JUDGMENT

1. The only question for decision in this second appeal is whether the application for execution is barred by limitation. It was presented within three years of a prior application which was signed and put into <ORG> on behalf of the decree-holder by an agent. The question is whether that application was one presented in accordance with law, and that depends on whether the agent who presented it was one holding a general power of attorney and as such authorized to sign and present the petition under Section 37 of the repealed Code of Civil Procedure or one having a special power of attorney and not qualified to do so.

2. The power of attorney under which the agent acted authorised him to present applications for execution, to realize the amount due to the decree-holder, to compromise the claim and to do all other acts relating to the excution of the decree. The lower Courts have held that the agent had a special power of attorney. In taking this view they were much influenced by the fact that the power of attorney was executed on a stamp paper of the value of one rupee only. It need hardly be stated that the legal nature of a document must be determined by its contents and not by the value of the stamp duty paid for it. If a stamp of the appropriate value was not used for executing a document, that is a matter to be dealt with according to the rules provided for such cases. The expression "general power of attorney" has not been defined either in the Civil Procedure Code or in any other statute; nor has any case been brought to our notice which could be regarded as giving an authoritative decision on the question. But according to the view accepted by eminent lawyers there can be no doubt that the agent in this case had a general power of attorney. Story in his work on Agency, Section 17, says: "a special agency properly exists where there is a delegation of authority to do a single act; a general agency properly exists where there is a delegation to do all acts connected with a particular trade, business or employment. Thus, a person, who is authorised by his principal to execute a particular deed, or to sign a particular contract or to purchase a particular parcel or merchandise, is a special agent. But a person who is authorized by his principal to execute all deeds, sign all contracts, or to purchase all goods required in a particular trade, business or employment is a general agent in that particular trade, business, or employment." In <NAME> on Contract Vol I, p 39 a special agent is defined as one authorised "to do one or two particular things" and a general agent as one authorised "to transact all his principal's business or his business of a particular kind." In Halsbury's Law of England, Vol. I, p. 152 the following explanation is given. "A special agent is one who has anything to act for some special occasion or purpose which is not within the ordinary course of his business or profession. A general agent is one who has authority arising out of and in the ordinary course of his business or profession to do some act or acts on behalf of his principal in relation thereto or one who is authorised to act on behalf of the principal generally in transactions of a particular kind or incident to a particular business." The statement in the Encyclopedia of the Laws of England, 1st edition Vol. 10 p. 263 is similar. In Bouvier's Law Dictionary, Vol. 2, p. 714 the statement is "a general power authoriseS an agent to act generally on behalf of the principal; and a special power is one limited to particular acts." See also American Cyclopaedia of Laws and Procedure Vol. 31, p. 1338, <NAME> v. <NAME> (1818) 3 H. & N. 554 and <NAME> v. <NAME> (1861) 9 C.B. (N.S.) 592 S.C. 30 L.J.C.P. 223. The same conception seems to underlie Article 48 of Schedule I to the Indian Stamp Act . Clauses (a), (b) and (c) relate to an authority for procuring the registration of a document or documents or admitting the execution of one or more of such documents for registration, for acting in any other manner "in a single transaction." Clause (d) which apparently relates to a general power of attorney speaks of authority to not more than five persons "to act jointly and severally in more than one transaction or generally; Clause (e) relates to a similar authority to more than five but not more than ten persons. The expression "a single transaction" seems to apply either to a single act or to acts so related to each other as to form one judicial transaction such as all the acts necesary to perfect a mortgage or a sale of a particular property. This interpretation would be in accordance with the distinction between a special agent and a general agent as set forth in the authorities already referred to.

3. According to this view, when a power of attorney authorises a person to do all things and take all steps which may be necessary to complete the execution of a decree, it must in our opinion be regarded as a general power of attorney. The acts to be done might be of various and numerous kinds and could not be regarded as constituting one legal transaction. We may observe that the question has become immaterial under the New Code of Civil Procedure. Order III Rule 2 in describing the kind of agent by whom appearances, applications and acts may be made or done on behalf of a party uses wider language, viz., "persons holding powers of attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties."

4. We hold that the previous application for execution in this case was presented by an agent having a general power of attorney and it was therefore one presented in accordance with law. It follows that the present application is not barred by limitation. We reverse the order of the <ORG> below and remand the application to the court of first instance to be disposed of according to law. The Costs in this and in the lower appellate Court will abide the result.


JUDGMENT <NAME>, C.J.

1. There cannot be the least doubt or difficulty as to the meaning and application of Section 50, Act III of 1877, to such a case as the present. I have held that opinion ever since that Act came into operation, and I lately gave effect to it in a judgment on a Division Bench, not then anticipating the present reference. As to Section 5 of the General Glauses Act, it is idle to contend that it has any bearing whatever in such a case as this.

Pearson, J.

2. Section 50, Act III of 1877, declares that registered documents relating to land of which registration is optional shall take effect against unregistered documents; and the word "unregistered" is defined in the explanation thereunder to mean, in cases where the document is executed after the first day of July 1871, not registered under Act VIII of 1871 or the Act of 1877. That definition appears to me to preclude and negative the view that an unregistered document of 1876 could be protected by Section 6, Act I of 1868, from being affected by Section 50, Act III of 1877. Whether such a view could be maintained was stated to be the point for consideration.

Spankie, J.

3. In reply I would say that the provisions of Section 50, Act III of 1877, do apply to this case. I do not think that Section 6 of the General Clauses Act would apply to a case of this nature.

Oldfield, J.

4. The registration of the plaintiff's deeds is optional, and by Section 50 of Act VIII of 1871, which was in force at the time they were executed, they would take effect in preference to such a deed as that of the defendant though registered, since the registration of the latter is compulsory.

5. By the terms of Section 50 , Act III of 1877, however, every registered document, whether its registration be compulsory or optional, shall take effect against every unregistered document relating to the same property, and hence the defendant's document executed since the Act came into force will now take effect in preference to the plaintiff's. The effect upon the plaintiff's is of course that a document, which was perfectly valid and effective at the time it was executed against any such registered document as that of defendant which might subsequently be executed, has now become ineffectual against such a document.

6. I was at first inclined to consider that the <ORG> could not have intended such a result, particularly as no provision is made for enabling parties to register within a reasonable time those unregistered documents affected for the first time by the provisions of the new Act; and I was inclined to think that the right of persons circumstanced like the plaintiff might be saved by the provisions of Section 6 , General Clauses Act , whereby the repeal of any Statute, Act, or Regulation shall not affect anything done before the repealing Act shall have come into operation. But a careful-examination of Section 50 and the explanation annexed to it has satisfied me that the application of Section 6 of the General Clauses Act will not save plaintiff's documents from being affected by the provisions of Section 50 , for Act III of 1877, does more than merely repeal Act VIII of 1871. It contains in Section 50 an express provision by which all unregistered documents executed at the time the former laws referred to in the section were in force are to be defeated by all registered documents of the nature of those mentioned in the section. I would, therefore, answer the reference in the affirmative.

Straight, <NAME>

7. It appears to me that Section 50 of the Registration Act of 1877 is conclusive, and that the defendant's registered deed takes precedence of the plaintiff's unregistered bonds.


JUDGMENT <NAME>, J.

1. This is a plaintiff's appeal arising out of an order made on an application for the grant at an interim injunction. The plaintiff-appellant, a limited Company, is a manufacturer and seller of flash lights, dry cell batteries for use in flash lights and other articles. It carries on its business throughout India. It is the owner of the trade mark "Eveready" which is registered in the register of trade marks under Nos. 6727 and 6728. The "Eveready" flash lights which are in dispute in the present case have impressed on their bottom end caps the word "Eveready". The trade mark "Eveready" is in block capital letters arranged in a distinctive pyramidal form. There are five groups of distinctive parallel indentations each group comprising of three parallel lines running vertically on both sides of the trade mark. The said groups are spaced and arranged in a distinctive manner with the words "made in U. S. A." appearing underneath the lower group of indentations. The shell of flash lights has also its own scheme of colour and chromium plating.

2. The defendants are the manufacturers of flash lights with the trade mark 'Lit Ready' em-bossed upon them and have placed them on the market for sale. The plaintiff's case is that the get-up of the defendants' flash light cases bears a close resemblance to the get-up of the plaintiff's lash light cases and that the ignorant and illiterate section of the public in India is very likely to be confused and the goods of the defendants may pass off as the goods of the plaintiff causing great injury to the plaintiff. The plaintiff, therefore, sued for the grant of a permanent injunction restraining the defendants from selling the disputed flash lights in the market and for other reliefs and also applied for a temporary injunction to the same effect.

3. The defendants' case is that the defendants' flash lights do not infringe the plaintiff's trade mark and cannot be taken to pass off as the plaintiff's good.

4. The plaintiff's application for the grant of a temporary injunction has been partly allowed by the lower Court. That Court has directed the defendants either not to place the disputed flash lights on the market or if they did so, to disclose the sales thereof in detail. The defendants were further directed that they should not manufacture any more 'Litready' torch lights unless they were willing to show on an affidavit to that Court before manufacturing as to how many flash lights they propose to manufacture and when. The learned Judge in the course of his judgment observed that the petitioner could not claim any property in the shell of the flash lights as shells similar to those manufactured by the plaintiff were manufactured by other manufacturers and were for sale in the market. Moreover, the fact that there was phonetic similarity between 'EveReady' and 'LitReady' would not invest the plaintiff with a right to claim an interim injunction. Against this order the plaintiff has com up to this Court in appeal.

5. It has been urged by the learned counse1 for the plaintiff-appellant that the learned Judge of the Court below was not correct when he made observations with regard to the phonetic similarity being of no avail to the plaintiff and with regard to the plaintiff not possessing any property right in the shell of the flash lights. Learned counsel has urged that the suit was not merely for the breach of the trade mark but also for the damage caused to the plaintiff by the defendants passing off his goods as those of the plaintiff.

6. In our opinion, what we have to see in a case of this kind, when an interim injunction is sought during the pendency of the suit before the rights of the parties are finally decided, is first whether a 'prima facie' case has been made out by the plaintiff in respect of his claim, and secondly, whether the balance of convenience demands that the injunction should be issued.

7. So far as the 'prima facie' case is concerned, without committing ourselves finally in the matter, we have been impressed by the fact that the 2 flash lights in question, viz., that of the plff. & that of the defts are very much similar in appearance. Their colour design, chromium plating & the make up of the bottom end are similar. The only differences that one can see on a close examination of the two flash lights are, firstly, that while in the plaintiff's torch there is the word 'Eve-Ready'; in the defendants' torch there is the word 'LitReady'. The portion 'Ready' is impressed exactly in the same form and style in both the torches, that is to say, the difference is only in 'Eve' and 'Lit'. The indentations on the upper and the lower ends of the words 'Eveready' and 'Lit-ready' are almost the same.

The words 'Eveready' and 'Litready' are in the same pyramidal design and of the same shape and form and measurements. The only other difference on the bottom cap of the torch is in respect of the words 'made in U. S. A.' which appear in the plaintiff's torch while we find the words 'made in India' in the defendants' torch. While a literate person may not be misled because he would perhaps read whether the word was 'Eveready' or 'Litready', an illiterate person is likely to be confused and misled by the whole shape and design of the defendants' torch. Without going further into this matter, we think that this is enough so far as the making out of a 'prima facie' case is concerned and we are satisfied that the plaintiff has made out a 'prima facie' case.

8. The balance of convenience, in our opinion, weighed heavily on the side of the plaintiff. The defendants are admittedly newcomers in the f.eld. The defendants, according to what the lower Court has found, have manufactured only about 2,000 torches of the style in dispute, of which they have sold 1,000 and 1,000 remain with them unsold. The defendants do not claim that they have already established a name for their 'Lit-ready' torches in the market. On the other hand, it has not been contested before us that the 'Eveready' torches of the plaintiff are selling throughout India and are sold in large numbers. The mere fact that the defendants have undertaken to keep an account would not be a safeguard against a possible injury to the plaintiff's i trade.

In -- 'Read v. Richardson', (1881) 45 LT 54 (A), on the defendants undertaking to keep an account, <ORG>, M. R., refused an interlocutory injunction, it <ORG> granted it because, while be defendants had only recently commenced to use their mark, and their trade mark was admittedly not dependent on it, the plaintiffs had a large trade in connection with which they used a label alleged to be infringed, and their rights would have been irremediably and incalculably injured unless the injunction were granted, if their case should be established at the trial. (See Karly on Trade Marks. 6th Edition, p. 507).

9. To the same effect are the observations of <NAME>, in -- 'Ralli v. Fleming', 3 Cal 417 at p. 424 (B):

"In this particular case I do not think that their keeping an account of sales would be a sufficient protection to the plaintiffs, because if the defendants were allowed to use these marks in the market for several months in order to sell their cloth, they would become as well known in the market as importers and sellers of the cloth as the plaintiffs; and so the very mischief which the injunction is intended to guard against would have been effected."

We, therefore, consider that this was a fit case in which a temporary injunction should have been issued. We, therefore, allow this appeal, set aside the order of the <ORG> below and restrain the defendants, their servants and agents from selling the torch lights in dispute or manufacturing them during the pendency of the suit. We may make it clear that the observations that we have made in this case are not intended to influence the <ORG> below in deciding the case on the merits at the final heaving of the case.

10. The plaintiff-appellant will have the costs of this appeal from the defendants-respondents.