PETITIONER: HARBANS SINGH AND ANOTHER Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT: 16/10/1961 BENCH: <NAME>, K.C. DAS BENCH: <NAME>, K.C. DAS GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. CITATION: 1962 AIR 439 1962 SCR Supl. (1) 104 CITATOR INFO : RF 1963 SC 200 (17) R 1965 SC 26 (19) R 1965 SC 257 (8) R 1970 SC1566 (5) F 1972 SC 622 (27,31) R 1973 SC 55 (19) R 1973 SC1204 (9) R 1973 SC2195 (8) F 1973 SC2622 (7) R 1974 SC 606 (8,9) R 1976 SC1994 (6) R 1985 SC 416 (13) ACT: Appeal against acquittal -interference by appellate court, when permissible-Dying declaration Corroboration, if necessary. HEADNOTE: <ORG> set aside <ORG> order of acquittal of the appellants and convicted them on a charge of murder under s. 302 of the Indian Penal Code. On appeal by the appellants by special leave ^ Held, that this <ORG> in its earlier decisions emphasised that interference with an order of acquittal should be based only on "complying and substantial reasons" and held that unless such reasons were present an Appeal <ORG> should not interface with an order of acquittal, but this <ORG> did not try to curtail the powers of the appe11ate court under s. 423 of the Code of Criminal Procedure. Though in its more recent pronouncements this <ORG> laid less emphasis on 105 "compelling reasons" the principle has remained the same. That principle is that in deciding appeals against acquittal the <ORG> of Appeal must examine the evidence with particular care and must also examine the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting judge was clearly unreasonable. Once the <ORG> came to the conclusion that the view of the lower court was unreasonable that itself was a "compelling reason" for interference. Once it was found that the High <ORG> applied the correct principles in setting aside the order of acquittal this <ORG> will not ordinarily interfere with the High <ORG>'s order of conviction in appeal against acquittal o enter into the evidence to ascertain whether the High <ORG> was right in its view of the evidence. Only such examination of the evidence would ordinarily be necessary as is needed to see that the High <ORG> approached the question properly and applied the principle correctly. If the judgment of the High <ORG> did not disclose a careful examination of the evidence in coming to the conclusion that the view of the acquitting court was unreasonable or if it appeared that the High <ORG> erred on questions of law or misread the evidence or the judgment of the trial court, this <ORG> would, unless the case was sent back to the High <ORG> for re-hearing, appraise the evidence for itself to examine the reasons on which the lower court based its order of acquittal and then decide whether the High <ORG>s view that the conditions of the lower court was unreasonable, was correct. If on such examination it appeared to the <ORG> that the view of the acquitting court was unreasonable the acquittal would be set aside and if on the other had it appeared that the view was not unreasonable the order of acquittal would be restored. <NAME> v. State,  S.C.R. 194, <CITATION>  S.C.R. 418, <CITATION> A.I.R. 1953 S.C. 459, <NAME> v. State of M. P., Cr. A. No. 178 of 59 and <NAME> v. State of Bombay, Cr. A. No. 38 of 1960, referred to. It was neither a rule of law nor of prudence that a dying declaration should be corroborated by other evidence before a conviction could be ba ed thereon. <NAME> v. state of M. P. A.l.R. 1953 S.C. 420, referred to. <NAME> v. State of Bombay, [l958] S.C.R. 552, followed. A dying declaration did not become less credible if a number of persons were names are culprits 106 <NAME>. v. Emperor,(1941) 43 Cr.L.J.59, held erroneous. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 115 of 1959.

Appeal by special leave from the judgment and order dated May 23, 1958, of <ORG> in Criminal Appeal No. 414 of 1957.

<NAME> <NAME>, <NAME> and <NAME>, for the appellant.

<NAME> and <NAME>, for the respondent.

1961. October 16. The Judgment of the Court was delivered by <NAME>, J.-Six persons including the present appellants were tried by the Additional Sessions Judge Ferozpur on several charges in connection with the death by homicidal injuries of two brothers <NAME> and <NAME>. Of these six, <NAME> was the father of the other five accused persons. All the six accused persons were acquitted by the Additional Sessions Judge; on appeal by the State, <ORG> set aside the orders of acquittal in respect of <NAME> and Major <NAME> and convicted them under section 302 of the Indian Penal Code. The appeal was dissmissed in respect of the other four, viz., <NAME>, <NAME>, Bant <NAME> and Gian <NAME>. It is against this order of conviction that <NAME> and Major <NAME> have filed the present appeal after obtaining special leave from this Court.

The prosecution case is that at about 8 or 9 P.M. on July 23, 1956, shortly after <NAME> had returned home and complained to his father <NAME> about the conduct of <NAME> and <NAME> in abusing him. <NAME> ran out of his house on hearing some cries; but when he reached the Dharamshala not far from his house these two appellants, along with their father <NAME> and their brothers <NAME>, <NAME> and <NAME> fell upon him and caused numerous injuries with the weapons which they carried. <NAME>, it is said, struck <NAME> on the abdomen with a Sela in his hand. <NAME>'s brother <NAME> and his father <NAME> also had followed <NAME> when he ran out of the house. On seeing this attack on <NAME>, <NAME> tried to intervene, but he too was attacked and received several injuries. <NAME>, it is said, gave him a Sela thrust in the abdomen. <NAME> died on the spot; <NAME> was brought to the hospital at Gidderbha the following morning and received some treatment but he also died of his injuries the following day, that is, the 24th July.

All the accused pleaded not guilty, the defence being that they had been falsely implicated out of enmity.

To prove its Base the prosecution relied on the evidence of two persons, the deceased's father <NAME> and their uncle <NAME> and the dying declaration alleged to have been made by <NAME>, once in the village before <NAME>, the Sub-Inspector of Police who had come to the village that night in connection with some other investigation and for the second time at Gidderbha hospital before a Magistrate.

On a consideration of the evidence the Trial Judge came to the conclusion that the prosecution case had not been proved against any of the accused person. Being of opinion that the First Information Report had been recorded as late as 4- 30 P.M. On the 24th July he thought that "the complainant party was not able to day who the assailants were and the police was making time to find out the culprits after investigation and the First Information Report was delayed on that account." He was doubtful also about the truth of the Sub-Inspector's story that he actually reached the village of occurrence on that very night and consequently doubtful about any statement having been made by <NAME> to him on that night. In any case, he thought <NAME>'s dying declaration had little probative value because as many as six persons had been named and that it could not be relied upon without corroboration. The learned Judge was also not satisfied that <NAME> (Prosecution Witness) "was present in the village or at his house at the time of the occurrence" since "his statement was not recorded in the Inquest Report prepared by the police at midnight". The learned Judge also thought it unsatisfactory that nobody other than these two near relatives, that is, the father and uncle of the deceased persons had been examined as witnesses of the occurrence. These were the main reasons for which he came to the conclusion that the case had not been proved against any of the accused beyond reasonable doubt and accordingly acquitted the accused <ORG> was of opinion that the learned Judge was wholly "wrong in holding that <NAME> was not mentioned in the Inquest Report"; that he had misread the time of the first Information Report as 4-30 P. M. for 4-30 A. M. and that he was again in error in concluding that "the statement made by <NAME> to the police on their arrival at 1-15 A.M. was inadmissible". After pointing out these "errors" in the reasoning of the learned Trial Judge <ORG> said:-

"We have no hesitation in concluding that for the said reasons the judgment of the learned Additional Sessions Judge is wholly erroneous resulting in complete miscarriage of justice.

After having gone through the testimony of both of the eye-witnesses and examining the other material, particularly the two dying declarations, we are of the view that the projection case was substantially true and have been proved.

As regards complicity of <NAME> and Major <NAME>, there appears to be no doubt. Both of them had been assigned participation and were responsible for the fatal blow on each of the deceased. In this respect the testimony of both of the witnesses and the dying declarations are consistent. They were accordingly held guilty under section 302 , Indian Penal code."

The main contention raised by Mr. <NAME> on behalf of the appellants is that <ORG> had no sufficient reasons for interfering with the order of acquittal made by the Additional Sessions Judge and that <ORG> itself had been guilty of "errors", especially as <ORG> has misread the judgment of the learned Additional Sessions Judge and had attributed to him statements which are not to be found in his judgment.

The question as regards the correct principles to be applied by a <ORG> hearing an appeal against acquittal of a person has engaged the attention of this <ORG> from the very beginning. In many cases, especially the earlier ones, the <ORG> has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on "compelling and substantial reasons" and has expressed the view that unless such reasons are present an Appeal court should not interfere with an order of acquittal. (Vide <NAME> v. The State (1); <CITATION> (2); <CITATION> (3). The use of the words "compelling reasons" embarrassed some of the High <ORG>s in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this <ORG> had meant by the (1)  S. C. R. 194. (2)  S. C. R.

3)A.l.R. (1953) S. C. 459.

words "compelling reasons". In later years the <ORG> has often avoided emphasis on "compelling reasons" but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a <ORG> must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable. (<NAME> v. The State of Madhya Pradesh (1); <NAME> v. The State of Bombay (2), It is clear that in emphasising in many cases the necessity of "compelling reasons" to justify an interference with an order of acquittal the <ORG> did not in any way try to curtail the power bestowed on appellate courts under s 423 of the Code of Criminal Procedure when hearing appeals against acquittal; but conscious of the intense dislike in our jurisprudence of the conviction of innocent persons and of the facts that in many systems of jurisprudence the law does not provide at all for any appeal against an order of acquittal the <ORG> was anxious to impress can the appellate courts the importance of bestowing special care in the sifting of evidence in appeal against acquittals. As has already been pointed out less emphasis is being given in the more recent pronouncements of this <ORG> on "compelling reasons". But, on close analysis, it iq clear that the principles laid down by the court ill this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the <ORG> of Appeal must examine (1) Criminal Appeal No. 178 of 1959 decided on l8-11-60.

(2) Criminal Appeal No. 38 of 1960 decided on 14-12-60.

the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established.

When <ORG> judgment shows clearly that the matter has been approached in the proper manner and the correct principles have been applied, there is very little scope for this <ORG> to interfere with an order made by <ORG> convicting an accused person in an appeal against acquittal. Once it is found that the principles laid down by this <ORG> have been correctly applied this <ORG> will not ordinarily embark upon a reappraisal of the evidence to ascertain whether <ORG> was right in its view of the evidence. The only examination of the evidence that this <ORG> may find itself called upon to undertake will ordinarily be just so much as is necessary to see whether <ORG> has approached the question properly and applied the principles correctly.

The position may however be different if the judgment of <ORG> while indicating its conclusion that in its opinion the view taken by the lower court is unreasonable does not disclose a careful examination of the evidence for coming to such conclusion. Or it may appear from <ORG>'s judgment that <ORG> has erred on questions of law or has obviously misread the evidence on the record or the judgment of <ORG>. What is this <ORG> to do in such cases ? We are unable to agree with Mr. <NAME> that the only proper course for this court to take is to set aside the order made by <ORG> and restore the order of acquittal. For, even where <ORG>'s judgment suffers from any of these defects it may very well be that <ORG>'s conclusion that the view of the lower court is unreasonable is correct. So, unless this <ORG> thinks fit to send the case back to <ORG> for re-hearing of the appeal and its disposal in accordance with law, it becomes the duty of this <ORG> in cases like these which fortunately are likely to be few in number-to appraise the evidence for itself, to examine the reasons on which the lower court based the order of acquittal and then decide whether <ORG>'s conclusion that the view taken by the lower <ORG> on the question of the guilt of the accused is clearly unreasonable, is correct. If satisfied that the view was clearly unreasonable, this <ORG> is bound to dismiss the appeal and to maintain the order of conviction made by <ORG>; if on the contrary, this <ORG> is not satisfied on such examination that the conclusion reached by the lower court that the guilt of the accused has not been proved was clearly unreasonable, the order of acquittal would be restored.

The judjment of <ORG> in the present case does not contain much discussion of the evidence in the case. All the discussion of the eviddnce is confined to the few sentences which we have quoted earlier in this judgment. We also notice that the learned judges of <ORG> were under some misapprehension in thinking that the Additional Sessions Judge had held that <NAME> was not mentioned as a witness in the Inquest Report. What the Additional Sessions Judge had pointed out was that <NAME>'s statement had not been recorded in the Inquest Report. The Additional Sessions Judge was certainly right in this. While <ORG> might have well thought that no doubt against the credibility of <NAME> should be based on this fact that his statement was not recorded, <ORG> was not justified in attributing to the Trial Judge something which he did not say.

It is also not quite clear how the learned Judge said about the appellant Major <NAME> that he had been assigned participation and was responsible for the fatal blow on each of the deceased. In fact, neither of the two who claim to be the eye-witnesses of the occurrence has said that Major <NAME> dealt a fatal blow on either Hazura <NAME> or Munshi <NAME>. While it is true that a general statement is made by both the witnesses as regards all the six accused having attacked both Munshi <NAME> and Hazura <NAME> neither of them has spoken of any particular injury having been caused by Major <NAME>. Hazura <NAME> himself in his dying declaration did say that Major <NAME> gave him a Sela blow on his left wrist but does not speak of any other injury having been caused by Major <NAME> either to him or to Munshi <NAME> except that he also said generally that all the accused gave blows on the person of Munshi <NAME>. <ORG> has therefore clearly misdirected itself in thinking that Major <NAME> was responsible for any of the fatal injuries.

In view of all this we consider it necessary to examine the judgment of <ORG> and also the evidence on record ourselves for a proper decision of this appeal.

Turning to the judgment of <ORG> we find that the main circumstance which weighed with him for doubting the truth of the prosecution story is what he considered the considerable delay in recording the First Information Report. From the printed record before us we find that <NAME> Head Constable, who actually entered the formal First Information Report, stated in his evidence that he made the entry at "4.30 P.M." on the 24th July 1956. It is apparently this fact taken with the fact that the report did not reach the Magistrate <NAME> before 8.45 P.M. on the 24th July that made the learned Judge think that the First Information was made at the Police Station at 4.30 P.M. He has unfortunately not noticed that the record of the First Information Report Ex. PP1 shows the time of record as 4.30 A.M. He also overlooked <NAME>'s own evidence in cross-examination in these words: "I have perused the <NAME> entries and find that this special report was despatched by me through <NAME> Foot Constable at 5.15 A.M. I cannot say why he did not deliver it to the Magistrate till 8.45 P.M." It is quite clear that 5.15 A.M. as recorded in the printed record in <NAME> cross- examination is not a mistake for 5.15 P.M. If that had been so there would have been no point in his saying that he could not say why the Constable did not deliver it to the Magistrate till 8.45 P.M. when this statement in cross-examination is considered along with the recording of the time in Ex. PP1 itself there is no escape from the conclusion that 4.30 P.M. as stated in <NAME> Examination-in-Chief was a slip of tongue and the correct time of the record was 4.30 A.M. and that the fact that it reached the Magistrate at 8.45 P.M. that day may well be due to the fact that the Constable was negligent and took his own time about going to the Magistrate or to some other reason not clear from the record. The reasoning of the Trial Judge based on his wrong view about the time of recording of the formal First Information Report that the complainant party was not able to say who the assailants were and so delay was made, therefore falls to the ground.

The learned Judge has also misdirected himself in thinking that the dying declaration had very little probative value because as many as six accused persons had been named and that no conviction could in law be based on such dying declaration without corroboration. The law does not make any distinction between a dying declaration in which one person is named and a dying declaration in which several persons are named as culprits. A dying declaration implicating one person may well be false while a dying declaration implicating several persons may be true. Just as when a number of persons are mentioned as culprits by a person claiming to be an eye-witness in his evidence in court the court has to take care in deciding whether he has lied or made a mistake about any of them, so also when a number of persons appear to have been mentioned as culprits in a dying declaration that court has to scrutinise the evidence in respect of each of the accused. But it is wrong to think that a dying declaration becomes less credible if a number of persons are named as culprits. The contrary view taken in <ORG> in <NAME> v. Emperor (1) on which apparently the Trial Judge has relied is clearly erroneous.

The learned Judge appears to have relied also on what was said by this <ORG> in <CITATION> (2) on the need of corroboration for a dying declaration. Speaking for the <ORG> <NAME> (as he then was) observed in that case:-

"It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration."

The question was however considered again by this <ORG> in <CITATION> (3). After pointing out that in <NAME> Case (Supra) the <ORG> after a careful examination of the facts of that case distinctly came to the conclusion that the dying declaration was not true and could not be relied upon this <ORG> stated in the later case that the observations of the <ORG> in <NAME> case were in the nature of obiter dicta. The <ORG> then proceeded to review the relevant provisions of the Evidence Act and of the decided cases in the different High <ORG>s in India and in this <ORG> and stated the law in these words:-

"that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general position that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as anotherpiece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the <ORG> has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. "Hence, in order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the <ORG>, after examining the dying declaration in all its aspects and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from other infirmities as may be disclosed in evidence in that case."

In view of this latest pronouncement of this <ORG>-which it should be stated in fairness to the Trial Judge was made long after he gave his judgment-it must be held that it is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence before a conviction can be based thereon. The evidence furnished by the dying declaration must be considered by the Judge, just as the evidence of any witness, though undoubtedly some special considerations arise in the assessment of dying declarations which do not arise in the case of assessing the value of a statement made in <ORG> by a person claiming to be witness of the occurrence. In the first place, the <ORG> has to make sure as to what the statement of the dead man actually was. This itself is often a difficult task, specially where the statement had not been put into writing. In the second place, the court has to be certain about the identity of the persons named in the dying declaration-a difficulty which does not arise where a person gives his depositions is <ORG> and identifies the person who is present in court as the person whom he has named. Other special considerations which arise in assessing the value of dying declarations have been mentioned by this <ORG> in <CITATION> (1) and need not be repeated here.

In view of this latest pronouncement of this <ORG> on the question of need of corroboration of a dying declaration by other evidence, it must be held that the Trial Judge was wrong in thinking that he could not act on the dying declaration of <NAME> unless it was corroborated by other evidence.

In view of the several defects in the reasoning of the Trial Judge, it is necessary for us to examine the evidence on the record to see whether <ORG> was right in thinking that the view taken by the learned Judge was clearly unreasonable. The most important evidence in the case is furnished by the dying declaration made by <NAME>. The Investigating Officer, <NAME> has said that on July 22, 1956 he had gone to the village Rikala on an excise raid and from there he went to Mallan at about 2 P.M. on July 23, to investigate a case under section 392 of the Indian Penal Code. His further evidence is that it was on the same night at about midnight that he started for Dhurkot from Mallan. We see no reason to doubt the truth of his statement that he did reach Dhurkot shortly after midnight of the 23rd July and that when on hearing that a murder had taken place near the Dharamshala he came to the Dharamshala. <NAME> who was lying injured on a cot there made a statement to him, he recorded the statement correctly. That statement has been marked Ex. PP. The substance of this statement is that at about 9 P.M. on the night of the occurrence his brother <NAME> came and complained about the conduct of <NAME>, <NAME> and other sons of <NAME> and that shortly after this on hearing shouts of <NAME> and others near the Lharamshala, <NAME> went towards that place followed by <NAME> and his father <NAME> and that when they reached the place they found <NAME> and the other accused persons all armed with weapons raising uproar and when <NAME> reached the place and returned the abuse <NAME> gave the first blow to <NAME> with a Sela in his hand hitting him on the front of the chest after which others of the party also gave blows and when <NAME> stepped forward to rescue his brother, <NAME> gave him a blow with a Sela in his hand which hit him on the abdomen and the other accused also gave him blows. The blow given by Major <NAME> hit him on his left wrist.

It is clear that this statement was made by <NAME> shortly after midnight i.e., within about four hours after the occurrence. It has to be remembered that <NAME> had one single serious injury viz., the penetrating wound on his abdomen. We are satisfied from the evidence of the witnesses that there was sufficient moonlight that to enable <NAME> to recognize clearly the assailant who struck the blow which caused this injury. He could have therefore made no mistake about the indentity of his assailant. Nor is it likely that he would within a few hours of the occurrence ascribe this fatal blow on him to somebody other than the real assailant. The several injuries on <NAME> and the numerous injuries on <NAME> justify the conclusion that there was more than one assailant in the attacking party. Whether or not <NAME> could have made a mistake about the identity of the other assailants or could have implicated some of them at least falsely, it will be unreasonable to think that he would substitute another person for the one assailant who gave him the fatal blow. On a consideration of these circumstances we are therefore satisfied that it would be unreasonable to doubt or disbelieve the truth of <NAME>'s statement when he said that <NAME> struck him with the Sela in his hand which hit him on the abdomen. Even if there was no other evidence on the records as regards the part taken by the appellant <NAME> this dying declaration of <NAME> is so clearly true that the only reasonable view for a judge of facts to take is that <NAME> caused the death of <NAME> by striking him with a Sela.

As has already been noticed <NAME> in this statement mentioned <NAME> as the person who gave the first blow to <NAME>, the blow which caused one of the injuries on his chest. We can think of no reason why this main part should be ascribed falsely to <NAME>; we think, considering the circumstances in which the statement was made, that this part of <NAME>'s statement is also clearly the truth and could reasonably be accepted even without any corroboration.

A second statement of <NAME> was recorded at the Hospital where he was removed. This statement appears to have been recorded at about midnight of the 24th July. In this statement also he mentioned <NAME> and the other accused persons as having taken part in the attack. It appears that when this statement was made <NAME>'s condition was very bad. Indeed, after he had made a part of the statement the Magistrate recorded that he had started giving indifferent answers and asked the Doctor to give him the necessary treatment. After the treatment was given the statement was concluded. We would not attach much weight to this statement on the 24th July. But, it will be noticed that there is nothing in this latter statement which detracts from the truth of the earlier statement made shortly after the occurrence to the police sub- Inspector.

There is apart from this the testimony in Court of <NAME> the father of the two deceased persons and his uncle <NAME>. As regards <NAME> the learned Trial Judge has pointed out that <NAME>'s statement was not recorded by the sub-Inspector in the Inquest Report. While there is nothing in law which requires the statement of witnesses to be recorded in the Inquest Report, it appears to be a common practice in Punjab for police officers to record statements of witnesses in Inquest Reports. In the present case the Sub- Inspector appears to have recorded a fairly full statement of <NAME> as also short statements of <NAME>, <NAME> and <NAME> in the Inquest Report itself. It is somewhat curious therefore that the Sub-Inspector did not record the statement of <NAME> also in this report even though it is found that <NAME> was named as a witness of the occurrence in <NAME> dying declaration itself. It is also difficult to understand <NAME>'s statement that he left the place as soon as some neighbours came up after the occurrence and did not go back to the spot till he was called by the police. He has offered no explanation for this rather unusual conduct. In view of all this, we are not prepared to say that tho Trial Judge acted unreasonably in doubting his testimony.

We are unable however to discover any valid reason for doubting the presence of <NAME> at the place of occurrence. It seems to us that the main reason for the Trial Judge to doubt the truth of <NAME>'s evidence was what he considered the great delay in lodging the formal First Information Report. That reason, as we have already pointed out, does not exist.

On an examination, it seems to us quite likely that <NAME> also accompanied <NAME> when the latter followed <NAME> towards the Dharmashala and it also seems to us improbable that he would give the main part in the assault falsely to <NAME> if somebody else was responsible for the blow which caused <NAME>'s death. In our view the learned Trial Judge acted unreasonably in doubting the truth of <NAME>'s evidence against <NAME>.

On a consideration of the evidence we are therefore satisfied that the conclusion reached by <ORG> that the view taken by <ORG> as regards <NAME> guilt Was clearly unreasonable is correct and that the only reasonable view on the evidence can be that <NAME> committed murder by causing the death of <NAME> and also committed murder by causing the death of <NAME>.

The position is however different as regards Major <NAME>. As has already been pointed out <ORG> is wrong in thinking that the evidence Shows that Major <NAME> gave any of the fatal blows. Hazura <NAME> in his first dying declaration mentioned Major <NAME> as having given a below on him on his left wrist. Apart from Bhag <NAME> only Hira <NAME> has ascribed any specific part to Major <NAME> in addition to saying generally that he took part in the attack. The evidence therefore leaves scope for thinking that Hazura <NAME> has made a mistake about Major <NAME> or has wrongly implicated him. We are not therefore prepared to say that the view taken by the Trial Judge as regards Major <NAME> is clearly unreasonable.

We therefore allow the appeal of Major <NAME> set aside the order of conviction and sentence made against him by <ORG> and restore the order of acquittal made by <ORG>. The appeal of Harbans <NAME> is dismissed. Major <NAME> should be set at liberty at once.

Appeal of appellant 2 allowed.

Appeal of appellant 1 dismissed.


<NAME>, J.

1. An interesting question regarding the allowability of the expenditure incurred on the foreign tour of the wife of a senior partner in computing the income under the head "Profits and gains of business", under s. 37(1) of the I.T. Act, 1961 (hereinafter referred to as "the Act"), arises in this reference under s. 256(2) of the Act, at the instance of the <ORG>. The assessee is a firm of five partners carrying on business in wholesale piece-goods and as exporter of handloom goods to foreign countries. For the assessment year 1972-73 (year ending March 31, 1972), before the <ORG>, the assessee claimed that the foreign tour expenses of the partner, <NAME>, and his wife amounting to Rs. 46,224 are allowable under s. 37(1) of the Act under the head "Export promotion expenses". The partner of the assessee, who undertook the foreign tour, was claimed to be a diabetic and it was, therefore, stated that it became necessary for his wife to accompany him for the purpose of attending on him. Though supporting medical certificates were also produced before the <ORG>, he disallowed the assessee's claim to the extent of Rs. 20,534 representing the amounts spent towards the air ticket of the partner's wife (Rs. 12,258), expenses attributed to her (Rs. 7,726) and the estimated personal expenses of the partner (Rs. 1,000). On appeal by the assessee, the <ORG> found, relying upon the correspondence between the assessee and <ORG> relating to the release of foreign exchange as well as the medical certificates and recognising what was styled as a modern trend in commercial and business organisations requiring the wives of the top executives to accompany their husbands on foreign trips, that the expenses incurred in connection with the trip of the wife of the partner of the assessee were wholly and exclusively incurred for business purposes. In addition, the <ORG> also found that the wife of the partner of the assessee was trained in modern designs, which the growth of the business of the assessee and that considering the export of the assessee, the expenses incurred by the assessee in connection with the foreign tour of the wife of the partner cannot be considered to be unreasonable. The adding back of sum of Rs. 1,000 as personal expenses of the partner of the assessee was also held to be unsustainable, as no personal element, according to the <ORG>, could have entered the foreign tour expenses of the partner of the assessee. In this view, the <ORG> directed the <ORG> to allow the entire expenses incurred for the partner of the assessee and his wife, as claimed, in the computation of the income of the assessee for the assessment year 1972-73. Not satisfied with this, the <ORG> appealed to the <ORG> and the <ORG> felt that the need for the partner of the assessee to maintain efficiency and fitness to make the tour effective and purposeful assumed importance and in that context, the role played by the wife of the partner, who was also on tour as a "nurse", would be as much a business purpose, as the tour itself and further that the foreign tour of the partner of the assessee with his wife had been a successful one in that its export sales had gone up as a result of the tour. The expenditure relating to the foreign tour of the wife of the partner of the assessee was, therefore, held to be wholly and exclusively for the purpose of the business of the assessee. The adding back of Rs. 1,000 as personal expenses of the partner was also held to be not justified. In the result, the order of the <ORG> was upheld and the appeal preferred by the <ORG> was dismissed.

2. Aggrieved by this, the <ORG> has come up before us on a reference under s. 256(2) of the Act, on the following two question of law :

"1 Whether, on the facts and in the circumstances of the case, <ORG> was right in holding that the expenditure incurred by the assessee-firm on the foreign tour of the wife of the senior partner was wholly and exclusively for the purposes of business of the assessee-firm and, therefore, the same was an allowable expenditure under s. 37 of the Income-tax Act, 1961 ?

2. Whether the finding of <ORG> is based on valid and proper materials and is a reasonable view to take on the facts and in the circumstances of the case ?"

3. In support of this reference, the learned counsel for the <ORG> first contended that the expenses incurred by the assessee, in connection with the foreign tour of the wife of the senior partner of the assessee, would partake the character of personal expenses and do not qualify for allowance under s. 37(1) of the Act. Referring to the medical certificates, the learned counsel for the <ORG> pointed out that they at best indicated that the partner of the assessee was in need of attention owning to his being afflicted by diabetes, but that would not render the expenses incurred in that connection any the less personal. Strong reliance in this connection was placed by the learned counsel for the <ORG> upon the decision of <ORG> in <CITATION>  53 ITR 186, and that of <ORG> in <CITATION> (judgment in Income-tax Reference No. 56 of 1974, dated October 9, 1975 -  153 ITR 437 (infra). On the other hand, the learned counsel for the assessee submitted that the expenses incurred on the wife, who accompanied her husband, the partner, on his foreign tour cannot be characterised as personal, as the expenditure had been incurred for her, while the partner on tour, was on a business tour. It was also submitted that though such expenses might appear at first blush to be personal, yet the main or predominant purpose of incurring the expenditure was for business and even if there was a personal element in the expenditure so incurred, that would only be incidental and would not render the expenses a personal one.

4. We may immediately state that the second aspect of the aforesaid submission of the learned counsel for the assessee forms part of a more elaborate second argument of the learned counsel for the <ORG> and we, therefore, propose to deal with that aspect later in the course of the judgment while considering the second argument on behalf of the <ORG>.

5. Before proceeding to embark upon a consideration of submission relating to the personal nature of the expenditure, it would be necessary to refer to s. 37(1) of the Act, which runs as follows :

"Any expenditure (not being expenditure of the nature described in section 30 to 36 and section 80VV and not being in the nature of capital expenditure or personal expenses of the assessee), laid out or expended wholly and exclusively for the purposes of the business or profession shall be allowed in computing the income chargeable under the head 'Profits and gains of business or profession.'"

6. The rest of the section need not be noticed, as it is unnecessary. There is no dispute that <NAME>, a partner of the assessee, who undertook the foreign tour, is a diabetic. He has been certified to be so by his physician as well as the Director of Medical Education. The certificate issued by his physician refers to his taking insulin injections and his requiring the attention of an attendant in the event of an untoward reaction. To similar effect is the certificate issued by the Director of Medical Education, which stated that he required the attention of an attendant. In the letter dated April 24, 1971, addressed by <NAME> to the Director of Medical Education, requesting the issue of a certificate to the effect that he is a diabetic, he has also set out that he needs the help and assistance of his wife to attend on him. Thus from the certificates made available by the consulting physician, the Director of Medical Education and the statement made by <NAME>, it is seen that he is a person who suffers from diabetes and is under insulin treatment and also requires the help and assistance of an attendant. The need for such assistance of an attendant has arisen on account of the state of health of <NAME>. He has all out sympathy. May be that <NAME> is a diabetic and a good businessman, but diabetes is personal to him and has nothing to do with business. It is not diabetes that has made him a good businessman. The state of health of a person is not in any way related to the business activities carried on by him. A good businessman may be bad in health and a good and healthy person may be no good at all in business. Therefore, the state of health has relevance or bearing at all to the business activities carried on by a person. If a businessman, not in goods health, desire to secure the help and assistance of an attendant, then, it is purely to satisfy his personal need. Such a need is not very different from say, his need for food and clothing, except that this need is directed towards the maintenance of his health. The expenses incurred for availing of the services of an attendant would, in our view, be only to satisfy or meet the personal need and in that context, it is really immaterial whether the person concerned avails himself of the services of his wife or that of a stranger. In this case, if the partner of the assessee had not been accompanied by his wife on the tour, having regard to his state of health, he would have been obliged to engage the services of probably a professionally trained nurse and, even in such a case, the expenses would have been purely personal. While we agree that a businessman in indifferent health ought not to be discouraged from undertaking a foreign tour accompanied either by his wife or nurse or other attendant, we cannot at the same time hold that expenses incurred either for availing himself of the company of his wife or the services of nurse or attendant are any the less personal, however much the expenses are either necessary or even otherwise productive of goods health or other enjoyable results from the point of view of the personal need and requirement of such a businessman. The two decisions relied on by the learned counsel for the <ORG> are apposite. <CITATION> , dealt with the interpretation of s. 5(e) of the Madras Plantations Agricultural Income-tax Act, 1955, which provided for deduction of certain items in the computation of taxable agricultural income and one such item was that any expenditure incurred in the previous year (not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of plantation. An estate was purchased by the assessee for which purpose he resorted to substantial borrowings. In the course of the assessment proceedings, the assessee claimed that the interest paid on the borrowings for the purchase of the estate should be deducted in the computation of the agricultural income. The amount so claimed was Rs. 22,628-9-8, out of which the Agricultural Income-tax Officer allowed only Rs. 1,570-10-7 and this was upheld by the <ORG>. The <ORG>, however, found that the borrowing was used by the assessee for the acquisition of the estate, but the proximate connection of the payment of interest was to a personal loan taken by the assessee and not with the plantation and in that view, disallowed the claim of the assessee. On further revision to <ORG>, the claim of the assessee was held to fall within the scope of s. 5(e) and the entire claim for deduction on account of payment of interest was allowed. On appeal by the <ORG>, before <ORG>, it was argued that the payment of interest made by the assessee was a personal expense. Repelling that argument, <ORG> pointed out that personal expenses would include expenses on the person of the assessee or to satisfy his personal needs, such as clothing, food, etc., or for purposes not related to the business for which the deduction is claimed. Earlier, as we have pointed out, the expenditure in this case was incurred in order to satisfy and fulfil the personal need of the partner who had undertaken the foreign tour with a view to control his diabetes and maintain goods health as a living human being and that was not in any manner related to the business in respect of which the deduction had been claimed. Almost in similar circumstances, <ORG> in <CITATION> (judgment in Income-tax Reference No. 56 of 1974 dated October 9, 1975 -  153 ITR 437 (infra), had occasion to consider this question, though with reference to a private limited company, the assessee in that case. The managing director had undertaken a business tour of Japan and as he was in indifferent health, his wife accompanied him to look after him. One-half of the expenditure incurred on the tour was disallowed by the <ORG> and that was referable to the expenditure incurred for the wife of the managing director. The <ORG>, however, allowed the expenditure, but the <ORG> agreed with the view taken by the <ORG> that the expenditure could not be said to have been incurred towards or for the business of the assessee-company. On a reference by the assessee, it was argued that the services of the wife of the managing director was necessary during the foreign tour in view of the indifferent health of the managing director and the expenses incurred for her should be allowed as a business expenditure. Relying upon the observation of <ORG> in <CITATION>  53 ITR 186 at 192, this argument was repelled and it was held that the need of the managing director of the assessee-company to have the services of his wife, who was not a qualified or trained nurse, either to attend on him for his indifferent health or to prepare food for him, would not entitle the assessee-company to claim the proportionate expenses as business expenses. In this case also, it does not appear that the wife of the partner of the assessee, who undertook the foreign tour with the partner of the assessee, was qualified or trained as a nurse or even if she was, it would not have made any difference to the claim for deduction made by the assessee, for, the wife of the partner who accompanied her husband on a foreign tour did so only with a view to look after him so that he may not be deprived of the company of the wife while on such foreign tour, which she would have done, even otherwise, if he had stayed at home. In doing so, there was no rendering of any service by the wife to the business. It also does not appear that the wife was requested or authorised by the assessee to accompany her husband on his foreign tour and this is also not without significance considering that she is the wife of the partner who went on the foreign tour. At best, it can be said that the wife of the partner, who accompanied him on the foreign tour, continued to fulfil her role and discharge her duties as a housewife, even while her husband was on tour and that certainly could not have had any value as such, especially when she did not devote her time and attention to the business as such. In this, there is only the satisfaction or fulfillment of the personal need of the partner to have his wife with him to attend on him and no more and by no stretch of imagination, the expenditure incurred in that connection can be said to relate to business. We are, therefore, of the view that the expenditure incurred was in the nat ure of personal expenses only.

7. The learned counsel for the <ORG> next submitted that even assuming that the expenditure incurred related to business purposes, such expenditure was not laid out or expended wholly and exclusively for the purpose of the business. In other words, the argument is that the expenditure was laid out for a dual purpose, namely, to satisfy the personal needs as well as for purposes of business and not solely and exclusively for business purposes and that would take it out of s. 37(1) of the Act. However, the learned counsel for the assessee maintains reiterating the second aspect of his first contention that the predominant or the main purpose of the expenditure was for purposes of business and in that sense, the expenditure had been wholly an exclusively laid out for business purposes and not personal and, therefore, the <ORG> was right in the view it took. Reliance, in this connection, was placed by the learned counsel on both sides upon a large number of decisions, to which we shall make a reference later in the course of this judgment.

8. Section 37(1) of the Act provides for the allowance of any expenditure laid out or expended wholly and exclusively for the purpose of the business or profession in the computation of the income charge able under the head "Profits and gains of business or profession." The expression "wholly" has been used with reference to the quantum, while the expression "exclusively" refers to the nature or the purpose of the activity in which the expenditure is incurred. In other words, the whole of the expenditure must have been solely and exclusively incurred for business purposes, in order to qualify for allowance under s. 37(1) of the Act. If there is a dual purpose, then, it is obvious that the expenditure would not qualify for allowance, for, it will cease to be wholly and exclusively laid out for business purposes. In this case, the partner of the assessee is a diabetic and requires to be looked after. The expenditure incurred is thus laid out in part for the advantage, benefit and well being of the partner of the assessee and it is distinct and different from the amount expended for purposes of business or trade. Even according to the claim made by the assessee, the expenditure is a business expenditure wholly and exclusively. However, part of the expenses at least, referable to the expenditure incurred on the wife of the partner, have not been wholly and exclusively laid out for the purpose of business, but for the maintenance of the health, the comforts and for the benefit of the partner as a human being. Therefore, this would at best be a case of expenditure for the mainatenance of the health of the partner of the assessee and for the purpose of the business of the assessee. The attention given by the wife of the partner of the assessee, while on tour, would enure to his benefit and advantage, not only when he was engaged in his business activities, but even otherwise as a human being, so that at least in part, the expenditure incurred had been laid out for the advantage and benefit of the partner. The expenditure incurred thus served not only purposes of business but also a personal or a private purpose and if the expenditure does not exclusively serve the purposes of business, then, it does not qualify for allowance under s. 37(1) of the Act. Viewed thus, the expenditure in this case had a twin purpose and did not qualify for allowance.

9. We are supported in the above view of ours by the several decisions to which our attention was drawn. <NAME> v. <NAME> (Inspector of Taxes) [1944] 26 TC 293; [1945] 13 ITR (Suppl) 21 (CA), is one such decision. There, while working as a professional shorthand writer in <ORG>, owning to the condition of courts, <NAME> Contracted an illness, which necessitatd medical care and his absence from work. A claim was made that the expenses incurred were permissible deductions under rule 3 of the Rules applicable to Cases I and II of Schedule D prohibiting disbursements or expenses not being money wholly and exclusively laid out or expended for the purposes of the trade, profession, employment or vocation. Rejecting the claim, Lord <NAME> pointed out that it is true that if a person does not get well by incurring expenses by way of doctor's bills, etc., he cannot carry on trade or profession and if he cannot carry on trade or profession, he cannot earn and if he cannot earn income, the <ORG> will not get any tax; but the same thing would not apply to the food and clothings that a person wears and expenses of that kind are not wholly and exclusively laid out for the purposes of trade, profession or vocation, but laid in part for the advantage of the taxpayer as living human being and, therefore, doctor's bills are excluded as expenses relatable to maintenance of the party, his family, distinct from purposes of profession or trade. <NAME> v. <ORG> [1965] 42 TC 301 (Ch D) had to consider the claim for deduction of the expenses incurred by the sole partner of a firm of solicitors in attending the annual meeting of <ORG>, a professional body along with his wife. It was contended for the taxpayer that the expenses incurred should be deducted as the visit was necessary to maintain the firm's efficiency to secure new clients as well as to improve its organisation and the <ORG> objected to this on the ground that the purpose of the visit was not exclusively to attend the conference, but included holiday and social purposes as well. <NAME> referred to the evidence of the solicitor and found therefrom that the expenses of the American visit by the solicitor were incurred for a dual purpose, namely, the advancement of his profession and the enjoyment of a holiday (a distinct purpose other than carrying on business) and, therefore, the expenses incurred cannot be held to be wholly and exclusively laid for the purpose of profession. <NAME> v. <NAME> [1966] 43 TC 581 (Ch D), dealt with a claim for allowance as a business expenses the expenditure incurred by a professional trade mark agent who was advised to have treatment in hospital. He had entered a nursing home which commanded all the facilities for carrying on business activities and there he held conferences with his clients, met members of his staff and also dealt with the correspondence. He made a claim that 60 per cent. of his total expenses at the nursing home should be allowed as a business expenditure in respect of the use of the room as an office. The <ORG> opposed this on the ground that the expenditure, apart from the telephone charges, was not wholly and exclusively incurred for the purpose of his profession as a trade mark agent or alternatively was incurred for his maintenance or other private purposes and as the expenditure had dual purposes, it could not apportioned and merited disallowance in full. <ORG>, however, upheld the claim made by the trade mark agent, but <ORG> disagreed with that and found that the object of going into the nursing home was to receive treatment for the illness and it would be opposed to common sense to say that his mother in going into the nursing home was not to receive treatment for the injury, which would enure to his benefit, not only when he was carrying on his business, but also as state by Lord <NAME>, in <NAME> v. <NAME>, [1944] 26 TC 293, as a "living human being" and, therefore, the deduction is prohibited under clause (a) of s. 137 of <CITATION>  19 ITR 324 (All), dealt with the allowability of an expenditure of Rs. 500 spent on boarding and lodging of partners in the course of their tours undertaken by them for business purposes under s. 10(2)(xii) of the Indian I.T. Act, 1922. It was pointed out that boarding and lodging expenses of a partner cannot be said to be wholly and exclusively for the purpose of such business, for, such expenditure had to be incurred, though it may be that a partner going on tours may have to spend more on his boarding; but he may have to spend something even if he had remained at the headquarters and such an expenditure had to be incurred at least for preservation of life and, therefore, the money cannot be said to have been wholly and exclusively laid out or expended for business purposes. <NAME> v. <NAME> (Inspector of Taxes)  1 WLR 260;  79 ITR 671 (Ch D), considered a claim for deduction by the taxpayer, a draughtsman, who was also a part-time professional guitarist, of the cost of an operation undergone by him, while computing the profits of his profession as a dance musician. Following an accident to his finger, an operation was performed to restore the flexibility necessary to play the guitar with his former skill, which he would not have undergone, had he not wished to continue to play the guitar. The Special Commissioners stated that the cost of the operation was excluded under s. 137(a) and (b) of the I.T. Act , 1952, as the operation was to enable him to continue to play guitar not solely as a profession, but also as a hobby and that the cost had not, therefore, been incurred wholly and exclusively for the purposes of his profession, but for a dual purpose. On appeal, <NAME>, considering the finding rendered by the Commissioners, ruled that the expenditure was incurred to enable the taxpayer to continue to play the guitar and also enjoy and practice his hobby of playing that instrument and there was material on which the Special Commissioners could reach the conclusion that there was a dual purpose and, therefore, paragraph (a) of s. 137 of the I.T. Act, 1952, was applicable. <CITATION>  42 ITR 568 (Mad), dealt with a case of the allowability of the expenditure incurred in connection with the tour of a director to attend a conference, under s. 10(2)(xv) of the Indian I.T. Act, 1922. In this judgment, though there is no pointed reference to the duality of the purpose of the expenditure as justifying the disallowance of a claim for expenditure, yet it appears to indicate that if it is partly for pleasure and partly for business of wholly for pleasure, in either event, the disallowance could be upheld. <CITATION> . , related to the claim for deduction made by a company as an expenditure under s. 10(2)(xv) of the Indian I.T. Act, 1922, a payment made to the auditors of the company to meet the expenses required to defend certain disciplinary proceedings brought against the auditors at the instances of one of the shareholders. The departmental authorities negatived the claim, but the Tribunal upheld it and on a further reference to this court, it was held that the disciplinary proceedings initiated against the auditors of the company was personal to the auditors and did not have the effect of affecting the company's interest in any manner and the expenditure cannot be considered to have been incurred by the company in connection with the carrying on of its business and cannot, therefore, be considered as having been laid out or expended wholly and exclusively for business purposes of the company. The decision does not throw any light upon the duality of the purpose as such, but proceeds on the footing that the expenditure was incurred not for purposes of carrying on business of the company and, therefore, not eligible for an allowance under s. 10(2)(xv) of the Act. <CITATION> , one of the question that arose was, whether an expenditure of Rs. 32,477 incurred by the chairman of the company as tr avelling expenses for a tour along with his wife could be claimed as a deduction under s. 37 of the Act. The departmental authorities negatived that claim, but the Tribunal gave partial relief and on a reference, <ORG> held that the finding was to the effect that though the chairman was allowed to take his wife, it was not justified by any legitimate business needs and there was no finding that the wife rendered any service in connection with the business of the assessee and, therefore, the expenses incurred on the wife were not allowable as business expenditure. In <ORG> v. <NAME> (H. M. Inspector of Taxes)  33 TC 491, <ORG> considered the question whether the appellant-solicitor firm, which had incurred expenses in entertaining clients, was entitled to a deduction of those expenses on the ground that they were incurred for the purpose of earning profits and were money wholly and exclusively laid out for the purpose of profession within rule 3(a) of the Rules applicable to Cases I and II of Schedule D to I.T. Act , 1918. <NAME> observed at page 504 as under :

"If the activity be undertaken with the object both of promoting business and also with some other purpose, for example, with the object of indulging an independent wish of entertaining a friend or stranger or of supporting a charitable or benevolent object, then the paragraph is not satisfied though in the mind of the actor the business motive may predominate. For the statute so prescribes. Per contra, if in truth the sole object is business promotion, the expenditure is not disqualified because the nature of the activity necessarily involves some other result, or the attainment or furtherance of some other objective, since the latter result or objective is necessarily inherent in the Act."

10. Viewed in the light of the aforesaid principle also, the object of the partner in taking his wife with him on the foreign tour, on the facts of this case, was not exclusively for the purpose of the promotion of the business, but also with the object of securing the company of the wife in order that she may be in a position to attend on him during the course of his tour and even if the business motive was predominant, yet the expenditure does not qualify for the allowance. This is not a case where the sole object of the foreign tour undertaken by the wife of the partner of the assessee was business promotion and that had furthered or resulted in the maintenance or promotion of the health of the partner as an objective inherent in the act of undertaking the tour. The expenditure would not qualify for the allowance. This furnishes the answer to the contention of the assessee referred to earlier. <NAME> (Inspector of Taxes) v. <NAME> [1956] 1 WLR 437; [1957] 3 ITR 364 (Ch D), dealt with a case of husband and wife, who were the sole directors of a private limited company, who went on a tour to Australia to study refrigeration methods. The company did not resolve that the wife should go to Australia. The Special Commissioners found that the expenses of the taxpayer and his wife for their travel to Australia were wholly and exclusively and necessarily in the performance of their duties while holding office as directors. But, on appeal by the <ORG> contending that the expense incurred on the wife could not be deducted, <NAME> held that there is no rule that merely because the expenses incurred by the husband are allowable, the wife's expenses also should be allowed and that the only asset of the wife was that she was a good conversationalise, but that could not have had any value at all, when she did not attend the business premises and though there was a business element in her visit, it was not wholly and exclusively for the company's business purposes and, therefore, her travel expenses could not be claimed as a deduction. This decision also illustrates that the expenses incurred in connection with the travel of the wife of a company director, who does not attend to the business of the company on such tour, cannot be stated to be wholly and exclusively laid out for business purposes to be eligible for the allowance under s. 37(1) of the Act. The duality concept recently came to be elaborately consider in <NAME> v. <NAME> (Inspector of Taxes)  3 WLR 409. A practicing lady barrister, with a view to conform to the guidelines on dress in court, incurred expenses in the replacement and cleaning of clothing, which she wore in court and in chambers and claimed a deduction of those expenses in the computation of the profits of her profession, for assessment to income-tax. The items of clothing were such as could be worn in everyday life. The deduction was disallowed by the Inspector of Taxes and on appeal, it was found that the taxpayer had an ample private wardrobe, that she would not have bought the disputed items but for the requirements of her profession and that the preservation of warmth and deviancy was not a consideration which crossed her mind when she bought them. However, the General Commissioners found that the expenditure was incurred for a dual purpose, namely, to enable her to earn profits in her profession and to enable her to be properly clothed during the time she was engaged in her professional activity. On further appeal, the Commissioners' decision was reversed and a further appeal by the <ORG> was also dismissed by <ORG>. However, <ORG> held that in order to ascertain whether an item of expenditure was incurred exclusively for the purpose of the taxpayer's profession, the Commissioners had to took into the taxpayer's mind at the moment of of expenditure in order to discover her object in making it, but that in doing so, they were not confined to the narrow approach of regarding the taxpayer's conscious motive at the relevant moment as being conclusive of her object; that conscious motive, although of vital significance, was not inevitably the only object which the Commissioners were entitled to find to exist and, therefore, they were entitled to conclude that, although the taxpayer's conscious object was to serve her professional purposes, another object, albeit an unconscious one, was that of providing herself with the clothing which she needed as a human being; and that, accordingly, the expenses was not a deductible expenses under s. 130(a) of the Income and Corporation Taxes Act, 1970. Even applying this test, the object of the partner of the assessee at the time when he took his wife along with him on his foreign tour was only to serve or assist him and not for any business purposes, albeit there was also another object, namely, the furtherance or the promotion of the business of the assessee by the partner taking his wife along with him. Even in such a case, it would only be a dual purpose in resepct of which the expenditure had been incurred. On a consideration of the principles laid down in the aforesaid decisions, it is difficult to support the conclusion that the expenditure in question was wholly and exclusively laid out for business purposes and we are totally unable to share the view of the <ORG> in this regard.

11. There yet remains the second question referred to us. In course of the order of the <ORG>, it is stated that the wife of the partner of the assessee is trained in modern designs and that helped the growth of the business of the assessee and the export sales of the assessee rose to 21.85 lakhs of rupees and as a result of the foreign tour, the assessee became the third largest exporter of cotton handloom garments. What is urged by the learned counsel for the <ORG> is that this statement of the <ORG>, endorsed by the <ORG>, is not based on any evidence, but proceeds totally on the imagination of the authorities by importing facts as well as circumstances not apparent on the record. In such a case, it was pointed out by the learned counsel for the <ORG> relying upon <CITATION> that any finding so rendered is not binding and would justify interference by <ORG>, even in dealing with a reference under s. 256 of the Act. It was also further pointed out by the learned counsel for the <ORG> that even if, as a result of the incurring of expenditure, there had been some indirect advantage to the assessee, that would not suffice to permit the expenditure as an allowable expenditure under s. 37(1) of the Act. Attention was also drawn by the learned counsel for the <ORG> in this connection to the passage in Halsbury's Laws of England, fourth edition, volume 23, paragraph 305, at page 212.

12. We find from paragraph 4 of the order of the <ORG> that it is stated therein that the wife of the partner, who went on a foreign tour accompanying him, is trainees in modern designs which would help to develop the business of the assessee and that there was a steep rise in the export sales of the assessee as a result of the foreign tour undertaken by the partner of the assessee which become the third largest exporter of cotton handloom garments. We have searched the paper book in vain to find the materials in support of the statement made by the <ORG>. Similarly, in paragraph 5 of the order the <ORG>, a reference has been made to the statement of the <ORG> in the course of his order and the <ORG> further proceeds to state that it is not the case of the <ORG> that this finding is incorrect. We may immediately point out that there was no material on the basis of which the <ORG> could have made that statement and come to the conclusion he did. The <ORG> has merely put its rubber stamp on it, as it were, without ascertaining whether there was any basis or material in support of the statement of the <ORG> or the conclusion arrived at by him. Without doing so, the <ORG> has recorded a finding to the effect that the foreign tour of the partner of the assessee in the company of his wife had been successful and that had also helped the growth of the business of the assessee and had pushed up its export sales considerably. We are unable to find any materials in support of this conclusion arrived at by the <ORG> in paragraph 5 of its order. <ORG> has pointed out in <CITATION>  87 ITR 370, that <ORG> and <ORG> have always the jurisdiction to interfere with the findings of the Appellate <ORG>, if it appears that either the <ORG> has misunderstood the statutory language, because the proper construction of the statutory language is a matter of law, or it has arrived at a finding based on no evidence or where the finding is inconsistent with the evidence or contradictory of it, or it has acted on material partly relevant and partly irrelevant or where the <ORG> draws upon its own imagination and imports facts and circumstances not apparent from the record or bases its conclusions on mere conjectures or surmises or where no person judicially acting and properly instructed as to the relevant law could have come the the determination reached. In all such cases, the findings arrived at are vitiated. In this case, as pointed our earlier, we find that the <ORG> had made the statements and also arrived at the conclusions or findings based on no evidence and had freely drawn upon its imagination and imported facts and circumstances not apparent from the record with a view to support the claim made by the assessee for the allowance of the expenditure incurred in connection with the foreign tour of the wife of the partner of the assessee as an allowable item under s. 37(1) of the Act. The finding recorded by the <ORG> that the wife of the partner of the assessee is one who had been trained in model designs and that it helped the growth of the assessee's business and had also boosted up the export sales of the assessee and in that sense, the foreign tour had been a successful one justifying the allowance of the deduction claimed by the assessee is, therefore, not sustainable as it is not based on evidence, but rests only on the imagination and importation of facts and circumstances, not apparent on the record. In the absence of materials, the <ORG>, judicially acting and properly instructed in income-tax law, certainly could not have come to the conclusion it did and under those circumstances, the findings of the <ORG> cannot be accepted.

13. Besides, there is another error in the reasoning of the <ORG> in that it seems to take the view that the foreign tour of the wife of the partner of the assessee had been productive of increased business for the assessee. We have earlier pointed out how there was no business activity at all carried on by the wife of the partner of the assessee, while she was on a tour with her husband. It is in this connection that the passage upon which reliance was place by the learned counsel for the <ORG> in Halsbury's Laws of England, fourth edition, volume 23, paragraph 305, at page 212, becomes relevant and that passage is to the following effect :

"Counter and indirect advantage are usually too remote to permit of the deduction of an expense connected with such advantages, and money so expended is not wholly and exclusively laid out or expended for the purpose of the trade."

14. We have already pointed out how the expenses had no connection whatever with the business, as they were personal expenses, or in any case, the expenses had been incurred for a dual purpose and, therefore, do not qualify for an allowance under s. 37(1) of the Act. That section does not permit such an allowance for the point of view of the indirect advantages that may be secured as a result of the expenditure. Indeed, the section is totally silent with reference to the advantages secured as a result of the expenditure. Therefore, in the absence of materials with reference to the securing of advantages, it cannot be presumed that such advantages resulted to the assessee in its business activities as a result of the foreign tour undertaken by the wife of the partner of the assessee and that would justify the allowance of the expenditure as one appropriately falling under s. 37(1) of the Act. In view of the foregoing, we answer the questions referred to us in the negative and in favour of the <ORG>. The assessee will pay the costs of this reference to the <ORG>. Counsel's fee Rs. 500.


JUDGMENT <NAME>, J.

(1) This is an appeal from an order granting temporary injunction in a suit pending before a learned Single Judge on the original side of this Court.

(2) The facts have been fully stated in the order under appeal and may therefore be only briefly re-stated.

(3) The appellants are defendants in a suit filed on the original side of this <ORG> by the plaintiff-respondent which is a foreign company having its registered office in Karachi (West Pakistan.). The company is the registered proprietor of a trade mark "Tibet Snow" which was registered in India under No. 14567 in class 3 as of 16-4-1943. The trade mark was renewed and its registration, subject to cancellation in the meanwhile, would be valid till 16-4-1972.

(4) The defendants-appellants are carrying on business as manufacturers of cosmetics, including face cream, in the name and style of <ORG> and <ORG>, Delhi. The face cream manufactured by them is being marketed and sold under the mark "Tibet Snow".

(5) It is not disputed that the appellants had applied for registration of a trade mark with the words "Tibet Snow"; but their application was dismissed in the year 1968 on the ground that the said trade mark was already registered in the name of the respondent. The appellants thereupon filed an application under Section 56 of the Trade and Merchandise Marks Act . 1958 (hereafter referred to as the Act) for rectification of the Register of trade marks by removal of respondent's mark No. 14567 there from. The application was however dismissed by <ORG> on 21-11-1968.

(6) While the appellants' application for rectification of the Registrar was still pending, the respondent-company instituted in this <ORG> on 23-9-1968, a suit wherein it prayed for a decree inter alia, for perpetual injunction restraining the appellants, by themselves or through any other persons on their behalf, from using the trade mark "Tibet Snow" or any other mark in respect of face cream which may be an infringement of its trade mark. The plaint was accompanied by an application for grant of a temporary injunction to the same effect till the decision of the suit. On that application an ad-interim order requiring the appellants to maintain accounts of the sale of face cream manufactured and traded by them under the mark "Tibet Snow" was passed. The appellants were also directed to file quarterly statements of account in <ORG>. Meanwhile a notice of the application for temporary injunction was also issued to the appellants, (7) The appellants entered appearance and by two separate applications asked for stay of proceedings in the suit till the final disposal of their application for rectification of the <ORG> and for security for their costs in defending the suit being furnished by the respondent.

(8) The learned Judge trying the suit, allowed the application for stay of proceedings in the suit. He also held that the appellants were entitled to an order regarding security for costs being made in their favor, but since their application for stay of the suit was being accepted by him, it was not necessary to make such an order at present and that necessary directions in that behalf, would be given if and when the proceedings in the suit were resumed.

(9) In this appeal we are only concerned with the order made by the learned Judge on the respondent's application for grant of temporary injunction whereby the appellants have been restrained from using any carton, packing, container or bottle bearing the words "Tibet Snow" or any word that might sound like "Tibet" while marketing and selling the face cream manufactured by them till the disposal of the suit. The appellants have also been directed to submit a statement showing particulars of the face cream in stock that had already been manufactured by them and was packed in bottles and cartons, resembling those which they had been using previously, prior to the date of the order vi:.. April 22, 1969. With regard to the face cream that had already been manufactured and packed in such bottles and cartons the appellants were permitted to sell the same but they were directed to maintain accounts regarding the sale and submit the same in <ORG> by the 10th day in each quarter. They were further restrained from trading under the mark "Tibet Snow" or any work which mights sound like "Tibet" in respece of any face cream manufactured by them thereafter.

(10) The appellants are aggrieved by the aforesaid order and have come up in appeal against the same.

(11) At the hearing of the appeal, the <ORG>'s jurisdiction to issue an order of injunction has not been challenged on the ground that the original suit having been stayed no such interlocutory order could be made by it. Counsel for the appellants has however endeavored to attack the order of the learned Judge holding that the respondent has a 'prima fade case which requires investigation and that the balance of convenience lies in favor of the respondent rather than the appellants.

(12) It is contended that the carton used by the appellants is somewhat different from that of the respondent and as such it cannot be held that the user of the mark "Tibet Snow" by the appellants amounts to an infringement of the respondent's trade mark. Another fact on which a great deal of stress had been laid is that there has been considerable delay on the part of the Respondent 1n instituting the suit in spite of the fact that the respondent had come to know in the year 1966 that the appellants had commenced proceedings for cancellation of their trade mark 14567 and for rectification of the <ORG>.

(13) In support of his argument, learned counsel for the appellants has not only cited the case of <ORG> versus <ORG> (1957 R.P.C. 183)(') which was relied upon by the appellant before the learned Judge but he has also cited a decision of <NAME> (as his lordship then was) in Firm Gaylord Shangrila and another v. <ORG>. New Delhi (1962 Pir 1128). The case of <CITATION> has also been cited. In <ORG>) the plaintiff-company had traded as jewellers for over a century, In August 1956 the defendant <ORG> using the name <ORG>, opened a jewellery shop which it was alleged resembled in appearance a neighbouring shop of the plaintiff-company. The plaintiff issued a writ in December 1956 and moved for an interim injunction restraining the defendant from carrying on business except under his full name "<ORG>". Up-Johan J. held that it was doubtful whether the similarity of the shops would deceive potential customers and as there had been un-due delay in the plaintiff's taking action no interim relief could be granted. It is apparent that there is no connection between the two cases. Firstly, the respondent's action in the present case is eased on the alleged infringement of its registered trade mark which is different from a passing off action, as was the case before <ORG> Secondly, the similarity in the two marks is prima fade too obvious. The appellants are using the same mark bearing the words "Tibet Snow" which the respondent claims to be its registered trade mark.

(14) It is well settled that there is an essential difference between an action for infringement of a trade mark and an action for passing off. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of "the exclusive right to the use of the trade mark in relation to those goods" while an action for passing off is a common law remedy, being in substance an action for defunct, that is. a passing off by a person of his own goods as those of another. In an action for infringement where the defendant's trade mark is identical with the plaintiff's mark. the court will not enquire whether the infringement is such as is likely to deceive or cause confusion. But where the alleged infringement consists of using not the exact mark on the Register, but something similar to it, the test of infringement is the same as in an action for passing off. (See <NAME> <CITATION> and <CITATION> . .

(15) The learned Judge has advisedly refrained from expressing any opinion about the alleged similarity between the two marks. We also do not propose to say anything that may be understood as a final expression of our opinion on that question, Prima fade however it seems to us that the respondent has a case which certainly merits examination. more particularly after the appellants' application for a trade mark having the words "Tibet Snow" was dismissed and their application for cancellation of the respondents' mark was also rejected by the Joint Registrar of Trade Marks. It is no doubt true, as has been contended by the learned counsel for the appellants, that their appeal against the order of the Joint Registrar of "trade Marks is still pending before <ORG> and that since the appeal is a continuation of the original cause the controversy, as to whether the respondent's trade mark should be cancelled is still un-resolved and the whole question is at large. But the very fact that the appellants have been defeated in at least two rounds, does give rise to' the belief that the respondent-company has a prime fade case and that the sale of the same class of goods under the mark "Tibet Snow" does constitute infringement of the respondent's trade mark.

(16) The case of Gay lord <NAME> decided by the learned Chief Justice, also relates to a dispute regarding a trading style. The plaintiffs in that suit were carrying on business under the trading style "<NAME> Restaurant' in New Delhi. The defendant started their restaurant at Chandigarh under the trading style "<NAME> <NAME>". The plaintiffs sued turn a decree for perpetual injunction restraining the defendants from using the words "<NAME> <NAME>" or "<NAME>" as their trading style and succeeded in obtaining a temporary injunction from the District Judge restraining the defendants till the decision of the suit from using the words "<NAME>" or "<NAME> <NAME>". The defendants appealed against the order. The appeal was allowed and the order of temporary injunction-was substituted by an order for maintaining true and proper accounts and for furnishing security for payment to the plaintiffs of profits made by them in case the plaintiffs ultimately succeeded in the suit. There was also a further direction that the defendants shall display the word '<NAME>' on the signboard, cash memo's, cartons and memo books as prominently as the word ''<NAME>" and also publish general notices in the newspapers viz., <ORG>, New Delhi and the <ORG>, Ambala, to the effect that the restaurant of the defendants had no connection with the restaurant of the plaintiffs. This again was not a case of infringement of a registered trade marks. The very fact that <ORG> gave the aforesaid directions clearly shows that the plaintiffs had a prima facie case. The ultimate decision in the appeal, on the other hand turned on the issue as to balance of convenience and not on the question of prima focie case, for it is implicit in the judgment that the use of the word "<NAME>" both by the plaintiffs and the defendants, did indicate that the plaintiffs had a prima facie case.

(17) The case of <CITATION> ^) is also of no assistance to the argument of the learned counsel for the appellants. although the case does relate to infringement of a trade mark. The relief of temporary injunction was refused to the appellant in that case not on the ground of absence of a prima jade case but on the ground that the respondent's business was centered in three districts of Madhya Pradesh where the appellant had practically no sales. It was the local nature of the respondent's business that was responsible for the decision.

(18) As regards delay, the argument of the learned counsel for the appellants lies that this aspect of the case had not been considered by the learned Judge at all and that only a passing reference has been made to it in the order under appeal. It is no doubt true that the delay in applying for an order of temporary injunction is one of the considerations which has to be kept in view, but delay by itself is not sufficient to deprive the registered proprietor of a trade mark of his rights unless it is such as to give rise to a belief that the proprietor of the trade mark has either acquiesced in the user of the mark by the opposite party or has abandoned his rights therein. The respondent no doubt came to know about the appellants' efforts to have the respondent's trade mark removed from the <ORG>, but so long as there was no real danger to its rights the respondent could well ignore the threat. We also cannot shut our eyes to the fact that the respondent is a foreign company in Pakistan and there are obvious difficulties in the way of its launching on a litigation in this country. In such circustances. if there has been some delay in the respondent's coming to court, it is not such as to dis-entitle the respondent to the protection of this <ORG>.

(19) In the ultimate analysis the question of delay is also linked with the question of balance of convenience and is one of the factors to be kept in view while deciding an application for grant of temporary injunction. The principle that governs such matters is as was held by <NAME> and <NAME> in <CITATION> , that when an interim injunction is sought during the pendency of a suit what has to be seen is first, whether a prima facie case has been made out by the plaintiff in respect of the claim, and secondly, whether the balance of convenience demands that the injunction should be issued.

(20) The real question that has to be considered in this appeal therefore is on which side lies the balance of convenience. Learned counsel for the appellants contends that it is incontrovertible that the face-cream bearing the respondent's trade mark and manufactured by it in Pakistan is not being imported in this country since some years past. It is also not known how long the present trade restrictions between the two countries may last. In such circumstances, the respondent cannot restrain the appellants from manufacturing and marketing their produce under that mark when there is no possibility of the respondent's own product being made available to the public in India.

(21) In this connection reliance is placed by the learned counsel on a recent decision of <ORG> in England in <NAME> v. <ORG> (1968 R.P.C. 433)^). Special stress has been laid by the learned counsel on the observations of <NAME> at page 495 of the report where it was said :

"IT is naturally with reluctance that I differ from the view of so experienced a judge, but I cannot think that this is a proper case in which to grant the relief of an interlocutory injunction. The grant of such relief can be a very serious matter especially if it leads to the closing down of the defendants' works for an indeterminate period, with the possibility of throwing a number of people out of employment.

"INthe circumstances of this case I do not see that in the absence of an interlocutory injunction, there is the slightest chance of the plaintiff suffering any irreparable injury. I see no reason why damages should not afford an adequate remedy, assuming that the plaintiff ultimately succeeds in the action. We have not been informed as to the scale on which the defendants are operating, but if in turns out that they are operating on a large scale than no doubt, if the plaintiff succeeds in the action, she will recover substantial damages. But equally on that basis there should be no doubt as to the ability of the defendants to pay them. If, on the other hand. the defendants are operating on only a small scale, than I venture to think that any injury to that plaintiff will be almost minimal."

(22) We are not impressed by this argument. Firstly, the case before <ORG> related to infringement of a patent. The plaintiff in that case was the owner of two patents relating to a vehicle anti-theft device which immobilised the vehicle by locking the steei-ing wheel and the foot-paddle together by means of a hooked telescopic rod. The defendant disputed the validity of the patent on the grounds of prior publication, obviousness and lack of un-inventive merit. Although no opinion was expressed by <ORG> upon the general merits of the question canvassed before them, it was said by <NAME> that in his view there was a good deal to be said in support of either side's case. That apart, what appears to have weighed with the learned Judges of <ORG> was that the grant of injunction in that case would have led to the closing down of the defendants' works for an un-determined period with the possibility of throwing a number of people out of employment. There was also no material before the <ORG> as to the seals on which the defendants were operating. It was further said that normally an interlocutory injunction would not be granted where damages would provide adequate remedy should the claim succeed nor would the <ORG> grant an interlocutory iniunction unless it was satisfied that there was a real probability of the plaii-itiff succeeding on the trial of the suit.

(23) In the present case, there is no danger of the business of the appellants closing down. As a result of grant of injunction, the appellants can still continue to manufacture and sell their face cream: only they have to stop using the words "Tibet Snow" on the cartons, bottles and packages etc. in which the said article may be sold. It has been pointed out by Mr. <NAME>, learned counsel for the respondent that the audited statements of account which the appellants have been filing in <ORG> under the directions of the learned Judge, do not at all indicate that the appellants are operating on a large scale. According to Mr. <NAME>, either the audited statements filed by the appellants do not give a correct version of their sales or the business of the appellants is 'on such a small scale that any injury to them will be almost minimal. It is urged that if the audited statements of account do not reflect the true version of the sales the necessary inference is that it will not be possible for the trial Judee to compute the damages which the Respondent 1s likely to suffer during the pendency of the spit that case damages will not provide an adeauate remedy should the respondent's claim succeed. On the other hand. if the appellants' sales are as reflected by the statements of account filed by them in court, they are not likely to suffer any serious injury.

(24) Mr. <NAME> further contends that in spite of the embargo on. the import of respondent's goods from Pakistan into this country, the very fact that during the period the said embargo lasts and there is equal possibility of the embargo being removed sometime or the other, she respondent will have suffered an irreparable injury. He says that the respondent's face cream sold under the trade mark 'Tibet Snow" is both widely advertised and has always had large sales. Although due. to import restrictions it has at present no sales in this country it cannot be denied that the product is associated, in the mind of the people with the name of the respondent. The object of the appellants in using the same mark is, or at any rate. the natural consequence of their doing so would be, to induce the public to believe that the goods which they are selling were exported by or came from the respondent's house or that the appellants were concessionnaires from the respondent-company or were under some arrangement with it. In that case the appellants would evidently be deceiving the public to the prejudice of the respondent. Likewise if the appellants were allowed to use the same trade mark in the market turn a long time they would become as well known in the market as importers and sellers of the goods of the respondent. There is thus an apparent danger to the respondent's goodwill and reputation which is a necessary attribute of a right to trade mark. To accept the argument if the learned counsel for the appellants that since the respondent-company was not having any sales of Its product in this country on account of trade restrictions one would have to go to the length of holding that it had also no right to its rights as the registered' proprietor of the trade mark being protected by injunction or otherwise. On that view of the matter we shall have to establish two separate standards, one for the protection of the rights of a national of this country and another for a foreigner who may be registered as a proprietor of a registered trade mark in this country. In the latter case, the trade mark could be successfully purloined by any unscrupulous indigenous producer on the ground that the Government had temporarily imposed trade restrictions on the import of the product. That is not the law as we understand it to be.

(25) Mr, <NAME> also referred us to a decision of <NAME> in <ORG> v. <ORG> and others (1969 Dlt 469) where it was held that for the grant or a temporary injunction the question of balance of convenience could arise only when at least pritna facie the two parties were on the same levels and their rights were about equal. The plaintiff in that suit for the grant of a permanent injunction to restrain the defendant from infringing its trade mark had alleged that it was the user of the trade mark for 12 years and had spent about four lakhs of rupees for advertising the trade mark and had sold goods under that trade mark to the tune of Rupees three crores while the defendant had used the trade mark for six months only. It was. held that the balance of convenience was in favor of the plaintiff and a temporary injunction ought to have been "ranted by the trial court.

(26) It appears to us that in the present case there was material before the learned Judge that the respondent had large sales and had widely advertised its product for several vears. It was only due to import restrictions that the respondent's product had no sales in this country at present.

(27) On an over-all view of the material on record we are satisfied that the learned Judge exercised his discretion on sound lines and that there is no error of principle involved in the order made by him. The order made by the learned Judge is therefore maintained and the appeal is dismissed with costs