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COPYRIGHT AND INJUNCTION MATTER
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1360-1361 OF 2005
Skyline Education Institute (India) ...Appellant
Private Ltd.
Versus
S.L. Vaswani and another ...Respondents
With
CIVIL APPEAL NO. 1362 OF 2005.
J U D G M E N T
G.S. SINGHVI, J.
1. These appeals are directed against order dated 6.10.2004 passed by the Division Bench of Delhi High Court whereby it ismissed FAO(OS) No.212 of 2003 preferred by Skyline Education Institute (India) Private Limited (hereinafter referred to as `the appellant') against the order of the learned Single Judge who refused to restrain Satilila Charitable Society and S.L. Vaswani (hereinafter referred to as `the respondents') from using the name 'Skyline' as a part of their trading name in relation to their activities in the field of education and/or as a trademark in relation to any printed matter, including the course material, literature, syllabus etc. and partly allowed FAO(OS) No.213 of 2003 preferred by the respondents insofar as the learned Single Judge directed them not to start any new course similar to the course run by the appellant, namely, graduate and post-graduate courses in Management, Travel and Tourism and further directed them to insert a note in the advertisement etc. that their institute is in no way related to the appellant.
2. The appellant is incorporated under the Companies Act. Although, the appellant's main objects, as specified in para `A' of the Memorandum of Association, are to impart and train in all areas, subjects, fields and disciplines of education, including hospitality, tourism and business management; to act as representative of various foreign educational institutions, universities, organizations, bodies or any other type of institutions for recruiting students and rendering other related services; to establish and run in any part of India, colleges or schools to impart education on such terms and conditions as may be laid down by the Company from time to time but a closer look at the incidental or ancillary objects enumerated in para `B' and other objects enumerated in para `C' of the Memorandum of Association shows that the appellant can engage itself in all types of possible business activities.
3. Respondent No.1, Satilila Charitable Society is registered under the Societies Registration Act. It is said to be part of Skyline group of companies/concerns, the details of which are given below:
i) M/s. S.K. Contracts (P) Ltd. (a company started in 1986)
ii) M/s. Skyline Construction Co. (a partnership firm started in 1990)
iii) M/s. Skyline Constructions (a partnership firm started in 1993)
iv) M/s. Skyline Construction Engineers & Builders Co. (a partnership firm started in 1999)
v) M/s. Skyline Contractors (P) Ltd. (a company started in 1999)
vi) M/s. Skyline Software (P) Ltd. (a company for imparting education in software started in 2001)
4. The main object of respondent No.1 is to establish colleges for higher technical education for various sections of the community. In November, 2001, respondent No.1 acquired 13 acres of land in the Institutional complex, Greater NOIDA, U.P. At a cost of Rs.5.25 crores for establishing a multi disciplinary college. Thereafter, the respondents obtained permission from All India Council for Technical Education (AICTE) and established an institution with the name Skyline Institute of Engineering and Technology. They also recruited teaching faculty, made admissions in 4 disciplines and started five-year engineering course with effect from 9.9.2002.
5. As soon as respondent No.1 issued an advertisement for recruiting teachers, the appellant got served notice dated 31.1.2002 upon the respondents and called upon them to stop using the word `Skyline' in the name of their institute by alleging that
the same was affecting its goodwill. Some dialogue appears to have taken place between the functionaries of the appellant and respondent No.1 but without any tangible result. Therefore, the appellant filed Suit No.1553 of 2002 in Delhi High Court for grant of permanent injunction restraining the respondents herein, their officers, servants, agents, representatives, franchisees or any of them from using the name `Skyline' as part of their trading name in relation to the activities in the field of education and/or as a trademark in relation to any printed matter, literature, syllabus, etc. or in any other manner whatsoever. The appellant further prayed for award of damages to the tune of Rs.5,01,600/- and for issue of a direction to the respondents to give details of the profits earned by them by the alleged wrongful use of the name `Skyline' and deliver all printed material including syllabi, course materials, stationery, blocks, dies, etc. bearing the name `Skyline'.
6. In the plaint, the appellant averred that it was established in 1996 on the lines of the previously existing and highly successful Skyline College, Sharjaha, which was brain child of Mr. Kamal Puri, an eminent educationist, who set up first
Skyline Institute in 1990 with the object of providing high quality graduate and post-graduate level professional education and training to the students. The appellant further averred that Skyline Business School was established in 1997 as its division with the object of imparting high quality education in the field of management at under-graduate and post-graduate levels and in a period of one decade it has acquired a substantial reputation and good will on account of highly qualified and dedicated faculty, the internationally competitive courses and scientific methodology
of imparting education. The appellant claimed that it has affiliation with the University of Oxford, University of Lincolnshire and Humberside, U.K., National American University, USA and other bodies like International Air Transport Association, Travel Agents Association of India, Confederation of Indian Industry, Universal Federation of Travel Agents Association, etc. and that these bodies have collaborated with the Skyline Business School for their requirement of trained personnel in the travel business. The appellant then averred that its four months diploma course and the Skyline Business School's three years' bachelor degree course in business administration have been advertised ever since their inception and the applications submitted by it in 1997 and 1998 for registration of trademarks, Skyline Institute, Skyline Medalist, Skyline Business School and Skyline Lead Faculty in class 16 inter alia for printed matter, literature, stationery, etc. are pending before the competent authority. The appellant referred to an advertisement issued by Skyline Institute of Engineering and Technology and pleaded that adoption of the name `Skyline' by the respondents has caused deception and confusion in the mind of the public necessitating filing of the suit for permanent injunction. The appellant also filed an application
under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure (C.P.C.) for grant of temporary injunction restraining the respondents, their officers, etc. from using `Skyline' as a part of their trademark in relation to their activities in the field of education, etc.
7. In the written statement filed by them, the respondents pleaded that the appellant is running its institute illegally without obtaining permission from statutory bodies like AICTE, UGC, etc. and that it does not have affiliation with any University. According to the respondents, there is no connection between Skyline College based in UAE and the appellant's Skyline Business School and that the courses conducted by Skyline Business School are not approved by any competent body. The respondents gave the details of their activities and averred that Skyline Institute of Engineering and Technology was established to provide high quality education to the students in the field of technical education. The respondents asserted that the appellant cannot claim monopoly over the word `Skyline' which is a general word and s being used by as many as 32 companies operating in Delhi, 117 companies operating all over the country and worldwide there are thousands of institutes/institutions, companies, firms, etc. which are using that word as part of their name.The respondents
further pleaded that they were already running several companies/firms with the name Skyline and there is no possibility of deception and confusion among the students due to establishment of Skyline Institute of Engineering and Technology. Another plea taken by the respondents is that as per existing law no trademark can be granted in respect of educational services and, as such, the appellant does not have the locus standi to seek an order of injunction against them more so because Skyline Institute of Engineering and Technology was established in 2002 by spending more than Rs.20 crores and the students have already taken
admission against 240 seats sanctioned by AICTE. The respondents also alleged that the appellant was operating from the premises of Laxman Public School, Hauz Khas pursuant to an agreement entered into by Shri Kamal Puri in the name of Skyline Express. The respondents also filed reply on similar lines to the application for temporary injunction. Findings of the Learned Single Judge
8. After considering the pleadings of the parties and arguments of their counsel, the learned Single Judge opined that the word `Skyline' being neither an invented nor specific word, has to be considered a generic word more particularly when thousands of persons and institutions are using the same as a part
of their trading name or business activities. The learned Single Judge held that even a prior user of the name `Skyline' by the plaintiff would not confer upon it an exclusive right to use that name to the exclusion of others and pendency of the applications for registration under the Trade Marks Act, 1999 is inconsequential. The learned Single Judge then took cognizance of the fact that while the appellant is neither approved by AICTE nor affiliated with any university, the respondents have already obtained the recognition/permission and affiliation from the concerned statutory bodies and have spent huge amount for establishing the institute and further that the first batch of the students is already undergoing five-years course and held that the appellant is not entitled to equitable and discretionary relief by way of temporary injunction. While rejecting the argument that use of the word `Skyline' by the respondents for the Institute of Engineering and Technology established by them will create confusion in the mind of the general public and the prospective students who want to pursue their studies in the field of engineering and technology, the learned Single Judge observed:
"In the opinion of this Court, merely by the use of the word "Skyline" as a prefix in the name of the two institutes, there is to likelihood of such a confusion because the full name of the plaintiff institute is "Skyline Education Institute (India) Pvt. Ltd." while that of the defendant is "Skyline Institute of Engineering and Technology" used in defendant's name are sufficient to indicate to all concerned that the defendant is not the same institute as the plaintiff. In any case, care can be taken to clarify such a confusion, even if there is any likelihood of such a confusion."
9. Notwithstanding the above conclusion, the learned Single Judge partly allowed the application filed by the appellant. The operative portion of order dated 6.5.2003 passed by the learned Single Judge reads thus:-
"In the result, the application is partly allowed and till the disposal of the suit, the defendants are hereby restrained from starting any new courses similar to the courses run by the Plaintiff viz. graduate and post-graduate education in management, travel and tourism. The ex-parte ad-interim order dated 01.10.2002 is modified to the extent that the defendants will be free to make publicity/issue advertisements etc. in their existing name for any courses in technical/Engineering education provided the said advertisements contain a note to the effect that the institute of the defendants is not related to the Plaintiff's institute being run under the name of "Skyline Educational Institute (India) Pvt. Ltd.", in any way."
10. The appellant and respondents challenged the order of the learned Single Judge by filing separate appeals. The Division Bench expressed its agreement with the learned Single Judge that the word `Skyline' is not a generic word but was an adoptive word and observed:
"We also find no force in the argument of the counsel for the respondent that the word `skyline' was not a generic word and was an adoptive word as far as education is concerned. A student who would like to go to an educational institution, he is not a lay customer. If a student likes to go to St. Stephens College in Delhi or want to go to Sri Ram College of Commerce or Hindu College, he will go to these colleges and not to other although there may be similarity of names of other colleges. When the learned single Judge came to the conclusion that there is no similarity in the name of two parties, appellant using the name `skyline' as a prefix with the institute of technology and engineering and the respondent using `skyline' business school', a student would not get any deception by both names. A very large number of institutes, firms and companies etc. are using the word `Skyline' as part of their name which fact has not been categorically denied by the respondent."
The Division Bench then observed that after having found that the appellant has failed to make out a prima facie case and that balance of convenience was not in its favour, the learned Single Judge was not justified in directing the respondents not to
go ahead with the courses of BBA management and MBA management. This is evinced from the following extracts of the order of the Division Bench:
"Normally once all the ingredients like prima facie case, balance of convenience, equity if not found in favour of grant of injunction, injunction in any form ought not to have been granted. At the same time, that does not mean that Court in order to do justice cannot mould the relief or can grant an injunction in terms not prayed for to do justice between the parties. The concept of grant of injunction also have to be seen in the light as to what would be the loss suffered on account of an injury by non-grant of such an injunction. The argument, which has been raised before us that it was basically respondents suit for grant of an injunction against the appellant from using the word Skyline. Having come to the conclusion that Skyline was a word which was used by a very large number of people in India and abroad and it has a generic word, we cannot appreciate as to how the learned Single Judge has granted an injunction against the appellant not to start courses in management. To say the least, the present litigation is to have more commerce in education and less education in commerce. Private commercial houses by advertising fancy name of foreign universities lure students in this country. All this exercise is not in realm of imparting education but knowing fully well that in India the name of a foreign university is lucrative enough to get larger chunk of money from the pockets of the parents. What is the value of these degrees, whether they are permitted to do so or not, we will advert later. Here is a classic case of the respondent who got letters from the University of Lincolnshire and Humberside, UK both dated 17th October, 1996 which too was for a period of five years only with effect from 1st May, 1997. It as a certificate which the respondent was to given in travel and tourism. However, respondent started giving advertisements for education in BBA (Hons.) with specialization in marketing or tourism. One such advertisement is at page 516 of the paper book. It was contended before us by Mr. Singh that on 11 th March, 1998 they had also an arrangement of BBA Marketing programme from the said university. At this stage, we would not like to go to the question whether the respondent could have represented that they could offer courses in BBA Marketing or not, what is of relevant is even if we accept the argument of learned counsel for the respondent, they are `study centre' of a deemed university, Manipal Academy of Higher Education, that is also from the year 2003. The authorization to start courses came in the year 2003, although it was contended by the respondent that they have started courses from 2001. Was it justifiable on their part? Whether they could do so? Was there any legal bar? All are these issues which would be taken care of in the trial. Both the parties would be at liberty to lead evidence and argue the matter. At this stage, when the learned trial Judge has not entertained the plea of the respondent from prima facie case, balance of convenience and irreparable injury to respondent, restraining the appellant not to go ahead with their courses of BBA Management and MBA Management after due approval from AICTE in comparison to respondent being a `Study Center' only was without any basis."
11. Shri Sudhir Chandra, learned senior counsel appearing for the appellant argued that even though the word `Skyline' is being used by several companies, institutions and organizations, the same cannot be treated as a generic word and the contra concurrent finding recorded by the learned Single Judge and the Division Bench is legally unsustainable. Learned senior counsel submitted that though the appellant has not got registration under the Trade Marks Act, being prior user of the word `Skyline', it is
entitled to an order of injunction against the use of that word by respondent No.1 as part of their educational activities and the learned Single Judge and Division Bench committed serious error by refusing to protect the appellant from illegal, unlawful and unauthorised use of the word `Skyline' by the respondents. Shri Sudhir Chandra pointed that the appellant is an affiliate of the University of Lincolnshire and Humberside, U.K. and an approved study center of Manipal University and argued that the High Court committed an error by declining the appellant's prayer to restrain the respondents from using the word `Skyline' with the Institute of Engineering and Technology established by them. Learned senior counsel emphasized that even an unregistered prior user can file an action for passing off and the High Court committed serious error by refusing relief to the appellant ignoring the fact that the respondents established the Institute of Engineering and Technology by prefixing the word `Skyline' with the sole object of encashing the goodwill generated by the appellant and its sister concern which is operating in UAE. In support of his arguments, the learned senior counsel relied upon the judgments of this Court in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories 1965 (1) SCR 737, Ruston & Hornsby Ltd. v. The Zaminidara Engineering Co. 1969 (2) SCC 727, N.R. Dongre and others v. Whirlpool Corporation and another 1996 (5) SCC 714 and Satyam Infoway Ltd. v. Sifynet Solutions (P) Ltd. 2004 (6) SCC 145.
12. Shri L.N. Rao, learned senior counsel for the respondents supported the impugned order to the extent the Division Bench rejected the appellant's prayer for restraining the respondents from prefixing the word `Skyline' with the Institute of Engineering and Technology established by them and argued that this Court may nullify the effect of the direction given by the learned Single Judge in its entirety. He submitted that the discretion exercised by the High Court in declining the appellant's prayer for injunction does not suffer from any legal error and this Court may not interfere with the impugned orders because the concurrent finding recorded by the learned Single Judge and Division Bench on the issue of prima facie case is based on correct appreciation of the factual matrix of the case and in any case, equity is not in favour of the grant of injunction in terms of the prayer made by the appellant.
13. We have thoughtfully considered the entire matter. Before pronouncing upon the tenability or otherwise of the appellant's prayer for restraining the respondents from using the word `Skyline' for the Institute of Engineering and Technology established by them, we consider it necessary to observe that as the suit filed by the appellant is pending trial and issues raised by the parties are yet to be decided, the High Court rightly considered and decided the appellant's prayer for temporary injunction only on the basis of the undisputed facts and the material placed before the learned Single Judge and unless this Court comes to the conclusion that the discretion exercised by the High Court in refusing to entertain the appellant's prayer for temporary injunction is vitiated by an error apparent or perversity and manifest injustice has been done to it, there will be no warrant for exercise of power under Article 136 of the Constitution. In Wander Ltd. v. Antox India (P) Ltd 1990 (Supp.) SCC 727, this Court was called upon to determine the scope of appellate court's power to interfere with the discretion exercised by the court of first instance in granting or refusing the prayer for temporary injunction. The facts of that case were that in the suit filed by it, respondent-Antox India (P) Ltd. had prayed for
restraining the appellant from using registered trade mark `Cal-De-Ce'. The learned Single Judge of the High Court refused to entertain the respondent's prayer but on reconsideration of the matter the Division Bench passed an order of injunction. This Court reversed the order of the Division Bench and observed:
"... In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."
14. The proposition of law laid down in Wander Ltd. v. Antox India (P) Ltd (supra) was reiterated in N.R. Dongre v. Whirlpool Corporation (supra) in which this Court considered the correctness of an order of temporary injunction passed by the learned Single Judge of the Delhi High Court in a suit filed by the respondents to restrain defendants from manufacturing, selling, advertising or in any way using the trade mark `Whirlpool' or any other trade mark deceptively or confusingly similar to the trade mark `Whirlpool' in respect of their goods. The claim of the
plaintiffs-respondents was based on prior user of the mark `Whirlpool'. After considering the rival pleadings and material placed before him, the learned Single Judge granted temporary injunction. The Division Bench confirmed that order and dismissed the appeal preferred by the appellant. This Court, declined to interfere with the discretion exercised by the learned Single Judge and Division Bench of the High Court and held:
"Injunction is a relief in equity and is based on equitable principles. On the above concurrent findings, the weight of equity at this stage is in favour of the plaintiffs and against the defendants. It has also to be borne in mind that a mark in the form of a word which is not a derivative of the product, points to the source of the product. The mark/name `WHIRLPOOL' is associated for long, much prior to the defendants' application in 1986 with the Whirlpool Corporation, Plaintiff 1. In view of the prior user of the mark by Plaintiff 1 and its trans-border reputation extending to India, the trade mark `WHIRLPOOL' gives an indication of the origin of the goods as emanating from or relating to the Whirlpool Corporation, Plaintiff 1. The High Court has recorded its satisfaction that use of the `WHIRLPOOL' mark by the defendants indicates prima facie an intention to pass off the defendants' washing machines as those of the plaintiffs or at least the likelihood of the buyers being confused or misled into that belief."
15. A somewhat similar view was expressed in Cadila Health Care Ltd. v. Cadila Pharmaceuticals 2001 (5) SCC 73.
16. The ratio of the above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity.
17. In the light of the above, we shall now consider whether the impugned order is vitiated by an error of law apparent on the face of the record or refusal of the High Court to grant injunction in terms of the prayer made by the appellant has resulted in manifest injustice. A little journey in the backdrop of the case shows that the only ground on which the appellant sought temporary injunction against the respondents was that the word `Skyline' is a specific/distinct word and being a prior user, it was entitled to seek a restraint against the respondents from using that word in the name of the Institute of Engineering and Technology established by them. The learned Single Judge, after examining the rival pleadings and material placed before him recorded a well reasoned finding that the appellant has failed to
make out a prima facie case. The learned Single Judge opined that the word `Skyline' is a generic word because the same is being used by thousands of persons and institutions as part of their trading name or business activities. The learned Single Judge noted that while the plaintiff is neither approved by AICTE nor affiliated with any university, the respondents have obtained the requisite recognition and affiliation from the concerned statutory bodies and 240 students have already been admitted in the five years course and held that grant of injunction in terms of the prayer made by the appellant will be inequitable. The Division Bench independently considered the entire matter and expressed its agreement with the learned Single Judge that the appellant has failed to make out a prima facie case for grant of injunction. The Division Bench also agreed with the learned Single Judge that the word `Skyline' was a generic word because it was being used by a large number of people in India and abroad. The Division Bench then held that after recording adverse findings on the issues of prima facie case, balance of convenience and equity, the learned Single Judge was not justified in directing the respondents not to undertake in courses in management, tour and travels, etc. and append a note in the advertisements that their institute has no concern, whatsoever with the appellant's institution. Accordingly, the Division Bench substantially vacated the modified injunction order passed by the learned Single Judge.
18. In our opinion, the findings recorded by the learned Single Judge and Division Bench on the crucial factors like prima facie case, balance of convenience and equity are based on a correct and balanced consideration of various facets of the case and it is not possible to find any fault with the conclusions recorded by them that it is not a fit case for restraining the respondents from using the word `Skyline' in the name of the institute established by them. It has not been disputed on behalf of the appellant that the word `Skyline' is being used as trade name by various companies / organizations / business concerns and also for describing different types of institute/institutions. The voluminous record produced by the respondents before this Court shows that in India as many as 117 companies including computer and software companies and institutions are operating by using word `Skyline' as part of their name/nomenclature. In United States of America, at least 10 educational/training institutions are operating with different names using `Skyline' as the first word. In United Kingdom also two such institutions are operating. In view of this, it is not possible to agree with the learned counsel for the appellant that the Skyline is not a generic word but is a specific word and his client has right to use that word to the exclusion of others.
19. There is another reason for declining the appellant's prayer for grant of temporary injunction. The appellant is shown to have started Skyline Business School in 1997 as one of its division but has conveniently not mentioned that it had started another institution under the aegis of Asian Educational Society housed in the same building where the appellant claims to have its registered office. After three years of starting Skyline Business School, the Director of the appellant vide his letter dated January 4, 2000 permitted the President, Asian Educational Society to use the trade mark Skyline Business School, name and the logo albeit without disclosing as to when Skyline Business School was registered under the Trademarks Act, 1999. Thereafter, Skyline Group's Asian Educational Society through its President, Shri Kamal Puri entered into an agreement dated 9.12.2001 with Manipal Academy of Higher Education (deemed university) for establishing a branch campus at Skyline Business School, Delhi. Sikkim Manipal University also approved Skyline Business School as a University Study Center for taking management programme under distance education despite the fact that the Skyline Business School is not
recognized or approved by AICTE/UGC. In 1996, University of Oxford approved the appointment of a center in the premises of the appellant at Laxman Public School, Hauz Khas Enclave, New Delhi for Certification in Leisure Studies and in Travel and Tourism. In 1997, Skyline Business School entered into a Memorandum of Cooperation with University of Lincolnshire and Humberside, U.K. whereby the latter agreed to offer its BBA (Hons.) Tourism course through a center established at the appellant's campus. In large number of advertisements issued in the name of the appellant or Skyline Business School, it has not been made clear that they are neither approved nor recognized by any of the statutory bodies like, AICTE, UGC, etc. Of course, in some of advertisements, it has been mentioned that the degrees/diplomas purported to be awarded by the Skyline Business School are not recognized by Government of India, State Government, UGC/AICTE. All this lends sufficient credibility to the observations made by the Division Bench of the High Court that the present litigation is to have more commerce in education and less education in commerce and gives an impression that functioning of the appellant is shrouded in mystery and those seeking admission in the courses organised by it may find themselves in serious trouble at any given point of time because the degrees and diplomas awarded in the name of foreign universities are not recognised by statutory bodies/authorities in India.
20. Shri Sudhir Chandra may be right in his submission that even an unregistered prior user of a name can institute action for passing off and seek injunction against the subsequent user of the same name by proving that misrepresentation by the defendant to
the public that the goods/services offered by him are that of the plaintiff and such misrepresentation has caused harm to the goodwill and reputation of the plaintiff or the plaintiff demonstrates that it has suffered loss due to such representation, but, in view of our conclusion that the appellant has failed to make out a case for interference with the discretion exercised by the High Court not to entertain its prayer for temporary injunction, we do not find any valid ground to entertain and accept the argument of the learned senior counsel. For the same reason, we do not consider it necessary to discuss the judgments on which reliance has been placed by Shri Sudhir Chandra.
21. Although, during the pendency of the suit, the appellant got registration of trade marks `Skyline MEDALLIST' under No. 795085 and `Skyline Institute' under No. 795086 in class 16 and its prayer for amendment of the plaint was granted by the High Court on 24.8.2006, but, that by itself, is not sufficient for entertaining the appellant's prayer for temporary injunction to restrain the respondents from using the word `Skyline' as part of the Institute of Engineering and Technology established by them.
22. We may now advert to C.A. No. 1362/2005. The respondents' grievance is that after having reached the conclusion that the learned Single Judge was not justified in restraining the respondents from starting new courses in business management, etc. and directing them to append a note in the advertisement that they are in no way related to the appellant, the Division Bench should have set aside all the directions impugned before it. We find merit in the contention of the respondents. When the Division Bench found that the learned Single Judge ought not to have given direction restraining the respondents from starting new courses in business management etc. and directed them to append a note in the advertisement that they are not related to the appellant, then it should have set aside the order of the learned Single Judge in its entirety. The omission on the part of the Division Bench of the High Court to do so calls for a corrective action by this Court.
23. In the result, Civil Appeal Nos.1360-1361 of 2005 are dismissed and Civil Appeal No.1362 of 2005 is allowed and the modified injunction granted by the learned Single Judge is vacated in its entirety. The appellant shall pay Rs.50,000/- as cost of
unwarranted litigation thrust upon the respondents.
[ Tarun Chatterjee ]...........................J.
[ G.S. Singhvi ] .................................J.
[ Dr. B.S. Chauhan ]...........................J.
New Delhi,
January 05, 2010

ITEM NO.1A COURT NO.13 SECTION XIV
(FOR JUDGMENT)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 1360-1361 OF 2005
SKYLINE EDUCATION INSTITUTE (PVT) LTD. Appellant (s)
VERSUS
S.L.VASWANI & ANR. Respondent(s)
WITH Civil Appeal NO. 1362 of 2005
Date: 05/01/2010 These Appeals were called on for judgment today. For Appellant in Mr. Hari Shankar K,Adv. C.A. Nos.1360-1361/2009
& for Respondent in C.A. No.1362/2005
For Respondent in C.A. Nos.1360-1361/2009 & for Appellant in C.A. No.1362/2005 Ms. Hetu Arora,Adv.
UPON hearing counsel the Court made the following
O R D E R
Hon'ble Mr. Justice G. S. Singhvi pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Tarun Chatterje, His Lordship and Hon'ble Dr. Justice B. S. Chauhan.
Civil Appeal Nos.1360-1361 of 2005 are dismissed and Civil Appeal No.1362 of 2005 is allowed and the modified injunction granted by the learned Single Judge is vacated in its entirety. The appellant shall pay Rs.50,000/- as cost of unwarranted litigation thrust upon the respondents.
(Neetu Sachdeva) (Mithlesh Gupta)
Sr.P.A Court Master
(Signed non-reportable Judgment is placed on the file)

AMENDMENT OF PLEADINGS - AFTER COMMENCEMENT OF TRIAL

AMENDMENT OF PLEADINGS – BAR AFTER COMMENCEMENT OF TRIAL
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7251 OF 2008
[Arising out of SLP (Civil) No. 4740 of 2008]
Vidyabai & Ors. ...Appellants
Versus
Padmalatha & Anr. . ...Respondents
( Also reported in AIR 2009 SC 1433 )
JUDGMENT
S.B. SINHA, J :
1. Leave granted.
2. Whether pleadings can be directed to be amended after the hearing of a case begins is the question involved in this appeal which arises out of a judgment and order dated 24.10.2007 passed by the High Court of Karnataka at Bangalore in Writ Petition No. 14013 of 2007.
3. On or about 16.12.2003, the plaintiffs - appellants filed a suit for specific performance of an agreement of sale. According to the plaintiffs, one Prashant Sooji (since deceased) executed an agreement of sale on 15.01.2001 in respect of the suit property for a sum of Rs. 21 lakhs. Defendants - Respondents are the predecessors in interest of the said Prashant Sooji.
A written statement was filed on 17.04.2004. An application for amendment of the written statement was filed on 8.11.2006. In between the period 17.04.2004 and 8.11.2006, however, indisputably issues were framed and parties filed their respective affidavits by way of evidence. Dates had been fixed for cross-examination of the said witnesses.
On or about 8.11.2006, an application had been filed under Order VI Rule 17 of the Code of Civil Procedure (for short "the Code"), which was marked as IA 9 of 2006, seeking amendment to the written statement. On the same day, another application, which was marked as IA 10 of 2006, had also been filed purported to be under Order VIII Rule 1A of the Code for production of additional documents.
By reason of an order dated 18.07.2007, the learned Principal Civil
Judge (Sr. Dn.) Hubli dismissed the said applications holding that an entirely new case is sought to be made out. The contention that they had no knowledge of the facts stated therein and the respondents could not gather the materials and information necessary for drafting proper written statement earlier was rejected, stating:
"...However, this contention cannot be accepted. Because according to proposed amendment sought by defendants at para 3(a) will is dated 18.3.94. Therefore, naturally same would have been in the knowledge of defendants right from the date and moreover when they say that mother-in-law of defendant No. 1 is also necessary party and she is also got right and interest in the suit property and that she is alive, then through her defendants would have known about will right from beginning and hence it cannot be said that defendant No. 1 required time to gather information regarding will and further as details of will would have been within the knowledge of defendants and/ or could have been given by mother-in-law of defendant No. 1 i.e. Subhadrabai, then it was not necessary for defendant No. 1 to have any social activities or have knowledge of business to know about the will and hence proposed amendment regarding will cannot said to be not within the knowledge of defendants at the time of filing of written statement. Further regarding husband of defendant No. 1 being addicted to bad vices like womanizing, drinking etc again this would have been within the personal knowledge of defendant No. 1 as she is wife of deceased Prashant against whom whose allegations are made and this would have been in where knowledge right from the beginning and to have said knowledge again she need not have any knowledge of business or social activities and thus she also did not require any time to gather that the information which are well within her own knowledge..."
4. A writ petition was filed thereagainst. By reason of the impugned judgment, the High Court noticed the defence of the appellants in the following terms:
"There is no retracting of statement made in written statement already filed by the defendants".
It, however, took into consideration the fact that the said IAs were filed after the affidavit of evidence had been filed by the plaintiffs -appellants. Despite noticing the proviso appended to Order VI, Rule 17 of the Code, it was held;
"...According to Order 6 Rule 17, an amendment application can be filed at any stage of the proceeding. Filing of affidavit by way of evidence itself is not a good ground to reject the application filed seeking amendment of written statement. It is not out of place to mention that the parties must be allowed to plea. Such a valuable right cannot be curtailed in the absence of good ground."
I.A. 10 was also directed to be allowed.
5. Mr. S.K. Kulkarni, learned counsel appearing on behalf of the appellants, would submit that in view of the proviso appended to Order VI Rule 17 of the Code, the High Court committed a serious illegality in passing the impugned judgment.
6. Ms. Kiran Suri, learned counsel appearing on behalf of the respondents, on the other hand, would contend that the proviso appended to Order VI Rule 17 of the Code is not attracted in the instant case as by reason of the amendment to the written statement, no new case has been made out. It was submitted that `leave' to amend the written statement was filed for the purpose of elaborating the defence which had already been taken by the defendants and in that view of the matter, this Court should not exercise its
jurisdiction under Article 136 of the Constitution of India particularly when it is well-known that an application for amendment of written statement should be dealt with liberally.
7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under:
"Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.
8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition.
The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to `commencement of
proceeding'.
9. Although in a different context, a Three-Judge Bench of this Court in Union of India and Others v. Major General Madan Lal Yadav (Retd.) [(1996) 4 SCC 127] took note of the dictionary meaning of the terms "trial" and "commence" to opine:
19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.
The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced.
10. Order XVIII, Rule 4(1) of the Code reads as under:
"4. Recording of evidence (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the
parties rely upon the documents, the proof and
admissibility of such documents which are filed
along with affidavit shall be subject to the orders
of the Court."
This aspect of the matter has been considered by this Court in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. [(2004) 1 SCC 702] in the following terms:
"15. The examination of a witness would include
evidence-in-chief, cross-examination or re-
examination. Rule 4 of Order 18 speaks of
examination-in-chief. The unamended rule
provided for the manner in which "evidence" is to
be taken. Such examination-in-chief of a witness
in every case shall be on affidavit.
16. The aforementioned provision has been made
to curtail the time taken by the court in examining
a witness-in-chief. Sub-rule (2) of Rule 4 of Order
18 of the Code of Civil Procedure provides for
cross-examination and re-examination of a witness
which shall be taken by the court or the
Commissioner appointed by it."
In Kailash v. Nanhku [(2005) 4 SCC 480], this Court held:
"13. At this point the question arises: when does
the trial of an election petition commence or what
is the meaning to be assigned to the word "trial" in
the context of an election petition? In a civil suit,
the trial begins when issues are framed and the
case is set down for recording of evidence. All the
proceedings before that stage are treated as
proceedings preliminary to trial or for making the
case ready for trial. As held by this Court in
several decided cases, this general rule is not
applicable to the trial of election petitions as in the
case of election petitions, all the proceedings
commencing with the presentation of the election
petition and up to the date of decision therein are
included within the meaning of the word "trial"."
We may notice that in Ajendraprasadji N. Pandey and Another v. Swami Keshavprakeshdasji N. and Others [(2006) 12 SCC 1], this Court noticed the decision of this Court in Kailash (supra) to hold:
"35. By Act 46 of 1999, there was a sweeping
amendment by which Rules 17 and 18 were
wholly omitted so that an amendment itself was
not permissible, although sometimes effort was
made to rely on Section 148 for extension of time
for any purpose.
36. Ultimately, to strike a balance the legislature
applied its mind and reintroduced Rule 17 by Act
22 of 2002 w.e.f. 1-7-2002. It had a provision
permitting amendment in the first part which said
that the court may at any stage permit amendment
as described therein. But it also had a total bar
introduced by a proviso which prevented any
application for amendment to be allowed after the
trial had commenced unless the court came to the
conclusion that in spite of due diligence the party
could not have raised the matter before the
commencement of the trial. It is this proviso which
falls for consideration."
This Court also noticed Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344] to hold:
"41. We have carefully considered the submissions
made by the respective Senior Counsel appearing
for the respective parties. We have also carefully
perused the pleadings, annexures, various orders
passed by the courts below, the High Court and of
this Court. In the counter-affidavit filed by
Respondent 1, various dates of hearing with
reference to the proceedings taken before the
Court has been elaborately spelt out which in our
opinion, would show that the appellant is
precluded by the proviso to rule in question from
seeking relief by asking for amendment of his
pleadings.
42. It is to be noted that the provisions of Order 6
Rule 17 CPC have been substantially amended by
the CPC (Amendment) Act, 2002.
43. Under the proviso no application for
amendment shall be allowed after the trial has
commenced, unless in spite of due diligence, the
matter could not be raised before the
commencement of trial. It is submitted, that after
the trial of the case has commenced, no
application of pleading shall be allowed unless the
above requirement is satisfied. The amended Order
6 Rule 17 was due to the recommendation of the
Law Commission since Order (sic Rule) 17, as it
existed prior to the amendment, was invoked by
parties interested in delaying the trial. That to
shorten the litigation and speed up disposal of
suits, amendment was made by the amending Act,
1999, deleting Rule 17 from the Code. This
evoked much controversy/hesitation all over the
country and also leading to boycott of courts and,
therefore, by the Civil Procedure Code
(Amendment) Act, 2002, provision has been
restored by recognising the power of the court to
grant amendment, however, with certain limitation
which is contained in the new proviso added to the
rule. The details furnished below will go to show
as to how the facts of the present case show that
the matters which are sought to be raised by way
of amendment by the appellants were well within
their knowledge on their court case, and manifests
the absence of due diligence on the part of the
appellants disentitling them to relief."
The ratio in Kailash (supra) was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.
12. Reliance, however, has been placed by Ms. Suri on Baldev Singh and Others v. Manohar Singh and Another [(2006) 6 SCC 498], wherein it was opined:
"17. Before we part with this order, we may also
notice that proviso to Order 6 Rule 17 CPC
provides that amendment of pleadings shall not be
allowed when the trial of the suit has already
commenced. For this reason, we have examined
the records and find that, in fact, the trial has not
yet commenced. It appears from the records that
the parties have yet to file their documentary
evidence in the suit. From the record, it also
appears that the suit was not on the verge of
conclusion as found by the High Court and the
trial court. That apart, commencement of trial as
used in proviso to Order 6 Rule 17 in the Code of
Civil Procedure must be understood in the limited
sense as meaning the final hearing of the suit,
examination of witnesses, filing of documents and
addressing of arguments. As noted hereinbefore,
parties are yet to file their documents, we do not
find any reason to reject the application for
amendment of the written statement in view of
proviso to Order 6 Rule 17 CPC which confers
wide power and unfettered discretion to the court
to allow an amendment of the written statement at
any stage of the proceedings.
It is not an authority for the proposition that the trial would not deemed to have commenced on the date of first hearing. In that case, as noticed hereinbefore, the documents were yet to be filed and, therefore, it was held that the trial did not commence.
13. Reliance has also been placed by Ms. Suri on Pradeep Singhvi and Another v. Heero Dhankani and Others [(2004) 13 SCC 432]. Therein, the suit was filed in the year 1995 and, therefore, the proviso appended to Order VI, Rule 17 of the Code of Civil Procedure had no application.
Reliance has also been placed by Ms. Suri on Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others [(2006) 4 SCC 385]. No doubt, as has been held by this Court therein that the court should allow amendments that would be necessary to determine the real question of the controversy between the parties but the same indisputably would be subject to the condition that no prejudice is caused to the other side.
14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed.
However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of
the plaint.
15. In Salem Advocate Bar Assn (supra), this Court has upheld the validity of the said proviso. In any event, the constitutionality of the said provision is not in question before us nor we in this appeal are required to go into the said question.
16. Furthermore, the judgment of the High Court does not satisfy the test of judicial review. It has not been found that the learned Trial Judge exceeded its jurisdiction in passing the order impugned before it. It has also not been found that any error of law has been committed by it.
The High Court did not deal with the contentions raised before it. It has not applied its mind on the jurisdictional issue. The impugned judgment, therefore, cannot be sustained, which is set aside accordingly.
17. However, we may observe that the question as to whether the documents should have been called for or not by the court without there being the amended written statement before it may be considered afresh.
18. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
...............................J.
[S.B. Sinha]
................................J.
[Cyriac Joseph]
New Delhi;
December 12, 2008

Earning Wife Eligible

MAINTENANCE U/Sec.125 Cr.P.C. TO AN EARNING WIFE.
MAINTENANCE FOR AN EARNING WIFE

U/Sec.125 of the Cr.P.C.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1080 OF 2008

(Arising out of S.L.P. (Crl.) No.2124 of 2005)

Minakshi Gaur ...Appellant(s)

Versus

Chitranjan Gaur and Anr. ...Respondent(s)

(Also reported in AIR 2009 SC 1377 )

O R D E R

Leave granted.

Heard learned counsel appearing on behalf of the parties.

The Magistrate dismissed the petition under Section 125 of the Code of Criminal Procedure, 1973 (for short, `Cr.P.C.') on the sole ground that the wife was a working lady and had income from properties, as such, she may be able to maintain herself out of the said income. The said order has been con firmed by the High Court. Hence, this appeal by special leave.

According to the case of the appellant, her husband, who is Respondent No.1 herein, is a graduate in Engineering and his income is Rupees twenty thousand. In the counter affidavit filed before this Court, the fact that the income of the husband is Rupees twenty thousand per month has not been denied. However, it has been asserted that wife's returned income is Rs.98,820/- per annum, which shows that she was earning even less than Rupees nine thousand per month. Both the wife and husband are residing at Agra. In our view, it is not possible for the wife to maintain herself in the town of Agra with the income of less than Rupees nine thousand per month. The husband, who is earning at least Rupees Twenty thousand per month, as stated by the appellant in this appeal and not controverted, is liable to pay some amount of maintenance to the wife so that she may be able to maintain herself. In the facts and circumstances of the case, we are of the view that it would be just and expedient to direct the husband to pay Rupees five thousand per month to the wife by way of maintenance from the date of filing of the petition under Section 125 Cr.P.C.

Accordingly, the appeal is allowed, the impugned orders are set aside, petition under Section 125 Cr.P.C. is allowed and Respondent No.1 is directed to pay maintenance at the rate of Rupees five thousand per month from 1st November, 1998 till 31st July, 2008 in the following manner:
By 31st August, 2008, Rupees fifty thousand;
By 30th September, 2008, Rupees fifty thousand;
By 31st October, 2008, Rupees fifty thousand;
By 31st November, 2008, Rupees One lakh fifty thousand;
By 31st December, 2008, Rupees One lakh fifty thousand;
By 31st January, 2009, the balance amount.
All the instalments shall be paid by way of Account Payee Demand Draft
drawn upon a Bank at Agra, in favour of the appellant-Minakshi Gaur. The bank draft shall be made over to the wife by the husband personally or through his representative within the aforesaid time. The current amount of maintenance beginning from the month of August, 2008, at the same rate shall be paid to the wife by 15th day of the following month, i.e., maintenance for the month of August, 2008, shall be paid by 15th September and in the like manner for subsequent months.

                                                                              [B.N. AGRAWAL] ………..J .

                                                                              [G.S. SINGHVI] ………… J.

New Delhi,

July 14, 2008.

Lawyer has no lien over the client's files for non-payment of fees

Lawyer's right to lien over client's papers: The law revisited

Can a lawyer keep to himself the papers of his client in case the client does not pay his fees; or in other words, "Has the advocate a lien for his fees on the litigation papers entrusted to him by his client?" The question poses forth an interesting issue which requires an analysis not just on the standards of ethical behaviour to the followed by the legal fraternity but also an appraisal of the psyche of the Indian legal service-receiver. As far as the law of precedent goes in India, however, the issue is already settled by the decision of the Supreme Court in R.D. SAXENA v. BALRAM PRASAD SHARMA (AIR 2000 SC 3039) wherein the Supreme Court declared in the negative.

In holding that giving the right of lien (unlike what is allowed to a Solicitor in England) would lead to disastrous consequences in as much as the flow of justice would be impeded, the Supreme Court also noted that given the socio-economic conditions prevailing in the country, holding such a right of the legal practitioner may be susceptible to great abuse and exploitation. The Court also set aside the technical objection that such papers were under an agreement of bailment and declared that it was upon the ordinary process of law that the lawyer should recover his dues but not by retaining the files of the client. The Supreme Court also went on to declare that  while it was a professional duty and moral obligation of the lawyer to return the brief when the client required to change counsel but also declared that not returning the files would be considered as professional misconduct on the part of the erring lawyer.

The Supreme Court, holding that there was no legal provision favouring the advocate and no such proposition of law could be countenanced in favour of the legal professional, observed inter alia as under;
We would first examine whether an advocate has lien on the files entrusted to him by the client. Learned counsel for the appellant endeavoured to base his contention on Section 171 of the Indian Contract Act which reads thus:
Bankers, factors, wharfingers, attorneys of a High Court and policy- brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.
Files containing copies of the records (perhaps some original documents also) cannot be equated with the goods referred to in the section. The advocate keeping the files cannot amount to goods bailed. The word bailment is defined in Section 148 of the Contract Act as the delivery of goods by one person to another for some purpose, upon a contract that they shall be returned or otherwise disposed of according to the directions of the person delivering them, when the purpose is accomplished. In the case of litigation papers in the hands of the advocate there is neither delivery of goods nor any contract that they shall be returned or otherwise disposed of. That apart, the word goods mentioned in Section 171 is to be understood in the sense in which that word is defined in the Sale of Goods Act. It must be remembered that Chapter-VII of the Contract Act, comprising sections 76 to 123, had been wholly replaced by the Sales of Goods Act, 1930.
The word goods is defined in Section 2(7) of the Sales of Goods Act as every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached, to or forming part of the land which are agreed to be severed before sale or under the contract of sale.
Thus understood goods to fall within the purview of Section 171 of the Contract Act should have marketability and the person to whom it is bailed should be in a position to dispose it of in consideration of money. In other words the goods referred to in Section 171 of the Contract Act are saleable goods. There is no scope for converting the case files into money, nor can they be sold to any third party. Hence, the reliance placed on Section 171 of the Contract Act has no merit.
In England the solicitor had a right to retain any deed, paper or chattel which has come into his possession during the course of his employment. It was the position in common law and it later recognized as the solicitors right under Solicitors Act, 1860. In Halsburys Laws of England, it is stated thus (vide paragraph 226 in volume 44):
226. Solicitors rights. At common law a solicitor has two rights which are termed liens. The first is a right to retain property already in his possession until he is paid costs due to him in his professional capacity, and the second is a right to ask the court to direct that personal property recovered under a judgment obtained by his exertions stand as security for his costs of such recovery. In addition, a solicitor has by statute a right to apply to the court for a charging order on property recovered or preserved through his instrumentality in respect of his taxed costs of the suit, matter or proceeding prosecuted or defended by him.

Before India attained independence different High Courts in India had adopted different views regarding the question whether an advocate has a lien over the litigation files kept with him. In P. Krishnamachariar vs. The Official Assignee of Madras, (AIR 1932 Madras 256) a Division Bench held that an advocate could not have such a lien unless there was an express agreement to the contrary.
The Division Bench has distinguished an earlier decision of the Bombay High Court in Tyabji Dayabhai & Co. vs. Jetha Devji & Co. (AIR 1927 Bombay 542) wherein the English law relating to the solicitors lien was followed. Subsequently, a Full Bench of the Madras High Court in 1943 followed the decision of the Division Bench. A Full Bench of the Patna High Court in In re B.N. Advocate in the matter of Misc. Judl. Case No.18/33 (AIR 1933 Pat 571) held the view that an advocate could not claim a right to retain the certified copy of the judgment obtained by him on the premise that an appeal was to be filed against it. Of course the Bench said that if the client had specifically instructed him to do so it is open to him to keep it.
After independence the position would have continued until the enactment of the Advocates Act 1961 which has repealed a host of enactments including Indian Bar Council Act. When the new Bar Council of India came into existence it framed Rules called the Bar Council of India Rules as empowered by the Advocates Act. Such Rules contain provision specifically prohibiting an advocate from adjusting the fees payable to him by a client against his own personal liability to the client. As a rule an Advocate shall not do anything whereby he abuses or takes advantage of  the confidence reposed in him by his client, (vide Rule 24). In this context a reference can be made to Rules 28 and 29 which are extracted below:
28. After the termination of the proceeding, the Advocate shall be at liberty to appropriate towards the settled fee due to him, any sum remaining unexpended out of the amount paid or sent to him for expenses, or any amount that has come into his hands in that proceeding.
29. Where the fee has been left unsettled, the Advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of the proceeding for which he had been engaged, the fee payable under the rules of the Court, in force for the time being, or by then settled and the balance, if any, shall be refunded to the client.
Thus, even after providing a right for an advocate to deduct the fees out of any money of the client remaining in his hand at the termination of the proceeding for which the advocate was engaged, it is important to notice that no lien is provided on the litigation files kept with him. In the conditions prevailing in India with lots of illiterate people among the litigant public it may not be advisable also to permit the counsel to retain the case bundle for the fees claimed by him. Any such lien if permitted would become susceptible to great abuses and exploitation. There is yet another reason which dissuades us from giving approval to any such lien. We are sure that nobody would dispute the proposition that the cause in a court/tribunal is far more important for all concerned than the right of the legal practitioner for his remuneration in respect of the services rendered for espousing the cause on behalf of the litigant. If a need arises for the litigant to change his counsel pendente lite, that which is more important should have its even course flowed unimpeded. Retention of records for the unpaid remuneration of the advocate would impede such course and the cause pending judicial disposal would be badly impaired. If a medical practitioner is allowed a legal right to withhold the papers relating to the treatment of his patient which he thus far administered to him for securing the unpaid bill, that would lead to dangerous consequences for the uncured patient who is wanting to change his doctor. Perhaps the said illustration may be an over-statement as a necessary corollary for approving the lien claimed by the legal practitioner. Yet the illustration is not too far-fetched.
No professional can be given the right to withhold the returnable records relating to the work done by him with his clients matter on the strength of any claim for unpaid remuneration. The alternative is that the professional concerned can resort to other legal remedies for such unpaid remuneration.
A litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for any other reason. For whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client. It is time to hold that such obligation is not only a legal duty but a moral imperative.
In civil cases, the appointment of an advocate by a party would be deemed to be in force until it is determined with the leave of the court, (vide order 3, Rule 4(1) of the Code of Civil Procedure). In criminal cases, every person accused of an offence has the right to consult and be defended by a legal practitioner of his choice which is now made a fundamental right under Article 22(1) of the Constitution. The said right is absolute in itself and it does not depend on other laws. In this context reference can be made to the decision of this Court in State of Madhya Pradesh vs. Shobharam and ors. (AIR 1966 SC 1910). The words of his choice in Article 22(1) indicate that the right of the accused to change an advocate whom he once engaged in the same case, cannot be whittled down by that advocate by withholding the case bundle on the premise that he has to get the fees for the services already rendered to the client.
If a party terminates the engagement of an advocate before the culmination of the proceedings that party must have the entire file with him to engage another advocate. But if the advocate who is changed midway adopts the stand that he would not return the file until the fees claimed by him is paid, the situation perhaps may turn to dangerous proportion. There may be cases when a party has no resource to pay the huge amount claimed by the advocate as his remuneration. A party in a litigation may have a version that he has already paid the legitimate fee to the advocate. At any rate if the litigation is pending the party has the right to get the papers from the advocate whom he has changed so that the new counsel can be briefed by him effectively. In either case it is impermissible for the erstwhile counsel to retain the case bundle on the premise that fees is yet to be paid.
Even if there is no lien on the litigation papers of his client an advocate is not without remedies to realise the fee which he is legitimately entitled to. But if he has a duty to return the files to his client on being discharged the litigant too has a right to have the files returned to him, more so when the remaining part of the lis has to be fought in the court. This right of the litigant is to be read as the corresponding counterpart of the professional duty of the advocate.
Misconduct envisaged in Section 35 of the Advocates Act is not defined. The section uses the expression misconduct, professional or otherwise. The word misconduct is a relative term. It has to be considered with reference to the subject matter and the context wherein such term occurs. It literally means wrong conduct or improper conduct. Corpus Juris Secundum, contains the following passage at page 740 (vol.7):
Professional misconduct may consist in betraying the confidence of a client, in attempting by any means to practise a fraud or impose on or deceive the court or the adverse party or his counsel, and in fact in any conduct which tends to bring reproach on the legal profession or to alienate the favourable opinion which the public should entertain concerning it.
The expression professional misconduct was attempted to be defined by Darling, J., in In re A Solicitor ex parte the Law Society [(1912) 1 KB 302] in the following terms:

It it is shown that an Advocate in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to say that he is guilty of professional misconduct.
In this context it is to be mentioned that the aforesaid definition secured approval by the Privy Council in George Frier Grahame vs. Attorney-General, Fiji,(1936 PC 224). We are also inclined to take that wide canvass for understanding the import of the expression misconduct in the context in which it is referred to in Section 35 of the Advocates Act.
We, therefore, hold that the refusal to return the files to the client when he demanded the same amounted to misconduct under Section 35 of the Act. Hence, the appellant in the present case is liable to punishment for such misconduct.