But, because of lodging of FIR, Ext D2, and his statement under Section 313 of the Cr.P.C., one fact that completely stands established and is undisputable is that the appellant was present at the place of occurrence and also that he had a fight with the deceased. Once these two circumstances are admitted, they fully provide corroboration to the dying declaration, the statements of PW11 and PW14 as also the other material evidence led by the prosecution. If the appellant was carrying a sword and others were carrying lathis, it is not understable as to how could the deceased suffer as many as 15 injuries including the incised wound, abrasions, amputation of middle finger from terminal phalages and other serious injuries and the appellant merely suffered six simple injuries. This itself belies the stand taken by the appellant.

English: penal code (Photo credit: Wikipedia)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.106 OF 2010

Bable @ Gurdeep Singh … Appellant

Versus

State of Chattisgarh Tr.P.S.O.P. Kursipur … Respondent

J U D G M E N T
Swatanter Kumar, J.

1. The present appeal is directed against the judgment of the High Court
of Judicature at Chattisgarh at Bilaspur dated 15th November, 2006 wherein
the High Court maintained the judgment of conviction and order of sentence
passed by the learned Fourth Additional Sessions Judge, Durg, Chattisgarh,
convicting the appellants for an offence under Section 302 read with
Section 34 of the Indian Penal Code, 1860 (for short ‘IPC’) and awarding
life sentence to them. Though there were three accused before the trial
court, the present appeal has been preferred only by appellant/accused
No.1, Bable @ Gurdeep Singh. While impugning the judgment under appeal,
the learned counsel appearing for the appellant has, inter alia, but
primarily raised the following arguments:

1. The injuries found on the person of the accused have not been explained
by the prosecution. The deceased having suffered serious injuries that
are stated to have been inflicted by the accused, could not have been in
a condition to inflict any injuries upon the person of the accused. This
leads to the conclusion that the accused had been assaulted by the
deceased before the deceased himself suffered the injury. The injuries
were admittedly found on the person of the accused. The prosecution has
failed to explain such injuries. This failure on the part of the
prosecution renders the story of the prosecution not only improbable but
unbelievable as well.

2. Assuming, though not admitting, that the incident has been proved, the
accused was entitled to the right to private defence as he was attacked
and he caused the injuries in the process of protecting himself. Thus,
the contention is that the accused/appellant cannot be convicted under
Section 302 IPC and his conviction under Section 302/34 IPC cannot stand
the scrutiny of law.

3. Further the appellant states that the informant Tariq Shakil, PW1, had
turned hostile. The FIR not being a substantive piece of evidence, would
discredit the entire case of the prosecution. The Courts, in the
judgments under appeal, have failed to appreciate the evidence in its
proper perspective and hence the judgments are liable to be set aside.

4. Lastly, the dying declaration is not corroborated by other prosecution
witnesses and no details have been furnished therein. As such the Courts
could not have relied upon the said dying declaration.

2. Before we proceed to deliberate upon the legal and factual aspects of
the case with reference to the arguments advanced, it would be necessary to
refer to the case of the prosecution in brief.

3. On 14th May, 1999 at about 10.15 p.m., when Tariq Shakil, PW1, was
sitting in his S.T.D.-P.C.O. shop situated at New Kursipur, Gurunanak
Chowk, one Guddu @ Jiten Soni, PW12, came there and informed PW1 that the
accused Sardar Bable is quarrelling with Ishwari Verma in front of his
shop. Upon hearing this, PW1 closed his shop and went along with PW12 to
the place of occurrence. The accused Bable was carrying a sword in his
hand and was running towards them. Being frightened, both of them went
towards a street. After sometime, there was a noise that the accused Bable
had caused injuries to Ishwari Verma and the said victim was lying in
injured condition. He was removed to BSP Hospital, Sector 9, by his uncle
Balwant Verma, PW14, where he was admitted. Dr. A.D. Banerjee, PW2, had
examined him and declared him brought dead. A written report in this
regard was prepared being Ex.P5. The matter was reported to Bhilai City
Police Station. Even a telephonic message was sent. Sub-Inspector,
Suresh Bhagat, PW10, posted at that Police Station registered the case
under Section 174 Cr.P.C., Ex.P-22. On the same day at about 12.15 a.m. in
the night, PW1 got the First Information Report (FIR), Ext.P-1, of the
incident registered at Police Station Kursipur and a case under Section 302
IPC was registered. The Investigating Officer, Sub-Inspector P.N. Singh,
PW13 took up the investigation and went to the site. He prepared the site
plan, Ex.P14, seized blood-stained earth, plain earth and a piece of chain
of the watch and for that he prepared a seizure memo Ex.P-20. He also
prepared the inquest report vide Ex.P4, in presence of the Panchas. The
post mortem examination of the body of the deceased was performed by Dr.
S.R. Surendra, PW5 at 11.30 a.m. on 15th May, 1999. The post mortem report
was submitted vide Ext.P-8 which noticed the following injuries on the body
of the deceased: -

“1. Incised wound 5 c.m. x ½ c.m. upto bone deep red colour
longitudinal on anterior its and middle of scalp.
2. Incised wound 8 c.m. x 1 c.m. up to bone deep red colour.
Margin everted oblique anterior and right side of scalp.

3. Incised wound 3 c.m. x ¼ c.m. ¼ c.m. above left ear.

4. An abrasion 9 c.m. x ½ c.m. long below left ear.

5. An abrasion 6 c.m. x ½ c.m. neck colored below the first
wound.

6. Incised wound 5 c.m. x ½ c.m. x ½ c.m. on left shoulder
laterally.

7. Incised wound 1 c.m. x ½ c.m. x ½ c.m. on left shoulder
anteriority.

8. Amputation middle finger from terminal phalages.

9. Ring finger also cut from terminal phalages from palmer
aspect only.

10. Incised wound 8 c.m. x ½ c.m. x ½ c.m. red coloured on
upper part and lateral surface of right arm.

11. Abrasion 2 c.m. x 2 c.m. red coloured on lower part and
lateral surface of right upper arm.

12. Incised wound 7 c.m. x ½ c.m. x ½ c.m. lateral surface of
elbow.

13. Incised wound 15 c.m. x 4 c.m. x 3 c.m. deed exposed
tendon and blood vessel visible through wound. On lower
part and medial surface of right fore arm.

14. Incised wound of 4 c.m. x 4 c.m. between right hand thumb
and index finger. Bone of index finger visible through the
wounds.

15. Perforated wound directed from behind, anteno laterally, 4
c.m. above the left knee joint. Wound entry cut of post
medially size 4 c.m. x 3 c.m. oblique. On dissection
popliteal artery is found cut.”

4. The cause of death has been recorded as unconsciousness, which
occurred prior to death and had arisen due to the injuries caused by some
pointed sharp edged weapon.

5. The accused were arrested on the basis of their disclosure statements
Exts.P-15, P-16 and P-26. Weapons used in the crime were seized and
seizure memo was prepared vide Exts.P-17, P-18 and P-27. Blood stained
clothes were recovered from the accused Bable and seizure memo Ext.P-19 was
prepared. Sealed clothes of the deceased received from the Hospital were
seized and seizure memo was prepared vide Ext.P.29. The seized articles
were sent for chemical examination.

6. It is further the case of the prosecution that the people around the
place of the incident had seen the occurrence. Immediately thereafter,
sister-in-law of the deceased, Janki, PW11 and uncle Balwant PW14 had
reached the place of the incident. Balwant, PW14, had enquired from the
deceased as to who were the assailants. After he gave the names, the
accused persons were arrested and they made disclosure statements, as
stated above.

7. It is noteworthy that the appellant Bable @ Gurdeep Singh had stated
that on the date of incident, he was returning after collecting money for
the milk supplied to the Thelawala at about 1-1.30 a.m. in the night. He
saw Ishwari, Dalip, Dimple and Bage quarrelling at Gurunanak Chowk. He
enquired from Ishwari (the deceased), who was his friend, as to what had
happened. Ishwari, without any provocation, abused him and inflicted
injury on his head with the sword that he was carrying. Thereupon, the
accused ran away. Dalip and Prakash saw him running away. After some time
of leaving the place, he lodged a police report of this incident giving
details of the injuries that he had suffered and, in fact, he was medically
treated and five stitches were put on his head. According to him, he had
been falsely implicated in the present case.

8. The accused persons faced the trial and the learned Trial Court, vide
its detailed judgment dated 27th February, 2001 held all the accused
persons guilty of an offence under Section 302 read with Section 34 IPC for
causing death of the deceased in furtherance of their common intention and
sentenced them to undergo life imprisonment. Upon appeal by the accused
persons, the High Court came to the conclusion that the oral dying
declaration was not corroborated by the FIR as the names of two accused,
namely, Pappi alias Arjun Singh and Vikky alias Vikram were not mentioned
in the latter and held that there was no legal and clinching evidence to
implicate these two accused persons and hence the Court acquitted both of
them. In relation to Bable alias Gurdeep Singh, the High Court sustained
the findings, judgment of conviction and order of sentence passed by the
Trial Court. Legality and correctness of this judgment of the High Court
dated 15th November, 2006 has been assailed in the present appeal.

9. Reverting to the submissions made on behalf of the appellant, we may
refer to the fact that the FIR had been lodged upon the statement of PW1.
PW1 did not completely support the case of the prosecution and with the
permission of the Court he was declared hostile. The contention is that
the case of the present appellant would also stand equated to the case of
the two acquitted accused persons and the High Court has fallen in error of
law in not acquitting the accused-appellant as well. It cannot be denied
that the FIR Ext.P-1 was registered upon the statement of PW1 and he
himself has not supported the case of the prosecution, which creates a
doubt in the case of the prosecution.

10. Once registration of the FIR is proved by the Police and the same is
accepted on record by the Court and the prosecution establishes its case
beyond reasonable doubt by other admissible, cogent and relevant evidence,
it will be impermissible for the Court to ignore the evidentiary value of
the FIR. The FIR, Ext. P1, has duly been proved by the statement of PW10,
Sub-Inspector Suresh Bhagat. According to him, he had registered the FIR
upon the statement of PW1 and it was duly signed by him. The FIR was
registered and duly formed part of the records of the police station which
were maintained in normal course of its business and investigation. Thus,
in any case, it is a settled proposition of law that the FIR by itself is
not a substantive piece of evidence but it certainly is a relevant
circumstance of the evidence produced by the Investigating Agency. Merely
because PW1 had turned hostile, it cannot be said that the FIR would lose
all its relevancy and cannot be looked into for any purpose. In the
present case, PW11 and PW14 are the two persons who had reached the place
of incident immediately after the occurrence. They were instantaneously
told by the deceased as to who the assailants were. They have
substantially supported what had been recorded in the FIR which further
stands corroborated by the medical evidence and the statements of other
witnesses. In these circumstances, we cannot discredit the statements of
PW11 and PW14 merely because PW1 has turned hostile. Besides this, in
furtherance to the statements of the accused persons, recovery of the
weapons used in the crime was effected.

11. The dying declaration made by the deceased to PW14 cannot be lost
sight of by the Court. To the rule of inadmissibility of hearsay evidence,
oral dying declaration is an exception. The dying declaration in this case
is reliable, cogent and explains the events that had happned in their
normal course which was not only a mere possibility but leaves no doubt
that such events actually happened as established by the prosecution. Once
there exists reliable, cogent and credible evidence against one of the
accused, the mere acquittal of other accused will not frustrate the case of
the prosecution. Where the High Court, exercising its judicial discretion
ultra-cautiously, acquitted the unnamed accused in the FIR, there the High
Court for valid reasons held the present appellant guilty of the offence.
The High Court had recorded reasons in support of both these conclusions.
[Ref. Krishan Lal v. State of Haryana [(1980) 3 SCC 159].

12. Thus, we find that the present appellant cannot derive any benefit
from the acquittal of the two other accused persons, with which this Court
is not concerned as the State has not preferred any appeal against the
decision of the High Court. Moreover, the case of the prosecution is not
merely based on the dying declaration made by the deceased to PW14 but
there also exist other circumstances which support the view in favour of
guilt of the appellant, i.e., the disclosure made by the appellant and the
consequent recovery of the weapons used in the crime, the statement of
Investigating Officer, PW13, the statement of the doctor, PW5, and, in
fact, the own version of the accused in relation to the incident.

13. In the present case, the accused had led defence before the Trial
Court and examined as many as four witnesses in support thereof. DW4, Head
Constable Manharan Yadav stated that he was posted as a Constable at PS
Kursipur outpost on 14th May, 1999. At about 22:45 hrs., the appellant
Bable @ Gurdeep Singh appeared and reported orally that while he was going
in a drunkard condition behind the Gurdwara, Ishwari met him on the way who
posed to be a dada. He along with Manpreet, who was armed with lathi,
caused injuries to both of his hands, head and then he had come to lodge a
report. In furtherance to this report, the accused was examined by DW1,
Dr. Praveen Chandra Agarwal, who noticed six injuries on the person of the
accused and found that injury Nos.1 to 3 had been caused by some hard and
sharp-edged weapon and injury Nos.4 to 6 were caused by some hard and blunt
weapon and all the injuries were caused within 24 hours. The appellant is
also stated to have been smelling of liquor at that time but was not
intoxicated. Further, injury Nos.2 to 6 were simple in nature and for
injury No.1, X-ray of the skull, was advised but that also was not found to
be grievous. In view of the nature of injuries suffered, the story
advanced by the accused can hardly be believed. Where the deceased
suffered fatal injuries, the accused despite having been assaulted by two
people with lathi and weapon just suffered simple injuries. Thus, the
possibility of the injuries being self-inflicted or having been suffered in
some other way cannot be ruled out.

14. The legislative scheme contained under the provisions of Section 313
of the Code of Criminal Procedure, 1973 (Cr.P.C.) is to put to the accused
all the incriminating material against him and it is equally important to
provide an opportunity to the accused to state his case. It is the option
of the accused whether to remain silent or to provide answer to the
questions asked by the Court. Once the accused opts to give answers and,
in fact, puts forward his own defence or the events as they occurred, then
the accused is bound by such statement and the Court is at liberty to
examine it in light of the evidence produced on record.

15. In the present case, the accused had opted to give an explanation, as
aforenoticed. It was for the accused to satisfy the Court that his
explanation was true and correct. Both the Courts below have concurrently
rejected the explanation offered by the accused. On the contrary, they
have found the said explanation to be factually incorrect. It was for the
prosecution to explain the injuries on the person of the appellant as to
when, how and by whom they were inflicted as also the fact whether they
were inflicted during the occurrence in question or elsewhere? Of course,
the prosecution has not rendered any explanation as to how the appellant
had suffered these injuries but that by itself is not sufficient to believe
that the appellant is innocent and the explanation rendered by him is
established ipso facto. The onus is still on the appellant-accused to
prove that his explanation is correct and in accordance with law. In the
present case, the accused has stated that the deceased was carrying a sword
and when he enquired from him as to why the other persons were quarrelling
with and beating him, the deceased had assaulted him with the sword.
Firstly, if a person is assaulted with a sword, there is hardly any
likelihood of him to suffer injuries of the kind that the appellant had
suffered; secondly, in the FIR, Ext.D-2, which he had got registered, it is
specifically stated that the injuries were caused by lathi by the deceased.
Thus, there is apparent contradiction of serious nature (as to the weapon
used in committing the said assault against the appellant). Thirdly, the
doctor (DW1) who had examined him, in his report had nowhere noticed as to
how the accused had suffered those injuries. Even in his explanation under
Section 313 Cr.P.C., the appellant has not stated that he had consumed
liquor whereas, according to the doctor, the appellant was smelling of
liquor though he was not intoxicated. Lastly, the explanation offered by
the appellant seems to be very unnatural and opposed to normal behavior of
a human being. The appellant claims to be a friend of the deceased and
that he had asked the deceased as to why others were quarrelling with him
and had intended to help the deceased. If that be so, no person, in his
senses, is likely to cause injuries to a well wisher, that too, with a
sword. All these circumstances show that the explanation offered by the
accused is neither plausible nor true.

16. But, because of lodging of FIR, Ext D2, and his statement under
Section 313 of the Cr.P.C., one fact that completely stands established and
is undisputable is that the appellant was present at the place of
occurrence and also that he had a fight with the deceased. Once these two
circumstances are admitted, they fully provide corroboration to the dying
declaration, the statements of PW11 and PW14 as also the other material
evidence led by the prosecution. If the appellant was carrying a sword and
others were carrying lathis, it is not understable as to how could the
deceased suffer as many as 15 injuries including the incised wound,
abrasions, amputation of middle finger from terminal phalages and other
serious injuries and the appellant merely suffered six simple injuries.
This itself belies the stand taken by the appellant. In any case, the
deceased could not have caused injuries to any other person as in
consequence of the assault upon himself, he would have had no strength left
to cause any injury to others. Strangely, the accused denied all other
questions as ‘maloom nahin’ (don’t know) or ‘incorrect’ and gave
explanation which is not worthy of any credence.

17. For the reasons aforestated, we find no merit in the present appeal
and the same is dismissed.
.…................................J.
[Swatanter Kumar]

.…................................J.
[Ranjan Gogoi]
New Delhi;
July 10, 2012.

Section 4 of the Act reads as under: “4. Fixation of Fair Rent. - (1) The Controller shall on application made by the tenant or the landlord of a building and after holding such enquiry as he thinks fit, fix the fair rent for such building in accordance with the principles set out in the following sub-sections: (2) The fair rent for any residential building shall be nine per cent gross return per annum on the total cost of such building. 3) The fair rent for any non-residential building shall be twelve per cent gross return per annum on the total cost of such building. 4) The total cost referred to in sub-section (2) and sub- Section (3) shall consist of the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of anyone or more of the amenities specified in schedule 1 as on the date of application for fixation of fair rent. Provided that while calculating the market value of the site in which the building is constructed, the Controller shall take into account only that portion of the site on which the building is constructed and of a portion upto fifty per cent, thereof of the vacant land, if any, appurtenant to such building the excess portion of the vacant land, being treated as amenity; Provided further that the cost of provision of amenities specified in Schedule 1 shall not exceed- i) in the case of any residential building, fifteen per cent; and ii) in the case of any non-residential building, twenty- five per cent, of the cost of site in which the building is constructed and the cost of construction of the building as determined under this section.” From the principles set out in sub-Sections (2) to (4) of Section 4 it is apparent that market value of the site on which the building is constructed is an important factor to be taken into consideration for fixing the fair rent of the building. 15. Reverting to the facts of this case, we find that the appellants are tenant of three premises of which the respondents are the landlords. Out of the three premises, the first premises is a non-residential building constructed on land bearing D.No.23, T.T.K. Road, Chennai relating to which fair rent has already been determined by the Rent Controller in RCOP NO. 1046 of 1994. In the said case, the Rent Controller (Small Causes Court), Chennai by judgment dated 28.6.1996 determined the market fair rent on accepting the market value of the land at Rs.25 lakhs per ground. Against the said judgment, appeals have been preferred by both the appellant-tenants and the respondent-landlords but no order of stay has been passed by the appellate authority; matter is still pending. With regard to rest two rented premises, the building are situated on the adjacent land bearing D.No. 22, TTK Road, Chennai which are the subject matter of dispute. The mere fact that the appeal filed by appellants and respondents remain pending for disposal for more than 8 years and during the pendency the respondent-landlord filed two petitions under Section 4 of the Act before the Rent Controller, cannot be made a ground to deprive the appellants-tenants of their legitimate right to rely on a market value of adjacent land (D.No. 23, TTK Road, Chennai) already determined by the Rent Controller. Even if the appeals are dismissed by the appellate authority, the market value of the adjacent land as determined will remain Rs. 25 lakhs per ground. In the cases in hand, it was not open to the appellate authority to ignore the market value of the adjacent land already determined on the ground of pendency of an appeal. The High Court failed to appreciate the aforesaid fact though it was a fit case for the High Court to interfere under Article 227 of the Constitution of India. 16. In the result, the appeals are allowed in part; the impugned judgments of the Appellate Authority dated 14.10.2006 as affirmed by the High Court, so far as it relates to “market value of the land” is concerned, are set aside; Appeals, RCOP No. 1393, 1394, 1404 and 1405 of 2004 are remitted to the appellate authority (learned VIIIth Judge, Court of ‘Small Causes Court’, Chennai) for determination of limited issue relating to the market value of the land on which the building premises is situated (D.No. 22, TTK Road, Chennai-18) taking into consideration the evidence on record including Exh.A-4, Exh.A-9 and the market value of the adjacent land as was determined by the Rent Controller in RCOP No. 1046 of 1994, etc., preferably within six months. 17. So far as the findings of the appellate authority with respect to ‘classification of building’, ‘depreciation’, ‘plinth area’, ‘construction charges’ and of basic amenities of the petition building as affirmed by the High Court are not interfered with by this Court and they are upheld. There shall be no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NOs. 5218-22 OF 2012
               (ARISING OUT OF SLP(C) NO.20550-20554 OF 2008)


V.S. KANODIA ETC. ETC.              … APPELLANTS

                             VERSUS

A.L.MUTHU (D) THR. LRS. & ANR.      … RESPONDENTS


                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA,J.


1.    Leave granted.  These appeals have been  preferred  against  a  common
order dated 28th April, 2008 passed by High Court of  Judicature  at  Madras
whereby Revision  Petition  Nos.  323,  324,  615,  616  and  3347  of  2007
preferred by appellant were dismissed.
2.    The appellants are tenant whereas  respondents  are  the  landlord  of
tenanted  building.   Initially,  the  dispute  related  to  non-residential
premises situated in  Chennai,  namely,  (i)  2nd  and  3rd  floors  of  the
building at D.No.23,  TTK  Road,  (Mowbray’s  Road),  Chennai,  (hereinafter
referred to as 1st property)   (ii)  2nd  floor  of   the   front  and  rear
building  at  22,  TTK  Road,  (Mowbray’s  Road),  Chennai-18   (hereinafter
referred to as the 2nd property) and (iii) ground floor  of  the  front  and
rear and 1st floor rear of the building at 22, TTK Road,  (Mowbray’s  Road),
Chennai-18 (hereinafter referred to as  the  3rd   property)  but  in  these
appeals, we are concerned with the rent fixed in  respect  to  2nd  and  3rd
property situated at 22, TTK Road, (Mowbray’s Road), Chennai-18
3.    In respect of  1st  property  at  D.No.23,  TTK  Road,  Chennai,   the
contractual  rent was Rs. 6210/- per  month,  which  was  increased  to  Rs.
18,847/- by  an order passed by Small Causes Court, Chennai on 28.6.1996  in
RCOP NO.; 1046 of 1994 in a  petition  filed  by  respondent-landlord  under
Section 4 of the  Tamil Nadu Buildings Lease and Rent  (Control)  Act,  1960
(hereinafter referred to as the Act). In the said  case,  for  determination
of fair rent, market value of the  land  was  assessed  @  Rs.25  lakhs  per
ground. The  appellant-tenant has preferred  an   appeal  against  the  said
order in  RCA  No.  557/2004  and  another  appeal  has  been  preferred  by
respondent-landlord in RCA No. 1196/1996  before the Rent Control  Appellate
Authority (Small  Causes Court) Chennai.
4.    In respect of 2nd  and  3rd   property  situated  at   22,  TTK  Road,
Chennai-18,  the respondent-landlord  filed  two  separate  petitions  under
Section 4 of the Act  for  fixing the monthly rent of  respective  portions,
registered as RCOP No. 1176  and  1177/1997.   After  hearing  the  parties,
those petitions were determined by Rent Controller by a common judgment  and
decree dated 28.9.2004 whereby fair monthly rent  of   the  properties  were
fixed  at Rs. 46,422/- and  Rs.95,220/-   respectively,  after  taking  into
consideration the market value of land @ Rs.50 lakhs per ground.
5.    Against the aforesaid common judgment,  both  the  respondent-landlord
and appellant-tenant preferred appeals in  RCA No.   1393,  1394,  1404  and
1405 of 2004.   After taking into consideration the  relevant  evidence  and
submission of  parties,  by a common  order and  judgment  dated  14.10.2006
the appellate authority, (8th Judge) Small Causes Court, Chennai  fixed  the
monthly rent at Rs. 58,329/- and Rs. 1,21,877/- respectively,  allowing  the
appeal preferred  by  landlord  and  dismissing  the  appeals  preferred  by
tenant.  The rent was fixed on the basis of valuation of land @ Rs.65  lakhs
per  ground.   Against  the  aforesaid  order,    the   Revision   petitions
preferred  by  appellant-tenant  were  dismissed  by  the  impugned   common
judgment dated 28.4. 2008.
6.    Before the Courts below, the respondent-landlord took  plea  that  the
appellant-tenant  had been on the front portion of the ground floor for   43
years and  in the rear side portion of the ground floor  and  also   at  the
rear side portion of the  1st  floor and   rear  side  portion  of  the  2nd
floor for the past 17 years and in the front portion for the past 16  years.
  The petition building comes under Class I  building  with  R.C.C.  roofing
and all the three basic amenities are available.  The  plinth  area  of  the
front portion of  the ground floor is 1719 sq. ft., and  the  rear   portion
is 1766 sq. ft. and the lumber portion is 341 sq. ft.,  latrine  portion  is
136 sq.ft., G.I. Sheet portion is 300 sq. ft. and on  the  1st   floor  rear
side portion is 1766 sq. ft.,  Latrine portion is 121 sq.  ft.  and  on  the
2nd floor the front portion is 1800 sq. ft. and the  rear  portion  is  1766
sq. ft. and that the plinth area of the latrine  portion  is  121  sq.  ft..
Furthermore, the petition building is situated  at  a  very   important  and
busy business area being Mylapore and, therefore, the value  of  the  ground
site per ground will be Rs.75 lakhs.   Hence, prayer was  made  to  fix  the
monthly fair rent of the petition  building  at  Rs.77,706  and  Rs.1,54,126
respectively.
7.    The   appellant-tenant  on  appearance,   denied  that  the   petition
building is a Class I building and also denied the age of  the  building  as
mentioned by  the  respondent-landlord.   According  to  them,  age  of  the
petition building as per their engineer was more  than  55  years;  and  the
measurement  of  basic  amenities  as  shown  in  the  petition  were   also
incorrect.  They alleged that basic amenities  were  not  available  in  the
petition building as was claimed by the landlord.  The value of  the  ground
site mentioned in the petition was also disputed  as  excessive.   According
to them, the  petition  building  is  situated  in  Bishop  Wallers  Avenue,
therefore, the value of  the  ground  site  cannot  exceed  Rs.10  lakh  per
ground.    Hence, it was submitted that the monthly fair calculated  in  the
petition was very excessive and, therefore,  the petition  under  Section  4
of the Act be dismissed.
8.    The  Rent Controller as well as Appellate Authority after hearing  the
parties decided  the disputes  relating  to  ‘Classification  of  building’,
‘Plinth area’, ‘Construction  charges’,  ‘Value  of  the  ground  site’  and
‘Basic amenities’.  There  is  a   concurrent  findings  that  the  petition
building is a Class-I building and the age of the  petition  building  being
16,17 and 45 years respectively, therefore, the depreciation was  calculated
at 1 per cent for 16, 17 and 45 years.  The  plinth  area  was  accepted  as
mentioned by the engineers on behalf of  the  landlord for  the  purpose  of
determination of fair rent.  Similarly,   there  is  a  concurrent  findings
with regard to construction charges and basic amenities. The   engineers  of
both  the  parties  had  admitted  that   all  three  basic  amenities  were
available in the  petition building and accordingly the  engineers  for  the
landlord  had fixed  at 20 per cent and the engineers for  the  tenant   had
allotted 10 per cent  but  the  trial  court  and  the  Appellate  Authority
accepted 15 per cent for determination of basic amenities.
9.    So  far  as  “value  of  the  ground  site”  is  concerned,    parties
exhibited their respective evidence which were noticed  by  Rent  Controller
and  the  Appellate  Authority.    The  respondent-landlord   produced   the
evidence to  claim the value of the ground site  at more than  1  crore  per
ground and in support of   which   a  sale  deed  No.  99/88  dated  9.12.97
pertaining to door no. 241/1,  T.T.K.  Road  Extention,  Ambujammal  Street,
Alwarpet, Chennai-18  was filed as Exhibit A4.  It was also brought  to  the
notice of the Authority that an extent of 470 sq. ft. of land had been  sold
for Rs. 14,00,000/- and on that basis the value per ground is Rs.71,48,936/-
 and that the  petition   mentioned  building  is  situated  very  near   to
Radhakrishnan Road but the property pertaining to Exhibit A4 is situated  at
 a distance of 2 and ½  furlong from   the petition mentioned building  and,
therefore, in the classification report Exhibit  A9,  the  ground  site  per
ground had been calculated at Rs.1 crore. The R.W.2, engineer on  behalf  of
the tenant in  his Examination in Chief had mentioned that the  ground  site
where the petition mentioned building  is  situated  is  not  owned  by  the
Petitioner as conveyed by the tenant and, therefore, for the calculation  of
the monthly fair rent the value of the ground site had not been  taken  into
account, no sale document had been filed  on  behalf  of  the  tenant.   The
R.W.2, in his cross examination had mentioned that  the  petition  mentioned
building is  situated on the TTK Road and near the   junction  of  Cathedral
Road and Radhakrishnan Road.  There is a Church near the petition  mentioned
building and  ‘Woodland Hotel’  is  situated  at  a  distance  of  1  and  ½
furlongs from the  petition mentioned building and opposite to it  there  is
a hotel known as ‘Mowbrays Inn’.   Further, on  the  opposite  site  of  the
‘Woodland Hotel’, St. Abbas School is situated. The Nilgiris Supermarket  is
situated at a little distance from it and a  Music  Academy  is  also  there
near the petition mentioned property.  It  was  further  mentioned  that  no
document had been perused for the valuation of the ground site.  Hence,  the
argument advanced that the petition mentioned building is  situated  on  the
T.T.K. main road but  the entrance pertaining to the tenant is  through  the
Biship lane was not accepted both by the  Rent Controller and the  Appellate
Authority.
10.   On behalf of the appellant-tenant, it was brought  to  the  notice  of
both the Rent Controller and the Appellate Authority that  another  petition
under Section 4 was filed  by  respondent-landlord  against  the  appellant-
tenant for fixation  of  monthly  fair  rent  pertaining  to  1st   property
situated adjacent to the disputed 2nd and 3rd property. In  the  said  case,
the rent has been fixed taking into consideration the valuation  of  rent  @
Rs.25 lakhs per ground.  Therefore,  it  was  pleaded  that  same  valuation
should be taken for determination   of  the  present  cases.  The  Appellate
Authority refused to notice the  valuation as determined in respect  of  1st
property with following observation:

           “Since it had been admitted by both the parties that  the appeal
           filed against the aforesaid order is still pending and in such a
           circumstance since it cannot be considered  that  the  aforesaid
           order had reached the  final stage  and,  therefore,  the  trial
           court having decided that it will not be  justifiable  to   take
           into account the aforesaid valuation seems  to  be  correct  and
           decided accordingly.”




11.   In this case, the main grievance of the appellant-tenant is  that  the
valuation of land as was determined in respect of  1st  property  @  Rs.25/-
lakhs per ground  but  same  has  not  been  taken  into  consideration  for
determination of the  fair rent of the petition building.
12.   Per contra, according to learned counsel for the  respondent-landlord,
the Appellate Authority has determined the market value of the land @  Rs.65
lakhs per  ground  taking  into  consideration  the  classification  report,
Exhibit A-9, Exhibit A-4, etc., which  are  the  recent  market  value  and,
therefore, the High Court rightly refused to  sit in appeal over  a  finding
of fact.

13.   We have heard learned counsel for the parties and perused the record.
14.   Section 4 of the Act reads as under:
            “4.  Fixation of Fair Rent. -
           (1) The Controller shall on application made by  the  tenant  or
           the landlord  of a building and after holding such enquiry as he
           thinks fit, fix the fair rent for such  building  in  accordance
           with the principles set out in the following sub-sections:


           (2)  The fair rent for any residential building  shall  be  nine
           per cent gross return per  annum  on  the  total  cost  of  such
           building.


            3) The fair rent for  any  non-residential  building  shall  be
               twelve per cent gross return per annum on the total cost  of
               such building.


             4) The total cost referred to in  sub-section   (2)   and  sub-
                Section (3) shall consist of the market value of the site in
                which the building is constructed,  the cost of construction
                of the building and the cost of provision of anyone or  more
                of the amenities specified in schedule 1 as on the  date  of
                application for fixation of fair rent.

                Provided that while calculating  the  market  value  of  the
                site in which the building is constructed,   the  Controller
                shall take into account only that portion  of  the  site  on
                which the building is constructed  and  of  a  portion  upto
                fifty  per cent,   thereof  of  the  vacant  land,  if  any,
                appurtenant to such  building  the  excess  portion  of  the
                vacant land, being treated as amenity;


                Provided further that the cost  of  provision  of  amenities
                specified in Schedule  1 shall not exceed-


                  i) in the case of any residential building,  fifteen  per
                     cent; and
                 ii) in the case of any non-residential  building,  twenty-
                     five per cent,


                of the cost of site in which the building is constructed and
                the cost of construction of the building as determined under
                this section.”




      From the principles set out in sub-Sections (2) to (4)  of  Section  4
it is apparent that market value of  the  site  on  which  the  building  is
constructed is an important  factor  to  be  taken  into  consideration  for
fixing the fair rent of the building.
15.   Reverting to the facts of this case, we find that the  appellants  are
tenant of three premises of which the respondents are  the  landlords.   Out
of the three premises, the first  premises  is  a  non-residential  building
constructed on land  bearing D.No.23,  T.T.K.   Road,  Chennai  relating  to
which fair rent has already been determined by the Rent Controller  in  RCOP
NO. 1046 of 1994.  In the said  case,  the  Rent  Controller  (Small  Causes
Court), Chennai by judgment dated 28.6.1996 determined the market fair  rent
on accepting the market value  of  the  land  at  Rs.25  lakhs  per  ground.
Against  the  said  judgment,  appeals  have  been  preferred  by  both  the
appellant-tenants and the  respondent-landlords but no order  of  stay   has
been passed by the appellate authority;  matter  is  still   pending.   With
regard to rest two  rented  premises,  the  building  are  situated  on  the
adjacent land bearing D.No. 22, TTK Road, Chennai  which   are  the  subject
matter of dispute.  The mere fact that the  appeal filed by  appellants  and
respondents remain pending for disposal for more than  8  years  and  during
the pendency the respondent-landlord filed two petitions under Section 4  of
the Act before the Rent Controller, cannot be made a ground to  deprive  the
appellants-tenants of their legitimate right to rely on a  market  value  of
adjacent land (D.No. 23, TTK Road, Chennai) already determined by  the  Rent
Controller.  Even if the appeals are dismissed by the  appellate  authority,
the market value of the adjacent land  as  determined  will  remain  Rs.  25
lakhs per ground.   In the cases in hand, it was not open to  the  appellate
authority  to  ignore  the  market  value  of   the  adjacent  land  already
determined on the ground of pendency of an appeal.  The  High  Court  failed
to appreciate the aforesaid fact though it was  a  fit  case  for  the  High
Court to interfere under Article 227 of the Constitution of India.

 16.  In  the  result,  the  appeals  are  allowed  in  part;  the  impugned
judgments of  the Appellate Authority  dated 14.10.2006 as affirmed  by  the
High Court, so  far  as  it  relates  to  “market  value  of  the  land”  is
concerned, are set aside;  Appeals, RCOP No. 1393, 1394, 1404  and  1405  of
2004 are remitted to the appellate authority (learned  VIIIth  Judge,  Court
of ‘Small Causes Court’,  Chennai)    for  determination  of  limited  issue
relating to the market value of the land  on which the building premises  is
situated (D.No. 22, TTK Road,  Chennai-18)  taking  into  consideration  the
evidence on record including Exh.A-4, Exh.A-9 and the market  value  of  the
adjacent land as was determined by the Rent Controller in RCOP No.  1046  of
1994, etc., preferably within six months.

17.   So far as the findings of the appellate  authority  with  respect   to
‘classification of building’,  ‘depreciation’, ‘plinth area’,  ‘construction
charges’ and of basic amenities of the petition building as affirmed by  the
High Court are not interfered with  by  this  Court  and  they  are  upheld.
There shall be no order as to costs.

                                                       ……………………………………………….J.
                                 ( G.S. SINGHVI )




                                                       ……………………………………………….J.
                             (SUDHANSU JYOTI MUKHOPADHAYA)


NEW DELHI,
JULY 16, 2012.
-----------------------
16

The marks VISCO & VISCOF, if the letter “F“ is slurred that would be “VISCO”. If it is prescribed and the VISCO is written by a physician just by a line stretched then it would be read as VISCOF. Normally customers go by the prescription and purchase medicines. There is every possibility of confusion being caused. 13. In an application for registration the onus is on the applicant to prove that the mark deserves to be registered. The appellant has failed to prove the same. The registration of the trade mark therefore has to be rejected under Section 11 of the Act. 14. There is no dispute as to the use of the mark by the respondents since the year 1987. The appellants though claim use since 2002, in the application for registration they have given sales figures since 2000-2001 which is a contradictory statement. Even assuming the appellants had been using since the year 2000, the respondents are senior in use. 15. Having given all the findings in favour of the respondents, we do not think it proper to interfere in the impugned order. Accordingly, the appeal OA/46/2009/TM/AMD is dismissed with no order as to costs.

INTELLECTUAL PROPERTY APPELLATE BOARD

Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018

(CIRCUIT SITTING AT AHMEDABAD)

OA/46/2009/TM/AMD

 MONDAY, THIS THE 25^th DAY OF JUNE, 2012

Hon’ble Ms.S. Usha                                                       …  Vice Chairman 

Hon’ble Shri V. Ravi                                                      …  Technical Member

                                                                                               

M/s. Tauras Laboratories Pvt. Ltd.

8, Ruchi Apartments, B/h City Centre,

Near Swastik Cross Road,

C.G. Road, Navrangpura,

Ahmedabad-380009.                                                         … Appellant

(By Advocate:  Shri Akshay Vakil)

Vs

1.         M/s. Aristo Pharmaceuticals Ltd.,

            Mercantile Chambers

            3^rd Floor, 12 H.N. Heredia Marg

            Ballard Estate

            Mumbai, Maharashtra.                                      … Respondent No.1

2.         The Registrar of Trade Marks

            Office of the Trade Marks Registry

            through their office at

            15/27, National Chambers

            Ashram Road

            Ahmedabad.                                                     … Respondent No.2

                                   

                                               

                                               

          (By Advocate:  Shri Harshil Shah)

ORDER(No.170/2012)

Hon’ble Ms.S. Usha, Vice-Chairman:

            Appeal arising out of the order dated 24.3.2009 passed by the Deputy Registrar of Trade Marks allowing the opposition No.AMD-185126 and refusing the application No.1159172 in Class 5 to proceed to registration under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the ‘Act’).

2.         The appellant filed an application under No.1159172 in Class 5 on 17.12.2002 claiming user since 20.9.2002. The said application was advertised in the Trade Marks Journal No.1320 dated 1.6.2004 at page No.1926. This was made available to the public on 19.10.2004. The notice of opposition was on various grounds like the registration would be in contravention of Sections 9(1)(a), 9(2)(a), 11(1)(a), 11(1)(b), 11(2)(a) & (b), 12 and 18(1) of the Act. The opposition was also based on the ground that the opponents were already the registered proprietors of the trade mark VISCO. The impugned mark namely VISCOF-DP is similar to their registered trade mark which would definitely cause confusion among the consuming public.

3.         The applicant filed their counter statement before the Trade Marks Registrar stating that the marks were totally different and the possibility of confusion was too remote and that the mark may be accepted for registration.

4.         The Deputy Registrar heard the matter and held that the opponent’s objection under Section 9 was sustainable and the applicant failed to produce any evidence to support their claim of use in Class 5 goods and as such had not satisfied the distinctiveness of the mark. The overall similarity of the rival marks if looked into would definitely mislead a person who is not dealing with medicinal goods and therefore the confusion was inevitable and therefore the objection under Section 11 of the Act was sustained. The objection under Section 18(1) of the Act was based on the ground that the opponents are the registered proprietors of the trade mark VISCO and therefore the applicant’s adoption was not honest and they cannot be the proprietors of the trade mark VISCOF-DP.  There was no proof filed by the applicant to place on record that they had conducted the market survey and found no identical/similar marks available in the market. The Registrar therefore held that the opposition be allowed and the applicant be refused registration.  Aggrieved by the said order, the appellant filed the appeal.

5.         We have heard Shri Akshay Vakil, Counsel for the appellant and Shri Harshil Shah, Counsel for the respondent.

6.         The learned Counsel for the appellant submitted that the application for registration of the impugned trade mark was filed on 17.12.2002 claiming user since 20.09.2002 and by a short period of time the appellant’s mark had acquired goodwill and reputation among the trade and public. The trade mark is VISCOF DP. The opponents/respondents trade mark is VISCO.

7.         The Counsel then submitted that the Registrar’s finding that the trade mark registration would be against the provisions of Sections 11 and 18 of the Act was not valid and legal.  The Counsel submitted the rivals marks were totally different and there was no possibility of confusion and deception.  The Counsel then relied on the judgment reported in 2004 (29) PTC 488 (IPAB) – Sandoz Limited, Appellant Vs. Hico Products & Ors., Respondents and submitted that the marks in that case were “DERMASOFT” and “DERMAGEN” where it was held that the suffix words takes a lead in finding the distinctiveness and that the words “SOFT” and “GEN” can be neither visually same nor phonetically identical.

8.         The learned Counsel for the respondents submitted that there is no evidence of their use. The adoption is dishonest. They do not satisfy the provisions of Section 12 of the Act.  Though the appellants claim user since 2002 there is no proof of use whereas the respondents have been using the trade mark “VISCO” since the year 1987.  The letters “DP” in the trade mark “VISCOF DP” is disclaimed and therefore the additional letters cannot be considered.

9.         The Counsel relied on few judgments in support of their case –

           

(i)         2012 (49) PTC 485 (IPAB) – Manish Masala Food Products, Applicants Vs. Radha Sarveshwar & Co. & Ors., Respondents - This is a case of rectification. In this case, the registration was cancelled as the proprietor had obtained registration by stating false date of user.

In the case on hand, the application was made claiming user since 2002 whereas in the affidavit of user filed before the Registrar at the acceptance stage, the appellant has claimed user since 2000 and sales figure for that period has been given which is a misstatement.

(ii)                     2007 (34) PTC 151 (IPAB) – Baroda Pharma Pvt. Ltd., Appellant Vs. Zeneca Limited & Others., Respondents and

(iii)                   TA/51/2003/TM/MUM (M.P.No.23 of 1990) (IPAB) – The Himalaya Drug Company, Appellant Vs. Lalitkumar Ratilal Fozdar & Ors. Respondents

These were relied on for the submission that though the suffix is different, the possibility of confusion was likely to occur.  Especially in medicinal products more care is to be taken to decide the issue of similarity.

(iv)                    2002 (25) PTC 398 (Guj) (DB)  -  Pravinbhai Jagjivandas Mehta, Petitioner Vs. Officine Lovato S.P.A., Respondent   

When the discretion has been shown to have been exercised arbitrarily the appellate Court ought not to interfere.

(v)                      2008 (36) PTC 478 (Bom) – Wyeth Holdings Corporation & Anr., Plaintiffs Vs. Burnet Pharmaceuticals (Pvt.) Ltd., Defendantand

(vi)              PTC (Suppl.) (2) 656(Mad) – Hindustan Lever Limited, Appellant Vs. Radha Products, Respondent

In order to decide the issue of deceptive similarity the marks have to be compared as a whole.

10.       We have considered the arguments of both the Counsel.

11.       The main issue that arises for consideration is that whether the marks are similar. The goods being medicinal products more care is to be taken to decide the same. In the case on hand the marks are VISCO & VISCOF DP. The appellant’s goods are for treatment of cough whereas the respondent’s goods are for treatment of gastric acidity. The ailments are different.  If one is taken for the other it would definitely cause bad effects. It has been held by various Courts that if by wrong pronounciation one consumes a medicine for the other then the injury is serious which cannot be compensated in terms of money.

12.       The marks VISCO & VISCOF, if the letter “F“ is slurred that would be “VISCO”.  If it is prescribed and the VISCO is written by a physician  just by a line stretched then it would be read as VISCOF. Normally customers go by the prescription and purchase medicines. There is every possibility of confusion being caused.

13.       In an application for registration the onus is on the applicant to prove that the mark deserves to be registered. The appellant has failed to prove the same. The registration of the trade mark therefore has to be rejected under Section 11 of the Act.

14.       There is no dispute as to the use of the mark by the respondents since the year 1987. The appellants though claim use since 2002, in the application for registration they have given sales figures since 2000-2001 which is a contradictory statement. Even assuming the appellants had been using since the year 2000, the respondents are senior in use.

           

15.       Having given all the findings in favour of the respondents, we do not think it proper to interfere in the impugned order. Accordingly, the appeal OA/46/2009/TM/AMD is dismissed with no order as to costs.

(V. Ravi)                                                                                       (S. Usha)

Technical Member                                                                      Vice-Chairman

(This order is being published for present information and should not be taken as a certified copy issued by the Board.)