Calcutta High Court
Heinz Italia S.R.L. & Anr vs Dabur India Ltd. & Ors on 26 September, 2008
Author: Dipankar Datta
Bench: Surinder Singh Nijjar, Dipankar Datta
APOT NO.170 of 2008
G.A. No.1383 of 2008
APO No.133 of 2008
arising out of
G.A. No.2430 of 2007
C.S. No.138 of 2003
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
HEINZ ITALIA S.R.L. & ANR.
Versus
DABUR INDIA LTD. & ORS.
For the Appellants : Mr. Goutam Chakraborty
Ms. Anuradha Salhotra
Mr. Ravi Kapoor
Mr. O.P. Jhunjhunwala
For the Respondents : Mr. Siddhartha Mitra
Mr. Hemant Singh
Ms. Mousumi Bhattacharjee
Mr. Soumitra Datta
Mr. Kushal Poddar
Heard on : 7.8.2008 and 11.8.08
Judgment on : 26.9.2008
BEFORE
The Hon'ble Justice Surinder Singh Nijjar, Chief Justice
And
The Hon'ble Justice Dipankar Datta
Dipankar Datta, J.
The first appellant, an Italian company, as assignee of the registered trade mark 'Glucon-D' is its proprietor. The second appellant is a subsidiary of the first appellant and the permitted/licensed user of the said trade mark. It manufactures, markets and sells an energy drink under the mark 'Glucon-D'.
The first respondent, a reputed Indian manufacturer of food products also manufactures, markets and sells an energy drink under the trade mark 'Glucose- D'.
Finding that the packaging in which the first respondent was vending its product was deceptively similar to the packaging used by the second appellant and thereby purchasers interested in the goods of the second appellant were being deceived, the appellants instituted a suit in the civil court at Gurgaon on 19.2.03 alleging infringement of registered trade mark and passing off. The prayer for ad interim injunction was refused by the said Court vide order dated 11.12.03. In appeal, the High Court of Punjab and Haryana by order dated 27.10.05 declined to grant interim relief. The Apex Court was approached by the appellants. By order dated 18.5.07 the appeal was allowed. The orders of the High Court and the Trial Court were set aside and order in terms of prayer clause
(ii) of the application for ad interim injunction was granted.
Reference to the relief claimed by the appellants and the findings reached by the Supreme Court shall be made later in the judgment.
Immediately after institution of the Gurgaon suit, the appellants had instituted Civil Suit No.138 of 2003 in this Court on 8.5.03 against the respondents. In such suit, relief claimed is as follows:
"a. A perpetual injunction restraining the Defendant, its successors, assigns, representatives, dealers and servants from using the trade mark GLUCOSE- D or any other trade mark deceptively similar to the registered trade mark GLUCON-D; and b. Perpetual injunction restraining the defendant, its successors, assigns, representatives, dealers and servants from using the trade dress/packaging deceptively similar and/or reminiscent of the Plaintiff's trade dress/packaging used with relation to goods sold under the trade mark GLUCON-D; and c. Perpetual injunction restraining the defendant, its successors, assigns, representatives, dealers and servants from using the packet design which is a copy of the Plantiff's package design for the goods sold under the trade mark GLUCON-D and or any other packet design which is an infringement of the Plaintiff's copyright in the artistic work; and d. Perpetual injunction restraining the defendant, its successors, assigns, representatives, dealers and servants from passing of his goods as and for the goods of the plantiff; and e. Enquiry into loss and damage suffered by the plaintiff's and decree for the amounts found due to the plaintiffs;
f. Rendition of true and proper account of the profit to be rendered by the defendant by the use of the trade mark GLUCOSE-D and the deceptively similar packaging on the goods being manufactured and marketed by them and a decree be passed in favour of the Plaintiff for the amount thus found due; and g. Mandatory injunction restraining the defendant, their representative, agents and servants and assigns to deliver upoto the Plaintiff on affidavit all sales promotion literature, stationery, printing blocks and any goods bearing the trade mark GLUCOSE-D or any other word deceptively and/or confusingly similar to; and h. Such other further relief as this Hon'ble Court may deem fit and proper in the circumstances of the case; and i. Attachment; and j. Receiver; and k. Costs l. Further or other reliefs."
On an interlocutory application filed by the appellants (G.A. 1675 of 2003) in connection with the suit, an ex parte order was passed on 8.5.03 in terms of prayer (b) thereof whereby the defendants, their servants and agents were restrained from selling the impugned products under the name 'Glucose-D' or any other mark deceptively similar to the registered trade mark 'Glucon-D'. The application was made returnable on 19.5.03. However, on 15.5.03 the order of injunction was modified by directing the respondents to maintain accounts in respect of sale of the products and to furnish copy of such accounts to the appellants. Direction for exchange of affidavits was passed.
The interlocutory application, on exchange of affidavits, was considered and by an order dated 9.6.03 the same stood dismissed. However, the modified interim order dated 15.5.03 was directed to continue for 15 days. Soon thereafter, on or about 30.6.03, the defendants filed an application under Section 10 of the Civil Procedure Code (G.A. 2313 of 2003) praying for stay of the Calcutta Suit. During pendency of this application, the appeal preferred by the appellants against the order dated 9.6.03 was considered by a Division Bench of this Court. By order dated 2.12.03, the appeal was allowed. The interlocutory application being G.A. No.1675 of 2003 was remanded for fresh hearing and decision. It was directed to be heard along with G.A. 2313 of 2003, being the Section 10 application. The directions for furnishing accounts was continued till disposal of the interlocutory application.
In terms of the directions of the Division Bench, both the applications were heard. On a contested hearing, a learned Single Judge by order dated 2.4.04 allowed the prayer for stay of the suit but rejected the prayer for dismissal of the interlocutory application though the appellants, on facts, were found not entitled to proceed with the interlocutory application. It was ultimately ordered that till disposal of the Gurgaon Suit, the Calcutta suit would remain stayed along with the interlocutory application.
Though an appeal has been preferred by the appellants against the order dated 2.4.04, no steps allgedly have been taken by them for expediting a decision on it. For the last four years the appeal is pending.
Inspired by the order of the Supreme Court dated 18.5.07, the appellants filed a second interlocutory application (G.A. 2430 of 2007) on 5.6.07 claiming, inter alia, the following relief:
"(a) Interim injunction restraining the Defendant, its successors, assigns, representatives, dealers and servants from using the trade mark GLUCOSE-D or any other trade mark deceptively similar to the registered trade mark GLUCON-D;
(b)Interim injunction restraining the defendant, its successors, assigns, representatives, dealers and servants from using a trade dress/packaging being Annexure "H" deceptively similar and/or reminiscent of the Plaintiff's trade dress/packaging used with relation to goods sold under the trade mark GLUCON-D;
(c) Interim injunction restraining the defendant, its successors, assigns, representatives, dealers and servants from using the packet design being Annexure "H" which is a copy of the Petitioner's package design for the goods sold under the trade mark GLUCON-D and or any other packet design which is an infringement of the Petitioner's copyright in the artistic work;
(d)Interim injunction restraining the defendant, its successors, assigns, representatives, dealers and servants from passing of his goods as and for the goods of the Petitioner;
(e) Ad-interim order in terms of the above prayers;
(f) Cost of and incidental to this application be paid by the Respondents;
(g) Such further order/orders and/or direction/directions be given as to this Hon'ble Court may deem fit and proper."
It is not necessary for a decision on the present appeal to narrate the proceedings initiated by the appellants pursuant to refusal of the learned Judge to grant ad-interim injunction since nothing turns on the orders passed thereon.
The application was finally heard on affidavits and by an order dated 20.2.08 passed by the learned Single Judge, the appellants were held entitled to orders of injunction in terms of prayers (b), (c) and (d) with the rider that such orders must be kept confined to the packaging forming annexure 'H' and should not be understood to spill over to the packets used by the defendants since June 15,2007, that of the jeans and T-shirt-jacket clad teenager exulting in a splash of yellow depicted on a green packet.
Aggrieved by non-grant of order of injunction restraining the respondents' use of the new packet, the appellants have filed the present interlocutory appeal.
The appellants' claim, as it appears from G.A. 2430 of 2007, is that the trade mark 'Glucon-D' was assigned to the first appellant by Glaxo India Limited along with the goodwill of the business in which the mark was used and its rights in the artistic work used on the packaging of the said trade mark, by a deed of assignment dated 30th September, 1994. Glaxo India Limited had been selling goods with the trade mark 'Glucon-D' since 1940. Energy drinks are being marketed by the second appellant under the trade mark 'Glucon-D' since its incorporation in 1994 and are sold in three variants or three different flavours, viz. Regular, Tangy Orange and Lemony Lime. The conflict between the parties is based upon the similarity of the packaging of the energy drinks 'Glucon-D (Regular)' of the appellants and 'Glucose-D' of the respondents. The appellants' packaging of 'Glucon-D (Regular)' consists of a distinctive colour scheme, predominantly of the colour green, with the photograph of a family of three (father, mother and son) apparently drinking glucose superimposed with the mark 'Glucon-D' as an essential feature of such packaging whereas the packaging used by the first respondent for marketing and selling its energy drink 'Glucose-D', it is alleged by the appellants, is deceptively similar to their packaging. According to the appellants, the first respondent has been making small changes in its packaging from time to time in order to deceive innocent purchasers by trying to pass off their goods as the goods of the appellants and from January, 2003 till date, has changed the packaging a number of times. The subject matter of complaint in the Gurgaon suit was the green packet marketed by the first respondent deceptively similar to the colour scheme of the appellants with the photograph of a happy family (father, mother and children - daughter and son) superimposed on it along with the mark 'Glucose-D'. Inquiries conducted at the behest of the appellants revealed that the first respondent had changed the packaging of its energy drink and had introduced a new packaging which was deceptively even more similar to the appellants' packaging. On the new packaging, with predominantly green as the background, the picture of a family of three (father, mother and son) playing football was superimposed with the mark 'Glucose-D' and such packets were being sold within the jurisdiction of this Court. This packaging of the respondents was marked Annexure 'H' to the application, referred to in prayer clauses (b) and (c) thereof. Based on their understanding of the order of the Supreme Court, the appellants contended in the application that the first respondent is now restrained from using the word 'Glucose-D' as a trade mark and also any packaging deceptively similar to the packaging of 'Glucon-D' on the premise that the Supreme Court has granted them relief under Order XXXIX Rules 1 and 2 of the Civil Procedure Code in respect of the trade dress of the Gurgaon pack which implies that the order covers the word 'Glucose-D' and hence is prohibited in any form. Despite the order of the Supreme Court, the first respondent has been continuing to violate the exclusive rights of the petitioner in the trade mark 'Glucon-D' by using the trade mark 'Glucose-D' and a packaging which is deceptively similar to the appellants' packaging of the goods sold under the trade mark 'Glucon-D'.
It is not in dispute that by the time G.A. 2430 of 2007 was taken up for final hearing by the Trial Court, the first respondent had abandoned the packaging which was complained of in the suit. The learned Judge considered the colour scheme and the overall effect of the new packaging of the product of the first respondent. It was further noted that the word 'Dabur' indicating the stable from which the product comes is more prominent above the writing 'Glucose-D' in the said packaging. The learned Judge also noticed that the appellants had pressed for an injunction even on the first respondent's new packet without amending the plaint and that the respondents stood their ground not on any technical plea, but on merits. Ultimately, it was held that the Supreme Court had not pulled up the first respondent for the mark 'Glucose-D' but the order was restricted to the deceptively similar packaging that the respondents had indulged in, which is the subject matter of the Gurgaon suit.
Mr. Chakraborty, learned Senior Counsel for the appellants invited the attention of the Court to the order dated 18.5.07 of the Supreme Court and submitted that despite the Supreme Court having observed that both 'Glucon-D' and 'Glucose-D' are items containing glucose and that there is remarkable phonetic similarity in these two words and ultimately having granted injunction in respect of the entire packaging forming subject matter of complaint in the Gurgaon suit which includes the mark 'Glucose-D', the learned Judge fell in error in not restraining the first respondent from using the trade mark 'Glucose-D' or any other trade mark deceptively similar to the registered trade mark 'Glucon-D' on the same reasoning.
It was next submitted that the contention of the first respondent that 'Glucose-D' is a generic term is not correct. The Supreme Court has held otherwise and therefore an injunction ought to have followed. He further urged that if Glucose D is used as a trade mark, the appellants are entitled to injunction having regard to the tests settled by judicial pronouncements and that the appellants obviously would have no grievance if 'Glucose-D' is indicated in any other portion of the packet as part of its contents. According to him, the defence of Glucose-D being a generic term is not available since Glucose-D has been registered as a trade mark. If a mark is registered, defence of generic term cannot be taken. Our attention was invited to Kerly's Law of Trade Marks and Trade Names (13th edition) on the Rules of Comparison vis-à-vis 'Idea of the mark', and it was contended that in case a mark resembles another mark and is likely to deceive or create confusion the main idea left on the mind has to be ascertained and a decision has to be given whether it amounts to infringement of the mark or not.
In support of his submissions, Mr. Chakraborty relied on the following decisions:
(a) AIR 1963 SC 980 : Kaviraj Pandit vs. Navaratna Pharmaceuticals Laboratories and AIR 1970 SC 1649 : Ruston & Hornby Ltd. vs. Zamindara Eng.
Co., to emphasize the distinction between passing off and an action for infringement;
(b) 2004 (28) PTC 121 (SC) : Midas Hygiene vs. Sudhir Bhatia & ors., for the proposition that an injunction must follow in cases of infringement either of trade mark or of copyright and that mere delay in bringing action is not sufficient to defeat grant of injunction in such cases;
(c) 1967 RPC 573 : Picot Limited vs. Goya Limited, for the proposition that a descriptive word used as a trade mark could be an infringement of a registered trade mark if its use was likely to deceive or cause confusion;
(d) (2004) 5 SCC 257 : Godfrey Philips India vs. Girnar Food & Beverages, for the proposition that a descriptive trade mark may be entitled to protection if it has assumed a secondary meaning, which identifies it with a particular product or as being from a particular source;
(e) 1951 RPC 103 (107) : de Cordova vs. Vick Chemical, for the proposition that even part of use of a trade mark would amount to infringement;
(f) 2001 PTC 300 (SC) : Cadila Healthcare Limited vs. Cadila Pharmaceuticals Limited, for the factors to be considered while deciding the question of deceptive similarity in an action for passing of on the basis of unregistered trade mark; and
(g) AIR 1960 SC 142 : Corn Products vs. Shangrila Food Products, for the proposition that the question as to whether the two marks are likely to give rise to confusion or not is one of first impression and that it is for the Court to decide that question.
On the basis of the above, he prayed for injunction to restrain the respondents from using the new packet.
Per contra, Mr. Mitra, learned Counsel appearing for the first respondent submitted that the process of the Court has been abused by the appellants. The appellants initially instituted the Gurgaon suit and having failed to obtain favourable orders approached this Court with a fresh suit. According to him, the observation of the Supreme Court that the colour scheme of Glucose-D and Glucon-D is almost identical with a happy family superimposed on both persuaded it to grant the injunction claimed restricted, however, only to prayer clause (ii). It was further contended by him that though the Supreme Court had granted prayer clause (ii) which only relates to package design, it had not restrained the first respondent from using the word 'Glucose-D'. He further invited the attention of the Court to the concluding portion of the Supreme Court order to emphasize that it is confined only to the limited question of an ad interim injunction and any observation made therein would not bind the trial Judge in the proceedings in the suit. Therefore, the learned Judge was free to draw his own conclusions. Furthermore, since the packaging introduced by the first respondent after the order of the Supreme Court is no longer similar to the packaging of its product by the appellants, no injunction could lawfully have been granted. It was also submitted that the order under appeal is a discretionary order without any glaring error committed by the learned Judge and even if a different conclusion can be arrived at, the Court of Appeal may not substitute the view taken since it is a plausible view. Finally, it was contended that the first respondent is entitled to protection in view of Section 35 of the Trade Marks Act, 1999 since 'Dabur Glucose-D' is a bonafide description of the character of the goods manufactured, marketed and sold by it. He, accordingly, prayed for dismissal of the appeal.
We have heard learned Counsel for the parties at length. In our considered view, for more than one reason we are not inclined to hold that the appellants have made out a strong case for grant of interim injunction as prayed and we find that there is no valid reason to disagree with the conclusion reached by the learned Judge.
While we proceed to assign reasons for our view, it would be of assistance to note relevant rulings of English Courts as well as the Supreme Court of India in relation to grant of injunction in trade mark and patent infringement and passing off cases.
Lord Denning in Hubbard vs Vosper reported in (1972) 2 WLR 389 ruled that:
" In considering whether to grant an interlocutory injunction, the right course for a Judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence and then decide what is best to be done. Some times, it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead. ......The remedy by interlocutory injunction should be kept flexible and discretionary. It must not be made a subject of strict rules."
In American Cyanamid vs. Ethicon reported in 1975 AC 396 the House of Lords stated the principles governing grant of injunction, albeit in patent litigation. According to Lord Diplock, "The Court must firstly be satisfied that there is a 'serious question to be tried'. Then it should turn at once to the balance of convenience. If it appears that damages awarded at the trial will adequately compensate the plaintiff and the defendant is likely to be able to pay them, interlocutory relief should not normally be granted. If damages will not be adequate to compensate the plaintiff it becomes necessary to consider whether, on the other hand, the defendant would be adequately compensated by damages upon the plaintiff's cross-undertaking, should he not make good his claim at trial; if they would be adequate the injunction will be granted. If the balance remains substantially even, some account can ultimately be taken of the relative strength of each party's case as revealed by the affidavit evidence." The Privy Council in de Cordova (supra) accepted that in an action for infringement of trade mark and passing off, the identification of an essential feature depends partly on the Court's own judgment and partly on the burden of the evidence that is placed before it. A trade mark is undoubtedly a visual device but the ascertainment of an essential feature is not to be by ocular test alone and since words can form part, or indeed the whole, of a mark, it is impossible to exclude consideration of the sound of significance of those words.
In terms of the ruling in Corn Products (supra), the question as to whether the two marks are likely to give rise to confusion or not is a question of first impression and it is for the Court to decide that question and in deciding such question approach has to be made from the point of view of a man of average intelligence and of imperfect recollection.
The Supreme Court while examining the respective packaging of products by the appellants and the first respondent held in its order dated 18.5.07 on the appellants' special leave petition that the colour scheme and the overall effect of the packaging has to be seen.
That delay is no ground to refuse injunction if infringement is prima facie established has been laid down in a number of decisions including in Midas Hygiene (supra).
As has been noted by the learned Judge, the packaging impugned in the suit has been discontinued by the first respondent. Its products are being marketed and sold in a new packet from 15.6.07. In the words of the learned Judge, the present packet used by the first defendant is that of a boy clad in blue jeans, T-shirt and a green jacket exulting in a burst of energy depicted by the yellowish splash immediately behind the boy in the predominantly green background of the packet. Compared with the packaging of the appellants the essential features of which is the word 'Glucon-D' and the picture of a happy family of a father, mother and son superimposed on a predominantly green background, we are of the considered view that the present packaging of the energy drink of the first respondent with the word Dabur written over the mark 'Glucose-D' with equal prominence has to be read together as part of the product offered for sale and the packaging, although it conveys the idea of the sipper being energized by reason of sipping the energy drink which is also the idea sought to be conveyed by the appellants packaging of their product, is not so deceptively similar so as to warrant an injunction on terms prayed for by the appellants.
Next, we would consider the effect of the Supreme Court order dated 18.5.07, which has been made the sheet anchor of the appellants' claim.
It appears from the plaint filed in connection with the Gurgaon suit that the appellants have prayed for an order of permanent injunction restraining the defendants therein from using the trade mark 'Glucose-D' or any other trade mark deceptively similar to the registered trade mark 'Glucon-D'. In the application filed by the appellants under Order 39 Rules 1 and 2 of the Civil Procedure Code, the first two prayers are as follows:
" a. The Defendant, its successor, assigns, representatives, dealers and servants be restrained by an interim injunction from using the trade mark GLUCOSE-D or any other trade mark deceptively similar to the registered trade mark GLUCON-D. b. The Defendant, its successor, assigns, representatives, dealers and servants be restrained by an interim injunction from using the trade dress/packaging deceptively similar and/or reminiscent of the Plaintiff's trade dress/packaging used with relation to goods sold under the trade mark GLUCON-D."
Although similar prayer was made before the Punjab and Haryana High Court, the same was declined. However, the Supreme Court set aside the said orders and granted the appellants relief in terms of prayer clause (ii) only.
Prayer clause (ii) reads thus:
"(ii) Pass an order granting interim injunction restraining the Respondent herein or his agents or representatives etc. from using in relation to goods the packet design which is a copy of the petitioner's package design for the goods being sold under the Trade Mark "GLUCON-D" and/or any other packet design which is an infringement of the petitioner's copyright in the artistic work"
Though the other prayer clauses of the petition filed before the Supreme Court is not on record but statements made in paragraph 6 of the affidavit-in- opposition filed on behalf of the first respondent dated 10th July, 2007 makes the position clear that no prayer had been made by the appellants before the Supreme Court to restrain the first respondent from using the mark 'Glucose-D' or any other deceptively similar mark that may amount to infringement of the appellants' registered trade mark 'Glucon-D'. Therefore, the prayer made for an order in this behalf firstly in connection with the Gurgaon suit and the appeal arising from the order refusing to grant ad-interim injunction as well as in the present suit appears to have been abandoned by the appellants. It also appears to be clear that the Supreme Court noticed the fact of pendency of the suit out of which the present appeal arises. Had the Supreme Court been satisfied that use of the mark 'Glucose-D' by the first respondent infringes the registered trade mark 'Glucon-D' of the appellants, an injunction would have surely followed based on the reasoning which led to granting relief in terms of prayer clause (ii). We find that the phonetic similarity in the words 'Glucose-D' and 'Glucon-D' and the fact that both are items containing glucose, as well as the colour scheme of 'Glucose-D' and 'Glucon-D' being identical with a happy family superimposed on both (with the only difference in number of members comprising the family) weighed in the mind of the Supreme Court while granting injunction in terms of prayer clause (ii). However, ultimately no order was passed restraining use of the word 'Glucose-D' by the first respondent. In view of the above, in our opinion, the order of the Supreme Court cannot be called in aid for claiming an order of injunction to restrain the first respondent from using the word 'Glucose-D'. Besides, the concluding portion of the order makes it clear that the Trial Court would not be bound by any observation since it pertained to grant of ad-interim injunction. We have no hesitation to hold that in view of the order of the Supreme Court granting limited relief, the appellants had no reason to feel encouraged for moving the learned Judge based on the reasoning therein.
That apart, while considering whether the appellants are entitled to any further relief over and above those granted by the learned Judge, we cannot exclude from our consideration the order dated 2.4.04. For reasons recorded in the said order, not only the first interlocutory application filed by the appellants has been stayed but the suit itself has been stayed. In Kerly's (supra), it has been observed that in an action for infringement of trade mark where the interim proceedings are likely to determine the dispute finally, one way or the other, probability of success the plaintiff can show at the ultimate trial on the merits is a relevant factor for grant of interlocutory injunction. We understand it to be the general rule that injunction of the nature sought for by the appellants, which is likely to determine the dispute finally at the interim stage, ought not to be granted by the Court unless it is satisfied that there is every likelihood, or in other words, real probability that the plaintiff would succeed on the trial of the suit. Although law seems to be well settled by the Supreme Court in its decision in Indian Bank vs. Maharastra State Cooperative Marketing Federation Ltd. reported in AIR 1998 SC 1952 that Section 10 of the Civil Procedure Code provides for stay of trial of the subsequent suit pending the former suit and is not a bar to the passing of interlocutory orders in the subsequent suit, the fact that by order dated 2.4.04 trial of the suit has not been stayed but the suit itself has been stayed along with the first interlocutory application, such fact in our considered opinion would definitely be a factor for refusing to exercise discretion in favour of the appellants. There is a serious question mark about the probability of the appellants' success at the trial of the present suit and we find no reason as to why damages should not afford an adequate remedy, assuming that the appellants ultimately succeed in the suit.
We hasten to add that resolution of the other issues raised by respective counsel for the parties as to whether 'Glucose-D' is a generic term or can be used as a trade mark or whether the first respondent is entitled to protection under Section 35 of the Trade Marks Act, as well as related issues would come for consideration in the suit itself and hence no observation in respect thereof is required to be made while deciding the present appeal.
It is settled law that in appellate proceedings from the grant or refusal of interim relief, the Court of Appeal is called upon to consider the correctness or otherwise of a decision which essentially is an exercise of judicial discretion and that it may not interfere where the decision impugned is not wrong in principle or does not suffer from glaring errors causing miscarriage of justice. We have been unable to find any such defect in the order of the learned Judge.
The appeal stands dismissed with costs assessed at 3000 GMs. Urgent photostat certified copy of this order, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor. I agree.
(SURINDER SINGH NIJJAR, C.J.) (DIPANKAR DATTA, J.)