Friday, 5 August 2016

Whether single Judge can criticize decision of Division Bench?

In this backdrop, it is indeed unfortunate that the learned Single
Judge has embarked upon an adventure to disagree with the decision of a 
Division Bench in Ultra Home (supra), albeit, as a student of law‘. It is
not open to a Single Judge (and more particularly a trial court) to differ
from or critically appraise a decision of a Division Bench (and more
particularly of an appellate court). Once it is recognized that the decision
of the Division Bench is binding on the Single Judge, there is no need to
express any difference of opinion or disagreement or purport to give
reasons for the said difference of opinion or to even suggest that the
decision of the Division Bench may need re-consideration. That is only in
the domain of another Bench of co-equal strength. In any event, the
findings and observations of the learned Single Judge with respect to its
interpretation of the Supreme Court decision in Sanjay Dalia (supra), to the
extent they are contrary to the decision of the Division Bench in Ultra
Home (supra), are set aside.
 Lastly, and with some anguish, we may observe that we find it
difficult to comprehend as to why the learned Single Judge went to such
lengths so as to devote 18 paragraphs spanning from page 29 to page 43 of
the impugned judgment to record his difference of opinion with the
decision in Ultra Home (supra) when, according to the learned Single
Judge himself, the so-called difference of opinion did not come in his way 
in deciding the present case as it had no relevance‘, according to him, to
the present case. Such an unnecessary pursuit and adventure has been
undertaken by the learned Single Judge while at the same time the learned
Single Judge rued over the fact of overflowing dockets and heavy
workloads of courts. Why was such a fruitless and futile academic‘
exercise undertaken by the learned Single Judge? This would remain a
mystery?
THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 03.08.2016
 FAO(OS) 145/2016
M/S RSPL LIMITED ... Appellant
versus
MUKESH SHARMA & ANR ... Respondents

CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE SANJEEV SACHDEVA



1. This appeal is directed against the judgment dated 05.04.2016,
whereby a learned Single Judge of this Court has allowed the application of
the respondents/defendants under Order 7 Rule 10 of the Code of Civil
Procedure, 1908 (hereinafter referred to ‗as CPC‘). By virtue of the
impugned judgment, the learned Single Judge has held that the plaint filed
by the appellant/plaintiff was liable to be returned under Order 7 Rule 10
CPC as, according to him, this Court did not have territorial jurisdiction to 
entertain the suit [CS(OS) 124/2015] which was filed by the
appellant/plaintiff.
2. The suit was filed by the appellant/plaintiff under Sections 134 and
135 of the Trade Marks Act, 1999 as also the Copyright Act, 1957 seeking
permanent injunction restraining infringement of its trade mark and
copyright. The suit was also one for injuncting the respondents/defendants,
based upon a passing off action. Rendition of account etc. was also prayed
for. It was claimed by the plaintiff/appellant that its trade mark GHARI/
GHADI label is registered in Class 30 and also in other classes in India
under various registrations which are still valid and subsisting under the
provisions of the Trade Marks Act, 1999. It is also stated in the plaint that
the appellant/plaintiff had filed various other applications for registration of
the trade mark GHARI/GHADI label in Classes 1 to 42 under the Trade
Marks Act 1999 in India. It is also alleged in the plaint that the plaintiff‘s
artistic works in the said trade mark/label are also registered under the
provisions of The Copyright Act, 1957. It is alleged that the
appellant/plaintiff is the owner and proprietor of the said trade mark/ label
in relation to the goods and business and, in view of the plaintiff‘s
proprietary rights, it has an exclusive right to the use thereof. It is further 
stated in the plaint that the defendant No.1/respondent No.1 (Mr Mukesh
Sharma) is a lawyer and proprietor of a law firm – GHARI TRADEMARK
COMPANY – which is situated at 64, Kailashpuri, Bulandshahar, Uttar
Pradesh and is engaged in legal and advisory services in relation to
intellectual property rights‘ matters and that the word ‗GHARI‘ is the most
prominent part of the said firm‘s name.
3. It is averred that by the adoption and use of the impugned trade mark
– GHARI TRADEMARK COMPANY– in relation to the said services, the
defendants are guilty of infringing the registered trade mark/label of the
plaintiff/appellant. With regard to the date of knowledge, cause of action
and territorial jurisdiction, the plaintiff made the following averments:-
―35. That in the month of 3rd Week of November 2014 the
Plaintiff received the caveat petitions filed by the defendants in
different District Courts, Delhi, whereby the defendant alleged to
be engaged under the impugned trade name GHARI TRADE
MARK COMPANY under the impugned services. The plaintiff's
further inquiry revealed that the defendants have very recently
started the impugned activity under the impugned trade name.
The defendants' user thereof (if any) utmost would be
clandestine, surreptitious, sporadic restricted, minimal and very
recent and all making it very difficult to detect and verify the
precise nature of the Defendants' activities. The defendant's
impugned user, if any, is void-ab-initio.
36. That the cause of action for filing the present Suit has
been detailed in the preceding Paras of the Plaint. The cause of FAO(OS) 145/2016 Page 4 of 38
action for filing the present Suit has arisen in favour of the
plaintiff and against the defendant in the 3 rd Week of November
2014 the Plaintiff received the caveat petitions filed by the
defendants in different District. Court, New Delhi, whereby the
defendants alleged to be engaged under the impugned trade name
GHARI TRADE MARK COMPANY under the impugned
services. The defendants' are indulging in the impugned activity
under the impugned tradename on a daily and continuous basis
and as such the cause of action is a continuous one and shall
continue to so accrue' on daily basis till such time the defendants
cease with its impugned activities under the impugned trade
name in relation to impugned services.
37. That this Hon'ble Court has the territorial jurisdiction to
try and adjudicate the present suit. The defendants are
committing the impugned acts within the jurisdiction of this
Hon'ble Court by conducting, soliciting, rendering the impugned
services within the impugned trade name within the territorial
jurisdiction of this Hon'ble Court. The plaintiff is having its
corporate office at 3rd Floor, C-1, 2, and 3, Netaji Subhash Place,
Wazirpur District Center, Pitampura, New Delhi - 110034 which
is nerve center of the plaintiff s said business and from where the
plaintiff has been carrying on with , its' important aspects of its
business including marketing, distribution and finance and is
carrying on its said goods and business under the said
trademark/label within the territorial jurisdiction of this Hon'ble
Court. The plaintiff is also carrying Out is business activity under
the said trademark/label through its dealers/distributor , within
the territorial jurisdiction of this Hon'ble COiirt (viz. Mauj Pur,
Shastri Park, Usmanpur, Karawal Nagar, Khazoori Khas,
Bhajanpura, Sonia Vihar, Gokulpuri etc.). The name of plaintiff's
dealer/distributor within the territorial jurisdiction of this Hon'ble
Court are (i) M/s Garg Enterprises, A-31/7E, Main Road,
Maujpur, Delhi (ii) M/s Paras Enterprises, A-25; Gali No.2, ABlock,
Kaithwara, Delhi (iii). M/s Shri Balaji Enterprises, B-4,
Vardhman Cbmplex, C-Block, Yamuna Vihar, Delhi. The
plaintiff has tremendous goodwill and reputation in its said trade
mark/label in Delhi area which is being tarnished by defendants
impugned activities of the defendant in North East Delhi area, FAO(OS) 145/2016 Page 5 of 38
besides other parts of country. The plaintiff's said proprietary
rights are being prejudicially affected in Delhi area due to the
defendants' impugned activities. This Hon‘ble Court, as such, has
the jurisdiction to try and adjudicate the present suit by virtue of
Section 134 (2) of the Trade Marks Act 1999.‖
4. From paragraph 37 of the plaint, which has been set out above, it is
evident that the plaintiff / appellant has alleged that the defendants are
committing the alleged acts of infringement etc. within the jurisdiction of
this Court by conducting, soliciting, rendering the impugned services under
the impugned trade name within the territorial jurisdiction of this Court. In
addition to this averment, it has also been averred that the
plaintiff/appellant has its corporate office at Netaji Subhash Place,
Wazirpur District Center, Pitampura, New Delhi – 110034. It has also been
averred that the plaintiff also carries on its business under the said trade
mark/label through its dealers/distributors which are situated within the
territorial jurisdiction of this Court. It is also averred that the
plaintiff/appellant has tremendous goodwill and reputation in its said trade
mark/label in the Delhi area which is being tarnished by the defendants‘
impugned activities specifically in North-East Delhi apart from other parts
of the country. It is again averred that the plaintiff/appellant‘s said
proprietary rights are being prejudicially affected in the Delhi area due to FAO(OS) 145/2016 Page 6 of 38
the defendants‘ impugned activities. Consequently, it is averred that this
Court has jurisdiction to try and adjudicate the present suit by virtue of the
provisions of Section 134(2) of the Trade Marks Act, 1999.
5. However, the learned Single Judge accepted the plea taken by the
defendants/respondents in their Order 7 Rule 10 CPC application (IA
11034/2015) that this Court does not have territorial jurisdiction to entertain
the present suit and, therefore, directed that the plaint be returned.
6. The learned Single Judge came to the said conclusion on the basis of
his view that no part of the cause of action arose within the territorial
jurisdiction of Delhi. The learned Single Judge was also of the view that
the averments contained in paragraph 37 of the plaint were vague and bereft
of any particulars and did not amount to a statement of material facts as
contemplated under Order 6 Rule 2 CPC. The learned Single Judge
observed that – ―No doubt, the act of soliciting business would give rise to
cause of action, but the plaintiff has not made any specific averment as to
how the defendant is carrying on its business and, inter alia, soliciting work
within the jurisdiction of this court‖. The learned Single Judge was of the
view that merely by making vague and non-specific averments, which were
devoid of particulars, the plaintiff/ appellant could not call upon this Court FAO(OS) 145/2016 Page 7 of 38
to act upon the said averment on the premise that the plaintiff is not obliged
to lead evidence in his pleadings and that the plea of territorial jurisdiction
should not be decided at this stage and that the same should be left to be
decided only after the parties have led their evidence at trial. The learned
Single Judge was also concerned about the overflowing dockets and
workload of the Courts and, therefore, observed that the Courts are not
obliged to turn a blind eye to frivolous pleas and to swallow unfounded
averments. This led the learned Single Judge to observe that the Court is
not helpless to deal with shallow pleas at the threshold and nip such causes
in the bud. The learned Single Judge also observed that the plaintiff has not
pleaded the particulars of the cause of action which are claimed to have
arisen within the jurisdiction of the Court. According to the learned Single
Judge, it is one thing to say that a party may not be aware of definite
particulars of the facts pleaded on the date of filing of his pleadings,
although he had definite knowledge of the facts pleaded, and quite another
thing to say that he has no definite knowledge of the pleaded fact.
According to the learned Single Judge, the plaintiff/appellant had no
definite knowledge with regard to the facts of the cause of action having
arisen within the jurisdiction of this Court. The learned Single Judge noted
that the plaintiff had not filed any document in relation to the alleged FAO(OS) 145/2016 Page 8 of 38
―conducting, soliciting and rendering of the impugned services‖ under the
impugned trade name within the jurisdiction of this court. The learned
Single Judge further observed that there is no reason to subject the
defendants/respondents, who are admittedly located outside the jurisdiction
of this Court to continue to face the present proceedings in this Court when
the acts of the defendants, complained of by the plaintiff, have not been
undertaken within the jurisdiction of this Court and the defendants are also
not situated or working for gain within the jurisdiction of this Court.
7. We may also point out that the learned Single Judge referred to the
decision of the Supreme Court in the case of Indian Performing Rights
Society Limited v. Sanjay Dalia: (2015) 10 SCC 161 and gave his
interpretation of the said decision in the context of Section 134(2) of the
Trade Marks Act, 1999 in the following manner:-
―21. From the aforesaid decision in Indian Performing Rights
Society Limited (supra), and the decision cited by the Supreme
Court therein, in my opinion, the position that emerges is as
follows:
(a) By resort to Section 134 of the Trade Marks Act and
62 of the Copyright Act, the plaintiff may institute the
suit where the plaintiff voluntarily resides or carries
on business or personally works for gain. In the
context of corporation, which includes a company
incorporated under the Indian Companies Act, 1956,FAO(OS) 145/2016 Page 9 of 38
such a place would be the place where the registered
office of the company is situated. Thus, a company
can maintain a suit under Section 134 of the Trade
Marks Act, or Section 62 of the Copyright Act, at
the place where its registered office is situated,
irrespective of the fact, whether or not, cause of
action has arisen within the jurisdiction of the Court,
within whose jurisdiction the registered office of the
company is situated.
(b) Section 134 of the Trade Marks Act and Section 62
of the Copyright Act do not take away right of the
plaintiff to institute the suit by resort to Section 20
of the CPC, as Section 134 of the Trade Marks Act
and Section 62 of the Copyright Act provide an
additional forum to the plaintiff alleging
infringement of the registered trademark or
copyright, as the case may be. This is clear from
the inclusive definition of the expression, 'District
Court having jurisdiction' contained in Section 134
(2) of the Trade Marks Act and Section 62(2) of the
Copyright Act. Thus, the plaintiff may file a suit for
infringement of trademark/copyright either at the
place where the plaintiff voluntarily resides or
carries on business or personally works for gain by
resort to Section 62 of the Copyright Act and Section
134 of the Trade Marks Act, or at the place where,
'the defendant, or each of the defendants where there
are more than one, at the time of commencement of
the suit, actually and voluntarily resides, or carries
on business, or personally works for gain'. [Section
20 (a)]; or where any of the defendants, where there
are more than one, at the time of the commencement
of the suit, actually and voluntarily resides, or
carries on business, or personally works for gain, FAO(OS) 145/2016 Page 10 of 38
provided that in such case either the leave of the
Court is given, or the defendants who do not reside,
or carry on business, or personally work for gain, as
aforesaid, acquiesce in such institution [section
20(b)]; or the cause of action wholly or in part,
arises [section 20(c)].
(c) The plaintiff cannot file a suit alleging
infringement of trademark/copyright at a place
where it has a subordinate office, by resort to
Sections 134 of the Trade Marks Act or Section 62 of
the Copyright Act, unless one of the conditions of
Section 20 CPC are satisfied.‖
At this point itself, we may record that the observations of the learned
Single Judge in sub-paragraphs (a) and (b) are contrary to the interpretation
placed by a Division Bench of this Court in Ultra Home Construction
Private Limited v. Purushottam Kumar Chaubey and Others: FAO(OS)
494/2015 decided on 20.01.2016. Instead of following the said decision
and accepting the same, the learned Single Judge has from paragraphs 49 to
67 of the impugned judgment criticized the same and differed with the said
decision. This, the learned Single Judge, could not have done and was
required to follow the said Division Bench‘s decision in Ultra Home
(supra) without demur. We shall elaborate on this aspect of the matter
later.FAO(OS) 145/2016 Page 11 of 38
8. For now, it is sufficient to record that admittedly the appellant/
plaintiff‘s registered office is at Kanpur. The defendants also have their
office at Bulandshahar, U. P. It is also averred in the plaint that the plaintiff
has a corporate office in Delhi. The plaint also avers that since the
respondents were conducting, soliciting, rendering services under the
impugned trade name – GHARI TRADEMARK COMPANY – within the
jurisdiction of this Court, this Court would have the jurisdiction to entertain
the suit.
9. The learned Single Judge, in our view, correctly focused on the issue
of the location of the cause of action. But, in our view, the learned Single
Judge erred in concluding that no part of the cause of action had arisen in
Delhi.
10. It must be stated that it is a settled proposition of law that the
objection to territorial jurisdiction in an application under Order 7 Rule 10
CPC is by way of a demurrer. This means that the objection to territorial
jurisdiction has to be construed after taking all the averments in the plaint to
be correct. In Exphar SA and Another v. Eupharma Laboratories Limited
and Another: (2004) 3 SCC 688, the Supreme Court observed that when an FAO(OS) 145/2016 Page 12 of 38
objection to jurisdiction is raised by way of demurrer and not at the trial,
the objection must proceed on the basis that the facts, as pleaded by the
initiator of the impugned procedure, are true. The Supreme Court further
observed that the objection as to jurisdiction in order to succeed must
demonstrate that granted those facts, the Court does not have jurisdiction as
a matter of law. It is also a settled proposition of law that while considering
a plaint from the standpoint of Order 7 Rule 10 CPC, it is only the plaint
and the documents filed along with it, that need to be seen. The written
statement is not to be looked into at all.
11. The learned Single Judge has, while taking the view that the
averments contained in paragraph 37 of the plaint with regard to territorial
jurisdiction are vague and bereft of particulars, tried to bring in the
distinction between ‗material facts‘ and ‗particulars‘ and in doing so
considered the decisions of the Supreme Court in Udhav Singh v. Madhav
Rao Scindia: AIR 1976 SC 744; Mahendra Pal v. Ram Dass Malanger &
Ors.: (2000) 1 SCC 261; and Mahadeorao Sukaji Shivankar v. Ramaratan
Bapu and Ors.: (2004) 7 SCC 181. All these decisions were under the
Representation of the People Act, 1951 in the context of election petitions.
These decisions clearly indicate that Section 83(1)(a) corresponds to and is FAO(OS) 145/2016 Page 13 of 38
similar to the provisions of Order 6 Rule 2. It is also clear from the said
decisions that the provisions of Section 83(1)(b) of the Representation of
the People Act, 1951 corresponds to Order 6 Rules 4 and 6 CPC.
12. Section 83 of the Representation of the People Act, 1951 and the
provisions of Order 6 Rules 2, 4 and 6 are set out herein below:-
―83. Contents of petition.—(1) An election petition—
(a) shall contain a concise statement of the material facts
on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice
that the petitioner alleges, including as full a statement
as possible of the names of the parties alleged to have
committed such corrupt practice and the date and place
of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908
(5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice,
the petition shall also be accompanied by an affidavit in the
prescribed form in support of the allegation of such corrupt
practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be
signed by the petitioner and verified in the same manner as the
petition.‖
―ORDER VI - PLEADINGS GENERALLYFAO(OS) 145/2016 Page 14 of 38
xxxx xxxx xxxx xxxx
2. Pleading to state material facts and not evidence.— (1)
Every pleading shall contain, and contain only a statement in a
concise form of the material facts on which the party pleading
relies for his claim or defence as the case may be, but not the
evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into
paragraphs, numbered consecutively, each allegation being, so far
as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading
in figures as well as in words.‖
xxxx xxxx xxxx xxxx
―4. Particulars to be given where necessary— In all cases in
which the party pleading relies on any misrepresentation, fraud,
breach of trust, wilful default, or undue influence, and in all other
cases in which particulars may be necessary beyond such as are
exemplified in the forms aforesaid, particulars (with dates and
items if necessary) shall be stated in the pleading.‖
xxxx xxxx xxxx xxxx
―6. Condition precedent— Any condition precedent, the
performance or occurrence of which is intended to be contested,
shall be distinctly specified in his pleading by the plaintiff or
defendant, as the case may be; and, subject thereto, an averment of
the performance or occurrence of all conditions precedent
necessary for the case of the plaintiff or defendant shall be implied
in his pleading.
xxxx xxxx xxxx xxxx‖FAO(OS) 145/2016 Page 15 of 38
13. From the above provisions, it will be immediately seen that Order 6
Rule 2 is similar but not identical to the provisions of Section 83 (1)(a) of
the Representation of the People Act, 1951. The difference being the
expressions – ―and contain only‖ and ―but not the evidence by which they
are to be proved‖ – which occur in Order 6 Rule 2 CPC, but not in Section
83(1)(a).
14. There can be no quarrel with the observations of the Supreme Court
in the above mentioned three cases pertaining to the Representation of the
People Act, 1951 in the context of what are ‗material facts‘ as distinct from
‗material particulars‘.
15. In Virendra Kashinath Ravat v. Vinayak N. Joshi: (1999) 1 SCC
47, the Supreme Court made the following observations with regard to the
provisions of Order 6 Rule 2:-
―16. That apart, the averment extracted above cannot, by any
standards be dubbed as bereft of sufficiency in pleading. Under
Order 6 Rule 2(1) of the Code the requirement is the following:
―2. (1) Every pleading shall contain, and contain only,
a statement in a concise form of the material facts on
which the party pleading relies for his claim or
defence, as the case may be, but not the evidence by
which they are to be proved.‖FAO(OS) 145/2016 Page 16 of 38
17. The object of the Rule is twofold. First is to afford the
other side intimation regarding the particular facts of the case
so that they may be met by the other side. Second is to enable
the court to determine what is really the issue between the
parties. The words in the sub-rule ―a statement in a concise
form‖ are definitely suggestive that brevity should be adhered
to while drafting pleadings. Of course brevity should not be at
the cost of setting out necessary facts, but it does not mean
niggling in the pleadings. If care is taken in the syntactic
process, pleadings can be saved from tautology. Elaboration of
facts in pleadings is not the ideal measure and that is why the
sub-rule embodied the words ―and contain only‖ just before the
succeeding words ―a statement in a concise form of the
material facts‖.
18. This Court has indicated the position in Manphul
Singh v. Surinder Singh [(1973) 2 SCC 599 : AIR 1973 SC
2158]. On a subsequent occasion this Court has again reiterated
the principle in Ganesh Trading Co. v. Moji Ram [(1978) 2
SCC 91: AIR 1978 SC 484]. Following observations made in
the said decision are useful in this context: (SCC p. 93, para 2)
―2. Procedural law is intended to facilitate and
not to obstruct the course of substantive justice.
Provisions relating to pleadings in civil cases are
meant to give to each side intimation of the case of
the other so that it may be met, to enable courts to
determine what is really at issue between parties,
and to prevent deviations from the course which
litigation on particular causes of action must take.‖
(underlining added)
16. It is evident from the above decision that the object of the Rule is
two-fold. First of all, it affords an opportunity to the other side to meet the FAO(OS) 145/2016 Page 17 of 38
facts pleaded. Secondly, it enables the court to determine as to what is the
real issue between the parties. The observation of the Supreme Court that
elaboration of facts in pleadings is not the ideal measure and that is why the
words ―and contain only‖ just before the succeeding words ―a statement in
a concise form of the material facts‖ have been used, has to be kept in
mind. Thus, it is only the ‗material facts‘ and not the details thereof which
are required to be pleaded in order to comply with the mandate of Order 6
Rule 2.
17. The Supreme Court in Hari Shanker Jain v. Sonia Gandhi: (2001) 8
SCC 233 observed, once again in the context of Section 83(1)(a) of the
Representation of People Act, 1951, as under:-
―23. Section 83(1)(a) of RPA, 1951 mandates that an election
petition shall contain a concise statement of the material
facts on which the petitioner relies. By a series of decisions of
this Court, it is well settled that the material facts required to be
stated are those facts which can be considered as materials
supporting the allegations made. In other words, they must be
such facts as would afford a basis for the allegations made in
the petition and would constitute the cause of action as
understood in the Code of Civil Procedure, 1908. The
expression ―cause of action‖ has been compendiously defined to
mean every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the judgment
of court. Omission of a single material fact leads to an
incomplete cause of action and the statement of claim becomes FAO(OS) 145/2016 Page 18 of 38
bad. The function of the party is to present as full a picture of
the cause of action with such further information in detail as to
make the opposite party understand the case he will have to
meet. (See Samant N. Balkrishna v. George Fernandez [(1969)
3 SCC 238 : (1969) 3 SCR 603] , Jitendra Bahadur
Singh v. Krishna Behari [(1969) 2 SCC 433] .) Merely quoting
the words of the section like chanting of a mantra does not
amount to stating material facts. Material facts would include
positive statement of facts as also positive averment of a
negative fact, if necessary. In V.S. Achuthanandan v. P.J.
Francis [(1999) 3 SCC 737] this Court has held, on a
conspectus of a series of decisions of this Court, that material
facts are such preliminary facts which must be proved at the
trial by a party to establish existence of a cause of action.
Failure to plead ―material facts‖ is fatal to the election petition
and no amendment of the pleadings is permissible to introduce
such material facts after the time-limit prescribed for filing the
election petition.‖
 (underlining added)
It is important to note that merely quoting the words of a provision
like the chanting of a mantra does not amount to stating material facts.
As observed by the Supreme Court, material facts would include a
positive statement of facts as also a positive averment of a negative
fact, if necessary. It has further been elaborated that material facts are
such ‗preliminary‘ facts which must be proved at the trial by a party to
establish the existence of a cause of action. It, therefore, follows that
if a plaintiff were merely to state that a court has territorial jurisdiction FAO(OS) 145/2016 Page 19 of 38
to try and adjudicate a suit, that would not be sufficient. The plaintiff
would have to plead as a fact as to how that court would have
territorial jurisdiction. But, at the same time, the plaintiff would not
have to give details of that material fact or the evidence by which the
material fact is to be proved.
18. In M. Chinnasamy v. K. C. Palanisamy: (2004) 6 SCC 341, the
Supreme Court, while, once again, noting that the provisions of Order 6
Rule 2 were more or less the same as the provisions of Section 83(1)(a) of
the Representation of the People Act, 1951, examined the distinction
between ‗material facts‘ and ‗particulars‘ in the following manner:-
―15. It is not in dispute that in relation to an election petition,
the provisions of the Code of Civil Procedure apply. In terms of
Order 6 Rule 2 of the Code of Civil Procedure which is in pari
materia with clause (a) of sub-section (1) of Section 83 an
election petition must contain concise statement of material facts.
It is true as contended by Mr Mani that full particulars are
required to be set forth in terms of clause (b) of sub-section (1) of
Section 83 of the Act which relates to corrupt practice. The
question as to what would constitute material facts would,
however, depend upon the facts and circumstances of each case.
It is trite that an order of re-counting of votes can be passed when
the following ingredients are satisfied: (1) if there is a prima facie
case; (2) material facts therefor are pleaded; (3) the court shall
not direct re-counting by way of roving or fishing inquiry; and
(4) such an objection had been taken recourse to.
38. In Mohan Rawale v. Damodar Tatyaba [(1994) 2 SCC
392] this Court observed: (SCC pp. 398-99, paras 12-18)FAO(OS) 145/2016 Page 20 of 38
―12. Further, the distinction between ‗material facts‘
and ‗full particulars‘ is one of degree. The lines of
distinction are not sharp. ‗Material facts‘ are those
which a party relies upon and which, if he does not
prove, he fails at the time.
13. In Bruce v. Odhams Press Ltd. [(1936) 1 KB 697:
(1936) 1 All ER 287 (CA)] Scott, L.J. said:
‗The word ―material‖ means necessary for the
purpose of formulating a complete cause of action;
and if any one ―material‖ statement is omitted, the
statement of claim is bad.‘
The purpose of ‗material particulars‘ is in the context of
the need to give the opponent sufficient details of the
charge set up against him and to give him a reasonable
opportunity.
14. Halsbury refers to the function of particulars thus:
‗The function of particulars is to carry into operation
the overriding principle that the litigation between
the parties, and particularly the trial, should be
conducted fairly, openly and without surprises, and
incidentally to reduce costs. This function has been
variously stated, namely, either to limit the
generality of the allegations in the pleadings, or to
define the issues which have to be tried and for
which discovery is required.‘
(See: Pleadings, Vol. 36, para 38)
15. In Bullen and Leake and Jacob's ‗Precedents of
Pleadings‘, 1975 Edn. at p. 112 it is stated:
‗The function of particulars is to carry into operation
the overriding principle that the litigation between
the parties, and particularly the trial, should be
conducted fairly, openly and without surprises and FAO(OS) 145/2016 Page 21 of 38
incidentally to save costs. The object of particulars
is to ―open up‖ the case of the opposite party and to
compel him to reveal as much as possible what is
going to be proved at the trial, whereas, as Cotton,
L.J. has said, ―the old system of pleading at common
law was to conceal as much as possible what was
going to be proved at the trial‖.‘
16. The distinction between ‗material facts‘ and
‗particulars‘ which together constitute the facts to be
proved — or the facta probanda — on the one hand
and the evidence by which those facts are to be proved
—facta probantia — on the other must be kept clearly
distinguished. In Phillipps v. Phillipps [(1878) 4 QBD
127 : 48 LJQB 135 : 39 LT 556 (CA)] Brett, L.J. (QBD
at p. 133) said:
‗I will not say that it is easy to express in words
what are the facts which must be stated and what
matters need not be stated. … The distinction is
taken in the very rule itself, between the facts on
which the party relies and the evidence to prove
those facts. Erle, C.J. expressed it in this way. He
said that there were facts that might be called the
allegata probanda, the facts which ought to be
proved, and they were different from the evidence
which was adduced to prove those facts. And it was
upon the expression of opinion of Erle, C.J. that
Rule 4 [now Rule 7(1)] was drawn. The facts which
ought to be stated are the material facts on which the
party pleading relies.‘
17. Lord Denman, C.J. in Williams v. Wilcox [(1838) 8
Ad & El 314 : 112 ER 857] said:
‗It is an elementary rule in pleading that, when a
state of facts is relied it is enough to allege it simply,
without setting out the subordinate facts which are FAO(OS) 145/2016 Page 22 of 38
the means of proving it, or the evidence sustaining
the allegations.‘
18. An election petition can be rejected under Order 7
Rule 11(a) CPC if it does not disclose a cause of action.
Pleadings could also be struck out under Order 6 Rule
16, inter alia, if they are scandalous, frivolous or
vexatious. The latter two expressions meant cases
where the pleadings are obviously frivolous and
vexatious or obviously unsustainable.‖
(underlining added)
19. The Supreme Court reiterated its observations in Mohan
Rawale v. Damodar Tatyaba : (1994) 2 SCC 392 to the effect that the
distinction between ‗material facts‘ and ‗particulars‘, which together
constitute the facts to be proved — or the facta probanda — on the one
hand and the evidence by which those facts are to be proved —facta
probantia — on the other must be kept clearly distinguished. The principle
cannot, in our view, be put in better language than that used by Lord
Denman, C.J. in Williams v. Wilcox (supra). It was quoted with approval
by the Supreme Court and which is to the effect that when a state of facts is
relied, it is enough to allege it simply without setting out the subordinate
facts which are the means of proving it, or the evidence sustaining the
allegations.FAO(OS) 145/2016 Page 23 of 38
20. The distinction between ‗material facts‘ and ‗particulars‘ was, once
again, drawn by the Supreme Court in Harkirat Singh v. Amrinder Singh:
(2005) 13 SCC 511 in the following manner:-
―48. The expression ―material facts‖ has neither been defined
in the Act nor in the Code. According to the dictionary
meaning, ―material‖ means ―fundamental‖, ―vital‖, ―basic‖,
―cardinal‖, ―central‖, ―crucial‖, ―decisive‖, ―essential‖,
―pivotal‖, ―indispensable‖, ―elementary‖ or ―primary‖.
[Burton's Legal Thesaurus (3rd Edn.), p. 349.] The phrase
―material facts‖, therefore, may be said to be those facts upon
which a party relies for its claim or defence. In other words,
―material facts‖ are facts upon which the plaintiff's cause of
action or the defendant's defence depends. What particulars
could be said to be ―material facts‖ would depend upon the
facts of each case and no rule of universal application can be
laid down. It is, however, absolutely essential that all basic and
primary facts which must be proved at the trial by the party to
establish the existence of a cause of action or defence are
material facts and must be stated in the pleading by the party.‖
xxxx xxxx xxxx xxxx
―51. A distinction between ―material facts‖ and ―particulars‖,
however, must not be overlooked. ―Material facts‖ are primary
or basic facts which must be pleaded by the plaintiff or by the
defendant in support of the case set up by him either to prove
his cause of action or defence. ―Particulars‖, on the other hand,
are details in support of material facts pleaded by the party.
They amplify, refine and embellish material facts by giving
distinctive touch to the basic contours of a picture already
drawn so as to make it full, more clear and more informative. FAO(OS) 145/2016 Page 24 of 38
―Particulars‖ thus ensure conduct of fair trial and would not
take the opposite party by surprise.
52. All ―material facts‖ must be pleaded by the party in
support of the case set up by him. Since the object and purpose
is to enable the opposite party to know the case he has to meet
with, in the absence of pleading, a party cannot be allowed to
lead evidence. Failure to state even a single material fact, hence,
will entail dismissal of the suit or petition. Particulars, on the
other hand, are the details of the case which is in the nature of
evidence a party would be leading at the time of trial.‖
 (underlining added)
21. It is important to note the observations of the Supreme Court to the
effect that what ‗particulars‘ could be regarded to be ‗material facts‘ would
depend upon the facts of each case and no rule of universal application can
be laid down. It was, however, pointed out that it is essential that all basic
and primary facts which must be proved at the trial by the party to establish
the existence of a cause of action or defence are ‗material facts‘ and must
be stated in the pleading by the party.
22. As regards the meaning of the expression ‗cause of action‘, the
Supreme Court in Om Prakash Srivastava v. Union of India: (2006) 6
SCC 207 observed as under:-
―9. By ―cause of action‖ it is meant every fact, which, if
traversed, it would be necessary for the plaintiff to prove in FAO(OS) 145/2016 Page 25 of 38
order to support his right to a judgment of the Court. In other
words, a bundle of facts, which it is necessary for the plaintiff to
prove in order to succeed in the suit. (See Bloom Dekor
Ltd. v. Subhash Himatlal Desai [(1994) 6 SCC 322] ).‖
xxxx xxxx xxxx xxxx
―12. The expression ―cause of action‖ has acquired a
judicially settled meaning. In the restricted sense ―cause of
action‖ means the circumstances forming the infraction of the
right or the immediate occasion for the reaction. In the wider
sense, it means the necessary conditions for the maintenance of
the suit, including not only the infraction of the right, but also
the infraction coupled with the right itself. Compendiously, as
noted above, the expression means every fact, which it would
be necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment of the court. Every fact, which
is necessary to be proved, as distinguished from every piece of
evidence, which is necessary to prove each fact, comprises in
―cause of action‖. (See Rajasthan High Court Advocates'
Assn. v. Union of India[(2001) 2 SCC 294]).‖
 (underlining added)
The Supreme Court in the said decision clearly held that every fact, which
is necessary to be proved, as distinguished from every piece of evidence,
which is necessary to prove each fact, is comprised in the ‗cause of action‘.
23. Upon a consideration of the law as explained by the Supreme Court,
it is evident that Order 6 Rule 2 requires every pleading, which includes a
plaint, to contain, ―and contain only‖, a statement in concise form of the FAO(OS) 145/2016 Page 26 of 38
material facts on which the party pleading relies for his claim, but not the
evidence by which they are to be proved.
24. Coming back to the facts of the present case, the plaintiff/ appellant
in paragraph 36 set out the nature of the cause of action, namely, the
defendants/respondents were engaged in providing services under the
impugned trade name ‗GHARI TRADEMARK COMPANY‘. In paragraph
37 of the plaint, it has been averred, first of all, that this Court has the
territorial jurisdiction to try and adjudicate the present suit. But, this by
itself, would not be sufficient because merely quoting the words of a
section or the ingredients of a provision like the chanting of a mantra would
not amount to stating material facts as noted by the Supreme Court in Hari
Shanker Jain (supra). The material facts would, inter alia, have to include
positive statement of facts. In the present case, paragraph 37 of the plaint
contains the positive statement of fact that the defendants are committing
the impugned acts within the jurisdiction of this Court by ‗conducting,
soliciting, rendering the impugned services under the impugned trade
name‘. Further statements are made in the very same paragraph that the
plaintiff has its corporate office in Delhi and carries out its business activity
in Delhi under its trade mark/label through its dealers/ distributors located FAO(OS) 145/2016 Page 27 of 38
in Delhi. A specific averment has also been made that the plaintiff‘s
goodwill and reputation is being tarnished by the alleged activities of the
defendants, particularly in North-East Delhi as also in other parts of the
country and that the plaintiff/appellant‘s proprietary rights are being
prejudicially affected in the Delhi area due to the said activities. While
considering an application under Order 7 Rule 10 CPC, these statements
would have to be taken as correct. This would mean that this Court would
have jurisdiction to try and adjudicate the present suit by virtue of Section
134(2) of the Trade Marks Act, 1999 read with Section 20 CPC. The
material fact that has been pleaded by the plaintiff is that the defendants/
respondents are conducting, soliciting, rendering the impugned services
under the trade name – GHARI TRADEMARK COMPANY – within the
jurisdiction of this Court. In case the defendants/ respondents deny this
averment (as they have done in their written statement but, which cannot be
looked into at the stage of Order 7 Rule 10 CPC), the issue would arise as
to whether the respondents/defendants are conducting, soliciting, rendering
the impugned services under the trade name–GHARI TRADEMARK
COMPANY–within the jurisdiction of this Court? Obviously, the onus of
proof would lie on the appellant/ plaintiff and at the stage of trial, evidence
would have to be placed to substantiate this plea. But, at this stage, in our FAO(OS) 145/2016 Page 28 of 38
view, it is not necessary as Lord Denman, C.J.
in Williams v. Wilcox (supra), to set out the subordinate facts which are the
means of proving the material fact or the evidence to sustain the allegation
contained in the material fact. We, therefore, do not agree with the view
taken by the learned Single Judge that the plaint is bereft of any particulars
with regard to territorial jurisdiction. We may observe that the learned
Single Judge has also looked at the written statement and even at the
replication in the course of arriving at his decision. This, in the context of
an Order 7 Rule 10 CPC application, cannot be done as already pointed out
by us above. Taking the objection of territorial jurisdiction raised in the
Order 7 Rule 10 CPC application, by way of a demurrer, as it must, the
facts pleaded by the appellant/plaintiff must be taken to be true. Therefore,
if we take the statement of the appellant/plaintiff in paragraph 37 to the
effect that the defendants/respondents are committing the impugned acts
within the jurisdiction of this Court by conducting, soliciting, rendering the
impugned services under the impugned trade name to be correct, then, it
follows that this Court would have to proceed with the trial of the suit and
cannot return the plaint under Order 7 Rule 10 CPC. FAO(OS) 145/2016 Page 29 of 38
25. Once we hold that on the basis of the averments contained in the
plaint, a part of cause of action has arisen in the territory over which this
Court exercises jurisdiction, the condition prescribed in Section 20(c) CPC
stands satisfied. In addition, the condition stipulated in Section 134(2) of
the Trade Marks Act, 1999 is also satisfied because the plaintiff has averred
that it has a corporate office in Delhi and part of the cause of action has
allegedly also arisen in Delhi. Therefore, either way, this Court, in our
view, would have jurisdiction to entertain the present suit. The
observations and the findings of the learned Single Judge to the contrary,
are wrong and are set aside.
26. We now come to the issue pertaining to the learned Single Judge
differing with the view taken by a Division Bench of this Court in Ultra
Home (supra). Before we proceed further, it may be pertinent to note that a
Special Leave Petition being SLP (Civil) No. 7551/2016 had been preferred
against the said decision of the Division Bench in Ultra Home (supra).
The said Special Leave Petition was called on for hearing on 08.04.2016,
when, upon hearing the counsel for the parties, the Supreme Court did not
find any merit in the petition and dismissed the same.FAO(OS) 145/2016 Page 30 of 38
27. Judicial discipline and propriety requires that a Single Bench should
follow the decision of a Division Bench without demur as the Single Bench
is bound by it. It is all the more so when the Division Bench decision is of
an appellate court and the Single Bench happens to be the trial court. It is a
matter of judicial propriety that the hierarchical system is followed. A
decision of an appellate court may in the view of the trial court be right or
wrong, but the trial court has no option but to follow it. In fact, a Single
Judge cannot even refer a matter for decision by a Bench comprising of
more than two judges. Furthermore, the Single Judge can only refer a
matter to be placed before a Division Bench of two judges if the Single
Judge finds that there is a conflict of decisions of Single Benches. If there
are conflicting decisions of Division Benches of co-equal strength, it is, of
course, open to the Single Judge to follow the later decision. But, in such a
situation, the learned Single Judge cannot seek a reference to a Full Bench
of three or more Judges. That would fall within the domain of a Division
Bench. The Supreme Court in Pradip Chandra Parija v. Pramod Chandra
Patnaik: (2002) 1 SCC 1 observed as under:-
―5. The learned Attorney-General submitted that a
Constitution Bench judgment of this Court was binding on
smaller Benches and a judgment of three learned Judges was
binding on Benches of two learned Judges — a proposition that
learned counsel for the appellants did not dispute. The learned FAO(OS) 145/2016 Page 31 of 38
Attorney-General drew our attention to the judgment of a
Constitution Bench in Sub-Committee of Judicial
Accountability v. Union of India [(1992) 4 SCC 97] where it has
been said that ―no coordinate Bench of this Court can even
comment upon, let alone sit in judgment over, the discretion
exercised or judgment rendered in a cause or matter before
another coordinate Bench‖ (SCC p. 98, para 5). The learned
Attorney-General submitted that the appropriate course for the
Bench of two learned Judges to have adopted, if it felt so
strongly that the judgment in Nityananda Kar [1991 Supp (2)
SCC 516 : 1992 SCC (L&S) 177 : (1992) 19 ATC 236 : 1990
Supp (2) SCR 644] was incorrect, was to make a reference to a
Bench of three learned Judges. That Bench of three learned
Judges, if it also took the same view of Nityananda Kar [1991
Supp (2) SCC 516: 1992 SCC (L&S) 177 : (1992) 19 ATC 236:
1990 Supp (2) SCR 644] , could have referred the case to a
Bench of five learned Judges.
6. In the present case the Bench of two learned Judges has,
in terms, doubted the correctness of a decision of a Bench of
three learned Judges. They have, therefore, referred the matter
directly to a Bench of five Judges. In our view, judicial
discipline and propriety demands that a Bench of two learned
Judges should follow a decision of a Bench of three learned
Judges. But if a Bench of two learned Judges concludes that an
earlier judgment of three learned Judges is so very incorrect that
in no circumstances can it be followed, the proper course for it
to adopt is to refer the matter before it to a Bench of three
learned Judges setting out, as has been done here, the reasons
why it could not agree with the earlier judgment. If, then, the
Bench of three learned Judges also comes to the conclusion that
the earlier judgment of a Bench of three learned Judges is
incorrect, reference to a Bench of five learned Judges is
justified.‖
 (underlining added)FAO(OS) 145/2016 Page 32 of 38
28. In Sundeep Kumar Bafna v. State of Maharashtra: (2014) 16 SCC
623 : 2014 SCC 257, the Supreme Court held as under:-
―21. Recently, in Dinesh Kumar [State of Haryana v. Dinesh
Kumar, (2008) 3 SCC 222 : (2008) 1 SCC (Cri) 722], this
conundrum came to be considered again. This Court adhered to
the Niranjan Singh [Niranjan Singh v. Prabhakar Rajaram
Kharote, (1980) 2 SCC 559 : 1980 SCC (Cri) 508] dicta (as it
was bound to do) viz. that a person can be stated to be in
judicial custody when he surrendered before the court and
submits to its directions. We further regretfully observe that the
impugned judgment [Sundeep Kumar Bafna v. State of
Maharashtra, Criminal Bail Application No. 206 of 2014, order
dated 6-2-2014 (Bom)] is repugnant to the analysis carried out
by two coordinate Benches of the High Court of Bombay itself,
which were duly cited on behalf of the appellant. The first one
is reported as Balkrishna Dhondu Rani v. Manik Motiram
Jagtap [Balkrishna Dhondu Rani v.Manik Motiram Jagtap,
(2005) 3 Mah LJ 226 : 2005 Supp Bom CR (Cri) 270] which
applied Niranjan Singh [Niranjan Singh v. Prabhakar Rajaram
Kharote, (1980) 2 SCC 559 : 1980 SCC (Cri) 508] ; the second
is by a different Single Bench, which correctly applied the first.
In the common law system, the purpose of precedents is to
impart predictability to law, regrettably the judicial indiscipline
displayed in the impugned judgment [Sundeep Kumar
Bafna v. State of Maharashtra, Criminal Bail Application No.
206 of 2014, order dated 6-2-2014 (Bom)], defeats it. If the
learned Single Judge who had authored the impugned judgment
[Sundeep Kumar Bafna v.State of Maharashtra, Criminal Bail
Application No. 206 of 2014, order dated 6-2-2014 (Bom)]
irrepressibly held divergent opinion and found it unpalatable, all
that he could have done was to draft a reference to the Hon'ble
the Chief Justice for the purpose of constituting a larger Bench;
whether or not to accede to this request remains within the
discretion of the Chief Justice. However, in the case in hand,
this avenue could also not have been traversed since Niranjan
Singh [Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2
SCC 559 : 1980 SCC (Cri) 508] binds not only co-equal FAO(OS) 145/2016 Page 33 of 38
Benches of the Supreme Court but certainly every Bench of any
High Court of India. Far from being per incuriam, Niranjan
Singh [Niranjan Singh v.Prabhakar Rajaram Kharote, (1980) 2
SCC 559 : 1980 SCC (Cri) 508] has metamorphosed into the
structure of stare decisis, owing to it having endured over two
score years of consideration, leading to the position that even
larger Benches of this Court should hesitate to remodel its
ratio.‖
 (underlining added)
29. In Union of India v. Godfrey Philips India Ltd:, (1985) 4 SCC 369,
the Supreme Court observed as under:-
―12. There can therefore be no doubt that the doctrine of
promissory estoppel is applicable against the Government in the
exercise of its governmental, public or executive functions and
the doctrine of executive necessity or freedom of future executive
action cannot be invoked to defeat the applicability of the
doctrine of promissory estoppel. We must concede that the
subsequent decision of this Court in Jit Ram v. State of
Haryana [(1981) 1 SCC 11 : AIR 1980 SC 1285 : (1980) 3 SCR
689] takes a slightly different view and holds that the doctrine of
promissory estoppel is not available against the exercise of
executive functions of the State and the State cannot be prevented
from exercising its functions under the law. This decision also
expresses its disagreement with the observations made in Motilal
Sugar Mills case [(1979) 2 SCC 409 : 1979 SCC (Tax) 144 :
(1979) 2 SCR 641] that the doctrine of promissory estoppel
cannot be defeated by invoking the defence of executive
necessity, suggesting by necessary implication that the doctrine
of executive necessity is available to the Government to escape
its obligation under the doctrine of promissory estoppel. We find
it difficult to understand how a Bench of two Judges in Jit Ram
case [(1981) 1 SCC 11: AIR 1980 SC 1285: (1980) 3 SCR 689]
could possibly overturn or disagree with what was said by
another Bench of two Judges in Motilal Sugar Mills case [(1979)
2 SCC 409: 1979 SCC (Tax) 144: (1979) 2 SCR 641]. If the
Bench of two Judges in Jit Ram case [(1981) 1 SCC 11: AIR FAO(OS) 145/2016 Page 34 of 38
1980 SC 1285: (1980) 3 SCR 689] found themselves unable to
agree with the law laid down in Motilal Sugar Mills case [(1979)
2 SCC 409: 1979 SCC (Tax) 144 : (1979) 2 SCR 641] , they
could have referred Jit Ram case [(1981) 1 SCC 11: AIR 1980
SC 1285: (1980) 3 SCR 689] to a larger Bench, but we do not
think it was right on their part to express their disagreement with
the enunciation of the law by a coordinate Bench of the same
Court in Motilal Sugar Mills [(1979) 2 SCC 409: 1979 SCC
(Tax) 144 : (1979) 2 SCR 641]. We have carefully considered
both the decisions in Motilal Sugar Mills case [(1979) 2 SCC
409: 1979 SCC (Tax) 144: (1979) 2 SCR 641] and Jit Ram
case [(1981) 1 SCC 11: AIR 1980 SC 1285: (1980) 3 SCR 689]
and we are clearly of the view that what has been laid down
inMotilal Sugar Mills case [(1979) 2 SCC 409: 1979 SCC (Tax)
144: (1979) 2 SCR 641] represents the correct law in regard to
the doctrine of promissory estoppel and we express our
disagreement with the observations in Jit Ram case [(1981) 1
SCC 11: AIR 1980 SC 1285: (1980) 3 SCR 689] to the extent
that they conflict with the statement of the law in Motilal Sugar
Mills case [(1979) 2 SCC 409: 1979 SCC (Tax) 144: (1979) 2
SCR 641] and introduce reservations cutting down the full width
and amplitude of the propositions of law laid down in that case.‖
 (underlining added)
30. In Union of India v. Raghubir Singh:(1989) 2 SCC 754, the
Supreme Court observed as under:-
―27. What then should be the position in regard to the effect of
the law pronounced by a Division Bench in relation to a case
raising the same point subsequently before a Division Bench of
a smaller number of Judges? There is no constitutional or
statutory prescription in the matter, and the point is governed
entirely by the practice in India of the courts sanctified by
repeated affirmation over a century of time. It cannot be
doubted that in order to promote consistency and certainty in
the law laid down by a superior Court, the ideal condition
would be that the entire Court should sit in all cases to decide FAO(OS) 145/2016 Page 35 of 38
questions of law, and for that reason the Supreme Court of the
United States does so. But having regard to the volume of work
demanding the attention of the Court, it has been found
necessary in India as a general rule of practice and convenience
that the Court should sit in Divisions, each Division being
constituted of Judges whose number may be determined by the
exigencies of judicial need, by the nature of the case including
any statutory mandate relative thereto, and by such other
considerations which the Chief Justice, in whom such authority
devolves by convention, may find most appropriate. It is in
order to guard against the possibility of inconsistent decisions
on points of law by different Division Benches that the Rule has
been evolved, in order to promote consistency and certainty in
the development of the law and its contemporary status, that the
statement of the law by a Division Bench is considered binding
on a Division Bench of the same or lesser number of Judges.
This principle has been followed in India by several generations
of Judges. We may refer to a few of the recent cases on the
point. In John Martin v. State of West Bengal [(1975) 3 SCC
836 : 1975 SCC (Cri) 255 : (1975) 3 SCR 211] , a Division
Bench of three-Judges found it right to follow the law declared
in Haradhan Saha v.State of West Bengal [(1975) 3 SCC 198 :
1974 SCC (Cri) 816 : (1975) 1 SCR 778] , decided by a
Division Bench of five Judges, in preference to Bhut Nath
Mate v. State of West Bengal [(1974) 1 SCC 645 : 1974 SCC
(Cri) 300 : AIR 1974 SC 806] decided by a Division Bench of
two Judges. Again in Indira Nehru Gandhi v. Raj Narain [1975
Supp SCC 1 : (1976) 2 SCR 347] , Beg, J. held that the
Constitution Bench of five Judges was bound by the
Constitution Bench of thirteen Judges in Kesavananda
Bharati v. State of Kerala [(1973) 4 SCC 225 : 1973 Supp SCR
1]. In Ganapati Sitaram Balvalkar v. Waman Shripad
Mage [(1981) 4 SCC 143] , this Court expressly stated that the
view taken on a point of law by a Division Bench of four
Judges of this Court was binding on a Division Bench of threeJudges
of the Court. And in Mattulal v. Radhe Lal [(1974) 2
SCC 365: (1975) 1 SCR 127], this Court specifically observed
that where the view expressed by two different Division
Benches of this Court could not be reconciled, the FAO(OS) 145/2016 Page 36 of 38
pronouncement of a Division Bench of a larger number of
Judges had to be preferred over the decision of a Division
Bench of a smaller number of Judges. This Court also laid down
inAcharya Maharajshri Narandraprasadji Anandprasadji
Maharaj v. State of Gujarat[(1975) 1 SCC 11: (1975) 2 SCR
317] that even where the strength of two differing Division
Benches consisted of the same number of Judges, it was not
open to one Division Bench to decide the correctness or
otherwise of the views of the other. The principle was
reaffirmed in Union of India v. Godfrey Philips India
Ltd. [(1985) 4 SCC 369: 1986 SCC (Tax) 11] which noted that
a Division Bench of two Judges of this Court in Jit Ram Shiv
Kumar v. State of Haryana [(1981) 1 SCC 11: (1980) 3 SCR
689] had differed from the view taken by an earlier Division
Bench of two Judges in Motilal Padampat Sugar Mills v. State
of U.P. [(1979) 2 SCC 409: 1979 SCC (Tax) 144: (1979) 2 SCR
641] on the point whether the doctrine of promissory estoppel
could be defeated by invoking the defence of executive
necessity, and holding that to do so was wholly unacceptable
reference was made to the well accepted and desirable practice
of the later Bench referring the case to a larger Bench when the
learned Judges found that the situation called for such reference.
28. We are of opinion that a pronouncement of law by a
Division Bench of this Court is binding on a Division Bench of
the same or a smaller number of Judges, and in order that such
decision be binding, it is not necessary that it should be a
decision rendered by the Full Court or a Constitution Bench of
the Court. We would, however, like to think that for the purpose
of imparting certainty and endowing due authority decisions of
this Court in the future should be rendered by Division Benches
of at least three-Judges unless, for compelling reasons, that is
not conveniently possible.‖
 (underlining added)
31. In this backdrop, it is indeed unfortunate that the learned Single
Judge has embarked upon an adventure to disagree with the decision of a 
Division Bench in Ultra Home (supra), albeit, ‗as a student of law‘. It is
not open to a Single Judge (and more particularly a trial court) to differ
from or critically appraise a decision of a Division Bench (and more
particularly of an appellate court). Once it is recognized that the decision
of the Division Bench is binding on the Single Judge, there is no need to
express any difference of opinion or disagreement or purport to give
reasons for the said difference of opinion or to even suggest that the
decision of the Division Bench may need re-consideration. That is only in
the domain of another Bench of co-equal strength. In any event, the
findings and observations of the learned Single Judge with respect to its
interpretation of the Supreme Court decision in Sanjay Dalia (supra), to the
extent they are contrary to the decision of the Division Bench in Ultra
Home (supra), are set aside.
32. Lastly, and with some anguish, we may observe that we find it
difficult to comprehend as to why the learned Single Judge went to such
lengths so as to devote 18 paragraphs spanning from page 29 to page 43 of
the impugned judgment to record his difference of opinion with the
decision in Ultra Home (supra) when, according to the learned Single
Judge himself, the so-called difference of opinion did not come in his way 
in deciding the present case as it had ‗no relevance‘, according to him, to
the present case. Such an unnecessary pursuit and adventure has been
undertaken by the learned Single Judge while at the same time the learned
Single Judge rued over the fact of overflowing dockets and heavy
workloads of courts. Why was such a fruitless and futile ‗academic‘
exercise undertaken by the learned Single Judge? This would remain a
mystery?
33. In sum, for the reasons discussed, the impugned judgment of the
learned Single Judge cannot be sustained. The same is set aside. The suit
shall now be listed before the concerned Bench as per Roster on
17.08.2016, in the first instance, for further proceedings.
BADAR DURREZ AHMED, J
 SANJEEV SACHDEVA, J
AUGUST 03, 2016

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