Honourable Mr. Justice G. Rajasuria
1. This appeal is focussed by the plaintiff animadverting upon the order dated 09.07.2008 passed in I.A. No. 874 of 2007 in O.S. No. 76 of 2007
by the Principal District Judge, Thiruvallur. The parties are referred to hereunder according to their litigative status and ranking before the trial
Court.
2. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus:
(a) The plaintiff filed the suit seeking the following reliefs:
(i) For permanent injunction restraining the Defendants 1 and 2 above named by themselves, their servants, agents, distributors, stockist, dealers or
anyone claiming through them from in nay manner infringing the Plaintiff''s registered Trade Mark CEFI - XL or any other marks which are either
similar or identical to the registered Trade Mark of the Plaintiff;
(ii) For directing the defendants 1 and 2 above to render a true and faithful account of the profits earned by them through the sale of the products
sold under the infringed Trade Mark CEFOLAC - XL and directing payment of such profits to the plaintiff for the infringement committed by the
Defendants 1 and 2;
(iii) For directing the Defendants 1 and 2 above to deliver to the plaintiff for destruction of the cartons and materials of the Defendants bearing the
offending Trade Mark CEFOLAC - XL together with blocks and dies; and
(iv) for costs. (Extracted as such)
(b) The defendants filed separately the written statements resisting the suit.
(c) Whereupon the trial Court framed the relevant issues.
(d) Before commencement of trial, I.A. No. 874 of 2007 was filed by D2 invoking Order VII Rule 11 of CPC for rejecting the plaint, on the main
ground that no cause of action arose within the jurisdiction of Thiruvallur District Court, as against which counter was filed by the
respondent/plaintiff. The lower Court after hearing both sides accepted the plea of D2 and rejected the plaint.
3. Being aggrieved by and dissatisfied with the said rejection of the plaint, this appeal has been filed on various grounds inter alia thus:
The lower Court failed to take note of the fact that part of the cause of action has arisen within the jurisdiction of the District Court, Thiruvallur as
the impugned products were sold within its jurisdiction infringing the trade mark of the plaintiff.
4. The learned counsel for the appellant placing reliance on the judgment of this Court rendered on 02.12.2009 in A.S. No. 661 of 2009 and also
the order of this Court in CRP(PD) No. 1188 of 2007 and etc. Batch, would develop his argument that earlier in similar matters in the cited
appeals, this Court decided the contentious issue to the effect that the Thiruvallur District Court is having jurisdiction and accordingly remitted those
matters back to the Thiruvallur District Court for deciding them as per law. Curiously enough, the second defendant in the earlier round of litigation
in the form of CRP referred to supra, met with its waterloo, however relentlessly without having any regard for the earlier order of this Court in the
aforesaid CRP and that too touching upon the very same matter herein, did choose to file the said I.A. No. 874 of 2007. The lower Court without
considering the chequered career of this case simply accepted the plea of D2 as though Thiruvallur District Court was having no jurisdiction to
entertain the matter.
5. Despite opportunities given, there is no representation on the side of the respondent.
6. The point for consideration is as to whether the District Court was justified in holding that no substantive cause of action has arisen within the
jurisdiction of the Thiruvallur District Court.
7. A bare perusal and poring over of the decision of this Court in A.S. No. 661 of 2009 of which certain excerpts from it would run thus:
13. The averments in paragraph 13 of the plaint are relevant and for better appreciation, they are extracted below-
13. The Plaintiff states that it has recently come to its knowledge that the 1st Defendant is selling a pharmaceutical product similar to that of Plaintiff
bearing an impugned trade mark MAHACEF-XL. Upon verification the Plaintiff has found that the product MAHACEF-XL has been
manufactured by the 2nd Defendant and marketed by 3rd Defendant. The said product of the defendants is an identical product to that of the
plaintiff and is used for the same purposes. The Defendants mark MAHACEF-XL is deceptively similar to the prior adopted, prior used and
registered trade mark CEFI-XL of the plaintiff.
In the above averments the plaintiff has alleged that the first defendant, not being a registered proprietor or a person using by way of permitted use,
uses in the course of trade a pharmaceutical product containing a mark which is identical with, or deceptively similar to, the registered trade mark
of the plaintiff. The plaintiff has also alleged that the pharmaceutical product containing the infringed trade mark is manufactured by the second
defendant and marketed by the third defendant. It is needless to say that the plaintiff has to plead the facts on which it bases its claim and to prove
the same by leading evidence at the time of trial. The averments in para 13 disclose a cause of action which gives rise to a triable issue. The
conclusion of the trial Court that the plaint does not disclose any cause of action is erroneous and the judgment and decree of the trial Court are
liable to be set aside. The point is answered accordingly.
14. The appeal is allowed and the judgment and decree of the trial Court are set aside and the suit is restored to file. The trial Court is directed to
proceed with the trial and dispose of the suit in accordance with law. There shall be no order as to costs.
would unambiguously and unequivocally highlight and spotlight the fact that in similar matters, this Court held that Thiruvallur District Court is having
jurisdiction to deal with the matter.
8. The learned counsel for the appellant would also submit that as against the interim order passed in this matter, revision was filed as stated supra
by D2 and this Court held as follows:
22. As regards jurisdiction of the trial Court in entertaining the suits, as rightly contended by the learned counsel for the respondents/plaintiffs, as
per Section 20(c) of the CPC, as part of cause of action arises viz., the infringement of alleged patent right and trade mark, the plaintiffs are entitled
to sue the defendants before the trial Court. If it is established that even a part of the cause of action has arisen within the jurisdiction of the Court,
there cannot be any question of refusal of exercise of jurisdiction. Jurisdiction is a mixed question of fact and law and further for determining
whether the Court has got jurisdiction only the plaint averments should be taken note of. In fact, they have produced the invoices for the purchase
of the alleged infringed products from Ambattur, within the jurisdiction of the District Court, Thiruvallur. It is also not admitted by the defendants
that they have huge turnover by selling their products throughout the length and breadth of the country and specifically not denied sale of their
medical products at Ambattur. Since there is passing off of the offending product within the territorial jurisdiction of the trial Court, the suits filed by
the plaintiffs are well maintainable since the fact of sale of the infringing goods at Ambattur has the nexus and relevant with the lis that is involved in
the case, on the basis of which grievance is raised by the plaintiffs. Thus it is the sale which has given the plaintiffs the right to sue.
9. As such it is crystal clear that the lower Court misled itself without considering the pro et contra involved in this matter. It is a common or garden
principle of law that the plaint averments would govern the jurisdiction of a Court. In the plaint, the plaintiff being ''dominus lits'' elaborated to the
effect that his trade mark was infringed by CEFOLAC - XL goods within the jurisdiction of the Thiruvallur District Court. Simply because those
goods were manufactured in some other area apart from the Thiruvallur District, the Court would not be justified in holding that the plaintiff should
go to the place where the said challenged or impugned goods were manufactured. The precedents cited would unambiguously and unequivocally
display and demonstrate that the Court within whose jurisdiction such impugned or challenged goods are being sold, would have the jurisdiction to
entertain the suit. Hence, I am of the view that the lower Court misled itself and wrongly decided the lis warranting interference in this appeal.
Accordingly, the point is decided to the effect that the District Court was not justified in holding that no substantive cause of action has arisen within
the jurisdiction of the Thiruvallur District Court. The appeal is allowed setting aside the order of the lower Court and remitting the matter back to
the trial Court for dealing with the suit as per law.
10. On hearing the judgment, the learned counsel for the appellant would make an extempore submission to the effect that in view of the long delay
so far occured in this matter, suitable direction might be given to the lower Court to expedite the trial. I could see considerable force in the
submission made by the learned counsel for the appellant. Accordingly, the trial Court is directed to dispose of the original suit within a period of
three months from the date of receipt of a copy of this order. No costs.
