A. Ananda vs A Krishna Reddy and others. Writ Petition 13456/2020 decided on 7 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357576/1/WP13456-20-07-01-2021.pdf

Relevant paragraphs: 4-F. The unconscionable stand of the JDrs needs to  be mentioned here; when there was no dispute as to the identity of the property either in the suit or in the RFA, the JDrs by their wily tactics are trying to generate one in the execution proceedings; in fact, their application filed under Order XLI Rule 27 seeking leave to produce additional documents in the RFA has been rejected by the Division Bench disbelieving  the  unregistered  Settlement  Deed dated 10.09.1968; the DB did not believe the version of the JDrs that they were in the possession of the suit property and not the DHr; strangely and unconscionably  the  JDrs are unjustibiably re-agitating the same issue before the Executing Court and before this Court  as  well;  this  virtually amounts to  abuse of process of the court; this  is  yet another ground for the writ court to deny relief to the petitioner.

4-H Further added to the above, Sec.6 of the 1963 Act employs the expression ‘recover possession’; the so called possession of the JDrs cannot be termed to be possession in law which is a sine qua non for invoking this provision because: (i) Possession consists of two ingredients which Salmond on jurisprudence (7th ed.) page 297-308  mentions  viz.,   (i)  corpus   possessionis and (ii) animus possidendi; the former, he says, comprises of both the power to use the thing possessed and the existence of grounds for the expectation that the possessor’s use will not be interfered with by others; the later consists of an intent   to   appropriate   to   oneself   the   exclusive use of the thing possessed; learned author P.J.Fitzgerald who edited ‘Salmond  on Jurisprudence’  (12th  edition)  at   page   272  adds: “(i) The distinction between animus and corpus was made in Roman law: Dig.41.2.3.1., and has been accepted by such  jurists  as  Savigny,  Thering, Pollock, Salmond and Holmes”. Apex Court too  in  the case of Poonaram Vs.  Motiram  AIR  2019 SC 813 at paragraph  9  has  considered  and approved this view; (ii) The great Lexicographer Mr.Ramnath Iyer in his magnum opus ‘The Law Lexicon’  3rd  Edn.-  2012 writes: “Possession  and   occupation:   Bare occupation and possession are two different things. The concept  of possession,  at  any  rate as it is understood in legal terminology, is a complex one which need not include actual occupation. It comprises rather the right to possess, and the right and ability to exclude others from possession and control coupled  with a mental element namely, the  animus possidendi, that is to say, knowledge of these rights and the desire and intention of exercising them if need be. The  adverse  possession  of which the law speaks does not  necessarily  denote actual physical ouster from occupation but an ouster from all those rights which constitute possession in law. It is true that physical occupation is ordinarily the best  and  the most conclusive proof of possession in this sense but the two are not the  same.  It  is  also true that there must always be physical ouster from these rights but that does not necessarily import physical ouster from occupation especially when this is of just a small room or two in a house and when this occupation is shared with others”

4-I Lastly, the JDrs resistance  to the  execution  of  the decree, that is structured on  the  provisions  of  Sec.6  of  the 1963 Act, cannot be agreed to; a Division Bench of the Bombay High Court in AMIRUDDIN vs. MOHAMED JAMAL, ILR 15 BOM 685 decided way back in the  year 1891, has held that Sec.9 of the old Act which was in pari material with Sec.6 of the new Act is not invocable  by  a person who has no juridical possession; the same view  is  taken by several other High Courts in the country viz., NEYVELI LIGNITE CORPORATION vs. K.S.NARAYANA IYER, AIR 1965 MADRAS 122; EMPEROR vs. BANDHU SINGH, AIR 1928 PATNA 124, NRITTO LALL MITTER vs. RAJENDRO NARAIN DEB, (1895) ILR 22 CALCUTTA 562 SOBHA vs. RAM PHAL, AIR 1957 ALLAHABAD 394; if the petitioner arguably has put up the structure in the suit property, it is only by high handedness and in gross disobedience of the injunctive decree granted by the  trial  Court and affirmed by the Division Bench of this Court; his usurpation of the suit  property  therefore  cannot  be  termed  as juridical possession; such a stand apart from being an after- thought is an affront to the judicial  process,  to say  the least; such unscrupulous  litigants  who  spoil  the  stream of justice do not deserve a discretionary remedy at the hands of the writ court,  exercising  a  limited  jurisdiction constitutionally vested in it.

In the above circumstances, this writ petition being thoroughly devoid of merits is liable to be rejected and accordingly it is, costs having been made easy.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

In perhaps one of the biggest Lok Adalats, the E Lok Adalat held by the Karnataka State Legal Services Authority on 19 December 2020 disposed 16325 pre-litigation and 2,46,890 pending cases. The total settlement amount in pre-litigation cases is Rs. 56,25,04,956/- and in pending cases Rs. 645,91,19,971/- totaling Rs.702,16,24,927/-.

It is to be noted that 958 benches were constituted with zero expenditure incurred. Details of the event are given below.

PDF copy of the statistics.

Tek Singh v. Shashi Verma, (2019) 16 SCC 678

FULL JUDGMENT:
ROHINTON FALI NARIMAN, J.— Leave granted. Respondent 1 filed a civil suit dated 5-3-2013 before the Civil Judge, Senior Division, Solan under Section 6 of the Specific Relief Act in which the following reliefs were claimed:
“(a) Declaring that the effect the plaintiff was running business in Shop No. 3 in the name and style M/s Om Garments owned by proforma Defendant 2 in Anand Complex, the Mall Solan w.e.f. 28-1-2013 on the basis of partnership deed of the said date with proforma Defendant 2 and the plaintiff has been wrongly dispossessed by Defendant 1 from Shop No. 3 in the intervening night of 3-3-2013 and 4-3-2013 illegally, wrongfully, without the consent of the plaintiff or proforma Defendant 2.
(b) Decree for permanent prohibitory injunction restraining Defendant 1 from causing any interference on any portion of the suit premises/Shop No. 3 mentioned above.”

2. A written statement was filed by the appellant herein denying the averments made in the suit and stating that he has been in possession since 2004 as a tenant of the landlady, who is Respondent 2 before us. The landlady also filed a written statement dated 5-7-2013 in which she stated that apart from the partnership entered into with Respondent 1, the petitioner was her tenant w.e.f. 2004.
3. An Order 39 Rule 1 application was filed which was dismissed by the learned Single Judge on 21-4-2015 saying that the relief asked for could not be granted at this stage as it would amount to decreeing the suit itself. An appeal filed before the Additional District Judge met with the same fate. By the judgment dated 19-12-2016, the appellate court held:
   “However, when it is an admitted case of Defendant 2, admittedly landlady of the suit shop, that she has rented the suit shop to Defendant 1-respondent and has set up counter-defence that in fact Defendant 1 has sublet the suit shop to the plaintiff which is not at all the case of the plaintiff, prima facie it is clear on record that the suit shop was rented by Defendant 2 to respondent-Defendant 1 and Defendant 1 has been running the suit shop since 17-9-2004 when both the defendants have also reduced rent agreement into writing, copy of which is also available in the case file. As per the rent agreement, the tenancy had commenced w.e.f. 1-9-2004. Nothing has come on record, if Defendant 1-respondent had ever vacated-surrendered the possession of the shop in favour of landlady nor is it the case of Defendant 2 that she ever sought eviction of Defendant 1 from the suit shop. It appears from the copy of partnership deed having been relied upon by the applicant that both the applicant and Defendant 2 had connived with each other in order to oust Respondent 1 who is tenant over the suit shop and filed the suit as well as application for temporary and mandatory injunction in the court. Moreover, when the applicant herself has come with the plea that she is out of possession of the suit shop and she has prayed that possession in her favour be restored qua the suit shop by way of temporary injunction and at the same time the applicant has failed to prove on record that she has prima facie case of balance of convenience lies in her favour or that she is going to suffer irreparable loss as discussed above, hence, by allowing of the application as prayed by the applicant would amount to decree of the suit in favour of the applicant without giving the parties to prove their respective claims by leading evidence. Even when it has come on record that Respondent 1 is in actual possession of the suit property which was rented out to him by Defendant 2 landlady in the year 2004 and nothing has come on record that Defendant 1 had ever been evicted from the suit shop in accordance with law or he ever surrendered the possession of the suit property in favour of Defendant 2, it is clear on record that Respondent 1 has prima facie case and balance of convenience also lies in her favour.”
4. By the impugned judgment dated 10-4-20181, a learned Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition. This was done without dealing with any of the aspects set out by the first appellate court. From what one is able to gather, given the language used in the judgment, it appears that the learned Judge was swayed by the fact that a police complaint had been filed on 3-2-2013 in which dispossession was acquiesced in.
5. We are constrained to observe that every legal canon has been thrown to the winds by the impugned judgment1. First and foremost, the 1999 Amendment to CPC added a proviso to Section 115, which reads as follows:
   “115. Revision.—(1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears—
   (a) to have exercised a jurisdiction not vested in it by law, or
   (b) to have failed to exercise a jurisdiction so vested, or
   (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
   Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

• * *
  (3) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the High Court.”
  A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders.

2. Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In DLF Housing & Construction Co. (P) Ltd. v. Sarup Singh2 this Court held: (SCC pp. 811-12, para 5)
   “5. The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words “illegally” and “with material irregularity” as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.” (SCR at p. 373)
3. The learned counsel appearing for the respondents argued before us and attempted to support the judgment. He cited the judgment of Dorab Cawasji Warden v. Coomi Sorab Warden3. Para 16 of this judgment is set out hereinbelow: (SCC pp. 126-27)
   “16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated, these guidelines are—
   (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
   (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
   (3) The balance of convenience is in favour of the one seeking such relief.”
   This judgment also makes it clear that when a mandatory injunction is granted at the interim stage, much more than a mere prima facie case has to be made out. None of the aforesaid statutory provisions or judgments have either been adverted to or heeded by the impugned judgment1.
4. We, therefore, set aside the impugned judgment1 and restore the judgment of the courts below.
5. Since the suit filed is a Section 6 suit which is a summary proceeding in itself, the trial court should endeavour to dispose of the suit itself within a period of six months from today.
6. The appeal is allowed in the aforesaid terms.
   ———
   † Arising out of SLP (C) No. 10850 of 2018, Arising from the Judgment and Order in Sashi Verma v. Tek Singh, 2018 SCC OnLine HP 2151 (Himachal Pradesh, Shimla Bench, CMPMO No. 154 of 2017, dt. 10-4-2018)
   1 Sashi Verma v. Tek Singh, 2018 SCC OnLine HP 2151
   2 DLF Housing & Construction Co. (P) Ltd. v. Sarup Singh, (1969) 3 SCC 807 : (1970) 2 SCR 368
   3 Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117

Photo courtesy. LiveLaw.

Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia, (2004) 3 SCC 90

Full Judgment:

IN THE SUPREME COURT OF INDIA
BEFORE S.N. VARIAVA AND H.K. SEMA, JJ.)
MIDAS HYGIENE INDUSTRIES (P) LTD. AND ANOTHER- Appellants;
Versus
SUDHIR BHATIA AND OTHERS – Respondents.
Civil Appeal No. 107 of 2002, decided on January 22, 2004

1. This appeal is against the judgment of the High Court dated 20-9-2001.
2. Briefly stated, the facts are as follows:
   The appellants filed a suit for passing off and for infringement of copyright. In the suit an application for interim injunction under the provision of Order 39 Rules 1 and 2 of the Code of Civil Procedure was filed. A learned Single Judge of the High Court in order dated 31-7-2001 noted the following facts:
   “(i) The defendant admittedly worked with the plaintiff prior to launching its business.
   (ii) The plaintiff’s prior and prominent user of the phrase Laxman Rekha as a part of the description of crazy lines as shown by the documents i.e. advertisements at least of 1991 produced by the plaintiff showing prominent user of the phrase Laxman Rekha.
   (iii) The defendant’s non-denial of the plaintiff’s assertions in the notice dated 28-2-1992 to the effect that the plaintiff used the phrase ‘Laxman Rekha’ on its product.
   (iv) The plaintiff’s assertion of the ownership of copyright in the packaging containing the words ‘Laxman Rekha’.
   (v) The defendant has not chosen to give an explanation why he adopted ‘Magic Laxman Rekha’.
   (vi) The defendant’s averments in Suit No. 1967 of 1996 that the product Magic Laxman Rekha was used by it since 1992.
   (vii) The defendant’s statement in the application made to the Trade Mark Registry on 30-5-1996 for registration of trade mark ‘Magic Laxman Rekha’ claiming continuous user since 1992.”
3. In view of these facts, the learned Single Judge granted an interim injunction preventing the respondents, their servants, agents, distributors, stockists or any other person acting on their behalf from manufacturing, marketing, distributing or selling insecticides, pesticides as well as insect repellent under the name LAXMAN REKHA as well as packing design having similar colour scheme, get-up, background and colour combination as that of the appellants’ copyright.
4. The respondents filed an appeal which has been disposed of by the impugned judgment. The Division Bench in spite of noting the factors which have been set out by the learned Single Judge, has vacated the injunction merely on the ground that there was delay and laches in filing the suit. It has held that such delay and laches disentitled grant of injunction. The respondents were merely directed to file regular accounts of their sales in court.
5. The law on the subject is well settled. In cases of infringement either of trade mark or of copyright, normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest.
6. In this case it is an admitted position that the respondents used to work with the appellants. The advertisements which had been issued by the appellants in the year 1991 show that at least from that year they were using the mark LAXMAN REKHA on their products. Not only that but the appellants have had a copyright in the marks KRAZY LINES and LAXMAN REKHA with effect from 19-11-1991. The copyright had been renewed on 23-4-1999. A glance at the cartons used by both the parties shows that in 1992 when the respondent first started he used the mark LAXMAN REKHA on cartons containing colours red, white and blue. No explanation could be given as to why that carton had to be changed to look almost identical to that of the appellant at a subsequent stage. This prima facie indicates the dishonest intention to pass off his goods as those of the appellants.
7. In our view on the facts extracted by the learned Single Judge, this was a fit case where an interim injunction should have been granted and should have been continued. In our view the Division Bench was entirely wrong in vacating that injunction merely on the ground of delay and laches. Under the circumstances, the impugned order is set aside and that of the trial court is restored. It is clarified that all observations made by the High Court and by this Court are prima facie and shall not be taken into consideration at the time of the trial of the suit.
8. The appeal stands disposed of accordingly. No order as to the costs.

G.B.Devaraj and others vs State of Karnataka and others.  Writ Petition 8374/2019 decided on 11 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/356867/1/WP8374-19-11-12-2020.pdf

Relevant paragraphs: 16. The Conduct Rules of the State defines and regulates the conduct of a Government servant which is hedged by certain conditions with regard to conduct or otherwise and what would amount to misconduct. The conduct Rules being made applicable under Rule 39(b) cannot empower the Corporation to entrust an enquiry to the hands of the Lokayukta as there is no provision in the conduct Rules for such entrustment.

17. The power of entrustment of an enquiry to the hands of the Lokayuka is dealt with under KCS(CCA) Rules which not only contains provision for such entrustment, but also deals with elaborate procedure for conduct of disciplinary proceedings against Government Servant.

Therefore, KCS(CCA) Rules without being specifically adopted cannot and would not mean that the said Rules can be applied, bringing it, within the sweep of Rule 39 of the said Rules of the Corporation, unless KCS(CCA) Rules is specifically adopted by a decision of the Board of the Corporation. In view of the preceding analysis, I hold that power to entrust the enquiry to the hands of the Lokayukta is not available with the Corporation. Therefore, the entrustment of the enquiry to the hands of the Lokayukta by the Managing Director of the Board will have to be held as an act without jurisdiction.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Sree Swayam Prakash Ashramam vs G. Anandavally Amma. Civil Appeal No. 7 of 2010, decided on January 5, 2010. Reported in (2010) 2 SCC 689.

Full Judgment in PDF form. See paragraph 33.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Photo courtesy LiveLaw.

S. Sarojini Amma   vs Velayudhan Pillai Sreekumar

Civil Appeal No. 10785 of 2018†, decided on October 26, 2018. see (2019) 11 SCC 391

See paragraphs: 13, 16 and 17

Full Judgement in PDF format

Hardeo Rai  vs Sakuntala Devi Respondent. Civil Appeal No. 3040 of 2008 decided on April 29, 2008. (2008) 7 SCC 46.

See paragraphs 22 to 26

Full Judgment in PDF format.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Picture courtesy, LiveLaw

Thamma Venkata Subbamma vs Thamma Rattamma . Civil Appeal No. 258 of 1974, decided on May 6, 1987. (1987) 3 SCC 294.

See paragraphs 8 to 18

Full Judgment in PDF format.

The answer is yes. However this comes with a condition which is found in the Rule framed by the Bar Council of India. The same reads thus

SECTION II – DUTY TO THE CLIENT

13.      An Advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an Advocate if he can retire without jeopardising his client’s interests.

At appellate stage this issue will not arise. However, in most of the relatives cases involving matrimonial disputes, partition, domestic violence etc, emotions fly high. If an unsavory comment is made against parents or close relatives it creates emotional turmoil and the possibility of the lawyers getting enraged is common. Hence, it is advisable to engage a friend lawyer in such circumstances.

S. Basavaraj, Member, Karnataka State Bar Council