- Gurudas & Ors vs Rasaranjan & Ors2013
While considering an application for injunction, it is well-settled, the courts would pass an order thereupon having regard to:
(i) Prima facie
(ii) Balance of convenience
(iii) Irreparable injury.
A finding on ‘prima facie case’ would be a finding of fact. However, while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. There may be a debate as has been sought to be raised by Dr. Rajeev Dhawan that the decision of House of Lords in American Cyanamid v. Ethicon Ltd.  1 All ER 504 would have no application in a case of this nature as was opined by this Court in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. [(1999) 7 SCC 1] and S.M. Dyechem Ltd. v. Cadbury (India) Ltd. [(2000) 5 SCC 573], but we are not persuaded to delve thereinto.
We may only notice that the decisions of this Court in Colgate Palmolive (supra) and S.M. Dyechem Ltd (supra) relate to intellectual property rights. The question, however, has been taken into consideration by a Bench of this Court in Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli Power (P) Ltd. [(2006) 1 SCC 540] stating:
“The Respondent, therefore, has raised triable issues. What would constitute triable issues has succinctly been dealt with by the House of Lords in its well-known decision in American Cyanamid Co v. Ethicon Ltd. [(1975) 1 AER 504], holding :
“Your Lordships should in my view take this opportunity of declaring that there is no such rule. The use of such expression as ‘a probability’, ‘a prima facie case’, or ‘a strong prima facie case’ in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.”
It was further observed :
“Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark on a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial.
* * * The factors which he took into consideration, and in my view properly, were that Ethicon’s sutures XLG were not yet on the market; so that had no business which would be brought to a stop by the injunction; no factories would be closed and no workpeople would be thrown out of work. They held a dominant position in the United Kingdom market for absorbable surgical sutures and adopted an aggressive sales policy.”
We are, however, not oblivious of the subsequent development of law both in England as well as in this jurisdiction. The Chancery Division in Series 5 Software v. Clarke [(1996) 1 All ER 853] opined:
“In many cases before American Cyanamid the prospect of success was one of the important factors taken into account in assessing the balance of convenience. The courts would be less willing to subject the plaintiff to the risk of irrecoverable loss which would befall him if an interlocutory injunction was refused in those cases where it thought he was likely to win at the trial than in those cases where it thought he was likely to lose. The assessment of the prospects of success therefore was an important factor in deciding whether the court should exercise its discretion to grant interlocutory relief. It is this consideration which American Cyanamid is said to have prohibited in all but the most exceptional case. So it is necessary to consider with some care what was said in the House of Lords on this issue.”
In Colgate Palmolive (India) Ltd. v.
Hindustan Lever Ltd. [(1999) 7 SCC 1], this Court observed that Laddie, J. in Series 5 Software (supra) had been able to resolve the issue without any departure from the true perspective of the judgment in American Cyanamid. In that case, however, this Court was considering a matter under Monopolies and Restrictive Trade Practices Act, 1969.
In S.M. Dyechem Ltd. v. Cadbury (India) Ltd. [(2000) 5 SCC 573], Jagannadha Rao, J. in a case arising under Trade and Merchandise Marks Act, 1958 reiterated the same principle stating that even the comparative strength and weaknesses of the parties may be a subject matter of consideration for the purpose of grant of injunction in trade mark matters stating :
“21Therefore, in trademark matters, it is now necessary to go into the question of “comparable strength” of the cases of either party, apart from balance of convenience. Point 4 is decided accordingly.”
The said decisions were noticed yet again in a case involving infringement of trade mark in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. [(2001) 5 SCC 73].”
While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused.
To prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony. Performance of ‘datta homam’ was imperative, subject to just exceptions. Above all, as noticed hereinbefore, the question would arise as to whether adoption of a daughter was permissible in law.
In Mulla’s Principles of Hindu Law, 17th edition, page 710, it is stated:
“488. Ceremonies relating to adoption (1) The ceremonies relating to an adoption are
(a) the physical act of giving and receiving, with intent to transfer the boy from one family into another;
(b) the datta homam, that is, oblations of clarified butter to fire; and
(c) other minor ceremonies, such as putresti jag (sacrifice for male issue).
(2) They physical act of giving and receiving is essential to the validity of an adoption;
As to datta homam it is not settled whether its performance is essential to the validity of an adoption in every case.
As to the other ceremonies, their performance is not necessary to the validity of an adoption.
(3) No religious ceremonies, not even datta homam, are necessary in the case of Shudras. Nor are religious ceremonies necessary amongst Jains or in the Punjab.”
Laxmibai (Dead) thru Lr’s & Anr. Vs. Bhagwanthbuva (Dead) 2006
- Section 3(a)of the Act 1956 defines ‘custom’ as follows:
“The expressions, ‘custom’ and ‘usage’ signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:
Provided that the rule is certain and not unreasonable or opposed to public policy: and Provided further that, in the case of a rule applicable only to a family, it has not been discontinued by the family”.
- Custom is an established practice at variance with the general law. A custom varying general law may be a general, local, tribal or family custom. A general custom includes a custom common to any considerable class of persons. A custom which is applicable to a locality, tribe, sect or a family is called a special custom.
Custom is a rule, which in a particular family, a particular class, community, or in a particular district, has owing to prolonged use, obtained the force of law. Custom has the effect of modifying general personal law, but it does not override statutory law, unless the custom is expressly saved by it.
Such custom must be ancient, uniform, certain, continuous and compulsory. No custom is valid if it is illegal, immoral, unreasonable or opposed to public policy. He who relies upon custom varying general law, must plead and prove it. Custom must be established by clear and unambiguous evidence.
- In Dr. Surajmani Stella Kujur v. Durga Charan HansdahAIR 2001 SC 938, this Court held that custom, being in derogation of a general rule, is required to be construed strictly. A party relying upon a custom, is obliged to establish it by way of clear and unambiguous evidence. (Vide: Salekh Chand (Dead) thr. Lrs. v. Satya Gupta & Ors. (2008) 13 SCC 119).
- A custom must be proved to be ancient, certain and reasonable. The evidence adduced on behalf of the party concerned must prove the alleged custom and the proof must not be unsatisfactory and conflicting. A custom cannot be extended by analogy or logical process and it also cannot be established by a priori method. Nothing that the Courts can take judicial notice of needs to be proved. When a custom has been judicially recognised by the Court, it passes into the law of the land and proof of it becomes unnecessary under Section 57(1) of the Evidence Act, 1872. Material customs must be proved properly and satisfactorily, until the time that such custom has, by way of frequent proof in the Court become so notorious, that the Courts take judicial notice of it. (See also: Effuah Amissah v. Effuah Krabah, AIR 1936 P.C. 147; T. Saraswati Ammal v. Jagadambal & Anr., AIR 1953 SC 201;Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041; and Siromani v. Hemkumar & Ors., AIR 1968 SC 1299).
- In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya, 14 Moo. Ind. App. 570, it was held: “It is essential that special usage, which modifies the ordinary law of succession is ancient and invariable; and it is further essential that such special usage is established to be so, by way of clear and unambiguous evidence. It is only by means of such evidence, that courts can be assured of their existence, and it is also essential that they possess the conditions of antiquity and certainty on the basis of which alone, their legal title to recognition depends.”