2012(51)PTC417(Del)
IN THE HIGH COURT OF DELHI
Decided On: 10.07.2012
Appellants: Kamdhenu
Ispat Limited
Vs.
Respondent: Nandlal Fruit Processor Pvt. Ltd. & Anr.
Judges/Coram:
Counsels:
For Appellant/Petitioner/Plaintiff: Mr. Ajay Amitabh Suman ,
Advocate-with Mr. Pankaj Kumar , Advocate
For Respondents/Defendant: None
JUDGMENT
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. The finding
of the learned Single Judge was that the suit itself does not disclose any
cause of action for any reliefs claimed.
2. 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.
3. As far as the finding arrived in the
interim application is concerned, we have heard the learned counsel 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.
4. 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.
5. 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 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.
6. 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. 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.
