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/-.

Code of Civil Procedure, 1908 - Section 24

Petition u/s. 24 of CPC seeking transfer of Suit No.336/2003 petition under Section 24 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') seeking transfer of Suit No.336/2003 (Honda Giken Kogyo Kabushiki Kaisha vs. Riaz Ahmed Khan and Others) which is allegedly pending before the Additional District Judge, Delhi. As would be apparent from the facts of this case narrated below, the key question is whether there is any suit pending before the Additional District Judge, Delhi It is obvious that if there is no pending suit, the question of transfer / withdrawal of the same to this court cannot arise.
Petition dismissed.

Code of Civil Procedure, 1908[O. 39 r. 1, O. 39 r. 2]

The plaintiff to succeed the three ingredients of prima facie case, balance of convenience and irretrievable injury have to be satisfied by the plaintiff. A prima facie case is a pre-requisite for grant of interim injunction. The plaintiff had surrendered rights in terms of the family settlement dated 27.3.1997 except for a period of three years for Zone A. The three year period is long over. The plaintiff has received consideration for transferring the rights to the Anil Group. The defendant derives its rights as assignee from the Anil Group. There is, thus, no prima facie case in favour of the plaintiff. Thus, the very first ingredient required for grant of interim injunction is not present. There is, thus no question of any irretrievable injury or balance of convenience being in favour of the plaintiff.

Code of Civil Procedure, 1908 O. 26 r. 9, O. 39 r. 1, O. 39 r. 2

Guidelines are being enumerated which the Court may take into consideration on the question of appointment of a Local Commissioner in software infringement and piracy matters:-

(i) The object of appointment of a Local Commissioner in software piracy matters is not, as much to collect evidence but to preserve and protect the infringing evidence. The pirated software or incriminating evidence can only be obtained from the premises of the opposite party alone and in the absence of an ex parte appointment of a Local Commissioner there is likelihood that such evidence may be lost, removed or destroyed;

(ii) Request for ex parte appointment of a Local Commissioner in such matters is usual and in fact is intended to sub serve the ends of justice as it is imperative to have an element of surprise so that the actual position is not altered;

(iii) The test of reasonable and credible information regarding the existence of pirated software or incriminating evidence should not be subjected to strict proof or the requirement to demonstrate or produce part of the pirated software/incriminating evidence at the initial stage itself. It has to be tested on the touchstone of pragmatism and the natural and normal course of conduct and practice in trade.

(iv) It may not always be possible for a plaintiff to obtain any admission by employing decoy customers and gaining access to the defendant's premises. Any such attempt also inheres in it the possibility of dis-appearance of the pirated software/incriminating evidence in case the decoy customers is exposed. Accordingly, visit by decoy customer or investigator is not to be insisted upon as pre condition. A report of private Investigator need not be dis-regarded or rejected simply because of his engagement by the plaintiff. The information provided by the private Investigator should receive objective evaluation.

(v) In cases where certain and definite information with regard to the existence of pirated software or incriminating evidence is not available or where the Court may nurture some element of doubt, it may consider asking the plaintiff to deposit cost in Court so that in case pirated software or incriminating evidence is not found then the defendant can be suitably compensated for the obtrusion in his work or privacy.

Jurisdiction of Court Section 20, Code of Civil Procedure, 1908 read with Trade Marks Act, 1999 Section 134

Section 20(c) read as under:
"(c) the cause of action, whole or in part arises."
A bare reading of this provision leaves no room for any doubt that the present suit for injunction filed at this Court lies within its jurisdiction as the cause of action has arisen wholly or partly within the local limits of the same. No doubt, Section 20 has been codified for the purpose that the matter be tried as near as possible so that the defendant is not put to any inconvenience as regards expenses of travelling from long distances in order to defend himself. In the present case, according to the plaintiff company the suit is maintainable since a part of cause of action had accrued within the territorial jurisdiction of Delhi courts on the ground that the defendant is carrying on its business in Delhi, the defendant has issued a news article in the Delhi edition of Times of India, the defendant has a factory at Shivaji Marg, New Delhi and the defendant No. 3 who has been impleaded also resides in Delhi. It is no doubt true that the suit could have been instituted in Mumbai itself where the defendant has its registered office, but this fact however does not take away the right of the plaintiff to file its suit in this court as part of the cause of action has arisen here. In the present case it is specifically alleged by the plaintiff company that the plaintiffs rights have been violated in Delhi. Learned counsel has also argued that by means of the notice sent by defendant No. 1 the plaintiff has been threatened in Delhi, therefore, at the prima facie stage this Court is of the considered view that this court has jurisdiction to entertain the present suit.

Code of Civil Procedure, 1908

Order 7 Rule 11 read with Trade Marks Act, 1999 Sections 134 and 135

Application of defendants for Rejection of plaint HELD adjudicating upon an application under Order VII Rule 11 CPC, it being settled law that the averments made in the plaint must be taken to be correct for the purpose of adjudicating upon such an application. The remaining facts as to whether the Managing Trustee was not authorized to file the present suit on account of the fact that he had been removed as Managing Trustee by a resolution dated 22.04.2009 and as to the reasons for his removal, these are matters which have to be decided upon after evidence is adduced by both the parties. Application dismissed.
Order 39 Rules 1 & 2
Since the entire action instituted by the plaintiff-trust is on the basis that the defendants have started manufacturing and marketing various types of fans using the impugned trademark 'CINNI that already stood assigned to the plaintiff-Trust, the interim orders passed by this Court on 1st May, 2009, restraining the defendant No. 2 from interfering with the business of the plaintiff in terms of the assignment deed dated 05.11.2000 and further restraining the said defendant from transferring the impugned trademark 'CINNI that stood assigned to the plaintiff-trust by the aforesaid assignment deed in favour of any third party except the plaintiff-trust, appear to be wholly justified, and are made absolute.

Code of Civil Procedure, 1908

Order 7 Rule 11 read with Trade Marks Act, 1999 Sections 134 and 135

Application of defendants for Rejection of plaint HELD adjudicating upon an application under Order VII Rule 11 CPC, it being settled law that the averments made in the plaint must be taken to be correct for the purpose of adjudicating upon such an application. The remaining facts as to whether the Managing Trustee was not authorized to file the present suit on account of the fact that he had been removed as Managing Trustee by a resolution dated 22.04.2009 and as to the reasons for his removal, these are matters which have to be decided upon after evidence is adduced by both the parties. Application dismissed.
Order 39 Rules 1 & 2
Since the entire action instituted by the plaintiff-trust is on the basis that the defendants have started manufacturing and marketing various types of fans using the impugned trademark 'CINNI that already stood assigned to the plaintiff-Trust, the interim orders passed by this Court on 1st May, 2009, restraining the defendant No. 2 from interfering with the business of the plaintiff in terms of the assignment deed dated 05.11.2000 and further restraining the said defendant from transferring the impugned trademark 'CINNI that stood assigned to the plaintiff-trust by the aforesaid assignment deed in favour of any third party except the plaintiff-trust, appear to be wholly justified, and are made absolute.

Code of Civil Procedure, 1908

Order 7 Rule 11 read with Trade Marks Act, 1999 Sections 134 and 135

Application of defendants for Rejection of plaint HELD adjudicating upon an application under Order VII Rule 11 CPC, it being settled law that the averments made in the plaint must be taken to be correct for the purpose of adjudicating upon such an application. The remaining facts as to whether the Managing Trustee was not authorized to file the present suit on account of the fact that he had been removed as Managing Trustee by a resolution dated 22.04.2009 and as to the reasons for his removal, these are matters which have to be decided upon after evidence is adduced by both the parties. Application dismissed.
Order 39 Rules 1 & 2
Since the entire action instituted by the plaintiff-trust is on the basis that the defendants have started manufacturing and marketing various types of fans using the impugned trademark 'CINNI that already stood assigned to the plaintiff-Trust, the interim orders passed by this Court on 1st May, 2009, restraining the defendant No. 2 from interfering with the business of the plaintiff in terms of the assignment deed dated 05.11.2000 and further restraining the said defendant from transferring the impugned trademark 'CINNI that stood assigned to the plaintiff-trust by the aforesaid assignment deed in favour of any third party except the plaintiff-trust, appear to be wholly justified, and are made absolute.

Code Of Civil Procedure, 1908

Order 7 Rule 11- Return of plaint
It is settled position in law that at the stage of Order 7 Rule 11 CPC the plaint and the plaint alone is to be looked into. From a bare look of the plaint in the present case, it cannot be said that the same does not disclose this Court to be having territorial jurisdiction. The Senior Counsel for the defendants has also not argued that even if the defendants were to be carrying on business at Delhi, this court would still not have jurisdiction over the reliefs to which objection has been taken (there being admission with respect to the relief qua infringement of registered trademark and copyright).
Since the plaint in the present case also avers of the defendants carrying on business at Delhi, it cannot be said that the plaint does not disclose any territorial jurisdiction of this court vis-à-vis the reliefs claimed besides the reliefs of infringement of registered trade mark and copyright. This is more so in the face of the admission of the defendant of having entered into an agreement with a dealer/distributor in Delhi for sale of products in Delhi. The termination pleaded by the defendant of the said agreement is a matter of evidence. The plaintiff by entering into the agreement with a dealer at Delhi for sale of its products at Delhi, would cause passing off and breach of contract at Delhi, conferring jurisdiction on this court. The denial by the defendant of the said averments is of no avail at this stage and it cannot be said that the plaint and the documents filed do not disclose this court to be having territorial jurisdiction.

Code of Civil Procedure, 1908

Order 7 Rule 11

"It has been held by the court in a number of cases that at the initial stage of the suit, only the allegations made in the plaint are to be looked into while determining whether the Court has jurisdiction to try the suit or not. In M/s. International Film Distributors v. Sh. Rishi Raj, MIPR 2009 (2) 108 : 2009 (39) PTC 173 (Del.), a Division Bench of this court held as under:

"24. In LG Corporation & Anr. v. Intermarket Electroplasters(P) Ltd. and Anr.; 2006 (32) PTC 429 [Del.], following observations were made in para 7:-

"7.......The question as to whether the Court has territorial jurisdiction to entertain a suit or not has to be arrived at on the basis of averments made in the plaint, that truth or otherwise thereof being immaterial as it cannot be gone into at this stage....."

Looking at the averments made in the plaint by the plaintiff, I am of the considered opinion that this court has jurisdiction to try the suit. As a result, the defendant's application under Order VII Rule 11 CPC is hereby dismissed."

IA. No. 2423/08 under Order XXV Rule 1 of the defendant dismissed with Rs 5000/- as costs.

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Code of Civil Procedure, 1908
Order 17 Rule 1(2) . Injunction restraining from using the words 'HARA QILLA' and device 'QILLA' in bags/packets of rice as a trademark
Directions as to Decision of I P R cases:
Experience shows that in the matters of trademarks, copyrights and patents, litigation is mainly fought between the parties about the temporary injunction and that goes on for years and years and the result is that the suit is hardly decided finally. This is not proper. Proviso (a) to Order XVII Rule 1(2)C.P.C. states that when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary. The Court should also observe clauses (b) to (e) of the said proviso.We request the High Court that the suit in question should be decided within three months from the date a copy of this order is produced before the Trial Court.

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Code of Civil Procedure, 1908
Order 17 Rule 1(2) — When the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for exceptional reasons to be recorded by it the adjournment of the hearing beyond the following day is necessary — Instead of deciding the case at the interlocutory stage, the suit itself should be disposed of finally at a very early date.
Infringement of patents — Interim order — Suit pending for long time — Suits relating to the matters of patents, trademarks and copyrights are pending for years and years and litigation is mainly fought between the parties about the temporary injunction — Matters relating to trademarks, copyrights and patents should be finally decided very expeditiously by the Trial Court instead of merely granting or refusing to grant injunction
Respondent shall be entitled to sell its product but it shall maintain an accurate records/accounts of its all India and export sales — No adjournment whatsoever ordinarily will be granted and the suit shall be finally disposed of on or before 30th November, 2009.

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Code of Civil Procedure, 1908Decision of IAs by plaintiff and defendants being IA. No. 2861/2009 under Order VI Rule 17 and Order I Rule 10 of the Code of Civil Procedure, 1908 and IA. No. 12490/2008 under Order XXXIX Rules 1 and 2 of the Code have been filed by the plaintiff. Defendant No. 1 has filed IA. No. 13904/2008 and IA. No. 13905/2008 under Order VII Rule 11 and under Order XXXIX Rule 4 of the Code respectively.
Jurisdiction of Court Section 20, Code of Civil Procedure, 1908 read with Trade Marks Act, 1999 Section 134
Section 20(c) read as under:
"(c) the cause of action, whole or in part arises."
A bare reading of this provision leaves no room for any doubt that the present suit for injunction filed at this Court lies within its jurisdiction as the cause of action has arisen wholly or partly within the local limits of the same. No doubt, Section 20 has been codified for the purpose that the matter be tried as near as possible so that the defendant is not put to any inconvenience as regards expenses of travelling from long distances in order to defend himself. In the present case, according to the plaintiff company the suit is maintainable since a part of cause of action had accrued within the territorial jurisdiction of Delhi courts on the ground that the defendant is carrying on its business in Delhi, the defendant has issued a news article in the Delhi edition of Times of India, the defendant has a factory at Shivaji Marg, New Delhi and the defendant No. 3 who has been impleaded also resides in Delhi. It is no doubt true that the suit could have been instituted in Mumbai itself where the defendant has its registered office, but this fact however does not take away the right of the plaintiff to file its suit in this court as part of the cause of action has arisen here. In the present case it is specifically alleged by the plaintiff company that the plaintiffs rights have been violated in Delhi. Learned counsel has also argued that by means of the notice sent by defendant No. 1 the plaintiff has been threatened in Delhi, therefore, at the prima facie stage this Court is of the considered view that this court has jurisdiction to entertain the present suit.

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Code of Civil Procedure, 1908
Order 39 Rules 1 & 2
If we go by the family settlement/arrangement, there is a primafacie, case in favour of the appellants who are plaintiffs in two civil suits, as, after 31.3.96, the respondents are not entitled to use the trade mark "Kangaro". If we go only by the Retirement Deeds, excluding the family settlement/arrangement from consideration, the respondents who are plaintiffs in one suit have a prima facie case to exclusive use of the trademark "Kangaro". Keeping in view the fact that (i) trade mark "Kangaro" was being used more or less as a family trademark till 31.3.1995; (ii) both the groups are using this trademark since prior to 7.1.1997, when status quo order was passed; (iii) No serious effort was made by the respondents for vacation of status quo order dated 7.1.1997, even after dismissal of SLP of the appellants in the proceedings arising out of CO. No. 4/97; (iv) both the groups have substantial turnover from use of the trademark "Kangaro", though turnover of the respondents is stated to be much brighter than that of the appellants, (v) In some countries the appellants are using this trade mark while in some other countries it is being used by the respondents; (vi) the court can take a final view on the nature, admissibility and applicability of the documents termed as family settlement/arrangement by the appellants and proposal/counter proposal, by the respondents, only after recording evidence, to be adduced during trial, we direct as under:
(1) During pendency of these suits, the parties shall maintain the status quo, as it existed on 7.1.1997, as regards use of the trademark "Kangaro", but, in order to ensure that there is no confusion as regards the manufacturer of the product they shall also prominently display the name of the manufacturer on the box in which the product reaches the ultimate customer.
(2) Both the groups shall maintain and file, in court, quarterly un-audited accounts of the turnover, gross profit and not profit from manufacture and sale of the products sold by them under the trademark "Kangaro", so that the group which ultimately succeeds can recover suitable damages from the other group. The accounts should be filed within 90 days of the close of each quarter. They shall also file annual audited accounts, containing the same information, by 30th June each year. The Appeals stand disposed of. The observations made in this order shall not affect or influence the decision of the suits on merit.

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Civil Procedure Code, 1908
Order 39 Rules 1 and 2
Plaintiff obtaining ex parte injunction by completely suppressing in the plaint that vide written agreements dated 19th August, 2002 and 20th September, 2002 (filed by the defendant No. 2 along with written statement), the plaintiff had agreed to be the authorised stockist of the defendants and the said agreements were executed on the letter-head of the defendants, which clearly mentioned the name/mark 'PRINCE Auto Industries'.
Howevre plaintiff using the distinctive trademark 'PRINCE' in respect of accessories for use in cars as registered owner. Defendant had been dealing in auto accessories and had made a mark in its field of activity well before the plaintiff got registered the trademark 'PRINCE'
Conduct of the plaintiff unbecoming of the confidence impliedly imposed by the Court in a plaintioff to state material facts.
HELD Sale figures of the defendant No.2 were nearly four times the sale figures of the plaintiff Interim orders, vacated alongwith other directions.
Code of Civil Procedure , 1908
Order 39 Rule 3
HELD" that for passing an ex parte order the Court is required to record reasons that the object of injunction would be defeated by delay. No such reason and indeed no reason whatsoever has been recorded in the impugned order. Furthermore, we have noticed the fact that on merits also the appellant had issued a legal notice to the respondents in the year 2003, the reply to which did not state that the application for registration, filed by the respondent was in the year 1996, though it was stated in the said reply that the i user of the respondent/plaintiff was from the year 1992. In these circumstances, the veracity of the averment regarding the application of 1996 filed by the respondent/plaintiff was required to be looked into seriously before any order was passed granting an injunction which stops the business of the appellant in the disputed product."
Order of the learned Single Judge, set aside.

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Code of Civil Procedure , 1908
Order 7 Rule 11 — Rejection of the plaint sought on the grounds that constituted attorney is an advocate in same case.
HELD " I am of the view that the issue of dual capacity as raised by the applicants is mere a technical irregularity, which does not affect the root cause of the issue as raised in the original suit, it would not cause any prejudice to the non-applicants if allowed to get cured. There is no legal bar to an advocate being appointed as a constituted attorney by a party for the purpose of a case. Moreover there is no suggestion of there being any mala fide."Application dismissed.

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Civil Procedure Code, 1908
Order 11 Rules 1 and 12
HELD "The entire case of the revision petitioner rests on the basis of their enquiry conducted in the matter which resulted in getting the alleged information about the imitations of their branded pen both in design and in shape. Therefore before granting permission to serve the interrogatories, the trial Court was expected to look into the questions for the purpose of arriving at a conclusion as to whether the revision petitioner should be compelled to disclose their nature of evidence in the suit. It is trite that a party is not entitled to serve interrogatories with a view to collect materials which would constitute the evidence of the opposite party. This provision is not a short cut for a party to win the case. The order of the trial Judge does not disclose that the basic requirements for permitting' service of interrogatories were considered in the matter.
The suit is also ripe for trial and in such circumstances, whether it was necessary to deliver the interrogatories with the questions as contained in the application in IA. No. 25 of 2002 was also not considered by the learned trial Judge. Therefore I am of the view that the entire issue need to be considered by the learned trial Judge afresh."
Impugned order set aside.

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Code of Civil Procedure , 1908
Order 39 Rules 1 & 2
Respondent/Plaintiff doing the business under the name of KHAZANA for the past 20 years whereas ppellant carrying on the business under the name of Lakshmi Gold KHAZAANA only from September, 2007 Long usage of the name KHAZAN by respondents. Therefore appellant/ defendant deceptively passing off goods namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of plaintiffs/respondents registered trade mark . Respondent already registered owners of mark rights by long usage of the word KHAZANA .
HELD Totality of the evidence placed by the respondent/plaintiff before the Court prima facie makes out a case, supporting the plea of the plaintiff that the appellant/defendant is deceptively passing off goods-namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of plaintiffs/respondents registered trade mark, which actions or state of affairs if allowed to continue at this stage, will tantamount to an action for infringement of Trade Mark, especially in the circumstance, when not only the respondent has already acquired the proprietary rights by long usage of the word KHAZANA, but also when the balance of convenience is in favour of the respondent in obtaining injunction pending suit. Under such circumstances, the appeals have got to be dismissed since they do not carry any merit.

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