<CITATION> .

1. Respondent No.1 is Deputy Chief Engineer (General) in <ORG>, <ORG>, Secunderabad. He joined in <ORG> in Group-C on 11-11-1964. By 1979 he was selected as Assistant Engineer Group-B through a limited departmental examination. Later he came to be promoted to Senior Time Scale (STS) Group-B on 29-6-1987. Next promotion of Officers of STS Group-B is to Indian <ORG> (<ORG>), which is a selection post. Respondent No.1 became eligible for the post of <ORG> Junior Scale (JS) Group-A by 27-10-1982 after completion of three years in <ORG> However, he could not be considered as he fell out of zone of consideration. By 1989 his seniority in <ORG> moved up and he allegedly came within the zone of consideration. As per the rules and procedure of <ORG> <ORG> (<ORG>) has to consider all the eligible candidates who are within the zone of consideration and recommend for promotion to <ORG>. It is admitted that the <ORG> was not constituted from 1988-91. Be it, however, noted that though the <ORG> was constituted in 1991 in relation to vacancies of 1988, the respondent No. 1 was not in the zone of consideration. In December, 1992 he was considered by the <ORG> and promoted as Deputy Chief Engineer (JS) Group-A in <ORG> with effect from 24-12-1992.

2. The petitioner was given five years weightage from the date of his promotion i.e., 24-12-1992 in accordance with the principles laid down for fixation of seniority. He was fixed in the seniority list below three directly recruited officers who were respondents 3 to 5 before <ORG> and who were recruited against the vacancies, which arose prior to 1989. Aggrieved by such action, respondent No. 1 filed an original application being <ORG> No.495 of 1997 under Section 19 of the Administrative <ORG>s Act, 1985 ('the Act' for brevity). He prayed for quashing the letter of the <ORG>-respondent No.l dated 8-12-1995 in which the seniority of un-official respondent Nos.3 to 5 was fixed from the date of initial time scale (DOITS) in 1984. He also prayed for a direction to the petitioner to refix his DOITS in 1984 counting weightage of five years from the year of vacancy. The <ORG> disposed of the <ORG> directing the petitioner to dispose of the representation dated 22-7-1996 made by respondent No.1. The representation was duly disposed of by letter dated 3-10-1997. Aggrieved by the same, respondent No.1 again filed <ORG> No.590 of 1998 before the Central <ORG> praying to quash the <ORG>'s letter dated 8-12-1995 wherein his seniority was fixed with effect from 24-12-1987 and for quashing the tetter dated 4-10-1997 of the Secretary, <ORG>, which was the basis for passing the order on 3-10-1997 by respondent No.2, rejecting the representation made by the first respondent on 22-7-1996. The learned <ORG> allowed the <ORG> in the following terms :

In view of what is stated above, we have no hesitation to come to the conclusion that the applicant should be shown as having been promoted to <ORG> in the vacancies that arose for promotion from Group 'B' to Group 'A' service in the year 1989. On that basis he should also be given antedated seniority in accordance with the principles laid down by order dated 30-11-1976. The applicant is also entitled for other consequential benefits arising out of that seniority.

3. While doing so the <ORG> also placed reliance on the judgment of the Central Administrative <ORG>, Bombay Bench in CP No.5 of 1991 in OA No.177 of 1986 dated 20-9-1991 wherein it was observed that the delay in holding <ORG> shall not deprive the claim of the incumbent for seniority and date of time scale anterior to the date of promotion.

4. <NAME>, learned Counsel for the petitioners submits that allowing promotion to respondent No.1 in Group-A (JS) of <ORG> prior to 1989 is in contravention of the principles of <ORG> approved by the President of India. If the principle laid down by the <ORG> is allowed to stand whenever there is delay in constitution of <ORG>, the subsequent promotions in accordance with the recommendations of <ORG>, would have to be dated back which would result in violation of Articles 14 and 16 of the Constitution of India. He also submits that the view taken by the <ORG> is contrary to the principles laid down by <ORG> in <CITATION> , , <CITATION> , 2000 (4) <ORG>, <CITATION> , , <CITATION> , 2000 (1) <ORG>, <CITATION> , and <CITATION> , 2000 (4) Supreme 710.

5. The learned Counsel for the respondent No.l Sri C.V. Mohan Reddy submits that though respondent No.l was eligible for promotion to Group-A even in 1982 his case could not be considered as he was not within the zone of consideration. Though there were vacancies in 1989 the petitioners did not hold <ORG> in relation to the vacancies whiclx arose in 1989 and respondent No.1 was only considered in 1992, and therefore, the petitioners are bound to give weightage of five years and refix the DOITS five years anterior to 1989 i.e., 1984. He also submits that when <ORG> is required to fill up vacancies in the ratio of 60:40 by direct recruitment and by promotion filling up vacancies from only one source is against rules and cannot be sustained. As respondent Nos.3 to 5 were directly recruited in the examination years 1983, 1985 and 1984 respectively. If the first respondent is not given weightage of five years to be reckoned from 1989, he would become junior to 1984 direct recruits which violates the fundamental right under Article 16 of the Constitution of India. As the petitioners held <ORG> in December, 1992 for the examination years of 1989, 1990 and 1991 and made separate panels for three years, the petitioners are bound to give weightage of five years from 1989, the examination year and not from the date of promotion as otherwise, respondent No. 1 would stand to loose three years of seniority. He also further submits that those officers who are promoted for the examination years of 1991 in view of the fact that there is only one year delay in conducting <ORG>, they would lose only year's seniority, and therefore, respondent No. 1 meted out with discrimination. He also submits that the petitioners have not followed the principles of determination of seniority vide <ORG>'s letter dated 30-11-1976, and therefore, the <ORG> was justified in allowing the OA. He placed strong reliance on the judgments of <ORG> in <CITATION> , 1994 (4) SLR 20 (SC), <NAME> v. State of Bihar, , <CITATION> , 1997 (1) SLJ 69, <CITATION> , 1997 SCC (L&S) 1194 and <CITATION> , 1998(1) SLJ 259.

6. In the light of the rival contentions presented before us, the point that arises for consideration is whether the first respondent is entitled for weightage from the date of appointment to <ORG> of Group-A of <ORG> with effect from 24-12-1992 or is he entitled for such weightage anterior to the year of allotment i.e., 19-8-1997.

7. It is one of the principles of fixation of seniority that whenever there is recruitment to a particular service from two sources i.e., direct recruitment and promotion the seniority of promotees is fixed by giving wcightage in the form of seniority in the service subject to certain conditions. Weightage principle is generally applied also in a situation when persons in a feeder category come from two different lower categories and are required to fulfil two different kinds of eligibility criteria weightage of service means that though a promotee is given promotion to a cadre post or higher post in the non-cadre post, his seniority will be reckoned from a date anterior to the date of promotion, because in every year of recruitment, the rule obligates to maintain the ratio of recruitment between direct recruits and promotees. This is done to maintain the efficiency of service as well as to balance the competing interests. The weightage principle generally contemplates considering the service rendered in the cadre from which the promotion is given or for officiating service rendered on promotion prior to substantive appointment. Cases have come up with regularity where the question mostly involved the application of the rules than the vires of the rules. Further, cases involving weightage principle in fixing the seniority are by and large arose in relation to <ORG> like <ORG>, <ORG>, <ORG> etc. It also arose in relation to fixation of seniority of service holders who came to hold such post from two different sources. The principle of giving weightage has been held to be not unreasonable in <CITATION> , and <CITATION> , .

8. The question however before this Court is not as to the validity of the principle of weightage in fixation of seniority, but only as to how such weightage is to be reckoned. Therefore, it is necessary to examine the controversy in a nutshell and the purport of the various <ORG> Orders as approved by the President of India.

9. It is not denied before us that respondent No. 1 was promoted in a vacancy earmarked for promotees with reference to 1989. It is also not denied before us that till 1991 respondent No.1 did not come up within the zone of consideration though he became eligible for being promoted to <ORG> of <ORG> cadre October, 1982. Further, a perusal of the order impugned before the <ORG> dated 8-12-1995 shows that by virtue of notification No.E (GP)92/ 1/49 dated 3-11-1995 issued by <ORG>, respondent Nos. 1 and 111 other <ORG> officers were substantively appointed to the JS (<ORG>) of <ORG> with effect from 24-12-1992. According to the impugned letter/seniority list the inter se seniority of all the 112 <ORG> officers who were substantively appointed to <ORG> of <ORG> was prepared giving DOITS by applying principle (vi) of the principles for determining the relative seniority vide <ORG> letter No.E(O)l-72/ SR-6/29 dated 30-11-1976 as amended by letter dated 23-4-1991 and all other relevant factor. As per the annexure to the said letter 112 <ORG> officers will rank below one <NAME> whose DOITS was with effect from 4-12-1987 and above one <NAME> whose DOITS was with effect from 15-3-1988. The said S.R. Paul was junior most officer in the seniority list issued vide "<ORG> letter dated 24-12-1993 and <NAME> was the senior most direct recruit in 1986 batch and the inter se seniority position was circulated vide <ORG> letter dated 26-2-1983. This means that respondent No.l and all others who were appointed substantively to JS (<ORG>) <ORG> with effect from 24-12-1992 were placed above senior most of direct recruits of 1986 batch and junior most officer in the already finalised seniority list with reference to allotment year of 1987. Applying this principle, the petitioner was given DOITS with effect from 24-12-1987 whereas the said Paul was given DOITS with effect from 4-12-1987. Between these two dates there was no officer who was given DOITS with reference to 1984 which is now claimed by respondent No.1. All the 112 officers of <ORG> were appointed to <ORG> vide <ORG> dated 3-11-1995 and their inter se seniority was fixed accordingly giving all of them DOITS as 24-12-1987. This was done by applying seniority principles contained in the letter dated 30-11-1976 as amended by another letter dated 23-4-1991.

10. As per Rule 209(B)(1) of Indian Railway Establishment Code Vo.1 read with Rule 4, recruitment for <ORG> 40% of the posts from promotion from Group-B to Group-A Junior Scale which is based on selection on merit. For filling up the promotion quota <ORG> is held by <ORG> and as per the procedure followed in <ORG> Officers coming within the zone of consideration and those who have Bench mark grading 'good' are considered. Even among these officers, the officers with grade as 'outstanding' rank en bloc seniority to those who have grade as 'very good' and those who have graded as 'very good' rank en bloc senior to those who have graded as 'good' and get place in the select list accordingly. The officers placed in the panel were promoted to Group-A JS with the approval of the President with effect from the date of communication of approval of the <ORG> and recommendations of the <ORG>.

11. By letter dated 30-11-1976 <ORG> in Ministry of Railways with the approval of the President of India circulated principles for determining the seniority of officers appointed to various Class-I services from different sources (for short 'the principles'). Principle (i) states that the seniority of officers appointed to class-I shall be determined on the basis of 'date for increment on time scale' (DOITS) to be specifically determined in each case in accordance with the principles laid down therein. Principle (ii) is to the effect that all such officers promoted to class-I shall count their seniority from the date they commence earning increments in the regular scale as Assistant Officers subject to condition that inter se seniority of officers in each service recruited as probationers in a particular year will be regulated by their place in order of merit. Principle (vii) with which we are concerned reads as under:

Principle (vii):- In the case of Class II Officers permanently promoted to Class I Services, if two are more than two officers are promoted on the same date their relative seniority will be in the order of selection. Subject to the aforesaid provision the seniority of officers, permanently promoted from Class II to Class I services, shall be determined by giving weightage based on:

(a) the year of service connoted by the initial pay on permanent promotion to Class-I Service; or

(b) Half the total number of years of continuous service in Class-11, both officiating and permanent;

Whichever is higher, subject to a maximum weightage of five years.

12. The above principle (vii) contemplates giving wieghtage based either on the year of service connoted by the initial pay on permanent promotion to Class-1 or half of the total number of continuous officiating and permanent service in Class-II subject to maximum service of weightage of five years. These principles were amended subsequently by letter dated 23-4-1991. Principle (vii) in the letter dated 30-11-1976 was renumbered as principle (vi) and after amendment, it reads as follows:

Principle (vi): In the case of Group 'B' officers permanently promoted to Group 'A' services, if two or more officers are promoted on the same date, their relative seniority will be in the order of selection, subject to the aforesaid provision, the seniority of officers, permanently promoted from Group 'B" to Group 'A' service shall be determined by giving weightage based on:

(a) the year of service connoted by the initial pay on permanent promotion to Group 'A' service; or

(b) half the total number of years of continuous service in Group 'B' both officiating and permanent;

whichever is more, subject to a maximum of 5 years; provided that the weightage so assigned does not exceed the total non-fortuitous service rendered by the officer in Group 'B'.

13. As per the amendment contained in letter dated 23-4-1991 the same is applicable to all selections of <ORG> officers for substantive appointment to <ORG> for which selections are held after 23-4-1991. It is not denied that in the case on hand the selections were held on 24-12-1992 and therefore the principle (vi) as amended by letter dated 23-4-1991 is applicable. This principle (vi) was subject-matter in two cases before <ORG> being <NAME>'s case (supra) and <NAME>'s case (supra). While upholding these principles as satisfying tests of equity and fairness, <ORG> applied these principles therein. As seen from the principle, the weightage subject to a maximum of five years is with reference to the year of service connoted by initial pay on permanent promotion to <ORG> or half the total number of years of continuous service in <ORG> including officiating and permanent service. As respondent No.l I was substantively appointed w.e.f. 24-12-1992 to Junior Scale <ORG> of IRSE (DOITS) with effect from 24-12-1992 can only be given weightage of five years with reference to that date and therefore the impugned order insofar as the same reckons weightage from 24-12-1987 is in accordance with principle (vi)(a) of the amended principles for determination of seniority. For all purposes, admittedly respondent No.l's year of service is 1992 and though he is shown against vacancy of 1989 a reasonable reading of the principle shows that he is entitled for weightage of five years with effect from 24-12-1992 and certainly not from 1989. If the contention of respondent No.1 is accepted he would be given DOITS with effect from 1984 in which year admittedly he was not even within the zone of consideration. He came within the zone of consideration only in 1989 and it is not permissible to read the 'principle' as suggested by the learned Counsel for respondent No.l. Further, he was appointed as Assistant Engineer <ORG> in 1979 and to <ORG> (<ORG>) on 29-6-1987. If the weightage principle is given from 1989, he would have reckoned his seniority from 1984 when he was not even in <ORG> (<ORG>) post, which is feeder category to posts in <ORG> IRSE.

14. The principle of giving weightage is subject to two conditions. First, under no circumstance the service shall be determined by giving weightage upto a maximum period of 5 years. Secondly, the weightage so assigned does not exceed the total non-fortuitous service rendered in <ORG> In our considered opinion, if respondent <NAME>'s contention is accepted that he is entitled for weightage of five years from 1989, the same would violate the second condition, in the sense that admittedly the petitioner was promoted to <ORG> on 29-6-1997, and he had worked for a little more than five years in STS <ORG> If his seniority is considered from 1984, the same would exceed the total non-fortuitous service rule of 5'/2 year's which is impermissible.

15. In <NAME>'s case (supra) the appellants who belong to <ORG> (RBSS) claimed weightage of being substantively appointed by promotion to Junior Scale Group-A of <ORG> (IRPS) on 15-12-1984 against 50% promotion quota reserved for Class-II Officers. By applying the relevant principle for determining the relative seniority of the Class-I Officers of <ORG> (for reckoning weightage of seniority) DOITS worked out to 15-2-1979 that is to say five years weightage from the date of substantive appointment by promotion on 15-2-1984. Accordingly, they were given weightage in the JS Grade-I from 15-2-1979 and seniority was reckoned from that 'date of substantive appointment. Later as they were completed five years of service by 15-2-1984 in JS Grade-I they were posted in Senior Scale Grade-A of IRPS immediately after their joining in their respective <ORG> in JS Grade-I. They were also promoted to Junior Administrative Grade with effect from 14-5-1987 by reckoning their service from 15-2-1979 as they have completed eight years of service and eligible for consideration to Junior Administrative Grade and their seniority was circulated which was the subject-matter of challenge by <NAME> before <ORG>, Principal Bench. <ORG> allowed the OA and hence the appellants carried the matter to <ORG>. Placing reliance on principle (vi) of the principles for determining the relative seniority of Class-I (Group-A) officers, <ORG> found fault with the order of <ORG>. It was observed therein as under;

It is settled law that the appointing authority or the appropriate <ORG> can frame rules governing seniority which are reasonable keeping in mind the divergent claims that can be put forward by the various categories of the members of the service. It is, however, necessary that there should be no discrimination, that is, persons placed in the same group must be treated similarly and, further, that any principle which is made the basis of determination of seniority should, if applicable to others, be applied to them also. In other words, if seniority is to depend purely upon the date of confirmation or the date of appointment, that rule should be applicable to all; but if the promotees and special recruits are being given weightage, the principles applicable to the members of the service should be kept in mind while determining the weightage to be given or while laying down rules for determination of seniority.

16. It is therefore clear that while granting weightage of five years to a promotee officer it is always five years backwards from the date of substantive appointment and not from the year of allotment. This judgment which is relied on by Sri <NAME> in fact goes against the first respondent. As observed by <ORG> in <NAME> 's case (supra) in working out weightage of promotee officers, one cannot ignore the principles of seniority applicable to other members and cannot ignore other principles for determination of seniority.

17. <NAME> case (supra) involved the interpretation of <ORG> (Regulation of Seniority) Rules, 1954 and the case was decided on the facts peculiar to it and no principle or ratio was laid down therein. It is not an authority on the question of giving weightage with which we are concerned and the same cannot be considered an authority. <NAME> case (supra) arose out of IAS (Appointment by Promotion) Regulations. Having regard to Regulation 5 of the said regulations it was held that if for any reason <ORG> is not able to meet in a particular year the <ORG> when it meets next, should, while making selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the <ORG> Civil Service Officers who were eligible and fall within the zone of consideration for selection in that year. The relevant interpretation of the regulations is as under:

It must, therefore, held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, <ORG> is required to meet every year for the purpose of making the selection from amongst <ORG> Civil Service Officers who fulfil the conditions regarding eligibility on the first day of the January of the year in which the <ORG> meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of <ORG> to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason <ORG> is not able to meet during a particular year, the <ORG> when it meets next, should, while making the selection prepare a separate list for each year keeping in view the number of vacancies in that year after considering the <ORG> Civil Service Officers who were eligible and fall within the zone of consideration for selection in that year.

18. In <NAME>'s case (supra) the controversy involved the promotion to the post of Senior General Manager in <ORG> under <ORG> Service Rules. It was held:

It is true that filling up of the posts are for clear or anticipated vacancies arising in the year. It is settled law that mere inclusion of one's name in the list does not confer any right on him/her to appointment. It is not incumbent that all posts may be filled up. But the authority must act reasonably, and in public interest and omission thereof should not be arbitrary. <CITATION> , <ORG> had held that inclusion of the name of a candidate in a merit list does not confer any right to be selected unless the relevant recruitment rules so indicate. The State is under no legal duly to fill up all or any of the vacancies even though the State Act s in an arbitrary manner. In <NAME> v. <NAME> of Bihar, [1993 Supp (3) 268 - 1993 SCC (L&S) 1076 = (1993) 25 ATC 598] it was held that mere inclusion of one's name in the panel does not confer on him/her any indefeasible right to appointment. It is further held that the purpose of making a panel was to finalise the list of eligible candidates for appointment. The preparation of the panel should be the exact to the notified or anticipated vacancies.....However, in the light of the above principles and in the light of the clear rules extracted therein before, it is seen that the exercise of preparation of the panel is undertaken well in advance to fill up the clear vacancies or anticipated vacancies. The preparation and finalisation of the yearly panel, unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. If the annual panel could not be prepared for any justifiable reason, year-wise panel of the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith.

19. <NAME>'s case (supra), which is concerned with the seniority of officers in the rank of Commandant/Security Officer in <ORG>. In relation, thereto the circular letter dated 30-11-1976 containing principles of seniority which was modified by <ORG> in accordance with the recommendations of the <ORG> was also considered. Having regard to the policy of <ORG>, <ORG> observed after referring to <NAME>'s case (supra) and <NAME> 's case (supra) that the two letters of <ORG> containing principles of reckoning inter se seniority between Groups-A and B Officers was fair and equitable. This judgment of <ORG> refers to the principles of seniority contained in letter dated 30-11-1976 of <ORG> on two earlier cases and having regard to the principles laid down in the cases of <NAME> and <NAME> (supra) came to the conclusion that the principle of weightage which is also proposed by <ORG> in their letters was unassailable.

20. In <NAME> case (supra) the question was whether the respondent could be deemed to have been promoted from a date anterior to actual date of promotion. <ORG> directed that the respondent shall be deemed to have been promoted with effect from 17-1-1989 with all consequential benefits though in its proceedings dated 13-9-1995 found the respondent unfit for promotion upto 16-1-1994. <ORG> held that an employee who is declared unfit initially but given ad hoc promotion cannot count his seniority from the date of ad hoc promotion and that his seniority shall be reckoned/ determined wilh reference to the date of regular promotion only.

21. The decisions of <ORG> in <ORG>, Maharashtra Vikrikar Karmachari Sanghatan and Shanmukham cases (supra) cited by petitioner's Counsel did not deal with the principle of weightage while fixing seniority of the promotccs and they deal with the question of consideration of period of ad hoc promotion for the purpose of reckoning seniority and therefore it is not necessary to refer to these judgments.

22. In <ORG> case (supra) the question was as to whether the delay in filling up the vacant posts would confer any right on the person promoted subsequently to claim seniority from the date when the vacancy arose or from the year the vacancy was available. <NAME> dealing with Indian Administrative Service (Cadre) Rules and IAS (Fixation of Cadre Strength) Regulations, 1955 <ORG> held that even when the vacancy exists to be filled up by promotion from non-cadre service holders, the <ORG> is not bound to fill up those vacancies. Placing reliance on the earlier judgments in <CITATION> , , <ORG> observed as under:

This however does not, in our opinion, confer any right on the petitioners to seek a mandamus for encadring those ex-cadre/temporary posts, for any such mandamus would run counter to the statutory provisions governing the creation of cadre and fixation of cadre strength. The basis of the petitioners' right to be selected for <ORG> is traceable in case of <ORG> Civil Service Officers to Rule 8 of the Recruitment Rules which says that <ORG> may recruit 1AS persons by promotion from amongst the members of the <ORG> civil service. This Rule itself puts a ceiling on the number of posts that could be filled in IAS from such promotions, which are limited to not more than 33 1/3% of the posts enumerated therein. The prayer of the petitioners for encadrement of the ex-cadre/temporary posts in reality amounts to asking <ORG> to create more posts. The question then arises whether there is any such right in the petitioners to seek such creation of additional posts. It is a well-settled principle in service jurisprudence that even when there is a vacancy, the <ORG> is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up. This is because the decision to fill up a vacancy or not vest with the employer who for good reasons, be it administrative, economical or policy, can decide not to fill up such post(s).

23. From the various authorities cited before us, the following principles would emerge:

(i) Even when vacancies arises/exists it is not incumbent on the part of the authorities to fill up the vacancies. The officers may have a legitimate expectation, but they cannot have any enforceable right either to compel constitution of <ORG> or to seek promotion with retrospective date; for valid reasons <ORG> may be postponed;

(ii) The principle of weightage has to be applied having regard to other principles of seniority and cannot be construed or applied in a straight jacket formula;

(iii) The principle of weightage has to be applied by giving due weightage of service of five years from the date of substantive appointment and not from the year of allotment;

(iv) The principle of giving weightage of five years from the date of substantive appointment is fair and equitable procedure and cannot be held to violate Articles 14 and 16 of the Constitution of India;

(v) The principle of giving weightage subject to condition that weightage assigned shall not exceed the total non-fortuitous service rendered by the officer in the lower category; and

(vi) If the principle of giving five years of weightage in service in the promoted category is reckoned with reference to year of allotment, the same would violate the principle of equity in Articles 14 and 16 of the Constitution of India, in that, even a person whose claims were rejected earlier or who was not qualified or who was not within the zone of consideration would get the benefit of weightage of five years of service which is illogical and illegal.

24. The learned <ORG> in the impugned judgment while holding that the first respondent is entitled for weightage from the year in which vacancy occurred placed reliance on the principles contained in the letter dated 30-11-1976 and did not notice the subsequent amendment by letter dated 23-4-1991. Apart from this as observed by <ORG> in <NAME> 's case (supra) five years weightage can only be given from the DOITS i.e., the date on which the substantive appointment is made and not from the year in which the vacancy occurred. Be it noted that the year of service is always connoted by initial pay on permanent promotion and not promotion with reference to a panel year. In this view of the matter, the impugned judgment of the <ORG> suffers from error and is liable to be set aside which requires to be rectified by us in this petition for judicial review.

25. In the result, for the aforesaid reasons, we allow the writ petition and dismiss OA No.590 of 1998 filed by the first respondent herein. There shall be no order as to costs.


JUDGMENT <NAME>, J.

(1) Have heard the arguments for deciding this application seeking temporary injunction till the disposal of the suit. Ad interim injunction order already stands granted In favor of the plaintiff vide order dated December 16,1987.

(2) The plaintiff is a proprietor of trade mark 'CEAT' registered under No. 204251 since August, 1961, in respect of pneumatic and solid tyres for vehicles. This trade mark 'CEAT' has been in use in India since 1951 earlier by the predecessor-in-interest of the plaintiff and the registration of the said trade mark still subsists in favor of the plaintiff. It is the case of the plaintiff that the trade mark/word 'CEAT' is a part of the plaintiff's company trading style and is also an invented word and the plaintiff has been selling huge quantities of tyres, tubes and other material under the trade mark 'CEAT' and the plaintiff commands good reputation and goodwill in the said name and the sale of such goods runs into crores of rupees in a /year and the goods are also exported to various countries under the said trade mark 'CEAT' It was also pleaded that a huge amount has been incurred and is being incurred for carrying out advertisements in respect of the said trade mark 'CEAT' and thus, by reason of long and continuous and exclusive use the trade mark 'CEAT' is exclusively associated and identified with the plaintiff-company and its goods. It was pleaded that according to the Memorandum of Association of the plaintiff-company, the plaintiff company is to carry on business of manufactures of and dealers in conveyor belts, transmission belting, fan belts, 'V belts, belting system and belts/belting of all types and kinds, hoses and coupling for materials handling and parts, components and accessories thereof. In the month of May 1987, it was found that the defendants have brought out in the market fan belts and 'V belts, under the trade mark 'CEAT' and those are made from rubber/synthetic rubber. It was alleged that the defendants by using the trade mark 'CEAT' for its fan belt and 'V belt has caused confusion and is likely to cause confusion amongst the customers that the goods being manufactured and sold by the defendants.in fact, belong to the plaintiff. It was pleaded that the goods being manufactured by the defendants are of poor quality and the sale of those goods under the trade mark 'CEAT' is likely to adversely affect the business and reputation of the plaintiff. It was pleaded that the defendants have fraudulently and dishonestly used the said trade mark in respect of fan belt and 'V belt being manufactured and marketed by the defendants with a view to get enriched illegally upon the reputation and goodwill of the plaintiff.

(3) The defendants have contested that the suit pleading that the plaintiff has no cause of action as the plaintiff is not manufacturing and selling the 'V' belt and fan belt and the said goods are totally different -in nature and description from the goods being manufactured and sold by the plaintiff. It was pleaded that the plaintiff's goods fall in clause 21 of the IVth Trade and Merchandise Marks Rules whereas the goods of the defendants come within clause 7. It was pleaded that the defendants have been using the said trade mark 'CEAT' for,ita'V' belts and fan belts since 1979 and that -there is no likelihood of any confusion being caused by selling the goods by the defendants by using the trade mark 'CEAT' in any manner to show that the goods belong to the plaintiff.

(4) An action for passing off is founded on desirability of preventing commercial immorality or dishonesty on the part of a trader who by using a particular mark, whether registered or unregistered, wants to falsely represent that his goods are the goods of someone else so that be can take unfair advantage of the reputation of that Other person in the market. The likelihood or probability of deception depends on a number of factors and is a question of fact in the circumstances of each case. It is obvious that if there is no link between two trades, or in other words, the two trades are not closely correlated and the goods are not analogous, a conclusion may be reached in a particular case that the chances of deception are too remote to be taken notice of.

(5) Counsel for the plaintiff has vehemently argued that the tyres of the plaintiff are sold in the same type of shops as are selling 'V' belts and fan belts. The tyres are used in vehicles and the fan belts are also used in vehicles whereas the 'V' belts are also used in machines which are used for re treading the tyres. so,it is vehemently argued that "the goods being manufactured and sold by the defendants are atleast analogous goods to the goods of the plaintiff and as the goods of the plaintiff and the fan belts and 'V' belts are being sold at the same type of shops, there is every likelihood for ordinary customers to treat the goods after defendants as those of the plaintiff. It is true that the plaintiff Thus no registered trade mark 'CEAT' in respect of the fan belts and the 'V' belts but if it is an action for passing off it is not necessary that the plaintiff must have registered trade mark. Indeed it is not disputed before me that the trade mark Cashier an invested word and a lot of reputation has been built up around the said trade mark in respect of the tyres.

(6) Counsel for the defendants has, on the other hand, argued that the bb Its and fan be Ks being manufactured by the defendants cannot be tides analogous or allied goods in respect of the registered trade mark of thier plaintiff nmd there is no likelihood of any customer being misled by the be for india manufacturing and selling the said goods under the trade mark . Both the Colonel have placed reliance on a number of judgments in support of their to respective contentions. In my opinion, the plaintiff, primafaele, has a Strong to se in view of the fact that fan belts and 'V' belts are being sold On that garnet shops from where the tyres are sold. The plaintiff is hold tang a bag goodwill and reputation in the trade mark 'CEAT' pertaining to tyres. Prima fade, it is also clear that 'V' belts and fan belts are at least cognate or allotted goods to the tyres inasmuch as the fan belts and the tyres are used in the vehicles and 'V' belts are used for machines including machines mealy for re treading the tyres.

(7) The first case referred to by the learned Counsel for the plaintiff is <CITATION> .y. Phillips, Findhoven, Holland and another . In the said case", the plaintiff was manufacturing and selling goods in engineering and electrical fields under the trade mark 'Phillips'. The defendants started using the sain trade mark for their watches and clocks. Although the plaintiff was not manufacturing watches, still the defendants were -restrained from using the trade mark 'Phillips' for their watches and clocks. In the said case also, the trade mark of the plaintiff did not fall in the same class as the goods of the defendants. Counsel for the plaintiff then referred to <ORG> and Another v. <ORG> (^973) R.P.C. 560. Here the 'plaintiff was trading he the household gloves and plastics pants for babies. The defendant started selling toilet tissues under the said trade mark. The injunction was granted against the defendant. It was held that it was the intention of the plaintiff to extend the field of their activities for manufacturing and selling the toilet The plaintiff was granted-injunction against the defendant. Then he has deferred to "Players" Trade Mark (Registration) (1965) R.P.C. 363. The plaintiff find applied 'for registration of the trade mark in respect of tobacco. It was found that the applicant's goods and the opponent's goods were sold through the same channels. It was held that the goods were not of the same description but the applicants use of the mark would likely to lead to confusion and the relief was revised to the opposite side. Plaintiff's Counsel has placed reliance on a number of judgments but it is not necessary to refer to all of them because each case depends on peculiar facts but the principles which have to be kept in view for deciding an application for grant of injunction in such like cases are very well recognised and they came to be considered by this <ORG> in <NAME> v. <ORG> 1990(2) Arbitration Law Reporter 91. In the said case the plaintiff was manufacturing and selling chewing tobacco under the trade mark 'RAJANI'. The defendant started marketing Pan Masala under the said trade mark. The injunction was allowed. The learned Judge has referred to almost all the judgments on the subject in order to decide this case. It was found by the <ORG> that the two types of goods were being sold from the same shops and there was every likelihood of confusion being caused amongst the customers in considering the goods of the defendant as goods of the plaintiff. The <ORG> held that the goods are of cognate and allied nature in the sense that these are manufactured by the same manufacturers and pass through the same trade channel inasmuch as the whole sellers or retailers as found to be common and even the consuming public can be the same.

(8) Reference was made to a judgment of this Court in M/s. <ORG> v. <NAME> 1985 Ptc 33, by the learned Counsel for the defendants but the said case is on a different aspect. In the said case the rectification application was dismissed. The petitioner's goods were being sold under the trade mark 'Natraj' pertaining to pencils. The respondent was selling the goods geometry boxes. Counsel for the plaintiff has informed that an appeal against the said judgment is still pending for decision. The present is not a case of seeking any rectification of registration. The case of the plaintiff is based on an action of passing off. Counsel for the defendants has cited Rustom Alt Molla & other v. <ORG> . In the said case, under the trade mark 'BATA', shoes, chappals and allied goods were being sold by the plaintiff and the defendant adopted the said mark in respect of lungis' and banker chiefs. The Court held that the goods are different and the injunction was refused. Counsel for the plaintiff has drawn my attention to the commentary in the book under the Trade Mark Act by <NAME> at page 427 wherein it is mentioned that this suit ultimately was decreed although interim injunction was refused. This judgment was not considered as good law in <CITATION> andothers . In the said case the defendant had started using the trade mark '<ORG>-foam'. The trade mark 'BATA' was registered in respect of canvas, rubber, leather shoes, rubber footwear, rubber soles, rubber heels and leather soles etc. The word '<ORG>' was treated as a fancy name. It was held that the plaintiff bad a cause of action for instituting the proceedings for passing .off and the fact that the plaintiff was not manufacturing or producing foam was not enough to hold that there could be no passing off action in respect of the user of the name '<ORG>' to the products being marketed by the defendant. Counsel for the defendants has cited <ORG> v. <ORG> Tokyo, Japan (1966) 2 Dlt 143. It is not necessary to deal with this case because this case was not dealing with the action of passing off. Moreover, on facts the case is distinguishable. The planintiff's trade mark was in respect of tyres and tubes for vehicle whereas the defendant wanted registration of the said trade mark in respect of cycle parts.

(9) Counsel for the defendants has made reference to <ORG> and Sons Limited, 1957 Rpc 177. An application was moved for getting the trade mark 'EXCBLLO' registered in respect of 'boots shoes and slippers'. It was opposed by the other party who had registered the said mark in respect of 'stockings and socks'. It is true that after recording evidence in this case the finding was given that the two classes of goods, namely, 'boots, shoes and slippers' on the one band and 'stockings and socks' on the other are so completely different that the fact that members of public saw the two classes of goods occupied for sale in the same shop and under similar marks would not be sufficient to raise a real tangible danger of confusion. The judgment was given in view of the facts which came out during the course of trial, it cannot be said that any general proposition of law has been laid down which could be of any assistance in deciding the present matter. As already discussed by me above, it would depend on facts, of each case in order to see whether there is possibility of confusion occurring or not by use of same trade mark in respect of goods of different nature and whether the said goods could be deemed to be cognate or al<ORG>d goods or not. He has then made reference to <CITATION> . In the said case the question which arose for decision was whether the registration of trade mark 'SONY' for nail polish is likely to deceive or cause confusion in the minds of customers of cognate goods bearing the same mark. The <ORG> observed that the goods are of different nature and the customers are also different and thus, a common man would not be confused by purchasing the goods of registered trade mark 'SONY' in respect of nail polish treating the same being manufactured by the trade mark 'SONY' in respect of the electronic goods. The case is based on different facts and is not applicable to the facts of the present case. <ORG> has also cited <ORG>'s <CITATION> . in this case the plaintiff bad registered the trade mark <ORG> in respect of the condensed milk. The defendant wanted to have its registration for the biscuits and toffees. The defendant was permitted to have its trade mark registered under the name '<ORG>' in respect of biscuit and toffees. The <ORG> gave the finding that where the defendants dealt in biscuits and toffees which were not produced by the plaintiffs and where the wrappers were printed with the wards '<ORG> action for passing off cannot be supported by the plaintiff who sold condensed milk under the trademark '<ORG> 'in tins or cans having different size, type and shape. The case is based on peculiar facts of its nature. Reference was made also to <ORG> (1957) Rpc 79. In the said case, an application to register a mark '<ORG>' was sought in respect of milk and milk products. The opposition was put in by proprietors of said mark saying that the said trade mark was being used by the opposite party in respect of Racketed tea. It was held that both classes of goods are 'food' and in the retails sales end of the trade channels are often sold in the same shops over the same counters but the origin of the goods and the wholesale end of the trade channels are not the same and the marks although very similar are not identical and the finding was also given that tea and milk and milk products are not the goods of the same description. Again the case is having facts of its own kind. Reference was also made to <CITATION> and anothers Air 1940 Privy Council 86, by the learned Counsel for the defendants. In the said case, the question which arose for decision was whether the smoking tobacco being manufactured under the one trade mark and chewing tobacco being manufactured under the same trade mark is likely to deceive the public or not 7 The <ORG> held that the vital element in such a case is probability of deception and this may depend on number of matters as well as the question of similarity of the marks or of the get up. The <ORG> held that there can obviously be no monopoly in the use of the trade mark. A manufacturer of cigarettes under an undoubted trade mark such as an animal, or any other device, cannot legally object to use of the identical marks oil, say, hats, or soap, for the simple reason that purchasers of any of the latter kinds of goods could not reasonably suppose, even if they were well acquainted with the mark as used on cigarettes, that its use on hats or soap denoted that these goods were manufactured or marketed by the cigarette manufacturer. It was also held in this case that a judge cannot properly decide except upon evidence as to the classes or kinds of goods which are protected by the appellants mark, or, to be more precise, on the question whether purchasers of chewing tobacco from the respondent in the packets and tins above described are likely to be missed into thinking that that article is manufactured or put upon the market by the appellants. So, on merits, the <ORG> has come to the conclusion that there was no evidence to show that any such confusion could take place although both the parties were using the same trade mark in respect of their goods.

(10) Both the counsel have referred to a judgment in the case of <CITATION> . . In the said case, the respondent had applied for registration of the mark 'Gluvita' used with reference to biscuits manufactured by him. The appellant had been using the registered trade mark 'Glucovita' with reference to his glucose with vitamins and he had opposed the application of the other side. <ORG> in para 20 had observed that it is true that in both the above mentioned cases the two competing trade marks were absolutely identical. The absolute Identical of the two competing marks or their close resemblance is only one of the tests for determining the question of likelihood of deception or confusion. It was emphasized that the trade connection between the different goods is another such test. Ex hypothesi, this latter test applies only when the' goods are different and these tests are independent tests. <ORG> observed that there is no reason why the test of trade connection between different goods should not apply. The Court assumed that liquid glucose is used in the manufacture of biscuits with glucose and held that there is a trade connection between the glucose and biscuits and a likelihood of confusion or deception arising there from would appear from the fact stated by the appellant that it received from a tradesman an inquiry for biscuits manufactured by it under its mark 'Glucovita'. <ORG> came to the conclusion that thee commodities concerned in the present case are so connected as to make confusion or deception likely. This judgment applies to the facts of the present case. Here also the tyres being manufactured by the plaintiff are from rubber or synthetic rubber and so also the fan belts and 'V' belts being manufactured by the defendants and thus, prima facie a trade connection is established in respect of these goods and an ordinary customer is likely to be confused or deceived while buying the goods manufactured by the defendant thinking that the said goods are in fact manufactured by the plaintiff.

(11) Counsel for the defendants also made reference to <CITATION> . In the said case, <ORG> held that there was no likelihood of confusion or deception because the respondent's goods were confined to contraceptives for use by women which could only be used with medical assistance while the appellant's contraceptives were essentially for men. However, it appears that the judgment is based on the finding given that both the parties had concurrent user of the trade mark In respect of their respective goods. In the case of <NAME> v. Deputy Registrar T & M. 1979 Rlr 526, the Court found a trade connection between the vegetable oil used by one party V under the trade name of 'DALDA' and the hair removing soap containing the oil. The Court found that the buying public will think that <ORG> are the makers of the hair removing soap which actually is being manufactured by the opposite party. So, the trade mark 'DALDA' was not allowed to be registered. Like in this case 'DALDA' was said to be invented word and so b the word 'CEAT in the present case. In <ORG> and another v. <ORG> and <ORG> 15 Rpc 105, the trade mark 'KODAK.' was registered in respect of cameras and was sought to be used by the opposite side in cycles. The trade connection was said to exist between the goods as even bicycles could be fitted with the cameras. Apparently the cycles and the cameras are totally different goods, still it was held that the possibility of confusion was there. In the case of <ORG> v. <ORG> 16 Rpc 12, the party was having the trade name '<ORG>' registered for pneumatic tyres for cycles and other accessories such as pumps, inflators, etc. whereas '<ORG>' had become identified with the ^ goods of the other party who dealt in oils and lubricants for cycles and other cycle accessories. It was held that there was a trade connection between the two types of goods and necessary injunction was granted. Reference may be made to <ORG> M/s. Telerad Private Limited, (1978)1 Delhi 667. The respondent in this case had registered the trade mark 'TELERAD' In respect of radio receiving sets and components parts. The appellant get registered the same trade mark in. respect of domestic electrical appliances. <ORG> of this Court held that there is a real tangible danger of confusion if the trade mark of the appellant is continued to remain on the Register as it was found that many electrical goods shops not only sell radios but also domestic electrical appliances. Similar is the position here. The same shops which sell the tyres also sell 'V belts and fan belts and all these goods are manufactured from the same material rubber/synthetic rubber. So, prima facie, possibility of customers being confused in buying the goods of the defendants treating them to be of the plaintiff cannot be over-ruled. <CITATION> ., , the trade mark 'CALTEX' was being used by one party in respect of petrol and various oil products. The other party started dealing with manufacture of watches under the same trade mark. It was held by a Division Bench of the said Court that person seeing the mark attached to watches which was a new class of goods, would presume, or was most likely to assume that they originated _ from the proprietor of the mark, naturally, the opponents. So, the registration was not granted. In para 49 <ORG> observed that in this case goods were totally different and there is no trade connection between them and there is no connection in the course of trade nor any common trade channels and there are factors against holding that there would be any danger of deception or confusion but the trade factors cannot be ignored which tend to show that there is' likelihood of creating deception and confusion. As the opponents have been using the trade mark on a very large scale and their sales exceeded Rs. 30 crores in one year and their publicity is wide spread and large, it was found by <ORG> that the goods of both the nature are being purchased by a common man and as far as the trade mark 'CALTEX' is concerned, the same would confute the common customers thinking that the new product is also being marketed by the proprietors of the same trade mark 'CALTEX ^' who are manufacturing petroleum products. This case applies, ln me view, on all fours to the facts of the present case. The trade mark 'CEAT' has achieved lot of reputation and has become very common and the plaintiff has been marketing goods under the said trade mark running into substantial amounts and had incurred lot of expenditure on having wide publicity. So even though for the sake of arguments it is to be assumed that the goods manufactured by the defendants have no trade connection with the good marketed by the plaintiffs, still the common customer who is purchasing the goods is likely to be deceived with the new products of the defendants in all probabilities considering the same as manufactured by the plaintiff because they are being marketed under the same trade mark. (12) In view of the above disussion, I conclude that the plaintiff has a sirong, prima fade, case and the balance of convenience also lies in favor of therefore <ORG> v. <ORG> and "and"nr.dAvis International Ltd."."a plaintiff and the plaintiff is, thus, entitled to have interim injunction till the disposal of the suit.

(13) I confirm the interim injunction already granted till the disposal of the suit.


JUDGMENT

1. This first appeal comes before as from the decision of the learned Subordinate Judge of Muzaffarpur, dated the 10th January 1917.

2. The suit was originally instituted by the plaintiff claiming partition and possession of a four-annas share of the lands specified in the plaint, coupled with a claim for mesne profits in respect thereof from the date of dispossession to the date of the recovery of possession of the same.

3. The learned Judge granted a preliminary, in a sense, but final decree for partition, and directed that the plaintiff was entitled to possession of his share of the lands so partitioned; and against that decree no appeal has been preferred to this <ORG>; and in so far as the relief sought and granted by that decree qua partition and possession, the same has been effectually disposed of and finally determined.

4. By Item No. 5 of the claim and prayer to the plaint, the plaintiff sought compensation for <ORG> profits from the date of his dispossession until the recovery of possession of the property in suit; and the plaintiff has approximately estimated the value thereof at the sum of Rs. 500.

5. The plaintiff on the 15th of January 1914 filed a petition under Order XX, Rule 12, inviting the <ORG> to exercise its jurisdiction and to direct an enquiry as to the ascertainment of the mesne profits due to the plaintiff and to pass a decree in respect thereof in favour of the plaintiff; and to this petition was added a schedule, showing exactly how the mesne profits claimed by the plaintiff were calculated; and that they amounted to the sum of Rs. 47,647-2-0.

6. On the 19th January the matter came before the learned Subordinate Judge, who directed notice to issue to the opposite party to show cause why a supplementary decree under Order XX, Rule 12 of the Civil Procedure Code, for the amount claimed by the plaintiff by way of mesne profits should not be granted; and the learned Judge directed that the case should be put up for final disposal on the 28th February 1914. The learned Subordinate Judge also by this order directed that the necessary process fee be paid by the plaintiff within three days.

7. The <ORG> being unable to dispose of this application on the 28th of February, an order was made that the matter should be again put up for disposal on the 7th March 1914.

8. Accordingly on the 7th March when the application was called on for hearing, it appeared that the plaintiff had failed to pay the necessary process fee directed to be paid by the order of the 19th February; and accordingly the learned Judge was pleased to make the following order: "Application refused" Now the application that was refused was the application to assess mesne profits; and this disposed of the only remaining part of the original suit that was up to that time un disposed of.

9. On the 25th July 1914 the plaintiff filed another petition claiming an assessment of the mesne profits to which he was entitled, exactly similar to the petition which he filed on the 15th January 1914 and which had been dismissed on the 7th March 1914. The second petition was exactly in identical terms with the previous petition and the claim for mesne profits was exactly the same.

10. The learned Judge disposed of this application on the 15th of September 1914, and appointed Commissioners to enquire into the plaintiff's claim and assess whatever sum they thought fit and proper on the evidence adduced before them as to the amount of mesne profits to which the plaintiff was entitled. The learned Commissioners who were appointed by the learned Subordinate Judge a warded the plaintiff the sum of Rs. 6,000 as the measure of mesne profits to which the plaintiff was entitled.

11. The matter came before the learned Subordinate Judge on the 10th January 1917 for final disposal on the Commissioner's report; and objection was taken before the learned Subordinate Judge, as now before us, to the following effect that the learned Subordinate Judge had no jurisdiction to entertain the application presented on the 25th of July, 1914, inasmuch as the previous petition or application for the assessment of mesne profits, which was filed on the 15th January 1914, had been finally disposed of and dismissed by the lower Court' order of the 7th March; and that consequently the disposal of the application for mesne profits on the 7th of March was a disposal of all that was left remaining undisposed of in the original suit, and that thus no suit was pending in July 1914 in which any subsequent application could be made.

12. It is conceded that the order of the 7th March was an order properly made within the provisions of Order IX, Rule 2; and that the learned Judge was justified in dismissing the application for assessment of <ORG> profits on the grounds he did; and that the only available remedy open to the plaintiff against such order is that provided by Order IX, Rule 4, where under the plaintiff must elect to adopt one of the two courses, either to abide by the order dismissing the application for assessment of <ORG> profits and bring a fresh sail, or apply to set aside the order of dismissal, and seek to have the application for an enquiry and assessment of <ORG> profits restored for hearing. The latter alternative course the plaintiff did not pursue.

13. It is unnecessary for us to determine whether the plaintiff still has a right to pursue his remedy by independent suit to recover the mesne profits which he claims for the years 1317 to 1321 F.S.

14. The learned Subordinate Judge disallowed the objection preferred before him by the defendant-appellant and on the plaintiff's second application for assessment of mesne profits awarded the plaintiff a decree for the sum of Rs. 1704-3-8. The learned Judge appears to us to have been entirely wrong in the conclusion at which he arrived in point of law. He summarises his conclusion in three lines in the following words:--"In the second place it was not the suit but the application of the plaintiff for the determination of profits that was dismissed for default: and so I do not think there is any bar to a fresh application of a similar nature." With great respect to the learned Judge he completely misunderstood the legal position of the parties and the relief which had been claimed in the original suit, which had been in part disposed of, and in respect of which only one item remained to be disposed of, viz., the assessment of mesne profits, and the condition in which the original suit then was.

15. We have been referred to the case of <CITATION> 15 Ind. Cas. 700 : 16 C.L.J. 3. The facts of that case appear to us to be identical with the facts of the present case. It is impossible to distinguish the two cases. In the case reported as <CITATION> 15 Ind. Cas. 700 : 16 C.L.J. 3 an order almost similar in terms to that in the present case was made, the difference only being that in the case cited the application for mesne profits was dismissed on the ground that the plaintiff failed to deposit the necessary Commissioner's fee incidental to the holding of the enquiry as to the assessment of mesne profits. The learned Judge who heard the case originally, by reason of the laches of the plaintiff in making the necessary payment, directed that the Commissioner should return the commission, "and that the case should be dismissed for default on behalf of the plaintiff."

16. Now the learned Judges on appeal who decided that case, Mr. Justice <NAME> and Mr. Justice <NAME>, reviewed all the authorities with the greatest care and the learned Judges-were of opinion that there was no room for controversy on the question raised for their decision, and they held that once such an application for assessment of mesne profits was dismissed all that remained of the original suit was gone, and must be deemed dismissed, and that no fresh or subsequent application for assessment of mesne profits was entertain able. The learned Judges say as follows:--"The result was that on the 7th January 1910 the Court recorded an order to the effect that 'the Commissioner be directed to return the commission, and that the case be dismissed for default on behalf of the plaintiff' Now what was the 'case' thus dismissed? Clearly it was the claim of the plaintiff for recovery of mesne profits from the defendant; as that case was dismissed on the 7th of January 1910, it was obviously not open to the plaintiff to make a fresh application on the 13th January 1910 because there was no pending suit wherein that application could be deemed to have been made."

17. The learned Judges then dealt in detail with all the decisions touching and concerning the point arising now for our determination; and there seems to be general uniformity of opinion that once an application such as that in the present case was presented on the 15th of January 1914 and was dismissed on the 7th March 1914 that then the <ORG> ceased to have seisin of the case; and that then no jurisdiction existed in the <ORG> to entertain any fresh application with regard to the assessment of mesne profits. To the law so declared and laid down by the Judges of the Calcutta High <ORG> we beg respectfully to subscribe.

18. A point has been taken before us with regard to the amount of <ORG>-fee which should have been paid by the plaintiff in respect of his claim for mesne profits. However, having regard to the view we take on the question of law arising for our determination touching the invalidity of the decree of the learned Judge passed on the 23rd March 1917, it becomes unnecessary for us to determine the question arising with regard to the <ORG>-fee payable. However, we desire to add that we are not by any means satisfied that the ruling of the learned Judge with regard to the <ORG>-fee payable, which was debated before him, as before us, was correct.

19. Accordingly we allow this appeal and set aside the decree of the learned Subordinate Judge and direct that the plaintiff shall pay to the defendant his costs in the lower Court and the costs of this appeal.


JUDGMENT BRIJLAL GUPTA J. - This is an income-tax reference which has come to this court on a requisition on application under section 66(2) of the Act. The questions which have been referred for the opinion of the court ar :

"1. Whether on the facts and in the circumstances of the case the proceedings under section 34 were valid?

2. Whether there were materials to justify the assessment èof Rs. 9,45,000 as income of the assessee from undisclosed source in respect of the assessment year 1942-43?"

So far as the first question is concerned no argument was addressed to us by the learned counsel for the assessee. He submitted that he could not challenge the validity the proceedings under section 34 or usefully take our time the same. We have examined the order of the income-tax authorities and <ORG> for ourselves and apart from the concession made by the assessees counsel we also cannot find any ground to invalidate the proceedings under section 34. Accordingly, we answer the first question in the affirmative.

So far as the second question is concerned, the material facts ar : that during the course of proceedings under the Income-tax Investigation Commission Act in the case of <ORG> of Calcutta a sum of Rs. 9,45,000 was found credited in the account of Mr. <NAME>, a director of <ORG>, as a loan from the assessee to that gentleman. The entry was of a date in September 1941. The amount was shown as having been withdrawn by the assessee in three instalments subsequently. The assessee was examined by <ORG> on August 8, 1950, in which he admitted that the money belonged to him and that he had advanced the same as a loan to Mr. <NAME> but that he did not maintain any account books or record to show how and wherefrom the said sum of Rs. 9,45,000 was given to Mr. <NAME>. <ORG> appear to have communicated these facts to the Income-tax Officer concerned and the said officer called for the account books of the assessee for the year ending September 13, 1942, and also examined the assessee on August 19, 1950, in regard to the nature and source of the amount and the particulars of the alleged loan. There were no entries relating to the advance of Rs. 9,45,000 in the account books of the assessees estate. It may be mentioned that the assessee is a prominent taluqdar of Avadh. In due course the Income-tax Officer on January 27, 1951, issued a notice to the assessee under section 34 and by another notice under section 23(3) dated June 16, 1951, required the assessee to explain the nature and the source of the said amount. The assessee furnished a reply to the said notice on August 20, 1951, alleging that the source of the amount in question was the privy purse of his grandmother and his mother and also the income of his estate. Statements were also filed regarding the privy purse of these two ladies from which it appeared that the grandmother had receipts amounting to Rs. 7,39,991 between 1278F. to 1328F. and the mother had receipts amounting to Rs. 7,39,992 between 1319F. to 1347F., the total of the receipts of the two ladies amounted to Rs. 14,79,913.

It was further submitted that the expenses of the said two ladies were met out of the assessees estate and some statements in regard to their expenditure were also filed in the case of the grandmother of expenses amounting to Rs. 2,84,706 during the period 1300F. to 1318F. and in the case of the mother of Rs. 4,76,576 for the period from 1319F. to 1347F. The grandmother died in 1328F. and the èmother in 1940.

The case of the assessee was that the entire amount of the receipts of Rs. 14,79,913 was kept intact and on the death of his mother in 1940, the assessee came into possession of the same which according to him amounted to Rs. 15 1/2 lakhs. In addition to the above another statement was filed to show that the assessee had an approximate saving of Rs. 5,84,401 over a period from 1278F. to 1315F. The assessee stated that the registers in respect of these receipts were not traceable. The assessee also relied on past income amounting to Rs. 6,46,107 for the period 1342F. to 1350F. to show that he was in possession of sufficient money out of which the amount of the advance of Rs. 9,45,000 could have come. Lastly, it was stated that the assessee had no other source of income besides those disclosed above.

In support of his case the assessee requested the Income-tax Officer to examin : (1) Mr. Mirza Ahmad Isphani (as he had migrated to Pakistan he could not be examined); (2) Mr. S.M.I. Kintoori (maternal uncle of the assessee); and (3) <NAME> (brother of the assessee).

After a consideration of the entire evidence the Income-tax Officer held that no accounts whatsoever were available as to how the money alleged to have been paid out to the two ladies had been handled by them, and that the entire money had been kept intact. So far as the alleged receipt of Rs. 5,84,401 by the assessee himself was concerned he rejected it as being without any supporting evidence. The Income-tax Officer also relied on the circumstances that in October, 1941, the assessee had applied for being allowed to pay income-tax dues amounting to Rs. 41,000 for the assessment year 1941-42 in instalments. He reasoned that if the assessee had been left as large an amount of money as 15 1/2 lakhs by his grandmother and mother, and even though he may have loaned Rs. 9 lakhs odd out of that money there would still be left 6 lakhs of rupees in his hands and an application for payment, in instalments, of a comparatively small amount of money like Rs. 41,000 could not have been made. The story of the receipt of the money by the ladies was, therefore, not true. The evidence of <NAME> and of Mr. <NAME> was rejected by him, as also the affidavit of Mr. <NAME> a the latter had not been produced for cross-examination. In the result he treated the amount of Rs. 9,45,000 as the income of the assessee from some undisclosed source.

The assessee went up in appeal to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner also relied upon the fact that it was improbable that the two ladies had kept such a large amount of money intact, and further on the circumstance that there were numerous female issues of the grandmother of the assessee, and the assessees mother had also daughters and another son, and these female issues were married to "commoners", and as such it was not possible to believe that all the money of the two ladies was allowed to devolve on the assessee alone. He further observed that during the war fortunes were made by people in business and in speculation, and èIsphani being a particular friend of the assessee, and being in business on a large scale, it is possible that the assessee may have earned the amount of Rs. 9,45,000 from business dealings in partnership with <ORG> and entered in their books as a loan from the assessee. He further held that as entry regarding this amount was towards the end of the accounting period ending 30th June, 1941, it was rightly treated by the Income-tax Officer as the income of the assessee from a source which the assessee was not prepared to disclose. In the result the Appellate Assistant Commissioner dismissed the assessees appeal.

The Income-tax Officer and the Appellate Assistant Commissioner both also held that proceedings under section 34 were valid. This view was upheld by <ORG> also in further appeal.

On the merits <ORG> also rejected the assessees story regarding the receipt of Rs. 15 1/2 lakhs from the privy purse of the grandmother and the mother. The <ORG> did not find it possible to believe that the amounts which were not given to the ladies in a lump sum but in instalments and presumably therefore for maintenance and expenses were all kept intact by them over a long period of time from 1920 to 1940. The <ORG> also referred to the subsequent conduct of the assessee in making an application to the Income-tax Officer for instalments for payment of Rs. 41,000 and held that for this reason also it could not be believed that he had in his hands a large sum of money as a balance out of the alleged amount of Rs. 15 1/2 lakhs after the alleged advance of Rs. 9,45,000 to the <NAME>. The <ORG> also refrred to the difference in the veision of the assessee regarding the source out of which the sum of Rs. 9,45,000 came in the statement of the assessee before <ORG> and the statement made by him subsequently before the Income-tax Officer. Upon an interpretation of those statements the <ORG> pointed out that whereas before <ORG> the assessee had stated that the amount came out of the savings of his wife, before the Income-tax Officer, later on he had stated that it came out of the savings of his grandmother and mother, out of his own savings, and conducted that the version that the amount came out of the savings of his grandmother and mother was clearly an afterthought. The <ORG> also observed that the assessee had admittedly accounts in a large number of banks and it was unbelievable that a person having accounts in several banks, and thus knowing the value and the worth of money would keep a huge sum of money like Rs. 15 1/2 lakhs from May 1940, when he alleged to have got it from his mother on her death, till 24th September, 1941, when he alleged to have loaned it to <ORG> that is to say, for a period of about 15 months. For these reasons and further also for the reason that on their interpretation of the statement of the assessee before the <ORG> they understood that statement to mean that the assessee had taken the amount of Rs. 9,45,000 to Calcutta personally to èadvance it to <ORG>, they found it to be unbelievable that a person of the position and status of the assessee would carry such a large amount of money personally to Calcutta from Lucknow. Lastly, they found it difficult to believe that it being admitted that both the grandmother and the mother had daughters who were married to commoners and who were financially not as affluent as the assessee nothing would be given to them, and the entire amount would be allowed to devolve upon the assessee. For all these reasons the <ORG> did not believe the explanation of the assessee regarding the nature of the source of the amount. They also held that the entry in the accounts being only six days before the close of the accounting year relevant to the assessment year 1942-43 and having regard to the status and the position of the assessee, and the large funds at his disposal for earning income, and his potential capacity to earn income, it was rightly included in the income of that year and was assessable in that year. In the result they dismissed the appeal.

An application under section 66(1) of the Income-tax Act made to the <ORG> failed. The case has been referred to us on an application under section 66(2) as required by this court.

Learned counsel for the assessee has argued that the <ORG> misread and misinterpreted the evidence of the assessee before <ORG> in two respect : (1) that the money in question came from his wife and (2) that he had taken the money to Calcutta. Learned counsel has urged that the correct interpretation of the statement is that the money referred to there was not the sum of Rs. 9,45,000, but two other sums of money, namely, Rs. 65,000 and Rs. 70,000 with which certain shares were purchased in <ORG> <NAME>, learned counsel for the income-tax department, conceded that in this respect the <ORG> made a mistake. Learned counsel for the assessee also urged that because Mr. <NAME> had migrated to Pakistan it was not possible to produce him, and the income-tax authorities should not have rejected his affidavit on the ground that he was not produced for cross-examination. Another argument which he has addressed is that the money left by the two ladies was found mostly in notes of Rs. 10 thousand denomination, from which fact the authorities below inferred that it not having been shown when and through whom the exchange of smaller notes or of smaller amounts was made for notes of Rs. 10 thousand denomination, the assessee must have been dealing with the ladies money and the money could not, therefore, be held to be the exclusive savings of the ladies, if they were the savings of the ladies at all. This according to counsel was surmise. On the basis of these submissions learned counsel argued that the conclusion reached by the <ORG> has been vitiated. He has relied on a decision of <ORG> in <CITATION> .

As regards the first argument all that is necessary to say is that the <ORG> was the final arbiter of facts. èInferences drawn from evidence on questions of fact cannot give rise to any question of law. The point was squarely before the <ORG> as to the meaning and effect of the statement of the assessee before <ORG> in respect of the source of the amount in question, and the manner in which it was taken to Calcutta. The argument of the assessee was also before the <ORG> that the money, the source of which assessee pointed out in the statement before the <ORG>, was not the money in question, but other sums of moneys for the purchase of the shares, and also the other argument that the money which the assessee admitted to have taken to Calcutta personally was not the money in question but the money for the purchase of the shares. Both arguments were considered by the <ORG>. They may have reached a wrong conclusion and may have drawn wrong inferences, but this cannot give rise to any question of law, which would entitled this court to sit in judgment over the inferences or the conclusions of the <ORG> drawn from the statement of the assessee vide <CITATION> the concession made by Sri <NAME> cannot also convert a question of fact into a question of law.

As regards the point that it was not possible for the assessee to produce Mr. <NAME> for cross-examination, it is sufficient to say that the difficulty of producing evidence cannot be a substitute for evidence. The fact remains that the averments in the affidavit could not be tested by cross-examination and such it is not possible to say that the authorities below acted illegally in disregarding the statement in that affidavit.

Lastly, as to the argument regarding the inferences to be drawn from the conversion of the savings into notes of Rs. 10,000 denomination, and the probabilities envisaged by the <ORG>, it is not possible to say that the <ORG> was indulging merely in conjectures or surmises or speculation. Thus, on the basis of the three principal arguments of the learned counsel for the assessee, it cannot be held that the conclusion reached by the <ORG> on a pure question of fact is vitiated in law.

There were numerous "solid facts" which have been pointed out above, viz., that there was no entry about the advance of Rs. 9,45,000 anywhere in the account books of the assessee. The <ORG> was right in thinking that the absence of entries was a very damaging circumstance if the loan was a genuine transaction. It also seems to be clear that in the absence of an account of the dealings by the ladies with the alleged savings, and having regard to their status and position and their other issues and their way of life and the possibility of gifts and expenses by them it is not consistent with probabilities that the entire amount could have been kept intact for nearly 20 years. It was also surprising that neither the ladies, nor the assessee, after he had received the amount, should have deposited it in banks, when admittedly he had accounts in a large number of banks. It was also quite impossible to believe that the entire amount should come èto the assessee and not to the other daughters and son, when those daughters and son were not in as affluent circumstances as the assessee himself. Lastly, there was the fact that the assessee asked for instalments for payment of a comparatively small amount of Rs. 41,000. If his case were to be believed, he had nearly 6 lakhs of rupees in his hands out of the savings themselves, not taking into account over 5 lakhs of rupees, which he alleged to be his own savings. No serious argument was addressed to us in regard to these facts except to say that having regard to the status of the assessee and his grandmother and mother it was not impossible that they might have been in possession of a very large sum of money, and that some money might have come to the assessee alone. These, however, are all facts and circumstances on which the <ORG> alone was competent to pronounce judgment.

As regards the case cited by learned counsel for the assessee and noticed by us above, there are two subsequent decisions of <ORG> in <CITATION> and <CITATION> , from which the proposition is derivable that provided that there are solid facts and circumstances to warrant a certain conclusion on a question of fact the finding of the <ORG> is not necessarily vitiated merely because the <ORG> may have taken into consideration certain facts and circumstances which may be in the nature of conjectures or surmises or may not be strictly relevant. Having regard to all the facts and circumstances of this case, it appears to us that the case falls within the rule laid down in the last of the cases mentioned above.

The result is that the second question referred to us must also be answered in the affirmative and against the assessee. The reference shall be returned to <ORG>, Allahabad Bench, with the above answers under the seal of the court and the signature of the Registrar. The department shall be entitled to its costs assessed at Rs. 200.


JUDGMENT <NAME>, J.

1. I think the lower appellate court was right in holding that the notice, Ext. A3 dated 22-10-19-38, issued by the plaintiff to defendants 1. 2 and 3 but not to the 4th defendant was not effective to determine the under-lease which, by reason of the surrender of the lease by Ext. A-2 dated 12-3-1945, must, for all intents and purposes, be regarded as a direct lease under the plaintiff. Both according to the plaint and the written statements, the 4th defendant also was an under-lessee, whether along with defendants 1, 2 and 3 as an heir with them of the original under-lessee as alleged in the plaint, or along with defendants 1 and 2 only as a donee with them under Ext. B-2 dated 4-7-1945 from a legatee of the original under-lessee, is a matter of no consequence.

In either case, the 4th defendant and her co-tenants could have taken only as tenants in common and not as joint tenants--defendants 1 and 2 are sons, the 3rd defendant, the daughter and the fourth defendant, the widow of the original under-lessee, and, while on the one hand there is no averment that they constituted a joint family and took the property as such, on the other, there is nothing in the gift deed Ext. B-2 to show that a joint tenancy was intended to be created thereby -- and in the absence of notice to quit to the 4th defendant there was no effective determination of the lease. The observation in <CITATION> . AIR 1963 SC 468 (in paragraph 7 of the report) that notice to one alone of several Joint tenants is sufficient applies only to a case where the several tenants hold as joint tenants and not where, as in this case, they hold as tenants in common.

That is cleat from the emphasis placed by their Lordships on the circumstance that the tenants took the premises as joint tenants, the deed of assignment by which they acquired the lease expressly providing that they were taking as joint tenants. Where joint owners are joint tenants there is unity of title, unity of interest and the right of survivorship in addition to unity of possession so that it might be said that any one of the joint tenants represents the entire estate -- indeed in the <ORG> case already referred to it would appear that one of the two joint tenants had died and the lease had vested solely in the other by suivorship before notice to quit was served on the other so that there was no question of the legal representatives of the deceased joint tenant having any interest whatsoever in the lease so as to require that notice should go to them.

Where, however, the joint owners are only tenants in common there is only unity of possession, not of title or interest, and to determine a tenancy so held in accordance with section 106 of the Transfer of Property Act notice must be addressed to all the tenants though proof of service on one will be prima facie proof of service on all. See <NAME> v <NAME>, AIR 1918 P. C. 102 -- and <CITATION> , AIR 1925 Cal 752. In the words of the section, notice must go to every party intended to be bound by it, and if it is not issued to any of the joint owners of the lease there is no determination of the lease so far as he is concerned. A lease cannot be determined piecemeal and hence it follows that there is no determination even so far as the others are concerned.

2. I dismiss this appeal with costs.


<NAME>, <NAME>

1. This is an appeal under Clause 15 of the Letters Patent from, a judgment of Mr. Justice <NAME>, who has confirmed, the decree of the lower <ORG>, which in its, turn confirmed that of the Court of: first instance dismissing the suit with costs.

2. The facts are briefly these. On the 22nd of July, 1899, defendants Nos. 1 to 4 borrowed from the plain tiff a sum of Rs. 800, and, by way of security for this, they gave a personal covenant by a, registered bond, and also purported, though ineffectually, to create a charge, by deposit of a pattah relating to immoveable property. Interest was paid on this bond up to the 13th of April 1903; and, on the 18th August, 1903, defendants Nos. 1 to 4 executed a registered instrument of transfer of all their property, moveable and immoveable, to defendant No. 5 for a sum of Rs. 2,000, becoming thereby, as the plaint' describes it, "rightless."This Rs. 2,000 was not all paid, in cash, but there was a provision and declaration in the kabala that out of this consideration money of Rs. 2,000, amongst other things, the sum of Rs. 330 due to the plaintiff should, be paid by defendant No. 5. On the very same day there was an arrangement between the plaintiff and defendant No. 5 by which the" liability of defendant No. 5 under the transfer was acknowledged and accepted, and either, then or in connection there with this pattah was handed over to defendant No. 5. The plaintiff, having sought in vain payment of this money, which in common honesty is due from defendant No. 5, has noW bee compelled to bring this suit, whereby he prays against defendants Nos. 1 to 1 and defendant No. 5, but principally against defendant No. 5, a decree for payment of Rs. 613-14 annas, which represents this principal sum of Rs. 300 and the interest that accrued on it. As 1 have already indicated, he has failed in all Courts, and the only question now is whether he is to fail before us.

3. We are clearly of opinion that there was no novation within the meaning of Section 62 of the Contract Act--no substitution of a new contract for an old contract--and the question to be decided la whether or not the plaintiff is entitled to sue on that registered instrument of the 18th of August, 1903, whereby defendant No. 5 undertook to pay the plaintiff what was due to him from defendants Nos. 1 to 4. Looking at it broadly, there can be no doubt that an obligation was undertaken by defendant No. 5 and that it was for, and intended to be for, the benefit of the plaintiff. There are expressions in the judgments of the <ORG> which are suggestive of an oral contract between the plaintiff and defendant No. 5, but that, I think, was a misconception of the position. Indeed, the findings of the lower <ORG> do not justify the view that there was a contract, but there was, as I have already indicated, an acknowledgment on the part of defendant No. 5 communicated to the plaintiff, and accepted by him of an obligation on the part of defendant No. 5 towards the plaintiff, for the debt which was to be paid by defendant No. 5 under the provisions of the registered instrument of the 18th of August, 1903. It is material in this connection to observe, first, that defendants Nos. 1 to 4 parted with the whole of their property, moveable and immoveable, to defendant No. 5; secondly, that on the same date there was this arrangement between the plaintiff and defendant No. 5 which, clearly points to a communication to the plaintiff of the transaction; and, finally, that as a result of this the pattah which was regarded by the parties at that time, erroneously perhaps, as constituting a charge on the property, was handed back by the plaintiff to defendant No. 5. It appears to me that one may fairly say that this sum of Rs. 330 mentioned in the registered instrument of August was allocated and held by defendant No. 5 for the benefit of the plaintiff, so that in a sense the money was reified and earmarked for this purpose. We' have here then a position in which it would be, in accordance with the principles of justice, equity and good conscience, the abiding rule in these <ORG>, that the plaintiff should be entitled to enforce this claim against defendant No. 5. If we were governed by <NAME> v. <NAME> (1861) 1 B. &S. 393; 181 E.R. 762; 124 R.R. 610. there might possibly be a difficulty in our way, but it has to be borne in mind that <NAME> v. <NAME> (1861) 1 B. &S. 393; 181 E.R. 762; 124 R.R. 610. was a decision on a form of action peculiar to the Common Law <ORG> in England and that the case was influenced by the rule that no action in assumpsit could be maintained upon a promise unless consideration moved from the party to whom it was made. Here we have a definition of consideration which is wider than the requirement of the English law: [ Section 2(d) of the Contract Act]. And it has been laid down by Sir <NAME> in a <ORG> decision of this Court in relation to <ORG> in the mofussil [<NAME> Case (1867) B.L.R. Sup. Vol. 675. 7 W.B. 377] that in those <ORG> the rights of parties are to be determined according to the general principles of equity and justice without any distinction, as in England, between that partial justice which is administered in the <ORG> of Law and the more full and complete justice for which it is frequently necessary to seek the assistance of <ORG>. The rules and the fictions which have been in many cases adopted by the Common Law <ORG>" in England for the purpose of obtaining jurisdiction in cases which would otherwise have been cognizable only by the <ORG> of Equity, are not necessary to be followed in this country where the aim is to do complete justice in one suit. More than that we now have ample authority for saying that the administration of justice in these <ORG> is not to be in any way hampered by the doctrine laid down in <NAME> v. <NAME> (1910) I.L.R. 32 All. 410 L.R. 37 I.A. 152. That take to be" the result of the decision of <ORG> in the recent case <CITATION> (1910) I.L.R. 32 All. 410 L.R. 37 I.A. 152. In the report of that case, in 14 Calcutta Weekly Notes (1910) 14 C.W.N. 868, there is an interlocutory remark of Lord <NAME> which indicates the limits imposed on a Court of Common Law. He there says, "Supposing she (that is the plaintiff were an English woman, it is true she could not bring an action in <ORG>, but could she not bring a suit in Equity?" The answer of the learned Counsel was "yes." It is possible that this distinction can be explained by the history of the action of assumpsit which was a development of the writ of trespass. In the old writ in indebitatus assumpsit it was alleged that the defendant "not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtilly to deceive and defraud," had not paid and so forth. The breach of contract was charged as deceit and it was only the person deceived who could sue. The bar then in the way of an action by the person not a direct party to the contract, was probably one of procedure and not of substance. In India we are free from these trammels and are guided in matters of procedure by the rule of justice, equity and good conscience. The case with which we are now dealing finds a close parallel in <NAME> & <NAME> v. <NAME> (1817) 3 Mer. 582; 36 E.R. 224 and also in the more recent cases of <NAME> v. <ORG> (1871) L.R. 6 Ch. App. 671, 677 and <NAME> v. <NAME> (1885) 30 Ch. D. 55. There is a valuable exposition of the law by Lord <NAME> in the first of these last two cases which was adopted by Lord Justice <NAME> in the second. The Lord Chancellor said, "The case comes within the authority that where a sum is payable by A.B. for the benefit of C.D., C.D. can claim under the con tract as if it had been made with himself." That appears to me to be a principle which is of distinct use in the consideration of this case. It appears to me that we have therefore, in the circumstances of this case, a condition of affairs in which it would be right to hold that the plaintiff is entitled, to enforce his claim in this suit. The claim is one under the registered instrument of the 18th of August 1903: and it is unnecessary to consider whether the plaintiff is entitled to rely on the deposition as an acknowledgment for the purpose of taking this case out of the operation of the statute of Limitation, for admittedly if this is a suit on the registered instrument of transfer, it is within time.

4. We, therefore, reverse the judgment of Mr. Justice <NAME>, as also the decrees of the lower <ORG> and of the <ORG> so far as relates to defendant "No. 5 and pass a decree in the plaintiff's favour for the sum of Rs. 613-14 annas with costs throughout. This decree will be against defendant No. 5 alone. As against defendants Nos. 1 to 4, the decree of dismissal will stand but without costs in this Court. Having regard to the disingenuousness of the defence made by defendant No. 5, interest should ran at six percent, per annum on the principal sum adjudged from the date of the suit to the date of the decree, and thenceforth on the decretal amount until payment.

<NAME>, J.

5. concurred.