It is unfortunate to note that in a State like Gujarat, which strictly prohibits the use of alcohol in any form whatsoever, the accused caused death and injuries to several persons by supplying spurious country-made liquor. Taking a serious view of the matter, the complexity of the crime, the role played by accused persons as well as the number of casualties, we are of the view that it is not a fit case for grant of bail.We direct the trial Judge to proceed with the trial on day to day basis avoiding unnecessary adjournments. It is made clear that if the trial continues beyond one year from today, they are free to file fresh application before the trial Court. In that event, it is for the concerned court to dispose of the bail application on merits.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 334 OF 2013
(Arising out of S.L.P. (Crl.) No 3334 of 2012)
Ravindersingh @ Ravi Pavar .... Appellant(s)
Versus
State of Gujarat .... Respondent(s)
WITH
CRIMINAL APPEAL NO. 335 OF 2013
(Arising out of S.L.P. (Crl.) No. 4026 of 2012)
AND
CRIMINAL APPEAL NO. 336 OF 2013
(Arising out of S.L.P. (Crl.) No 4027 of 2012)
J U D G M E N T
P.Sathasivam,J.
1) Leave granted in all the special leave petitions.
2) Ravindersingh @ Ravi Pavar has preferred appeal
arising out of SLP (Crl.) No. 3334 of 2012 before this Court
against the final judgment and order dated 10.02.2012
1Page 2
passed by the High Court of Gujarat at Ahmedabad in
Criminal Misc. Application No. 1281 of 2012 whereby the
High Court dismissed his application filed under Section 439
of the Code of Criminal Procedure, 1973 (in short ‘the Code’)
seeking regular bail in C.R. No. 252 of 2009 registered with
Odhav Police Station, Ahmedabad for the offences
punishable under Sections 302, 307, 328, 272, 273, 201,
109, 114, 120B of the Indian Penal Code, 1860 (‘IPC’ for
short) and Sections 65(a)(b)(c)(d)(e), 66(1)(b), 67-1A, 72, 75,
81 and 83 of the Bombay Prohibition Act, 1949.
3) The State of Gujarat, aggrieved by the judgment and
order dated 29.09.2011, passed by the High Court in Criminal
Misc. Application Nos. 12384 and 12385 of 2011 whereby the
High Court enlarged one Jayesh Hiralal Thakkar (A-2) on bail
in connection with C.R. No. 161 of 2009 registered with
Kagdapith Police Station, Ahmedabad for the offences
punishable under Sections 120B, 302, 307, 328, 272, 273,
201, 217, 221, 109 and 114 of IPC and Sections 65(a)(b)(c)
(d)(e), 66(1)(b), 68, 72, 75, 81 and 83 of the Bombay
Prohibition Act, 1949 and C.R. No. 252 of 2009 registered
2Page 3
with Odhav Police Station, Ahmedabad for the very same
offences, has filed the other two appeals arising out of
special leave petition Nos. 4026 and 4027 of 2012.
4) Since the subject-matter of all the three appeals is one
and the same, they are being disposed of by this common
judgment.
S.L.P. (Criminal) No. 3334 of 2012:
5) The case relates to the hooch tragedy which resulted
into the death of 147 persons and serious physical injuries to
205 others after consuming spurious country-made liquor
consisting poisonous chemical Methyl Alcohol in different
parts of the Ahmedabad city, Gujarat, in July, 2009 for which
case has been registered against several accused persons
under various Sections of IPC and the Bombay Prevention
Act, 1949 with Odhav and Kagdapith Police Stations vide C.R.
Nos. 252 and 161 of 2009 respectively.
6) The charge framed against Ravindersingh @ Ravi Pavar
(accused No.11) is that he was a party to a meeting held with
other accused persons prior to the date of the incident
wherein they conspired to manufacture and distribute
3Page 4
country-made liquor consisting poisonous chemical Methyl
Alcohol, in order to gain financial benefit, by selling the same
due to its low cost. The charge sheet further proceeds that
as a part of criminal conspiracy, he along with other accused,
agreed to manufacture and distribute/sell such liquor to
suppliers in spite of the knowledge that on consumption of
the same, it can cause death or severe physical
damage/injury to the consumer.
7) When the accused/appellant moved an application
under Section 439 of the Code in connection with C.R. No.
252 of 2009, before the High Court, on going into the specific
allegations against him, his role and involvement in the
hooch tragedy which resulted into more than 147 deaths in
the city of Ahmedabad and after satisfying prima facie case
as well as considering the gravity of the crime punishable
under Section 302 etc. the High Court rejected his third
successive bail application.
8) Mr. K.T.S. Tulsi, learned senior counsel for the appellant,
after taking us through the allegations in the charge sheet
and connected materials submitted that in the absence of
4Page 5
any material that the appellant had any knowledge that illicit
liquor was poisonous or that he had any intention to cause
the death of the deceased persons at the most it is the case
under Section 304 of IPC and not under Section 302 of IPC.
He further submitted that the High Court failed to consider
that the co-accused, alleged to be having similar role as that
of the appellant as well as those accused allegedly having
graver role, have already been granted bail and, therefore,
on the ground of parity also, the accused/appellant deserves
to be enlarged on bail on the same terms and conditions.
9) Ms. Hemantika Wahi, learned counsel appearing for the
State, by taking us through the allegations mentioned in the
charge sheet, statement of witnesses and the gravity of the
offence submitted that in view of the appellant’s association
with the main accused, namely, Vinod @ Dagri (A-1) and also
taking note of the fact that he is a “habitual offender”
involved in many similar offences, it is not desirable to
enlarge him on bail and according to her, the High Court was
fully justified in dismissing his bail application.
5Page 6
10) We have carefully considered the allegations, materials
placed, gravity of the offence etc. in detail.
11) Normally, while considering the application for bail, it is
not necessary for the court to assess the materials placed by
either side discuss and arrive at a definite conclusion.
However, taking note of the gravity of the offence, we have
no other option except to deal with those aspects confining
to the disposal of the bail application. The charge sheet
(Annexure-P3) filed along with the special leave petition
gives the details of involvement/role played by the accused
persons. The role of the present appellant (A-11) reads as
under:
“The accused No.11 Ravindersingh @ Ravi s/o Jayramsingh
Pavar mentioned in column No.1 who was doing the
business of country and foreign liquor with his partners
column No.1 accused Nos. 29 and 30 and having the
criminal history and remaining in contact with the accused
No.1 for obtaining cheap country liquor having Methyl
Alcohol made the partnership with the accused No.1 and
obtained county liquor having Methyl Alcohol from accused
No.1 and in spite of aware of the fact that it caused
physical harm which cause death of the persons brought it
from Vanthvadi village on 06.07.2009 through his persons
accused No. 32 and 33 and sold it on cheap rates to the
column No.1 accused Nos. 27, 28 and 31 and column No. 2
accused Nos. 1 and 2 and also selling it to his own liquor
stand place situated in Bapunagar area behind General
Hospital through his persons and on drinking caused the
death of the persons and also causing the serious injuries
to the peoples fulfilled the criminal conspiracy and on
6Page 7
06.07.2009 lots of people died in the Ahmedabad city
drinking the poisonous liquor and admitted into the
Hospitals and in spite of knowing the said facts continue to
sell the poisonous country liquor committed the serious
nature offence and thereafter disposed off the evidence
had disposed the chemicalized poisonous liquor which is in
his possession.”
12) Mr. Tulsi, learned senior counsel for the
accused/appellant has contended that the only allegation
against him is that he has simply sold the country-made
liquor and prima facie no case is being made out against him
for manufacturing spurious liquor and, therefore, he cannot
be charged under Sections 302, 307 and 328 of IPC. On
going through the entire materials, we are unable to accept
the same.
13) The materials placed by the prosecution show that the
appellant was not just a supplier of alcohol but was one of
the main conspirators along with Vinod @ Dagri (A-1) in the
manufacture of spurious alcohol along with other co-accused.
It is the case of the prosecution as established by the
statement of witnesses that the appellant, along with main
accused, with a view to earn easy money, hatched a
conspiracy for manufacturing spurious alcohol from Methyl
7Page 8
Alcohol, very well knowing that it is poisonous and can cause
death or severe physical damage/injury on consumption.
The statements of various persons relied on by the
prosecution supports the above stand. The investigation
further revealed that on the next day of the hooch tragedy in
July, 2009, the appellant and his two associates had gone to
one-Farzana Banu to sell the huge stock of spurious liquor,
since the premises of the appellant was raided by the Police.
14) A perusal of the reasoning of the High Court as well as
the materials placed by the prosecution prima face establish
that the appellant was not a mere supplier of spurious
alcohol but he was involved in the criminal conspiracy of
manufacturing spurious liquor along with the main coaccused Vinod @ Dagri (A-1) and selling the same at various
places through his men. The statements of various persons
including one Dahiben support the greater role played by the
accused/appellant.
15) Mr. Tulsi, learned senior counsel has also claimed parity
with the co-accused Jayesh Hiralal Thakker (A-2), who has
been granted bail by the High Court, vide order dated
8Page 9
29.09.2011, in the similar offence and claimed similar order
in respect of the present appellant - Ravindersingh @ Ravi
Pavar. He also brought to our notice that bail has been
granted to one Minaben (A-27) on 20.07.2011 and the State
has not filed any special leave petition before this Court. As
far as grant of bail to Jayesh Hiralal Thakker is concerned, the
State has filed Special Leave Petition (Criminal) Nos. 4026
and 4027 of 2012, which we are going to consider after the
conclusion of the present appeal. Hence, the appellant
cannot claim parity with the co-accused Jayesh Hiralal
Thakker. Insofar as the order granting bail to A-27 is
concerned, we were taken through the reasons appended to
in her bail application and also of the fact that she being a
lady, we are of the view that the appellant cannot claim
parity with the said accused in claiming bail.
16) Apart from the above materials, learned counsel for the
State has also brought to our notice that the appellant is a
“habitual offender” and is facing more than 20 cases
including similar cases under the various provisions of IPC
and the Bombay Prohibition Act, 1949. It is further pointed
9Page 10
out that there is every likelihood that if the
accused/appellant is released on bail, he would threaten the
witnesses and again indulge in sale of spurious liquor.
17) It is a well known fact that Methanol is a poisonous
substance and by adding the same while manufacturing
spurious alcohol, it can have devastating results and can
cause death or severe damage to health or injuries to
anyone who consumes it. Further, such type of offences, as
in the case on hand, are against the society at large and who
commit the same do not deserve any leniency, particularly,
in the State of Gujarat where complete prohibition is being
followed. Merely because the accused/appellant had spent
three years as an undertrial prisoner, taking note of the
gravity of the offence, he is not entitled for bail. As observed
earlier, in view of the gravity of the offence, death of a
number of persons, injury to several others and the impact
on the society as a whole, we hold that the appellant is not at
all entitled to bail at this stage and the High Court has rightly
denied his application for bail, consequently, the appeal of
the accused fails and the same is dismissed.
10Page 11
Appeals filed by the State:
S.L.P. (Criminal) Nos. 4026 and 4027 of 2012
18) The above mentioned appeals have been preferred by
the State wherein the respondent–Jayesh Hiralal Thakker (A-
2) is an accused in C.R. No.161 of 2009 registered with
Kagdapith Police Station, Ahmedabad and C.R. No. 252 of
2009 registered with Odhav Police Station, Ahmedabad and
in both the cases, he has been charged under various
sections of IPC and the Bombay Prohibition Act, 1949, as
mentioned earlier and was granted bail by the High Court.
19) The respondent is Accused No. 2 in C.R. No. 252 of 2009
and C.R. No. 161 of 2009 registered at Odhav and Kagdapith
Police Stations respectively wherein total of 147 persons died
and 205 persons were seriously injured after consuming
spurious liquor prepared from chemicals like ethanol and
methanol, which were supplied by the respondent-accused,
who was trading in those hazardous chemicals, to Vinod @
Dagri (A-1) for the preparation of country-made liquor. It is
highlighted by the prosecution that during the course of
investigation, it was revealed that respondent (A-2) is a
11Page 12
prime conspirator and had indulged in supplying methyl
alcohol for manufacturing country made liquor. According to
the prosecution, the statements recorded from seven
witnesses reveal about the involvement of the respondent. It
is also projected by the prosecution that one of the witnesses
stated that near the petrol pump at Mogar, there is a godown
and two barrels were put in his vehicle to be delivered to A-1,
who was the mastermind in preparation of country made
liquor out of methyl alcohol, supplied by A-2 at village
Vanthwadi. It is also their case that respondent (A-2) had
purchased about 500-600 plastic and iron barrels as per his
requirement and again in the month of July, he purchased 70
more barrels. The prosecution has also projected that A-2
had sufficient knowledge about the properties of methyl
alcohol and that it is poisonous to use in the preparation of
country liquor. Despite this, the respondent used to obtain
the same illegally from the tankers coming from Kutch and
Mumbai through absconding co-accused and kept the same
in his custody without permit and supplied it to Vinod @
12Page 13
Dagri (A-1) for the preparation of liquor. All these particulars
form part of charge sheet filed on 05.09.2009.
20) The specific allegations in the charge sheet about the
respondent (A-2) are as under:
“Accused No.2 Jayesh Hiralal Thakkar stated in the Column
No.(1) having the criminal antecedents who is running
illegal business of chemical at the Godown situated at the
petrol Pump located at Village – Mogar, in company of the
Accused No.3 named in the Column No.(1) and through the
accused Nos. 3, 4 and 5 mentioned in the Column No. (2)
had illegally obtained the poisonous Methyl Alcohol from
the Tankers coming from Bomby and Kutch possessed the
same without any Pass or permit, and inspite of having
knowledge regarding poisonousness of Methyl Alcohol and
that it is to be used in preparing liquor the Accused Nos. 4,
5, 6, 7 and 8 had sold the poisonous Methyl Alcohol to
Accused No.1 for manufacturing Degenerated poisonous
country liquor and thereby have played active role in the
conspiracy with the view to earn monetary profit and after
the declaration of Hooch Tragedy disposed of the Methyl
Alcohol within their possession and had gone on run and
thereby have committed serious offence.”
21) The information furnished by the prosecution clearly
shows that in a State having complete prohibition policy, the
supply of raw material for liquor, its production and
distribution are illegal. It is also demonstrated that
respondent (A-2) has illegally supplied poisonous chemicals
like ethyl and methyl alcohol to A-1 for the manufacture of
country made liquor. It is not in dispute that if anyone
consumes liquor manufactured out of ethyl/methyl alcohol, it
13Page 14
would have a very adverse effect on the body and can cause
death or bodily injury as is likely to cause death. In spite of
the abundant materials placed by the prosecution and even
after taking note of the fact that the samples sent to Forensic
Science Laboratory (FSL) for analysis confirmed the presence
of methanol and ethanol and also of the fact that A-2 has
supplied those materials to A-1, the claim that he had no
knowledge about all these aspects is unacceptable. Though
the learned Single Judge of the High court perused and
verified the expert opinion of the Medical Officer, the FSL
report and noted that poisonous chemical is found, after
casually finding that there is no “meeting of mind” and
“agreement for criminal conspiracy” accepted the case of A-
2 and enlarged him on bail.
22) The other reason given by the High Court is that the
whole transaction in the said business of A-2 was looked after
by his nephew and in view of the fact that he has already
disposed of the petrol pump, concluded that prima facie
ingredients of Sections 299 and 300(4) of IPC would not
14Page 15
attract and enlarged him on bail after imposing certain
conditions.
23) We have already noted that because of the conduct of
A-2 in supplying ethanol and methanol to A-1 for preparation
of spurious liquor, several casualties and injuries were
resulted and in view of the acceptable materials, we are
unable to accept the reasoning of the High Court. We are
constrained to observe that the High Court, in a casual way,
has concluded that since his business was looked after by his
nephew and he also disposed of his petrol pump, A-2 cannot
be blamed, which according to us, is not a valid ground for
enlarging him on bail.
24) In para 5 of the rejoinder affidavit, the State has
highlighted that A-2 is a “habitual offender” and there are 22
cases pending against him in various police stations. It is
also mentioned in the counter affidavit that during the period
while he was granted temporary bail by the High Court, he
indulged in an offence of theft and a case was registered
against him vide I-C.R. No. 92 of 2011 under Section 379 of
IPC by the Vasad Police Station for which he was arrested on
15Page 16
10.08.2011 and later enlarged on bail. It is also brought to
our notice that the respondent A-2, while on regular bail, was
arrested on 13.09.2012 in Vadodara city in connection with
Javaharnagar Police Station crime registered vide I-C.R. No.
94 of 2012 under Sections 407, 408 and 120B and later on
he was released on bail.
25) Taking note of all these aspects, his antecedents, the
gravity and nature of offence, loss of human lives, the impact
on the social fabric of the society, his continuous involvement
in criminal activities while on bail, we are satisfied that
respondent (A-2) does not deserve to continue to remain on
bail.
26) In a State having prohibition policy, supply of raw
material for liquor, its production and distribution are illegal
and A-2 has supplied those poisonous chemicals such as
ethyl and methyl alcohol to A-1 for the manufacture of
spurious country made liquor. It is a matter of common
knowledge that if any one consumes liquor manufactured out
of ethyl/methyl alcohol, it would have very adverse effect on
16Page 17
the body which can cause death or bodily injury as is likely to
cause death.
27) Under these circumstances, considering the nature of
the offence and the manner in which A-2 supplied those
poisonous chemicals despite having full knowledge about its
consequences, we are satisfied that the respondent (A-2)
does not deserve liberty of remaining on bail. Accordingly,
the judgment and order dated 29.09.2011 passed by the
High Court in Criminal Misc. Application Nos. 12384 and
12385 of 2011 is set aside. The respondent (A-2) is directed
to surrender before the court concerned within a period of
two weeks from today, failing which, necessary steps be
taken for his arrest in order to put him in jail.
28) It is unfortunate to note that in a State like Gujarat,
which strictly prohibits the use of alcohol in any form
whatsoever, the accused caused death and injuries to
several persons by supplying spurious country-made liquor.
Taking a serious view of the matter, the complexity of the
crime, the role played by accused persons as well as the
17Page 18
number of casualties, we are of the view that it is not a fit
case for grant of bail. 
29) In the light of the above discussion, the appeal of the
accused-Ravinder Singh @ Ravi Pavar is dismissed. 
We direct
the trial Judge to proceed with the trial on day to day basis
avoiding unnecessary adjournments.
It is made clear that if
the trial continues beyond one year from today, they are free
to file fresh application before the trial Court. In that event, it
is for the concerned court to dispose of the bail application
on merits. It is made clear that whatever observations made
above are only for the purpose of disposal of the bail
application. It is for the trial Court to decide on the basis of
the materials placed before it in accordance with law.
30) The appeal of Ravindersingh @ Ravi Pavar (A-11) is
dismissed and the appeals filed by the State are allowed.
………….…………………………J.
(P. SATHASIVAM)
 ………….…………………………J.
NEW DELHI; (JAGDISH SINGH KHEHAR)
18Page 19
FEBRUARY 22, 2013.
19Page 20
20

Order VII Rule 14 , Section 151 or Order 18 Rule 17 of the Code =The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that nonproduction earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. With these principles, let us consider the merits of the case in hand. 11) The perusal of the materials placed by the plaintiff which are intended to be marked as bills have already been mentioned by the plaintiff in its statement of account but the 8Page 9 original bills have not been placed on record by the plaintiff till the date of filing of such application. It is further seen that during the entire trial, those documents have remained in exclusive possession of the plaintiff but for the reasons known to it, still the plaintiff has not placed these bills on record. In such circumstance, as rightly observed by the trial Court at this belated stage and that too after the conclusion of the evidence and final arguments and after reserving the matter for pronouncement of judgment, we are of the view that the plaintiff cannot be permitted to file such applications to fill the lacunae in its pleadings and evidence led by him. As rightly observed by the trial Court, there is no acceptable reason or cause which has been shown by the plaintiff as to why these documents were not placed on record by the plaintiff during the entire trial. Unfortunately, the High Court taking note of the words “at any stage” occurring in Order XVIII Rule 17 casually set aside the order of the trial Court, allowed those applications and permitted the plaintiff to place on record certain bills and also granted permission to recall PW-1 to prove those bills. Though power 9Page 10 under Section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of the court and Court can exercise its discretion to permit reopening of evidence or recalling of witness for further examination/cross-examination after evidence led by the parties, in the light of the information as shown in the order of the trial Court, namely, those documents were very well available throughout the trial, we are of the view that even by exercise of Section 151 of CPC, the plaintiff cannot be permitted. 12) After change of various provisions by way of amendment in the CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and 10Page 11 acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC. 13) Under these circumstances, the impugned order of the High Court dated 23.08.2011 in C.M. No. 707 of 2010 (Civil 11Page 12 Revision No. 707 of 2010) is set aside and the order dated 25.02.2010 of the trial Court is restored. 14) The appeal is allowed with no order as to costs.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1787 OF 2013
(Arising out of S.L.P. (C) No.35268 of 2011)
M/s Bagai Construction Thr.
Its Proprietor Mr. Lalit Bagai .... Appellant(s)
Versus
M/s Gupta Building Material Store ....
Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the order dated
23.08.2011 passed by the High Court of Delhi at New Delhi
in C.M.(M) No. 707 of 2010 (Civil Revision No. 707 of 2010)
whereby the learned single Judge of the High Court allowed
the revision filed by the respondent herein and set aside the
order dated 25.02.2010 of the Additional District Judge,
Delhi.
1Page 2
3) Brief facts:
(a) The appellant is a proprietorship concern dealing in
interior decoration and construction work and Mr. Lalit Bagai
is the sole proprietor of the said concern. The respondent is
a partnership firm registered with the Registrar of Firms vide
Registration No. 1237/93 dated 07.06.1993 and is engaged
in the business of sale and supply of building materials.
(b) Admittedly, the appellant and respondent have often
transacted with each other. According to the respondent,
the appellant made various purchases on credit from them
for which payments were made in parts and the same were
credited to his account maintained by them. It is alleged by
the respondent that after adjusting all the payments being
made by the appellant, an amount of Rs.4,35,250.18 is due
against his firm. Despite repeated demands, requests, and
reminders, the appellant has not cleared the outstanding
amount. Therefore, the respondent sent legal notice dated
11.04.2005 to the appellant through his counsel calling upon
him to pay the outstanding dues along with interest @ 2%
2Page 3
per month. Despite notice, the appellant did not pay any
amount, therefore, the respondent instituted a suit against
him for recovery of sum of Rs.4,35,250.18 along with
interest accrued thereon. After the arguments were
concluded in the suit on 27.10.2009, the matter was
adjourned for judgment on 03.11.2009. 
(c) In the meantime, on 31.10.2009 the respondent moved
two applications, one under Order VII Rule 14 read with
Section 151 of the Code of Civil Procedure, 1908 (in short
“CPC”) for placing on record certain documents and the
other under Order XVIII Rule 17 read with Section 151 of CPC
for seeking permission to recall PW-1 for proving certain
documents by leading his additional evidence. By order
dated 25.02.2010, the Additional District Judge, Delhi
dismissed both the applications. 
(d) Dissatisfied with the said order, the respondent filed
revision petition being CM (M) No. 707 of 2010 (Civil
Revision No. 707 of 2010) before the High Court of Delhi.
The learned single Judge of the High Court by impugned
order dated 23.08.2011 allowed the revision and set aside
3Page 4
the order dated 25.02.2010 passed by the Additional District
Judge, Delhi. 
(e) Aggrieved by the said order, the appellant has
preferred this appeal by way of special leave.
4) Heard Mr. Siddharth Yadav, learned counsel for the
appellant and Mr. Jinendra Jain, learned counsel for the
respondent.
5) The only point for consideration in this appeal is
whether the plaintiff has made out a case for allowing the
applications one filed under Order XVIII Rule 17 read with
Section 151 CPC and another application under Order VII
Rule 14 read with Section 151 CPC?
The trial Court
dismissed both the applications, however, the High Court by
the impugned order set aside the order of the trial Court and
directed taking on record the bills which are proposed to be
filed by the plaintiff, granted permission to recall PW-1 to
prove those bills. The High Court passed such order in
favour of the plaintiff subject to payment of cost of
Rs.5,000/-
4Page 5
6) In order to find out the acceptability of the impugned
order or not, it is useful to refer the relevant provisions of
the CPC which read thus:
“Order VII Rule 14
14. Production of document on which plaintiff sues
or relies.- 
(1) Where a plaintiff sues upon a document or
relies upon document in his possession or power in support
of his claim, he shall enter such documents in a list, and
shall produce it in Court when the plaint is presented by
him and shall, at the same time deliver the document and
a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or
power of the plaintiff, he shall, wherever possible, state in
whose possession or power it is.
(3) A document which ought to be produced in Court by
the plaintiff when the plaint is presented, or to be entered
in the list to be added or annexed to the plaint but is not
produced or entered accordingly, shall not, without the
leave of the Court, be received in evidence on his behalf at
the hearing of the suit.
(4) Nothing in this rule shall apply to document
produced for the cross examination of the plaintiff’s
witnesses, or, handed over to a witness merely to refresh
his memory.”
Order XVIII Rule 17
“17. Court may recall and examine witness.- 
The
Court may at any stage of a suit recall any witness who has
been examined and may (subject to the law of evidence for
the time being in force) put such questions to him as the
Court thinks fit.”
Section 151 of CPC
“151. Saving of inherent powers of Court.- 
Nothing in
this Code shall be deemed to limit or otherwise affect the
inherent power of the Court to make such orders as may
5Page 6
be necessary for the ends of justice or to prevent abuse of
the process of the Court.”
7) Before going into the merits of claim of both the
parties, let us recapitulate the views expressed by this Court
through recent decisions.
8) In Vadiraj Naggappa Vernekar (dead) through
LRs. vs. Sharadchandra Prabhakar Gogate, (2009) 4
SCC 410, this Court had an occasion to consider similar
claim, particularly, application filed under Order XVIII Rule 17
and held as under: 
“25. In our view, though the provisions of Order 18 Rule 17
CPC have been interpreted to include applications to be
filed by the parties for recall of witnesses, the main
purpose of the said Rule is to enable the court, while trying
a suit, to clarify any doubts which it may have with regard
to the evidence led by the parties. The said provisions are
not intended to be used to fill up omissions in the evidence
of a witness who has already been examined.
28. The power under the provisions of Order 18 Rule 17
CPC is to be sparingly exercised and in appropriate cases
and not as a general rule merely on the ground that his
recall and re-examination would not cause any prejudice to
the parties. That is not the scheme or intention of Order 18
Rule 17 CPC.
29. It is now well settled that the power to recall any
witness under Order 18 Rule 17 CPC can be exercised by
the court either on its own motion or on an application filed
by any of the parties to the suit, but as indicated
hereinabove, such power is to be invoked not to fill up the
lacunae in the evidence of the witness which has already
been recorded but to clear any ambiguity that may have
arisen during the course of his examination.
6Page 7
31. Some of the principles akin to Order 47 CPC may be
applied when a party makes an application under the
provisions of Order 18 Rule 17 CPC, but it is ultimately
within the court's discretion, if it deems fit, to allow such
an application. In the present appeal, no such case has
been made out.”
9) If we apply the principles enunciated in the above case
and the limitation as explained with regard to the application
under Order XVIII Rule 17, the applications filed by the
plaintiff have to be rejected. However, learned counsel for
the respondent by placing heavy reliance on a subsequent
decision, namely, K.K. Velusamy vs. N. Palanisamy,
(2011) 11 SCC 275, submitted that with the aid of Section
151 CPC, the plaintiff may be given an opportunity to put
additional evidence and to recall PW-1 to prove those
documents and if need arises other side may be
compensated. According to him, since the High Court has
adopted the said course, there is no need to interfere with
the same.
10) In Velusamy (supra) even after considering the
principles laid down in Vadiraj Naggappa Vernekar
(supra) and taking note of Section 151 CPC, this Court
concluded that in the interests of justice and to prevent
7Page 8
abuse of the process of the Court, the trial Court is free to
consider whether it was necessary to reopen the evidence
and if so, in what manner and to what extent. Further, it is
observed that the evidence should be permitted in exercise
of its power under Section 151 of the Code. The following
principles laid down in that case are relevant:
“19. We may add a word of caution. 
The power under
Section 151 or Order 18 Rule 17 of the Code is not
intended to be used routinely, merely for the asking. If so
used, it will defeat the very purpose of various
amendments to the Code to expedite trials. But where the
application is found to be bona fide and where the
additional evidence, oral or documentary, will assist the
court to clarify the evidence on the issues and will assist in
rendering justice, and the court is satisfied that nonproduction earlier was for valid and sufficient reasons, the
court may exercise its discretion to recall the witnesses or
permit the fresh evidence. But if it does so, it should
ensure that the process does not become a protracting
tactic. The court should firstly award appropriate costs to
the other party to compensate for the delay. Secondly, the
court should take up and complete the case within a fixed
time schedule so that the delay is avoided. Thirdly, if the
application is found to be mischievous, or frivolous, or to
cover up negligence or lacunae, it should be rejected with
heavy costs.
With these principles, let us consider the merits of the case
in hand.
11) The perusal of the materials placed by the plaintiff
which are intended to be marked as bills have already been
mentioned by the plaintiff in its statement of account but the
8Page 9
original bills have not been placed on record by the plaintiff
till the date of filing of such application. It is further seen
that during the entire trial, those documents have remained
in exclusive possession of the plaintiff but for the reasons
known to it, still the plaintiff has not placed these bills on
record. In such circumstance, as rightly observed by the
trial Court at this belated stage and that too after the
conclusion of the evidence and final arguments and after
reserving the matter for pronouncement of judgment, we are
of the view that the plaintiff cannot be permitted to file such
applications to fill the lacunae in its pleadings and evidence
led by him. As rightly observed by the trial Court, there is no
acceptable reason or cause which has been shown by the
plaintiff as to why these documents were not placed on
record by the plaintiff during the entire trial. Unfortunately,
the High Court taking note of the words “at any stage”
occurring in Order XVIII Rule 17 casually set aside the order
of the trial Court, allowed those applications and permitted
the plaintiff to place on record certain bills and also granted
permission to recall PW-1 to prove those bills. Though power
9Page 10
under Section 151 can be exercised if ends of justice so
warrant and to prevent abuse of process of the court and
Court can exercise its discretion to permit reopening of
evidence or recalling of witness for further
examination/cross-examination after evidence led by the
parties, in the light of the information as shown in the order
of the trial Court, namely, those documents were very well
available throughout the trial, we are of the view that even
by exercise of Section 151 of CPC, the plaintiff cannot be
permitted. 
12) After change of various provisions by way of
amendment in the CPC, it is desirable that the recording of
evidence should be continuous and followed by arguments
and decision thereon within a reasonable time. This Court
has repeatedly held that courts should constantly endeavour
to follow such a time schedule. If the same is not followed,
the purpose of amending several provisions in the Code
would get defeated. In fact, applications for adjournments,
reopening and recalling are interim measures, could be as
far as possible avoided and only in compelling and
10Page 11
acceptable reasons, those applications are to be considered.
We are satisfied that the plaintiff has filed those two
applications before the trial Court in order to overcome the
lacunae in the plaint, pleadings and evidence.
It is not the
case of the plaintiff that it was not given adequate
opportunity. In fact, the materials placed show that the
plaintiff has filed both the applications after more than
sufficient opportunity had been granted to it to prove its
case. During the entire trial, those documents have
remained in exclusive possession of the plaintiff, still plaintiff
has not placed those bills on record. It further shows that
final arguments were heard on number of times and
judgment was reserved and only thereafter, in order to
improve its case, the plaintiff came forward with such an
application to avoid the final judgment against it. Such
course is not permissible even with the aid of Section 151
CPC.
13) Under these circumstances, the impugned order of the
High Court dated 23.08.2011 in C.M. No. 707 of 2010 (Civil
11Page 12
Revision No. 707 of 2010) is set aside and the order dated
25.02.2010 of the trial Court is restored. 
14) The appeal is allowed with no order as to costs. 
...…………………………………J.
 (P. SATHASIVAM)
...…………………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
FEBRUARY 22, 2013.
12Page 13
13

sec.90,110,145 and land encroachment act = Section 90 of the Evidence Act is based on the legal maxims : Nemo dat quid non habet (no one gives what he has not got); and Nemo plus juris tribuit quam ipse habet (no one can bestow or grant a greater right, or a better title than he has himself). - The maxim “possession follows title” is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of waste lands, or where nothing is known about possession one-way or another. Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. It infact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him. A person must establish that he has continued possession of the suit property, while the other side claiming title, must make out a case of trespass/encroachment etc. Where the apparent title is with the plaintiffs, it is incumbent upon the defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that 1Page 14 favour his version. Even, a revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof, both forward and backward, can also be raised under Section 110 of the Evidence Act. 14. The courts below have failed to appreciate that mere acceptance of municipal tax or agricultural tax by a person, cannot stop the State from challenging ownership of the land, as there may not be estoppel against the statute. Nor can such a presumption arise in case of grant of loan by a bank upon it hypothecating the property. 15. The trial court has recorded a finding to the effect that the name of one Raja Ram was shown as Pattadar in respect of the land in dispute and the respondent/plaintiff is in possession. Therefore, the burden of proof was shifted on the government to establish that the suit land belonged to it. Learned counsel for the respondent/plaintiff could not furnish any explanation before us as to who was this Raja Ram, Pattadar and how respondent/plaintiff was concerned with it. Moreover, in absence of his impleadment by the respondent/plaintiff such a finding could not have been recorded. 1Page 15 16. The courts below erred in holding, that revenue records confer title, for the reason that they merely show possession of a person. The courts below further failed to appreciate that the sale deed dated 11.11.1959 was invalid and inoperative, as the documents on record established that the vendor was merely a lessee of the Government. 17. In view of the above, we are of the considered opinion that findings of fact recorded by the courts below are perverse and liable to be set aside. The appeal succeeds and is allowed. The judgments of the courts below are hereby set aside. The suit filed by the respondent/plaintiff is dismissed.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6690 of 2004
The State of A.P. & Ors.                              …Appellant(s)
Versus
M/s. Star Bone Mill & Fertiliser Co.             …Respondent(s)
J U D G M E N T
Dr. B. S. CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment
and order dated 22.3.2004, passed by the High Court of Judicature of
Andhra Pradesh at Hyderabad  in City Civil Court Appeal No. 72 of
1989, by way of which the Civil Suit filed by the respondent against
the appellants, 
claiming title over the suit land in dispute, has been
upheld.
 Page 2
2. The facts and circumstances giving rise to this appeal are:
A. One Shri M.A. Samad, Assistant Engineer, City Improvement
Board,  Hyderabad,  along with  his  associate,  converted  the  land  in
dispute measuring 3.525 acres i.e. 17061 sq. yards, in favour of the
Forest Department in 1920.  
B. The  suit  land  was  given  on  lease  on  21.5.1943  to  M/s.  A.
Allauddin & Sons for a fixed time period, incorporating the terms and
conditions, that the lessee would not be entitled to extend the  existing
building in any way, or to erect any structure on the land leased. The
lessee  was  also  prohibited  from  transferring  the  suit  land  by  any
means.  
C. The said M/s. A. Allauddin & Sons, a proprietory concern, sent
a letter dated 29.9.1945 in response to the eviction notice, informing
the appellants that it was not possible for it to remove the factory
established  on  the  suit  land,  and  thus,  the  said  lessee  asked  the
appellants to put up the said property for rent. The said firm, then sent
a letter dated 1.5.1951, offering rent of Rs.600/- per annum. 
D. The appellants vide letter dated 20.12.1954, informed M/s. A.
Allauddin & Sons to vacate the site within a period of one month, or
2Page 3
else be evicted in accordance with law, and in that case it would also
be liable to pay damages.  
In spite of receiving such a letter, the said
lessee/tenant  remained  in  possession  of  the  suit  premises,  and
continued to pay rent, as is evident from the letter dated 15.8.1956.
The appellants, however, vide letter dated 21.2.1958, asked the said
lessee/tenant M/s. A. Allauddin & Sons, yet again, to vacate the suit
land. 
E. Instead of vacating the suit land, M/s. A. Allauddin & Sons
executed  a  lease  deed  dated  24.2.1958,  and  got  it  registered  on
6.4.1958, in favour of Syed Jehangir Ahmed and others (Partners of
the respondent firm, M/s Star Bone Mill and Fertiliser Co.), for a
period of two years.  During the subsistence of the said sub-lease, the
partners of the firm M/s. A. Allauddin & Sons, executed a sale deed
on 11.11.1959 in favour of the respondent, for a consideration of
Rs.45,000/-.  The said sale deed was also registered, and possession
was handed over to the respondent.  
F. The  respondent  herein  filed  a  petition  in  1964  before  the
Minister for Agriculture & Forest, seeking permanent lease of the suit
premises in his favour.  
On 26.4.1967, an order was passed by the
Ministry of Agriculure & Forest in respect of recovery of arrears of
3Page 4
rent  as  regards  the  said  land.   The  respondent  vide  letter  dated
7.5.1969, offered higher rent to the appellants for the suit land.  
G. On  22.5.1970,  the  respondent  wrote  a  letter  to  the  Chief
Minister  of  Andhra  Pradesh  (Ex.B-39),  stating  that  he  had  been
cheated by M/s. A. Allauddin & Sons, as it had executed a sale deed
in his favour, even though it had no title, and a very high rate of rent
was fixed by the department, which should be reduced and till the
matter is finally decided, a rent of Rs.569/- per month should be
accepted.  The said application/petition was rejected by the Assistant
Secretary to the Government, Food & Agriculture Department, vide
letter dated 18.12.1970.
H. Aggrieved, the respondent filed Writ Petition No. 187 of 1971
wherein an interim order dated 12.1.1971 was passed, to the effect
that the recovery of rent for the period prior to 26.4.1969 would be
made  at  the  rate  of  Rs.568/-  per  month  instead  of  Rs.1279/-  per
month. Subsequent to 26.4.1969, rent would be recovered at the rate
of  Rs.1279/-  per  month.   In  case,  arrears  are  not  paid  by  the
respondent, he would be vacated from the suit land.  
4Page 5
I. In view of the interim order of the High Court, the appellants
issued a demand notice for a sum of Rs.45,484.62 paise.  However,
vide order dated 19.10.1971, the High Court directed the respondent
to deposit a sum of Rs.30,000/-, in eight monthly installments. The
said writ petition was disposed of vide order dated 18.2.1972, asking
the  respondent  to  approach  the  appropriate  forum  to  establish  his
rights over the suit land, or to make a representation to the State
Government for this  purpose.
J. The  appellants  served  notice  dated  8.4.1974,  upon  the
respondent under Section 7 of the Land Encroachment Act, and the
respondent  submitted  a  reply  to  the  said  show  cause  notice  on
24.6.1974.
The matter was adjudicated and decided on 21.8.1974,
under Section 6 of the Land Encroachment Act, and the respondent
was directed to vacate the suit land.  
K. The respondent filed Writ Petition No. 5222 of 1974 before the
High Court, however, the same was dismissed, after giving liberty to
the respondent to approach the civil court.
Thus, the respondent filed
Original  Suit  No.  582  of  1974  for  declaration  of  title  and  for
injunction,  restraining  the  appellants  from  evicting  the  said
respondent/plaintiff from the property in dispute. 
5Page 6
The appellants contested the suit by filing a written statement,
and on the basis of the pleadings therein, a large number of issues
were  framed,  including  whether  M/s.  A.  Allauddin  &  Sons  was
actually the owner and possessor of the suit land; and whether it could
transfer the suit land to the respondent/plaintiff, vide registered sale
deed dated 11.11.1959.
L. The  City  Civil  Court,  vide  judgment  and  decree  dated
25.4.1989 decreed the suit, holding that the Government was not the
owner of the suit land, and that the respondent/plaintiff had a better
title  over  it.  Thus,  he  was  entitled  for  declaration  of  title,  and
injunction as sought by him.
M. Aggrieved, the appellants preferred City Civil Court Appeal
No. 72 of 1989 before the High Court, challenging the said judgment
and decree dated 25.4.1989, which was dismissed vide judgment and
decree dated 22.3.2004, affirming the judgment and decree of the trial
court.
Hence, this appeal.
6Page 7
3. Shri Amarendra Sharan, learned senior counsel appearing on
behalf  of  the  appellants,  has  submitted  that  the  courts  below
misdirected themselves and did not determine the issue as regards,
whether the vendor of the respondent/plaintiff had any title over the
suit property. The same is necessary to determine the validity of the
sale deed in favour of the respondent/plaintiff.  The issue before the
trial court was not whether the Government was the owner of the said
land or not. No such issue framed either.  Moreover, such an issue
could  not  be  framed  in  view  of  the  admission  made  by  the
respondent/plaintiff itself,  as it had been paying rent regularly to the
Government, and the same was admitted by it, by way of filing an
application before the Government stating, that M/s. A. Allauddin &
Sons had cheated it by executing a sale deed in its favour, without any
authority/title. It thus, requested the Government to execute a lease
deed/rent deed in its favour.  It was not its case, that in its earlier two
writ petitions filed by it, it had acquired title over the land validly,  or
that  M/s. A. Allauddin & Sons etc., had any title over the said suit
land. The lease deed executed by the Government in favour of M/s. A.
Allauddin & Sons, dated 21.5.1943 must be considered in light of the
provisions  of  Section  90  of  the  Evidence  Act,  1872  (hereinafter
7Page 8
referred  to  as  the  `Evidence  Act’),  and  not  the  sale  deed  dated
11.11.1959,  as the suit was filed in 1974, just after a period of 15
years of sale, and not 30 years.  The courts below have erred in
applying  the provisions of Section  90 of the  Evidence  Act.   The
findings of fact recorded by the courts below are  perverse, being
based on no evidence and have been recorded by a misapplication of
the law. Thus, the appeal deserves to be allowed.
4. On the contrary, Shri D. Rama Krishna Reddy, learned counsel
appearing  on  behalf  of  the  respondent,  has  opposed  the  appeal,
contending that the findings of fact recorded by the courts below, do
not warrant interference by this Court.  It is evident from the revenue
records that possession is prima facie evidence of ownership, and that
the same is by itself, a limited title, which is good except to the true
owner.  The admission and receipt of tax constitutes admission of
ownership,  and  the  entries  in  the  revenue  record  must  hence,  be
presumed to be correct. In the revenue record, one Raja Ram has
been shown to be the owner of the land, the Forest Department cannot
claim any title or interest therein.  The said appeal lacks merit, and is
liable to be dismissed.
8Page 9
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records.
6.
Admittedly, the High Court erred in holding that the sale deed
dated 11.11.1959, must be considered in light of the provisions of
Section  90  of  the  Evidence  Act,  instead  of  the  period  mentioned
therein,  thereby  treating  the  appeal  as  a  continuation  of  the  suit.
Therefore,  the  period  of  30  years  mentioned  therein,  has  been
calculated  from 1959, till the date of the decision of the appeal, i.e.
22.3.2004.  
This view itself is impermissible and perverse,  and cannot
be  accepted.   
The  courts  below  have  not  given  any  reason,
whatsoever,  for  the  said  lease  deed  to  be  treated  as  having  been
executed on 21.5.1943, under Section 90 of the Evidence Act and,
thus, for believing that the land belonging to the Forest Department,
which had in turn,  given it to M/s. A. Allauddin & Sons on lease. 
7. Section 90 of the Evidence Act is based on the legal maxims :
Nemo dat quid non habet (no one gives what he has not got); and
Nemo plus juris tribuit quam ipse habet (no one can bestow or grant a
greater right, or a better title than he has himself).
9Page 10
This  section  does  away  with  the  strict  rules,  as  regards
requirement  of  proof,  which  are  enforced  in  the  case  of  private
documents, by giving rise to a presumption of genuineness, in respect
of certain documents that have reached a certain age.  The period is to
be reckoned backward from the date of the offering of the document,
and not any subsequent date, i.e., the date of decision of suit or appeal.
Thus,  the  said  section  deals  with  the  admissibility  of  ancient
documents, dispensing with proof as would be required, in the usual
course of events in usual manner.
8. There has been a clear admission by the respondent/plaintiff in
its letter dated 22.5.1970 (Ex.B-39), to the effect that it had been
cheated by M/s. A. Allauddin & Sons, who had no title over the suit
land, and sale  deed dated 11.11.1959, had thus been executed in
favour of the respondent/plaintiff by way of misrepresentation.  The
said  application  was  rejected  vide  order  dated  18.12.1970.  While
filing the writ petition, the respondent/plaintiff did not raise the issue
of title of the Forest Department, infact, the dispute was limited only
to the extent of  the amount of rent, and its case remained the same
even  in  the  second  writ  petition,  when  it  was  evicted  under  the
1Page 11
Encroachment  Act.  
The  trial  court  framed  various  issues,  and
without  giving  any  weightage  to  the  documents  filed  by
appellant/defendant,  decided  the  case  in  favour  of  the
respondent/plaintiff, with total disregard to any legal requirements.
The  courts  below  have  erred  in  ignoring  the  revenue  record,
particularly, the documents showing that the Government was the
absolute owner of the suit land since at least 1920.
9. No person can claim a title better than he himself possess.  In
the instant case, unless it is shown that M/s. A. Allauddin & Sons had
valid  title,  the  respondent/plaintiff  could  not  claim  any  relief
whatsoever from court.
10.  In  Gurunath  Manohar  Pavaskar  &  Ors.  v.  Nagesh
Siddappa Navalgund & Ors., AIR 2008 SC 901, this Court held as
under:-
“A revenue record is not a document of title.  It
merely  raises  a  presumption  in  regard  to
possession.   Presumption  of  possession  and/or
continuity thereof both forward and backward can
also be raised under Section 110 of the Evidence
Act.”
1Page 12
11. In Nair Service Society Ltd. v. K.C. Alexander & Ors. &
Ors., AIR 1968 SC 1165, dealing with the provisions of Section 110
of the Evidence Act, this Court held as under:-
“Possession may prima facie raise a presumption
of title no one can deny but this presumption can
hardly arise when the facts are known.  When the
facts disclose no title in either party, possession
alone decides.”
12. In Chief Conservator of Forests, Govt. of A.P. v. Collector
& Ors., AIR 2003 SC 1805, this Court held that :
“Presumption,  which  is  rebuttable,  is  attracted
when  the  possession  is  prima  facie  lawful  and
when the contesting party has no title.”  
13. The principle enshrined in Section 110 of the Evidence Act, is
based on public policy with the object of preventing persons from
committing  breach  of  peace  by  taking  law  into  their  own  hands,
however good their title over the land in question may be.  It is for this
purpose, that the provisions of Section 6 of the Specific Relief Act,
1963, Section 145 of Code of Criminal Procedure, 1973, and Sections
154 and 158 of Indian Penal Code, 1860, were enacted.
All the afore-
1Page 13
said provisions have the same object.
The said presumption is read
under Section 114 of the Evidence Act, and applies only in a case
where there is either no proof, or very little proof of ownership on
either  side.  
The  maxim “possession  follows title”  is applicable  in
cases where proof of actual possession cannot reasonably be expected,
for instance, in the case of waste lands, or where nothing is known
about possession one-way or another.
Presumption of title as a result
of possession, can arise only where facts disclose that no title vests in
any party. 
Possession of the plaintiff is not prima facie wrongful, and
title of the plaintiff is not proved. 
It certainly does not mean that
because a man has title over some land, he is necessarily in possession
of it. 
It infact means, that if at any time a man with title was in
possession of the said property, the law allows the presumption that
such possession  was in continuation of the title vested in him. 
A
person must establish that he has continued possession of the suit
property, while the other side claiming title, must make out a case of
trespass/encroachment  etc.  
Where  the  apparent  title  is  with  the
plaintiffs, it is incumbent upon the defendant, that in order to displace
this claim of apparent title and to establish beneficial title in himself,
he must establish by way of satisfactory evidence, circumstances that
1Page 14
favour his version. 
Even, a revenue record is not a document of title.
It merely raises a presumption in regard to possession.  Presumption of possession and/or continuity thereof, both forward and backward, can also be raised under Section 110 of the Evidence Act.
14.
The courts below have failed to appreciate that mere acceptance
of municipal tax or agricultural tax by a person, cannot stop the State from challenging ownership of the land, as there may not be estoppel against the statute.  Nor can such a presumption arise in case of grant of loan by a bank upon it hypothecating the  property. 
15. The trial court has recorded a finding to the effect that the name
of one Raja Ram was shown as Pattadar in respect of the land in
dispute and the respondent/plaintiff is in possession. Therefore, the
burden of proof was shifted on the government to establish that the
suit land belonged to it. 
Learned counsel for the respondent/plaintiff
could not furnish any explanation before us as to who was this Raja
Ram, Pattadar and how respondent/plaintiff was concerned with it.
Moreover, in absence of his impleadment by the respondent/plaintiff
such a finding could not have been recorded. 
1Page 15
16. The courts below erred in holding, that revenue records confer
title, for the reason that they merely show possession of a person. The
courts  below  further  failed  to  appreciate  that  the  sale  deed  dated
11.11.1959 was invalid and inoperative, as the documents on record
established that the vendor was merely a lessee of the Government.  
17. In view of the above, we are of the considered opinion that
findings of fact recorded by the courts below are perverse and liable to
be set aside.  The appeal succeeds and is allowed. The judgments of
the  courts  below  are  hereby  set  aside.  The  suit  filed  by  the
respondent/plaintiff is dismissed.  
                             .……….……………………………………………
J.           (Dr. B.S. CHAUHAN)
………………………………………………………J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi,                                                                                
February 21, 2013
1

whether Section 69(2) is a bar to a suit filed by an unregistered firm even if a statutory right is being enforced or even if only a Common Law right is being enforce - Partnership Act, 1932 : Section 59(2). Suit by unregistered firm-Maintainability of--Unregistered firm filed a suit for permanent injunction restraining the defendants. from infringing its trademark-The suit was based on common law and contractu - Dismissing the appeal, this Court HELD : 1.1. A suit is not barred by Section 69(2) of the Partnership Act, 1932 if a statutory right or a common law right is being enforced. [1256-C] Raptokas Brett Co. Ltd. v. Ganesh Property, [1988] 7 SCC 1

CASE NO.:
Appeal (civil)  1786 of 2000

PETITIONER:
HALDIRAM BHUJIAWALA AND ANR.

RESPONDENT:
ANAND KUMAR DEEPAK KUMAR AND ANR.

DATE OF JUDGMENT: 28/02/2000

BENCH:
M. JAGANNADHA RAO & A.P. MISRA

JUDGMENT:
JUDGMENT

2000 (1) SCR 1247

The Judgment of the Court was delivered by M. JAGANNADHA RAO, J. Leave
granted

This appeal has been preferred by the two defendants, M/s. Hal-diram
Bhujiawala and Sri Ashok Kumar against the judgment of the Delhi High Court
in FAO 365 of 1999 dated 30.11.1999. By that order the High Court summarily
dismissed the appellants' appeal against the order of the learned Single
Judge dated 2.11.1999 in IA 5996/99 in Suit No. 635/92. The IA was filed
under Order 7 Rule 11 CPC by the appellants for rejection of the plaint
filed by two plaintiffs, Anand Kumar Deepak Kumar trading as Haldiram
Bhujiawala and Shiv Kishan Agarwal, - on the ground that the 1st plaintiff
was a partnership not registered with the Registrar of Firms on the date of
suit i.e. on 10.12.91 and that the subsequent registration of the firm on
29.5.92 would not cure the initial defect.

The suit was filed by the plaintiff (1) for permanent injunction
restraining the defendants - appellants, their partners, servants etc. from
infringing the trade-mark No. 285062 and from using the trademark/name
'HALDIRAM BHUJIA WALA' or any identical name/mark deceptively similar
thereto (2) for damages in a sum of Rs. 6 lakhs and (3) for destruction of
the material etc.

As we are dealing with a matter arising under Order 7 Rule 11 CPC, it will
be necessary to refer to the plaint allegations. One Ganga Ram alias
Haldiram, carried on business in the name Maldiram Bhujia Wala, since 1941.
In 1965, he constituted a partnership with his two sons Moolchand, Shiv
Kishan and his daughter-in-law Kamla Devi, (wife of another son R.L.
Aggarwal) to carry on business under the same name. In December 1972, the
said firm applied for registration before the Registrar of Trade Marks for
registration of the name Haldiram Bhujia Wala - Chand Mal - Ganga Bishan
Bhujiawala, Bikaner. The Registrar of Trade Marks granted registration with
the No. 285062. On 16.11.1974, the partnership was dissolved and under the
terms of the dissolution deed the above trade mark fell exclusively to the
share of Mool Chand. son of Ganga Bishan and father of plaintiffs, for the
whole country (except West Bengal). Thus Sri Mool Chand became sole
proprietor of the trade-mark in the said area while Smt. Kamla Devi was
given ownership of the trade-mark rights for West Bengal. It is stated that
Sri Lala Ganga Bishan Haldi Ram executed his last will dated 3.4.1979 and
also reiterated the rights conferred by the dissolution deed on the
respective parties. Ganga Bishan died in 1980. His will was later acted
upon. Later, the testator's son, Sri Moolchand too died in 1985 leaving
being his lour sons, Shiv Kishan, Shiv Kishan, Manohar Lal and Madhusoodan.
All of them got their names recorded as subsequent -joint proprietors. The
latter three formed a partnership in 1983 and were running a shop in
Chandni Chowk, New Delhi selling various goods under the abovesaid trade
mark of Haldiram Bhujia Wala. In the meantime, on 10.10.77, Mool Chand's
brother Sri R.L. Aggarwal (husband of Kamla Devi) and his son Prabhu
Shankar, Calcutta applied for registration in this very name at Calcutta
claiming to be full owners of the said trade mark without disclosing the
dissolution deed dated 16.11.74. When the Registrar objected on 14.4.78,
they replied on 18.7.78 that they alone were trading in this name in
Calcutta. The defendants have no right to use the said trade beyond
Calcutta. The plaintiff s registered trade mark was, in the usual course,
renewed on 29.12.86 till 28.12.93. The plaintiffs have also acquired a
right on account of prior adoption and long user The 1st plaintiff firm,
consisting of three sons of Moolchand and the 2nd plaintiff (the fourth son
of Moolchand) are joint owners of the trade mark (except in West Bengal).
The 1st defendant firm is a namely constituted firm intending to start its
business and has been formed by Ashok Kumar, son of Kamla Devi. The 2nd
defendant is Ashok Kumar himself in his individual capacity. They have no
right to use this trade mark outside West Bengal. The plaintiffs came to
know of the violation of trade mark by defendants 1 and 2 in December 1991
when defendants opened a shop at Arya Samaj Road, Karol Bagh, New Delhi.
The cause of action for the suit is the fact that defendant acted :

'"in violation of the common law and contractual rights of the plaintiff.

On these grounds, defendants are to be restrained by permanent injunction
from using the trade mark and a sum of Rs. 6 lakhs is payable as damages.

The defendants, as already stated, have filed the application under Order
7, Rule 11, CPC pleading Section 69(2) of the Partnership Act, 1932 as a
bar to maintainability of the suit. The learned Single Judge dismissed the
application after referring to M/s. Virendra Dressers Delhi v. M/.v.
Varinder Garments, AIR (1982) Delhi 482 and to M/s. Bestochem For-malities
v. M/s. Dinesh Ayurvedic Agencies and Ors., RFA (OS) 17/99 dated 12.7.99
rendered by the Division Bench of the Delhi High Court on the ground that
the right to injunct the defendants in respect of the plaintiffs' Trade
Mark was based on principles applicable to a passing off action and the
said right was a common law right and did not arise under any contract. The
learned Judge also relied upon a judgment to this Court in M/.s. Raptakos
Brett & Co. Ltd. v. Ganesh Property, [1998] 7 SCC 184. The application
under Order 7, Rule 11, CPC was dismissed by an order dated 2.11.99. This
order was confirmed by a Division Bench of the Delhi High Court on
30.11.99, as already stated.

In this appeal, learned senior counsel for appellants, Sri Ashok Desai and
Sri R.F. Nariman contended that the 1st plaintiff firm was not registered
with the Registrar of Firms on the date of suit, that the plaint repeatedly
referred to the proprietary right of late Moolchand as having arisen out
the dissolution deed dated 16.11.1974 and that without reference to the
said document - which was a contact - the plaintiffs could not prove their
right to the trade mark through Moolchand and the suit was barred since
Section 69(2) referred to a right "arising from a contract'. The plaintiffs
right was based on the contract dated 16.11.74. The words 'arising from a
contract' were akin to the words 'arising out of a contract' used in Ruby
General Insurance Co. Ltd. v Pearey Lal Kumar and Anr, [1952] SCR 501
wherein while construing those words in relation to an arbitration clause,
this Court held that the said words held to be construed widely. The
learned counsel contended that, on the facts of this case and as stated in
the plaint at several places, the 1st plaintiff was compelled to rely on
the contract of dissolution dated 16. 11.74 to prove title to the trade
mark and thereby for an injunction and hence it was not a right claimed
under Common Law or under any statute, like the Trade Marks Act.

On the other hand, learned senior counsel lor the respondents -plaintiffs,
Sri Copal Subramanium supported the view of the High Court by contending
that the suit for injunction was based upon two rights, one being statutory
under the Trade Marks Act arising out of prior registration of trade mark
and alternatively, the suit was also based on Common Law right available in
a passing-off action. The suit was not based on any contract between
plaintiffs and defendants. The provision in Section 69(2) did not apply if
the right sought to be enforced did not arise out of a contract between the
plaintiffs' firm and the defendants. The reference in the plaint to the
dissolution deed dated 16.11.74 was merely a reference to a historical fact
that that was the source of the right of Moolchand and on his death, the
said right to the trade mark devolved on his sons, three of whom are joined
in a firm (i.e. 1st plaintiff) and the fourth son is the second plaintiff.
The plaintiffs were not parties to (he deed of dissolution. The defendants
too were not parties to the dissolution deed though their mother was.
Hence, the bar under Section 69(2) did not apply.

The points that arise for consideration are :

(i) whether Section 69(2) bars a suit by a firm not registered on the date
of suit where permanent injunction and damages are claimed in respect of a
trade marks as a statutory right or by invoking Common Law principles
applicable to a passing-off action?

(ii) whether the words 'arising from a contract' in Section 69(2) refer
only to a situation where an unregistered firm is enforcing a right arising
from a contract entered into by the firm with the defendant during the
course of its business or whether the bar under Section 69(2) can be
extended to any contract referred to in the plaint unconnected with the
defendant, as the source of title to the suit property?

Point 1 :

The question whether Section 69(2) is a bar to a suit filed by an
unregistered firm even if a statutory right is being enforced or even if
only a Common Law right is being enforce came up directly for consideration
in this Court in M/s. Raptokas Brett Co. Ltd. v. Ganesh Property, [1998] 7
SCC 184. In that case, Majmudar, J. speaking for the Bench clearly
expressed the view that Section 69(2) cannot bar the enforcement by way of
suit by an unregistered firm in respect of a statutory right or a common
law right. On the facts of that case, it was held that the right to evict a
tenant upon expiry of the lease was not a right 'arising from a contract'
but was a common law right or a statutory right under the Transfer of
Property Act. The fact that the plaint in that case referred to a lease and
to its expiry, made no difference. Hence, the said suit was held not
barred. It appears to us that in that case the reference to the lease in
the plaint was obviously treated as a historical fact. That case is
therefore directly in point. Following the said judgment, it must be held
in the present case too that a suit is not barred by Section 69(2) if a
statutory right or a common law right is being enforced.

The next question is as to the nature of the right that is being enforced
in this suit. It is well settled that a passing off action is a common law
action based on tort (vide) Bengal Waterproof Ltd. v. Bombay Waterproof
Manufacturing Company and Anr., [1997] 1 SCC99. Therefore, in our opinion,
a suit for perpetual injunction to restrain the defendant not to pass-off
the defendant's goods as those of plaints by using the plaintiffs' trade
mark and for damages is an action at common law and is not barred by
Section 69(2). The decision in M/s. Virendra Dresses Delhi v. M/s. Varinder
Garments, AIR (1983) Delhi 482 and the decision of the Division Bench of
the Delhi High Court in M/s. Bestochem Formulation v. M/s. Dinesh Ayurvedic
Agencies and Ors., RFA (OS) 17/99 dt. 12.7.99) state that Section 69(2)
does not apply to a passing-off action as the suit is based on tort and not
on contract. In our opinion, the above decisions were correctly decided.
(The special leave petition No. 18418 of 1999 against the latter was in
fact dismissed by this Court on 28.1.2000.) The learned senior counsel for
the appellants no doubt relied upon Ruby General Insurance Co. Ltd. v.
Pearey Lal Kumar and Anr., [1952] SCR 501. That was an arbitration case in
which the words "arising out of a contract" were widely interpreted but
that decision, in our view, has no relevance in interpreting the words
"arising from a contract" in section 69(2) of the Partnership Act.

Likewise, if the reliefs of permanent injunction or damages are being
claimed on the basis of a registered trade mark and its infringement, the
suit is to be treated as one based on a statutory right under the Trade
Marks Act and is, in our view, not barred by Section 69(2).

For the aforesaid reasons. In both these situations, the unregistered
partnership in the case before us cannot be said to be enforcing any right
"arising from a contract". Point 1 is therefore decided in favour of the
plaintiffs-respondents.

Point 2 :

Question however arises as to what is the scope of the words 'enforc-ing a
right arising under the contract' used in Section 69(2)? Learned senior
counsel for the appellants repeatedly drew our attention to the allegation
in the plaint at various places that it was only under the deed of
dissolution dated 16.11.1974 that Moolchand, - the father of the partners
of the 1st plaintiff firm and the 2nd plaintiff - became proprietor of the
trade mark lor the whole of India (except West Bengal). That right develop
on the plaintiffs on the death of Moolchand. Therefore, it was contended
that the 1st plaintiff firm was definitely seeking to enforce a right
"arising from a contract", namely, the contract of dissolution dated
16.11.74. It was argued that the 1st plaintiff could not claim any
injunction or damages unless reliance was placed on the said contract and
hence the suit was barred by Section 69(2).

For the purpose of deciding this point, it is necessary to go into the
question as to what the legislature meant when it used the words 'arising
from a contract' in Section 69(2).

In our view, it will be useful in this context to refer to the Report of
the Special Committee (1930 -31) which examined the draft Bill and made
recommendations to the legislature.

Before going into the above Report of the Special Committee which preceded
the Partnership Act, 1932, it will be necessary to refer to the case in
Commissioner of Income Tax, AP v. Jayalakshmi Rice and Oil Mills Contractor
Co., [1971] 1 SCC 280, where this Court refused to refer to this very
Report for construing Section 59 of the Partnership Act. But, in our view,
that decision is no longer good law as it was clearly dissented on this
aspect in the judgment of the Constitution Bench in R.S. Nayak v. A.R.
Antulay, [1984] 2 SCC 183. In number of later judgments, this Court has
referred to the Reports of similar Committees or Commissions (vide G.P.
Singh's Interpretation of Statute, 7th Ed, pp. 196-197). In the latest case
in Hyderabad Industries Ltd. v. Union of India, [1995] 5 SCC 15 para 15,
notes on clauses were relied upon by the Constitution Bench for
understanding the legislative intent. The English Law has changed
completely after Pepper v. Hart, (1993) 1 All ER 42 (HL) in favour of
admissibility of such material. A restricted view was no doubt expressed in
P.V. Narasimharao v. State, in [1998] 4 SCC 626 (at. 691-692) that such
Reports can be looked into for the purpose of knowing the historical basis
or mischief sought to be remedied, but not for construing the provision
unless there is ambiguity. Even going by this restricted view, we find that
there is considerable ambiguity in Section 69(2) (unlike the English
Statute of 1916 and 1985) as to what is meant by the words 'arising out of
a contract' inasmuch as the provision does not say whether the contract in
Section 69(2) is one entered into by the firm with the defendant or with
somebody else who is not a defendant, nor to whether it is a contract
entered into with the defendant in business or unconnected with business.
Hence, in our view, it is permis-sible to look into the Report even for
purpose of construing Section 69(2).

We may state that it was on the basis of the Report of the Special
Committee that the Partnership Act, 1932 was later passed by the Legisla-
ture. The Committee consisted of Sir Brojendra Lal Mitter, Sir Dinshah F.
Mulla, Sir Alladi Krishnaswamy Iyer and Mr. Arthur Eggar. Para 16 of the
Report states that the 'Bill seeks to overcome this class of difficulty by
making registration optional, and by creating inducements to register which
will only bear upon firms in a substantial and fairly permanent way of
business. Paras 17, 18 and 19 of the Report are important. (See Mulla,
Partnership Act, 1st Ed. 1934, p. 167 at PP.176-177). Para 17 reads :

"17. The outlines of the scheme are briefly as follows. The English
precedent, in so far as it makes registration compulsory and imposes a
penalty for non-registration has not been followed, as it is considered
that this step would be too drastic for a beginning in India, and would
introduce all the difficulties connected with small or ephemeral
undertakings. Instead, it is proposed that registration should lie entirely
within the discretion of the firm or partner concerned; but, following the
English precedent, any firm which is not registered will be unable to
enforce its claim against third parties in the civil Court; and by partner
who is not registered will be unable to enforce his claims either against
third parties or against fellow partners".

It will be noticed that the above extract refers to the English precedent
which is partly not followed and which is partly followed. We shall be
referring to the said English precedent shortly but before we do so, we
have also to refer to paras 18 and 19 of the said Report.

The Report states in para 18, 19 and follows :

"18. Once registration has been effected the statement recorded in the
register regarding the constitution of the firm will be con-clusive proof
of the facts therein contained against the partners making them and no
partner whose name is on the register will be permitted to deny that he is
a partner - with certain natural and proper exceptions which will be
indicated later. This should afford a strong protection to persons dealing
with firms against false denials of partnership and the evasion of
liability by the substantial members of a firm".

19...............On the other hand, a third party who deals with a firm

and knows that a new partner has been introduced can either make
registration of the new partner a condition fur further dealings, or
content himself with the certain security of the other partners and the
chance of proving by other evidence, the partnership of the new but
unregistered partner. A third party who deals with a firm without knowing
of the addition of a new partner courts on the credit of the old partners
only and will not be prejudiced by the failure of the new partners to
register"

Similarly, para 23 also refers to those who deal with the firm.

The English precedent referred to in para 17, which has been not followed
in part but followed in part in drafting Section 69(2) is the one contained
by the Registration of Business Names Act. 1916. Section 7 of that Act
refers to penalties lor default in registration. As stated in the Report,
the penalty part of that Act has not been introduced in India but the
provisions of Section 8 creating disabilities in the way of the firm in
default is adopted. Section S of the above English Act is relevant and it
speaks of:

"the rights of that defaulter under or arising out of any contract made or
entered into by or on behalf of such defaulter in relation to the business
in respect to the carrying on of which particulars were required to be
furnished" (See Halsbury Statutes, 3rd Ed. Vol.37, p.867).

The above provision clearly signifies that the right that is sought to be
enforced by the unregistered firm and which is barred must be a right
arising out of a contract with a third party - defendant in respect of the
firm's business transactions.

Business Names Act, 1985 has replaced the above Act of 1916 and Section 4
of the new Act refers to the "Civil Remedies for breach of Section 4". It
provides for dismissal of the action "to enforce a right arising out of a
contract made in the course of a business" if the firm is not registered.
(see Halsbury, Statutes, 4th Ed, Vol. 48 at p.101).

The above Report and provisions of the English Acts, in our view, make it
clear that the purpose behind Section 69(2) was to impose a disability on
the unregistered firm or its partners to enforce rights arising out of
contracts entered into by the plaintiff firm with third party - defendant
in the course of the firm's business transactions.

In Raptokas Brett and Co., [1998] 7 SCC 184 it was clarified that the
contractual rights which are sought to be enforced by plaintiff firm and
which are barred under section 69(2) are "rights arising out of the
contract" and that it must be a contract entered into by the firm with the
third party defendants. Majmudar, J. stated (at p.191) as follows :

"A mere look at the aforesaid provision shows that the suit filed by an
unregistered firm against a third party for enforcement of any right
arising from a contract with such a third party would be barred........"

From the above passage it is firstly clear that contract must be a contract
by the plaintiff firm not with anybody else but with the third party
defendant.

The further and additional but equally important aspect which has to be
made clear is that - the contract by the unregistered firm referred to in
section 69(2) must not only be one entered into by the firm with the third
party - defendant but must also be one entered into by the plaintiff firm
in the course of the business dealing of the plaintiffs firm with such
third party - defendant.

It will also be seen that the present defendants who are sued by the
plaintiff - firm are third parties to the 1st plaintiff firm. Section 2(d)
of the Act defines 'third parties' as persons who are not partners of the
firm. The defendants in the present case are also third parties to the
contract of dissolution dated 16.11.74. Their mother, Kamla Devi was no
doubt a party to the contract of dissolution. The defendants are only
claiming a right said to have accrued to their mother under the said
contract dated 16.11.74 and then to the defendants. In fact, the said
contract of dissolution is not a contract to which even the present 1st
plaintiff firm or its partners or the 2nd plaintiff were parties. Their
father Moolchand was a party and his right to the trade mark devolved in
plaintiffs. The real crux of the question is that the legislature when it
used the word "arising out of a contract" in Section 69(2), it is referring
to a contract entered into in course of business transaction by the
unregistered plaintiff firm with its customers - defen-dants and the idea
is to protect those in commerce who deal with such a partnership firm in
business. Such third parties who deal with the partners ought to be enabled
to know what the names of the firm are before they deal with them in
business.

Further Section 69(2) is not attracted to any and every contract referred
to in the plaint as the source of title to an asset owned by the firm. If
the plaint referred to such a contract it could only be as a historical
fact. For example, if the plaint filed by the unregistered firm refers to
the source of the firm's title to a motor car and states that the plaintiff
has purchased and received a Motor Car from a foreign buyer under a
contract and that the defendant has unauthorisedly removed it from the
plaintiff firm's possession,  it is clear that the relief for possession
against defendant in the suit does not arise from any contract with
defendant entered into in the course of plaintiff firm's business with
defendants but is based on the alleged unauthorised removal of the vehicle
from the plaintiff firm's cus- tody by the defendant. In such a situation,
the fact that the unregistered firm has purchased the vehicle from somebody
else under a contract has absolutely no bearing on the right of the firm to
sue the defendant for possession of the vehicle. Such a suit would be
maintainable and Section 69(2) would not be a bar, even if the firm is
unregistered on the date of suit. The position in the present case is not
different.

In fact, the Act has not prescribed that the transactions or contracts
entered into by a firm with a third party are bad in law if the firm is an
unregistered firm. On the other hand, if the firm is not registered on date
of suit and the suit is to enforce a right arising out of a contract with
the third party- defendant in the course of its business, then it will be
open to the plaintiff to seek withdrawal of the plaint with leave and file
a fresh suit after registration of the firm subject of course to the law of
limitation and subject to the provisions of the Limitation Act. This is so
even if the suit is dismissed for a formal defect. Section 14 of the
Limitation Act will be available inasmuch as the suit has failed because
the defect of non-registra-tion falls within the words "other cause of like
nature" in section 14 of the Limitation Act, 1963. See Surajmal Dagduramji
Shop v. M/s. Srikishan Ram Kishan, AIR (1973) Bom. 313.

For all the reasons given above, it is clear that the suit is based on
infringement of statutory rights under the Trade Marks Act. It is also
based upon the common law principle of tort applicable to passing-off
actions. The suit is not for enforcement of any right arising out of a
contract entered into by or on behalf of the unregistered firm with third
parties in the course of the firm's business transactions. The suit is
therefore not barred by section 69(2).

For the aforesaid reasons, the appeal fails and is dismissed without costs.
We should not be understood as having said anything on the merits of the
case for we have confined ourselves to the allegations in the plaint as we
are here only dealing with an application filed by the appellants under
Order 7 Rule 11 CPC.