Judgment :- 1. The defendant/applicant in this suit has prayed for rejecting the plaint. The grounds urged by Sri U.N.R. Rao learned Senior counsel for the defendant in support of this prayer are:— (i) The suit filed in the trading name of the proprietor of the trade mark is not maintainable. (ii) that the plaintiff is not being the registered proprietor of the mark has no cause of action against the defendant. (iii) that the suit is based on a certificate in Form O. 2 issued under Sec. 23(2) r/w 65(1) of the Trade and Merchanise Marks Act, read with 65(2) of the Rules, and that certificate cannot be used in legal proceedings; (iv) that the certificate on which the suit is based does not in fact indicate whether the same has been renewed and whether the same was valid and subsisting as on the date of the suit; (v) that the power of attorney dated 17.5.94 by a trading name to another trading name has no legal force as it is not granted by one living or juridical person to another such person; (vi) that the relief claimed in the suit does not pertain to infringement and therefore, the same is not maintainable under Sees. 105 and 106 of the Act; (vii) that the relief now sought is to restrain the defendant from manufacturing several other products which the defendant is not manufacturing while the registered trade mark relied on in the plaint is only in respect of pickles and chutnies; (viii) that the certificate of registration-granted on 31.3.92 with effect from 15.9.80 is in valid as (a) the objection to registration was rejected by the Assistant Registrar Bombay on 16.5.88 while the certificate is based on the rejection of another objection by another Assistant Registrar Ahamedabad on 31.3.92 and (b) the certificate could not be granted after the expiry of the period for which the registration could have been granted; and (ix) that the renewal effected five years after the expiry of the initial period of 7 years is invalid, as the Act does not empower the Registrar to grant retrospective renewal particularly from a date on which the mark itself had remained unregistered. 2. 2. The rule which governs rejection of the plaint is to be found in Rule 11 of the Order 7 of the Code of Civil Procedure, which reads as follows: R. 11 Rejection of plaint :— The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action. (b) where the relief claimed is undervalued, and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written on paper insufficiently stamped and the plaintiff does not make good the deficiency within the time, if any, granted by the Court; (d) where the suit appears from the State in the plaint to be barred by any law: Provided that the time fixed by the Court for correcting the valuation or supplying of the requisite stamp paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers requisite stamp papers us the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. 3. The suit has been filed by Modern Food Products, represented by its power of attorney Holder Subashree Enterprises, represented by its proprietrix, Smt. Ambujam Ammal. The name of the proprietor of the trade mark as found in the registration certificate is Pathiath Babu Rajendran trading as Modern Food Products. The mention of the trading name of the registered owner of the trade mark as the plaintiff is only a formal defect and can be set right at any stage of the proceedings, by adding the name of the person who is carrying on trade in the trading name given in the cause title. Moreover, in the long cause title the fact that Pathiath Babu Rajendran as the person who is carrying on the trade as Modern Food Product, is fully set out. 4. Moreover, in the long cause title the fact that Pathiath Babu Rajendran as the person who is carrying on the trade as Modern Food Product, is fully set out. 4. Sri U.N.R. Rao, learned senior counsel for the defendant/applicant submitted that there is an implied prohibition against a person carrying on business in a name other than his own name, suing under such trading name though he may be sued under that name. Learned counsel for the defendant relied on the Judgment of the Division Bench of Bombay High Court reported in the case of Bhagwan Manaji Marwadi and others v. Haraj Premaji Marwadi A.I.R. 1932 Bombay 516 wherein it was held that a person trading himself as a firm or in an assumed or trading name may be sued in his trading name under O. 30, R. 10 but he cannot sue in that name. 5. Attention was also invited to another Judgment of the Bombay High Court reported in the case of Samrathrai Khetsides v. Kasturbhai Jagabbai A.I.R. 1930 Bombay 216 wherein it was held that a firm consisting of a sole proprietor cannot bring a suit in the name of the firm but sue in the name of the proprietor. 6. Mr. K. Sampath learned senior counsel for the plaintiff/respondent, on the other hand, relied on the decision reported in the case of Lucknow Automobiles through Mt.Muniav. The Replacement Parts Co. AIR 1940 Oudh 443 wherein it was held that while it is true that a suit in the firms name cannot be brought where a certain person is the sole proprietor of it, but when the name of the proprietor is added to the description of the plaintiff the defect in the name of the suit is removed. 7. Reliance was also placed on the decision reported in the case of Mohan Lal Ram Gopal v. Udai Ram Sewa Ram and others 1936 Patna 140 wherein Rowland, J. held that the technical rule governing the framing of pleadings are not intended to deprive a litigant of his remedies but it meant to serve the ends of Justice. Where, therefore, a Court finds that the frame of suit is defective it should give the plaintiff an opportunity of putting his pleadings in order. 8. Learned counsel for the plaintiff also relied on a decision reported in the case of Jawahar Nath Bagati v. Jeena and Co. Where, therefore, a Court finds that the frame of suit is defective it should give the plaintiff an opportunity of putting his pleadings in order. 8. Learned counsel for the plaintiff also relied on a decision reported in the case of Jawahar Nath Bagati v. Jeena and Co. and another AIR 1959 J. & K. 118 wherein it was held that it is true that a suit in the firms name cannot be brought where a certain person is the sole proprietor of that firm, but when the name of the sole proprietor is given in the plaint, the defect in the cause title of the suit is removed. 9. Counsel for the plaintiff also relied on the decision of the Supreme Court in the case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969(I) SCC 869 wherein the Court observed at para 5 of the Judgment that “Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief, merely because of some mistake, negligence, in advertance or even infraction of the rules of procedure.” 10. It was further submitted by the learned counsel for the plaintiff that the long cause title to the plaint fully sets out the name of the person whose trading name is mentioned in the short cause title. It is useful to extract para 1 of the plaint: 1. The plaintiff is Modern Food Products, a Proprietary firm carrying on business at P.B. No. 709, Plot No. 507, C.I.D.C. Estate Baroda, Pin Code 390010 and is represented by its proprietor Pathiath Babu Rajendran, represented by its power of attorney Subashree Enterprises, doing business at 31, 5th Main Road, Raja Annamalaipuram, Madras-600028 represented by its proprietrix Smt. Ambujam Ammal wife of Vasudevan, Hindu, aged 61 years.” 11. Though the manner in which plaintiff is described in the short cause title is defective in view of the information contained in para 1 of the plaint regarding the plaintiff being the trading name of the person whose name is set out, the non suiting the plaintiff, only on account of this defect would be wholly unjust. One of the objects of the rules of procedure is to aid litigant in having his case adjudicated. Rules of procedure are not intended to serve as a trap to deny adjudication. One of the objects of the rules of procedure is to aid litigant in having his case adjudicated. Rules of procedure are not intended to serve as a trap to deny adjudication. Form is not to prevail over substance. 12. An individual carrying on trade in a name not his own should not leave his identity in doubt when he comes to court with a claim. As his trading name is not a juristic entity, he should bring the suit in his own name though he may be sued in his trading name as others may have transacted with him only under such a trading name. If the plaint discloses the fact that the trading name is that of the person whose identity is set out in the plaint, no injustice is caused to those who are called upon to meet his claim. As the registered proprietor has a right to maintain a suit on the ground of infringement, it cannot be said that there is no cause of action for the suit. The plaintiff shall however take necessary steps to amend the cause title within a reasonable time. 13. The plaintiff has only produced the certificate of registration in Form O2 along with the plaint. That certificate is in fact not meant for use in legal proceedings. However in the plaint, the case of the plaintiff that he is the registered owner of the trade mark ‘Priya’ in Class 29 under No. 366013-B for pickles is set out. At the time of hearing this and other applications, the plaintiff produced the certificate of registration together with copies of entries in the register to show that the mark is registered in his name and that same has also been renewed. The plaintiff cannot therefore be non-suited on the ground that the proper registration certificate had not been filed with the plaint. 14. The next objection raised is that the power of attorney is defective. A reading of the document as a whole shows that in substance, it is a power of attorney executed by a living person who is carrying on business under a trading name in favour of another person who is also carrying on business under another trading name. This power of attorney cannot therefore be regarded as invalid. 15. A reading of the document as a whole shows that in substance, it is a power of attorney executed by a living person who is carrying on business under a trading name in favour of another person who is also carrying on business under another trading name. This power of attorney cannot therefore be regarded as invalid. 15. The relief claimed, in the suit is that of injunction to restraining the defendant from manufacturing and marketing its products especially pickles under the trade name ‘Priya’ and for incidental reliefs. In para 6 of the plaint, the plaintiffs case that it is the owner of this trade mark for ‘pickles’ is set out. Para 8 refers to defendants illegal acts of infringement. It cannot therefore be said that the suit is not for relief against infringement, though that word is not mentioned in the prayer. 16. While it is true that the relief sought is much wider in scope that what is indicated by the averments in the plaint, the plaintiff cannot be non-suited on this ground. The relief that may ultimately be granted if plaintiff succeeds in establishing his case, will be confined to the case pleaded and proved. 17. S. 23 of the Trade and Merchandise Marks Act which deals with registration reads thus: 23. Registration . (1) Subject to the provision of Section 19, when an application for registration of a trade mark in Part A or Part B of the register has been accepted and either (a) the application has not been opposed and the time for notice of opposition has expired; or (b) the application has been opposed and the opposition has been decided in favour of applicant; the Registrar shall, unless the Central Government otherwise directs, register the said trade mark in Part A or Part B of the register, as the case may be, and the trade mark when registered shall be registered as of the date of making of the said application and that date shall, subject to the provisions of Section 131 be deemed to be the date of registration. (2) On the registration of a trade mark the Registrar, shall issue to the applicant a certificate in the prescribed form of the registration thereof, sealed with the seal of the Trade Marks Registry. (2) On the registration of a trade mark the Registrar, shall issue to the applicant a certificate in the prescribed form of the registration thereof, sealed with the seal of the Trade Marks Registry. (3) Where registration of a trade mark is not completed within twelve months from the date of the application by reason of default on the part of the applicant, the Registrar may, after giving notice to the applicant in the prescribed manner, treat the application as abandoned unless it is completed within the time specified in that behalf in the notice. (4) The Registrar may amend the register or a certificate of registration for the purpose of correcting a clerical error or an obvious mistake. 18. As is clear from S. 23(1)(b) above, when an application of registration is opposed, the Registrar cannot proceed to register the mark in favour of the applicant till the opposition has been decided in favour of the applicant. It is not in dispute that the defendant had opposed the plaintiffs application for registration, having filed two sets of objections one from its registered office at Hyderabad and the second from its factory at Vijayawada. The objection sent from Hyderabad was considered by the Assistant Registrar Bombay in his order dated 16.5.88. The other objection was considered by the Assistant Registrar Ahmedabad in his order dated 18.7.91. It is only thereafter on 31.3.1992 that the registration of the trade mark was completed. 19. The delay in disposing of the defendants objections to registration cannot be regarded as default on the part of the applicant disentitling him to registration. So long as the objection remained without a decision being rendered thereon, it was not competent for the Registrar to register the mark. The fact that 8 years elapsed before the first objection was considered and a further period of three years elapsed before the second objection was considered, though unfortunate, cannot be a ground to invalidate the registration certificate granted thereafter. 20. Retrospective effect is necessarily to be given as the registration has to be as of the date of making of the application, and if at the time of completion of registration the initial period of seven years was over, the renewal also has to be re-strospective. 20. Retrospective effect is necessarily to be given as the registration has to be as of the date of making of the application, and if at the time of completion of registration the initial period of seven years was over, the renewal also has to be re-strospective. There is no bar express or implied to such retrospective registration or renewal of such registration in the Act, except that registration cannot be effected from a date prior to the date of application for registration. 21. The observations made in this order regarding the validity of the registration and renewal are for the purpose of this application. If after the written statement is filed it becomes necessary to frame an issue regarding the validity of the registration or its renewal, the same will be considered on merits in the light of the evidence that may be adduced at the trial, and this order will not preclude such consideration. 22. In the result, this application fails and is dismissed.