<ORG>, J.

1. In the present case the question referred for the decision of <ORG> is as follows:

2. Whether <ORG> should exercise its extraordinary jurisdiction under Section 622 of the Code of Civil Procedure, or otherwise on behalf of persons who feel themselves aggrieved by orders passed by <ORG> below in cases, such as the present, in which it appears the law has specifically prescribed another remedy, by suit or otherwise? E.g.--Parties considering themselves aggrieved by orders passed under Sections 280, 281, or 282 may, under Section 283, institute a suit. Instead of filing, a suit, are they entitled to ask <ORG> to exercise its extraordinary jurisdiction and set aside the order? The decisions on the point conflict, and we have, therefore, made the reference.

3. The matter is one of practical importance, as is shown by the frequency with which it comes up in the <ORG>. That it is one of some difficulty is proved by the differences of opinion which have led to the present reference. We propose, therefore, to consider it in the light, both of the decisions of the Indian <ORG>s and of those given by the English <ORG>s in analogous circumstances and as the question is closely connected with others referable to the same general principles, and can be better understood by a discussion of the whole group, we will try to ascertain what are the proper grounds and limits of the <ORG>'s visitatorial and superintending,--that is, of its extraordinary, jurisdiction.

4. Mr. <NAME> relied much on the practice of the late <ORG> under the wide and vague provisions of Bombay Regulation II of 1827, Section 5. In the case of <NAME> v. <NAME> L.R. 6 Ap. Ca. 619 the principle is stated that a <ORG> cannot by mere practice acquire any jurisdiction not given to it by its Charter or Act of constitution See also per <NAME>, J., in <NAME> v. Sir <NAME> 8 Bom. H.C. Rep. at p. 108 O.C.J. Thus the proper scope of the enactment regulating the jurisdiction of the late <ORG> was not really affected by anything done, or supposed to be done, in virtue of them. For the proper limit of the jurisdiction we must still look to the words of the law: but the decisions and the practice of the <ORG>, and after it of the High <ORG>, are of use, as in the case of other jural questions, as showing what view was taken by competent authorities, with or without special advertence to the questions now brought before us, of the construction and application of the language we are called on to interpret.

5. The provisions in Regulation 1, Section 7, of 1827, reserving to the Governor in <ORG> for two years the power of interpretation of the then new Elphinstone Code, and after that time giving it to <ORG>, meant no more than that after the temporary suspension of the ordinary powers of <ORG> these were to be resumed. It did not mean that the interpretations of <ORG> were to have a legislative force, or any more than that its ordinary functions were, after two years, to be exercised as if they had not been interrupted. The English Statute of Treasons, 25 Edw. III, c. 5 Sec Reeves's Hist of the Eng. Law, Ch. XIV; Revised Statute, Vol. I p. 106; Steph. Hist of the Crim. Law, Vol. II, p. 250, provides that new and doubtful cases arising under it shall be referred for determination of their character, as treason or felony, to <ORG>, but this has never been supposed to make the Judges power legislative in any special sense, since the judicial function was dropped by <ORG> in this class of cases, and new Statutes were passed without reference to it <ORG>, Ch. II, § 6; <ORG>, Bk. IV, Ch. VI.

6. The grounds of the superintending and of the extraordinary jurisdiction of this <ORG> are set forth in <NAME> v. <NAME> 9 Bom. H.C. Rep. at p. 251 and in the same case the limits imposed by the <ORG>, or recognized by it, as necessarily controlling the exercise of its powers, are also stated. "The words of the law," says <NAME>, C.J., "impose no limit on the exercise of the power; but the <ORG> has, in its discretion, consistently refused to exercise its extraordinary jurisdiction, except in cases Which disclose some grave and patent error not otherwise to be remedied." The judgment, then, after ruling that the mamlatdar's <ORG>, though of new creation, was a "Civil <ORG>" within Regulation II, Section 5, of 1827, concludes: "We think we should not interfere, unless it be quite clear that the mamlatdar's order has been made without jurisdiction, and this certainly is not clear in the present case." His jurisdiction depended, as the <ORG> thought, on a dispossession within six months, and as it was not manifest that he had determined this point erroneously, his decision on the evidence was taken as conclusive.

7. <CITATION> . 4 Bom. 168 the point considered by the Court was whether <ORG>, as reconstituted by Bombay Act III of 1876, had jurisdiction in the city of Ahmedabad. It was ruled that it had, and that <ORG> had superintendence over <ORG> equally after as before the recent legislation. <ORG> are not generally subject to the Code of Civil Procedure, nor are they included in the provisions of the Bombay Civil Courts Act XIV of 1869, so that the visitatorial power over them has to be drawn from the earlier source of Regulation II of 1827, and from the Statute 24 and 25 Vict., c. 104, Section 9.

8. The superintending jurisdiction of this <ORG> over all inferior Civil <ORG>s, even those of recent creation, seems thus established in a manner analogous to that of <ORG> over the inferior Common Law <ORG>s in England. The ground of interference is limited to "grave and patent error not otherwise to be remedied". This principle, if taken in its literal sense, has been considerably widened in some of the more recent cases, in this <ORG>. It will be desirable to review these, and at the same time to consider some of the more important decisions on similar points of the other High <ORG>s in India.

9. The case of <NAME> v. <ORG> H.C. Rep. 375 was disposed of on the principle stated by <NAME>, J. "We conceive that we have full authority under Regulation II of 1327, Section 5, el. 2, to call for the proceedings of a subordinate Court, and to direct the Judge of it to exercise the jurisdiction conferred upon him by an Act of the <ORG> which, owing to a misconception, he has declined to do."

10. In the case of <NAME> v. <NAME> Printed Judgments for 1877 p. 162 the Subordinate Judge was directed the make an inquiry into the claim set up by a claimant to property under Section 269 of Act VIII of 1859. There was a possible remedy by suit, but the direction was to exercise a particular judicial function in a way avoided by the Court below. The inquiry incumbent on the Court below had not been made.

11. In the case of <CITATION> . 7 Bom. 316 the <ORG> directed an inferior <ORG> to give effect to an award, filed many years before, in the way prescribed by law. It was the enforcement of a function declined by the Subordinate Judge. It may be taken then, as well established that the <ORG> will enforce the exercise of jurisdiction when that is necessary, and that even the possibility of proceeding in some Other way will not shut out a right to claim the assistance of the <ORG> in getting a matter dealt With judicially, in a way that was intended by the law, but cannot otherwise be made available.

12. In the case of <NAME>, Zamorin of Calicut, v. <NAME> Mad. at p. 69 there had been a refusal to file an award. On an application under Section 622 the Court said: "Although the Judge has treated the application as a suit, it is, in fact, not a suit, and it is determined, not by a decree, but by an order refusing the prayer of the application. No appeal is given by the Act from Such an order. It is, therefore, competent to this Court to admit the application."

13. In the <NAME>' case I.L.R., 6 Bom., 663 this Court set aside an order of a Subordinate Judge for filing an award under Section 525 , Code of Civil Procedure (Act X of 1877). Under the Code no appeal would lie from a decree passed in accordance with the award. No remedy being provided by appeal or otherwise for a failure of justice in the inferior Court, the case is not such a one as that now before us. It was on a consideration of the final character of the order for filing an award that I, in the previous case referred to in the one just noticed, held in chambers that a prima facie substantial objection to the award ought to prevent its being filed. He who brings it in, is the actor seeking to establish a right, and should not be freed from the burden of proof when his application on the award is met by a case showing its apparent nullity. The same result, however, is arrived at if the burden of proof on the rule to show cause is properly laid, without a too slavish regard to the nominal positions of the parties concerned, on him who desires that the award be filed.

14. The <ORG> sometimes underrate their powers, and <ORG> is called on to enlarge their too narrow views. The case of <NAME> v. <NAME> 2 Mad. H.C. Rep. 264 was one of a sale under a decree in which the agent of the decree-holder had fraudulently aided the purchaser to buy at an under value by inducing other persons not to bid. The judgment-debtor sought to prevent a confirmation of the sale, but it was confirmed, as there had been no irregularity; and an application being then made to <ORG>, it was held that the <ORG> could rescind the order under Section 622 . "Fraud," according to the familiar formula," is an extrinsic collateral act which vitiates the most solemn proceedings of <ORG> of justice <NAME>, C.J., in Duchess of Kingston's Case, 2 <NAME>'s L.C, 7th ed., 770." Lord <NAME> says "it avoids all judicial acts." "<ORG> of Equity" again "have an inherent jurisdiction to relieve against every species of fraud"--Colt v. <NAME> 2 P. Wins. 156. The <ORG> of this country are <ORG> of Equity, and, regarding the sale as a judicial proceeding, <ORG> in the case in question ought not to have declined to annul it. Regarding it as a transaction in which the <ORG> took the place of the owner, the principle applied that "every transfer or conveyance of property... is in equity vitiated by fraud," much more a sale still awaiting confirmation. The High <ORG>, therefore, could most properly insist on <ORG>'s exercising the authority which it had declined to use on an idea that it did not exist. The former law, Section 35 of Act XXIII of 1861, extended in terms only to an excess of jurisdiction by an Appellate <ORG>; the present Code extends equally to a refusal of jurisdiction by any Civil <ORG> through a misconception of its authority.

15. In the case of <NAME> v. <NAME> 4 Calc. L.R. 74 there, was apparently an exercise, by <ORG>, of its extraordinary jurisdiction in a case admitting of a remedy in the regular course of the law. But that case may perhaps be referred` more properly to the principle that <ORG> in India, acting, under Section 622 of the Civil Procedure Code, will, like <ORG> in England by mandamus, enforce the exercise by inferior Courts of their proper functions. If the <NAME> improperly refused to make an inquiry, he thereby declined jurisdiction in a case proper for its exercise, and falling within the express provisions of the Code.

16. But <ORG> can also enforce, or control, the exercise of authority by reference to extrinsic circumstances misconceived, in their bearing on his jurisdiction, by a Judge of an inferior Court, and undo what he has done in a procedure opposed to the law.

17. The cases of <NAME> v. <NAME> 9. W.R. 309 C.R. and <NAME> v. <NAME> at p. 387 illustrate this view. In the former, the Subordinate Judge had made an order in a matter which in its nature was within his competence, but without any grounds in the particular case. That is, he removed, plaintiff's name without his assent. This order <ORG> set aside, under the superintending power given by 24 and 25 Vict., c. 104, Section 15 . It was a case of illegality by the exercise of jurisdiction, not of want of jurisdiction, seeing that the order was assailable only under the particular circumstances. In the latter case the lower <ORG> had exempted a particular judgment-debtor from liability under a decree. This was called an excess of jurisdiction, but <NAME>, J., said: "Although the <ORG> is competent to require the inferior <ORG>s to exercise a jurisdiction which they possess, and which they have declined to exercise, or to set aside anything which has plainly been done without jurisdiction, that Section ( Section 15 of the same Statute), will not enable this <ORG>, by way of motion, to deal with an order made by a lower Appellate <ORG> in cases where it has jurisdiction, and the law expressly declares that its order shall be final." It is obvious that the declaration of finality must apply equally to a <ORG> of original as of appellate jurisdiction. In both cases the <ORG> intends the controversy to be closed when the designated Judge has exercised his mind on the intended subject. His determination of it, even though erroneous, is not then illegal. The superintending function is to compel the exercise of judicial authority on the subject, and not beyond it; to define the subject by the elements composing it, and by reference to the prescribed, or intended, external conditions and to exact obedience to the law of procedure in gathering the materials for adjudication, and in giving effect to them. It is no part of that function to substitute the opinion of the superintending <ORG> for that of the <ORG> superintended, in matters assigned by the <ORG> to the cognisance of the latter. What it can exact is a real endeavour, in good faith, to apply the law. Such an endeavour is an actual application of the law, the application intended, (as the possibility of error could not have been overlooked,) except in cases of some such extraordinary misconception as cannot be deemed to fall within the purpose of the law at all. Such instances may be negative, as well as positive--that is, there may be a refusal of relief, or of action, by the inferior <ORG>, on grounds implying a total misconception and misapplication of the law in its limiting operation. There may also be instances in which both kinds of blunders have been combined. When these stand manifestly quite outside the positive or the negative sphere of the law, they are but in semblance an application of the law, and <ORG> must annul what is obviously a mere pretext or a perversion.

18. It must be conceded, indeed, that some of the decisions have gone much further than this. On Section 622 of the Code of Civil Procedure <ORG> at Allahabad has ruled that, in a case called for under that section, <ORG> may pass any order that could be passed in second appeal--Maulvi Muhammad v. Syed Husain I.L.R. 3 All. 203. It was admitted that this was tantamount to giving a second appeal, at the discretion of the <ORG>, in the very cases in which the <ORG> had denied it. The <ORG>s are bound to act, so far as they can, in furtherance of the intention of the <ORG>, and the moderate construction put by this <ORG> on the still wider terms of the Bombay Regulation seems to us more consistent with sound principles than that put by the Allahabad High <ORG> on an enactment intended only for extreme, and wholly unusual, cases.

19. In Trimbak v. Naro Printed Judgments for 1880 p. 32 the rule is stated thus: "The extra ordinary jurisdiction of this <ORG> is exercised generally only when a lower <ORG> has exceeded its jurisdiction, or has declined to exercise a jurisdiction with which it is clothed, or where great and irreparable wrong is done by a decree or order of a lower <ORG>."

20. In <NAME> v. <NAME> Printed Judgments for 1881 p. 133 <NAME>, J., thought that a wrong order, on an application by a purchaser at an execution sale for possession, ought to be set right by the exercise of the extraordinary jurisdiction. <NAME>, J., consistently with the principle lately cited, thought it ought not, there being a remedy by suit under Section 333 of the Code of Civil Procedure. <NAME>, J., admitting this, and acknowledging that the extraordinary jurisdiction had generally been confined to cases in which the applicant had not an ordinary remedy, thought an exception was admitted where an order was "manifestly illegal and unjust". A rule was accordingly granted.

21. In <NAME> v. <NAME> Printed Judgments for 1881 p. 223 an alleged mortgagee having set up a claim upon attached property under several mortgages." the Subordinate Judge found that one of these was spurious. Nevertheless he ordered a sale to be made subject to all. The decree-holder applied to this Court. The learned Judges differed as to its being, or not being, a case for the exercise of the extraordinary jurisdiction; but a rule was granted to show cause why the Subordinate Judge's order should not be modified. That order was not subject to appeal; but, if wrong, could be displaced, not only by a suit brought by the judgment-creditor, but by the purchaser, or by the judgment-debtor.

22. In <NAME> v. Balvant Printed Judgments for 1881 p. 221 a purchaser of an equity of redemption sought to raise an attachment. His claim was rejected, because the vendor had sold without possession, the property being held by the mortgagee. <NAME>, J., opposed the exercise of the extraordinary jurisdiction, and would have left the applicant to a suit under Section 283 . <NAME>, J., thought it should be exercised, and <NAME>, J., agreed with the latter, on the principle; as, stated by him, that, "when, in a proceeding in which no appeal is, permitted, there appears on the face of the judgment of a subordinate Court, not a doubtful question of law or fact, but a manifest error of law vitiating the decision, 1 think that we ought, as a rule, to exercise our extraordinary jurisdiction, and not put the aggrieved party to the delay and expense of; a regular suit."

23. In <NAME> v. <NAME> Printed Judgments for 1882 p. 197 a Subordinate Judge disallowed a claim to attached property, as resting on a sale by a, vendor not himself in possession, though his tenant was <NAME>, J., thought it, a proper case for the exercise of the extraordinary jurisdiction: <NAME>, J., was of an opposite opinion, as a remedy was open by suit under Section 283 : <ORG>, concurred with the former.

24. In Uttamram v. <ORG> p. 199 a difference of view as to whether the extraordinary jurisdiction should be exercised in a case of costs, thought by one learned Judge to have been wrongly and by the other rightly dealt with, was, on reference to Melvill, J., dealt with on another ground, viz., that there was a question of who were necessary parties defendant, which had been disposed of by <ORG> in a way that, if wrong, would work an injury to the plaintiff. A rule was, therefore, granted to the plaintiff.

24. <CITATION> . 6 Bom. 728 this <ORG>, following an early ruling, cancelled a certificate of heirship given to a minor. This is said to have been done under the extraordinary jurisdiction but though a refusal to grant a certificate could not, it was said, be appealed against, that being a matter of discretion Re <NAME>, 14th April 1864, yet it appears from Sections 23 and 38 of Act XXIII of 1861, coupled with the provisions of the Civil Procedure Code, Act VIII of 1859, Sections 333 , 363 , 388 , that an appeal might possibly, be made against an order granting a certificate. That such appeals, in the irregular form of applications, were several times entertained, appears from the cases referred to in <NAME> v. <NAME> 8 Bom. H.C. Rep. A.C. J. 162. Sections 540 and 647 of the present Code have preserved this appellate, coupled necessarily with a superintending See Statute, 24 & 25 Vict., c. 104, Sections 9 , 15 ; Letters Patent of 1865, para. 16 jurisdiction, if it existed, as it was probably thought by the <ORG> to exist, under the former Code. If there was no appeal, then the case, being one in which no remedy in the same course of proceedings, beyond the <ORG> supposed to have erred, is provided by the law, was one of a class to which most of the cases of interference have belonged.

25. In the case of <NAME> v. <NAME> Application 14 of 1882 on an application be the <ORG>, in its extraordinary jurisdiction, against a <NAME>'s decision, and not, therefore, under the Code of Civil Procedure, this <ORG> reversed the order, because the evidence had been improperly taken. This furnishes a good illustration of the kind of irregularity which the <ORG> may correct by its interference. The <NAME>'s order is final for its own purposes, inasmuch as no appeal lies against it, and the irregularity was of a kind not depending on any appreciation of evidence. It consisted in a gross infringement of the external conditions imposed by the law on the collection of the "materials for adjudication.

26. It is not easy, if possible, to reduce this series of decisions to consistent results. It comes out, however, that <ORG> will interfere to enforce the exercise of jurisdiction, or to restrain an excess of jurisdiction, in cases apparently calling for such interference, even though there may be a remedy by suit. When there is a remedy by appeal, the cases do not appear to warrant such interference, except under circumstances in which an appeal would manifestly be ineffectual. In cases of illegality and irregularity in dealing with matters in their nature cognizable by the inferior <ORG>, <ORG> has generally been governed by a similar principle. But where the further remedy was to be obtained, not by an appeal, but by a separate suit, <ORG> seems, at least in recent years, to have interfered more freely in cases in which there had been some palpable perversion of the law, or what prima facie seemed to be such a perversion. In the first case we have referred to, the <ORG> thought it could interpose only where there had been an excess of jurisdiction; in the later cases, it has interfered wherever there had been" a grave and patent error not otherwise to be remedied,"--as it would seem, in the same course of proceedings,--regarding the original inquiry and the appeal, as for this purpose continuous. The mere provision of a separate suit seems not to have been held a sufficient reason for refusing to correct a first injustice when this arose from a palpable illegality, whether in acting, or refusing to act, judicially, or in the method of judicial action.

27. This extension of the <ORG>'s powers, or rather of the definition of the proper limits of the exercise of its powers as they were formerly understood, has accompanied a development oil the jurisdiction as conferred by the Code of Civil Procedure, which must have been caused by a similar perception of evils to be remedied, and have had similar means in view. Section 622 , which in the Code of 1877 was limited to cases of jurisdiction, was, by Act XII of 1879, widened so as to embrace "illegality" or "material irregularity", in the exercise of jurisdiction by the subordinate <ORG>s. It must have been felt that, without exceeding its jurisdiction, a <ORG> might give orders unwarranted by the law under the circumstances, or attended with irregularities of procedure which would defeat the intention of the <ORG>. It began to be no longer possible to call every error made by a <ORG> an excess of jurisdiction. But what precisely was intended by "illegality" and "irregularity" has been left undefined. As the adjective "material" is annexed to the latter word, we must suppose that it is meant to provide against departures from rule which have prevented an investigation being made such as would enable a right, or duty to be established in the way contemplated by the Code, or have given effect, or refused effect, to particular rights in ways quite different from what it prescribes. The word "illegally" presents more difficulty. In one sense, every erroneous decision or order is illegal; in another, no judicial order is "illegal", even though it may call for reversal or amendment, which is within the general competence of the Judge who makes it. What probably was meant was an obviously perverse use of jurisdiction, or authority, which could not be justified even on the premises assumed or found by the Judge, or else, some palpable transgression of rule in the collection of the premises, an error, in either case, not admitting of reasonable question. Such an error undoubtedly warrants the interference of this <ORG>, even under the Civil Procedure Code: the precise circumstances under which it will interfere are left to its discretion. What is abnormal cannot in its nature be provided for precisely by rules, and an extraordinary jurisdiction cannot be meant for ordinary cases. We can only say with confide ace that when the Code says "final" it speaks on the supposition that there has been a reasonable' attention to its rules, and to ordinary principles, in the previous proceedings; that, where it provides an appeal, it does not intend that the appeal should be superseded; that, even when proceedings are quashed, it does not intend the lower functions to be transferred to the higher <ORG>; and, lastly; that where conclusiveness for their own purposes is given to inquiries or orders of a subordinate <ORG>, which are obviously regarded as of but a provisional effect as founded on a summary or limited investigation, the further suit or proceeding in any cases provided, is not meant to be replaced by an order under our extraordinary jurisdiction. Such an order must usually be itself grounded on a defective investigation of the facts; one, at any rate, less effectual than could, in the view of the <ORG>, be had by a regular suit, and should not be made except when the mischief is demonstrable and urgent, and resort to a suit will not, for some special reason, really fulfil the purpose of the <ORG>.

28. In such a conflict of opinion as has arisen on the subject we are now considering, it may be useful to see how similar questions have been dealt with by the <ORG> in England. Their decisions can, of course, only afford analogies, not precedents for <ORG> so differently constituted as those in India; but these analogies point to principles of general application, and thus repay our attentive consideration. A superintending and visitatorial jurisdiction has been exercised from ancient times by <ORG> and by <ORG>. The powers of the former <ORG> have been executed through the writs of certiorari, of mandamus, and; of prohibition.

29. By the last of these, the <ORG> has been wont to check an assumption or excess of jurisdiction; by the second, it has enforced the use of powers improperly declined; by the first it has withdrawn to itself the proceedings of inferior <ORG>s in which some illegality or irregularity required its interference, for the purpose of preventing a defeat of justice. The legal limits of its powers in this sphere it would be hard to define; few cases of hardship could be put such as it has not at some time endeavoured to remedy; but in recent times the proper grounds and limitations of its somewhat arbitrary authority have been; more strictly analysed than formerly, and the consequence has been a, marked contraction of the range of its interference, if not of its abstract jurisdiction.

30. <ORG> had jurisdiction over "all errors in fact or in law upon judgments by any other. Court," and to correct and reform all errors and misdemeanours extrajudicial which tend to oppression of the subject" Co. 4 Inst., 71. It has "not only power to reverse erroneous judgments, but also to punish all inferior Magistrates, and all other officers of justice, for wilful and corrupt abuses of authority Bac. Abr., Vol. II, p. 143.

31. The great powers thus vested in it the <ORG> exercised over the subordinate <ORG>s usually by calling for their proceedings by writ of certiorari. This authority was so essential to the <ORG> that "there are numerous cases in the books which establish that, notwithstanding the privative clause in a Statute, the <ORG> of Queen's Bench will grant a certiorari"--Colonial Bank of Australasia v. <ORG> at p. 442. This power conferred on a <ORG> <ORG> in a colony was held not to be extinguished even by a clause expressly taking away the power to remove the proceedings from a particular <ORG> into the <ORG>, <ORG> Ibid, though an appeal was provided to the Chief Judge of the inferior <ORG> See Vin. Abr., tit. Certiorari. But, then, the power, it was said, could be used only in extreme cases not practically admitting of another remedy. "In any such case that <ORG> will not quash the order removed, except upon the ground, either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it" (1) L.R. 5 P.C. at p. 442. These are the most obvious grounds, apart from express legislative authority, for the interference by a Chief <ORG> with the proceedings of one inferior to it, in the exercise of a superintending or extraordinary jurisdiction. The proceedings are conceived, not so much as a fulfillment of the statute or law, as a perversion, or mere semblance of applying it. By the Code of Civil Procedure, as it now stands, the High <ORG> can not only check an excess of jurisdiction, but may compel the exercise of jurisdiction, and control its exercise so as to correct illegality or material irregularity. These are the powers formerly vested in the <ORG> of Queen's Bench, reduced now, where certiorari has been withdrawn, to the limits already indicated; <ORG> v. <ORG> at p. 437. argument of Mr. <NAME>.

32. Then, it is said in the same judgment (at page 443) "Objections founded on the personal incompetency of the Judge, or on the nature of the subject-matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which, whether apparent on the face of the proceedings, or brought before the superior <ORG> by affidavit, are extrinsic to the adjudication impeached. But an objection that the Judge has erroneously found a fact which, though essential to the validity of his order, he was competent to try, assumes that, having general jurisdiction over the subject-matter, he properly entered upon the inquiry As to this Section <NAME>, v. Proud L.R. 1 Cr. C. 71 but miscarried in the course of it. The superior <ORG>-cannot quash an adjudication upon such an objection without assuming the functions of a <ORG> of appeal, and the power to re-try a question which the Judge was competent to decide. Accordingly, the authorities, of which <NAME>. v. Bolton 10 L.J.Q.B.95; S.C. 1 Q.B. 66 and <NAME>. v. St. Olave S.E. & B. 529 may be taken as examples, establish that an adjudication by a Judge having jurisdiction over the subject-matter is, if no defects appear on the face of it, to be taken as conclusive of the facts stated therein; and that the <ORG> of Queen's Bench will not, on etrirari, quash such an adjudication on the ground that any such fact, however essential has been erroneously found." And, again, it is laid down (at page 446) that the Supreme <ORG> should "not enter on re-trial of the questions within the competence of the inferior <ORG>, and disposed of by it upon the evidence, A contrary course, it is said, would be opposed "to the principles established by <NAME>: v. <NAME> and that class of cases."

33. We may, from this judgment, gather with reasonable certainty the opinion of the highest present authorities, that the power of control almost essential to the conception of <ORG> cannot be divested except by the most express and pointed statutory provisions See also Er. p. Bradlaugh, L.R., 3 Q.B.D., 509, but also that it is not to be used so as to supersede the lower <ORG> in their proper functions, by substituting its own judgment for theirs in matter's committed to their jurisdiction, by the <ORG>. It is further to be observed that their Lordships of <ORG> L.R. 5 P.C. at p. 441 rely on the fact that the Statute they had to expound gave an appeal to the Chief Judge of <ORG> as a ground for holding that the general power of certiorari was withdrawn, even in the case of proceedings under a previous Act, connected with the later one only by a general provision in the latter giving a right of appeal from the subordinate <ORG> of Mines to that of the Chief Judge. In argument for the respondents, who had to maintain' the certiorari, Mr. <NAME> put his case thus Ibid, at p. 433; "A right of appeal can be given only by express words... there was no appeal open to the respondent's, and, therefore, it was a case to be set right by <ORG> on certiorari for when the <ORG> creates a <ORG> without appeal, it is presumed that certiorari lies to restrain excess of jurisdiction."The exception allowed by this able advocate implies that he, felt he could not contend for a certiorari where the remedy intended by the law was, an appeal, and where there were not some special circumstances in the case making that remedy inapplicable, or ineffectual, or else such as to place the case altogether outside the, intention and scope of the privative clause.

34. That this conception, of the grounds and limits of interference was historically a correct one is easily, shown by, reference to the earlier authorities. Several of these are collected in Bacon's Abridgement, Tit. Certiorari, to prove that the <ORG> "will not grant certiorari, where an appeal is given, if the objection be, not to the want of jurisdiction, but to the merits; for that is more properly the subject of appeal." A fortiori, they will not grant it, pending an appeal. Similar propositions are set forth in Comyn's Digest, Certiorari (D). For more recent times reference may be made to the case of Ex. p. Blewitt re <ORG> 14 L.T.N.S., 598 In that case the allegation was that the justices had convicted without any evidence at all; yet, as they had jurisdiction over the subject-matter, and the conviction was formally valid, <ORG> refused a certiorari.

35. "The grant of the writ being discretional"--Zink v. <NAME> 2 Doug. 749 and' E. v. <NAME> 6 T.R. 251--it will be refused on such a ground as that the party seeking to get an inquisition into compensation quashed lies allowed the time to expire within which he could have "got an award set aside under the same(Lands' Clauses Consolidation) Act"--The Queen v. <NAME> L.R. 5Q.B.D. 179, 182. In India, as in England, the grant; of a rule under the extraordinary jurisdiction is discretional, and the power should be, used only to sustain, and not further to disturb, the regular course of judicial administration; to prevent distortions, or sham applications of the law, but not to promote uncertainty and restlessness, by an over-nice scrutiny of proceedings that", aim at promptness rather than refinement.

36. It does not appear, indeed, that the principles now recognized were always strictly adhered to in the earlier English cases, and in R. v. Eaton 2 T.R. 89 it could be argued that a certiorari issued of course; but in that case it was definitely laid down that a cause must be shown. In R. v. Sparrow 2 T.R. 198 a certiorari was quashed on account of an appeal having been made against a commitment to the sessions. In R. v. Bass 6 T.R. 251 the <ORG> still looked into the evidence; but finding the justices, had, as it appeared, drawn the right conclusion, it refused the certiorari prayed for. But a greater strictness prevailed as the grounds of interference became more distinctly conceived, and as, no doubt the general administration of justice by the inferior <ORG>s improved in regularity, until jurisdictional errors have, as we have seen, in recent years, become almost the sole admitted ground of interference.

37. As a certiorari is the appropriate means of restraining an excess of jurisdiction, so by mandamus the inferior <ORG> in England are made to do a duty which, they have sought, in any case, to decline. It is a cumbrous process, and has been superseded As in India, see Specific Relief Act , I of 1877, Chap. VIII in some cases by more expeditious methods See Common Law Procedure Act, 1854, Sections 68 to 77 ; but the principles of interference and control remain what they were. The object of the writ is to prevent a failure of justice, and it is granted only where there is no other specific remedy--R. v. <ORG> 2 Dong. 624; R. v. The Mayor of Colchester 2 T.R. 259; R.v. Commissioners of Dean Inclosure 2M. & S. 80- -by which such a failure can be prevented--R. v. <NAME> 1 Cowp. p. 377; <CITATION> . 396. Thus it lies to compel an inferior <ORG> to adopt the requisite proceedings--Amherst's Case 1 T. Raym., 214; and to record correctly--R. v. <NAME> 5 D. & R. 489; but not to come to a particular decision, even though it appears the one actually arrived at may hare been erroneous-- <CITATION> 4 D. & R. 735; R. v. Justices of Monmouthshire 7.D. & R. 334. The <ORG> will not substitute its own judgment for that of the <ORG>, or body invested by law with authority--R. v. Justices of Middlesex 4 8. & Ald. 298. On an application grounded on an affidavit of gross injustice, the Judges said they could command the Judge of an inferior <ORG> to give judgment, but could not thus review his proceedings, or try an alleged irregularity--Ex. p. Morgan 2 Chit., 250; and in another case, where a judgment-creditor complained that an inferior <ORG> refused to allow him to sign judgment, it was pointed out that there was a _ remedy by writ of error; and the <ORG> added--R. v. Marq. of Conyngham 1 D. & R. 529--" It is our constant practice to refuse the writ of mandamus to a party who has another remedy, which the plaintiff in this case certainly has."

38. In the case of <ORG>, the Statute, 9 and 10 Vict, c. 108, Section 43 , abolished the writ of mandamus, but allowed any person interested to call on a Judge, or officer, of <ORG>; to show cause in a superior Court why he should not do some specified act. Before this, a Judge, who had refused to receive a plaint for an insufficient cause, was compelled by mandamus to accept it--It v. <NAME> 21 L.J. Q.B. 8. Still, however, if he had once heard the case on the merits, though no appeal lay, yet no mandamus, it was held, could be issued, however erroneous his decision, to compel him to rehear the case on its merits--<NAME> v. <NAME> 15 Jur N.S. 1037. Much less would <ORG> take into its own hands the adjudication of a case already disposed of by the tribunal designated by the <ORG>.

39. In the case of the King v. The Directors of <ORG> (4) 4 M. & S. 279 <ORG> had directed an alteration to be made in a despatch intended to be sent by the directors to India. The directors refused, and the Board Applied to <ORG> for a mandamus. The directors replied that the proposed change amounted, in effect, to a direction by <ORG> on a matter not within its authority, as not relating to the civil or military government of India. Section 16 of Statute 33, Geo. ITI, c. 52, provided that, in the event of a dispute on this point, an appeal might be made by the directors to the King in <ORG>. It was urged for the directors that, notwithstanding this provision, the <ORG> would not, by mandamus, enforce the performance of what it did not consider a legal duty; but Lord <NAME> said: "this is an objection which the <ORG> of Directors ought to submit to the decision of the Privy <ORG>"... "as far as we are concerned it is perfectly alieni fori, and upon which we, therefore, sedulously abstain from pronouncing any opinion." Afterwards the directors appealed to the Privy <ORG>, and the decision having been against them, the rule for a mandamus was made absolute. In this case, the <ORG> having a general power to enforce legal duties see <NAME> v. <ORG> and <ORG> 32 L.J. Ch. 329 declined to refrain from exercising the power on an assertion that the alleged duty did not exist, and refused to examine that question because the law intended it to be disposed of by appeal to another tribunal. The competence specially assigned to that other tribunal involved, in the opinion of the <ORG>, an incompetence to deal with the same subject itself.

40. The ordinary means of, preventing the exercise of a jurisdiction not at all vested in a <ORG>, in England, is by writ of prohibition. The application of the law may be illustrated by the case of <NAME> v. Base L.R. 4 Q.B. 4. There a Judge of a County <ORG> had, given himself jurisdiction, in a case of ejectment, by a misconstruction of the section as to valuation. <NAME>, C.J., says: "If there has been a real conflict of testimony upon some fact which goes to the question of jurisdiction, the <ORG> will not interfere except upon very strong grounds. The Judge has then really exercised his discretion; but when he has given himself jurisdiction by coming to an erroneous conclusion upon a point of law, the case is very different, and he is, in fact, without jurisdiction, and has no authority to entertain the question., It is apparent that that was the case here, and, 1 think, therefore, that the writ of prohibition ought to issue."

41. In the same case <NAME>, J., says: "On the second, point I would refer to <NAME> v. <NAME> 14 Q.B. 710; S.C. 19 L.J.Q.B. 189 where, to a declaration, in prohibition against a <ORG> Judge, which stated that title to land was in question, there was a plea alleging that the Judge heard the evidence of both parties upon the point, and adjudged that title was not in question. The plea was demurred to, and judgment was given for the plaintiff; the ground of the decision being that, although the Judge must of necessity decide the point for the time, his determination was not conclusive, as in the analogous case of a plea to the jurisdiction; and as there was no writ of error from the <ORG>, the question, whether there was jurisdiction or not, must be open to one of the superior Courts on motion for a prohibition. If the value of the land was above £20 there would be good ground for issuing the writ; and I am quite prepared to hold that, if the evidence upon that point was conflicting, that circumstance, though not conclusive upon us, so as absolutely to deprive as of the discretionary power of granting the prohibition, would so far influence us, that we should require very strong grounds before we should interfere. It is clear, in the present case, that what the Judge found was simply that, taking his view of the law, and deducting the ground rent, the value of the ground was below £20. I think that he was wrong in the conclusion at which he arrived, because ho applied a wrong rule of law to the facts, and, therefore, that he had no jurisdiction."

42. It is to be observed that the learned Judge puts the competence of <ORG> to examine the facts, in the case he refers to, on the circumstance of there being no writ of error from <ORG>. There was no remedy after a wrong judgment should be delivered; and, therefore, the Judges were forced to see whether the facts did or did not, on any reasonable construction, give jurisdiction, as the Judge of <ORG> had Supposed. This agrees with the view expressed by the same learned Judge in <NAME> v. <NAME>, quoted in <ORG> v. Willan L.R. 5 P.G. at p. 441; while the opinion of the Chief Justice is substantially the same as that expressed by him in Ex p. Vaughan I.R., 2 Q.B., 117. According to either view, the <ORG>'s visitatorial or superintending power of interference is to be very sparingly exercised when another remedy is provided in the regular course, and in a case of conflicting evidence as to facts, on which the jurisdiction of a tower <ORG> depends, it would, except in a very extreme case, be held contrary to sound principles to interfere. <CITATION> 6 T.R. 177 the <ORG> said: "If there be any evidence of an offence, over which a Justice of the Peace has summary jurisdiction, the <ORG> will not estimate its value." And in Re <NAME> 30 L.J., M.C., 19 a conviction by Justices of the Peace on a minor charge was sustained, merely because they might have believed so much of the evidence only as sustained that charge, and not the rest which went to prove one beyond their jurisdiction. When no reasonable construction of the facts affords a ground for the assumed jurisdiction, the superior <ORG> always may interfere, but will always be reluctant to do so when, by writ of error, or otherwise, a wrong judgment may be set right.

43. In <NAME> v. <ORG>, 346 the case was not within the jurisdiction of <ORG>. A. clause in the Constituting Act required any objection by a defendant on that ground to be made by special plea, and added, "if the want of jurisdiction be not so pleaded, the <ORG> shall have jurisdiction for all purposes." The defendant had not pleaded want of jurisdiction; but he obtained a prohibition, the clause being construed as applicable only within the <ORG>, not as ousting the jurisdiction of the superior <ORG>, where the inferior <ORG> had, by its constitution, been excluded from cognizance of the cause.

44. The case of <ORG> v. <ORG> was disposed of on the ground of want of jurisdiction. The Recorder of Liverpool thought that <ORG> required a time for making up their minds whether to appeal or not against a poor rate which entitled them to a hearing at the nest quarter sessions but one, instead of the next quarter sessions. <ORG> thought that so much time was not required. They held that the admission of the appeal was an excess of jurisdiction, and granted a prohibition. It would seem that as the Recorder had a general jurisdiction over the subject-matter of the appeal, the trial before the recorder, apart from any prohibition, could not have been regarded as coram non judice, and the case would, on the principles recognized in <NAME> v. Ramalinga Filial L.R. 2 I.A. at pp. 222, 323, rather be referred to an illegal exercise of jurisdiction than to a want of jurisdiction. An error as to limitation is not generally regarded as jurisdictional--see <NAME> Case L.R., 8 I.A., 123. The case shows, however, that the facts may be looked into, and appreciated differently, in the higher <ORG>, when the very point to be determined, the legality or illegality of the course taken by the subordinate <ORG>, depends on that investigation, as showing a particular state of things to have existed or not existed. Illegality in the exercise of an acknowledged jurisdiction was a ground on winch many prohibitions issued in former times from the Common Law <ORG>s in England. It is recognized in <NAME> v. <NAME> 3 Eas 472 as sufficient, where the Spiritual <ORG> had misconstrued a Statute, though it had jurisdiction of the subject; but Lord <NAME> owns that, apart from precedents, the dictum of <NAME>, J., in <CITATION> 4 T.R. 807 would be worthy of respect, that "it the <ORG>s below have jurisdiction over the subject, though they mistake in their judgment, it is no ground for prohibition, but only matter of appeal."

45. The great increase in the number of public boards in England in recent times, and the various duties imposed on them, have led to many applications to the superior <ORG>, grounded on complaints of failures of duty which these <ORG> could correct. The <ORG> have thus been driven to consider, more closely than in former days, the extent to which they can properly use their undefined powers, in relation to bodies vested with special duties, and a discretion requisite to the due performance of them. The result has been a recognition of the impropriety of checking the exercise in good faith, of any special competence--see per Lord <NAME> in <NAME> v. <ORG> for London L.R. 9 Ch. Ap. 122; per Sir <NAME> in Duke of Bedford v. Dawson L.R. 20 Eq. at p. 358; and in <NAME> v. Buxlon Local Board L.R. 1 Ch. Div. at p. 224. in the case of the Attorney General v. <ORG> at p. 743 <NAME>, L.J., says: "It is very important, no doubt) that all these special jurisdictions, and powers, which are given to departments of the <ORG>) and other similar bodies, should not be exceeded, and that such bodies should keep themselves within the jurisdiction which is given to them. But, as it appears to me, it is no less important that we should set them the example of keeping ourselves within our proper jurisdiction, and I am of opinion that we have no jurisdiction to sit as Judges on appeal from a finding of <ORG> ok the facts properly brought before them in this matter-, and that we ought not to try to find reasons for substituting our judgment and decision for theirs."

46. This may be received as expressing the latest conviction of the English judicial mind as to interferences with constituted authorities. In the particular case of those vested with judicial powers, the Lord Chancellor of Ireland disapproved even of censorious comments, where there had been no excess of; jurisdiction by the inferior authority such as to warrant the superior <ORG> in quashing its proceedings. The remarks are cited with approval by Sir <NAME> in his edition of Pothier on Obligations, Vol. II, p. 353.

47. The Specific Relief Act , I of 1877, ch. VIII, in abolishing the writ of mandamus, enacts that <ORG> may require "any specific act to be done or forborne within the limits of its ordinary original civil jurisdiction by any... inferior <ORG>;" but the conditions are imposed (a) of a wrong to the applicant; (6) of a duty clearly incumbent on the inferior <ORG>; (c) consistency of the order sought with justice;(d) "that the applicant has no other specific and adequate legal" remedy; and (e) "that the remedy given by the order will be complete." These provisions, which express the results of an experience of centuries gained by superior <ORG>s in England, working without statutory limits to their jurisdiction, show very clearly the proper conditions of peremptory interference, even when there has been an excess of jurisdiction, or a failure to exercise it, by the lower <ORG>. It is very desirable that there should, as far as possible, be a complete In the course of his judgment, his Lordship said: "It has been urged at the bar that the Commissioners and Sub-Commissioners of Excise are illiterate, and that they are partial and interested men. But if the <ORG> has thought fit to commit judicial powers to men of that description, we should very much exceed our jurisdiction, and grossly mistake the authority committed to us, if, in giving judgment upon this record, we were to enter into a consideration of the policy of that establishment. Sitting in a <ORG> of law, I am not at liberty to enter into an examination of the justice or injustice of any judgment of a <ORG> of competent jurisdiction, unless it comes before me by writ of error. All parties to such a judgment arc bound by it, until it is reversed by a tribunal having competent authority to review it. I know of no such dangerous and extravagant excess into which any <ORG> of justice can be betrayed, as entering into a discussion of legislative policy in erecting particular tribunals. If the <ORG> has thought fit to commit judicial powers to excise officers of a particular description, we can only see that they do not exceed the jurisdiction intrusted to them. If they do not exceed their jurisdiction, we have no authority to pronounce that they are incompetent or corrupt Judges.

agreement of principal between the working of this <ORG> at its original and appellate sides, in giving effect to kindred jurisdictions. The terms imposed on the one may well serve for guidance to the other branch of the <ORG>, unless they contravene some law which the latter branch has to administer. It does not appear that, in regulating the exercise of our ill-defined authority by the principles in question, we shall diminish our power to correct abuses of the law, which the <ORG> does not intends to be corrected in other ways, by other means. Where it intends the first stage of a judicial inquiry to be the last also; where it intends possible errors in such an inquiry to be set right by an appeal; our supersession of the designated <ORG>s would be a usurpation, by whatever motives it might be induced. If the law as administered, with a restrained exercise of our powers, should prove ineffective, the <ORG> can readily widen our sphere of activity by enactments adapted for that purpose.

48. From the consideration we have given to the whole subject, the following conclusions may, we think, be deduced:

(1). The visitatorial or superintending power of <ORG> is so necessary, and almost indispensable, that it is not to be wholly excluded even by a clause in a Statute withdrawing cases under the Statute from its control. When such a Statute has been made a mere pretext, or has been wholly misapplied, the case will be treated as one not really arising under the Statute, but on an evasion or perversion of the Statute, and, as such, subject to the general control of the <ORG>, by which a rational application is to be secured to both the positive and the negative provisions of the law.

(2). The <ORG>, having called up the record or proceedings of a subordinate <ORG>, will itself investigate the facts on which a jurisdiction has been assumed or declined; on which it depends whether the subordinate <ORG> could, or could not, legally deal with the matter in question, either at all, or on the principle to Which it has referred the case; or according to which its mode of inquiry, or of action, may, or may not, have been in contradiction, than obedience, to the rules of procedure, or the principles implied in them, to such a material extent as to defeat the purpose of the law.

(3). If the <ORG> finds that the external conditions of jurisdiction, of investigation, and of command, have been satisfied by the inferior <ORG>, it will not substitute its own appreciation of evidence or its own judgment thereon, for the determination of the inferior <ORG>, in any matter committed by the <ORG> to the discretion of such <ORG>, whether for the sake of promptness, or finality, or because the lower <ORG> has been thought by the <ORG> the best tribunal for dealing with the matter in question.

(4). Where an appeal is provided, the Court will not interfere by any peremptory order with the ordinary course of adjudication, save in cases wherein a defeat of the law, and a grave wrong, are manifest, and are irremediable by the regular procedure.

(5). Where a decree or order of a subordinate <ORG> is declared by the law to bo, for its own purposes, final, or conclusive, though in its nature provisional, as subject to displacement by the decree in another more formal suit, the <ORG> will have regard to the intention of the <ORG> that promptness and certainty should, in such cases, be in some measure accepted instead of juridical perfection, It will rectify the proceedings of the inferior <ORG> where the extrinsic conditions of its legal activity have plainly been infringed; but where the alleged, or apparent, error consists in a misappreciation of evidence, or misconstruction of the law, intrinsic to the inquiry and decision, it will respect the intended finality, and will intervene peremptorily only when it is manifest that, by the ordinary and prescribed method, an adequate remedy, or the intended remedy, cannot be had.

(6). The <ORG> will, in all cases, regard its exercise of the extraordinary jurisdiction as discretional, and subject to considerations of the importance of the particular case, or of the principle involved in it, of delay on the part of an applicant, and of his merits with respect to the case in which the interference of the <ORG> is sought, Should other special causes appear for, or against, the <ORG>'s intervention, due weight is to be given to them, regard being always had to the principles already enunciated.

(7). The <ORG> will "sedulously abstain from making" any order, or refusing to make it, on grounds, the appreciation of which is exclusively assigned by law to some other authority, provided the legal competence be exercised, in good faith, on matters that may reasonably be understood as within its lawful range.

49. It seems to us that the question put by <ORG> does not admit of a precise categorical reply; that the <ORG> cannot impose on itself limitations without regard to circumstances; but that it should generally be governed, in the class of cases in question, by the principles contained in the fifth of the propositions just stated.


ORDER Venkatachaliah, Ojha, J.

1. Appellants in these appeals by Special Leave, are the Defendants in Civil Suit No. 1220 of 1988 on the original side of <ORG> and assail the order dated 19-1-1990 of <ORG> of <ORG> granting in appeal and in reversal of the order dated 2-3-1989 of the learned single Judge trying the suit an injunction restraining appellants from passing-off their medicinal product Cal-De-Ce as that of the Respondent-Plaintiff, Respondent claimed to have acquired a right in that Trade-mark by continuous user. The temporary injunction was refused by the learned Single-Judge. But in appeals, O.S.A. Nos. 111 and 112 of 1989, preferred against the refusal, the division bench granted the temporary injunction in appeal,

2. The appeals have come up for orders on the prayer for stay. As the considerations relevant for decision on the prayer for stay, by and large, conclude the subject-matter of the main appeals, we proceed to dispose of the main appeals themselves.

We have heard <NAME>, learned Senior Counsel for the appellants and <NAME>, learned Senior Counsel for the respondents. We have been taken through the orders of the learned trial-Judge and of <ORG> in appeal.

3. <ORG>, first appellant, claiming to be registered proprietor of the Registered Trade-mark Cal-De-Ce entered into an agreement dated 28-3-1986 with <ORG> (<ORG>), the respondent, under which <ORG> agreed to manufacture vitaminsed Calcium Gluconate Tablets under the said registered Trade-Mark Cal-De-Ce and sell the entire production to the <ORG> It would appear that pursuant to and in implementation of these arrangements <ORG> applied for the requisite manufacturing-license from the Drug Controller under the Drugs and Cosmetics Act , 1940, in the course of the processing of which <ORG> furnished before the Drug Controller an undertaking that <ORG>, would not authorize the use of its Trade-Mark Cal-De-Ce by any other company and further not to manufacture Cal-De-Ce with effect from 1st July, 1986, either by itself or under sole licenses from it. <ORG> issued the manufacturing licence to <ORG>.

The working of the agreement dated 28-3-198.6 between the parties, however, appears to have run into serious troubles. It is not necessary to advert to the rival contentions of the parties on the merits of this controversy as they may have to be gone into by <ORG> in the pending suit. The disputes culminated in <ORG>, purporting to rescind the agreement by its notice dated 30th November, 1988 and calling upon <ORG> to stop manufacture of Cal-De-Ce under the Trade-mark. It would also appear that <ORG>, entered into a separate manufacturing arrangement with <ORG>, the second appellant, at Madras, under licenses issued to the second appellant by the authority administering the Drug and Cosmetics Act , 1940 in that State.

It is at this stage that the <ORG> came forward with the present suit and sought temporary injunction.

4. The case of <ORG> is that its agreement dated 28-2-1986 with <ORG>, was itself void in that its object was one forbidden by law ; that it would, if permitted defeat and violate several statutory provisions and prohibitions, that the agreement thus, out of way, the undertaking furnished on 21st June 1986 by <ORG>, to the Drug Controller in Karnataka, had the effect, in law, of and amounted to an abandonment by <ORG>, of its proprietorship of the Registered Trade-Mark Cal-De-Ce and all of such exclusive rights as <ORG>, had or may have had in respect of that Trade-Mark and that the subsequent continued user of the said Trade-Mark by <ORG> under the Drug Controller's licence amounted to an independent user of the Trade-Mark by <ORG> in its own right as, indeed, according to <ORG>, the said Trade-Mark after its abandonment by <ORG>, came to be in an ascent unwonted condition eligible to be picked up and used by any body. It was said that the user of the Trade-Mark by <ORG> after 21st of June 1986 amounted to such an independent user on the strength of which <ORG> claimed that it was entitled to maintain a passing off action even against <ORG> The mere earlier registration of the Trade-Mark by <ORG>, it is urged, is no evidence of earlier user and with the abandonment of the Trade-Mark by <ORG> <ORG> is entitled on the strength of its continuous user, to restrain <ORG> from manufacture.

The point for consideration is whether there is a prima facie case on which <ORG> could be held entitled to restrain <ORG> and <ORG> from manufacturing and marketing goods under the Trade name Cal-De-Ce and whether on considerations of balance of convenience and comparative hardship a temporary injunction should issue. The corollary is that even if the injunction sought by <ORG> is refused, that does not, ipso-facto, entitled <ORG> and <ORG> to manufacture and market the goods if they are not otherwise entitled to do so under the relevant laws regulating the matter.

5. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injucntion, it is stated is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience lies". The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted.

6. In the present case, the learned single Judge held that, at all events as between <ORG> and <ORG> even to the extent considerations relevant for a passing-off action go, the latter was undisputably the earlier user of <ORG> in that <ORG> was manufacturing and marketing the Calcium Glouconate Vitamin Tablets under <ORG> Cal-De-Ce at its own factory in Bombay from August 1983 upto June 1986. If this is correct, <ORG>'s user cannot be held to be prior user. It is pertinent to note, and perhaps emphasise, that the appellate bench did not disturb this finding at all. Learned Single Judge was persuaded to the view that, in any event so far as the prima facie position as to the test of earlier user is concerned <ORG> could not be held entitled to interlocutory order in its favour on the basis of the earlier user claimed by it. The interlocutory relief was accordingly refused against both <NAME> and <NAME>.

7. Aggrieved by this order of the Trial Judge declining the interlocutory injunction <ORG> preferred O.S.A. Nos. 111-112 of 1989 before <ORG>. <ORG>, however, re-assessed the material considered by the single Judge and came to a different conclusion. <ORG> held :

The plaintiffs had licenses to manufacture for sale with the trade names and had indeed sold the manufactured stock in bulk to the defendants Its user of the trade marks pursuant to the licence obtained, was nut the user of the registered user under Sections 48 and 49 of the Trade and Merchandise Marks Act , not was its manufacture carried out in pursuance of any loan licence taken out by the defendant under rule 69-A of the Drugs and Cosmetics Rules.

The plaintiffs manufacture with the trade names, under licenses in the trade names and the consequent user of the trade names establish a prima facie case for passing off action and the balance of convenience, requiring and the status quo to be maintained, the plaintiff having had the benefit of the injunction from 23-9-1988 till 2-3-1989 when it was vacated and from 2-5-1989 when this Court granted the injunction, the plaintiff would be entitled to have the interim injunction as prayed for by them.

Appellants-Defendants have come up in appeal here.

8. On a consideration of the matter, we are afraid, <ORG> fell into error on own important propositions. The first is a misdirection in regard to the very scope and nature of the appeals before it and the limitations on the powers of <ORG> to substitute its own discretion in an appeal preferred against a discretionary order. The second pertains to the infirmities in the ratiocinations as to the quality of <ORG>'s alleged user of the Trade-Mark on which the passing-off action is founded. We shall deal with these two separately.

9. The appeals before <ORG> were against the exercise of discretion by the Single Judge. In such appeals, <ORG> will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. <ORG> will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by <ORG> reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles <NAME>, J. in <CITATION> :

... These principles are well established, but as has been observed by Viscount <NAME> in <ORG> v. <NAME> the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.

The appellate judgment does not seem to defer to this principle.

10. We may now examine the tenability of the grounds on which <ORG> reversed the single Judge's refusal. The passing-off action was based on the asserted right to a trade mark said to have been acquired by continuous user. According to the appellate-bench the user by <ORG> pursuant to the Drug-Controller's licence and after the under taking given by <ORG> "was not registered user under Sections 48 and 49 of the Trade and Merchandise Marks Act nor was it a manufacture carried out in pursuance of a loan because......" In-passing-off action this would be relevant only in a negative way. Positively, the plaintiff must establish a prior user of his own prima facie. <ORG>'s case appears silent on this requirement in the context of a specific finding of the single judge as to user by <ORG> prior to June, 1986. <ORG>'s user is admittedly after June, 1986.

An infringement action is available where there is violation of specific property-right acquired under and recognised by the statute. In a passing-of action, however, the plaintiff's right is independent of such a statutory right to a trade mark and is against the conduct of the defendant which lends to or is intended or calculated to lead to deception. Passing-off is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an action for deceit. The tort of passing-off involves a misrepresentation made by a trade to his prospective customers calculated to injure, as a reasonably foreseeable consequence, the business or goodwill of another which actually or probably, causes damage to the business or goodwill of the other trader. Speaking of the legal classification of this form of action, Lord <NAME> said :

Unfair trading as a wrong actionable at the suit of other traders who thereby suffer loss of business or goodwill may take a variety of forms to some of which separate lables have become attached in English law. Conspiracy to injure a person in his trade or business is one, slander of goods another but most protean is that which is generally and nowadays, perhaps misleadingly, described as "passing off". The form that unfair trading takes will alter with the ways in which trade is carried on and business reputation and goodwill acquired. <NAME>'s maker of the better mousetrap if secluded in his house built in the woods would today be unlikely to find a path beaten to his door in the absence of a costly advertising campaign to acquaint the public with the excellence of his wares" See <NAME> v. <ORG> 1979 All E.R. 731.

11. <ORG> says that it is free from the inhibitions of the terms of the agreement dated 28th March 1986 on the ground that agreement is itself void for all purposes and, therefore, do not attach to or diminish the quality of its user, though commenced under that agreement. <ORG> says its user is referable to <ORG> licence. But even assuming that the terms of the agreement dated 28th March 1986 are not to be put into the scales to determine the title to and character of the user by <ORG>, two crucial positions still stage <ORG> in the face.

The first is that the Drug Controller's licence claimed by <ORG> as the source of its right to the user of the trade-mark, itself expressly stipulates that the goods to be manufactured pursuant to the said licence shall be goods under the registered Trade-mark, of <ORG> The effect of this on the quality of the user has not been examined by the Appellate-Bench.

Secondly, even if a prior registration of a Trade mark is not necessarily evidence of prior user as contended by <NAME>, <ORG> cannot, prima facie, explain how in a passing-off action its user subsequent to June 1986 would prevail over the prima facie finding that <ORG> was manufacturing Calcium Gluconate Tablets under the trade-mark Cal-De-Ce at its own factory in Bombay from August 1983 to June 1986. <ORG> does not dislodge this finding nor does it recognise the crucial effect of prior use by the defendant on the plaintiff's case in a passing-off action. It appears to us that it was not an appropriate case where the appellate Bench could have interfered with the discretion exercised by the learned <NAME>, Judge.

12. We, accordingly, allow these appeals, set aside order dated 19-1-1990 of <ORG> in so far as it pertains to Civil Suit of 1220/ 1988 and restore the order dated 2-3-1989 made by the learned Single Judge on Applications 4941 and 4942 of 1988. Since we are examining the matter at an interlocutory stage, none of the observations contained in this order shall affect the final decision of the suit on the merits after evidence.

13. The order of the appellate Bench is common to the present suit as well as certain other proceedings between <ORG> on the one hand and certain other parties on the other. This judgment and the observations therein are confined to the facts of Civil Suit No. 1220/1988. The correctness of the Appellate Order in respect of other cases is not the subject-matter of these appeals and that, therefore, whatever we have said shall not prejudice the parties in those other proceedings.

Having regard to the nature of the controversy, it will be appropriate for <ORG> to dispose of the Suit expeditiously and we request <ORG> to dispose of the Suit within six months from today.

In the circumstances of this case, there will be no orders as to costs in the appeals.

<ORG> v. <ORG>

1. We have heard <NAME>, learned Senior Counsel for the appellant and <NAME>, learned Senior Counsel for the respondent.

Special leave granted.

2. The grievance of the appellant is that its appeal before the Learned Single-Judge of <ORG> preferred against an interlocutory order granting an injunction in a suit pending on the file of <ORG> was disposed of without giving opportunity to the learned Counsel for the appellant to argue the matter.

3. The matter admits of being disposed of on the basis of <NAME> suggestion which we consider a fair and generous one. <NAME> for the respondent fairly consents to an order-and we accordingly make that order-setting aside the order under appeal and remitting the matter to <ORG> for consideration afresh of the appeal for admission after affording another opportunity to the appellant of being heard. The matter is disposed of accordingly. No costs.