whether a post-acquisition allottee of land is necessary or proper party or has any locus to be heard in the matter of determination of compensation under the scheme of the Land Acquisition Act, 1894 (the Act). If not, whether the impugned order permitting additional evidence and directing remand is sustainable.= Accordingly, we hold that the post-acquisition allottee has no locus to be heard in the matter and is neither a necessary nor a proper party. 19. The other part of the impugned order permitting additional evidence and remanding the case for fresh decision is uncalled for. No case was made out for permitting additional evidence on settled principles under Order XLI Rule 27 of CPC. The provision is reproduced below:- “27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if – (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, The Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 20. It is clear that neither the Trial Court has refused to receive the evidence nor it could be said that the evidence sought to be adduced was not available despite the exercise of due diligence nor it could be held to necessary to pronounce the judgment. Additional evidence cannot be permitted to fill-in the lacunae or to patch-up the weak points in the case[17]. There was no ground for remand in these circumstances.

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                     CIVIL APPEAL NOs. 1587-1636 OF 2017



SATISH KUMAR GUPTA ETC. ETC.                 …APPELLANTS

                                   VERSUS

STATE OF HARYANA  &  ORS. ETC.                          ...RESPONDENTS


                                    WITH

CIVIL APPEAL NOs.1637 OF 2017, 1638-1653 OF 2017, 1655-1658 OF  2017,  1659-
1663 OF 2017, 1664 OF 2017, 1665-1669 OF  2017,  1670-1675  OF  2017,  1677-
1691OF 2017, 1692 OF 2017, 1693 of 2017, 1694 of 2017, 1695  OF  2017,  1696
OF 2017, 1699-1701 OF 2017, 1702 OF 2017, 1703-1780 OF  2017,  1783-1852  OF
2017, 1853-1927 OF 2017, 1930-2003 OF 2017, 2004-2058 OF 2017, 2059-2111  OF
2017, 2112-2114 OF 2017,  2117-2118 OF 2017, 2123-2126  OF  2017,  2127-2128
OF 2017, 2129-2132 OF 2017, 2133-2138 OF 2017,   2139-2143  OF  2017,  2144-
2145 OF 2017, 2146-2200 OF 2017, 2201-2203 of 2017,   2204  of  2017,  2205-
2206 OF 2017, 2207-2214 OF 2017, 2215-2219 OF 2017, 2220 OF 2017,  2221-2223
OF 2017, 2224 OF 2017, 2226-2227 OF 2017, 2228 OF 2017,  2232-2246  OF  2017
AND 2249-2279 OF 2017.


                               J U D G M E N T


ADARSH KUMAR GOEL, J.


1.    These appeals have been preferred against  judgment  and  order  dated
06th October, 2015 passed by  the  High  Court  of  Punjab  and  Haryana  at
Chandigarh in R.F. A. Nos.4316 of 2010 etc. etc.


2.    Question for consideration is whether a post-acquisition  allottee  of
land is necessary or proper party or has  any  locus  to  be  heard  in  the
matter of determination  of  compensation  under  the  scheme  of  the  Land
Acquisition Act, 1894  (the  Act).   If  not,  whether  the  impugned  order
permitting additional evidence and directing remand is sustainable.


3.    Facts giving rise to the question may be briefly noted.   Huge  chunks
of land were acquired by the State of Haryana in different  phases  for  the
public purpose of setting-up Industrial Model Township by the Haryana  State
Industrial Development Corporation (HSIDC) in Gurgaon District  in  Haryana.
Substantial part of the acquired land was allotted by the  HSIDC  to  Maruti
Suzuki India Limited (MSIL). One of  the  clauses  in  the  Conveyance  Deed
executed in favour  of  the  allottee  provided  that  if  compensation  was
enhanced, the allottee shall be liable  to  pay  additional  price  on  that
basis.  In HSIDC v. Pran Sukh[1], issue of compensation  for  land  acquired
in Phase I was decided by this Court.  Review  Petitions  against  the  said
judgment were dealt with in HSIDC v. Mawasi[2] and HSIDC  v.  Pran  Sukh[3].
Matter of determining compensation in respect of  Phase  II  and  Phase  III
came-up for consideration in HSIDC v. Udal[4].  As noticed  in  judgment  of
this Court in Udal (supra), the Reference Court awarded compensation in  the
light of compensation determined in the judgment of this Court in Pran  Sukh
(supra) and other awards relating to land acquired for Phase  III.   Against
the decision of the Reference Court, the land owners as well  as  the  HSIDC
filed appeals under Section 54 of the Act.   The  High  Court  assessed  the
compensation  based  on  judgment  of  this  Court  in  Pran  Sukh  (supra).
Reference to paras 29 to 33 of the  judgment  of  this  Court  Udal  (supra)
shows that after referring  to  the  plea  of  the  HSIDC  that  the  annual
increase of 12%  for  the  time  gap  was  erroneous  in  view  of  ONGC  v.
Rameshbhai Jivanbhai Patel[5] and Valliyammal v. Special Tehsildar  (LA)[6],
this Court found  merit  in  the  arguments  of  the  land  owners  that  an
important piece of evidence was not taken into  account  which  necessitated
remand.  The matter was remanded to the High Court for  fresh  disposal  and
it was also observed that MSIL was free to file an  appropriate  application
for its impleadment or for leave to act as intervenor.


4.    Thereafter, the matter was  dealt  with  by  the  High  Court  in  the
impugned judgment.  The High Court held that the allottee had a right to  be
impleaded as a party for the following reasons:


      a)    The State or the local authority for whose benefit the  land  is
acquired may not lead proper evidence or advance effective arguments.


      b)     A clause in the deed of allotment in  favour  of  the  allottee
provides for payment of additional price as a consequence of enhancement  of
compensation.


      c)     As a result of enhancement of  compensation  by  the  Reference
Court, the company in question was required to pay about Rs.900 crores.


      d)    Under Order 1 Rule 10(2) CPC the  Court  can  add  or  delete  a
party at any stage.


      e)    Section 50 of the Act provides a right to a local  authority  or
a company for whose benefit the land is acquired to  be  represented  before
the Collector or the Court in the process of determination of  compensation.



f)    The principle behind giving the right of  representation  to  a  local
authority or a company for whose benefit the land is acquired  can  also  be
applied to any person  who  is  liable  to  pay  the  enhanced  compensation
treating such person to be the “person interested”  under  Section  3(b)  of
the Act.


5.    After permitting the allottee to be impleaded as  a  party,  the  High
Court also allowed application to lead additional  evidence  on  the  ground
that the acquiring authority did not  defend  the  case  properly.   Similar
application filed by the HSIDC to lead additional evidence was also  allowed
and, thereafter, on considering the  additional  evidence  it  was  observed
that it was not possible for the High Court to assess  the  compensation  as
there was no site plan showing the location of the transactions relied.   It
was also considered necessary to  give  an  opportunity  to  MSIL,  who  was
impleaded for the first time.  On that basis the matter was remanded to  the
Reference Court for fresh decision.


6.    Aggrieved by the order of the  High  Court  these  appeals  have  been
preferred.  Contentions of the appellants are as follows:


i)    The post-acquisition allottee had no right to be heard in  the  matter
of compensation.  Reliance has been placed on Hindu  Kanya  Maha  Vidyalaya,
Jind and anr.  v. Municipal  Committee,  Jind  and  ors.[7];  Haryana  State
Industrial Development Corporation  v.  Pran  Sukh  and  ors.  (supra)  and;
Peerappa Hanmantha Harijan (Dead) by  legal  representatives  and  ors.   v.
State of Karnataka and anr.[8]


ii) Applications for impleadment have been filed by MSIL 12 years after  the
acquisition and applications for additional evidence were also  filed  after
a long delay and for the first time after remand by this Court, which  could
not be considered within the scope of Order XLI Rule 27 of CPC.


(iii) Application for additional evidence was rejected by this Court in  the
earlier round.  The remand  by  this  Court  was  limited  to  the  question
whether there was a need for further enhancement in the  light  of  evidence
which was not earlier considered.


7.    On the other hand, learned counsel for the MSIL as well as  the  HSIDC
and other allottees have supported the impugned judgment.  They submit  that
since allottees have to pay the enhanced  compensation,  they  ought  to  be
treated as “person interested” under Section 3 (b) of  the  Act.    Reliance
has been placed on judgments of this Court in  Himalayan  Tiles  and  Marble
(P) Ltd.   v.   Francis  Victor Coutinho (Dead) by Lrs. [9];  Santosh  Kumar
and ors.  v.  Central Warehousing Corporation and anr.[10]; Neyvely  Lignite
Corporation Ltd.  v.  Special Tahsildar  (Land Acquisition)    Neyvely   and
Ors.[11] and; U.P. Awas Evam Vikas Parishad  v.  Gyan Devi  (Dead)  by  Lrs.
and Ors.  [12].


8.    We have given our due consideration to the rival submissions.


9.    To determine the question whether  the  post-acquisition  allottee  of
land is necessary or proper party or has  any  locus  to  be  heard  in  the
matter of determination of compensation, we may refer to the scheme  of  the
Act.  The acquisition may either be for a “public purpose” as defined  under
Section 3(f)  or  for  a  company  under  Part-VII  of  the  Act.   If   the
acquisition is for a public purpose (as the present case),  the  land  vests
in the State after the Collector  makes  an  award  and  the  possession  is
taken.   Till the award is made, no person other than State comes  into  the
picture.  Once the land vests in the State,  the  acquisition  is  complete.
Any transferee  from  the  State  is  not  concerned  with  the  process  of
acquisition.  The State may transfer  the  land  by  public  auction  or  by
allotment at any price with which the person whose land is acquired  has  no
concern.  The mere  fact  that  the  Government  chooses  to  determine  the
allotment price with reference  to  compensation  price  determined  by  the
Court does not provide any locus to an allottee to  contest  the  claim  for
enhancement of compensation.


10.   This legal position is well  settled  on  principle  as  well  as  the
precedent.  In Hindu Kanya Maha Vidyalaya (supra)  it was observed:

“3. … … …Indisputably the land in dispute was not acquired for  the  purpose
of appellants instead the land was acquired for the Municipal Committee  for
the purpose of developing its Scheme No. 5. After the declaration  of  award
Municipal Committee took possession of the land and  thereafter  transferred
a portion of the same  to  the  appellants  under  an  agreement.  In  these
circumstances the ratio laid down by this Court in Himalayan Tiles &  Marble
(P) Ltd. v. Francis Victor Countinho [(1980) 3 SCC 223] does  not  apply  as
the appellants are  not  interested  persons  and  they  have  no  right  to
question the award. … … …”

11.    Again,  in  Peerappa  Hanmantha  (supra)  inter  alia  the  following
questions were framed for consideration.
“30.1. (i) Whether the allottee Company (M/s. Ultra  Tech  Cement  Ltd.)  is
either a beneficiary  or  interested  person  entitled  for  hearing  before
determination of the market value to award just and reasonable  compensation
in respect of the acquired land of the appellants either before  the  Deputy
Commissioner or Reference Court?

 (ii) Whether the writ petition filed by the  allottee  Company  before  the
High Court is maintainable in law?

(iii) Whether the  order  of  remand  allowing  the  writ  petition  of  the
allottee Company to the Reference Court is legal and valid?”


12.   The above questions were answered as follows:

“63. In view of the foregoing reasons recorded by us on  the  basis  of  the
acquisition  notifications  issued  by  the  State  Government   under   the
statutory provisions of the KIAD  Act  and  therefore,  we  have  to  answer
Points (i), (ii) and (iii) in favour of  the  landowners  holding  that  the
Company is neither the beneficiary nor interested  person  of  the  acquired
land, hence, it has no right to participate in  the  award  proceedings  for
determination of the market value and award the compensation amount  of  the
acquired land of the appellants. Hence,  the  writ  petition  filed  by  the
Company questioning the correctness of the award  passed  by  the  Reference
Court which is affirmed by the High Court is  not  at  all  maintainable  in
law. On this ground itself, the writ petition filed by  the  Company  should
have been rejected by the High Court, instead it has  allowed  and  remanded
the case to the Reference Court for  reconsideration  of  the  claims  after
affording opportunity to the Company, which order suffers from error in  law
and therefore, the same is liable to be set aside.”

13.   Judgments in U.P. Awas Evam Vikas Parishad  (supra),  Himalayan  Tiles
(supra) and P. Narayanappa and anr.  v.  State of Karnataka and ors.[13]  as
mentioned in para 61 of the judgment  in  Peerappa  Hanmantha  (supra)  were
held to be not applicable as the same applied only when the  acquisition  is
for a company or for the beneficiary of the acquisition as mentioned in  the
notification for acquisition itself.  This is clear from the following:

“61. Further, both the learned Senior Counsel on behalf  of  KIADB  and  the
Company have placed reliance on various decisions rendered by this Court  in
support of their above respective legal submissions that the Company  is  an
interested person and, therefore, it has got right  to  participate  in  the
proceedings before the Reference Court  for  determination  of  compensation
before passing the award either by  the  Land  Acquisition  Officer  or  the
Deputy Commissioner or the Reference Court at the instance of the  owner  or
any other interested person. These include judgments rendered by this  Court
in U.P. Awas Evam Vikas Parishad v. Gyan Devi, Himalayan  Tiles  and  Marble
(P) Ltd.  v.  Francis  Victor  Coutinho  and  P.  Narayanappa  v.  State  of
Karnataka and other decisions which are not  required  to  be  mentioned  in
this judgment as they are all reiteration of the law laid down in the  above
cases.

62. The reliance placed on the various decisions of this Court by  both  the
learned Senior Counsel on behalf of KIADB and the Company, is  misplaced  as
none of the said judgments relied upon are applicable to the fact  situation
in the present case for the reason that those cases dealt with reference  to
the acquisition of land under the  provisions  of  the  LA  Act,  either  in
favour of the company or development authorities, whereas  in  the  case  on
hand, the acquisition proceedings have been initiated  under  the  KIAD  Act
for industrial development  by  KIADB.  Further,  the  original  acquisition
record in respect of the acquired land involved in the  proceedings  by  the
learned Standing Counsel on behalf of the State  of  Karnataka  as  per  our
directions issued vide our orders dated  17-11-2014[14]  and  24-3-2015[15],
do not disclose the fact that  the  acquisition  of  lands  covered  in  the
acquisition  notifications  are  in  favour  of  the  Company.   Thus,   the
acquisition of land  in  favour  of  KIADB  is  abundantly  clear  from  the
preliminary and final notifications  issued  by  the  State  Government  and
thereafter following  the  procedure  under  sub-sections  (6)  and  (7)  of
Section 28 of the KIAD Act, it took possession of  the  acquired  land  from
the owners who were in possession of the same and was transferred in  favour
of KIADB for its disposal for the purpose for which lands were  acquired  as
provided under Section 32(2) of the  KIAD  Act  read  with  the  Regulations
referred to supra framed by KIADB under Section 41(2)(b) of  the  KIAD  Act.
Therefore, the reliance placed upon the  judgments  of  this  Court  by  the
learned Senior Counsel on behalf  of  the  Company  and  KIADB,  are  wholly
inapplicable to the fact situation and  do  not  support  the  case  of  the
Company.”


14.   We are in respectful agreement with the  above  view  in  Hindu  Kanya
Maha Vidyalaya (supra) and Peerappa Hanmantha (supra).  No contrary view  of
this Court has been brought to our notice.  The  judgments  relied  upon  by
the respondents are distinguishable as already held by this Court.

15.   In Himalayan Tiles (supra) the acquisition was under Part-VII  of  the
Act.  In Santosh Kumar  (supra)  the  question  was  whether  award  of  the
Collector could be challenged, to which this Court answered in the  negative
except on the ground of fraud, corruption or collusion.  In Neyvely  Lignite
(supra) again the acquisition was under Part-VII of  the  Act  and  in  that
context this Court  held  that  the  expression  “person  interested”  could
include a company  or  local  authority  for  whose  benefit  the  land  was
acquired.   The  post-acquisition  allottee  cannot  by   any   stretch   of
imagination be treated at  par  with  beneficiary  for  whom  the  land  was
acquired.  In U.P. Awas Evam Vikas Parishad (supra), the matter  dealt  with
was in the context of statutory authority for whom the  land  was  acquired.
Delhi Development Authority   v.   Bhola Nath  Sharma  (dead)  by  Lrs.  and
ors.[16]  was a case in the context of beneficiary for  whom  the  land  was
acquired.

16.   The only other justification in the impugned judgment which  has  been
relied upon by the respondents is lack of  sincerity  on  the  part  of  the
State authority for whose benefit the acquisition has been made viz.  HSIDC,
which by  itself  cannot  be  a  valid  ground  to  permit  post-acquisition
allottee to be treated as a necessary or  proper  authority  under  Order  I
Rule 10 of CPC to proceedings for determination of compensation.   The  view
taken in the impugned judgment cannot  be  sustained  on  any  principle  or
precedent.

17.   We may now refer to an order of this  Court  dated                15th
July, 2004 which has been relied upon in the impugned judgment in  para  31.
  There is no consideration of the principle  of  law  and  thus,  the  said
order without there being contest on the  principle  of  law  could  not  be
treated as a precedent for deciding the legal issue at hand.

18.   Accordingly, we hold that the post-acquisition allottee has  no  locus
to be heard in the matter and is neither a necessary nor a proper party.

19.   The other part of the impugned order  permitting  additional  evidence
and remanding the case for fresh decision is uncalled  for.    No  case  was
made out for permitting additional  evidence  on  settled  principles  under
Order XLI Rule 27 of CPC.   The provision is reproduced below:-

“27. Production of additional evidence in Appellate Court.- (1) The  parties
to an appeal shall not be entitled to produce additional  evidence,  whether
oral or documentary, in the Appellate Court.  But if –

      (a) the court from whose decree the appeal is  preferred  has  refused
to admit evidence which ought to have been admitted, or

(aa) the party seeking to  produce  additional  evidence,  establishes  that
notwithstanding the exercise of due diligence, such evidence was not  within
his knowledge or  could  not,  after  the  exercise  of  due  diligence,  be
produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any  witness
to be examined to  enable  it  to  pronounce  judgment,  or  for  any  other
substantial cause,

The Appellate Court may allow such evidence or document to be  produced,  or
witness to be examined.

(2) Wherever additional evidence is allowed to be produced by  an  Appellate
Court, the Court shall record the reason for its admission.”


20.   It is clear that neither the Trial Court has refused  to  receive  the
evidence nor it could be said that the evidence sought  to  be  adduced  was
not available despite the exercise of due diligence nor it could be held  to
necessary  to  pronounce  the  judgment.   Additional  evidence  cannot   be
permitted to fill-in the lacunae or to  patch-up  the  weak  points  in  the
case[17].  There was no ground for remand in these circumstances.

21.   We may also refer to the argument that  this  Court,  while  remanding
the matter in the earlier round, had given liberty to the MSIL  to  file  an
application for impleadment or to act as an intervenor  which  implied  that
such application was to be accepted.  We do  not  find  any  merit  in  this
contention also.   It cannot be held that any right was crystalised  by  the
said observation and such prayer had to be considered according to law.   We
have already held that the post-acquisition allottee had  no  right  in  the
matter.

22.   For the above reasons, we  allow  these  appeals  and  set  aside  the
impugned order and remand the matter to the High Court once again for  fresh
decision in accordance with law.  The parties are directed to appear  before
the High Court on 27th March, 2017.





                                                        …………..…………………………….J.
                                                       [ ADARSH KUMAR GOEL ]



                                                      .….……………………..……………..J.
                                                        [ UDAY UMESH LALIT ]

NEW DELHI;
FEBRUARY 21, 2017.



-----------------------
[1]

      [2] (2010) 11 SCC 175
[3]
      [4] (2012) 7 SCC 200
[5]
      [6] (2012) 7 SCC 721
[7]
      [8] (2013) 14 SCC 506
[9]
      [10] (2008) 14 SCC 745
[11]
      [12] (2011) 8 SCC 91
[13]
      [14] 1988 (Supp) SCC 719
[15]
      [16] (2015) 10 SCC 469
[17]
      [18] (1980) 3 SCC 223
[19]
      [20] (1986) 2 SCC 343
[21]
      [22] (1995) 1 SCC 221
[23]
      [24] (1995) 2 SCC 326
[25]
      [26] (2006) 7 SCC 578
[27]
      [28] Peerappa Hanmantha Harijan  v.   State  of  Karnataka,  SLP(C)No.
19819 of 2013,  order  dated  17-11-2014  (SC),  wherein  it  was  directed:
“Issue notice  to  the  State  Government.   The  learned  counsel  for  the
petitioners to take out notice to the  learned  Standing  Counsel  appearing
for the State Government.  Dasti, in addition, is also permitted.  Mr.  V.N.
Raghupathy, learned counsel accepts notice for the State  of  Karnataka  and
Mr. Nishanth Patil, learned counsel accepts notice for Karnataka  Industrial
Area Development Board (for short ‘KIADB’).  The learned  counsel  appearing
for the State Governument and the learned counsel appearing  for  KIADB  are
directed to produce the relevant  records  in  respect  of  the  proceedings
relating to land acquisition involved in  these  matters.   There  shall  be
stay of the effect and operation of the impugned order during  the  pendency
of these petitions.  List the matters after four weeks.  In  the  meanwhile,
all the respondents are at liberty to file written statements, if any.”

[29]
      [30] Peerappa Hanmantha Harijan  v.   State  of  Karnataka,  SLP(C)No.
19819  of  2013,  order  dated  24-3-2015(SC),  wherein  it  was   directed:
“Heard Ms. Kiran  Suri,  learned  Senior  Counsel  for  the  petitioners  in
SLPS(C)Nos. 31624-25 of 2014 in part.  List all  the  matters  as  part  for
further hearing.  Vide order  dated  17-11-2014,  learned  counsel  for  the
State as well as the learned counsel for KIADB were directed to produce  the
relevant records in respect of the proceedings relating to land  acquisition
involved in these matters,  record  as  well  as  the  records  relating  to
allotment of land.   However,  as  per  office  records,  nothing  has  been
produced so far.  In this view of the matter, the learned  counsel  for  the
State as well as the learned counsel for KIADB are directed to  comply  with
the order dated 17-11-2014 and produce the relevant records  in  respect  of
the proceedings relating to land  acquisition  and  the  allotment  of  land
involved in these matters  before  the  next  date  of  hearing.   List  the
matters on 15-4-2015.”
[31]
      [32] (2011) 2 SCC 54
[33]
      [34] N. Kamalam  v.  Ayyaswami (2001) 7 SCC 503: para 19

When the Court is called upon to interpret the documents and examine its effect, it involves questions of law. It is, therefore, obligatory upon the High Court to decide such questions on merits. = whether the suit property is self-acquired property of late Sk. Noor Mohammad and, if so, whether respondent No.1 was entitled to inherit the same as his legal representative in accordance with the shares defined in the Mohammedan Law and secondly, whether the suit property is self-acquired property of the appellant (defendant No.1) on the strength of documents filed by him and, if so, whether it has resulted in excluding respondent No.1 to claim any share in such property as an heir of Sk. Noor Mohammad, was required to be decided by framing substantial questions of law in the light of proved documents filed by defendant No.1 because it was his case that the suit property was his self-acquired property. The High Court unfortunately did not examine any document for deciding the ownership issue in relation to the suit property.

           REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL No.  3048  OF 2017
                   (ARISING OUT OF SLP (C) No.27887/2010)

Sk. Bhikan
S/o Sk. Noor Mohd.                            ….Appellant(s)

                             VERSUS

Mehamoodabee
w/o Sk. Afzal & Ors.                   …Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    Leave granted.
2)    This appeal is filed  against  the  final  judgment  and  order  dated
09.02.2010 passed by the  High  Court  of  Judicature  at  Bombay  Bench  at
Aurangabad in Second Appeal No. 875 of 2009 whereby the second appeal  filed
by the appellant herein was dismissed at the admission stage.
3)    We herein set out  the  facts,  in  brief,  to  appreciate  the  issue
involved in this appeal.
4)    The appellant herein is the  first  defendant  and  respondent  No.  1
herein is the plaintiff whereas respondent Nos. 2 to 8 herein are  defendant
Nos. 2 to 8 in the suit.
5)    The dispute in the appeal arises  between  the  members  (brother  and
sister) of one Muslim family.  It relates to  landed  and  house  properties
situated at village Satara, District Aurangabad  (Maharashtra)  as  detailed
in Para 1 of the plaint (hereinafter referred to as the "suit property”).
6)    Respondent No. 1 is the real sister of the  appellant.   She  filed  a
civil suit against the appellant  and  respondent  Nos.  2  to  8  (proforma
defendants) in the Court of IInd Jt. Civil Judge (J.D.) at Aurangabad  being
Civil Suit No. 120 of 1994 and prayed therein the  relief  of  partition  by
meets and bounds of the suit property and, in consequence, also claimed  her
separate possession in the suit property qua the appellant.
7)    According to respondent No.  1  (plaintiff),  the  suit  property  was
owned by their late father Sheikh Noor Mohd. and on  his  death,  respondent
No. 1, by virtue of inheritance and being one of his legal heirs, got  share
in the suit property as per  the  shares  defined  in  the  Mohammedan  Law.
Respondent No.1 alleged that since her father died intestate leaving  behind
respondent No.1 and the appellant being sister and brother, she is  entitled
to claim partition of the suit  property  and  its  separate  possession  as
tenant in common as against her brother (appellant herein).
8)     The  appellant  denied  the  case  set  up  by  respondent  No.1  and
contended, inter alia, in his written statement that the  suit  property  is
his self-acquired property because he purchased the same by his own  efforts
by a registered sale deed (Ex.P-1) and hence neither  his  late  father  had
any right, title or interest  in  the  said  property  and,  in  consequence
thereof, nor respondent No.1 could inherit any right, title or  interest  in
the suit property through her father as his legal heir. The  appellant  also
set up a title by alleging his adverse possession over the suit property  to
the exclusion of all including respondent No.1.
9)    The Trial Court framed issues and parties adduced their  evidence.  By
a judgment/decree dated 24.12.1999,  the  Trial  Court  dismissed  the  suit
filed by respondent No.1.   Respondent  No.1  (plaintiff),  felt  aggrieved,
filed first appeal being R.C.A. No. 59 of 2000 before  the  District  Judge,
Aurangabad. By  a  judgment/decree  dated  30.11.2001,  the  District  Judge
allowed the appeal and decreed the plaintiff's suit and  accordingly  passed
a decree for partition and separate  possession  of  the  suit  property  in
favour of respondent No.1.
10)   Felt aggrieved, appellant (defendant No. 1) filed second appeal  being
S.A. No.875 of 2009 before the High  Court.  By  impugned  order,  the  High
Court dismissed the second appeal in limine observing that the  appeal  does
not involve any substantial question of law.
11)   Felt aggrieved, defendant  No.1  has  filed  this  appeal  by  way  of
special leave before this Court.
12)   Heard Mr. Shyam Divan, learned senior counsel for  the  appellant  and
Mr. Makarand D. Adkar, learned counsel for the respondents.
13)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we are inclined to allow the appeal and  remand  the
case to the High Court for deciding the second appeal afresh  on  merits  in
accordance with law.
14)   Learned Single Judge while dismissing the appeal passed the  following
order:
“1) The appeal is filed mainly against the findings recorded  by  the  first
appeal Court that the respondent-plaintiff was entitled to  1/3rd  share  in
the suit property being the daughter  of  Noor  Mohammed  who  is  also  the
father of the appellant.  The fact that Noor Mohammed,  the  father  of  the
parties held the suit properties at the time of his death is not in  dispute
so also Noor Mohammed died without leaving a testament is also  an  admitted
fact.  Thus, the appellant and the respondent being the brother  and  sister
would take the property, left behind by their father as  per  provisions  of
the Mohammedan Law.  The appellant, thus would get two parts  of   the  suit
property, whereas the third part would go to  the  respondent  no.1-original
plaintiff.

2)    The findings recorded by the learned Judge of the first  appeal  Court
are  cogent.   No  interference  in  them  is  called  for.   There  is   no
substantial question of law, arising in  this  appeal.   The  second  appeal
stands dismissed.  Consequently, Civil Application Nos.  4980  of  2005  and
9547 of 2003 also stand dismissed.”

15)   As observed supra,  we  do  not  agree  with  the  reasoning  and  the
conclusion arrived at by the High Court  in  the  impugned  order.   In  our
considered view, the appeal did involve the  substantial  questions  of  law
and, therefore, the High Court should have  admitted  the  appeal  by  first
framing substantial questions of law arising in  the  case  and  then  after
giving notice to the respondents for its final  hearing  as  provided  under
Section 100 of the Code of Civil Procedure, 1908  (hereinafter  referred  to
as “the Code”) decided the appeal on merits.
16)   As a matter of fact, in our view,  having  regard  to  the  nature  of
controversy  and  the  issues  involved   regarding   ownership   based   on
interpretation  of  documents  (exhibits),  the  questions  did   constitute
substantial questions of law.
17)   The questions  as  to  whether  the  suit  property  is  self-acquired
property of late Sk. Noor Mohammad and, if so, whether respondent  No.1  was
entitled to inherit the same as his legal representative in accordance  with
the shares defined in the Mohammedan Law  and  secondly,  whether  the  suit
property is self-acquired property of the appellant (defendant No.1) on  the
strength of documents filed by him and, if so, whether it  has  resulted  in
excluding  respondent No.1 to claim any share in such property  as  an  heir
of Sk. Noor Mohammad, was required to  be  decided  by  framing  substantial
questions of law in the light of proved documents filed  by  defendant  No.1
because it was his case  that  the  suit  property  was  his   self-acquired
property. The High Court unfortunately did  not  examine  any  document  for
deciding the ownership issue in relation to the suit property.
18)   When the Court is called upon to interpret the documents  and  examine
its effect, it involves questions of  law.   It  is,  therefore,  obligatory
upon the High Court to decide such questions on merits. In  this  case,  the
High Court could do  so  after  framing  substantial  questions  of  law  as
required under Section 100 of the Code. It was, however, not done.
19)   The High Court thus, in our view, committed jurisdictional error  when
it dismissed  the  second  appeal  in  limine.  We  cannot  countenance  the
approach of the High Court.
20)   In view of foregoing discussion, the appeal succeeds and  is  allowed.
The impugned order is set aside. The case is now remanded to the High  Court
for deciding the appeal on merits in accordance with law.
21)   We, however, request the High Court to admit the second appeal,  frame
appropriate substantial questions of law as required under  Section  100  of
the Code, keeping in view the pleadings, findings of the  two  courts  below
and the documents (exhibits).   Needless to say, the questions to be  framed
should be specific with reference to exhibits and the findings  of  the  two
courts below.
22)   Before parting, we consider it proper to mention  here  that  we  have
not expressed any opinion on the merits of the controversy and confined  our
inquiry only to examine whether the second appeal involved  any  substantial
question of law within the meaning of Section 100 of the Code? 23)  We  have
noticed that the dispute is between the members of one  family.   It  would,
therefore, be in the interest of family  that  efforts  should  be  made  to
settle the dispute amicably.  Indeed, it was also stated by learned  counsel
for the parties before us by giving some offer  to  each  other.   We  grant
this liberty to renew their respective offers  before  the  High  Court  and
explore the possibility for amicable settlement before finally  hearing  the
appeal preferably within six months.
24)   Record of the case, if requisitioned, be sent back to the  High  Court
forthwith by the Registry.

                       ………...................................J.
                                  [R.K. AGRAWAL]



…...……..................................J.
                               [ABHAY MANOHAR SAPRE]     New Delhi;
February 20, 2017
-----------------------
10

executability of decree for permanent injunction against the legal representatives of judgment- debtor. = Resultantly, we allow the appeals, set aside the impugned order passed by the High Court and hold that the direction issued by the executing court that an undertaking be furnished by the legal representatives to abide by the decree is proper, failing which the executing court would proceed in a permissible mode in accordance with law to enforce the decree under the provisions of Order XXI Rule 32 CPC.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS. 3007-3008  OF 2017
               [Arising out of SLP [C] Nos. 1483-1484 of 2015]


Prabhakara Adiga                                   … Appellant

Vs.

Gowri & Ors.                                       … Respondents


                               J U D G M E N T


ARUN MISHRA, J.

1.    Leave granted.

2.    Singular question involved in the matter is  executability  of  decree
for permanent injunction against  the  legal  representatives  of  judgment-
debtor.
3.    A suit  was  filed  by  the  appellant  registered  as  Original  Suit
No.83/2007 in the Court  of  II  Additional  Civil  Judge,  Kundapura,  with
respect to immovable property described in Schedule ‘A’ of the  plaint.  The
plaintiff got converted the land for non-agricultural/residential  purposes.
The plaintiff was in possession and enjoyment of the property and  defendant
had no concern with the same. However, he tried to remove  and  destroy  the
wooden fence and made  an  effort  to  forcibly  dispossess  the  plaintiff.
Hence the suit was  filed.  The  defendant  had  denied  the  averments  and
contended that there was no division  of  the  land  and  had  asserted  his
ownership and possession.    The conversion order of land was also illegal.
4.    It was found on the basis of the registered partition  deed  that  the
suit schedule  property  was  allotted  to  the  plaintiff  and  he  was  in
possession thereof. The defendant on partition in his own  family  had  been
allotted 1.58 acres and defendant has sold 1.68 acres of  land,  though  the
land allotted to him was only 1.58 acres in Survey No.32/5.   Plaintiff  was
found to be in possession of Schedule ‘A’ property on the date of the  suit.
It was held that the defendant had  no  right,  title  or  interest  in  the
disputed land.   Accordingly,  the  suit  of  the  plaintiff  for  permanent
injunction was decreed vide judgment and decree dated 13.9.2012.
5.    After suffering decree for  permanent  injunction  on  13.9.2012,  the
judgment-debtor Divira Bolu died on 10.12.2012. The heirs of  the  judgment-
debtor in  violation  of  the  decree  for  permanent  injunction  tried  to
forcibly dispossess the decree-holder from Schedule ‘A’ property. Thus,  the
decree-holder filed execution petition within two years of  the  passing  of
the decree.  It was resisted by the heirs of judgment-debtor on  the  ground
that they were not bound by the decree for permanent injunction.  The  force
of decree  lapsed  with  the  death  of  judgment-debtor.   The  decree  was
incapable of enforcement against them  as  the  judgment  debtor  had  died.
Reliance was placed  on  the  legal  maxim  “actio  personalis  moritur  cum
persona”. The executing court held that the heirs  of  judgment-debtor  were
bound by the decree and directed them  to  furnish  an  undertaking  to  the
effect that they would not  disobey  the  decree  of  the  court.  Aggrieved
thereby, the respondents preferred a writ petition  in  the  High  Court  of
Karnataka at Bangalore which has been allowed by  the  impugned  order.  The
High Court has held that the  decree  for  permanent  injunction  cannot  be
enforced against the legal heirs of judgment-debtor as injunction  does  not
travel with land.

6.    It was submitted by learned counsel representing  the  appellant  that
the High Court has  erred  in  law  in  holding  the  decree  for  permanent
injunction to be inexecutable as against the respondents/heirs of  judgment-
debtor. He has relied upon section 50, section 146, Order 21 Rule 16,  Order
21 Rule 32 and section 47 CPC in order to take home the point. On the  other
hand, learned counsel appearing  on  behalf  of  the  respondents  has  also
referred  to  few  decisions  to  contend  that  the  decree  for  permanent
injunction does not go  with  the  land.  Thus,  the  same  is  inexecutable
against the legal heirs of the judgment-debtor.
7.    It is apparent in the instant case that on the basis of the  title  of
the plaintiff over the disputed land, decree for  permanent  injunction  had
been granted. It was found that the defendant had sold  the  property  which
had fallen to his share in the partition of his own family.  It was held  in
the suit that the defendant was not the owner of the disputed  property  and
it belonged to the plaintiff.  In  execution  proceedings  filed  within  24
months of decree, a question arose  whether  after  the  death  of  judgment
debtor, his heirs could start interference in  the  property  and  plaintiff
was obliged to file another suit for injuncting them or  could  execute  the
decree for permanent injunction which was granted in his favour  as  against
the heirs of judgment-debtor.
8.    Section 50 of the CPC has been referred to and the same  is  extracted
hereunder :
      “50. Legal representative— (1) Where  a  judgment-debtor  dies  before
the decree has been fully satisfied, the holder of the decree may  apply  to
the  Court  which  passed  it  to  execute  the  same  against   the   legal
representative of the deceased.
           (2)  Where  the   decree   is   executed   against   such   legal
representative, he shall be liable only to the extent  of  the  property  of
the deceased which has come to his hands and has not been duly disposed  of;
and, for the purpose of ascertaining such  liability,  the  Court  executing
the decree may, of its own motion or  on  the  application  of  the  decree-
holder, compel such legal representative to  produce  such  accounts  as  it
thinks fit.”

9.    Section 146 CPC has also been referred to and the same is extracted

hereinbelow :

      “146. Proceedings by or against  representatives—  Save  as  otherwise
provided by this Code or by any law for the time being in force,  where  any
proceeding may be taken or application made by or against  any  person  then
the proceeding may be taken or the application may be  made  by  or  against
any person claiming under him.”

10    The provisions of Order XXI Rule 16 and Order XXI Rule 32 of CPC  have
also been referred to and they are also extracted below :
      “16. Application for  execution  by  transferee  of  decree—  Where  a
decree or, if a decree has been passed jointly in  favour  of  two  or  more
persons, the interest of any decree-holder in the decree in  transferred  by
assignment in writing or by operation of law, the transferee may  apply  for
execution of the decree to the Court which passed it; and the decree may  be
executed in the same manner and subject to the same  conditions  as  if  the
application were made by such decree-holder :
      Provided that where the decree, or such  interest  as  aforesaid,  has
been transferred by assignment, notice of such application  shall  be  given
to the transferor and the judgment-debtor,  and  the  decree  shall  not  be
executed until the  Court  has  heard  their  objections  (if  any)  to  its
execution :
      Provided also that, where a decree for the payment  of  money  against
two or more persons has been transferred to one of them,  it  shall  not  be
executed against the others.
     [Explanation.—Nothing in this  rule  shall  affect  the  provisions  of
section 146, and a transferee of  rights  in  the  property,  which  is  the
subject matter of the suit, may apply for execution of the decree without  a
separate assignment of the decree as required by this rule.]”


     “32. Decree  for  specific  performance  for  restitution  of  conjugal
rights or for an injunction.— (1) Where the party against whom a decree  for
the specific performance of a  contract,  or  for  restitution  of  conjugal
rights, or for an injunction, has been passed, has  had  an  opportunity  of
obeying the decree and has wilfully failed to obey it,  the  decree  may  be
enforced in the case of a decree for restitution of conjugal rights  by  the
attachment of his property or, in the case of  a  decree  for  the  specific
performance of a contract or for an  injunction  by  his  detention  in  the
civil prison, or by the attachment of his property, or by both.
     (2) Where the party against whom a decree for specific  performance  or
for an injunctions been passed is a corporation, the decree may be  enforced
by the attachment of the property of the corporation or, with the  leave  of
the Court, by the detention in the civil prison of the  directors  or  other
principal officers thereof, or by both attachment and detention.
     (3) Where any  attachment  under  sub-rule  (1)  or  sub-rule  (2)  has
remained in force for [six months] if the  judgment-debtor  has  not  obeyed
the decree and the decree-holder has applied to have the  attached  property
sold, such property may be sold; and out  of  the  proceeds  the  Court  may
award to the decree-holder such compensation as it  thinks  fit,  and  shall
pay the balance (if any) to the judgment-debtor on his application.
    (4) Where the judgment-debtor has obeyed the decree and paid  all  costs
of executing the same which he is bound to pay, or  where,  at  the  end  of
[six months] from the date of the attachment, no  application  to  have  the
property sold has been made, or if made has  been  refused,  the  attachment
shall cease.
    (5) Where a decree for the specific performance of a contract or for  an
injunction has not been obeyed, the Court may, in lieu of or in addition  to
all or any of the processes aforesaid, direct that the act  required  to  be
done may be done so far as practicable by the decree-holder  or  some  other
person appointed by the Court, at the cost of the judgment-debtor, and  upon
the act being done the expenses incurred may be ascertained in  such  manner
as the Court may direct and may be recovered as if  they  were  included  in
the decree.”

11.   Section 50 CPC deals with execution of decrees of all kinds  including
that of permanent injunction.   Section 146  CPC  provides  that  where  any
application which can be made by or against any person, it may  be  made  by
or against any person claiming under him except  as  otherwise  provided  in
the Code.  Order 21 Rule 16 deals with execution of decree by  a  transferee
with which we are not concerned in this case.  Order  21  Rule  32  provides
the  mode for execution of decree for injunction,  restitution  of  conjugal
rights and specific  performance.   Section  50  CPC  which  is  a  specific
provision   with   respect   to   execution   of   decree   against    legal
representatives, would  be attracted read with Order 21 Rule 32 CPC.

12.   It is crystal clear from a perusal of section 50(2) CPC that a  decree
for permanent injunction can be executed against the judgment debtor or  his
legal representatives. In Muthukaruppa Pillai & Anr. v. Ganesan (1995)  Supp
3 SCC 69, a question arose with respect to executability of the  decree  for
injunction in the backdrop of facts that the plaintiff had filed a suit  for
restraining the defendant-appellant from  interfering  with  her  rights  as
Hakdar and Pujari. The suit was decreed  and  it  was  held  that  the  said
rights were heritable and partible.  On  aforesaid  foundation,  decree  was
passed. The successor-in-interest of the  plaintiff  decree-holder  had  put
the decree for execution. It was contended that the  decree  for  injunction
was personal in nature and could have been  enforced  by  the  decree-holder
only. This Court held that there was nothing in  the  decree  for  permanent
injunction to hold that it lapsed with the death of  the  plaintiff  and  it
could be executed by heirs of decree holder. This Court has laid  down  thus
:

“1. This judgment-debtor’s appeal is directed against judgment and order  of
the High Court of Madras. The appellant was a defendant in a suit  filed  by
the predecessor-in-interest  of  the  respondent  for  permanent  injunction
restraining the appellant from interfering with  her  right  as  Hakdar  and
Pujari of two temples  in  Kottarakurichi  village.  The  suit  even  though
decreed by the trial court was dismissed by the first appellate  court.  But
the decree of the trial court was restored by the High Court, which  was  to
the following effect:
“[T]he defendants, their workmen,  their  agent,  etc.  be  and  are  hereby
restrained by an order of permanent injunction  from  interfering  with  the
plaintiff’s enjoyment of the plaint schedule property (described  hereunder)
till the end of 1965 Margali 30th (i.e.,  till  January  13,  1965)  and  in
every alternative years in future….”
The judgment of the High Court was  delivered  in  1969.  The  decree-holder
died in June 1981. The respondent who  claims  to  be  adopted  son  of  the
plaintiff in the original suit and also her  legatee  filed  an  application
for execution in 1981 under Section 146 and Order XXI Rule 16 of  the  Civil
Procedure Code. It was resisted by the appellant  on  various  grounds.  The
application was allowed against which the appellant filed  revision.  During
pendency of the execution proceedings, the respondent filed  an  application
before the Deputy Commissioner, Hindu Religious and  Charitable  Endowments,
Tirunelveli, Tamil Nadu, claiming the rights to do puja and enjoy the  share
of income from the two temples. The application was allowed  by  the  Deputy
Commissioner, but the  order  was  set  aside  by  the  Commissioner,  Hindu
Religious and  Charitable  Endowments,  Madras  in  revision  filed  by  the
appellant. It was held that the respondent could not claim better  and  more
rights than what were granted in favour of  his  predecessor-in-interest  by
the civil court. Against this order  of  the  Commissioner,  the  respondent
filed a writ petition. Both, the revision filed by the  appellant  and  writ
petition filed by the respondent were decided by a common  order.  The  High
Court maintained the order of  the  trial  court  in  execution,  except  to
certain extent. The writ petition filed by the respondent was dismissed.

2. The principal challenge to the order passed by the High Court is  on  the
nature of the decree. It is claimed  that  the  decree  being  personal,  it
could not have been executed by the respondent who claimed to be  successor-
in-interest of the plaintiff in the  suit.  The  submission  appears  to  be
devoid of any merit.  In  the  main  suit,  out  of  which  these  execution
proceedings have arisen, it was clearly held by  the  High  Court  that  the
rights were heritable and partible. In view  of  this  finding,  it  is  not
clear as to how can  the  appellant  raise  the  argument  of  decree  being
personal in nature. Apart from that, the decree passed by the  trial  court,
copy of which has been produced by the learned counsel for  the  respondent,
the authenticity of which is not disputed by the appellant,  and  which  has
been extracted earlier, clearly indicates that the  injunction  granted  did
not impose any such restriction expressly nor could  it  be  impliedly  held
that it lapsed with the death of the plaintiff.”

This Court has laid down that legal representatives  of  decree  holder  can
execute decree for permanent injunction relating to property or right  which
is heritable and partible.  When such is the situation, in our  opinion,  it
would be open to decree  holder  to  execute  decree  against  successor  of
interest of judgment-debtor also.

13.   In Ramachandra Deshpande v. Laxmana Rao Kulkarni  AIR  2000  Karnataka
298, a question arose with  respect  to  executability  of  the  decree  for
permanent injunction restraining the defendant from obstructing  plaintiff’s
use and enjoyment of  their  right  of  way  through  the  backyard  of  the
defendant’s house, and subsequently, the house was sold by  judgment-debtor-
defendant. It was held that the decree could have been executed against  the
transferee judgment-debtor. The rule that a decree for injunction cannot  be
enforced against a purchaser from a judgment-debtor  since  injunction  does
not run with the land for it is a  remedy  in  personam  is  not  applicable
considering the nature of rights  adjudicated  upon.  The  Court  held  that
enforcement of the decree against legal heirs of the deceased was  saved  by
section 50 CPC and as against the purchaser of the  suit  property  pendente
lite was saved by section 52 of the  Transfer  of  Property  Act.  The  High
Court has relied upon the decisions of this Court in Muthukaruppa  Pillai  &
Anr. v. Ganesan (supra) and in Kanhaiya Lal v. Babu Ram  (dead)  by  LRs.  &
Anr. (1999) 8 SCC 529.  The High Court has observed that if  the  remedy  of
injunction granted by a decree is in respect of any heritable  and  partible
right, it does not get extinguished with the death of a party  thereto,  but
enures to the benefit of the legal heirs of the  decree-holder,  as  such  a
decree could be executed against the successor-in-interest of  the  deceased
judgment-debtor as well. Similar is  the  decision  in  G.M.  Venkatappa  v.
Anjanappa & Anr. ILR 2006 Karnataka  4456,  wherein  also  the  question  of
executability of the decree for permanent injunction arose.
14.   Normally personal action dies  with  person  but  this  principle  has
application to limited kinds of causes of actions. In Girijanandini Devi  v.
Bijendra Narain Choudhary AIR 1967 SC 1124,  this  Court  while  considering
the question whether the decree  for  account  can  be  passed  against  the
estates, also considered the maxim “actio personalis  moritur  cum  persona”
and observed that  the  postulation  that  personal  action  dies  with  the
person, has a limited application.   It  operates  in  a  limited  class  of
actions, such as actions for damages, assault  or  other  personal  injuries
not causing the death of the party and in  other  actions  where  after  the
death of the party the relief granted could not be enjoyed  or  granting  it
would be nugatory.  Death of the person liable to  render  the  account  for
property received by him does not therefore  affect  the  liability  of  his
estate.  This Court has observed thus:
 “(14)  Finally,  it  was  urged  that  since  defendants  Mode  Narain  and
Rajballav Narain had died during the pendency of the proceedings,  the  High
Court was incompetent  to pass a decree for account against  their  estates.
Rajballav who was defendant No.6 died during the pendency of  the  suit  for
the Trial Court and Mode Narain who was defendant  No.1  in  the  suit  died
during the pendency of the appeal in  the  High  Court.   But  a  claim  for
rendition of account is not  a  personal  claim.   It  is  not  extinguished
because the party who claims an account, the party who  is  called  upon  to
account dies.    The  maxim  “action  personalis  moritur  cum  persona”   a
personal action dies  with  the  person,  has  a  limited  application.   It
operates in a limited class of  actions  ex  delicto  such  as  actions  for
damages for defamation, assault or other personal injuries not  causing  the
death of the party, and in other actions where after the death of the  party
the relief granted could not be enjoyed or granting it  would  be  nugatory.
An action for account is not an action for damages ex delicto, and does  not
fall within the enumerated classes.  Nor is it such that the relief  claimed
being personal could not be enjoyed after death, or  granting  it  would  be
nugatory.  Death of the person liable to  render  an  account  for  property
received by him does not therefore affect the liability of his  estate.   It
may be noticed that this question was not raised in the Trial Court  and  in
the High  Court.   It  was  merely  contended  that  because  the  plaintiff
Bijendra Narain was receiving income of the lands of  his  share  no  decree
for accounts could be made.  The High Court rejected the contention that  no
account would be directed in favour of the plaintiff on that account.   They
pointed out that the mere fact that the plaintiff was in possession of  some
portion of properties of  the  joint  family  since  1941  cannot  possibily
absolve the defendants, who were  in  charge  of  their  dealings  with  the
management of the properties, from rendering accounts of  the  joint  family
estate.  The plaintiff was since  September  1941  severed  from  the  joint
family in estate and also in mess and residence,  and  he  was  entitled  to
claim an account from the defendants from September 1941, but not  for  past
dealings.  The fact that the plaintiff is  in  possession  of  some  of  the
properties will, of course,  have  to  be  taken  into  account  in  finally
adjusting the account.”

15.   The views of the High Courts which are relied upon are  by  and  large
in favour of executability of decree.  Of course  it  would  depend  on  the
right litigated, findings recorded and the nature of  decree  granted.    In
D’souza J. v. Mr. A. Joseph AIR 1993 Karnataka 68, a  Single  Bench  of  the
Karnataka High Court held that  when  a  decree  for  injunction  against  a
person can be enforced even against his son, it is obvious  that  a  similar
logic should hold good even in the case of the death of  the  plaintiff  who
has obtained a decree.  There should not be any legal impediment for a  heir
of a  decree-holder  to  enforce  the  decree  for  injunction  against  the
judgment-debtor.  There is no such legal impediment on  the  principle  that
injunction does not run with the land.   Yet another Division Bench  of  the
Kerala High Court in Rajappan and  Ors.  v.  Sankaran  Sudhakaran  AIR  1997
Kerala 315, also considered the question  of  violation  of  decree  by  the
legal representatives of judgment-debtor and has laid  down  that  a  decree
for permanent injunction can be executed against  them.    It  was  observed
that  if  a  decree  for  injunction  compels  personal  obedience,  it   in
appropriate cases would not be enforced against the  legal  representatives.
 However, if subject matter of the suit and the act  complained  of  was  on
the basis of ownership of an adjacent property of the other side, then  such
a decree for injunction would be binding  not  only  against  the  judgment-
debtor personally but all  those  who  claim  through  him.   A  decree  for
perpetual  injunction  was  passed  restraining  the  judgment-debtors  from
trespassing into the decree  schedule  property  destroying  the  boundaries
thereof and from interfering with  the  rights  of  the  decree-holder.  The
legal representatives of the judgment-debtor violated the  injunction.   The
Court, in our opinion, rightly held that the executing court  could  execute
the decree of perpetual injunction against the legal representatives of  the
judgment-debtor.
16.   In Krishnabai Pandurang Salagare v.  Savlaram  Gangaram  Kumtekar  AIR
1927 Bombay 93 it was held that when a decree is passed against a  judgment-
debtor, it can  on  his  death  be  enforced  not  only  against  the  legal
representatives, but also against the transferee from those  representatives
who take under an alienation pending the execution proceedings.
17.   In Amritlal Vadilal v. Kantilal Lalbhai AIR 1931  Bombay  280  it  has
been observed that a decree for injunction does not run with  the  land  and
cannot be enforced in absence of the statutory provision  against  surviving
member of joint family or against purchaser from judgment-debtor but can  be
enforced against legal representatives joined under Section 50  CPC  and  so
also against transferees from original judgment-debtor as per Section 52  of
the Transfer of  Property  Act.     In  Ganesh  Sakharam  Saraf  v.  Narayan
Shriram Mulaye AIR 1931 Bombay 484 it was held that though an injunction  is
a personal remedy and does not run with the land, ordinarily  a  decree  for
an injunction can be executed only against  the  persons  against  whom  the
injunction is issued and cannot be executed against any other person in  the
absence of a statutory provision.  If an injunction  decree  is  capable  of
being enforced against a person other than the judgment-debtor by virtue  of
a statutory provision contained in  Section  50  CPC,  it  can  be  executed
equally against the son who inherits the estate of his  father  as  well  as
against one who was joint with the father and brought on the record  as  his
legal representative.  It was also observed that where  a  decree  had  been
passed against the father as a  manager  and  representative  of  the  joint
family, it could be executed against  his  son  who  represented  the  joint
family.
18.   In Manilal Lallubhai Patel v. Kikabhai Lallubhai AIR 1932  Bombay  482
a Single Bench has held that where a  decree  for  an  injunction  has  been
passed against the father, the son not being joined  as  a  party,  and  the
father dies during the pendency of the  execution  proceedings,  the  decree
can be  enforced  under  Section  50  CPC  against  the  son  as  his  legal
representative by proceeding under Order 21, Rule 32.
19.   In Somnath  Honnappa  Bennalkar  v.  Bhimrao  Subrao  Patil  1974  ILR
Karnataka 1506, a compromise decree was passed in favour  of  the  plaintiff
for permanent injunction restraining the  judgment-debtor  from  interfering
with  the  plaintiffs  possession  and  enjoyment  of  the  suit   property.
Subsequently, the plaintiff sold his suit property to the assignee and  also
assigned compromise decree in his favour.  The assignee took  out  execution
against  the  judgment  debtor.    It  was  held  that  the  assignee  of  a
compromise decree was not competent to execute the decree.   It was  further
held that the compromise decree for injunction was personal and did not  run
with the land.   However, it was a case of assignment  and  not  covered  by
section 52 of the Transfer of Property Act.
20.   The High Court  of  Karnataka  in  Hajaresab  v.  Udachappa  1984  ILR
Karnataka 900 has also held that under the provisions of Section 50 CPC  the
legal representatives of the deceased defendant against whom the decree  for
injunction is passed would be liable for violation of that decree.   It  was
also observed that Section 50 CPC does not make any  distinction  between  a
decree for permanent injunction and a decree of any other nature.  The  High
Court has referred to the ‘Execution Proceedings’  by Shri  Soonavala,  1958
Edition thus:

“In Execution Proceedings by Shri Soonavala, 1958 Edition, on  page  386  it
is said: -


"A decree for injunction does not run with the land and cannot  be  enforced
against a purchaser of the property  from  the  defendant.  But  it  can  be
enforced against a legal  representative  of  the  deceased  j.d.  Plaintiff
obtained a  decree  against  the  defendant,  restraining  the  latter  from
obstructing the access to light  and  air  to  her  windows.  The  plaintiff
applied for execution praying that the  portion  of  the  defendant's  house
which obstructed her windows should be pulled down. While  this  application
was pending the defendant died and his son  and  heir  was  brought  on  the
record. The lower Courts directed that the  decree  should  be  executed  as
prayed for and directed the appellant (the son  and  heir  of  the  deceased
defendant) to pull down the obstructing portion of  the  house  in  question
within a given time. It was contended for the appellant  that  the  original
defendant having died, the injunction could not be enforced against his  son
(the appellant) as an injunction does not run with the  land.  It  was  held
that having regard to the provisions of Section 50, the  injunction  ordered
against the deceased defendant might be enforced against  his  son  and  his
legal representative.


The author has further said on the same page -


"But a decree for injunction cannot be enforced against a purchaser  of  the
property from the defendant or  against  a  person  who  is  not  his  legal
representative. The plaintiff obtained a decree  restraining  the  defendant
in his user of certain land and applied for execution. Mean while  the  land
had been sold in execution of another decree against the defendant  and  the
purchaser at the Court sale obtained  possession.  The  plaintiff  thereupon
applied that  the  purchaser  should  be  made  a  party  to  the  execution
proceedings and that execution should go against him as well as against  the
defendant, It was held that no order for execution could be made.  It  could
not go on against the defendant as all his interest in  the  land  had  been
sold in execution of a decree, and it could not go on against the  purchaser
as an injunction does not run with the land."


The author has further said -


"A decree for injunction does not run with the land and in  the  absence  of
any statutory provision, such  a  decree  cannot  be  enforced  against  the
surviving members of a joint family or against a purchaser  from  j.d.   But
where the sons  of  the  j.d.  are  brought  on  the  record  as  his  legal
representatives under Section 50, the decree can be  executed  against  them
and so also against the transferees from the  legal  representatives,  under
Section 52, Transfer of Property Act. On  the  same  principle,  viz.,  that
they are bound by the result  of  the  execution  proceedings  under Section
52, T.P. Act, the transferees from the original j.d. during the pendency  of
the execution proceedings against him, can be held  to  be  similarly  bound
and are liable to be proceeded against in execution".


The author has further said on page 387 as -


"A decree awarding certain reliefs  by  way  of  injunction  was  passed  in
favour of the plaintiff. Before execution was  applied  for,  the  defendant
died and the darkhast proceeded against two widows of the deceased  j.d.  as
his legal representatives. During the pendency of the  appeal  in  execution
the legal representatives  transferred  their  property  to  a  stranger.  A
question was raised that execution  could  not  proceed  against  the  legal
representatives and their transferee,  as  the  relief  granted  by  way  of
injunction was purely personal  and  the  original  j.d.  having  died,  the
injunction has ceased to  be  operative,  it  was  held  that  the  darkhast
originally  filed  against  the   legal   representatives   was   in   order
under Section 50, C.P.C., and was also good against the  transferee  as  the
transfer was not made under the authority of the Court and,  being  effected
during the pendency of a contentions proceeding in execution of the  decree,
could not be allowed to affect the  right  of  the  plaintiff  under Section
52, T.P. Act. (Krishnabai - v. - Sawlaram, I.L.R. 51 Bom. 37; 100 LC. 582  :
A.I.R. (1927) Bom. 93; also see, 9 Bom.  L.R.  1173;  I.L.R.  26  Bom.  140,
283.) An injunction is a personal remedy and does not run with the  land.  A
decree for an injunction therefore can be executed only against the  persons
against whom the injunction is issued and cannot  be  executed  against  any
other person in the absence of  a  statutory  provision.  If  an  injunction
decree is capable of being enforced against a person other than the j.d.  by
virtue of a statutory provision, e.g. Section 50, C.P.C, it can be  executed
equally against the son who inherits the estate of his  father  as  well  as
against one who was joint with the father and is brought on  the  record  as
his legal representative.  A d.h. sought to execute a decree  for  permanent
injunction obtained against the father in a joint Hindu family  against  his
sons. It was held that the decree being  passed  against  the  father  as  a
manager and representative of the joint family  could  be  executed  against
his son who represented the joint family; that  the  son  taking  the  joint
family estate by survivorship was to be regarded as a 'person'  who  in  law
represented the estate of a deceased person within the meaning of the  first
part of the definition in Section (2) (11), C.P.C"


                                                         (emphasis supplied)

21.   In Basavant Dundappa v. Shidalingappa Sidaraddi ILR  (1986)  Karnataka
1959 relied on by the respondents, it was held that when an application  had
been filed by the decree-holder for execution and  similar  application  was
dismissed on the ground that it was not  maintainable,  another  application
for the same relief stands barred.
22.   In Shivappa Basavantappa Devaravar v. Babajan 1999 (4) Kar. L.J.  293,
relied on  by  respondents,  where  in  a  suit  for  permanent  injunction,
injunction was granted and was upheld  by  the  first  Appellate  Court  and
second appeal was filed and the  legal  representatives  of  judgment-debtor
wanted to prosecute the same, a single Bench applied the  principle  of  the
maxim “actio personalis  maritur  cum  persona”  and  held  that  the  legal
representatives had no right to pursue  the  appeal.   In  our  opinion,  it
cannot be said  that  single  Bench  has  correctly  appreciated  the  legal
position as suit was based on title in the aforesaid decision.  At the  same
time, the Single Judge has also observed that if  the  injunction  had  been
obtained by plaintiff against the defendant and  if  plaintiff  died,  legal
representatives would have been entitled to the benefit of  injunction.   In
our opinion, the High Court has erred in dismissing  the  appeal.  The  said
maxim had no application, thus the decision cannot  be  said  to  be  laying
down the correct proposition of law and is overruled.
23.   Another decision which has been  referred  to  is  Abdul  Kardar  Haji
Hiroli v. Mrs. Judaih Jacob Cohen 1969 BLR 749 in which the  question  arose
about the  executability of the decree  containing  covenants  running  with
the land and the same was passed with the consent of the parties, the  Court
held that it was not executable against the third party  and  the  purchaser
of the land.  The question does not arise for consideration as  the  present
case is not the case of transfer or execution by or against  the  purchasers
of the land.
24.   Learned author Mulla in his Commentary on the Code of Civil  Procedure
(18th Edition) Vol I, while analyzing the provisions of Section 50  CPC  has
referred to various decisions of the High  Courts  (Sakarlal  v.  Parvatibai
(1902) 26 Bom 283, Amritlal v. Kantilal AIR 1931 Bom 280, Ganesh v.  Narayan
AIR 1931 Bom 484,  Dayasbhai  v.  Bapalal  (1902)  26  Bom  140,  Vithal  v.
Sakharam (1899) 1 Bom LR 854, Jamsetji v.  Hari  Dayal  (1908)  2  Bom  181,
Chothy Theyyathan v. John Thomas AIR 1997 Ker 249,  Krishnabai  v.  Savlaram
AIR 1927 Bom 93, Kalpuri Ellamma v. Nellutla Venkata Lakshmi 2008  (72)  All
Ind Cas 669) with respect to the executability of decree for injunction  and
observed at pages 687-688 thus:
      “12.   Decree for  injunction.-   An  injunction  obtained  against  a
defendant, restraining him  from  obstructing  plaintiff’s  ancient  rights,
may, on the death of the defendant, be enforced under this section,  against
his son as  his  legal  representative,  by  procedure  under  O  21,  r  32
(Sakarlal v. Parvatibai, (1902) 26 Bom 283;  Amritlal v. Kantilal, AIR  1931
Bom 280 : (1931) 33 Bom LR 266.  Code  of  Civil  Procedure  1882,  s  260).
Similarly, a decree for an injunction against a manager  and  representative
of a joint Hindu family can be enforced after his death against  a  son  who
represents the joint family (Ganesh v. Narayan, AIR 1931 Bom  484  :  (1931)
55 Bom 709).   But such an injunction cannot be enforced under this  section
against a purchaser of the property from the defendant,  for  an  injunction
does not run with the land.  The remedy of the decree-holder is to  bring  a
fresh suit for an injunction against the purchaser  (Dayasbhai  v.  Bapalal,
(1902) 26 Bom 140; Vithal v. Sakharam, (1899) 1  Bom  LR  854;  Jamsetji  v.
Hari Dayal, (1908) 32 Bom 181), when  the  decree  is  one  restraining  the
owner of the property from blasting rocks in his property on a finding  that
such blasting would injuriously affect the adjacent property of the  decree-
holder.  When once a decree is passed, it is obvious that the  defendant  in
the suit, judgment-debtor, would be  precluded  from  carrying  on  blasting
operation in his property.   To  say  that  when  he  is  succeeded  by  the
others, they would not be bound by the restrain relating  to  the  enjoyment
of the particular property is to derogate from the principle of  the  public
policy that there shall be no second  litigation  in  respect  of  the  same
right and the same property.  It cannot be the  policy  of  law  that  every
time an assignment of the decree schedule property take place,  the  decree-
holder should institute a fresh suit against the assignee, so as to  prevent
them from disobeying the  decree obtained by the decree-holder  against  the
original owner of the property (Chothy Theyyathan v. John Thomas,  AIR  1997
Ker 249.    See  notes  to  s  47,  ‘Representatives  No.  (6)-Purchaser  of
Property’).  The Bombay High Court  has  held  that  an  injunction  can  be
enforced against a person who has purchased while execution proceedings  are
pending, by virtue of the doctrine of lis pendens (Krishnabai  v.  Savlaram,
AIR 1927 Bom 93 : (1927) 51 Bom 37).

      In execution of a decree for perpetual injunction,  the  liability  of
the legal representatives of the judgment-debtors is limited to  the  extent
of interference which was restrained through such decree.  It is  only  such
legal representatives who defy the decree  that  can  be  proceeded  against
(Kalpuri Ellamma v. Nellutla Venkata Lakshmi, 2008 (72) All Ind  Cas  669).”


25.   In K. Umma v. T.K. Karappan AIR 1989 Ker 133 the High Court of  Kerala
has observed that where a decree for injunction is obtained against  a  sole
judgment-debtor, restraining him from obstructing the plaintiff in  erecting
a fence on the boundary of his property, the decree can be executed  against
the legal representatives of the judgment-debtor, if he dies.
26.   In our considered opinion the right which had been adjudicated in  the
suit in the present matter and the findings  which  have  been  recorded  as
basis for  grant  of  injunction  as  to  the  disputed  property  which  is
heritable and partible would enure not only to  the  benefit  of  the  legal
heir of decree-holders but also would bind the legal representatives of  the
judgment-debtor. It is apparent from section 50 CPC that  when  a  judgment-
debtor dies before the  decree  has  been  satisfied,  it  can  be  executed
against legal representatives. Section 50 is not confined  to  a  particular
kind of decree. Decree for injunction can also  be  executed  against  legal
representatives  of  the  deceased  judgment-debtor.  The   maxim     “actio
personalis moritur cum persona” is limited to  certain  class  of  cases  as
indicated by this Court in Girijanandini Devi v. Bijendra  Narain  Choudhary
(supra) and when the right litigated upon is  heritable,  the  decree  would
not normally abate and can be enforced by LRs. of decree-holder and  against
the judgment-debtor or his legal representatives. It would  be  against  the
public policy to ask the decree-holder to litigate once over  again  against
the  legal  representatives  of  the  judgment-debtor  when  the  cause  and
injunction survives.  No doubt, it is true  that  a  decree  for  injunction
normally does not run with the land. In the absence of statutory  provisions
it  cannot  be  enforced.  However,  in  view  of  the  specific  provisions
contained in section 50 CPC, such a decree can  be  executed  against  legal
representatives.
27.   Resultantly, we allow  the  appeals,  set  aside  the  impugned  order
passed by the  High  Court  and  hold  that  the  direction  issued  by  the
executing  court  that  an   undertaking   be   furnished   by   the   legal
representatives to  abide  by  the  decree  is  proper,  failing  which  the
executing court would proceed in a permissible mode in accordance  with  law
to enforce the decree under the provisions of Order  XXI  Rule  32  CPC.  No
costs.
                                             …………………………J.
                                             (Arun Mishra)

New Delhi;                                   ………………………..J.
February 20, 2017.                                 (Amitava Roy)

The case of the applicant is that they are carrying on business in manufacture and sale of salt since the year 1976 in the name and style as “AKAR Enterprises”. The trade mark “AKAR” with a particular artistic work, 2 design and get up and fonts for marketing of salt adopted by the applicant and has become distinctive on the ground of long and continuous use and acquired reputation and goodwill. The applicant had obtained the registration of the trade mark “AKAR” under No.556425 and 556426 in class 30. =there is enormous delay of 10 years in filing their present application in spite of knowing very well that the first respondent is continuously using the impugned trade mark “AKASH” right from the year 1999 and even as per their admission to the effect that they came to know about it from 14/03/2009 but they have not raised their little finger to file the present application and to take any action. It is seen that even the Civil Suit was filed only in the year 2009 in OS No.4431/2009 on the file of Additional City Civil Court, Bengaluru and the present application is filed only after nine years. It is pertinent to note that both the applicant and first respondent are having their business place in Bengaluru and also in the same area at New Tharagupet and such being the position it is unimaginable to state that the applicant came to know the use of impugned trade mark only in the year 2009. Considering all these aspects we are of the firm view that the first respondent is entitled to invoke the provision under section 33 in respect of the effect of acquiescence though the learned counsel for the applicant took pain to contend the present facts would not make out the case of acquiescence. In view of the above said reasons we are unable to countenance such contention. In view of the aforesaid reasons the ORA/82/2014/TM/CH is hereby dismissed.

INTELLECTUAL PROPERTY APPELLATE BOARD
Guna Complex, Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai – 600 018  ORA/82/2014/TM/CH TUESDAY THIS THE 1 st DAY OF MARCH, 2016.
Hon’ble Shri Justice K.N. Basha …Chairman
Hon'ble Shri Sanjeev Kumar Chaswal …Technical Member(Trademarks)
M/s AKAR Enterprises, at No.63, 2nd Main Road, Bangalore-560 002. … Applicant (Represented by – Mr. Harikrishna S. Holla)
 Vs.
1. M/s Sri Nanjundeshwara Traders, No.32/1, 3rd Cross 3rd Main Road, New Tharagupet, Bangalore – 560 002. …Respondent No.1 2. Mr. R.B. Vijayarajan, 1-H/3, Dhamotharanagar Main Road, Thoothukudi – 628003, TAMIL NADU. …Respondent No.2.
3. The Deputy Registrar of Trade Marks, I.P. Building, Industrial Area, G.S.T. Road, Chennai – 600032. …Respondent No.3. (Represented by – Mr.P.V.S. Giridhar) ORDER (No.20 of 2016) Hon’ble Shri Justice K.N. Basha, Chairman This application is filed by the applicant seeking for the relief of expunging and removing the trade mark “AKASH” bearing No.1147895 in class 30 in the name of M/s Sri Nanjundeshwara Traders, the first respondent herein. The second respondent stated to be a contract manufacturer of the first respondent herein.
CASE OF THE APPLICANT
2. The case of the applicant is that they are carrying on business in manufacture and sale of salt since the year 1976 in the name and style as “AKAR Enterprises”. The trade mark “AKAR” with a particular artistic work,
 2
design and get up and fonts for marketing of salt adopted by the applicant and has become distinctive on the ground of long and continuous use and acquired reputation and goodwill. The applicant had obtained the registration of the trade mark “AKAR” under No.556425 and 556426 in class 30.
3. The further case of the applicant is that they are the prior user and obtained prior registration of the trade mark “AKAR”. It is their case that they came to know about the use of the impugned trade mark “AKASH” by the first respondent herein which is deceptively similar to the applicant’s trade mark. It is stated that they have issued a legal notice dated 14/03/2009 calling upon the respondent 1 and 2 to cease and desist from using the trade mark “AKASH”. The first respondent has sent a reply to the legal notice through their counsel on 01/04/2009 denying the entire allegations. Thereafter the applicant filed a suit against the respondents 1 and 2 in OS No.4431/2009 on the file of the Additional City Civil Court, Bengaluru and the same is pending as on date.
4. It is stated that in view of the deceptive similarity of the impugned trade mark “AKASH” with that of the applicant’s trade mark “AKAR”
(i) It causes confusion among the consumers.
(ii) The applicant submitted that the first respondent have obtained the registration of the impugned trade mark “AKASH” in class 30 under No.1147895 on proposed to be used basis on 01/11/2002 and got the registration on 04/04/2005 and is valid upto 01/11/2022. Till the date of filing the application, the respondent has not been manufacturing and selling goods under class 30 of the Trade Marks Act. (iii) The applicant stated that the impugned trade mark is registered without any bonafide intention on the part of the first respondent to use the trade mark in relation to the goods and the first respondent is not using continuously for the period of five years from the date of which the trade mark is actually entered in the register and as such the 3 impugned trade mark is liable to be removed from the register on the ground of violation of section 47 (1) (a) and (b). It is also stated that there is violation of section 50 (ii) of the Trade Marks Act.
COUNTERSTATEMENT OF THE FIRST RESPONDENT
5. The first respondent emphatically denied the entire allegations contained in the application stating that all the grounds are frivolous, untenable and devoid of any factual or legal basis and there has been no violation of any provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act). (i) It is the case of the first respondent that they are the prior adopter and user of their trade mark “AKASH” and obtained a high reputation and goodwill due to its long, continuous and extensive use. In order to substantiate their claim they produced the sales invoices right from the year 1999-2000. They have also filed sales tax return along with their counter.
(ii) The first respondent applied for registration of their trade mark “AKASH” on 01/11/2002 since their trade mark attained the distinctive character and after following the procedure the registration certificate was issued to them and got the registration of the trade mark on 04/4/2005. It is the claim of the first respondent that they are using the trade mark from the year 1999 and produced the documents namely sales invoices from the year 2002.
(iii) The first respondent stated that though the applicant claimed usage of their trade mark from 1976 that they have stated even in the application in respect of sales turn over only from the year 1998-99. It is stated that the impugned trade mark “AKASH” is visually, phonetically and semantically different from the applicant’s trade mark “AKAR”. It is further 4 stated that even fonts are different in style, manner, artistic work and device from the applicant’s label.
(iv) The first respondent also stated that the impugned trade mark “AKASH” does not violate the provisions under section 9, 11, 18, 47 and 57 of the Act. It is categorically stated by the respondent that they are using the impugned trade mark right from the year 1999 honestly without any malafide intention. It is stated that the application filed by the applicant only in the year 2014 ie. fifteen years after the mark was registered in spite of knowing fully well all along the impugned mark was in wide use. The applicant has filed the present application with malafide motive. Therefore it is stated that the application is liable to be dismissed.
ARGUMENTS OF THE COUNSEL FOR APPLICANT
6. Mr. Harikrishan S. Holla, the learned counsel for the applicant would vehemently contend that the impugned trade mark “AKASH” has been wrongly registered and wrongly remaining in the register and as such the same is liable to be removed from the register and put forward the following contentions:-
(i) The applicant is the prior user of their trade mark “AKAR” right from the year 1976 in respect of salt and they have also obtained prior registration of their mark “AKAR” on 15/09/2000 and as such the first respondent suppressing registration of their mark and wrongly obtained the registration of the impugned mark “AKASH” only on 04/04/2005.
(ii) The applicant in order to substantiate their prior use they have stated about their sales turn over from the year 1998-99 to 2012-13 and thereby acquire distinctiveness by their long and continuous use of their trade mark “AKAR”.
5
(iii) The impugned trade mark “AKASH” is visually, phonetically and structurally similar to the applicant’s trade mark “AKAR” which would cause confusion among the consumers. (iv) In order to establish that they are selling their product salt under the trade mark “AKASH” they have produced the factual materials.
(v) The applicant with a view to proving the unauthorized use of impugned trade mark which is deceptively similar to that of the applicant’s trade mark, the applicant apart from issuing the legal notice in the year 2009 ultimately filed a Civil Suit under OS No.4431/2009 on the file of Additional City Civil Court at Bangaluru and the same is pending. The respondent having got the registration of the impugned trade mark without bonafide intention to use the same has caused irreparable damage to the business of the applicant and in view of their non use of the impugned trade mark provision under section 47 is also attracted.
(vi) Therefore, it is contended that the applicant has established the violation of the provisions under section 9, 11, 18, 47 and 57 by the first respondent and the impugned trade mark “AKASH” is liable to be expunged and removed from the register.
ARGUMENTS OF THE LEARNED COUNSEL FOR THE FIRST RESPONDENT
7. Mr. P.V.S. Giridhar, the learned counsel for the first respondent would strenuously contend that the present application is liable to be dismissed on the basis of the false, frivolous and baseless allegations contained in the application and would submit the following contentions :-
(i) The first respondent is the prior user of the impugned trade mark “AKASH” right from the year 1999 and the documents have been 6 produced from the year 1999 and got the registration on 04/04/2005 on the basis of the application submitted on 01/11/2002.
(ii) Though the applicant claimed the usage right from the year 1976, the applicant has miserably failed to prove by producing any single document to substantiate their claim except making bald and vague sales figures in the application without submitting any single document of invoices or any other documents.
(iii) The impugned trade mark “AKASH” cannot be stated to be visually, phonetically and semantically similar to that of the applicant’s trade mark “AKAR”.
(iv) Even the labels of the first respondent’s trade mark “AKASH” is entirely different from the label of the applicant’s trade mark “AKAR” in colour, design and style and both the fonts are entirely different.
(v) Even the meaning of the two trade marks viz. the first respondent trade mark “AKASH” means “SKY” and the applicant’s trade mark “AKAR” means “SHAPE” and as such there is no question of any deceptive similarity between the two marks in any manner which was likely to cause confusion and deception among the consumers. The applicant stated that they came to know about the impugned trade mark on 14/03/2009 and they have not taken any action of filing this present application immediately but they have waited for a period of 10 years by filing application before this Bench and as such the first respondent is entitled to invoke the provision under section 33 of the act as the applicant had acquiescence for a continuous period of five years of use of the trade mark of the first respondent and as such the applicant is not entitled to
7
seek relief of declaration that the registration of the impugned trade mark is invalid.
 DISCUSSIONS AND FINDINGS
8. We have given our careful, thoughtful and anxious consideration to the rival contentions put forward by either side and also thoroughly scanned through the entire materials available on record. 9. At the outset we are constrained to state that the impugned trade mark “AKASH” is visually, structurally and phonetically different from that of the applicants trade mark “AKAR” and as such there is no question of any deceptive similarity of the impugned trade mark as that of the applicant’s trade mark. We have also seen the labels of the trade marks of the applicants and the first respondent and it is pertinent to note that the label mark also consisting fonts in different style, colours, art works and device. If it is taken both the label together it looks entirely different from one another for a blanket eye. Therefore, by no stretch of imagination it can be contended by the applicant that the impugned trade mark “AKASH” is deceptively similar to that of the applicant’s trade mark “AKAR”. Therefore, there is no violation of provision under section 11 committed by the first respondent herein.
10. The applicant has claimed that they are the prior user of the trade mark “AKAR” right from the year 1976. It is pertinent to note that the applicant has not filed even a scrap of paper to establish that their trade mark is in use from the year 1976. It is seen that the applicant has come forward with the statement of sales turn over from the year 1998-99 to 2012-13. Here again we have to state that the said statement is nothing but the self declaration and cannot substantiate or authenticate by producing a single document of sales invoices or any other documents.
8
11. It is their further contention that they got the registration of their trade mark “AKAR” in the month of September, 2000 and as such they are the prior registered owner of their trade mark “AKAR” and the first respondent has got the registration only in the year 2005. It is well settled by a catena of decisions that mere registration itself is not sufficient to establish the prior use and it is incumbent on the part of the applicant to substantiate their claim of prior use by producing authenticated documents of sales of their goods. As far as the first respondent is concerned they have claimed prior use from the year 1999 and they have also produced registration of sales tax even in the year 1999 and there after produced the sales invoices from the year 2002 and they got the registration of their trade mark “AKASH” on 04/04/2005 on the basis of their application dated 01/11/2002. Therefore by no stretch of imagination it can be claimed by the applicant that they are the prior user.
12. The last but not the least contention put forward by the learned counsel for the first respondent is that there is enormous delay of 10 years in filing their present application in spite of knowing very well that the first respondent is continuously using the impugned trade mark “AKASH” right from the year 1999 and even as per their admission to the effect that they came to know about it from 14/03/2009 but they have not raised their little finger to file the present application and to take any action. It is seen that even the Civil Suit was filed only in the year 2009 in OS No.4431/2009 on the file of Additional City Civil Court, Bengaluru and the present application is filed only after nine years. It is pertinent to note that both the applicant and first respondent are having their business place in Bengaluru and also in the same area at New Tharagupet and such being the position it is unimaginable to state that the applicant came to know the use of impugned trade mark only in the year 2009. Considering all these aspects we are of the firm view that the first respondent is entitled to invoke the provision under section 33 in respect of the effect of acquiescence though the learned counsel for the applicant took pain to contend the present 
 9 
facts would not make out the case of acquiescence. In view of the above said reasons we are unable to countenance such contention. 
13. In view of the aforesaid reasons the ORA/82/2014/TM/CH is hereby dismissed. No order as to cost.
(SANJEEV KUMAR CHASWAL) (JUSTICE K.N. BASHA) TECHNICAL MEMBER CHAIRMAN Reportable : YES / NO plb