with respect to the execution and attestation of the will. It is important to note that the court would generally also examine the witnesses to prove the soundness of the mind of the testator at the time of executing the will and the circumstances in which the will was made and executed.

Effective 9 September 2005, all daughters of coparceners in an HUF shall be coparceners in their father’s HUF if their father was alive at the time the amending provisions of the Hindu Succession Act came into force. However, if the testamentary disposition or distribution or partition of the assets of the HUF has been effected before 20 December 2004, the same shall not be affected by the amendment. So, even if the names of the daughters, married or otherwise, do not appear in the bank records, they will by birth be entitled to and can lay claim on their father’s HUF property if their father was alive at the time of the amendment of the Act in 2005.

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For property situated in Mumbai, probate of will must be obtained - Livemint

My father acquired a freehold plot and constructed a three-storey building on it. He passed away without a will. He is survived by his wife, a daughter who is married and two sons, including me. My siblings and I have surrendered our rights to the property in the favour of our mother. The property is registered in our mother’s name and accordingly the mutation is done. My mother has made a registered will. As per the will, the property is to be distributed among her children. Recently my family has disowned my son and his wife. In the present circumstances, does my son or his legal heirs have any right over this property as he may claim it as ancestral property being self-acquired by his grandfather? I have been told that since the property is already mutated in my mother’s name, he has no rights over it. -Akshay Mohan Kapoor

The property acquired by your father and the building constructed would be considered as ancestral property. Being a coparcener, your son would have been entitled to a share in this property (your father’s). If your son was a major at the time of relinquishment, you and your siblings could not have relinquished the entire property (including your son’s share) in favour of your mother without the son’s consent. Your son would thus have a claim in the property to the extent of his share in the property that had been relinquished by you and your siblings; your son can challenge the relinquishment and also the mutation in favour of your mother. This position will not be affected by the subsequent act of disowning him and his wife. In other words, even after being disowned, your son can claim his share.
In case of immovable property (in Mumbai) bequeathed by a testator, will it be necessary to obtain probate of a will?
-Niharika Gandhi
As per the provisions of section 213 of the Indian Succession Act, 1925, a probate for a will is required to be obtained. The said section inter alia requires that “no right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed”. Further, as per the Act, the above-mentioned provision is applicable to any Hindu, Buddhist, Sikh or Jain inter alia where such wills are made in Mumbai and if made outside of Mumbai, where such wills relate to immovable property situated in Mumbai within those limits.
Since the immovable property in question is located in Mumbai, it would be necessary to obtain a probate in respect of the will to enable the executor and the legatee to be able to deal with the same.

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Probate of will is needed to establish right on inherited property in court

My mother and elder brother co-owned a flat in Mumbai. My mother wanted her share to be transferred to me and so she wrote a will and got it registered. My brother himself gave the nomination forms declaring the same to the society where the flat is located. Now that my mother has passed away, my brother wants to take over the whole property. He doesn’t believe that the will is genuine. Is probating the will the only way to go about it? Wouldn’t probating give a heads up to my brother to prepare a case against me? I have been advised to start on the probate process but due to the fact that it can take two-four years and around Rs1.5 lakh, I want to make sure I am doing the right thing. - Jitendra Desai.

Section 213 (1) of the Indian Succession Act, 1925, inter alia states that a legatee’s (a person who inherits under a will) right to property bequeathed in a will cannot be established in a court, unless a court of competent jurisdiction in India has granted a probate of the will under which the right is claimed or letters of administration with the will annexed thereto have been obtained.
In the present case, it is imperative that you get your mother’s will probated as without the same your right as a legatee will not be established. In the event that your mother has not appointed an executor under her will or the person appointed as an executor expired before your mother or where the executor refuses to act as such, then you would have to apply for letters of administration.
The fact that your brother has declared in the nomination forms submitted to the society that he has only a 50% share in the flat is not binding as in this case the property is disputed.
Grant of a probate establishes conclusively the legal character of the person to whom it was granted. It also conclusively decides that the will was genuine and validly executed and that the testator has the testamentary capacity to execute the will (was of sound mind and was not forced to make the will).
Therefore, obtaining a probate or, if required, letters of administration is the only way by which you would be able to establish your right under a will. If your brother wants to contest the will, he will have to enter a caveat and file an affidavit in support of the caveat.
Thus you have been advised correctly to go ahead with the process of obtaining a probate. The process of obtaining a probate normally takes six-eight months. However, if anyone disputes the process or challenges the will, then the petition will be converted into a suit and will take much longer, even a few years. Court fees would have to be paid on the probate petition and this would depend on the value of the property that has been set out in the will. The maximum court fees payable in Mumbai is Rs75,000.

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Get probate or NOC from other legal heirs to avoid disputes

 My father had executed a will in my favour stating, inter alia, that if any movable or immovable property and any liability that may be found anywhere shall belong to me and authorized me to settle and appropriate the same and got it registered with a sub-registrar in a union territory (UT). However, he forgot to appoint a nominee for shares of a few companies held by him in physical form and didn’t mention in the will too. For his shares in demat form, he made me a nominee and mentioned my ownership on these in the will. During the transmission process, a company has asked for a probate of will or no-objection from the legal heirs and is not ready to listen to my explanation that in the UT, where the will has been executed and registered, there’s no legal requirement of getting it probated. Since the value of shares is under Rs 50,000, is the company justified in asking for these documents. How can I get these transmitted in my favour?
—Suman

It appears from your query that while your father has specifically bequeathed the shares that were held by him in de-materialized form to you, he has not specifically bequeathed to you the shares that were held by him in physical form.
If your father’s will contains a residuary clause (i.e. a clause that deals with all his left-over property other than that which has been specifically bequeathed to identified or named persons), the said physical shares will be transmitted in accordance with what has been stated in the residuary clause.
In the eventuality that the residuary clause states that the residue of the property (i.e the property that has not been specifically mentioned and bequeathed in the will) is to be divided equally among all the heirs or in a particular ratio or is bequeathed to another legatee, then the said physical shares will have to be dealt with in that particular manner. If the residuary clause states that the residue of the property is to be bequeathed to you, you shall be entitled to the said shares which are in physical form.
The company is asking for a probate of the will or a no-objection certificate (NOC) from the legal heirs of your father to ascertain that other legal heirs of your father are not entitled to the said physical shares and as a precaution to protect the company against any future claims (in particular, in the eventuality that the residuary clause does not solely entitle you to inherit the residue of the property). A person wishing to challenge the grant of a probate may do so once a probate petition has been made in the appropriate court and the court may, if it thinks fit, convert the petition into a suit.
It may be noted that it would be easier and a shorter process for you to obtain a NOC from other legal heirs of your father and you would not be required to pay any court fees for the same.

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It’s advisable to obtain probate if said will is contested - Livemint

I am the beneficiary and executor of my aunt’s will. She has left her property to me in Pune. I have not applied for a probate as my lawyer says that being the only beneficiary I do not need a probate. However, the housing society is asking for a probate before name change as they have received a letter from my cousin claiming that my aunt’s will submitted by me is a fake. If I die then do my children have to obtain probate for my aunt’s will since they are not named as executors in the will? Can the property be transferred to my name without a probated will? —Katya

While answering this query, we are assuming that your aunt was a Parsi at the time of her death and was governed by the provisions of the Indian Succession Act, 1925. We are also assuming that you have been appointed as the sole executor under your aunt’s will.
Section 213(1) of the Act inter alia states that the right of a legatee (a person who inherits under a will) to property bequeathed under a will can’t be established in a court unless a court of competent jurisdiction in India has granted a probate of the will under which the right is claimed or letters of administration with the will annexed thereto have been obtained. However, section 213 (2) states that the said section is not applicable to the wills executed by Mohammedans, Hindus, Buddhists, Sikhs and Jains except in certain circumstances mentioned therein. Further, section 213 (2) states that in case of a Parsi dying after the commencement of the Act, a probate is necessary if the will in question is made or the property bequeathed under the will is situated within the “ordinary original civil jurisdiction” of the Bombay high court. Since Pune does not come within the said jurisdiction, it is not necessary for you to obtain a probate of your aunt’s will.
While it is not mandatory to obtain a probate of your aunt’s will, it would still be advisable for you to obtain a probate since your cousin is contesting the will.
To obtain a probate of a will, you will have to file a probate petition in a court of competent jurisdiction. It takes about 8-10 months to obtain a probate if the petition is not contested by any person. At the time of filing the petition, court fees will have to be paid. It is to be noted that if the probate petition filed by you is contested by your cousin (which can be done by filing a caveat in your probate petition) your petition will be converted into a testamentary suit and the genuineness of your aunt’s will, will then be adjudicated upon.
It is to be noted that as per section 222 of the Act, a probate shall only be granted to an executor of a will. Section 226 of the Act specifically provides that on the demise of an executor, representation would survive to the surviving executor or executors as the case may be.
Thus, on reading sections 222 with 226 of the Act it is clear that probate petitions are essentially at the instance of the executors named in the will and can survive till the executors survive. The moment the sole executor or all the executors die, the question of the proceeding being kept alive does not arise at all as there would be no occasion in such a case to grant any probate. Such a proceeding would die a natural death due to non-survival of any executor.
If you pass away prior to filing the probate petition, your children may apply for letters of administration with a will annexed to it. If your petition is uncontested and you pass away before the court grants you a probate of your aunt’s will, your children may intervene in the probate petition and amend the same so as to apply for letters of administration with a will annexed to it.
If your petition is contested and is converted into a testamentary suit and you pass away during the pendency of the suit, your children will be brought on record as your legal heirs. However, the prayers/release will have to be amended by your children so as to apply for letters of administration with will annexed, as your children have not been appointed as executors under your aunt’s will. Your children will be granted letters of administration with the will annexed to it and shall be appointed as administrators of your aunt’s estate.

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Probate to be granted only to an executor named in the will

My husband died of a heart attack within two years of my marriage. My husband was the only son and his two elder sisters got married before our marriage and are settled in Mumbai. The only survivor is my 75-year-old father-in-law. A month before my husband died, he gave all his property worth about Rs.5 crore to his father through his will, giving me (wife) nothing. The will has been submitted in the Pune civil court for a probate. I have challenged the will. What will be the fate of the case if my father-in-law dies before the case reaches a conclusion? Can you cite some related laws that can be helpful? Six months back, I also filed a case under Hindu Succession Act, claiming that I am the only class I heir of my husband.
— Priti

For answering this query, we are assuming that your husband’s will was executed in Pune, any immovable property that is the subject matter of such will is situated in Pune and that your father-in-law has been appointed as the executor under the will. We are also assuming that since you have challenged the validity of your husband’s alleged will, the probate petition filed by your father-in-law has been converted into a testamentary suit.
Section 213(1) read with section 57 of the Indian Succession Act, 1925 inter alia states that the right of a person to property inherited under a will cannot be established unless a court of competent jurisdiction in India has granted a probate of the will or letters of administration with the will annexed thereto have been obtained. However, section 213 applies to wills made by Hindus, Buddhists, Sikhs or Jains for wills made on or after 1 September 1870 within the territories which at the said date (being 1 September 1870) were subject to the lieutenant general of Bengal or within the local limits of the ordinary original civil jurisdiction of the high courts of judicature at Madras and Bombay.
As we are assuming that your husband’s will had been executed in Pune, under law it is not necessary to obtain a probate of his will since Pune does not fall within the ordinary original civil jurisdiction of the high court of judicature at Bombay. Thus, as per succession laws applicable to Hindus, your husband’s property automatically vests in your father-in-law on the demise of your husband due to the existence and contents of the alleged will (as it is not necessary to obtain a probate of the will to establish his right as an executor or beneficiary).
As per section 222, a probate shall only be granted to an executor of a will. Section 226 specifically provides that on the demise of an executor, representation would survive to the surviving executor or executors, as the case may be. Thus on reading section 222 with section 226, it is clear that probate petitions are essentially at the instance of the executors named in the will and can survive till the last of the executors survive.
The moment the sole executor or all the executors die, the question of the proceeding being kept alive does not arise as there would be no occasion in such a case to grant any probate. Such a proceeding would die a natural death due to the non-survival of any executor. Thus, if your father-in-law passes away before the conclusion of the suit, the suit will die its natural death as a probate can only be granted to an executor. But since your husband’s property has already vested in your father-in-law on your husband’s demise under your husband’s alleged will, that property will be treated as the property of your father-in-law on his demise and will devolve in accordance with your father-in-law’s will (if any) and in the absence of such will, in accordance with the rules of intestate succession set out in the Hindu Succession Act, 1956.
It would be advisable for you to obtain interim relief from the Pune civil court, restraining your father-in-law or his heirs, in the event of his demise before the conclusion of the testamentary suit (i.e. the probate petition converted into a testamentary suit), from parting with your husband’s property so as to safeguard your interests.
With regard to your queries on case laws, proving that the purported will of your husband is forged or executed under coercion or undue influence or not in exercise of his free will is a matter of fact and cannot be ascertained by case laws. In order to pursue the said contention, you will have to produce evidence to show that the same is a forged will and that the estate of your husband should devolve as per intestate succession.

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COPYRIGHT AND INJUNCTION - www.harjindersingh.in

COPYRIGHT AND INJUNCTION MATTER
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1360-1361 OF 2005
Skyline Education Institute (India) ...Appellant
Private Ltd.
Versus
S.L. Vaswani and another ...Respondents
With
CIVIL APPEAL NO. 1362 OF 2005.
J U D G M E N T
G.S. SINGHVI, J.
1. These appeals are directed against order dated 6.10.2004 passed by the Division Bench of Delhi High Court whereby it ismissed FAO(OS) No.212 of 2003 preferred by Skyline Education Institute (India) Private Limited (hereinafter referred to as `the appellant') against the order of the learned Single Judge who refused to restrain Satilila Charitable Society and S.L. Vaswani (hereinafter referred to as `the respondents') from using the name 'Skyline' as a part of their trading name in relation to their activities in the field of education and/or as a trademark in relation to any printed matter, including the course material, literature, syllabus etc. and partly allowed FAO(OS) No.213 of 2003 preferred by the respondents insofar as the learned Single Judge directed them not to start any new course similar to the course run by the appellant, namely, graduate and post-graduate courses in Management, Travel and Tourism and further directed them to insert a note in the advertisement etc. that their institute is in no way related to the appellant.
2. The appellant is incorporated under the Companies Act. Although, the appellant's main objects, as specified in para `A' of the Memorandum of Association, are to impart and train in all areas, subjects, fields and disciplines of education, including hospitality, tourism and business management; to act as representative of various foreign educational institutions, universities, organizations, bodies or any other type of institutions for recruiting students and rendering other related services; to establish and run in any part of India, colleges or schools to impart education on such terms and conditions as may be laid down by the Company from time to time but a closer look at the incidental or ancillary objects enumerated in para `B' and other objects enumerated in para `C' of the Memorandum of Association shows that the appellant can engage itself in all types of possible business activities.
3. Respondent No.1, Satilila Charitable Society is registered under the Societies Registration Act. It is said to be part of Skyline group of companies/concerns, the details of which are given below:
i) M/s. S.K. Contracts (P) Ltd. (a company started in 1986)
ii) M/s. Skyline Construction Co. (a partnership firm started in 1990)
iii) M/s. Skyline Constructions (a partnership firm started in 1993)
iv) M/s. Skyline Construction Engineers & Builders Co. (a partnership firm started in 1999)
v) M/s. Skyline Contractors (P) Ltd. (a company started in 1999)
vi) M/s. Skyline Software (P) Ltd. (a company for imparting education in software started in 2001)
4. The main object of respondent No.1 is to establish colleges for higher technical education for various sections of the community. In November, 2001, respondent No.1 acquired 13 acres of land in the Institutional complex, Greater NOIDA, U.P. At a cost of Rs.5.25 crores for establishing a multi disciplinary college. Thereafter, the respondents obtained permission from All India Council for Technical Education (AICTE) and established an institution with the name Skyline Institute of Engineering and Technology. They also recruited teaching faculty, made admissions in 4 disciplines and started five-year engineering course with effect from 9.9.2002.
5. As soon as respondent No.1 issued an advertisement for recruiting teachers, the appellant got served notice dated 31.1.2002 upon the respondents and called upon them to stop using the word `Skyline' in the name of their institute by alleging that
the same was affecting its goodwill. Some dialogue appears to have taken place between the functionaries of the appellant and respondent No.1 but without any tangible result. Therefore, the appellant filed Suit No.1553 of 2002 in Delhi High Court for grant of permanent injunction restraining the respondents herein, their officers, servants, agents, representatives, franchisees or any of them from using the name `Skyline' as part of their trading name in relation to the activities in the field of education and/or as a trademark in relation to any printed matter, literature, syllabus, etc. or in any other manner whatsoever. The appellant further prayed for award of damages to the tune of Rs.5,01,600/- and for issue of a direction to the respondents to give details of the profits earned by them by the alleged wrongful use of the name `Skyline' and deliver all printed material including syllabi, course materials, stationery, blocks, dies, etc. bearing the name `Skyline'.
6. In the plaint, the appellant averred that it was established in 1996 on the lines of the previously existing and highly successful Skyline College, Sharjaha, which was brain child of Mr. Kamal Puri, an eminent educationist, who set up first
Skyline Institute in 1990 with the object of providing high quality graduate and post-graduate level professional education and training to the students. The appellant further averred that Skyline Business School was established in 1997 as its division with the object of imparting high quality education in the field of management at under-graduate and post-graduate levels and in a period of one decade it has acquired a substantial reputation and good will on account of highly qualified and dedicated faculty, the internationally competitive courses and scientific methodology
of imparting education. The appellant claimed that it has affiliation with the University of Oxford, University of Lincolnshire and Humberside, U.K., National American University, USA and other bodies like International Air Transport Association, Travel Agents Association of India, Confederation of Indian Industry, Universal Federation of Travel Agents Association, etc. and that these bodies have collaborated with the Skyline Business School for their requirement of trained personnel in the travel business. The appellant then averred that its four months diploma course and the Skyline Business School's three years' bachelor degree course in business administration have been advertised ever since their inception and the applications submitted by it in 1997 and 1998 for registration of trademarks, Skyline Institute, Skyline Medalist, Skyline Business School and Skyline Lead Faculty in class 16 inter alia for printed matter, literature, stationery, etc. are pending before the competent authority. The appellant referred to an advertisement issued by Skyline Institute of Engineering and Technology and pleaded that adoption of the name `Skyline' by the respondents has caused deception and confusion in the mind of the public necessitating filing of the suit for permanent injunction. The appellant also filed an application
under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure (C.P.C.) for grant of temporary injunction restraining the respondents, their officers, etc. from using `Skyline' as a part of their trademark in relation to their activities in the field of education, etc.
7. In the written statement filed by them, the respondents pleaded that the appellant is running its institute illegally without obtaining permission from statutory bodies like AICTE, UGC, etc. and that it does not have affiliation with any University. According to the respondents, there is no connection between Skyline College based in UAE and the appellant's Skyline Business School and that the courses conducted by Skyline Business School are not approved by any competent body. The respondents gave the details of their activities and averred that Skyline Institute of Engineering and Technology was established to provide high quality education to the students in the field of technical education. The respondents asserted that the appellant cannot claim monopoly over the word `Skyline' which is a general word and s being used by as many as 32 companies operating in Delhi, 117 companies operating all over the country and worldwide there are thousands of institutes/institutions, companies, firms, etc. which are using that word as part of their name.The respondents
further pleaded that they were already running several companies/firms with the name Skyline and there is no possibility of deception and confusion among the students due to establishment of Skyline Institute of Engineering and Technology. Another plea taken by the respondents is that as per existing law no trademark can be granted in respect of educational services and, as such, the appellant does not have the locus standi to seek an order of injunction against them more so because Skyline Institute of Engineering and Technology was established in 2002 by spending more than Rs.20 crores and the students have already taken
admission against 240 seats sanctioned by AICTE. The respondents also alleged that the appellant was operating from the premises of Laxman Public School, Hauz Khas pursuant to an agreement entered into by Shri Kamal Puri in the name of Skyline Express. The respondents also filed reply on similar lines to the application for temporary injunction. Findings of the Learned Single Judge
8. After considering the pleadings of the parties and arguments of their counsel, the learned Single Judge opined that the word `Skyline' being neither an invented nor specific word, has to be considered a generic word more particularly when thousands of persons and institutions are using the same as a part
of their trading name or business activities. The learned Single Judge held that even a prior user of the name `Skyline' by the plaintiff would not confer upon it an exclusive right to use that name to the exclusion of others and pendency of the applications for registration under the Trade Marks Act, 1999 is inconsequential. The learned Single Judge then took cognizance of the fact that while the appellant is neither approved by AICTE nor affiliated with any university, the respondents have already obtained the recognition/permission and affiliation from the concerned statutory bodies and have spent huge amount for establishing the institute and further that the first batch of the students is already undergoing five-years course and held that the appellant is not entitled to equitable and discretionary relief by way of temporary injunction. While rejecting the argument that use of the word `Skyline' by the respondents for the Institute of Engineering and Technology established by them will create confusion in the mind of the general public and the prospective students who want to pursue their studies in the field of engineering and technology, the learned Single Judge observed:
"In the opinion of this Court, merely by the use of the word "Skyline" as a prefix in the name of the two institutes, there is to likelihood of such a confusion because the full name of the plaintiff institute is "Skyline Education Institute (India) Pvt. Ltd." while that of the defendant is "Skyline Institute of Engineering and Technology" used in defendant's name are sufficient to indicate to all concerned that the defendant is not the same institute as the plaintiff. In any case, care can be taken to clarify such a confusion, even if there is any likelihood of such a confusion."
9. Notwithstanding the above conclusion, the learned Single Judge partly allowed the application filed by the appellant. The operative portion of order dated 6.5.2003 passed by the learned Single Judge reads thus:-
"In the result, the application is partly allowed and till the disposal of the suit, the defendants are hereby restrained from starting any new courses similar to the courses run by the Plaintiff viz. graduate and post-graduate education in management, travel and tourism. The ex-parte ad-interim order dated 01.10.2002 is modified to the extent that the defendants will be free to make publicity/issue advertisements etc. in their existing name for any courses in technical/Engineering education provided the said advertisements contain a note to the effect that the institute of the defendants is not related to the Plaintiff's institute being run under the name of "Skyline Educational Institute (India) Pvt. Ltd.", in any way."
10. The appellant and respondents challenged the order of the learned Single Judge by filing separate appeals. The Division Bench expressed its agreement with the learned Single Judge that the word `Skyline' is not a generic word but was an adoptive word and observed:
"We also find no force in the argument of the counsel for the respondent that the word `skyline' was not a generic word and was an adoptive word as far as education is concerned. A student who would like to go to an educational institution, he is not a lay customer. If a student likes to go to St. Stephens College in Delhi or want to go to Sri Ram College of Commerce or Hindu College, he will go to these colleges and not to other although there may be similarity of names of other colleges. When the learned single Judge came to the conclusion that there is no similarity in the name of two parties, appellant using the name `skyline' as a prefix with the institute of technology and engineering and the respondent using `skyline' business school', a student would not get any deception by both names. A very large number of institutes, firms and companies etc. are using the word `Skyline' as part of their name which fact has not been categorically denied by the respondent."
The Division Bench then observed that after having found that the appellant has failed to make out a prima facie case and that balance of convenience was not in its favour, the learned Single Judge was not justified in directing the respondents not to
go ahead with the courses of BBA management and MBA management. This is evinced from the following extracts of the order of the Division Bench:
"Normally once all the ingredients like prima facie case, balance of convenience, equity if not found in favour of grant of injunction, injunction in any form ought not to have been granted. At the same time, that does not mean that Court in order to do justice cannot mould the relief or can grant an injunction in terms not prayed for to do justice between the parties. The concept of grant of injunction also have to be seen in the light as to what would be the loss suffered on account of an injury by non-grant of such an injunction. The argument, which has been raised before us that it was basically respondents suit for grant of an injunction against the appellant from using the word Skyline. Having come to the conclusion that Skyline was a word which was used by a very large number of people in India and abroad and it has a generic word, we cannot appreciate as to how the learned Single Judge has granted an injunction against the appellant not to start courses in management. To say the least, the present litigation is to have more commerce in education and less education in commerce. Private commercial houses by advertising fancy name of foreign universities lure students in this country. All this exercise is not in realm of imparting education but knowing fully well that in India the name of a foreign university is lucrative enough to get larger chunk of money from the pockets of the parents. What is the value of these degrees, whether they are permitted to do so or not, we will advert later. Here is a classic case of the respondent who got letters from the University of Lincolnshire and Humberside, UK both dated 17th October, 1996 which too was for a period of five years only with effect from 1st May, 1997. It as a certificate which the respondent was to given in travel and tourism. However, respondent started giving advertisements for education in BBA (Hons.) with specialization in marketing or tourism. One such advertisement is at page 516 of the paper book. It was contended before us by Mr. Singh that on 11 th March, 1998 they had also an arrangement of BBA Marketing programme from the said university. At this stage, we would not like to go to the question whether the respondent could have represented that they could offer courses in BBA Marketing or not, what is of relevant is even if we accept the argument of learned counsel for the respondent, they are `study centre' of a deemed university, Manipal Academy of Higher Education, that is also from the year 2003. The authorization to start courses came in the year 2003, although it was contended by the respondent that they have started courses from 2001. Was it justifiable on their part? Whether they could do so? Was there any legal bar? All are these issues which would be taken care of in the trial. Both the parties would be at liberty to lead evidence and argue the matter. At this stage, when the learned trial Judge has not entertained the plea of the respondent from prima facie case, balance of convenience and irreparable injury to respondent, restraining the appellant not to go ahead with their courses of BBA Management and MBA Management after due approval from AICTE in comparison to respondent being a `Study Center' only was without any basis."
11. Shri Sudhir Chandra, learned senior counsel appearing for the appellant argued that even though the word `Skyline' is being used by several companies, institutions and organizations, the same cannot be treated as a generic word and the contra concurrent finding recorded by the learned Single Judge and the Division Bench is legally unsustainable. Learned senior counsel submitted that though the appellant has not got registration under the Trade Marks Act, being prior user of the word `Skyline', it is
entitled to an order of injunction against the use of that word by respondent No.1 as part of their educational activities and the learned Single Judge and Division Bench committed serious error by refusing to protect the appellant from illegal, unlawful and unauthorised use of the word `Skyline' by the respondents. Shri Sudhir Chandra pointed that the appellant is an affiliate of the University of Lincolnshire and Humberside, U.K. and an approved study center of Manipal University and argued that the High Court committed an error by declining the appellant's prayer to restrain the respondents from using the word `Skyline' with the Institute of Engineering and Technology established by them. Learned senior counsel emphasized that even an unregistered prior user can file an action for passing off and the High Court committed serious error by refusing relief to the appellant ignoring the fact that the respondents established the Institute of Engineering and Technology by prefixing the word `Skyline' with the sole object of encashing the goodwill generated by the appellant and its sister concern which is operating in UAE. In support of his arguments, the learned senior counsel relied upon the judgments of this Court in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories 1965 (1) SCR 737, Ruston & Hornsby Ltd. v. The Zaminidara Engineering Co. 1969 (2) SCC 727, N.R. Dongre and others v. Whirlpool Corporation and another 1996 (5) SCC 714 and Satyam Infoway Ltd. v. Sifynet Solutions (P) Ltd. 2004 (6) SCC 145.
12. Shri L.N. Rao, learned senior counsel for the respondents supported the impugned order to the extent the Division Bench rejected the appellant's prayer for restraining the respondents from prefixing the word `Skyline' with the Institute of Engineering and Technology established by them and argued that this Court may nullify the effect of the direction given by the learned Single Judge in its entirety. He submitted that the discretion exercised by the High Court in declining the appellant's prayer for injunction does not suffer from any legal error and this Court may not interfere with the impugned orders because the concurrent finding recorded by the learned Single Judge and Division Bench on the issue of prima facie case is based on correct appreciation of the factual matrix of the case and in any case, equity is not in favour of the grant of injunction in terms of the prayer made by the appellant.
13. We have thoughtfully considered the entire matter. Before pronouncing upon the tenability or otherwise of the appellant's prayer for restraining the respondents from using the word `Skyline' for the Institute of Engineering and Technology established by them, we consider it necessary to observe that as the suit filed by the appellant is pending trial and issues raised by the parties are yet to be decided, the High Court rightly considered and decided the appellant's prayer for temporary injunction only on the basis of the undisputed facts and the material placed before the learned Single Judge and unless this Court comes to the conclusion that the discretion exercised by the High Court in refusing to entertain the appellant's prayer for temporary injunction is vitiated by an error apparent or perversity and manifest injustice has been done to it, there will be no warrant for exercise of power under Article 136 of the Constitution. In Wander Ltd. v. Antox India (P) Ltd 1990 (Supp.) SCC 727, this Court was called upon to determine the scope of appellate court's power to interfere with the discretion exercised by the court of first instance in granting or refusing the prayer for temporary injunction. The facts of that case were that in the suit filed by it, respondent-Antox India (P) Ltd. had prayed for
restraining the appellant from using registered trade mark `Cal-De-Ce'. The learned Single Judge of the High Court refused to entertain the respondent's prayer but on reconsideration of the matter the Division Bench passed an order of injunction. This Court reversed the order of the Division Bench and observed:
"... In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."
14. The proposition of law laid down in Wander Ltd. v. Antox India (P) Ltd (supra) was reiterated in N.R. Dongre v. Whirlpool Corporation (supra) in which this Court considered the correctness of an order of temporary injunction passed by the learned Single Judge of the Delhi High Court in a suit filed by the respondents to restrain defendants from manufacturing, selling, advertising or in any way using the trade mark `Whirlpool' or any other trade mark deceptively or confusingly similar to the trade mark `Whirlpool' in respect of their goods. The claim of the
plaintiffs-respondents was based on prior user of the mark `Whirlpool'. After considering the rival pleadings and material placed before him, the learned Single Judge granted temporary injunction. The Division Bench confirmed that order and dismissed the appeal preferred by the appellant. This Court, declined to interfere with the discretion exercised by the learned Single Judge and Division Bench of the High Court and held:
"Injunction is a relief in equity and is based on equitable principles. On the above concurrent findings, the weight of equity at this stage is in favour of the plaintiffs and against the defendants. It has also to be borne in mind that a mark in the form of a word which is not a derivative of the product, points to the source of the product. The mark/name `WHIRLPOOL' is associated for long, much prior to the defendants' application in 1986 with the Whirlpool Corporation, Plaintiff 1. In view of the prior user of the mark by Plaintiff 1 and its trans-border reputation extending to India, the trade mark `WHIRLPOOL' gives an indication of the origin of the goods as emanating from or relating to the Whirlpool Corporation, Plaintiff 1. The High Court has recorded its satisfaction that use of the `WHIRLPOOL' mark by the defendants indicates prima facie an intention to pass off the defendants' washing machines as those of the plaintiffs or at least the likelihood of the buyers being confused or misled into that belief."
15. A somewhat similar view was expressed in Cadila Health Care Ltd. v. Cadila Pharmaceuticals 2001 (5) SCC 73.
16. The ratio of the above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity.
17. In the light of the above, we shall now consider whether the impugned order is vitiated by an error of law apparent on the face of the record or refusal of the High Court to grant injunction in terms of the prayer made by the appellant has resulted in manifest injustice. A little journey in the backdrop of the case shows that the only ground on which the appellant sought temporary injunction against the respondents was that the word `Skyline' is a specific/distinct word and being a prior user, it was entitled to seek a restraint against the respondents from using that word in the name of the Institute of Engineering and Technology established by them. The learned Single Judge, after examining the rival pleadings and material placed before him recorded a well reasoned finding that the appellant has failed to
make out a prima facie case. The learned Single Judge opined that the word `Skyline' is a generic word because the same is being used by thousands of persons and institutions as part of their trading name or business activities. The learned Single Judge noted that while the plaintiff is neither approved by AICTE nor affiliated with any university, the respondents have obtained the requisite recognition and affiliation from the concerned statutory bodies and 240 students have already been admitted in the five years course and held that grant of injunction in terms of the prayer made by the appellant will be inequitable. The Division Bench independently considered the entire matter and expressed its agreement with the learned Single Judge that the appellant has failed to make out a prima facie case for grant of injunction. The Division Bench also agreed with the learned Single Judge that the word `Skyline' was a generic word because it was being used by a large number of people in India and abroad. The Division Bench then held that after recording adverse findings on the issues of prima facie case, balance of convenience and equity, the learned Single Judge was not justified in directing the respondents not to undertake in courses in management, tour and travels, etc. and append a note in the advertisements that their institute has no concern, whatsoever with the appellant's institution. Accordingly, the Division Bench substantially vacated the modified injunction order passed by the learned Single Judge.
18. In our opinion, the findings recorded by the learned Single Judge and Division Bench on the crucial factors like prima facie case, balance of convenience and equity are based on a correct and balanced consideration of various facets of the case and it is not possible to find any fault with the conclusions recorded by them that it is not a fit case for restraining the respondents from using the word `Skyline' in the name of the institute established by them. It has not been disputed on behalf of the appellant that the word `Skyline' is being used as trade name by various companies / organizations / business concerns and also for describing different types of institute/institutions. The voluminous record produced by the respondents before this Court shows that in India as many as 117 companies including computer and software companies and institutions are operating by using word `Skyline' as part of their name/nomenclature. In United States of America, at least 10 educational/training institutions are operating with different names using `Skyline' as the first word. In United Kingdom also two such institutions are operating. In view of this, it is not possible to agree with the learned counsel for the appellant that the Skyline is not a generic word but is a specific word and his client has right to use that word to the exclusion of others.
19. There is another reason for declining the appellant's prayer for grant of temporary injunction. The appellant is shown to have started Skyline Business School in 1997 as one of its division but has conveniently not mentioned that it had started another institution under the aegis of Asian Educational Society housed in the same building where the appellant claims to have its registered office. After three years of starting Skyline Business School, the Director of the appellant vide his letter dated January 4, 2000 permitted the President, Asian Educational Society to use the trade mark Skyline Business School, name and the logo albeit without disclosing as to when Skyline Business School was registered under the Trademarks Act, 1999. Thereafter, Skyline Group's Asian Educational Society through its President, Shri Kamal Puri entered into an agreement dated 9.12.2001 with Manipal Academy of Higher Education (deemed university) for establishing a branch campus at Skyline Business School, Delhi. Sikkim Manipal University also approved Skyline Business School as a University Study Center for taking management programme under distance education despite the fact that the Skyline Business School is not
recognized or approved by AICTE/UGC. In 1996, University of Oxford approved the appointment of a center in the premises of the appellant at Laxman Public School, Hauz Khas Enclave, New Delhi for Certification in Leisure Studies and in Travel and Tourism. In 1997, Skyline Business School entered into a Memorandum of Cooperation with University of Lincolnshire and Humberside, U.K. whereby the latter agreed to offer its BBA (Hons.) Tourism course through a center established at the appellant's campus. In large number of advertisements issued in the name of the appellant or Skyline Business School, it has not been made clear that they are neither approved nor recognized by any of the statutory bodies like, AICTE, UGC, etc. Of course, in some of advertisements, it has been mentioned that the degrees/diplomas purported to be awarded by the Skyline Business School are not recognized by Government of India, State Government, UGC/AICTE. All this lends sufficient credibility to the observations made by the Division Bench of the High Court that the present litigation is to have more commerce in education and less education in commerce and gives an impression that functioning of the appellant is shrouded in mystery and those seeking admission in the courses organised by it may find themselves in serious trouble at any given point of time because the degrees and diplomas awarded in the name of foreign universities are not recognised by statutory bodies/authorities in India.
20. Shri Sudhir Chandra may be right in his submission that even an unregistered prior user of a name can institute action for passing off and seek injunction against the subsequent user of the same name by proving that misrepresentation by the defendant to
the public that the goods/services offered by him are that of the plaintiff and such misrepresentation has caused harm to the goodwill and reputation of the plaintiff or the plaintiff demonstrates that it has suffered loss due to such representation, but, in view of our conclusion that the appellant has failed to make out a case for interference with the discretion exercised by the High Court not to entertain its prayer for temporary injunction, we do not find any valid ground to entertain and accept the argument of the learned senior counsel. For the same reason, we do not consider it necessary to discuss the judgments on which reliance has been placed by Shri Sudhir Chandra.
21. Although, during the pendency of the suit, the appellant got registration of trade marks `Skyline MEDALLIST' under No. 795085 and `Skyline Institute' under No. 795086 in class 16 and its prayer for amendment of the plaint was granted by the High Court on 24.8.2006, but, that by itself, is not sufficient for entertaining the appellant's prayer for temporary injunction to restrain the respondents from using the word `Skyline' as part of the Institute of Engineering and Technology established by them.
22. We may now advert to C.A. No. 1362/2005. The respondents' grievance is that after having reached the conclusion that the learned Single Judge was not justified in restraining the respondents from starting new courses in business management, etc. and directing them to append a note in the advertisement that they are in no way related to the appellant, the Division Bench should have set aside all the directions impugned before it. We find merit in the contention of the respondents. When the Division Bench found that the learned Single Judge ought not to have given direction restraining the respondents from starting new courses in business management etc. and directed them to append a note in the advertisement that they are not related to the appellant, then it should have set aside the order of the learned Single Judge in its entirety. The omission on the part of the Division Bench of the High Court to do so calls for a corrective action by this Court.
23. In the result, Civil Appeal Nos.1360-1361 of 2005 are dismissed and Civil Appeal No.1362 of 2005 is allowed and the modified injunction granted by the learned Single Judge is vacated in its entirety. The appellant shall pay Rs.50,000/- as cost of
unwarranted litigation thrust upon the respondents.
[ Tarun Chatterjee ]...........................J.
[ G.S. Singhvi ] .................................J.
[ Dr. B.S. Chauhan ]...........................J.
New Delhi,
January 05, 2010

ITEM NO.1A COURT NO.13 SECTION XIV
(FOR JUDGMENT)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 1360-1361 OF 2005
SKYLINE EDUCATION INSTITUTE (PVT) LTD. Appellant (s)
VERSUS
S.L.VASWANI & ANR. Respondent(s)
WITH Civil Appeal NO. 1362 of 2005
Date: 05/01/2010 These Appeals were called on for judgment today. For Appellant in Mr. Hari Shankar K,Adv. C.A. Nos.1360-1361/2009
& for Respondent in C.A. No.1362/2005
For Respondent in C.A. Nos.1360-1361/2009 & for Appellant in C.A. No.1362/2005 Ms. Hetu Arora,Adv.
UPON hearing counsel the Court made the following
O R D E R
Hon'ble Mr. Justice G. S. Singhvi pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Tarun Chatterje, His Lordship and Hon'ble Dr. Justice B. S. Chauhan.
Civil Appeal Nos.1360-1361 of 2005 are dismissed and Civil Appeal No.1362 of 2005 is allowed and the modified injunction granted by the learned Single Judge is vacated in its entirety. The appellant shall pay Rs.50,000/- as cost of unwarranted litigation thrust upon the respondents.
(Neetu Sachdeva) (Mithlesh Gupta)
Sr.P.A Court Master
(Signed non-reportable Judgment is placed on the file)
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AMENDMENT OF PLEADINGS - AFTER COMMENCEMENT OF TRIAL

AMENDMENT OF PLEADINGS – BAR AFTER COMMENCEMENT OF TRIAL
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7251 OF 2008
[Arising out of SLP (Civil) No. 4740 of 2008]
Vidyabai & Ors. ...Appellants
Versus
Padmalatha & Anr. . ...Respondents
( Also reported in AIR 2009 SC 1433 )
JUDGMENT
S.B. SINHA, J :
1. Leave granted.
2. Whether pleadings can be directed to be amended after the hearing of a case begins is the question involved in this appeal which arises out of a judgment and order dated 24.10.2007 passed by the High Court of Karnataka at Bangalore in Writ Petition No. 14013 of 2007.
3. On or about 16.12.2003, the plaintiffs - appellants filed a suit for specific performance of an agreement of sale. According to the plaintiffs, one Prashant Sooji (since deceased) executed an agreement of sale on 15.01.2001 in respect of the suit property for a sum of Rs. 21 lakhs. Defendants - Respondents are the predecessors in interest of the said Prashant Sooji.
A written statement was filed on 17.04.2004. An application for amendment of the written statement was filed on 8.11.2006. In between the period 17.04.2004 and 8.11.2006, however, indisputably issues were framed and parties filed their respective affidavits by way of evidence. Dates had been fixed for cross-examination of the said witnesses.
On or about 8.11.2006, an application had been filed under Order VI Rule 17 of the Code of Civil Procedure (for short "the Code"), which was marked as IA 9 of 2006, seeking amendment to the written statement. On the same day, another application, which was marked as IA 10 of 2006, had also been filed purported to be under Order VIII Rule 1A of the Code for production of additional documents.
By reason of an order dated 18.07.2007, the learned Principal Civil
Judge (Sr. Dn.) Hubli dismissed the said applications holding that an entirely new case is sought to be made out. The contention that they had no knowledge of the facts stated therein and the respondents could not gather the materials and information necessary for drafting proper written statement earlier was rejected, stating:
"...However, this contention cannot be accepted. Because according to proposed amendment sought by defendants at para 3(a) will is dated 18.3.94. Therefore, naturally same would have been in the knowledge of defendants right from the date and moreover when they say that mother-in-law of defendant No. 1 is also necessary party and she is also got right and interest in the suit property and that she is alive, then through her defendants would have known about will right from beginning and hence it cannot be said that defendant No. 1 required time to gather information regarding will and further as details of will would have been within the knowledge of defendants and/ or could have been given by mother-in-law of defendant No. 1 i.e. Subhadrabai, then it was not necessary for defendant No. 1 to have any social activities or have knowledge of business to know about the will and hence proposed amendment regarding will cannot said to be not within the knowledge of defendants at the time of filing of written statement. Further regarding husband of defendant No. 1 being addicted to bad vices like womanizing, drinking etc again this would have been within the personal knowledge of defendant No. 1 as she is wife of deceased Prashant against whom whose allegations are made and this would have been in where knowledge right from the beginning and to have said knowledge again she need not have any knowledge of business or social activities and thus she also did not require any time to gather that the information which are well within her own knowledge..."
4. A writ petition was filed thereagainst. By reason of the impugned judgment, the High Court noticed the defence of the appellants in the following terms:
"There is no retracting of statement made in written statement already filed by the defendants".
It, however, took into consideration the fact that the said IAs were filed after the affidavit of evidence had been filed by the plaintiffs -appellants. Despite noticing the proviso appended to Order VI, Rule 17 of the Code, it was held;
"...According to Order 6 Rule 17, an amendment application can be filed at any stage of the proceeding. Filing of affidavit by way of evidence itself is not a good ground to reject the application filed seeking amendment of written statement. It is not out of place to mention that the parties must be allowed to plea. Such a valuable right cannot be curtailed in the absence of good ground."
I.A. 10 was also directed to be allowed.
5. Mr. S.K. Kulkarni, learned counsel appearing on behalf of the appellants, would submit that in view of the proviso appended to Order VI Rule 17 of the Code, the High Court committed a serious illegality in passing the impugned judgment.
6. Ms. Kiran Suri, learned counsel appearing on behalf of the respondents, on the other hand, would contend that the proviso appended to Order VI Rule 17 of the Code is not attracted in the instant case as by reason of the amendment to the written statement, no new case has been made out. It was submitted that `leave' to amend the written statement was filed for the purpose of elaborating the defence which had already been taken by the defendants and in that view of the matter, this Court should not exercise its
jurisdiction under Article 136 of the Constitution of India particularly when it is well-known that an application for amendment of written statement should be dealt with liberally.
7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under:
"Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.
8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition.
The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to `commencement of
proceeding'.
9. Although in a different context, a Three-Judge Bench of this Court in Union of India and Others v. Major General Madan Lal Yadav (Retd.) [(1996) 4 SCC 127] took note of the dictionary meaning of the terms "trial" and "commence" to opine:
19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.
The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced.
10. Order XVIII, Rule 4(1) of the Code reads as under:
"4. Recording of evidence (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the
parties rely upon the documents, the proof and
admissibility of such documents which are filed
along with affidavit shall be subject to the orders
of the Court."
This aspect of the matter has been considered by this Court in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. [(2004) 1 SCC 702] in the following terms:
"15. The examination of a witness would include
evidence-in-chief, cross-examination or re-
examination. Rule 4 of Order 18 speaks of
examination-in-chief. The unamended rule
provided for the manner in which "evidence" is to
be taken. Such examination-in-chief of a witness
in every case shall be on affidavit.
16. The aforementioned provision has been made
to curtail the time taken by the court in examining
a witness-in-chief. Sub-rule (2) of Rule 4 of Order
18 of the Code of Civil Procedure provides for
cross-examination and re-examination of a witness
which shall be taken by the court or the
Commissioner appointed by it."
In Kailash v. Nanhku [(2005) 4 SCC 480], this Court held:
"13. At this point the question arises: when does
the trial of an election petition commence or what
is the meaning to be assigned to the word "trial" in
the context of an election petition? In a civil suit,
the trial begins when issues are framed and the
case is set down for recording of evidence. All the
proceedings before that stage are treated as
proceedings preliminary to trial or for making the
case ready for trial. As held by this Court in
several decided cases, this general rule is not
applicable to the trial of election petitions as in the
case of election petitions, all the proceedings
commencing with the presentation of the election
petition and up to the date of decision therein are
included within the meaning of the word "trial"."
We may notice that in Ajendraprasadji N. Pandey and Another v. Swami Keshavprakeshdasji N. and Others [(2006) 12 SCC 1], this Court noticed the decision of this Court in Kailash (supra) to hold:
"35. By Act 46 of 1999, there was a sweeping
amendment by which Rules 17 and 18 were
wholly omitted so that an amendment itself was
not permissible, although sometimes effort was
made to rely on Section 148 for extension of time
for any purpose.
36. Ultimately, to strike a balance the legislature
applied its mind and reintroduced Rule 17 by Act
22 of 2002 w.e.f. 1-7-2002. It had a provision
permitting amendment in the first part which said
that the court may at any stage permit amendment
as described therein. But it also had a total bar
introduced by a proviso which prevented any
application for amendment to be allowed after the
trial had commenced unless the court came to the
conclusion that in spite of due diligence the party
could not have raised the matter before the
commencement of the trial. It is this proviso which
falls for consideration."
This Court also noticed Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344] to hold:
"41. We have carefully considered the submissions
made by the respective Senior Counsel appearing
for the respective parties. We have also carefully
perused the pleadings, annexures, various orders
passed by the courts below, the High Court and of
this Court. In the counter-affidavit filed by
Respondent 1, various dates of hearing with
reference to the proceedings taken before the
Court has been elaborately spelt out which in our
opinion, would show that the appellant is
precluded by the proviso to rule in question from
seeking relief by asking for amendment of his
pleadings.
42. It is to be noted that the provisions of Order 6
Rule 17 CPC have been substantially amended by
the CPC (Amendment) Act, 2002.
43. Under the proviso no application for
amendment shall be allowed after the trial has
commenced, unless in spite of due diligence, the
matter could not be raised before the
commencement of trial. It is submitted, that after
the trial of the case has commenced, no
application of pleading shall be allowed unless the
above requirement is satisfied. The amended Order
6 Rule 17 was due to the recommendation of the
Law Commission since Order (sic Rule) 17, as it
existed prior to the amendment, was invoked by
parties interested in delaying the trial. That to
shorten the litigation and speed up disposal of
suits, amendment was made by the amending Act,
1999, deleting Rule 17 from the Code. This
evoked much controversy/hesitation all over the
country and also leading to boycott of courts and,
therefore, by the Civil Procedure Code
(Amendment) Act, 2002, provision has been
restored by recognising the power of the court to
grant amendment, however, with certain limitation
which is contained in the new proviso added to the
rule. The details furnished below will go to show
as to how the facts of the present case show that
the matters which are sought to be raised by way
of amendment by the appellants were well within
their knowledge on their court case, and manifests
the absence of due diligence on the part of the
appellants disentitling them to relief."
The ratio in Kailash (supra) was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.
12. Reliance, however, has been placed by Ms. Suri on Baldev Singh and Others v. Manohar Singh and Another [(2006) 6 SCC 498], wherein it was opined:
"17. Before we part with this order, we may also
notice that proviso to Order 6 Rule 17 CPC
provides that amendment of pleadings shall not be
allowed when the trial of the suit has already
commenced. For this reason, we have examined
the records and find that, in fact, the trial has not
yet commenced. It appears from the records that
the parties have yet to file their documentary
evidence in the suit. From the record, it also
appears that the suit was not on the verge of
conclusion as found by the High Court and the
trial court. That apart, commencement of trial as
used in proviso to Order 6 Rule 17 in the Code of
Civil Procedure must be understood in the limited
sense as meaning the final hearing of the suit,
examination of witnesses, filing of documents and
addressing of arguments. As noted hereinbefore,
parties are yet to file their documents, we do not
find any reason to reject the application for
amendment of the written statement in view of
proviso to Order 6 Rule 17 CPC which confers
wide power and unfettered discretion to the court
to allow an amendment of the written statement at
any stage of the proceedings.
It is not an authority for the proposition that the trial would not deemed to have commenced on the date of first hearing. In that case, as noticed hereinbefore, the documents were yet to be filed and, therefore, it was held that the trial did not commence.
13. Reliance has also been placed by Ms. Suri on Pradeep Singhvi and Another v. Heero Dhankani and Others [(2004) 13 SCC 432]. Therein, the suit was filed in the year 1995 and, therefore, the proviso appended to Order VI, Rule 17 of the Code of Civil Procedure had no application.
Reliance has also been placed by Ms. Suri on Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others [(2006) 4 SCC 385]. No doubt, as has been held by this Court therein that the court should allow amendments that would be necessary to determine the real question of the controversy between the parties but the same indisputably would be subject to the condition that no prejudice is caused to the other side.
14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed.
However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of
the plaint.
15. In Salem Advocate Bar Assn (supra), this Court has upheld the validity of the said proviso. In any event, the constitutionality of the said provision is not in question before us nor we in this appeal are required to go into the said question.
16. Furthermore, the judgment of the High Court does not satisfy the test of judicial review. It has not been found that the learned Trial Judge exceeded its jurisdiction in passing the order impugned before it. It has also not been found that any error of law has been committed by it.
The High Court did not deal with the contentions raised before it. It has not applied its mind on the jurisdictional issue. The impugned judgment, therefore, cannot be sustained, which is set aside accordingly.
17. However, we may observe that the question as to whether the documents should have been called for or not by the court without there being the amended written statement before it may be considered afresh.
18. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
...............................J.
[S.B. Sinha]
................................J.
[Cyriac Joseph]
New Delhi;
December 12, 2008
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