M/S Kamdhenu Ispat Limited vs M/S Nandlal Fruit Processor Pvt ... on 10 July, 2012
$~ R-37* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: July 10, 2012
+ RFA(OS) 129/2010
M/S KAMDHENU ISPAT LIMITED ..... Appellant Represented by: Mr.Ajay Amitabh Suman, Advocate with Mr.Pankaj Kumar, Advocate
versus
M/S NANDLAL FRUIT PROCESSOR PVT LTD & ANR ....Respondents
Represented by: None
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (ORAL)
1. The present Regular First Appeal arises out of the judgment/order dated 18th October, 2010 whereby the appellant's suit bearing CS(OS) No.2301/2008 for infringement of trade mark and passing off was dismissed along with the pending applications.
2. The finding of the learned Single Judge was that the suit itself does not disclose any cause of action for any reliefs claimed.
3. The suit as well as the interim application was listed before the Court. Learned counsel appearing on behalf of the appellant states that only in the interim application, arguments were addressed by both sides.
4. As far as the finding arrived in the interim application is concerned, we have heard the learned counsel
RFA(OS) 129/2010 Page 1 of 3 appearing on behalf of the appellant and after hearing, we are of the considered view that it is not a fit case which requires any interference, in view of the averments made in the pleadings of the defendants and documents placed on record. The learned Single Judge after examining those documents has rightly come to the conclusion that the documents filed by the defendants therein showed that they have been using the word 'KAMDHENU' as their corporate name/trade name since 1969; their documents also revealed a partnership deed of 1986 and the material on record also suggested that they have been using the mark at least since 2000 if not earlier. The suit was filed in the year 2010. The business activities of both the parties are different, as the plaintiff/appellant is engaged in the business of manufacturing and selling steel products and on the other hand, the defendants/respondents are in the business of trading spices, pickles etc.
5. We agree with the said finding arrived by the learned Single Judge who dismissed the interim application being I.A. No.13348/2008. However, by rejecting the interim injunction, the learned Single Judge has also rejected the plaint by observing that the suit itself does not disclose any cause of action for any of the reliefs claimed.
6. We are not agreeable with the said view taken by the learned Single Judge, as a cause of action is a bundle of facts which are required to be pleaded and proved for the purposes of obtaining relief claimed in the suit. Whether a plaint discloses a cause of action or not is an essential question of fact, but whether it does or does not, must be found out from reading of the plaint itself. In ascertaining, whether the plaint shows a cause of action, the Court is not required to make an elaborate inquiry into doubtful or
RFA(OS) 129/2010 Page 2 of 3 complicated question of law and facts. Rejection of plaint is a serious matter, as it non-suits the plaintiff and it finishes a cause of action, the moment plaint is rejected. In the present case, we feel that the plaint ought not to have been rejected while deciding the interim application. Even there was no representation on behalf of the respondents in this regard.
7. Under these circumstances, the appeal is partly allowed. As far as the interim application under Order XXXIX, Rules 1 & 2 CPC being I.A. No.13348/2008 is concerned, the same shall be treated as dismissed. The suit is accordingly restored at its original position.
8. The suit shall be listed before the Joint Registrar on 16th August, 2012 who shall serve the defendants afresh and after completion of admission/denial of the documents would list the suit before Court for settling issues and directions for trial.
(PRADEEP NANDRAJOG)
JUDGE
(MANMOHAN SINGH)
JUDGE
JULY 10, 2012/ka
RFA(OS) 129/2010 Page 3 of 3
