CASE NO.: Appeal (civil) 1990 of 1995 PETITIONER: MATHURAM AGRAWAL RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT: 28/10/1999 BENCH: S.P. BHARUCHA & B.N. KIRPAL & V.N. KHARE & S.S.M. QUADRI & D.P. MOHAPATRA JUDGMENT:

JUDGMENT 1999 ( 4 ) Suppl. SCR 195 D.P. MOHAPATRA, J. This case calls in question the vires of proviso to clause (b) of sub-section (2) of Section 127-A of Madhya Pradesh Municipalities Act, 1961 (for short the 'Act') and the levy and collection of property tax in respect of the buildings owned by the appellant.

The relevant facts of the case, shorn of unnecessary details, may be stated as under:

The appellant and respondents 4 to 7 are joint owners of 13 separate items of house properties bearing No. 56/2(1) to 56(2)/13 situated in ward No. 15 of Raigarh Municipal area. The assessment proceeding for the purpose of levying property tax was initiated under the provisions of the Madhya Pradesh Municipalities Act, 1961 (M.P. Act No. 37 of 1961) (hereinafter referred to as 'the Act') by <ORG>, Raigarh, respondent no.2 herein. The Municipality purporting to invoke the proviso to the section 127-A(2) of the Act aggregated the annual letting value of all the buildings and levied property tax on the deemed annual letting value so aggregated. The assessment order was followed by the demand notice.

Feeling aggrieved by the levy and collection of property tax in the manner aforementioned, the appellant and respondents 4 to 7 preferred appeal under Section 139 of the Act before the Civil Judge Class-II, Raigarh. The appellate authority allowed the appeal and quashed the assessment order and the demand notice. On a revision petition being filed by the Municipality the District Judge, Raigarh allowed the revision, set aside the order of the appellate authority and confirmed the order of assessment made by the concerned authority.

The appellant and the respondents 4 to 7 filed the Writ Petition in <ORG> challenging the order of assessment, inter alia, on the grounds that it was not in conformity with the provisions of the Act. They also challenged the constitutional validity of the proviso to sub-clause (b) of Section 127(A) (2) of the Act. By the impugned judgment <ORG> of <ORG> rejected the contentions raised by the petitioners including the challenge to the constitutional validity of the proviso to Section 127(A)(2) and confirmed the assessment order of the municipality and dismissed the writ petition. <ORG> placed reliance mainly on the decision of this Court in <CITATION> .,  1 SCC 361 and its own decision in the case of <CITATION> , (1990) M.P.L.J. 28. Thereafter one of the petitioners in the Writ Petition, <NAME>, filed this appeal challenging the judgment of <ORG>.

When the case was taken up by a Bench of two learned Judges of this Court a submission was made on behalf of the petitioner that in the light of the decision of this Court in the case of Administrator, Municipal Corporation, Bilaspur (Supra) decided by a Bench of three learned Judges of this Court construing Section 127(1)(2) of the Act the question as to the constitutional validity of that proviso arises for consideration. Taking note of the said submission the bench passed the order dated 13.2.95, relevant portion of which reads as follows:

"In view of the construction made by a Bench of three learned Judges in the above quoted decision, the question of considering the constitutional validity of the provision does arise. However, the question for consideration also is whether the alternative construction which would support the constitutional validity of the provision is to be preferred and is also available on the language of the statute. It is, therefore, appropriate that the matter is considered by a Bench of five learned Judges."

The question that arises for consideration is when several items of properties (houses, buildings or lands) within the municipality, the annual letting value of each of which dose not exceed Rs. 1,800 per annum, are owned by one person, then, is the owner liable to pay property tax for such properties.

Since determination of the question largely depends on interpretation of Section 127 (A) and its interaction with other relevant provisions of the Act it would be convenient to quote the relevant statutory provisions before proceeding to consider the merits of the case.

S.126 Definition of annual letting value - In this Chapter, the expression "annual letting value" shall mean:

(i) where any building or land is let out, the annual rent for which it is actually let out;

(ii) where the rent of any building has been determined under the Madhya Pradesh Accommodation Control Act, 1955 (23 of 1955), the annual rent as so determined; and

(iii) in any other case, the annual rent for which any building or land exclusive of furniture or machinery contained or situated therein or thereon, might reasonably be expected to let from year to year, and shall include any payment made or agreed to be made by a tenant to the owner of the building or land on account of occupation taxes, insurance or other charges incidental to the tenancy;

Provided that if it appears to the <ORG> that the annual rent of any building or land is much lower than the annual rent for which it might reasonably be expected to let at the time of assessment, such letter rent shall be deemed to be the annual letting value in respect of such building or land."

Section 127 reads as follows:

"127 Taxes which may be imposed (1) A Council may, from time to time and subject to the provisions of this Chapter, and any general or Special order which the State Government may make in this behalf, impose in the whole or in any part of the Municipality any of the following taxes, for the purposes of the Act, namely:-

(0 a tax payable by the owner of houses, buildings or lands situated within the limits of Municipality with reference to annual letting value of the house, building or land called property tax:

127(A) Imposition of property tax (1) Notwithstanding anything contained in this Chapter, as and from the financial year 1976-77, there shall be charged, levied and paid for each financial year a tax on the lands or buildings or both situate in a Municipality other than Class IV Municipality at the rate specified in the table below:

TABLE (0 where the annual letting value 6 per centum of the annual exceeds Rs. 1800 but does not letting value exceed Rs. 6000 (ii) where the annual letting value 8 1/3 per centum of the exceeds Rs. 6000 but does not annual letting value exceed Rs. 12000 (iii) where the annual letting value 10 per centum of the annual exceeds Rs. 12000 but does not letting value exceed Rs. 18000 (iv) where the annual letting value 15 per centum of the annual exceeds Rs. 18000 but does not letting value exceed Rs. 24000 (v) where the annual letting value 20 per centum of the annual exceeds Rs. 24000 letting value

(2) The property tax levied under sub-section (1) shall not be leviable in respect of the following properties, namely:-

(a) building and lands owned by or vesting in-(i) the Union Government

(ii) <ORG>; (iii) the Council;

(b) buildings and lands the annual letting value of which does not exceed eighteen hundred rupees:

Provided that if any such building or land in the ownership of a person who owns any other building or land in the same Municipality, the annual letting value of such building or land shall for the purpose of this clause, be deemed to be the aggregate annual letting value of all buildings or lands owned by him in the Municipality.

(Emphasis supplied) xxx xxx xxx"

From the statutory provisions quoted above it is clear that the incidence of the tax is the house, building or land situated within the limits of the municipality. The tax is to be paid by the owner(s) of the house, building or land. The amount of tax to be paid by the owner(s) is to be determined with reference to the annual letting value of the house, building or land in question. The manner of determination of the annual letting value is prescribed in section 126 of the Act. The Table in Section 127 , which provides for the rate at which the tax is to be levied, starts with property the annual letting value of which exceeds Rs. 1,800 per annum but does not exceed Rs. 6,000, and in such a case the tax is to be levied at 6 per centum of the annual letting value. As the annual letting value of the property escalates the rate of tax increases. The very fact that no rate of tax is prescribed in the Table for a property the annual letting value of which is less than Rs. 1800 clearly indicates the intention of the <ORG> not to levy the tax on such properties. This position is further clarified in clause (b) of subsection (1) of Section 127 in which it is laid down that house, building and lands annual letting value of which does not exceed Rs. 1800 are exempt from property tax.

On a fair reading of the proviso to section 127 (A)(2)(b) it is clear that in respect of any building or land whose letting value is less than Rs. 1800 which is owned by a person who owns any other building or land in the same municipality, the annual letting value of such building or land shall be deemed to be the aggregate annual letting value of all building or lands owned by him in the municipality. The provision also makes it clear that this exception is meant for the purpose of this clause i.e., clause (b) of subsection (2). It follows, therefore, that the exemption to the levy under subsection (1) of section 127(A) will not be available in a situation to which the proviso applies.

Then the further question for determination is whether such a building or land, annual letting value of which does not exceed Rs. 1800, automatically becomes liable for payment of tax and if so what is the rate of tax in such a case. The provision in sub-section (1) of section 127(A) , which is a charging section, makes no provision regarding the rate at which the tax is to be paid in case the building or land in question annual letting value of which is less than Rs. 1800 is to be taxed.

Another question that arises for consideration in this connection is whether sub-section (1) of Section 127-A and the proviso to sub- section 2

(b) should be construed together and the annual letting values of all the buildings owned by a person to be taken together for determining the amount to be paid as tax in respect of each building. In our considered view this position cannot be accepted. The intention of the <ORG> in a taxation statute is to be gathered from the language of the provisions particularly where the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is not the economic results sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does not follow from the plain, unambiguous language of the statute. Words cannot be added to or substituted so as to give a meaning to the statute which will serve the spirit and intention of the legislature. The statute should clearly and unambiguously convey the three components of the tax law i.e., the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. If there is any ambiguity regarding any of these ingredients in a taxation statute then there is no tax in law. Then it is for the legislature to do the needful in the matter.

In the case of <CITATION> , <ORG> quoted with approval the following passage from the opinion of Lord Russel of Killowen in Inland Revenue Commissioners v. Duke of Westminster, (1936) A.C. 1:

"I confess that I view with disfavour the doctrine that in taxation cases the subject is to be taxed if in accordance with a <ORG>'s view of what it considers the substance of the transaction, the <ORG> thinks that the case falls within the contemplation or spirit of the statute. The subject is not taxable by inference or by analogy, but only by the plain words of a statute applicable to the facts and circumstances of his case. As Lord <NAME> said many years ago in (1869) 4 H L 100(2) at p. 122: "As 1 understand the principle of all fiscal legislation it is this" If the person sought to be taxed conies within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand if the <ORG>, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however, apparently within the spirit of the law the case might otherwise appear to be."

In the case of <NAME> (INSPECTOR OF TAXES) v. <NAME>. 1948 The All England Law Reports page 1, Lord <NAME> in his opinion at page 5 observed:

"My Lords, there is a maxim of income tax law which, though it may sometimes be over-stressed, yet ought not to be forgotten. It is that the subject is not to be taxed unless the words of the taxing statute ( unambiguously impose the tax on him. It is necessary that this maxim should on occasion be reasserted and this is such an occasion."

In Administrator, <ORG>, Bilaspur v.. <NAME>, Advocate and another (supra) this <ORG> while accepting the position that each building is a unit for the purpose of taxation and that there I is no provision for taxation in respect of a building having annual letting value less than Rs. 1800 and that the deeming proviso to clause (b) of sub- section (2) as expressly stated is "for the purpose of this claluse", held that since the aggregation of annual letting value of all buildings or lands is permitted, then, all such buildings or lands have to be taken as one unit for the purpose of taxation. The <ORG> was of the view that any other construction would render the proviso nugatory and defeat the object of the Act.

This construction, in our considered view, amounts to supplementing the charging section by including something which the provision does not state. The construction placed on the said provision does not flow from the plain language of the provision. The proviso requires the exempted property to be subjected to tax and for the purpose of valuing that property alone the value of the other properties is to be taken into consideration. But, if in doing so, the said property becomes taxable, the Act does not provide at what rate it would be taxable. One cannot determine the ratable value of the small property, by aggregating and adding the value of other properties, and arrive at a figure which is more than possibly the value of the property itself. Moreover, what rate of tax is to be applied to such a property is also not indicated.

Take, for instance, a case where a person owns 10 buildings, 8 of which are small ones fetching annual rental value of Rs. 1,500 each and the other 2 fetch annual rental value of Rs. 60, 000 each; then applying the ratio of Administrator <ORG>, Bilaspur (supra) the annual rental value of each of the small buildings will come to Rs. 1, 32,000 and the owner will have to pay tax according to the highest slab for each building. Such an intention on the part of the legislature cannot be accepted, particularly in the absence of specific provision in the charging section.

In view of the discussions in the foregoing paragraphs the proviso to clause (b) of sub-section(2) of section 127-A of the Act being contrary to the charging section is struck-down as ultra vires.

The appeal is allowed and the judgment of <ORG> under challenge is set aside. There will, however, be no order as to costs.

V.S.S.

Appeal allowed.


PETITIONER: COMMISSIONER OF SALES TAX, LUCKNOW Vs. RESPONDENT: D. S. BIST & ORS. DATE OF JUDGMENT11/09/1979 BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. PATHAK, R.S. CITATION: 1980 AIR 169 1980 SCR (1) 593 1979 SCC (4) 741 CITATOR INFO : D 1988 SC1435 (38) ACT: U. P. Sales Tax Act, 1948-S. 2(i) proviso-Tea leaves after drying and processing-Whether remained agricultural produce not exigible to sales tax under the proviso. HEADNOTE: The proviso to s. 2(i) of the U.P. Sales Tax Act, 1948 excludes from the term "turnover" proceeds of sale of agricultural or horticultural produce grown by a person on any land in which he has interest. The assessee, who was an agriculturist, owned tea gardens in the State. After being plucked from tea shrubs tea leaves are withered in shade in rooms, crushed by hand or foot, roasted for 15 minutes, then covered by wet sheets for the purpose of generating fermentation, graded and finally roasted again with charcoal for obtaining flavour and colour. The final product is sold in the market. Before <ORG> the assessee contended that tea leaves sold by him were agricultural produce grown by him on his own land and that, therefore, the sale of tea effected by him was exempt from sales tax under the proviso to s. 2(i) of the Act. <ORG> rejected the assessee's contention. <ORG> answered the reference in favour of the assessee and against the revenue. Dismissing the appeal, ^ HELD: (per <NAME>): <ORG> was right in holding that sales of tea leaves were not exigible to sales tax. The commodity which was sold was not different from the commodity which was produced in agriculture and, therefore, the proviso to s. 2(i) is attracted. [600 F, 602 E] 1. Almost every kind of agricultural produce has to undergo some kind of processing or treatment by the agriculturist himself either on the farm or elsewhere in order to make it non-perishable, transportable and marketable. Some minimal process is necessary to be applied to many varieties of agricultural produce. The test in these cases is to see whether in relation to that agricultural produce the process applied was minimal or was so cumbersome and long drawn out that either in common parlance or in the market or even otherwise no one would treat the produce as an agricultural produce. The mere fact that in the case of a particular product the process is a bit longer or even a bit complicated would not rob the produce of its character of being an agricultural produce. [597 B-C; F-G] 2. All the processes enumerated by <ORG> were necessary for the purpose of saving the tea leaves from perishing, making them fit for transporting and marketing. The processes applied were all within the region of minimal processes and at no point of time they crossed that limit and robbed the leaves of their character of being and continuing to be agricultural produce. [598 C-E] 594 Vol. 21 Encyclopaedia Britannica (1968 edition), referred to. <CITATION> 17 S.T.C., 316, The State of Madras v. <ORG> 19 S.T.C., 129 referred to. <CITATION> 7 S.T.C., 541, <CITATION> . 12 S.T.C. 519, <CITATION> . 58 I.T.R., 612 <CITATION> 20 S.T.C., 417, Commissioner of Sales Tax, U.P., <NAME> v. <NAME> and Sons, 21 S.T.C., 17 approved. <CITATION> A.I.R. 1921 Calcutta, 40 distinguished. (<NAME>, J. concurring). <CITATION> A.I.R. 1921 Calcutta, 40 <ORG> was of opinion that while process of selecting and plucking tea leaves from the tea shrubs could be deemed to be agriculture, the subsequent process which included drying and rolling of the leaf was a manufacturing process. If <ORG> could be said to have laid down that as a result of those processes the tea leaf ceased to be agricultural produce, it is not correct. The tea leaf remained what it always was. It was tea leaf when selected and plucked and it continued to be tea leaf when after the process of withering, crushing and roasting, it was sold in the market. The process applied was intended to bring out its potential qualities of flavour and colour. The potential inhered in the tea leaf from the outset when still a leaf on the tea bush. The potential surfaced in the tea leaf when the mechanical processes of withering, crushing and roasting, fermenting by covering with wet sheets and roasting again were applied. At no stag, did it change its essential substance. It remained tea leaf throughout. In its basic nature it continued to be agricultural produce. [603 B-C] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2361- 2364 of 1972.

Appeals by special leave from the Judgment and Order dated 17-5-72 of <ORG> in Sales Tax Ref. Nos. 693 to 696/70.

<NAME>, <NAME> and <NAME> for the Appellant. (In all the appeals) <NAME> and <NAME> for the Respondent. The following Judgments were delivered:

UNTWALIA, J. The Commissioner of Sales Tax, Lucknow has filed these four appeals by special leave against the judgment of <ORG> given in four sales-tax references under the U.P. Sales Tax Act, 1948, hereinafter referred to as the Act.

The assessee-respondent owns some tea gardens in the State of U.P. The tea-leaves grown by the respondent in his gardens are sold in the market after being processed and packed. The stand taken on his behalf before the taxing authorities was that the tea-leaves sold by the respondent are agricultural produce grown by himself and, therefore, the sales were not exigible to sales-tax. The contention of the assessee was not accepted and <ORG> made four references in respect of the four periods to <ORG> on the following question of law:-

"Whether on the facts and circumstances of this case the article ceased to be an agricultural produce and whether the tea produced by the assessee would be exigible to sales tax?"

<ORG> has answered the reference in favour of the assessee and against the revenue. Hence these appeals by the department.

Under section 3, the charging section, of the Act it was the turn-over for each assessment year determined in accordance with the various provisions of the Act and the Rules framed thereunder, which was chargeable to sales-tax. The definition of 'turnover' given in section 2(i) of the Act at the relevant time stood as follows:-

" "Turnover" means the aggregate amount for which goods are supplied or distributed by way of sale(or are sold), or the aggregate amount for which goods are bought, whichever is greater by a dealer, either directly or through another, on his account or on account of others, whether for cash or deferred payment or other valuable consideration:

Provided that the proceeds of the sale by a person of agricultural or horticultural produce, grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, or poultry or dairy products from fowls or animals kept by him shall be excluded from his turnover."

The above proviso was meant to exempt an agriculturist or a horticulturist from the charge of sales-tax in respect of his agricultural or horticultural produce grown by himself in his land in which he has an interest of the kind mentioned in the proviso. The short question which falls for our determination, therefore, is whether the assessee's transactions of sale came within the ambit of the proviso. Indisputably and undoubtedly the assessee was an agriculturist, the tea-leaves grown by him in his land were agricultural produce, and he had sold them after processing and packing. In other words the assessee made them marketable and fit for consumption by the consumers and then sold them. If the tea- leaves so sold substantially retained the character of being an agricultural produce, it is plain that the assessee's sales will not be exigible to sales-tax. If, on the other hand, the leaves had undergone such vital changes by processing that they lost their character of being an agricultural produce and became a different commodity then the sales made by assessee were exigible to sales-tax.

<ORG> has extracted the primary findings of fact recorded by <ORG> in its revisional order. As is well-known tea-leaves are plucked from tea- plants as green tea-leaves. The tea-leaves so plucked are not fit for consumption and are not sold in the open market. They are often purchased by big tea concerns from the owners of the gardens and after processing and packing them they (the concerns) sell them in the market. Since in their cases the proviso will not apply the sales will be exigible to sales tax. But when the producer himself does the same or similar kind of job, then the question arises whether it can be justifiably said that he also cannot take advantage of the proviso?

The primary facts as extracted by <ORG> from the order of <ORG> are the following:-

(1) "The tea-leaves were first of all subjected to withering in shadow in rooms on a wooden floor for about 14 hours."

(2) "then they were crushed-by hand or foot and were then roasted for about 15 minutes." (3) "Later they were roasted on mats for about 15 minutes."

(4) And then they were "covered by wet sheets for generating fermentation. During this process the colour of leaves was changed from green to yellowish."

(5) "the leaves were then subjected to grading with sieves of various sizes. Fanning machines are also used in completing the grading process."

(6) "The produce was then finally roasted with charcoal for obtaining suitable flavour and colour."

(7) "It is this final product which was eventually sold by the assessees."

The question for consideration is whether on the findings aforesaid it can be justifiably held in law that the leaves lost their character of being an agricultural produce and became something different. It should be remembered that almost every kind of agricultural produce has to undergo some kind of processing or treatment by the agriculturist himself in his farm or elsewhere in order to bring them to a condition of non-perishability and to make them transportable and marketable. Some minimal process is necessary to be applied to many varieties of agricultural produce. As for example, when wheat stalks are cut from the farm, threshing and winnowing have to be done. The product so obtained has to be dried for a few days. The husk and dust have to be separated. Thereafter packing the wheat in bags or other containers it is taken to the markets for sale. One can never suggest that such a wheat product becomes a commodity different from the one which was produced in the process of agriculture. To pursue that example further, if the agriculturist who produces the wheat has a flour mill and crushes the wheat produced by him in that mill and then if the flour so produced is sold by him one can never reasonably suggest that the flour sold by him is an agricultural produce, because in that event, the manufacturing process goes beyond the limit of making the agricultural produce fit for marketing as such and turns it into a different commodity altogether i.e. flour. But there may be some other kinds of agricultural produce which required some more processing to make it marketable. In the case of such a commodity what one has to judge is to find out whether in relation to that agricultural produce the process applied was minimal or was it so cumbersome and long drawn that either in common parlance, or in the market, or even otherwise, any body would not treat the produce as an agricultural produce. The mere fact that in the case of a particular product the process is a bit longer or even a bit complicated will not rob the produce of its character of being an agricultural produce. Largely the inference to be drawn from the primary facts of processing, one may say, will be an inference of fact. But it is not wholly so. In a given case it will be a mixed question of fact and law. If wrong tests are applied in drawing the inference that the agricultural produce has lost its character of being so, then it will be a question of law and <ORG> will have jurisdiction in an appropriate reference, as in the present case it had, to decide whether the case came under the proviso to section 2(i) of the Act.

Unlike many agricultural products tea-leaves are not marketable in the market fresh from the tea gardens. No body eats tea-leaves. It is meant to be boiled for extracting juice out of it to make tea liquor. Tea-leaves are, therefore, only fit for marketing when by a minimal process they are made fit for human consumption. Of course, the processing may stop at a particular point in order to produce inferior quality of tea and a bit more may be necessary to be done in order to make it a bit superior. But that by itself will not substantially change the character of the tea-leaves, still they will be known as tea-leaves and sold as such in the market. In my opinion all the six processes enumerated above from the primary findings of fact recorded in the order of <ORG> were necessary for the purpose of saving the tea-leaves from perishing, making them fit for transporting and marketing them. The process applied was minimal. Withering, crushing and roasting the tea-leaves will be surely necessary for preserving them. The process of fermentation or final roasting with charcoal for obtaining suitable flavour or colour and also the process of grading them with seives were all within the region of minimal process and at no point of time it crossed that limit and robbed the tea-leaves, the agricultural produce, of their character of being and continuing as such substantially. In my opinion, therefore, the view expressed by <ORG> is quite justified and sustainable in law.

In Volume 21 of Encyclopaedia Britannica (1968 edition) under the head 'Tea' are dealt with at page 739 the processes of cultivation and manufacture of tea. Under the sub-head 'Cultivation' it is found stated:-

"Tea leaves are plucked either by hand or with special shears. In the tropical areas of southern India, Ceylon, and Indonesia, harvest continues throughout the year, but in the subtropical regions of northern India and China and in Japan and Formosa, the harvests are seasonal. The flavour and quality of the tea-leaves vary with the climate, soil, age of the leaf, time of harvest (even from season to season), and method of preparation."

Then comes the sub-head 'Manufacture' which enumerates the categories of three classes of teas and then it is mentioned:-

"Most stages of processing are generally common to the three types, of tea. First, the fresh leaves, are withered by exposure to the sun or by heating in trays until pliable (usually 18-24 hours). Next the leaves are rolled by hand or machine in order to break the leaf cells and liberate the juices and enzymes. This rolling process may last up to three hours. Finally, the leaves are completely dried either by further exposure to the sun, over fires, or in a current of hot air, usually for 30- 40 minutes."

In making black tea, the leaves, after being rolled, are fermented in baskets or on glass shelves or cement floors under damp cloths. "The process of fermentation, or oxidation, reduces the astringency of the leaf and changes its colour and flavour." About green-leaves it is mentioned- "Green tea is made by steaming without fermentation in a perforated cylinder or boiler, thus retaining some of the green colour. The leaves are lightly rolled before drying." It would thus be seen that the tea-leaves as plucked have got to pass through stages of processing of one kind or the other in order to make them fit for human consumption, as in the case of paddy and many other commodities dehusking in the case of former and some other kind of process in regard to the latter has got to be done in order to make them marketable and fit for consumption.

There are two decisions of <ORG> in <CITATION> (1) and <CITATION> (2) where a similar question arose with respect to arecanuts. At page 544 of the first case which was followed in the second occurs a passage which may be usefully quoted here:-

"As we have pointed out, it was common ground that there is no market in Coimbatore or elsewhere for arecanuts as they are when plucked from the trees, and it should be remembered they are gathered when they are still unripe. The proviso to section 2(i) of the Act is obviously conceived in the interests of agriculturists. It excludes from any tax liability under the Act sale of agricultural and horticultural produce, the primary condition to be satisfied being that it must be produce of the land which either belongs to the seller or of the land in which he has an interest as specified by section 2(i). To restrict that concession to sale of arecanuts, for instance, only if those arecanuts are sold in the state in which they are immediately on being gathered from the trees, would render the statutory exclusion meaningless."

I approve of this decision.

There are two decisions of <ORG> given in relation to the question of sugarcane being converted into jaggery. They are:- <CITATION> (1) and <CITATION> .(2) In the former case it was observed at page 11:-

"It is true that gur cannot be regarded as an agricultural produce grown on land. But if gur is prepared out of the agricultural produce which is grown on land, in the absence of any indication to the contrary suggesting that the agricultural produce must be sold in the form in which it is grown, we will be justified in holding that an agriculturist who is exclusively selling agricultural produce grown on the land either in the form in which it is grown or in the form in which it is converted for the purpose of transportation or preventing deterioration is within the exception provided by section 2(6). In the present case, with a view to prevent deterioration and for the purpose of facilitating transportation the assessee converted the sugar-cane grown by him into gur and sold it."

It appears to me that this case has gone a bit too far and on an appropriate occasion it may require further consideration. Nonetheless, in the instant case one can safely conclude, as I have done, that with a view to prevent deterioration and for the purpose of facilitating transport and making it marketable the assessee himself did some processing to the plucked tea-leaves and hence <ORG> was right in holding that such sales were not exigible to sales-tax. Similar or identical principles have been applied by other High Courts also in respect of different commodities such as rubber, sole crepe, casuarina, pig bristles etc. The cases are- <CITATION> (3). <CITATION> .;(4) <CITATION> .;(5) Rayavarapu Mrityanjaya Rao v.

The State of Andhra Pradesh(1) and Commissioner of Sales Tax, U.P., Lucknow v. <NAME> and Sons. (2) Broadly speaking these cases have been decided on application of the correct principles of law.

Reliance on behalf of the <ORG> was placed upon a few cases. None of them supports the department's contention. I may notice only two or three of them. <CITATION> (3) the question for consideration related to the tax liability of <ORG> under the Income Tax Act , 1918. If the whole of its income was derived from agriculture, the assessee was not liable to pay income-tax. If, however, the activities of the <ORG>, which produced income were attributable partly to agriculture and partly to its manufacturing activities, then the whole of the amount could not have been taxed under the Income-Tax Act . The stand of the <ORG> was-"the actual leaf of the tea plant, without the addition thereto of the processes above described, is of no value as a market commodity." On behalf of the <ORG> it was contended "that the manufacturing processes carried out in a modern tea factory, with scientific appliances and up- to-date machinery, are different from those ordinarily employed by a cultivator to render the produce raised by him fit to be taken to market." <ORG> held-"that the process in its entirety cannot be appropriately described as agriculture. The earlier part of the operation when the tea bush is planted and the young green leaf is selected and plucked may well be deemed to be agriculture. But the latter part of the process is really manufacture of tea, and cannot, without violence to language, be described as agriculture.

The green leaf is not marketable commodity for immediate use as an article of food, but it is a marketable commodity to be manufactured by people who possess the requisite machinery into tea fit for human consumption." After referring to some authoritative books on Tea, the view expressed by <ORG> was "that the entire process is a combination of agriculture and manufacture." Hence only a part of the income was held to be taxable. In the instant case the problem is quite distinct and different. Here we are concerned with the question whether the commodity which the assessee sold as tea was his agricultural produce or not. He had not sold his tea-leaves from his gardens to any manufacturing tea company. He had himself applied some indigenous and crude manufacturing process in order to enable him to sell his tea in the market. In such a situation I have no difficulty in holding that the sale was of his agricultural produce.

<CITATION> (1) the question before this Court was whether the respondent- firm which purchased raw tobacco and converted it by a manufacturing process into chewing tobacco and sold it in small paper packets was entitled to deduction of excise duty paid by it on the raw tobacco from the gross turnover of sales of chewing tobacco under rule 5(1)(i) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. It would be found mentioned at page 318:-"Both the advocates argued, on the basis of the factual position, that the packets of chewing tobacco were goods different from tobacco from which the said goods were manufactured." On that footing, by interpretation of the rule it was held that only excise duty paid on the goods sold by the assessee is deductible from the gross turnover, and not the excise duty paid on raw tobacco. This case was followed by <ORG> in The State of Madras v. <ORG>) In the instant case I have held that the commodity which was sold was not different from the commodity which was produced in agriculture.

The view expressed by <ORG> in the judgment under appeal which is reported in <CITATION> .(3) is on the lines of the preponderance of views expressed by different <ORG> in relation to different commodities. I approve of the case and dismiss these appeals with costs- hearing fee-one set only.

PATHAK, J. I agree that the appeals should be dismissed.

But I should like to say a few words in regard to <CITATION> .(4) That was a case where <ORG> had a tea plantation and after selecting and plucking the young green leaf from the tea bush by hand it was put through a process of drying and rolling. <ORG> alleged that the process actually applied to the dry leaf was a manufacturing process carried out in a modern tea factory with scientific appliances and the latest machinery. <ORG>, on a consideration of the respective cases of the parties, observed that the entire process could not be described as agriculture, and that the process applied to the tea leaf after it had been plucked was a manufacturing process. It observed that the green tea leaf was a marketable commodity to be manufactured by people who possessed the requisite machinery into tea fit for human consumption. It was of the opinion that while the process of selecting and plucking the tea leaf from the tea shrubs could be deemed to be agriculture, the subsequent process which included drying and rolling of the leaf was a manufacturing process. <ORG> drew a distinction between the two processes for the purpose of apportioning the income between agricultural income and non agricultural income. The question before us is whether after the tea leaf had been put through the process of withering, crushing, roasting and fermentation it continued to be agricultural produce. If <ORG> can be said to have laid down that as a result of those processes the tea leaf ceased to be agricultural produce, I am unable to agree with it. To my mind, the tea leaf remained what it always was. It was tea leaf when selected and plucked. and it continued to be tea leaf when after the process of withering, crushing and roasting it was sold in the market. The process applied was intended to bring out its potential qualities of flavour and colour. The potential inhered in the tea leaf from the outset when still a leaf on the tea bush. The potential surfaced in the tea leaf when the mechanical processes of withering, crushing and roasting, fermenting by covering with wet sheets and roasting again were applied. The tea leaf was made fit for human consumption by subjecting it to those processes. At no stage. did it change its essential substance. It remained a tea leaf throughout. In its basic nature, it continued to be agricultural produce.

The appeals fail and are dismissed with costs. Costs are awarded as one set only.

P.B.R. Appeals dismissed.


JUDGMENT <NAME>, J.

(1) The plaintiff (<ORG>) has filed the present suit for the grant of permanent injunction restraining the defendant, its servants, agents, representatives, dealers and workmen from infringing its registered copyright to "OK Washing Soap Wrapper" belonging to it. The plaintiff also seeks a permanent injunction restraining the above-said persons from manufacturing selling, offering for sale to dealers washing soap under 521 wrapper which is a colourful imitation of its wrapper and from giving an impression that the defendant's washing soap was that of the plaintiff or was connected with the plaintiff in any manner what soever amounting to passing off. An order for destruction of the impugned wrappers, labels, blocks, dyes and other trade literature concerning the adoption and use of the impugned wrapper mark is also sought. The plaintiff also prays for rendition of the defendant's accounts of sales of washing soap under the wrapper objected to by it and further prays that a decree for the amounts so determined be passed in its favor and against the defendant with costs.

(2) The case of the plaintiff is that it carries on an old established business for decades past engaged in the manufacture and sale, inter alia, of washing soaps, detergents, toilet soaps and toilet preparations including hair oils, shampee and eau de Cologne. The plaintiff alleges that one amongst its well-known products is "OK Brand Washing 'soap" wrapper of which consists of a distinctive colour scheme wherein the legends and description are given in red and blue colour against white background. The upper portion of the wrapper shows A Tata Product, in white colour, arranged in a blue coloured diamond device, appearing on either side with the expression Ok arranged in a shield device in red colour, appearing in the centre of the two blue diamond devices. The panels consists of two blue coloured diamond devices containing the expression Ok appearing in vernacular language. According to the plaintiff its Ok washing soap wrappers are in regular and continuous since the year 1976 in relation to its washing soap. The plaintiff claims to have built up large and important sale for its washing soap exceeding Rs. 300 lakhs.

(3) The plaintiff aware that it holds protection for its wrapper through Registration No. A-1 8305/77 granted to it under the Indian Copyright Act , 1957, besides registration Nos. 13573/77 and A-l 8595/77. The grievance of the plaintiff is that the defendant (<ORG>, Hathroi Fort, Jaipur) has recently introduced in the market washing soap under a wrapper in respect of their washing soap whose adoption and the use of the lay-out, colour combination and artistic representation exactly resembles that of the plaintiff and that such a user by the defendant is with the deliberate intention to deceive and cause confusion to earn profits in illegal manner knowing fully well that the plaintiff's washing soap marketed under Ok wrapper has acquired a high reputation because of the excellant quality and marketting potentialities offered by the plaintiff and that their (defendant's) quality of product is inferior. The plaintiff contends that apart from infringing its Ok washing soap wrapper, the defendant is passing off and further liable to pass off their washing soap as that of the plaintiff and to cause confusion and deception by giving an impression that the washing soap so packed under the impugned wrapper is that of the plaintiff or, in any manner connected with the plaintiff and its business.

(4) The plaintiff in. respect of its prayer for the grant of (i) permanent injunction restraining infringement of copyright, (ii) permanent injunction restraining passing off (iii) an order for destruction of the labels, wrapper, dyes, blocks etc. and (iv) for rendition of accounts has valued each of the said reliefs for the purposes of court-fee at Rs. 200 each and has paid separately court-fee of Rs. 20 on each of the reliefs sought. For the purposes of jurisdiction plaintiff for the first three reliefs has fixed the same value as was fixed by it for the purposes of court-fees but in respect of its prayer for rendition of account, the plaintiff has fixed the value at rupees one lakh being the estimated valued of its loss due to the defendant's sale of the washing soap under the impugned wrapper.

(5) Along with the suit the plaintiff has filed the present application under Order 39 Rules I and 2 read with section 151 of the Code of Civil Procedure re-iterating its averments made in the plaint has prayed that during the pendency of the suit, the defendant, its servants' agents, dealers, representatives and workmen be restrained from manufacturing, selling and/or offering for sale, directly or indirectly dealing in washing soap under 521 wrapper which is a colourable imitation of the plaintiff's wrapper, 'and from giving an impression that the defendant's washing soap is that of the plaintiff or is connected with the plaintiff in any manner whatsover, amounting to passing off, and from infringing the registered copyright pertaining to Ok washing soap wrapper belonging to the plaintiff.

(6) The defendant in its written statement controverting the allegations of the plaintiff resists the suit, among other, on the grounds that this Court has no jurisdiction to try the suit, that the suit Is not properly valued for the purposes of court-fee and jurisdiction in that the value for the purpose of jurisdiction under section 8 of the Suits Valuation Act, 1887, has to be the same as the value adopted by the plaintiff for the purposes of court fee ; that the wrapper of the plaintiff is not distinctive as alleged or that the colour scheme adopted by the plaintiff is distinctive and/or that the plaintiff has any right thereof independently of the rest of the wrapper, and that the alleged offending wrapper is neither identical nor deceptively similar to that of plaintiff. The defendant deny that their wrapper has caused any confusion and/ or deception and/or that the plaintiff has been or is likely to be put to any loss whether in business or reputation as alleged.

(7) The defendant alleges that it is a partnership firm registered under the Indian Partnership Act , 1932, and that it had been in the business of manufacture and sale of soaps since 1931. It is alleged from 1931 to 1976 they were adopting the manual process of soap manufacture but from the year 1976 onward they had introduced automation in the manufacture of their soaps by installation of machines and that the wrappers used by them were first introduced by them in. January, 1977, which were subsequently changed in April, 1977. The defendants deny that they had represented in then- wrappers the layout and/or colour combination and/or artistic representation of the plaintiff's wrapper or that the defendant's wrapper had been deliberately made and/or caused to be made to appear as that of the plaintiff and/or that the defendant was motivated by any intention to deceive and/or cause confusion and/or to earn profits in an illegal manner. The defendant further deny that they are passing off and/or likely to pass off their washing soap as being that of the plaintiff or that their washing soap packed in the allegedly offending wrappers has caused or is likely to cause confusion and/or deception as being that of the plaintiff and/or as being in any manner connected with the plaintiff and/or its business.

(8) The defendant's stand in their reply to the interim application is practically the same as the one taken in the written statement. The same, therefore, is not required to be noted.

(9) It may bear mention here that subsequently to their filing the written statement and reply to the interim application, the defendant's impugned wrapper had been registered under the Copyright Act , 1957, by the Copyright office as No. A 20449/78. The defendant accordingly by I.A. No. 2861 of 1978 submit that in the interest of Justice they may be allowed to refer to and rely on the registration of the wrapper in their name.

(10) It would be appropriate to first deal with the preliminary objections urged against the maintainability of the suit in this Court.

(11) The jurisdiction of this Court was sought to be ousted on the ground that the Suit arises under Chapter Xii of the Copyright Act, 1957, and that the original jurisdiction in respect of such suits or other civil proceedings arising under the said Chapter is that of <ORG> under section 62 of the said Act. Section 62 of the Copyright Act, 1957, reads as under :

"62(1) Every suit or other civil proceeding arising under this chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this act shall be instituted in <ORG> having jurisdiction.

(2)For the purpose of sub-section (1), a "district court having jurisdiction shall notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in, force, include <ORG> within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such person, any of them actually and voluntarily resides or carries on, business or personally works for gain".

(12) The learned counsel for the defendants submitted that a plain reading of the above-noted section makes it clear that every suit or other civil proceeding arising under Chapter Xii in respect of the infringement of copyright in any work or the infringement of any other right conferred by the Copyright Act , 1957, shall be instituted in <ORG> having jurisdiction. I do not agree. The Copyright Act does not define the expression '<ORG>'. The question, therefore, is what is meant by the said expression. Sub-section (4) of section 2 of the Code of Civil Procedure defines the term District. According to the said definition 'district' means the local limits of the jurisdiction of a principal civil court of original jurisdiction (herein- after called a "<ORG>"), and includes the local limits of the ordinary original civil jurisdiction of <ORG>. It is thus evident that by the term "<ORG>" what is enivsaged is the principal civil court of original jurisdiction in a district. There can be no dispute that the expression "<ORG>" by virtue of section 62(1) of the Copyright Act, has the meaning assigned to the expression in the Code of Civil Procedure, 1908. Now under sub-section (2) of section 5 of the Delhi High Court Act, 1966, notwithstanding anything contained in any law for the time being in force, <ORG> in respect of the Union Territory of Delhi has the ordinary original civil jurisdiction in every suit the value of which exceeds fifty thousand rupees, as amended by section 3 of the Delhi High Court (Amendment) Act, 1969. It would, therefore, be seen that after the coming into force of Delhi High Court Act , 1966, as amended, <ORG> has become the principal civil Court of original jurisdiction with respect to every suit the value of which exceeds fifty thousand rupees. [See also <CITATION> . (1971) I Delhi 615(1)].

(13) Reference here may also be made to <CITATION> . In. that case the plaintiff challenged the infringement of its trade mark. Under section 2(e) of the Trade and Merchandise Marks Act , 1958, the expression "<ORG>" has the meaning assigned to it in the Code of Civil Procedure, 1908. On May 5, 1964, when the suit was filed <ORG>, within the territorial limits of which the cause of action was alleged to have arisen was closed for summer vacation and no Judge competent to exercise the powers of <ORG> was functioning in <ORG> on duty on that day. At the request of the plaintiff <ORG> entertained the plaint and also an application for interim injunction. <ORG> granted the interim injunction in terms of prayer in the application. In appeal before <ORG> the defendants contended that <ORG> had no jurisdiction to entertain the action instituted by the plaintiffs and had no powers to make an order issuing a temporary injunction as the action as framed could properly be instituted in <ORG>. Rejecting the contention, it was observed that the expression "<ORG>" has by virtue of section 2(e) of the Trade Mark and Merchandise Act , 1958, the meaning assigned to that expression, in the Code of Civil Procedure, 1908. Section 2(4) of the Code defines a "District" as meaning the local limits of the jurisdiction of a principal civil court called <ORG> and includes the local limits of the ordinary original civil jurisdiction of <ORG>. Their Lordships accordingly held, if <ORG> was possessed of ordinary original civil jurisdiction. It would, when exercising that jurisdiction be included for the purposes of the Trade and Merchandise Marks Act , 1958, in the expression "<ORG>". It was accordingly held that <ORG> was competent to exercise original jurisdiction under section 105 of the Trade and Merchandise Marks Act , 1958, if invested with the ordinary original civil jurisdiction of a <ORG>.

(14) <ORG> having ordinary original civil jurisdiction in respect of the Union territory of Delhi in every suit the value of which exceeds fifty thousand rupees is competent to entertain and try the present suit.

(15) It was then contended that assuming that the suit is maintainable in this <ORG>, facts necessary to give territorial jurisdiction to the <ORG> are non-existent in the present suit. The contention was that the defendant neither resides nor works for gain nor carries on business in Delhi and that no part of the alleged cause of action had arisen or was alleged to have arisen within the territorial jurisdiction of this <ORG>. There is no merit in this submission. The plaintiff has invoked the territorial jurisdiction of this <ORG> on the allegation that it is marketing its washing soap under Ok wrapper through its office at 28, Asaf Ali Road, New Delhi, where it carries on its business and works for gain, besides averring that the washing soap under the infringing wrapper is available at Delhi and elsewhere, and so even under Common Law, this <ORG> has jurisdiction to entertain the suit. Sub-section (2) of section 62 of the Copyright Act, 1957, noted above, carves out an exception to the provision of section 20 of the Code of Civil Procedure and enables a plaintiff seeking remedy for infringement of Copyright to file the suit in the <ORG> within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on. business or personally works for gain. There being no traverse to the plaintiff's averment that it is marketing its washing soap under the Ok wrapper through its office at 28, Asaf Ali Road, New Delhi, where it carries on its business and works for gain, it has to be held that this <ORG> has jurisdiction to entertain and try the suit. The bare denial of the defendant that no part of the alleged cause of action arose or is alleged to have arisen within the territorial jurisdiction of this <ORG> is of no consequence.

(16) The learned counsel for the defendant then submitted that there being no allegation that the defendants are selling or causing to be sold the infringing product in Delhi, the suit for the redress of the plaintiff's grievance regarding passing off was not friable by this <ORG>, more so when the defendants have categorically contended that their sales are effected mainly in the State of Rajasthan and to a very limited extent at Amritsar and Nepal. It may bear mention here that the plaintiff in paragraph 13 of the plaint had contended that the washing soap under the infringing wrapper is available at Delhi. The rival contentions of the parties at best may be said to necessitate an enquiry being made in the matter by the framing of an issue but on a prima facie view of the matter it cannot be said for the present that this <ORG> has no jurisdiction to entertain and try the suit in respect of the allegation regarding "passing off".

(17) It was then contended though not specifically pleaded, that a suit for account must be founded on an obligation to render an account. The Plaintiff having not averred such an obligation, the suit for an account was not competent. Support for this argument was sought to be drawn, from <NAME> v. <NAME>, 1961 Klt 360(3) wherein it was observed that the mere fact that the plaintiff asks an account or brings his suit on account or that accounts have to be gone into in order to determine the account, if any. due to the plaintiff, will not make the suit for an account, and that every bill for an account must be founded upon an obligation to render an account.

(18) The observations in the above noted case were made in a wholly different context. The <ORG> was not dealing with a case for infringement of the copyright. The argument sought to be urged has to be repelled in view of the provisions of section 55 of the Copyright Act which prescribes civil remedies that are available to the owner of the copyright for infringement of this copyright. Among other remedies that are available to the owner of the copyright is the remedy to sue for accounts. It being a statutory remedy available under law it is futile to contend that the defendant in such a suit must stand in some such "relation to the plaintiff as that of agent, or belie or receiver or trustee or partner or mortgagee."

(19) The next submission of the learned counsel for the defendant was that the suit had not been properly valued for the purposes of jurisdiction. It was contended that the plaintiff having valued the relief for the purpose of court-fees in respect of this prayer, viz., restraining infringement of copyright, for permanent injunction restraining passing off, for an order for destruction of labels, wrappers, dyes, blocks etc. and for rendition of account at Rs. 200 each in accordance with the provision of section 7(iv) of the <ORG>-fees Act, 1870, the same valuation has to be taken to be the value for the purposes of jurisdiction under section 8 of (The) Suits Valuation Act, 1887, in that the value as determinable for computation of <ORG>-fees and the value for purposes of jurisdiction shall be the same. There can be no dispute to this proposition of law. Indeed their Lordships in <CITATION> , , have held that there can be little doubt that the defect of the provisions of section 8 of (The) Suits Valuation Act is to make the value for the purposes of jurisdiction dependent upon the value as determinable for computation of <ORG>-fees. The result is that it is the moment at which the plaintiff has valued the relief sought for the purposes of court-fees that determines the value for jurisdiction in the suit and not vice versa.

(20) The learned counsel for plaintiff, however, contended that <ORG> at Lahore had framed rules under section 9 of the Suits Valuation Act, 1957, with regard to the manner and determination of the value of certain types of suits for the twin purposes of court-fees and jurisdiction and that the said rules are applicable in <ORG> by virtue of section 7 of the Delhi High Court Act, 1966, and that the valuation' placed by the plaintiff with regard to the jurisdiction was in consonance with the said rules. That being so, the suit, it was urged, is friable by this Court. The learned counsel for the defendants contest the correctness of this assertion. The question' accordingly is whether the rules framed by <ORG> at Lahore were applicable in <ORG> or not.

(21) In order to determine the respective contention of the parties, it would be appropriate to note the relevant provisions of the Suits Valuation Act and the rules made there under by <ORG> at Lahore.

SECTION 9 of the Suits Valuation Act , 1887, reads as under : "DETERMINATIONof value of certain suits by High Court Where the subject matter of suits of any class, other than suits mentioned in Court-Fees Act , section 7 , paragraph (v) and (vi), and paragraph, (x), clause (d) is such that in the opinion of <ORG> it does not admit of being satisfactorily valued <ORG> may, with the previous sanction of <ORG> direct that the suits of that class shall, for the purposes of the Court- fees Act, 1870, and of this Act and any other enactment for the time being in force, be treated as if their subject- matter were of such value as <ORG> thinks fit to specify in this behalf".

(22) <ORG> at Lahore in 1942 with the previous sanction of the State Government under the powers conferred by section 9 of the Suits Valuation Act of 1887 and all other powers in that behalf made rules regarding the manner of determining the value of suits for purposes of jurisdiction specified in section 9 of Suits Valuation Act, 1887. Rules 3 and 4 of the said, .Rules are relevant for our purposes.

RULE3 reads as under :

"SUITSin which the plaintiff in the plaint asks for accounts only not being :

(I)suits to recover the amount which-may be found due to the plaintiff on taking unsettled accountes between him and the defendant (II)suits of either of the kinds described in order Xx, Rule 13 of Code of Civil Procedure' VALUE: (a) For the purposes of the Court-fees Act , 1870. . .Rs. 200.00 (B)For the purposes of the Suits Valuation Act , 1887, and the Punjab Courts Act, 1918. ...............Rs. l,000/".

WHILERule 4 reads as under :

"4(I)Suits in which the plaintiff in the plaint seeks to recover the amount which may be found to the plaintiff on taking unsettled accounts between him and defendant ;

(II)Suits of either of the kinds described in, Order Xx, rule 13 of the Code of Civil Procedure .

VALUEfor the purposes of court-fee.........as determined by the Court-fees Act , 1870.

VALUEfor the purposes of jurisdiction for the purpose of the Suits Valuation Act , 1887, and the Punjab Courts Act, 1918, as valued by the plaintiff in the plaint subject to determination by the Court at any stage of the trial"

(23) The learned counsel for the plaintiff submitted that the rules framed by <ORG> at Lahore and since followed in the said <ORG>, the East Punjab <ORG>, the Punjab <ORG> and the Courts in Delhi even after the constitution of the Delhi <ORG> pertain to the practice and procedure followed by the said Courts with regard to the manner and determination of the value of certain types of suits for the purposes of court-fees and jurisdiction and that the said practice and procedure, with the necessary modifications apply in relation to the <ORG> of Delhi by virtue of section 7 of the Delhi <ORG> Act 1966. The learned counsel accordingly submitted that the said rules are applicable to all suits friable by this <ORG>.

(24) By virtue of sub-section (2) of section 5 of the Delhi High Court Act, 1966, notwithstanding anything contained in any law for the time being in force, <ORG> has in respect of the Union Territory of Delhi ordinary original civil jurisdiction in money suit the value of which exceeds twenty five thousand rupees, since raised to fifty thousand rupees by section 3 of the Delhi High Court (Amendment) Act, 1969 (Act No. 37 of 1969).

(25) Section 7 of the Delhi High Court Act, 1966, deals with the practice and procedure to be followed in, <ORG>. The said section reads as under : "SUBJECTto the provisions of this Act, the law in force immediately before the appointed day with respect to practice and procedure in <ORG> shall, with the necessary modifications, apply in relation to <ORG> and accordingly <ORG> shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by <ORG> and shall also have powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction", (26) The question accordingly is whether the rules made by <ORG> are rules pertaining to practice and procedure with regard to the manner and determination of the value of certain types of suits for the purposes of court-fees and jurisdiction as was sought to be contended by the learned counsel for the plaintiff.

(27) The learned counsel for the defendant contended that a matter of practice and procedure generally speaking arises in the course of am action and that practice in its larger sense denotes the mode of proceeding by which a legal right is enforced as distinguishable from the law which gives the right. He accordingly submitted that "practice." in the common and ordinary sense of the word denotes the rules that guide the cursus curise and regulates the proceedings in a cause within the walls of the <ORG> itself while "procedure" including the whole course of practice, from the issuing of the first process by which the suitors are brought before the <ORG> to the execution of the last process on the final judgment. In other words, the learned counsel submitted, procedure concerning all steps necessary to be taken in litigation for the establishment of a right in order that the right may be judicially recognised and declared in such manner as will enable the party asserting the right legally to enjoy it. In the practice, the learned counsel urged that before a party approaches the <ORG>, the party must ensure the provision of law under which it invokes the pecuniary and territorial jurisdiction of the <ORG> which cannot be a matter of practice and procedure but embodied in statute.

(28) Now, what is the meaning of the words practice and procedure ? <NAME> in his book on jurisprudence, 3rd Edition at page 535 slates that procedure is the body of rules that govern the process of litigation while practice regulates the proceedings in a case within the four walls and limits of the <ORG> itself.

(29) In "Words and Phrases" Volume 33 published by West Publishing Company at page 188 "practice and procedure" are said to relate to the legal rules directing the manner of bringing parties into the <ORG>, and the method of the <ORG> after they are brought in, in hearing, dealing with, and disposing of, matters in dispute between them.

(30) JOWITT'S Dictionary of English Law, Second Edition (page 1400) describes practice as the form and manner of conducting and carrying on suits, actions, or prosecutions at law or in equity, civil or criminal, through their various stages from the commencement to final judgment and execution, according to principles and rules laid down, by the several courts. It is further stated at page 1438 that procedure is the mode in which the successive steps in litigation, are taken.

(31) It is, therefore, evident that practice and procedure relate to the body of rules prescribing the method for seeking the remedy and not the enforcement of a right. The object of the Suits Valuation Act is to prescribe the method of valuing certain suits for the purposes of detremining the jurisdiction of <ORG> with respect thereto. Section 9 of the Suits Valuation Act deals with that class of suits which do not admit of being satisfactorily valued. The said section provides that in such suits <ORG> may provide for the valuation of those suits. The rules framed under section 9 of the Suits Valuation Act by <ORG> of Judicature at Lahore provide a mode for valuing the suits for the purposes of jurisdiction in suits which do not admit of being satisfactorily valued. The said rules provide a mode by which a plaintiff is to proceed for the enforcement of his legal rights. if practice and procedure relate to the body of rules directing the manner of bringing the parties into <ORG>, it is not understood as to why the rules in question, cannot be said to provide a mode for bringing the parties into <ORG>.

(32) <CITATION> 1922 Madras, 421(5), it was observed that the power , under which fees were levied the original side of <ORG> was derived from the general powers to issue general rules for regulating the practice and procedure of the <ORG>.

(33) If that be so, the rules in question cannot be said to be other than the one for regulating the practice and procedure of the <ORG>.

(34) Reference here may be made to <NAME> v. Minors (1881) 7 Q.B.D. 329(6). Therein Lush L.J. observed that practice in its larger sense denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding's the <ORG> is to administer.

(35) It may bear mention here that <NAME>'s case (supra) was considered in A.G. v. <NAME> (1864)10 H.L.C. 704(7) but therein <NAME> observed that "practice" means the same thing as procedure and denotes "rules that make or guide cursus curise and regulate the proceedings in a case within the walls or limits of the <ORG> itself".

(36) Sillem (supra) was noticed in <CITATION> . 370 (8). The question under consideration, in <NAME> case was whether the provision's of Order 6 Rule 17 of the Civil Procedure Code were applicable to proceedings before <ORG>. Their Lordships approving the observations of <ORG> that practice and procedure denotes "rules that make or guide the 'cursus curise' and regulate the proceedings in a case within the walls or limits of the <ORG> itself" observed that these proceedings include' all steps, which might be taken in the prosecution or defense thereof, including an application for amendment.

(37) But it has to be borne in mind that the observations of their Lordships were made in, a wholly different context regarding the applicability of the provisions of Order 6 Rule 17 of the Code of Civil Procedure to a proceeding before <ORG>.

(38) The learned counsel for the defendants, however, strenuously contended that the procedure must be in, relation to the proceedings in <ORG> after it had taken seisin of the matter and that such an implication was inherent in the term procedure. Support for this argument was sought from <CITATION> , . Their Lordships in the above case were interpreting the term procedure appearing in section 96(l)(b) of the Employees' Estate ln,surance Act, 1948. It was in that context that it was observed that apart from the implication inherent in the term procedure appearing in section 96(l)(b) , the power to prescribe by rules any matter falling within the ambit of the term must be the "procedure to be followed in proceedings before such <ORG>". It was further observed that the word "in" emphasised by them, furnished a clue to the controversy that procedure must be in relation to proceeding's in, <ORG> after if had taken seisin of the matter. It would, therefore, be seen that their Lordships' observations were made only in the context of section, 96(l)(b) of the Employees' State Insurance Act , 1948.

(39) It may be noted here that a Full Bench of this Court in <CITATION> (1974) Ii Delhi 491(10) had an occasion to consider this question. The Full Ben,ch noticed the controversy between the parties regarding these rules but left the question' open to be canvassed before the lear- ned Single Judge observing that it was not determinative of the question referred to the Full Bench. However, at page 500 the Full Bench had observed that prima facie the rules are applicable to Delhi. The Full Bench further observed that if there' are rules made by <ORG> under section 9 of the Suits Valuation' Act, 1887, and the same are applicable, the valuation for the purposes of court-fees under section 7(iv) of the Court-fees Act will have to be according to such rules. It was also observed that so far as the rules made by <ORG> are concerned, it has to be noted that Rules 3 and 4 contemplate separate valuation for the E purpose's of court-fees an,d for the purposes of jurisdiction. It was further observed that if the said rules are applicable, the valuation for the purposes of court-fees would be separate from the valuation for the purposes of jurisdiction as provided in the said rules.

(40) From the observations of <ORG> it is clear that Rules on a prima facie consideration were held to be applicable to Delhi.

(41) The learned Single Judge on the matter being remitted to him observed that these rules were made in the year 1942 by the o <ORG> at Lahore under section 9 of the Suits Valuation Act, 1887, and have since been followed in the said <ORG> and in, the successor <ORG>s, the East Punjab <ORG>, the Punjab <ORG> and in Courts in Delhi even after the constitution of the Delhi <ORG>. ( <CITATION> (1976) Ii Delhi 745(11).

(42) The learned counsel for the defendants strenuously con- tended that the learned Single Judge was doubtful about the appli- cability of these rules to <ORG>. In support of his i submission he drew my attention to the subsequent observation of the learned Single Judge in, his judgment.

(43) It is no doubt true that the learned Judge in' a subsequent part of his judgment has observed that in relation to the reliefs of accounts, injunction, and recovery of money court fee has to be paid and valorem under the appropriate sub-clauses of clause (iv) of section 7 of the court-fees Act and that neither of the two suit under consideration could be said to belong to the category of suits which were exempt from the operation of section, 8 and that the value of the suits for purposes of jurisdiction in relation to these reliefs has to be the same as has been determined for the purposes of court- fees, unless there was anything in the Rules of the Lahore High Court, if applicable, which provide to the contrary. The words "if applicable" used by the learned Single Judge do not lend support to the argument of the learned counsel for the defendants that the learned Single Judge was doubtful about the applicability of the rules made by <ORG> at Lahore to <ORG>.

(44) <NAME> in <NAME> v. State of Haryana and others 1977 2nd (Delhi) 181(12) has held that the rules framed un,der section 9 of the Suits Valuation Act by <ORG> at Lahore are applicable to suits filed in this Court because of section 7 of the Delhi High Court Act. I am in respectful agreement with the view of my learned brother.

(45) Besides the Division Bench judgment of this Court in <CITATION> , is an authority in support of the proposition that all the rules and orders of <ORG> which were applicable in the Union Territory of Delhi on the coming into existence of <ORG> continue to operate by virtue of section 7 of <ORG> Act. Even on the assumption that rules made by <ORG> at Lahore under section 9 of the Suits Valuation Act, 1887, are substantive law, the same remain operative in the Union Territory of Delhi as held by the Division Bench in the above-said case.

(46) It may be noted here that the rules as framed by <ORG> at Lahore in respect of the manner of determining the value of suits for purposes specified in section 9 of the Suits Valuation Act, 1887. have been' embodied in Chapter III-C of the Rules and Orders (Volume 1) of <ORG> and that the said Rules and Orders are applicable in the Union Territory of Delhi. That being so, the grievance sought to be made by the defendants is misconceived and untenable.

(47) It was then contended that clause 27 of the Letters Patent of the <ORG> of Judicature at Lahore empowered the said <ORG> to frame rules for practice and procedure and that the <ORG> of East Punjab inherited this power for framing rules under clause 7 of the <ORG>s (Punjab) Order, 1947. The submission was that by virtue of the said clause subject to the provisions of the said Order the law in force immediately before the' appointed day with respect to practice and procedure in the <ORG> at Lahore shall, with the necessary modifications', apply in relations to the <ORG> of East Punjab, and accordingly that <ORG> shall have all such powers to make rules and orders with respect to practice and procedure as were immediately before the appointed day exercisable by the <ORG> at Lahore with a proviso that any rules or orders which were in force immediately before the appointed day with respect to practice and procedure in the <ORG> at Lahore shall, untill varied or revoked by rules or orders made by the <ORG> of East Punjab apply with any necessary modifications in relation to practice and procedure in the <ORG> of East Punjab as if made by that Court.

(48) It was accordingly contended that only such rules as had been framed in the exercise of the power under clause 27 of the Letters Patent by <ORG> at Lahore and preserved under clause 7 of the High Courts (Punjab) Order, 1947, have been made applicable to <ORG> under section 7 of <ORG> Act. The rules in question, it was submitted, were framed under section 9 of the Suits Valuation Act and, therefore, are not attracted by section 7 of <ORG> Act. I do not agree. On a proper construction of section 7 of Delhi High Court Act, it is evident that the rules in question have been made applicable to <ORG>.

(49) Proviso to section 7 of the Delhi High Court Act envisages that any rules or orders which were in, force immediately before the appointed day with respect to practice and procedure in <ORG> shall, until varied or revoked by rules or orders made by <ORG>, apply with necessary modifications in relation to practice and procedure in <ORG> as if made by that High Court. It is, therefore, evident that the rules or orders which were in' force immediately before the appointed day with respect to practice and procedure in <ORG> have been made applicable to <ORG> as if made by <ORG>. Rules framed under section 9 of the Suits Valuation Act were rules in force immediately before the appointed day with regard to practice and procedure in. <ORG> and would, therefore, be applicable in <ORG>. This view is fortified by the judgment of <ORG> of this Court in case <NAME> and others (supra).

(50) Another contention sought to be urged was that the rules in, question were applicable only to <ORG>s which enjoyed ordinary original civil jurisdiction and that there was no question of these rules being applicable to <ORG> at Lahore, <ORG> and <ORG> as these <ORG>s were not exercising ordinary original civil jurisdiction. It was because of the absence of this jurisdiction, goes the argument, that <ORG> has been vested with the said jurisdiction by virtue of the section 5 of the Delhi High <ORG> Act. That being so, it was submitted, the rules in question would not be applicable to <ORG> as on the appointed day when <ORG> came into being the rules were applicable only to <ORG>s which were exercising ordinary original civil jurisdiction. It was submitted that section 7 of the Delhi High <ORG> Act makes applicable to <ORG> the law in force immediately before the appointed day with respect to practice and procedure in <ORG> but these rules being not applicable in <ORG> would not apply in relation to <ORG>. The argument is without any merit and cannot be countenanced in face of section 16 of the Delhi High <ORG> Act. The said section envisages that all proceedings pending immediately before the appointed day in any subordinate <ORG> in the Union, Territory of Delhi in or in relation to any such civil suit as is referred to sub-section (2) of section 5 shall on, that day stand transferred to <ORG> which shall proceed to try, hear and determine the matter as if it had been pending therein. Such a suit it is conceded on standing transferred to <ORG> shall retain its valuation already fixed under the rules in question for the purposes of <ORG>-fees and (The) Suits Valuation Act . If that be so, it is not understood as to how the rules in question would not apply to a suit filed directly in <ORG>. The rules apply to all suits in which the plaintiff seeks to recover the account. which may be found due to the plaintiff on taking unsettled accounts between him and defendant. The plaintiff has been given the liberty to value his claim for the purposes of <ORG>-fees in a suit where it is difficult to value the claim with any precision or definiteness with I further liberty to put such value as he may think proper for the purposes of jurisdiction subject to determination by the <ORG> at any stage of the trial.

(51) Lastly, it was submitted that the suit is otherwise not properly valued for the purposes of court-fee and jurisdiction. The submission was that for seeking the relief for accounts the plaintiff has to seek a declaration that its copyright had been infringed and that the defendants are passing off their goods as that of the plaintiff. If that be so, it was urged, the relief for accounts would be cnsequential relief flowing from the relief of declaration sought. There is a fallacy in this submission which is wholly misconceived. Sub-section (1) of Section 55 of the Copyrigt Act, 1957, envisages that where copyright in any work has been infringed, the owner of the copyright shall except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right. The remedies available to the holder of the copyright in case of the infringment of his work are statutory remedies, independent of each other, entitling the aggrieved party to sue for any or all the reliefs available to him under the law.

(52) This brings me to the merits of the case. The case of the plaintiff, as already noted above, is that the defendants are committing infringement in respect of its wrapper registered against No. A- 18305/77- Apart from it, the defendants are alleged to be passing off their washing soap as that of the plaintiff by giving an impression that the washing soap packed under the impugned wrapper is that of the plaintiff, or, in, any manner connected with the plaintiff and its business.

(53) The defendants in denying these allegations submit that they are in the business of manufacture and sale of soaps since 1931. They submit that the wrappers used by them in respect of their brand of soap being "521 washing soap" which brand of washing soap was first introduced by them in January 1957 went a change in April 1957.

(54) With a view to appreciate the rival contentions it would be appropriate to note the law on the subject. In <ORG> and another v- M/s. <ORG> and another , <ORG> of this Court observed that distinction between an action for infringement and for passing off is well known. The latter is a common law remedy being in substance an action for deceit, that is passing off by a person of his own goods as those of another. The former is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods. The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sine quo non in the case of an action for infringement. In an action for infringeroent, the plaintiff must no doubt make out that the use of the defendant's work is likely to deceive, but where the similarity between the plaintiff's and defendant's work is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated. In other words, if the essential features of the trade mark of the plaintiff have been adopted by the defendant the fact that the get up, packing and other writing or marks on the goods or on the packets in which the defendant offers his goods for sale show marked differences or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing off the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.

SIMILARview was taken earlier by a Division Bench of this Court in <CITATION> . and was reiterated by this Court in <CITATION> .

(55) <CITATION> . (1977) Ii Delhi 709(17), it was held by a Division Bench of this Court that registration of mark in the trade mark registry would be irrelevant in an action for passing off. In deciding whether a particular mark is common to the trade, use of that mark would be extremely relevant. Mere registration would not be enough. Further, registration itself does not create a trade mark. The trade mark exists independently of the registration which merely affords further protection under the statute. Priority in adoption and use of a trade mark is superior to priority in registration. For the purposes of claiming such proprietorship of a mark, it is not necessary that the mark should have been used for a considerable length of time. As a matter of fact, a single actual use with intent to continue such use co instanti confers a right to such mark as a trade mark. It is sufficient if the article with the mark upon it has actually become a ven,dable article in the market with intent on the part of the proprietor to continue its production and sales. It is not necessary that the goods should have acquired a reputation for quality under that mark. Actual use of the mark under such circumstances as showing an intention to adopt and use it as a trade mark is the test rather than the extent or the duration of the use.

(56) <CITATION> 1968 Dlt 321(18) it was observed that broadly speaking copyright is claimable only in respect of the form in which the ideas or opinions are expressed. What is protected is not original thought or information but the original expression of thought or information in some concrete form. Accordingly, it would be an infringement only if the defendant makes an unlawful use of the form in which the thought or information is expressed.

(57) <CITATION> ., . Their Lordships observed that in a passing off action the issue is, "Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plaintiffs goods" while in an infringement action the issue is, "Is the defendant using a mark which is colourable imitation of the plaintiffs registered trade mark?" It was further observed that the action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to other restrictions laid down in sections 30 , 34 and 35 of the Act. On the other hand the gist of the passing off action is that 'A' is not entitled to represent his goods as the goods of 'B' but it is not necessary for 'B' to prove that 'A' did this knowingly or with any intent to deceive. It is enough that the get up of 'B's' goods has become distinctive of them and that there is a probability of confusion between them and the goods of 'A'. No case of actual deception nor any actual damage need be proved.

(58) <CITATION> , , it was held by their Lordships that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him.

(59) Let us examine the Ok washing soap wrapper of the plaintiff and the impugned wrapper of the defendants in the light of the principles enunciated in the above noted cases.

(60) The upper portion of the plaintiff's wrapper shows the words 'A Tata Product', in white colour arranged in a blue coloured diamond device, appearing on either side with the expression Ok arranged in a shield device in red colour, appearing in, the centre of the two blue diamond devices. The side panels consist of two blue-coloured diamond devices containing the expression Ok appearing in vernacular languages- The colour scheme of the plaintiff's wrappers consists of red and blue colours against white background- A perusal of the defendants impugned wrapper shows that it bears close resemblance to the plaintiff's wrapper, being partically of the same side, its colour scheme and design are almost the same as that of the plaintiff's wrapper- The essential features of the impugned wrapper are that the upper portion shows 'A Hansa Product' in white colour, arranged in blue diamond devices, appearing on either side with the numeral 521 in red colour arranged in a shield device- This is exactly the pattern of the plaintiff's design, except that for the words 'A Tata Product' in white colour, arranged in blue diamond devices, appearing on either side, the defendants have words 'A Hansa Product' in white colour- Further for the words 'OK' in red colour arranged in a shield device, the defendants have the numeral 521 in red colour, arranged in a shield device- The side panels, again, in the impugned wrapper comprise numeral 521 in vernacular and device of a swan instead of the word 'OK' arranged in blue diamond devices like that of the plaintiffs- On an overall view of the impugned label, there can be no doubt that it has been so designed in, its get up and in its colours that there is a likelihood of confusion being created in the mind of a purchaser- The wrapper of the defendants is calculated to lead purchasers to believe that the soap of the defendants is the plaintiff's soap- The similarity between the plaintiff's and defendants' wrapper is so close that on a visual comparison of the two, it has to be held that the wrapper of the defendants is an imitation of the plaintiff's wrapper, in that essential features of the trade mark of the plaintiff have been adopted by the defendants- The defendants, however, by indicating on their wrapper that the washing soap sold in' the said wrapper is made by '<ORG> Jaipur' seek to escape their liability in respect of passing off submitting that the added matter is sufficient to distinguish their goods from those of the plaintiff; but is the added matter enough to reject the other grievance of the plaintiff ?

(61) The plaintiff's other grievance is in respect of infringement of its copyright pertaining to the design of its wrapper- The plaintiff claims to be the holder of the registration No- A-1 8305/77 granted to it under the Indian Copyright Act , 1957, besides registration nos 18573/77 an,d A-l 8595/77- The defendants subsequent to their filing the written statement and the reply to the present application by an application (LA- No- 2861 of 1978) dated 8th August, 1978, have apprised this Court that their wrapper in question has also been registered under the Copyright Act , 1957, by the copyright office as No. A 20449/78. From the certified copy of the said registration it is evident that the defendants' wrapper was registered on 1st June, 1968. Does this registration exonerate the defendants of having infringed the copyright of the plaintiff ?

(62) The plaiatiff's copyright was registered on 7th September, 1977. The case of the plaintiff is that the defendants in October 1977 adopted the infringing wrapper of which the plaintiff came to know in November 1977. The defendants on the contrary contend that their washing soap being brand "521 Washing Soap" was for the first time introduced by them in the impugned wrappers in January, 1977 and that the said wrapper went a change in April 1977. Now the plaintiff does not ever categorically as to from which date it is using its wrapper which was registered with the trade mark registry on 7th September, 1977. It would, therefore, be a legitimate inference to draw that the plaintiff started using their wrapper in September, 1977. The plaintiff does not contend that it has been using its mark/design prior to its registration. The defendants on the contrary claim the user of their impugned wrapper from January, 1977, that is, prior in point of time than the plaintiff. There is no material on the record contrary to this assertion. As held by <ORG> of this Court in Century Traders (supra) the trade mark exists independently of the registration which merely affords further protection under the statute, but the registration itself does not create a trade mark. Even a single actual use with intent to continue such use co instanti confers a right to such mark as a trade mark. It being not necessary that the goods should have acquired a reputation for quality under that mark, except that they have become a vendable article, the evidence on the record consisting of the supporting affidavits of the parties is not enough to clinch the issue in favor of one or the other party. In the facts and the circumstances of the case the plaintiff cannot be said to have established a prima fade case or that the balance of convenience is in its favor or that if the interim injunction is refused in terms of the prayer made by the plaintiff it would cause irreparable injury to it. However, with a view to protect the interest of the plaintiff it would be appropriate that the defendants be directed to file the accounts of their sales in the Court with a copy to the plaintiff. The defendants are accordingly directed to file the accounts of their sales from the date of filing of the suit to 31st October, 1978, within six weeks of this order besides filing regularly the monthly accounts. The accounts for the month of November, 1978, shall be filed by the middle of December, 1978, and the accounts for the subsequent months by the middle of the next succeeding month.

(63) The application (I.A. No. 16 of 1978) stands disposed of accordingly. The parties to bear their respective costs.