The Oudh cases. Containing cases decided by the Court of the judicial commissioner of Oudh .. online

infringement of his patent. The defendant now admits that
the patent is TaUd and that he infringed it. The only questions
argned at die hearing were whether there was snfScient gronnd
for an injunction and whether the order as to the costs of the
suit was right

Illustration (u) to s» 54 of the Specific Relief Act is as
follows : —

A infringes B's patent If the Court is satisfied that the
patent is valid and has been infringed B may obtain an in-
junction to restrain the infringement

* Against the order of C. H. Boberts Esq., District Judge, Fyeabad, dated
6th June, 1903,



Digitized by VjOOQIC



104 THE OUDH CASES. [Vol. VII.

Bisbutt Datt i^ j;^^ often been pointed in patent eases in England

O. L. Perfect that wken a patent is infringed the patentee has a primd
facie case for an injunction for it is presumed that an
infringer intends to go on infringing and that the patentee
has a right to an injunction to prevent his doing so. Mr.
O'Neill who appears tor the defendant did not dispute
the propriety of applying the same rule in India but he
contended that the defendant when he infringed the plaintiffs
patent did not know that he was doing so as he was not aware
of the plaintiCE's patent and machines constructed according to
the plain ti£Ps patent were not in general use. The plaintiff
caused some witnesses to be examined on commission at Delhi
to prove that hundreds of machines had been made for him ac-
cording to his patent. Mr. O'Neill criticised the evidence of
these witnesses and urged that they had not proved the manu-
facture of such machines and that neither their evidence nor any
other evidence in the case shewed that the defendant must have
been aware of the existence of those machines or that the de-
fendant knew of the plaintiff's patent. In the view which I
take of this case it is unnecessary to consider whether the evi-
dence taken at Delhi proves the manufacture of machines ac*
cording to the patent in question or whether the defendant
knew of the existence of the patent or had reason to believe
that he was infringing any patent.

Mr. O'Neill relied upon the cases cited at p. 432 of Ed-
munds on Patents as establishing a rule that unless the Court
saw reason to apprehend future infringement it would not
grant an injunction but would consider an undertaking by the
defendant not to infringe the patent again sufficient protection
for the plaintiff, and he urged me to apply that rule to the pre-
sent case and hold that there was no apprehension of any fur-
ther infringement. The principal case cited by Mr. Edmunds
is that of Proctor v. Bailey (1) and of all the cases that I have
referred to this seems to be most favorable to the plaintiff. Let
me therefore compare that case with the case before me.



(1) L. R. 42 Ch. D., 390.



Digitized by VjOOQIC



Vol. VII.] THE OUDH CASES. 105

In that case the plaintiff Proctor had a .patent for automa- ^**^"^ **^^
tic stokerB dated in June 1875. One Bennis was a manafacturer G- L. Perfect,
of stokers which in an action by Proctor against Bennis
decided in February 1887 were held to be an infringement of
Proctor's patent. In 1882 Bennis supplied the defendant
Bailey with four stokers but they proved unsatisfactory and
they were taken down in 1883 and removed from the defendant's
premises in 1885. In 1887 Proctor wrote to the defendant
that he understood that the defendant was using stokers obtain-
ed from Bennis which were an infringement of the patent.
Several letters passed between the parties or their solicitors of
which I need only mention one dated March 9th 1887 in which
the defendant wrote to the plaintiff that he was not using either
the plaintiff's or Bennis's stokers and had no intention of doing
so, and he invited the plaintiff to come aiid see for himself.
The plaintiff commenced the action in 1888. The defendant
while admitting the validity of the plaintiff's patent denied that
he bad used any apparatus which was an infringement of it, or
in the alternative that he had done so in ignorance of the patent;
also that such user had been discontinued long prior to the
action as the plaintiff knew and that the defendant had never
threatened or intended and did not threaten or intend to U90
any apparatus infringing the patent. The Y ice-Chancellor
granted an injunction but the Court of appeal dismissed the
action. Cotton L. J. after referring to the fact that the de-
fendant had not manufactured stokers but bad only used them
and that the user had been dbcontinued five years before the
action said, '' Is there any possibility that the defendants will
" again infringe the patent ? I should say certainly not. " After
quoting the letter of March 9th 1887 the Lord Justice said,
** On receiving this answer the plaintiff ought to have made
** further inquiries and if he had done so he would have dis-
" covered that it was four years since the defendants had com-
** mitted any infringement." Commenting upon the defence
he said, " The defendants put in a defence which was not
''quite right for they disputed the fact of infringement. But
'* they do not stand in the same position as if they had been



Digitized by VjOOQIC



106 TEIE OUDfl CASES. [Vol. VII.

BitLan Datt « mannfactntersTof stokers. Had they been so their letters
a. L. Perfect. ** and the defence they put in would probably have led to th^
^inference that they intended to continue to infringe the
** plaintifE's patent, bnt under the circumstances I think it
"*' would be wrong to draw that inference." The case of
Millington v. Fox (1) was distinguished upon the ground that
the Lord Chancellor had in that case pointed out that if a
•certain letter written by the defendants had been received
before the action it would have been wrong to file it, because
the letter shewed that the defendants did not intend to go on
infringing the plaintifiE's trade mark, but that on the circum-
stances as they stood at the date of the filing of the bill the
defendants were justified in filing it. The case of Geary y.
Norton (2) was distinguished on the ground that the infringe-
ment had taken place just before the action and it was not
under the circumstances considered enough for the defendant
to say that they would not do it again. Fry, L. J. in concurring
with Cotton, L. J. relied principally upon the fact that the
infringement was an isolated act which took place nearly five
years before the action. Lopes, L. J. was inclined to uphold
the injunction but did not feel called upon to differ from the
rest of the Court

Now what are the facts of the present case ? The defend-
unt is himself the manufacturer of cane-crushing mills
and has obtained a patent for a mill which to the uninstructed
eye seems very much like the plaintifPs mill. The mill made
by the defendant of which the plaintiff complains is an exact
fac simile of the plaintiff's mill. The plaintiff has brought
suits against other persons for infringement of his patent. He
has issued notices and proclamations warning people not to
infringe it. The defendant admits having received a notice
from the plaintiff in 1900 not to infringe his patent. About
18 months before the suit eight mills made by the defendant
and resembling the plaintiff's mill were seized by the plaintiff,
and yet the defendant when examined at the trial said that he

(1) 3 My. and Cr. 338. (3) 1 De 0. and Sm. 9.



Digitized by VjOOQIC



Vol. VII.] THE OUDH CASES. 107

knew nothing of the plaintifiE's patent. In his written statement ^"^^» i^*t
the defendant denied the validity of the patent and the alleged O, L. Perfect
infringement.

The defendant's counsel informed me that at an early
stage of the case the defendant withdrew from the position
taken up by him in the written statement and admitted the
ralidity of the patent and that be had infringed it, bnt I can
find no trace of anything of the kind. The suit seems from
the record to have been resisted to the last.

I cannot see any points of resemblance between the present
case and the case of Proctor v. Bailey. None of the circum-
stances which induced the Court to refuse an injunction in that
case are to be found here. The defendant put forward every
defence good or bad that he could think of, and now that he has
failed to make out any one of them he turns round and says
that he will not again commit the act of which the plaintiff
complains. In my opinion the only inference to be drawn from
the defendant's conduct in the past is that he would infringe the
plaintifPs patent again if he dared to do so. Therefore the
plaintiff is entitled to the injunction granted by the Court
below.



Digitized by VjOOQIC



108 THE OUDH CASES. [Vol. Vlf.

SECOND CIVIL APPEAL, No. 2?» OF 1902. •



Before Mr, Spankif.



190:^, Raja MohamAJ* Momtaz Ali Khan (Plaintif) v. Wazik

Sbpt.15, Khan and othcrH (i>^/e/idan«*).



Arrears of renl^ nut /or — Decree arf settlement Court"^
Money charged upon immorable property — Jurisdiction of Civil
Court — Frame of suit — Relief — Indian Limitation Act, schedule
tt, articles 65il20 and 132 — Right to sue for arrears of money
due under settlement decree without proving receipt of the money
since the decree-^ Code of Civil Procedures ss. 13^ 43^ and 371*



At the first regular sdttleihefit the defendants obtained a dectee against
the Oovernment for proprietary rights in a ciearfaift village. A soit was broaghi
at the same settlement by the plaintiff for superior proprietary rights in the
same Tillage aii«l was dismissed, but the decree dismissing it decreed to hint
10 per cent, on llie Govetfimeht revenue. Subsequently the plaintiff sued ta
have this decree set aside, and to recover possession of the village or to obtain
an increased amount of '* roalikana." This suit abated after which the plaintiff
brought the present suit for arrears of the 10 per cent, on the Government
revenue docreed to him and he based his clnim upon the settlement decree.
The relief for which he asked was** that a decree for ** malikana ** dues in
respect of the village with costs of the suit be passed in his favour against the
defendants/'

Heht^ that the money claimed was not rent, and that the suit not being one
for arrears of rent within the meaning of the Oudh Rent Act was cognisable
by the CIvH Courts.

tteld further, that the 10 per cent, on the Government revenae decreed to
the plaintiff fras a charge upon the village.

Where a plaintiff is suing for money which as a matter of fact is charged
tipon immovable property, the suit may be regarded as one to raise the money
lout of the property* unless it is quite clear that the plaintiff only Intended to
ask for relief against the person of the defendants and not for relief against the
property, Having regard Ko the circumstances of the present case, ft was held



* Against the decree of K. A. Kemlall Esq., District Judge, Gonda, dated
2Bth May, 1902 modifying the decree of M. Badrul Hasan, Munsif. ttraula.
dated 3l8t Ai^ust. 1901.



Digitized by VjOOQIC



Vor. VIM



THE OUl>H(^ASES.



109



that this 'suit might properly be regarded as one for money charged upon
immovable property and that therefore it was governed by article 132 aiid not
by article 120 orjby article 66, schednlc ii of the Indian Limitation Act«

Upon the contention that the suit was barred by limitation because tba
plaintiff had not at any time received his share of the profit or any part thereof
it was held that the plain tiff*s right to receive the money having been estab*
lished by the settlement decree, he could sue for arrears for twelve years next
before the ;8uit without proving (hat he had received the money since the
decree.

NM^ that the suit was not liarred by sections 13, 43 and 371 of the Cotle of
Civil Proceclure.



Raja

Mohamad

Mumtaz AH

Khan

V.

Wazir Khan
and others^



For Appellant. — M. Mohamad Nasim,

For Rbspondrnts. — Mr. Arahi.

Spankib, a, J. 0. — At the first regular settlement certain
persons obtained a decree against the Government for proprie -
tary rights in mauza Bindaula. A snit was brought at the
same settlement on behalE oE Raja Mohamad Mumta^s Ali
Khan a minor for superior proprietary rights in the same village
This suit was dismissed, but the decree dismissing it decreed
to the Raja 10 per cent, on the Government revenue^ After
the Raja became of age he sued to have this decree set aside,
and to recover possession of this village, or to obtain an in-j
creased ^amount of " malikana." This suit abated. The Raja
subsequently brought the suit out of which this appeal arises
for arrears of the 10 per cent, on the Government revenue
decreed to him. The claim is based upon the settlement decree.
The MunsiE held that the suit was governed by article 120,
schedule ii, Indian Limitation Act. Both parties appealed to
the District Jiitlge. The District Judge held that the suit was
governed by article 65. This appeal and Second Civil Appeal
No. 299, which are appeals by the Raja raise the question as
to whether the suit is governed by article 132. Second Civil
Appeal No. 331, which is an appeal by the defendants, raises
otlii^r question!* which were raised by them in defending
the *uit.



Digitized by VjOOQIC



no



THE OUDH CASES.



[Vol. VII.



Boja*

Mohamad

Mumtas Ali

Khan

V^asir Khan
and others.



Oaeof the questions which the defendants raised in defence
of the suit was whether the suit was cognizable by the civil
Courts and they again raise this question here. In his plaint
the Baja described himself as the superior proprietor of the
Tillage. The arrears of the 10 per cent on the Government
revenue claimed by him he calls ^' malikana." He claims the
arrears for 11^ years less a certain amount paid to him. The
relief for which he asks is as follows. " The plaintiff prays
^^ that a decree for Bs. 303-12-0 malikana dues in respect of

^^ mauza Bindaula with costs of the suits be passed

^^ in his favour against the defendants." In my opinion the
money claimed is not rent. The Raja has no proprietary rights
in the village. The defendants are the full proprietors. The
following extract from the District Judge's judgment shows
what the nature of the money is which the Raja claims : — " I
^* sent for and examined one of the suits in which the Raja
^ obtained the decree in the case of this | village. It was given
*^ to him by Mr. Butts, Settlement Officer, not on anything he
^^ had proved in that case, not because he was the proprietor
" who was being excluded, but because there had been a general
** ruling that he was to be allowed 10 per cent, as an ^ old
^* zemindar'." The suit not being one for arrears of rent
within the meaning of the Oudh Rent Act, it is cognizable by
the civil Courts.

The next question is whether the 10 per cent, on the
Government revenue decreed to the Raja is a charge upon the
village. I think that it is. The decree awards to the Raja
out of the annual profits of the village a sum equal to 10 per
cent, on the Government revenue. The decree imposes the
liability for the payment of the money on the profits of the
village, a liability which attaches to the profits of the village
in whosesoever hands the village may be. A document under
which a sum of money was annually payable out of the profits
of a village was considered in Kanhia Lai v. Muhammad Ilusain
Khan (1) to create a charge upon the village.

(1) I. L. R.. 5 All.. 11. ~^



Digitized by VjOOQIC



Vol. VIL]



THE OUDH CASES.



Ill



Their Lordships of the Privy Oooncil have held that
article 132 only applies to suits brought for money charged
upon immovable property for the purpose of recovering it
out of the property so charged — Bamdin v. Kalka Pershad (1)
and this case has been followed in Miller v. Runga Naih
Moulick (2) and Rathnasami v. Svbramanya (3). The question
then arises whether the suit can be regarded as one for money
charged upon the village. There is no prayer that the arrears
claimed may be raised out of the village. The Munsif appears
to have thought that the money claimed was charged upon the
village, but that as there was no prayer that the charge should
be enforced, the suit could not be regarded as one for money
charged upon immovable property. It seems to me that where
a plaintifE is suing for money which as a matter of fact is
charged upon immovable property, the suit may be regarded
as one to raise the money oul of the property, unless it is quite
clear that the plaintiff only intended to ask for relief against
the persons of the defendants and not for relief against the
property. In this case the circumstance that the Baja does
not expressly ask for relief against the property, but asks that
a dteree may be passed against the defendants is not a sufficient
indication that he int^ided to claim relief against the defend-
ants personally and not against the property, I think there-
fore that the suit may properly be regarded as one for money
ofaarged upon immovable pn^erty* I am consequently of
opinion that the suit is governed by article 132, and not by
article 120, as held by Uie Munsif, or by article 65 as held by
the District Judge.

I have now to decide the remaining questions raised by
the appeal of the defendants. It was contended on their behalf
that the suit was barred by limitation because the Raja had not
at any time receiviKl his share of the profits or any part thereof.
The argument assumes that the suit is one to establish the
Raja's right to receive the money. But the suit is not one of

(1) L. R., 12 Ind. Ap. 12: S. C. I. L. R., 7 AU., 502.

(2) I. L. Rm 12 Calc, 389 at p. 395. (3) I. L. R., U Mad., 66 at p. 59.



Raja

Mohamad

Muintaz All

Khan

. V,

Wasir Khan
andothen.



Digitized by VjOOQIC



112



THE OUDU CASES



[Vol. VII.



Eaja
Mohamad
Mumtas Ali

Khan

t.

Wasir Khan

and others.



that nature. The llaja^s right to receive the money has been
established by the settlement decree. He can sue for arrears
for 12 years next before the suit without proving that he
received the money since the decree — See Gajpat liai y.
Chimman Rai (1). Even if this suit were regarded as one
to establish his right to receive the money as well as to receive
the arrears of money it would not be barred by limitation
unless it were shown that the defendants refused the enjoy-
ment of the right for 12 years before the suit, which is not
shown.

It was also contended that the suit was barred by ss. 13, 43
and 871, Civil Procedure Code. It is as plain as possible that
the suit is not affected by tbese sections. In the suit which
the Baja brought to get rid of the settlement [decree and to
recover possession of the village he could not have put in issue
the question as to his right to the money decreed to him by
that decree or have sued for arrears of the money, and the
present suit is not brought on the same cause of action as the
former suit

It was lastly contended that as the Raja had sued to have
. the settlement decree set aside he was estopped from claiming
under it. In my opinion the contention is not sound. The
position of the defendants has not in any way been altered by
•the fact that the Raja sued to set aside the decree and failed
to have it set aside.

I allow this appeal and appeal No. 299 and modify the
decrees of the Courts below and decree to the plaintiff the
money claimed by him, and direct that the same be recovered
by the sale of the village. Let a decree for sale be drawn up,
fixing three months for the payment of the money decreed plus
the costs of the plaintiff in all three Courts.

Appeal No. 331 will be dismissed with costs.

(1) I. L. Rm 16 All., 189.



Digitized by.VjOOQlC



Vol. VH.l THE OUDH OASES. 113

CRIMINAL REFERENCE, No. 6 OF 1904,*



Bi'fore Mr, Scott and Mr, Chamwr.



King-Emperor r. Parmeshur,



Security for good ieha ciour— Surety^ rejection of upon Police
report — Procedure to be followed where Police report tmfavour'-
Me to surety — Discretion ef Magistrate in respect of sureties
— Code of Criminal. Procedure^ ss. 110 and 117.



The accused was called upon to give security for his good 'behaviour rh.^
Ms own bond for Rs. 490 and one surety in the same sum. R offere<l himself as
surety and tJiereupon the Magistiratc ordered the Sub- Inspector of the Thana
within whose limits R resided to report upon him. The Sub-«Tnsi)ector made
an unfavourable report an<l the Mngistmte without talcing any evidence aud
without giving notice to the accused rejected the surety.

Ueldy that the Magistrate should not have rejected the sarety merely upon
the police report. There is no objection to a Magistral enquiring whether the
PoHce have any reason to urge why a person should not be acceptctl as surety
but an unfavourable report should be treated not as evidence but as an objectioti
made by a party to the proceeding and that before tlie surety is rejected notico
of the reporter objection should be given to the person bound over and the
Magistrate shoukl give both him and the Police an opportunity of adducing
evidence. Magistrates should not rqject sureties except for definite aad good
reasons and unnecessary difficulties should not be thrown in the way of the
persons ordered to give security for good behavior.



Fob Accused, — N-emo.

For Crown. — The Govemmemi Pleader^

Scott, J. C. and Chamibr, A. J. C. — In ttnis casa
Parmeshur a resident of a vilkige within the limits o£ the Katra
Thana in the Gonda district was called upon to give security
for his good behftviour namely his own bond for Rs. 400 and
one surety in the same sum. One Ram Charan a resident of a
* Rcportal by Pandit Sri Lai, Sessions Judge, Gonda, on 22nd December



W04

April 6*



Digitized by VjOOQIC



114 THE OUDH CASES. [Vol. VII

Emperor village within the limits of the Ityathok Thana offered himself
^- as surety. Thereupon the Magistrate called for a report from

a Tahsildar as to whether Ram Charan was reliable and respect-
able. The Tahsildar reported that he was possessed of sufficient
means and was a respectable man. The Magistrate then ordered
the Ityathok Police to report upon him. The Sub-Inspector
of the Ityathok Thana reported that the people of the village
in which Ram Charan lived said that he was a respectable man
but that it had been ascertained that Ram Charan had consent-
ed to give security because he was a friend of the associates
of Parmcshur and because the latter had lent him Rs. 400 to
trade with. The Sub-Inspector also stated that Ram Charan
lived at a distance of 18 niiles from Parmeshur's village and
therefore would not be able to exercise any influence over him.
Upon receipt of this report the Magistrate without taking any
evidence and without giving notice to Parmeshur rejected Ram
Charan upon the stated ground that as a theft had occurred in
the house of one Gaya Din in which Parmeshur was supposed
to have taken part and as Ram Charan was a friend of the com-
panions of Parmeshur and lived near Gaya Din it was probable
that Ram Charan had assisted the thieves ; therefore he was not
a fit person to be surety.

The Sessions Judge in reporting the case to this Court has
referred to the case of Emperor v. Tola Ram (1) in which
Blair, J., following an opinion expressed by Knox and Banerji,
JJ., in an earlier case held that a Magistrate who had to
decide whether a surety is or is not a fit person] must do so
upon evidence and not upon the report of another person
which is not evidence. The Magistrate in his explanation
states that his order rejecting Ram Charan is not based upon
the police report, but it appears to be based in part at least on
that report for the name of Ram Charan does not appear at
sill in the record of proceedings under section 117 of the
Code.



(.n 1. L. K.. 25 All., 272.



Digitized by VjOOQIC



Vol. VII.] THE OUDH CA8ES. Iir»

The Allahabad High Court holds that a Magistrate who Em e?or
binds a person over to he of good behaviour must himself «'•

enquire whether the sureties are fit persons and should not call
for a report from a Tahsildar. Hitherto it has we believe
been a common practice to call for a report from the Tahsildar
both as to the means and as to the respectability of persons
who ofiEer themselves as sureties. If the report is favourable
and the Police do not offer anj objection to the sureties the
Magistrate as a rule accepts them. So far we think that the
practice is unobjectionable. But if the Tahsildar's report is
unfavourable or the Police offer any objection to the sureties
then before the sureties are rejected notice of the report or