Sunday, June 13, 2010
Code of Civil Procedure, 1908 - O. 7, r. 11
The Court while dealing with an application under Order VII Rule 11 is not required to make an elaborate enquiry into debatable, doubtful or complicated questions of law or fact. What is the legal effect of the grant of patent in favour of the defendant and how far it can entitle the defendant to continue the manufacture and marking of its product and whether the said product is at all similar in design to the one patented in favour of the plaintiff respondent herein are all questions that would need to be addressed at the trial by the Court in the course of and at the conclusion of the trial. While no final opinion on those aspects need be expressed by us, the fact remains that the plaint discloses the cause of action and raises issues of fact and law of considerable importance that need to be adjudicated upon by the Court. Having said so, we may make it clear that the opinion expressed by the learned Single Judge on different aspects touching the merits of the cases set up by both the parties shall not be treated to be the expression of a final opinion on those aspects which the Court shall be free in the ultimate analysis to determine at the conclusion of the trial. Beyond that, it is neither necessary nor proper for us to say anything lest we re-judge the issues that arise for consideration in the suit or prejudice the case of one or the other party in the same. With the above observations, this appeal fails and is hereby dismissed with costs assessed at Rs.5, 000/-.