CASE NO.: Appeal (civil) 6113 of 2000 PETITIONER: <ORG> RESPONDENT: M/s <NAME> DATE OF JUDGMENT: 20/02/2007 BENCH: <NAME> & <NAME> JUDGMENT:

J U D G M E N T S.B. SINHA , J :

Appellant insurer is before us questioning the correctness or otherwise of a judgment and order dated 10.09.1999 passed by <ORG> of <ORG> in CIMA 21 of 1998 allowing the appeal preferred by the respondent herein from a judgment and order dated 16.12.1997 passed by <ORG>.

Respondent herein carries on business in jewellery It obtained a policy known as 'Jeweller Block Policy'. A theft of 140 gms of jewellery worth of Rs.63,000/- occurred in his business premises. A First Information Report was lodged therefor. Respondent also lodged a claim with the appellant herein. The same having not been settled for a long time, an application was filed before <ORG> constituted under the J & K Consumers Protection Act, 1987.

The question raised before the <ORG> was as to whether the loss in question was covered by the insurance policy. Appellant contended that the claim of the respondent is covered by an exclusion clause contained in the policy, which reads as under :

"8. Loss or damage occasioned by theft or dishonesty or any attempt there at committed by or where such loss or damage has been expedited or in any way sustained or brought about by :

(a) any of the insured's family members;

(b) any servant or traveler or messenger in the exclusive employment of the insured;

(c) any customer or broker or their customer or angadias or cutters or goldsmiths in respect of the property hereby insured entrusted to them by the insured his or their servants or agents."

The <ORG> by reason of its order dated 16.12.1997, inter alia, found the said claim to be not sustainable on the ground that the loss was not covered by the said policy, stating :

"It appears to us that while preparing the insurance agreement the insurer was aware of the fact that this could be the easiest way for any Jeweller to raise claims against the insurance companies and that is why this clause has been deliberately introduced and theft by customer if any has been put in exclusive clause of the policy"

<ORG>, as indicated hereinbefore, by reason of its judgment and order dated 10.09.1999, did not agree therewith. It was held :

"What is meant by the term 'entrustment' does handing over of jewellery to a customer amounts to entrustment. The dictionary meaning of the word 'entrust' would be to give to another for care, protection or to commit something trustfully or plays trust upon a person'. If a customer enters the premises of a shopkeeper and examines some movable property and takes away the same, then there hardly arises any occasion for entrustment to such a customer. In the present case a customer entered the business premises and removed 140 gms. of Jewellery. There was no entrustment on the part of the owner to the customer. The act of removal of the goods by the customer is nothing but a plain theft. This is a dishonest taking and removing the property by the customer with the intent of permanently depriving the owner."

A short question which, thus, arises for our consideration is as to whether clause 8 of the policy is applicable to the facts and circumstances of the present case.

It is not in dispute that an insurance cover against theft was granted by the appellant. The insurance policy, thus, covered the risk of theft also. An insurer determines the extent of its risk. It floats the policy knowing fully well the risk it seeks to cover. Having regard to the determination of the risk only he fixes the quantum of premium. The insured while entering into a contract of insurance must precisely know the extent of his cover so that he may take out additional insurance if it is so required.

However, there may be an express clause excluding the applicability of insurance cover. Wherever such exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview thereof. In a case of ambiguity, it is trite, the contract of insurance shall be construed in favour of the insured. [ <CITATION> ], <CITATION> . [2006 (14) SCALE 300] and <CITATION> [].

Clause 8 of the contract of insurance would be attracted only where the offences specified therein are committed by any of the persons mentioned therein. For defeating the claim of the respondent, it was, thus, obligatory on the part of the appellant to establish that the conditions prescribed therein were satisfied.

Keeping in view the aforementioned legal aspect of the matter, we may advert to the meaning of the word 'entrust'. Its ordinary meaning, would mean "to charge or invest with a trust; to commit to another with a certain confidence regarding his care" [See Advanced Law Lexicon by <NAME>  3rd Edn. Book 2  page1613].

It requires no elaboration that offences of 'breach of trust' and 'theft' contain different ingredients. Whereas theft has been defined in Section 378 of the Indian Penal Code; breach of trust has been defined in Section 405 thereof, which read as under :

"378. Theft.- Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."

Illustration (d) appended thereto reads as under :

"(d) A, being <NAME>'s servant, and entrusted by <NAME> with the care of <NAME>'s plate, dishonestly runs away with the plate, without <NAME>'s consent. A has committed theft."

"405. Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust""

The word 'entrust' would imply giving responsibility to a person upon whom the owner has confidence. It envisages establishment of a relationship. When a customer enters into a jewellery shop, as of necessity, the owner or his agent must allow him to inspect the merchandise, the customer intends to purchase. For the said purpose possession in the legal sense is not handed over. The owner or his agent does not loose complete control thereover.

For the purpose of arriving at a conclusion as to whether the exclusion clause is attracted or not, loss or damage must be occasioned, inter alia, by a customer in respect of the property entrusted to him. The word 'customer' contained in clause 8 (c) of the Insurance Policy must be read ejusdem generis. A customer contemplated thereunder must have to be one who would be a man of trust. If a customer is not a man of trust or the property had not been entrusted to him, the exclusion clause would not apply. The customer who committed theft of jewellery was an unknown person. It was so categorically stated in the First Information Report. There was, thus, no occasion for the respondent to entrust the jewellery to him.

Mr. <NAME>, the learned counsel appearing for the appellant has relied upon the meaning of the word 'entrust' as contained in Black's Law Dictionary, 8th Edn. and Webster's Universal Dictionary.

In Black's Law Dictionary, the word 'entrust' has been defined as under :

"To give (a person) the responsibility for something after establishing a confidential relationship."

In Webster's Universal Dictionary meaning of the word 'entrust' reads as under :

"To confer as a responsibility, duty etc. to place, something in another's care."

Apart from the fact that the said meaning of the term 'entrustment' goes against the submission Mr. <NAME>, we may notice that in Black's Law Dictionary the word 'entrusting' in commercial law has been described as "The transfer of possession of goods to a merchant who deals in goods of that type and who may in turn transfer the goods and all rights to them to a purchaser in the ordinary course of business." Transfer of possession of goods, therefore, is a sine qua non for entrustment. The person must be handed over the possession of the property. Illustration (d) appended to Section 378  envisages a situation of this nature. It by no stretch of imagination would have contemplated a situation where an unknown customer would have committed theft.

The word 'entrustment', moreover, must be read in the context in which it has been used.

In Colinvaux's Law of Insurance, 7th Edn., by <NAME> at page 50, it is stated :

"Words in context The above generality is not applicable when it is clear from the context that the words are not used in a colloquial popular sense. Thus the word "flood" in the phrase "strom, tempest or floor" does not cover a case where a house-holder's bathroom is affected by upward seepage of water to a depth of three inches, as the context of the word requires an event violent, sudden or abnormal. Similarly, heavy rain is not in itself likely to constitute a storm. It has also been held that the phrase "sum actually paid" in a reinsurance agreement referred to a sum which the reinsured is merely liable to pay, as the agreement read as a whole was against liability rather than actual payment."

In The State of Gujarat v. <NAME> [(1968) 2 SCR 408], this Court held :

"The expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an entrustment"

<CITATION> [AIR 1974 SC 794], this Court held :

"12. To constitute an offence under Section 409 , it is not required that misappropriation must necessarily take place after the creation of a legally correct entrustment or dominion over property. The entrustment may arise in any manner whatsoever. That manner may or may not involve fraudulent conduct of the accused. Section 409 , covers dishonest misappropriation in both types of cases; that is to say, those where the receipt of property is itself fraudulent or improper and those where the public servant misappropriates what may have been quite properly and innocently received. All that is required is what may be described as entrustment or acquisition of dominion over property in the capacity of a public, servant who, as a result of it, becomes charged with a duty to act in a particular way, or, atleast honestly."

Yet again in <NAME> etc. v. <ORG> etc. [(2003) 3 SCC 641], it was held : "361. To constitute an offence of criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to one's own use, or use in violation of a legal direction or of any legal contract; and the misappropriation or conversion or disposal must be with a dishonest intention. When a person allows others to misappropriate the money entrusted to him, that amounts to a criminal breach of trust as defined by Section 405 . The section is relatable to property in a positive part and a negative part. The positive part deals with criminal misappropriation or conversion of the property and the negative part consists of dishonestly using or disposing of the property in violation of any direction and of law or any contract touching the discharge of trust.

362. <CITATION> it was held that if the Managing Director of the Bank entrusted with securities owned by the pledgor disposes of their securities against the stipulated terms of the contract entered into by the parties with an intent to cause wrongful loss to the pledgor and wrongful gain to the Bank, there can be no question but that the Managing Director has necessarily mens rea required by Section

363. The term entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general signification all it imports is the handing over possession for some purpose which may not imply the conferring of any proprietary right at all.

364. When a person misappropriates to his own use the property that does not belong to him, the misappropriation is dishonest even though there was an intention to restore it at some future point of time."

We, therefore, are clearly of the opinion that the view taken by <ORG> was correct. <ORG> judgment is upheld. The appeal is dismissed. We, in the facts and circumstances of this case, also direct the appellant to pay and bear the cost of the respondent throughout. Counsel's fee in this appeal is assessed at Rs.50,000/-.


PETITIONER: <NAME> Vs. RESPONDENT: <NAME> DATE OF JUDGMENT: 27/04/1962 BENCH: <NAME>, S.K. BENCH: <NAME>, S.K. <NAME>, M. <NAME>, J.C. CITATION: 1963 AIR 449 ACT: Trade Mark--Likely to Receive or cause confusion- Approach to determine-Acquiescence-Effect of- Trade Marks Act , 1940 (V. of 1940), ss.8, 10. HEADNOTE: The respondent applied for registration of the trade name "<ORG>" in relation to the medicinal preparation manufactured by him at Kanpur since 1923. It was admitted that the respondent's product was mainly sold in the State of Uttar Pradesh. The appellant opposed the registration on the ground that it had an exclusive proprietary interest in the trade mark "Amritdhara" in relation to a similar medicinal preparation which had acquired considerable repu- tation since 1903 and that the respondent's trade name "<ORG>" was likely to deceive and cause confusion and therefore the registration was prohibited by s. 8 of the Trade Marks Act. The Registrar of Trade Marks held that there was sufficient similarity between "Amritdhar'a' and "Lakshamandhara" so as to cause confusion and it was likely to deceive the public, but the acquiescence of the appellant in the use of the trade name "<ORG>" by the respondent in the relation to his product for a long period to the knowledge of the appellant was special circumstance under s. 10(2) entitling the respondent to have his name registered along with the appellant's trade name. He, however, confined the registration to sales with the State of Uttar Pradesh. Both the appellant and the respondent appealed to <ORG> which allowed the respondent's appeal holding that the words "Amrit" and "dhara" were common words in the Hindi language as also the words "Lakshman" and "dhara" and that there was no possibility of any Indian confusing the two ideas. <ORG> further held there had been honest concurrent user by the respondent.,, On the question of acquiescence it held against the respondent. On appeal by special leave. <NAME>, that the question whether a trade name is likely to deceive or cause confusion by its resemblance to another <ORG> ready registered is a matter of first impression and one for decision in each case and has to be decided by taking an over. all view of all the circumstances. The standard of comparison to be adopted in judging the resemblance is from the point of 485 view of a man of average intelligence and imperfect recollection. <ORG> Application, (1906) 23 R. P. C. 774, referred to. <CITATION> .,  1 S. C. R. 968, referred to. <NAME>, further, that the two names as a whole should be considered for comparison and not merely the component words thereof separately. <ORG>'8 application, (1935) 52 R. P. C. 137, referred to. <NAME>, also, that in the present case the similarity in the two name in respect of the same description of goods was likely to deceive or cause confusion; but the facts found by the Registrar established the plea of acquiescence so a to bring the case within sub-s.(2) of s. 10 , and the Registrar was right in imposing the limitation which he imposed.. JUDGMENT:

CiviL APPELLATE JURISDICTION: Civil Appeal No. 22 of 1960. Appeal by special leave from the judgment and order dated March 19, 1958, of <ORG> in F. A. No. 62 of 1954.

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

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

1962. April 27. The Judgment of the Court was delivered by <NAME>, J.-This is an appeal by special leave granted by this Court on December 8, 1958. On July 19, 1950, <NAME>, respondent before us, made an application under a. 14 of the Trade Marks Act , 1940 (Act V of 1940) (hereinafter referred to as the Act) for registration of the trade name of a biochemical medicinal preparation, commonly known as 'Laksbmandhara', in Class 5 of the Fourth Schedule to the Trade Marks Rules, 1942. The application was made by the respondent as the sole proprietor of <ORG> situate, at Dhankutti in Kanpur. The averments made in the application were that the said medicinal preparation had been in use by the name of "Lakshmandhara' since 1923 and was sold throughout the length and breadth of India as also in some foreign markets; the mark or name 'Lakshmandhara' was said to be distinctive to the article, and it was stated that the approximate annual turnover was Rs. 40,000/-. Notice of the application was given by the Registrar of Trade Marks, Bombay, and <ORG>, a limited liability company and appellant before us, filed an application in opposition. In this application the appellant stated that the word 'Amritdhara' was already registered as a trade name for the medicinal preparation of the appellant, and that medicinal preparation was introduced in the market so far back as in the year 1901; on account of its great popularity many people advertised similar medicines with slight variations of name to pass off their goods as 'Amritdhara'. It was averred that the composite word Lakahmandhara' was used to denote the same medicine as Amrit, dhara'; and the single word dhara , it was stated, was first used in conjunction with 'Amritdhara' to denote the medicine of the appellant and the medicine 'Lakahmandhara' being of the same nature and to quality could be easily passed off as 'Amritdhara' to the ultimate purchaser. The appellant contended that as 'Amritdhara' was already registered and 'Lakshmandhara' being a similar name was likely to receive the public, registration should be refused.

On behalf of the respondent a counter-affidavit was made in which it was stated that "Amritdhara' and Lakshinandhara' were two distinctly different names and no one could pass off one for the other.

It was further stated that during the long period of introduction and sale of Lakshmandhara' since 1923, no objection was ever raised from any quarter, from the appellant or anybody else, to the use of the name 'Lakshmandhara'. It was denied by the respondent that the composite word 'Lakshmandhara ' was likely to deceive the public or could by any stretch of imagination be taken or mistaken for 'Amritdhara'. The respondent further alleged that the single word 'dhara' had no particular significance in relation to the medicine, nor did that word mean or convey any special or exclusive meaning or effect in relation to the medicine. It was also stated that apart from the difference in name, the phial, label and packing of 'Lakshmandhara' had exclusive designs of their own and were not likely to be confused with 'any other medicine of similar nature, least of all with 'Amritdhara' whose packing was distinctly different in colour, design and layout. The Registrar of Trade Marks dealt with the application and the opposition thereto by his order dated September 10, 1953. It appears that apart from the affidavits filed, no other evidence was led on behalf of either party; but certified copies of certain decisions in earlier cases (to which the respondent was not, however, a party) given in favour of the appellant in support of its claim of infringement of its registered trade mark 'Amritdhara' were filed. A list of such cases has been printed as annexure 'A'. These cases showed that a number of medicines with the word 'Amrit' or 'dhara' as part of their names had been introduced in the market since 1947; and the appellant 'successfully took action against them for infringement of its trade mark. Even in <ORG> the appellant successfully opposed the introduction of names which contained the word 'dhara' as part of the,trade name. A question has been raised before us whether the Registrar of Trade Marks was justified in taking into consideration the decisions in those cases. To that question we shall advert later. The Registrar found that in 1901 <NAME> commenced to do business at Lahore in a particular ayurvedic medicine which was meant for alleviation for of headaches, diarrohea, constipation and other complaints. This medicine was first sold under the mark 'Amrit Ki Dhara', but in 1903 the name was changed to "Amritdhara', <NAME> formed a limited liability company in 1942 and the name 'Amritdhara' became a well-known popular name for the medicine. The sale of the medicine went up to about Re. 4 lacs a year. The business was done in Lahore but when partition came in 1947, the appellant established its business in Dehradun. The Registrar expressed the view that if the matter had rested on s. 8 and s. 10(1) of the Act, he world have no hesitation in allowing the opposition and dismissing the application. This could only mean that the Registrar was of the view that the name 'Lakshmandhara' so nearly resembled the trade mark 'Amritdhara' that it was likely to deceive the public or cause confusion to the trade. We are saying this because the High Court through that the Registrar did not express his own opinion whether the name 'Lakshmandhara' was likely to cause deception to the public or confusion to the ' trade. The respondent, however, relied also on two other circumstances, viz. (a) honest concurrent user of the name 'Lakshmandhara' since 1923, and (b) acquiescence on the part of the appellant in the user of the name Lakshmandhara'. The respondent contended that these two circumstances brought the case With in the meaning of special circumstances' in A. 10(2) of the Act, which permitted the registration by more than one Proprietor of trade marks which are identical or nearly resemble each other, subject to such condition and limitations, if any, as the Registrar might think fit to impose. On the point of honest concurrent user the Registrar found in favour of the appellant. As to acquiescence he, however, found in favour of the respondent and expressed his finding in these words.

"In the case before me it is not disputed that the applicant commenced his user in a small way in 1923 and it may even be said that up to about 1942 the applicant's user was insignificant. In paragraph 12 of the appli- cant's affidavit dated the 30th March, 1953 he has given details of advertisements in directories, pamphlets, newspapers etc. in which both the applicant's and the opponents' marks were advertised. The facts given in the affidavit go to show that from 1938 right up to the date of the applications by the applicant he has been advertising through mediums which were common to both the applicant and the opponents. Here we have a case in which Pandit <NAME> states that he had no notice of the applicant's mark. He has, however, admitted that he had about 12 persons in his factory which constituted the clerical staff and amongst them were persons who were in charge of advertising the opponents mark. It seems to me that the opponents and their agents were well aware of the advertisements by the applicant and did not raise any protest till the applicant's mark was advertised in <ORG>. In other words the opponents stood by and, allowed the applicant to develop his business and, as I have shown, from small beginning he began to sell these medicines to the extent of about Rs. 43,000/-in 1949. In my opinion, this is acquiescence which would come under, the phrase 'or other special circumstances' in section 10(2) of the Trade Marks Act and, that appears to me to be fatal to the case of the opponents."

Before the Registrar it was admitted on behalf of the respondent that his goods were sold mainly in, Uttar Pradesh and there were, at the most, only sporadic sales in other States. Taking that circumstance into consideration the Registrar passed an order allowing registration of 'Lakshmandhara' for sale in the State of Uttar Pradesh only. From the decision of the Registrar two appeals were referred to <ORG> at Allahabad under s. 76 of the Act: one appeal Was referred by the respondent and' the other by the appellant. The respondent complained of the registration being limited to Uttar Pradesh only and the appellant pleaded that registration should: have been refused altogether, The learned Judges of <ORG> held that the words 'Amrit' and 'dhara' were common, words in the Hindi language and the combined word 'Amritdhara' meant current of nectar' or the flow of nectar'; the two words 'Lakshman' and 'dhara'were also well-known common words and combined, together they meant "current or flow of Lakshman'. The learned Judges, then said:

"There- is no possibility of any Indian confusing the two ideas. Even phonetical differences are wide enough not to confuse anybody. The claim of the Amritdhara pharmacy that both the words Amrit and dhara' have become so associated- with their goods that the use of each part separately or in any combination is' likely to mislead is an, untenable claim. The whole phrase 'Amritdhara' had been registered and the Monopoly' has to be confined only to the use of the whole word. The words of common language like "Amrit' and 'dhara' cannot be made the monopoly of any individual. We, therefore see no reason to disallow registration of the trade mark "Lakshmandhara'. "

As to honest concurrent user from 1923 to 1942 the learned Judges again held in favour of the respondent. But on the point acquiescence they held against the respondent and found in favour of the appellant. They said that from the fact that both the medicines were being advertised in-the same journals or periodicals it did not, following that the attention of the appellant was, drawn to@ the use of the word 'Lakshmandhara' by the respondent. In view, however, of their finding that the two names were not likely to cause any confusion and that the' respondent had been an honest concurrent user from 1923 onwards, they held that there was no justification for refusing registration to the trade mark 'Lakshmandhara' for the whole of India. They accordingly allowed the appeal of the respondent and dismissed that of the appellant by their judgment dated March 19, 1958. The appellant then obtained special leave from this Court and the present appeal has been filed in pursuance of the leave granted by this court.

Two points have been agitated before us. The first point is whether the name 'Lakshmandhara' was likely to deceive the public or cause confusion to trade within the meaning of s. 8 and s. 10 (1) of the Act. The second point is whether there was Such, acquiescence on) behalf of the appellant in the use of the name 'Lakshmandhara' in the. State of Uttar Pradesh as to bring it within the, expression 'special circumstances' mentioned in sub-s. 10 of the Act. We shall deal with these two points in the order in which we have stated them, We may first read the relevant sections of the Act, viz.s. 8 and 10.

8. Prohibition of registration of certain matter.- No trade mark nor part of a trade mark shall be registered which consists of, or contains, any scandalous design, or any matter the use of which would.-

(a) by reason of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in a Court of justice ; or

(b) be likely to hurt the religious susceptibilities of any class of the citizen of India or

(c) be contrary to any law for the time being in force, or to morality.

10. Prohibition of registration of identical or similar trade mark.-(1) Save as provided in sub-section (2), no trade mark shall be registered in respect of any goods or description of goods which is identical with a trade mark belonging to a different proprietor and already on the register in respect of the same goods or description of goods or which so nearly resembles such trade mark as to be likely to deceive or cause confusion.

(2) In case of honest concurrent use or of other special circumstances which, in the opinion of the Registrar, make it proper so to do he may permit the registration by more than one proprietor of trade- marks which are identical or nearly resemble each other in respect of the same goods or description of goods, subject to such conditions and limitations if any, as the Registrar may think fit to impose.

It will be noticed that the words used in the sections and relevant for our purpose are "likely to deceive or cause confusion." The Act does not lay down any criteria for determining what is likely to deceive or cause confusion. Therefore, every case must depend on its own particular facts, and the value of authorities lies not so much in the actual decision as in the tests applied for determining what is likely to deceive or cause confusion. On an application to register, the Registrar or an opponent may object that the trade mark is not registerable by reason of cl. (a) of s. 8, or sub-s. (1) of s. 10 , as in this case. In such a case the onus is on the applicant to satisfy the Registrar that the trade mark applied for is not likely to deceive or cause Confusion. In cases in which the tribunal considers that there is doubt as to whether deception is likely, the application should be refused. A trade mark is likely to deceive or cause confusion by the resemblance to another already on the Register if it is likely to do so in the course of its legitimate use in a market where the two marks are assumed to be in use by traders in that market. In considering the matter, all the circumstances of the case must be considered. As was observed by <NAME>, J. in <ORG> Application (1), 'which was also a case of the comparison of two words-

"You must take the two words. You must Judge them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact you must consider all the surrounding circumstances and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks (1) (1906) 23 R. P. C. 774,777.

For deceptive resemblance two important questions are: (1) who are the persons whom the resemblance must be likely to deceive or confuse, and (2) what rules of comparison are to be. adopted in judging whether such resemblance exists. As to confusion, it is perhaps an appropriate description of the state of mind of a customer who, on seeing a mark thinks,that it differs from the mark on goods which' he has previously bought, but is doubtful whether that impression is Dot due to imperfect recollection. (See <NAME> on Trade Marks, 8th edition, p. 400.) Let us apply these tests to the facts of the case under our consideration. It is not disputed before use that the two names 'Amritdhara' and 'Lakahmandhara' are in use in respect of the same description of goods, namely, a medicinal preparation for the alleviation of various ailments, Such medicinal preparation will be purchased mostly by people who instead of going to a doctor wish to purchase a medicine for the quick alleviation of ;their suffering, both villagers and townsfolk, literate as well as illiterate. As we said in <CITATION> (1); the question has to be approached from the point of view of a man of average intelligence and imperfect recollection. To such a man the overall structural and phonetic similarity of the ,two names 'Amritdhara' and '<NAME>dbara' is, in our, opinion likely. t o deceive or ; cause confusion. We must consider, the overall similarity of the two composite words 'Amritdhara' and '<NAME>- dhara'. We do not think that the learned Judges of <ORG> were right in Paying that no Indian would mistake one 'for the other. An unwary purchaser of average intelligence and imperfect recollection would not, as <ORG> supposed, split the name into its component parts and consider the etymological meaning thereof or even consider the meanings of the composite words as 'current of nectar' or current of <NAME>'. He. would go more by the overall structural and phonetic similarity and the nature of the medicine he has previously purchased, or has been told about, or about which has other vise learnt and which he wants to purchase. Where the trade relates to goods largely sold to illiterate or badly educated persons, it is no answer to say that a person educated in the Hindi language would go by the entymological or ideological meaning and, see the difference between 'current of nectar' and current of <NAME>'. 'Current of <NAME> in a literal sense has no meaning to give it meaning one must further make the inference that the 'current or stream' is as pure and strong as <NAME> of the Ramayana. An ordinary Indian villager or townsmen will perhaps know <NAME>, the story of the Ramayana being familiar to him but we doubt if he would etymologine to the extent of seeing the so called ideological difference between 'Amritdhara'and '<NAME>dhara'.. He would go more by the similarity of the two names in the context of the widely known medicinal preparation which he wants for his ailments. We agree that the use of the word 'dhara' which literally means 'Current or stream' is not by itself decisive of the matter. What we have to consider here is the overall similarity of the composite words, having regard to the circumstance that the goods bearing the two names are medicina l preparations of the same description. We are aware that the admission of a mar is not to be refused, because unusually stupid people, "fools or idiots", may be deceived. A critical comparison of the two names may disclose some points of difference. but an unwary purchaser of average intelligence and imperfect recollection would be deceived by the overall similarity of the two names having regard to the nature of the medicine he is looking for with a somewhat vague recollection that he had purchased a similar medicine on a previous occasion with. a similar name. The trade mark is the whole thing the whole word has to be considered a the case of the application to register 'Erectiks' (opposed by the proprietors of the trade mark 'Erector') Farwell, J. said in <ORG> Application (1) :

"I do not think it is right to take a part of the word and compare it with a part of the- other Word; one word must 'be considered as a whole and compared with the other word as a whole................ I think it is a danger- ous method to adopt to divide the word up, and seek to distinguish a portion of it from a portion of the other word".

Nor do we think that <ORG> was. right in thinking that the appellant was claiming a. monopoly in the common Hindi word 'dhara'. We do not think that is quite the position here. What the appellant is claiming is its right under s. 21 of the Act, the exclusive right to the use of its trade mark, and to oppose the registration of a trade mark which go nearly resembles its trade mark that it is likely to deceive or cause confusion.

A large number of decisions relating to the use of composite words, such as Night Cap and RedCap, Limit and Summit, Rito and Lito, Notrate and Filtrate, etc. were cited in <ORG>. Some more have been cited before us. Such deci- sions, examples of deceptive resemblance arising out of contrasted words, have been summarised at page 429 to 434 in Karly on Trade Marks, 8th Edition. No useful purpose will be served by referring to them all. As we have said earlier, each case must be decided or its own fact. What degree of' (1) (1935) 52 R.P.C. 137.

resemblance is necessary to deceive or cause confusion must the nature of things be incapable of definition a priori. As to the decisions in annexure 'A', it has been argued before us that they were not at all admissible by reason of ss. 40 to 43 of the Indian Evidence Act , 1872. On behalf of the appellant it has been contended that they were admissible under s. 13 of the Evidence. Act as showing the particular instances in which the appellant claimed its right under s. 21 of the Act. We consider it unnecessary to decide this question for the purposes of this case because those decisions even if they are admissible under s. 13 do not throw any light on the question whether 'Amritdhara' and 'Lakshmandhara' so nearly resemble each other as to cause deception or confusion. That is a, question which we must determine as a case of first impression and irrespective of the earlier decisions.

On a consideration of all the circumstances, we have come to the conclusion that the overall similarity between the two names in respect of the same description of goods was likely to cause deception or confusion within the meaning of s. 10(1) of the Act and Registrar was right in the view he expressed. <ORG> was in error taking a contrary view.

We know go the second question, that of acquiescence. Here again we are in agreement with the Registrar of Trade Marks, who in a paragraph of his order quoted earlier in this judg- ment has summarised the facts and circumstances on which the plea of acquiescence was based. The matter has been put thus in <ORG>, Vol. 32 (second edition) pages 659-657, paragraph 966.

" If a trader allows another person who is acting in good faith to build up a reputa-

tion under a trade name or mark to which he has rights, he may lose his right to complain, and may even be debarred from himself using such name or work. But even long user by another, if fraudulent, does not affect the plaintiff's right to s. final injunction on the other hand prompt warning or action before. the defendant has built up any good- will may materially assist the plaintiff 's case".

We do not think that there was any fraudulent user by the respondent of his trade name '<NAME>'. The name was first used in 1923 in a small way in Uttar Pradesh. Later it was more extensively used and in the same journals the two trade marks were publicised. The finding of the Registrar is that the appellant and its agent were well aware of the advertisements of the respondent, and the appellant stood by and allowed the respondent to develop his business till it grew from a small beginning in 1923 to an annual turnover of Rs. 43,000/- in 1946. These circum- stances establish the plea of acquiescence and bring the case within sub-s. (2) of s. 10 , and in view of the admission made on behalf of the respondent 'that his goods were sold mainly in Uttar Pradesh, the Registrar was right in imposing the limitation which he imposed. For these reasons, we would allow the appeal, set aside the Judgment and order of <ORG>, and restore those of the Registrar of Trade Marks, Bombay, dated September 10. 1953. In the circumstances of this case, there will be no order for costs.

Appeal allowed.


PETITIONER: CUSTODIAN OF EVACUEE PROPERTY PUNJAB & ORS. Vs. RESPONDENT: JAFRAN BEGUM DATE OF JUDGMENT: 20/04/1967 BENCH: <NAME>, K.N. (CJ) BENCH: <NAME>, K.N. (CJ) BHARGAVA, VISHISHTHA MITTER, G.K. CITATION: 1968 AIR 169 1967 SCR (3) 736 CITATOR INFO : R 1978 SC1217 (2,5,34,35) R 1980 SC1206 (9,27,28) F 1983 SC 259 (20) ACT: Administration of Evacuee Property Act , S. 46- Decision by Custodian that property was evacuee property- Suit in Civil Court challenging decision-If maintainable. HEADNOTE: A person who was in possession of a house in India, migrated to Pakistan. Notice was issued to his son under s. 7 of the Administration of Evacuee Property Act, 1950, and after hearing him the Deputy Custodian declared the house to be evacuee property. The respondent, who was the wife of the evacuee and on whom the notice under s. 7 of the Act was not served, started proceedings before the Custodian, claiming that the owner of the house had executed a will bequeathing the property to her and so the property could not be declared evacuee property. When she failed before the authorities constituted under the Act, she filed a suit in the civil court basing her case on the will and prayed for a permanent injunction restraining the authorities under the Act from evicting her from the house. On the question whether the suit in the civil court was maintainable, <ORG> held that the question whether a certain person had or had not become an evacuee was determinable only by the authorities under the Act, but the determination of a complicated question of law relating to title by such authorities, if such a question arose, was not final and could be reopened in the civil court; that the suit in the present case did raise such a question and therefore, the civil court had jurisdiction to entertain it. In appeal to this Court, HELD : Two questions will arise in every case where the authority has to declare under s. 7 of the Act whether a property is evacuee property, namely, (i) whether a particular person has or has not become an evacuee, and (ii) whether the property in dispute belongs to him. There is nothing in the section which shows that the authority under the Act (being a quasi judicial authority) cannot enter into all questions, whether of fact or law, simple or complicated, in deciding whether certain property belongs to an evacuee; nor does his jurisdiction depend upon a correct finding on a collateral fact. The power to decide all these questions could not be denied on the ground that 'the authority under s. 7 may not be an experienced judicial officer, because, his decision is not final and is open to appeal under s. 24 and to revision under s. 27 by authorities who are experienced judicial officers. Having thus provided a complete machinery for adjudication of all claims with respect to evacuee property, under ss. 7 , 24 and 27 , the Act, by s. 28 , gives finality to the order of the authorities mentioned therein and lays down that such orders shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceeding. The <ORG> has gone further and expressly barred the jurisdiction of the civil and revenue courts under s. 46 to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. Further, s. 4(1) of the Act provides that 737 the Act overrides other laws and would thus override s. 9 of the Civil Procedure Code. In these circumstances, s. 46 is a complete bar to the jurisdiction of the Civil Court to entertain the suit or adjudicate upon the question whether the property in dispute or right to or interest therein is or is not evacuee property. But ss. 28 and 46 cannot bar the jurisdiction of <ORG> under Art. 226 for, that is a power conferred by the Constitution. [740 G-E; 742 A, E, F-G; 743 A-B, D-G, 744 A, B-F] S. M. Zaki v. <ORG>, A.I.R. 1953 Pat. 112 and <CITATION> , A.I.R. All. 362, approved. Observation at page 934 in <CITATION> , A.I.R. 1951 Mad. 930, disapproved. [The question whether the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, not decided.] [745 <CITATION> , A.I.R. 1950 Bom. 440,. referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 772 of 1964. Appeal by special leave from the judgment and order dated May 28, 1962 of <ORG> in Regular Second Appeal No. 1819 of 1959.

<NAME> and <NAME>, for the appellants. The respondent did not appear.

The Judgment of the Court was delivered by <NAME>, C.J. In this appeal by special leave the only ques- tion that arises is the interpretation of S. 46 of the Administration of Evacuee Property Act, No. 31 of 1950, (hereinafter referred to as the Act). Brief facts necessary in that connection axe these. The house in dispute is situate in Malerkotla and belonged to one <NAME> who died Sometime in 1922. In 1947, the house was in possession of <NAME>'s son, <NAME> and <NAME>'s widow, <NAME>. Sometime after partition. <NAME> migrated to Pakistan. Thereafter notice was issued under S. 7 of the Act to <NAME> son of <NAME> to show cause why the house be not declared as evacuee property. No notice was however issued to respondent <NAME>. It seems that <NAME> appeared before the Deputy <NAME> and admitted that his father had migrated to Pakistan. So on June 7, 1952, the house was declared to be evacuee property. No appeal was taken against this order which thus became final. However, on March 2 1954, the respondent filed an application before the <NAME> claiming that by virtue of a will made in her favour by <NAME> in 1918 he had bequeathed the house to her and therefore she was the owner of the entire property. On July 3, 1954, the <NAME> held that under Mohammedan law a person could not will away more than one-third of his property and as it had not been proved that the house willed away by <NAME> was one-third of his entire property or less, the will could not be acted upon. In consequence the application was dismissed. It seems that thereafter the respondent made some representations to the then <ORG> but it is not known what happened thereto. On September 10, 1956, the respondent applied for review of the order of the <NAME> dated July 3, 1954. That review application was dismissed on April 5, 1957 mainly on the ground that it was belated. The respondent then went in revision to the Deputy <NAME> General but her revision was dismissed on September 27, 1957. Thereafter on December 3, 1958, the Deputy <NAME> General suo motu reviewed the order of September 27, 1957 holding that the respondent as the widow was entitled to one-eighth share under Mohammedan law. He therefore held that only seven-eighths share of the house became evacuee property and one-eighth share of the respondent was not evacuee property.

In the meantime, the suit out of which the present appeal has arisen was filed by the respondent on March 3, 1958. She based her case on the will of <NAME> already referred to and prayed for a permanent injunction against <ORG> and others barring them from evicting her from the house in dispute. The suit was dismissed on December 31, 1958 by the trial court holding that the civil court had no jurisdiction to decide the matter in the face of S. 46 of the Act. The trial court decided the other issues also but we are not concerned with them as in the present appeal only the question of jurisdic- tion of civil courts to entertain the suit has been raised. The respondent then went in appeal to the Additional District Judge. The Additional District Judge held relying on certain decisions of <ORG> that civil courts had no jurisdiction to entertain a suit of this nature and therefore dismissed the appeal. He also decided other points but we are not concerned with them. The respondent then went in second appeal to <ORG>. The learned Single Judge who first heard the appeal referred it for decision to a larger Bench. The matter then went before a Division Bench which noticed that there was some conflict between certain decisions of <ORG> and therefore referred the matter to a larger Bench. In consequence a Bench ,of three Judges was constituted to decide whether civil courts had jurisdiction in such a case. The learned Judges were of the view that when a question arose whether any property was or was not ,evacuee property, two matters had to be decided namely-(i) whether the particular person had or had not become evacuee and 73 9

(ii)whether the property in dispute belonged to him. On the first question they were of the view that the matter could only be determined by the Custodian and civil courts had nothing to do with it. On the second. question they were of the view that it might involve a simple question of fact or a complicated question of law i.e. a question of title. They finally decided that the question whether certain person was or was not evacuee was determinable by the Custodian, but the determination of the Custodian on a question of title if such question arose was not final and the question of title could be reopened in the- civil court and was to be finally determined by such court. The limited the above decision by observing that a mere assertion of claim to any property did not raise a question of title for such assertion might rest on a simple allegation of fact which could be finally determined by the Custodian and that the question whether in a particular case a question of title did or did not properly arise had to be decided on the facts of each case and no general rule about it could be usefully laid down. On this view of the law they held that in the particular case before them a complicated question of law arose and therefore the suit was competent and the civil courts had jurisdiction to entertain it. Thereupon the appellant obtained special leave from this Court and that is how the matter has come before us.

There have been a large number of cases in <ORG> on this question. We do not however propose to go into them in detail, for it appears to us that the view taken in some of them conflicts with the view taken in others. That is the reason why <ORG> three Judges was constituted to go into the matter and we have already set out their decision.' These cases are : <CITATION> (2); <CITATION> (2); <CITATION> (s); <NAME> v. A ddl. Custodian General (4) ; <NAME> v. Custodian General(5); <CITATION> (6) ; <CITATION> (7); <CITATION> (8); <NAME> v. Asst. Custodian General(9); and Custodian General in <ORG>. A distinction must be made between jurisdiction of <ORG> under Art. 226 of the Constitution and jurisdiction of civil courts about entertaining civil suits in matters, of, this kind. Whatever may be the interpretation of s. 46 to which we shall, address ourselves presently, the jurisdiction. of the, <ORG> under Art. 226 of the Constitution is not and cannot be (1) (1952) 54 Punj. L.R. 318.

(3) (1954) 56 Punj. L.R. 257.

(5) A.I.R. 1956 Punj. 163.

(7) (1958) 60 Punj L.R. 307.

(9) (1959) 61 Punj. L.R. 137.

(2) (1952) 54 Punj. L. R. 468.

(4) (1955) 57 Punj. L.R. 440.

(6) A.I.R. 1957 Punj. 58.

(8) (1958) 60 Punj. L.R. 592.

(In) (1959) 61 Punj. L.R. 915.

<NAME>

affected thereby. Other cases arose out of suits and two views seem to have prevailed in <ORG>, one holding that suits of this nature were barred while the other view was that where a question of title arose, jurisdiction of civil courts was not barred under S. 46 of the Act. It is necessary to consider the scheme of the Act before we actually decide the question posed before us. As is well known the Act had to be passed in order to deal with the enormous problem which arose on the division of the Punjab and large scale migration that took place from one side of the Punjab as it was before 1947 to the other side. Large numbers of Muslims migrated to that part of the Punjab which is now in Pakistan leaving their properties in that part of the Punjab which is now in India. It was to deal with this problem that the Act was passed, though we may add that there were earlier laws dealing with the same matter, which were all repealed by the Act, wherever it was extended. The Act defines "an evacuee" and also "evacuee property". "Evacuee property" is defined as meaning any property of an evacuee whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any other capacity. The definition also includes certain properties and excludes certain other properties, but we are not concerned with that. Section 4 of the Act which is important provides that "the provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law". Sections 5 and 6 provide for appointment of Custodian-General, Deputy Custodian General, and Assistant Custodian-General, Custodian, Additional Custodian, Deputy Custodian and Assistant Custodian whose duty it is to administer the Act. Se ion 7 empowers the Custodian to give notice, where he is of opinion that certain property is evacuee property, to the person interested and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property. It is clear in view of the definition of "evacuee property" to which we have already referred, that two questions will arise in every case where the Custodian has to declare whether a property is evacuee property. These two questions are : (i) whether a particular person has or has not become an evacuee, and (ii) whether the property in dispute belongs to him. Both these questions have to be decided under s. 7 of the Act by the Custodian. Under S. 8 any property declared to be evacuee property under s. 7 vests in the Custodian from certain dates with which we are not concern- ed. Section 9 gives power to the Custodian to take possession of evacuee property vested in him. Section 10 provides for powers and duties of the Custodian generally. Then follow certain sec-

tions which give special powers to the <NAME> with respect to the management of the property to which it is unnecessary to refer. Section 16 provides for restoration of evacuee property by the Central Government. Section 24 inter alia gives a right to a person aggrieved by an order made under S. 7 by the <NAME> to appeal. Section 27 gives power of revision to the <NAME>-General either on his own motion or on application made to him to call for the record of, any proceeding in order, to satisfy himself as to the legality or propriety of any order passed therein and to pass such order in relation thereto as he thinks fit. Sec- tion 28 which is also important reads thus :

"Save as otherwise expressly provided in this Chapter every order made by the Custodian- General, Custodian, Additional Custodian, Authorised Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceeding."

Section 28 thus clearly bars the jurisdiction of any court to entertain an original suit with respect to an order passed by the authorities mentioned therein. Section 46 with which we are particularly concerned is in these terms :

"Save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction-

(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or

(c) to question the legality of any action taken by the Custodian-General or the Custodian under this Act; or

(d) in respect of any matter which the Custodian General or the Custodian is empowered by or under this Act to determined A bare reading of s. 46 shows how widely it is worded and how, clearly it bars the jurisdiction of civil and revenue courts in matters specified 'therein. A perusal of these provisions in our opinion shows that the Act is a complete code in itself in the matter of dealing with evacuee property. As observed by this Court in <CITATION> (1), "the Act thus provides a complete machinery for a person interested in any property to put forward his claims before the authorities competent to deal with the question and to go in appeal and (1)  3 S.C.R. 214.

in revision if the person interested feels aggrieved. Having provided this complete machinery for adjudication of all claims with respect to evacuee property, the Act, by S. 46 , bars the jurisdiction of civil or revenue courts to entertain or adjudicate upon any question whether any property or any night to or interest in any property is or is not evacuee property". It is true that the Act is concerned with the administration of evacuee property and a large number of its provisions deal with actual ad- ministration of such property. But before the authorities under the Act take on the duties of administration of evacuee property some one has to determine what properties are evacuee properties of which the authorities provided under the Act can take over administration. The Act itself provides a machinery for determining what properties are evacuee properties. Section 7 is that provision which gives power to the <NAME> to determine what properties are evacuee properties. The <NAME> determines that after notice to persons interested and after such enquiry as the circumstances of the case permit. It is thereafter that the <NAME> declares certain property-to be evacuee property and on such declaration the property vests in the <NAME> under s. 8 . Then we have the provision of appeal under s. 24 and revision under S. 27 of the Act so that any person aggrieved by the order of the <NAME> has two forums open to him to ventilate his grievance. Clearly the <NAME> under S. 7 acts as a quasijudicial authority and so does the authority hearing appeals under s. 24 and the <NAME>-General hearing revisions under S. 27 . Thus all persons interested get a hearing under S. 7 and all persons aggrieved have a right of appeal under s. 24 and can go in revision under s. 27 . That is why s. 28 provides that every order made by the authorities indicated therein shall be final and shall not to be called in question in any court by way of appeal, revision or in any original suit, application or execution proceeding. The legislature was not however satisfied merely by giving finality to the orders of the authorities mentioned in S. 28 ; it went on to bar specifically the jurisdiction of civil and revenue courts in three matters indicated in s. 46 . Under cl. (a) of S. 46 , jurisdiction of civil and revenue courts is expressly barred and they are forbidden to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. Under s. 7 the <NAME> has to determine whether certain property is or is not evacuee property. To determine that he is to find out whether a particular person is or is not an evacuee. Having found that, he is to find whether the property in dispute belongs to that person. If he comes to the conclusion that the property belongs to that person, he declares the property to be evacuee property. Now there is nothing in S. 7 which shows that 74 3 the <NAME> cannot enter into all questions whether of fact or of law in deciding whether certain property belongs to an evacuee. There is no reason to hold that under S. 7 the <NAME> cannot decide what are called complicated questions of law or questions of title. It is difficult to see how the <NAME> can avoid deciding a question of title if it is raised before him in proceedings under s. 7 . Nor do we find it possible to make a distinction between questions of fact and questions of law that may arise before the <NAME> under s. 7 . If he has the power to decide ques- tions of fact, which the learned Judges in the order under appeal seem to concede, we do not see why he should not have the power of deciding questions of law also. Further if the learned Judges in 'the order under appeal are correct in. saying that if a question of title rests on a simple allegation of fact it can be finally determined by the <NAME>, we cannot see on what reasoning, it can be said that where a question of title, depends on a question of law it cannot be finally decided under s. 7 by the <NAME>. His power under s. 7 is to decide whether certain property is evacuee property or not and there is nothing in s. 7 which restricts that power to deciding only questions of fact. There can in our opinion be no escape from the conclusion that under s. 7 when deciding whether certain property is evacuee property or not, the <NAME> has to decide all questions, whether of fact or law, whether simple or complicated, which arise therein. That power cannot be denied on the ground that the <NAME>, which term for these purposes includes the Deputy <NAME> or the Assistant <NAME> may not be an experienced judicial officer and therefore may not be in a position to decide- questions of title. His decision is not final and is open to appeal under s. 24 and to revision under s. 27 . If he makes a mistake the two higher authorities who, we are told, have always been recruited from experienced judicial officers can correct him. It is after the matter has been decided under s. 7 and s. 24 if an appeal is filed and under s. 27 if a revision is filed, that s. 28 gives finality to orders of the authorities mentioned therein and lays down that such orders shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceeding. As we have already said, the legislature was not satisfied by merely conferring finality on such orders; it went further and expressly barred the jurisdiction of civil and revenue courts under s. 46 to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. These words are very wide and clear and bar the courts from entertaining or-adjudicating upon any such question. Where therefore the question whether certain properties are evacuee properties has been decided under s. 7 , etc., whether that decision is based on issues of fact or issues of law, the jurisdiction L9 Sup. Cl/67-4 tion of courts is clearly barred under S. 46 (a). It is difficult to see how a distinction can be drawn between decisions under s. 7 based on questions of fact and decis ions based on questions of law. The decision is made final whether based on issues of law or of fact by s. 28 and s. 46 bars the jurisdiction of civil and revenue courts in matters which are decided under s. 7 whatever may be the basis of decision, whether issues of fact or of law and whether simple or complicated.

It may be added that the only question to be decided under s. 7 is whether the property is evacuee property or not and the jurisdiction of the Custodian to decide this question does not depend upon any finding on a collateral fact. Therefore there is no scope for the application of that line of cases where it has been held that where the jurisdiction of a tribunal of limited jurisdiction depends upon first finding certain state of facts, it cannot give itself jurisdiction on a wrong finding of that state of fact. Here under s. 7 the Custodian has to decide whether certain property is or is not evacuee property and his jurisdiction does not depend upon any collateral fact being decided as a condition precedent to his assuming jurisdiction. In these circumstances, s. 46 is a complete bar to the jurisdiction of civil or revenue courts in any matter which can be decided under s. 7. This conclusion is reinforced by the provision contained in S. 4 (1) of the Act which provides that the Act overrides other laws and would thus override s. 9 of the Code of Civil Procedure on a combined reading of ss. 4. 28 and 46. But as we have said already, s. 46 or S. 28 cannot bar the jurisdiction of <ORG> under Art. 226 of the Constitution, for that is a power conferred on <ORG> under the Constitution.

It now remains to refer to certain cases of other courts in this connection. <CITATION> .(1), <ORG> was mainly considering the constitutional validity of the Act. At p. 934, however, <NAME> made the following observations "There is however one thing about which I am not quite clear. The Ordinance no doubt declares the order of the <NAME>. declaring any property to be evacuee property as final. That might be so in one sense, i.e., if any property belongs to a person who has been declared to be an evacuee within the meaning of the definition in the Ordinance, then the <NAME>'s order would be final. But, does the finality amount to an I adjudication on title in case there is any dispute? Take for instance the case where a property is declared to be evacuee property on the assumption that it be.longs to A who is an evacuee. Does it mean that some (1) A.I.R. 1951 Mad. 930.

7 4 5 one else cannot say that the property really. does not belong to the evacuee but, belongs to himself who is not an evacuee? I am inclined to hold that the order. of the <NAME> or the notification under s. 7 of the Ordinance is not final, in case of disputed title."

These observations themselves show that the learned Chief Justice was not finally deciding the matter for the question did not directly arise before him. He does not seem to have considered the matter in the light of S. 4 and s. 46 of the Act. In any case in view of what we have said above these observations cannot be accepted as laying down correct law. <CITATION> ,(1) the main question for consideration was again the constitutional validity of the Act. That was a case which arose on a writ petition. As we have already said, S. 46 cannot bar the jurisdiction of <ORG> under Art. 226. But during the course of the judgment, <NAME> referred to the decision of <ORG> in <CITATION> .(2) and observed that it was well settled that "even if jurisdiction of courts is excluded, civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure". We do not think it necessary to go into that question in the present appeal, for no such facts have been alleged in the present suit which would bring it within the ratio of the decision in <NAME> & Co.'s case(1). Normally jurisdiction of civil courts to entertain or adjudicate upon such question relating to evacuee property would be barred under s. 46 ; the question whether in some extreme circumstances civil courts may have jurisdiction inspite of S. 46 need not be decided just now. However we may add that in <CITATION> (3) this Court observed at p. 763 that the observations in <NAME> & Co.'s case(2) were in some respects too widely stated.

The next case to which reference may be made is <CITATION> (4). There the question was whether the property was evacuee and the court held that the Act had provided adequate remedies and that s. 46 must be construed to mean that the jurisdiction of a civil or revenue court was ousted even if the Custodian had wrongly decided that any property was an evacuee property. The distinction between those cases where a collateral fact is to be decided before a tribunal of limited jurisdiction assumes jurisdiction and those cases where the tribunal has to decide the whole matter itself was refered to and (1) A.I.R. 1951 Bom. 440.

(3) [1964] 1 S.C.R. 752.

(2) A.I.R. 194) P.C. 105.

(4) A.I.R. 1953 Pat. 112.

<NAME> (as he then was) rightly held that under S. 7 the whole matter has to be decided by the Custodian and there was no question of the decision of any collateral fact as a condition precedent to assumption of jurisdiction by the Custodian.

The last case to which reference may be made is <CITATION> (1). The question there was somewhat different, namely, whether S. 46 bars the jurisdiction of the civil court in a pending matter. The majority of the Judges in that case observed that in a case where a matter had been adjudicated upon in accordance with the provisions of the Act it might not be possible for courts to interfere by reason of the provisions of s. 46 of the Act. This case therefore to some extent is in line with the view we have taken.

On a careful consideration therefore of the authorities cited before us, we are of opinion that generally speaking the jurisdiction of the civil or revenue court is barred under s. 46 and no such court can entertain any suit or adjudicate upon any question whether a particular property or right to or interest therein is or is not evacuee property. We therefore allow the appeal and hold that in the view we have taken the suit was not maintainable in the civil court. The matter will now go back to the Single Judge of <ORG> to pass order in conformity with the view we have expressed. As- the respondent has not appeared in this Court we pass no order as to costs.

V.P.S. Appeal allowed. (1) A.I.R. 1964 All. 362,


JUDGMENT

1. This appeal arises oat of proceedings in execution of a decree, It appears that the plaintiff-decree-holder brought a suit for recovery of a certain sum of money against the judgment debtor and sought to attach some of his properties before judgment. Thereupon the parties came to terms and it was agreed that the amount claimed would be paid in certain instalments by the judgment-debtor and that on default the plaintiff would be entitled to realise the same from the moveable and immoveable properties of the judgment debtor, and from his person. It was further agreed that the property which had been sought to be attached before judgment would remain charged for the decretal amount and would not he transferred by the judgment-debtor.

2. Some of the properties sought to be attached before judgment were non-transferable occupancy holdings and some of the other properties were the dwelling houses of the judgment-debtor who is an agriculturist.

3. A decree was passed on these terms by the <ORG>. The decree-holder then applied for execution of that decree by attachment and sale of the properties which had been sought to be attached before judgment. Objection was raised on behalf of the judgment-debtor on the ground that the properties could not be attached or sold. The <ORG>s below have disallowed the objection on the ground that as the decree-holder had been led to change his position by reason of the arrangement come to under the compromise, the judgment-debtor was equitably stopped from raising the objection that the properties were not saleable.

4. The judgment debtor has appealed to this Court.

5. We think that the consent decree is certainly binding upon the judgment-debtor, and upon a proper construction of that decree we think that the properties, which the decree-holder sought to attach before judgment and which are now objected to as being not transferable, were under the terms of the decree liable for satisfaction of the amount of the decree. If that was not the object, we do not see the reason why the properties were to remain charged for the decretal amount. The decree, therefore, is binding upon the judgment-debtor. It is unnecessary to consider the question, whether it was necessary for the decree holder to bring a suit upon the charge, because in the present case the decree-holder has simply applied for attachment and sale of the properties as in execution of a decree for money.

6. In these circumstances, the appeal must be dismissed with costs, one gold mohur.


<NAME>, J.

1. The question that has arisen in this application for revision is whether a civil Court to which an issue has been sent by <ORG> for decision under Section 271, Agra Tenancy Act, 1926, and which has decided that issue ex parte has any jurisdiction to entertain an application for the setting aside of the ex parte decision and to decide the issue on its merits. The facts are fully given in the order of the learned <NAME>. He has come to the conclusion that the civil Court has jurisdiction under the provisions of Section 141, Civil P.C., and Order 9, Schedule 1.

2. It has been argued for the applicant by Mr. <NAME> that Section 141 has no application, and he has cited the cases of <NAME> v. <NAME> (1895) 17 All. 106. In this case their Lordships of <ORG> held that this section of the Civil Procedure Code, or rather the equivalent section of the old Code, had no application to execution proceedings, so that there is no real analogy between that and the present case. My attention has however been called to the remarks of their Lordships in that judgment on p. Ill in which they say:

that the proceedings spoken of in Section 647 include original matters in the nature of suits such as proceedings in probates, guardianships and so forth and do not include executions.

3. In the case of <CITATION> A.I.R. 1927 Cal. 534 at p. 411 (of 54 Cal.) a Bench of <ORG> in discussing the above case interpreted the expression "so forth" as meaning proceedings ejusdem generis and the expression "original matters" as matters which originate in themselves and not those which spring up from a suit or from some other proceedings or arise in connexion therewith.

4. The issue with which we have to deal in the present case is a question of title, and it goes to the very root of the suit which was before <ORG>. It seems to me quite clear that it must be held to be a matter which originates in itself and not as one which "springs from a suit or from other proceedings or arises in connection therewith." If we turn to the wording of Section 141, Civil P.C., we find that the procedure of the Code is to be followed "in all proceedings in any Court of civil jurisdiction," and therefore Order 9 will apply unless there is soma ex. press provision of law or some authoritative decision to prevent it. There is nothing in the passages which I have quoted or to which I have been referred to show that an issue referred to a civil Court for decision by <ORG> is not such an original matter in the nature of a suit, as is referred to in the judgment of their Lordships of <ORG>. My conclusion therefore is that the decision of the learned <NAME> is perfectly correct and that the present application has no force. It is therefore dismissed with costs.