V.K. Shali, J.
I.A. 13220/2008 (Under Order 7 Rule 11 CPC), IA 805/2009 & IA 11897/2010 (Under Order 6 Rule 17 CPC (seeking amendment in the plaint to bring about the latest address of the plaintiff company in Delhi)
1. This order shall dispose of the three applications bearing Nos. 13220/2008, 805/2009 & 11897/2010.
2. Briefly stated that facts of the case are that the plaintiff had filed the present suit against the defendant for infringement of trademark, passing off and damages in respect of pharmaceutical preparation sold by them under the trade name of LODOZ. It was alleged that the defendant was selling the pharmaceutical preparations under the trade name of LODIL which was infringing the trade mark of the plaintiff. The defendant was allegedly also passing off its product as that of the plaintiff.
3. The defendant after filing of the written statement, filed an application under Order 7 Rule 11 read with Section 151 CPC on 22.10.2008, wherein it was alleged that the plaint is liable to be rejected. The grounds for rejection of the plaint was that the suit is barred by law. It was the case of the defendant that this Court does not have the territorial jurisdiction to try the suit. It was alleged that the present suit is a composite suit for infringement of trade mark and passing off filed by the plaintiff as stated by them in para 24 of the plaint.
4. The suit has been filed in Delhi by invoking Section 134(2) of the Trade Marks Act, 1999. It was alleged that so far as invocation of Section 134(2) of the Trade Marks Act is concerned, the plaintiff had stated that its place of business is at A-2/202, Printers Apartments, Sector-13, Rohini, Delhi-110085, which was stated to be the Branch office of the plaintiff. It was stated that as a matter of fact, this was the residential address of one Mr. Bindra who was working for the plaintiff company. It was alleged that the defendant has made independent investigation and filed an affidavit of the investigator that A-2/202, Printers Apartments, Sector-13, Rohini, Delhi-110085 is a residential address of one Mr. Bindra and not the branch office of the plaintiff. Photographs of the flat in question were also placed on record to show that it could not have been the business address of the plaintiff company.
5. Extending this objection further, it was the case of the defendant that so far as the passing off action is concerned, Section 20 CPC confers jurisdiction on two Courts, one where the defendant resides or works for gain or where the cause of action accrues. It was the case of the defendant that no part of the cause of action has accrued in Delhi and the defendant is neither having residence nor business in Delhi. It is alleged that the defendant is doing business at various places other than the Delhi and therefore, this Court does not have the jurisdiction. It was urged by the learned Counsel that so far as the question of concealment of facts or a party being a prior user or not, would not be a ground for rejection of the plaint, though it may be relevant for purpose of grant of interim injunction or at the time of final disposal of the matter.
6. In addition to this, in the application under Order 7 Rule 11 CPC various other points regarding suppression and concealment of facts, as also no prima facie case is being made out against the defendant being the prior user, were also averred but they were not pressed and thereof are not dealt with. Even otherwise, the entire thrust of the learned Counsel for the defendant was on the rejection of the plaint on the ground of cause of action clause pertaining to infringement and passing off.
7. The plaintiff had filed its reply and taken the plea that the concerned official Mr. Bindra who was working earlier as a consultant of the plaintiff company had actually ceased to be consultant and was employed as the Manager of the plaintiff company. But on account of inadvertent typographical error, the residential address of Mr. Bindra who was living at A-2/202, Printers Apartments, Sector-13, Rohini, Delhi-110085 typed as the place of business of the plaintiff company while as by the time, the petition was filed, the plaintiff had already shifted its business to A-35, Jhilmil Industrial Area, Delhi -95. Accordingly, the plaintiff had been constrained to file an application bearing IA No. 805/2009, wherein it was stated that the address of the plaintiff may be permitted to be corrected as A-35, Jhilmil Industrial Area, Delhi-95. Photographs in this regard were also placed on record by the plaintiff.
8. Applications under order 7 Rule 11 CPC as well as under Order 6 Rule 17 CPC regarding change of address remained pending for almost two years and in the meantime, when the applications were taken up for hearing, another application bearing IA No. 11897/2010 was filed by the plaintiff after serving an advance copy to the defendant. No reply to this application has also been filed. In the latest application, under Order 6 Rule 17 read with Section 151 CPC, the plaintiff No. 2 had stated that it has changed its place of business to A-62, Naraina Industrial Area, Phase-I, Delhi to L-2, J.R. Complex, Gate No. 4, Village Mandoli, Delhi-93. A notarized copy of the lease deed had also been placed on record. Thus it was contended by the counsel for the plaintiff that the plea of the defendant that the suit is liable to be rejected on the ground of lack of cause of action or being barred by law, as it does not have any place of business in Delhi as required by Section 134(2) is not sustainable anymore in law.
9. I have heard the learned Counsel for the parties on the applications and perused the record.
10. The learned Counsel for the defendant has very vehemently contended that so far as the present plaint is concerned, it is liable to be rejected on the ground that the plaint itself originally showed the place of business of the plaintiff No. 2 as A-2/202, Printers Apartments, Sector-13, Rohini, Delhi-110085, which was in fact the residential address of one Mr. Bindra. The defendant has placed reliance on an affidavit filed by it, after investigations as well as on the photographs. Another subsidiary argument to this, which has been urged, by the learned Counsel for the defendant is that the relief of infringement and passing off has been clubbed together while as for the purpose of passing off the jurisdiction of a Court is to be seen with reference to Section 20 of CPC. It is urged that none of the conditions of Section 20 CPC is satisfied in the instance case.
11. The learned Counsel for the plaintiff has contested the submission of the defendant regarding rejection of the plaint on this score. It has been urged by the learned Counsel for the plaintiff that so far as the address of Mr. Bindra is concerned, he was earlier working as a Consultant and the address of the plaintiff No. 2 was given as the address wherefrom Mr. Bindra was functioning and in any case this non-issue, on account of fact that the plaintiff has filed two successive applications, intimating change of address of plaintiff No. 2 and therefore, the case being at the threshold, the Court, in spite of going into super technicalities and rejecting the plaint, may permit the plaintiff to carry out necessary amendments in the plaint regarding the address of the plaintiff so as to decide the question of infringement of passing off, as the case may be, on merits.
12. I have carefully considered the submission of the respective side.
13. There is no dispute about the fact that the law empowers the Court to reject the plaint under Order 7 Rule 11 CPC on various grounds one of which is lack of cause of action under Clause �a� and the suit being barred by any law under Clause �d�.
14. The entire thrust of the learned Counsel for the defendant in the instant case is that the address which is actually the address of one of its Consultant Mr. Bindra and this fact has been got verified through an independent investigator and photograph of the apartment has also been attached. This is admittedly not the place of business of the plaintiff u/s 134(2) and hence the suit is barred by law.
15. I am afraid that this is not the correct procedure while considering the request of the defendant to reject the plaint of the plaintiff. The law regarding rejection of plaint is that while doing so, what the Court has to look is only the plaint and the documents and not the averments made in the written statement or the documents which have been filed by the defendant. The defendant in the instant case is placing heavy reliance on the affidavit of its investigator and the photograph and alleged that the averments made by the plaintiff in the plaint giving the place of its business is not correct. That would be literally going into the question of truthfulness and falsity of the place of business as averred in the plaint. Once this is done, it will be going into the arena of proof which cannot be done while considering the application under Order 7 Rule 11 CPC. Order 7 Rule 11 CPC does not envisage a kind of mini trial. The provision of Order 7 Rule 11 CPC has to be considered in its proper perspective by only referring to the averments made in the plaint and the document. If done so, I feel that the submission of the learned Counsel for the defendant must fail.
16. The second submission which has been made by the learned Counsel for the defendant is that the plaintiff has claimed the relief of infringement and passing off in the same suit which cannot be permitted to be done in view of various pronouncements of our own High Court and the Apex Court in
17. I have considered this submission. The Apex Court in case titled
A code of procedure is procedure, something designed to facilitate justice and further its ends : not a Penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.
18. Keeping in view those observations, I feel that the Court should not adopt a hyper technical attitude when the case is still at the threshold by depriving the plaintiff to make amendment in the address of the plaintiff�s place of business.
19. I accordingly, am inclined to allow both these applications seeking amendment in the plaint with regard to the place of business of the plaintiff to be carried out. Let an amended memo of parties be filed within four weeks with an advance copy to the defendant who may, if so desire, file the written statement to the same and so far as I.A. No. 13220/2008 under Order 7 Rule 11 is concerned the same is rejected.
C.S.(OS) No. 1204/2008
Post the matter before the Joint Registrar on 01.11.2010.
