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1997 DIGILAW 866 (PAT)

Narbada Prasad Indurkhya v. Rajesh Indurkhya

1997-12-04

S.N.JHA

body1997
JUDGMENT S.N. Jha, J. 1. This civil revision by defendant no. 1 is directed against order dated 2.1.96 passed by the 1st Subordinate Judge, Patna, in Title Suit No. 468 of 1995 rejecting his petition to reject the plaint or in the alternative to return it to the plaintiff for presentation in the proper court under Order VII Rule 11 (a) & (d) and Rule 10 of the Code of Civil Procedure. 2. The plaintiff-opposite party has filed the aforementioned suit for declaration that he has acquired the proprietory rights with respect to Shree Vishwa Hindu Panchang and the defendants have no right to make any interference with its publication or making any propaganda in connection thereof, and also for injunction in that regard. 3. Shortly stated the plaintiff's case is that his grand-father Late Sunderlal Jee Indurkhya started publishing and selling books on religious as well as text books in the name of M/s Narbada Printing Works. Carrying the heritage the plaintiff and the defendants, who are members of the same family (in fact, defendant no. 1 is the father), started publishing a Panchang (almanac) in the name of "Vishwa Hindu Panchang". The business of publication of the said Panchang flourished by dint of hard labour and skill of the plaintiff. The profit of the business used to be distributed amongst the plaintiff and the defendants. However, dispute arose in course of time. The defendants created a situation in which the plaintiff had no option but to leave Jabalpur and start living at Patna. In October, 1992 he started the business of publishing and selling Panchang in the name of Shree Vishwa Hindu Panchang. The publication was to the full knowledge of the defendants as well as customers, purchasers and users. The defendants never objected to the publication of Shree Vishwa Hindu Panchang. They purchased copies thereof from the plaintiff to fulfil their requirements. According to the plaintiff the colour, text matter, design, get up etc. of Shree Vishwa Hindu Panchang is different from those of Vishwa Hindu Panchang published and sold by the defendants. As the plaintiff's business grew, the defendants became jealous and with a view to harass and harm his business, started informing the plaintiff's customers that Shree Vishwa Hindu Panchang was duplicate and its publication was illegal. In these circumstances, the suit was filed. 4. As the plaintiff's business grew, the defendants became jealous and with a view to harass and harm his business, started informing the plaintiff's customers that Shree Vishwa Hindu Panchang was duplicate and its publication was illegal. In these circumstances, the suit was filed. 4. Or receipt of the summons the petitioner appeared in the suit. He filed the aforementioned application under Order VII Rules 11 and 10 read with Section 151 of the Code, stating that the plaint does not disclose any cause of action and in any view no part of cause of action has arisen within the territorial jurisdiction of the court, that is, the court of Subordinate Judge, Patna. The plaint should therefore be either rejected under Rule 11 or returned to the plaintiff for proper presentation under Rule 10. The court below has accepted the plaintiff's case that it has territorial jurisdiction to try the suit. In coming to that conclusion, the court noticed the fact that the Branch Office of Shree Vishwa Hindu Panchang is located at Hotel Meghdoot at Patna and the Panchang is printed at Pawan Prakashan Press Pvt. Ltd., Kankarbagh Road, Patna. It may be stated at this stage that in whole of the plaint no averment has been made that the Panchang is printed at Pawan Prakashan Press Pvt. Ltd., Kankarbagh Road, Patna. The original Panchang, copy whereof has been brought on record as annexure-4, also does not mention anything of the kind. 5. Clauses (a) and (d) of Rule 11 of Order VII provides for rejection of plaint (a) where it does not disclose a cause of action and (d) where the suit appears from the statement in the plaint to be barred by any law. Clause (d) is clearly not attracted in this case. No law has been cited which either by express words or by necessary implications bars the institution of the suit of this nature. I have reservations, prima facie, that the plaint can be rejected in terms of clause (a) either. The expression 'cause of action' as is well known, means a 'bundle of facts' which the plaintiff is required to prove. I have reservations, prima facie, that the plaint can be rejected in terms of clause (a) either. The expression 'cause of action' as is well known, means a 'bundle of facts' which the plaintiff is required to prove. If the plaintiff's case that he has right to publish a Panchang of his own and that the Panchang already being published in the name of Shree Vishwa Hindu Panchang is the genuine Panchang be true, generally speaking, it would follow that the defendants would have no right to interfere with such publication. Any attempt to cause harm to the plaintiff's business would provide Sufficient cause of action to maintain the suit. I am however inclined to think that the cause of action, if any, did not arise within the territorial jurisdiction of the court of Subordinate Judge, Patna and, therefore, the suit is not maintainable before him. 6. Mr. Amit Shrivastava, learned counsel for the petitioner, pointed out that place of publication of Shree Vishwa Hindu Panchang has been shown in the Panchang itself as "Bunglow No. 4/4, 3rd Railway Bridge Marg, Sadar, Jabalpur (M.P.)". The principle sellers of the Panchang have also been mentioned as "Shri Vishwa Hindu Darshan Prakashan, Jabalpur (M.P.)". He submitted that the mention of the Branch Office at Hotel Meghdoot, Fraser Road, Patna is simply a camouflage. In this connection he pointed out that the timings of sun-rise and sun-set shown in the Panchang have been worked out with reference to Jabalpur. He further pointed out that comparison of the two Panchangs would show that they are virtually copies of each other and having regard to the fact that Vishwa Hindu Panchang is being published from the year 1989, as against the commencement of publication of Shree Vishwa Hindu Panchang from October, 1992, there can not be any doubt that latter is a duplicate of the former. In this connection, he stated that the Panchang of the petitioner i.e. Vishwa Hindu Panchang enjoys copy-right vide registration no. L-15469/96. The petitioner's application for registration under the Trade and Merchandise Act bearing no. A/0767 is pending with the Registrar, Trade Marks, Bombay, He pointed out that the opposite party has also applied for registration with the Registrar, Trade Marks, Bombay but as would appear from the documents, he has been making false representation that Vishwa Hindu Panchang has already been registered with the Registrar, Trade Marks, Bombay. A/0767 is pending with the Registrar, Trade Marks, Bombay, He pointed out that the opposite party has also applied for registration with the Registrar, Trade Marks, Bombay but as would appear from the documents, he has been making false representation that Vishwa Hindu Panchang has already been registered with the Registrar, Trade Marks, Bombay. The number, which is alleged to be the registration number 60528, is really the application number, as in the case of the petitioner, numbered as A/0767. 7. Mr. Shrivastava submitted that four' Trade Mark Registrars have been established in the whole country at Bombay, Calcutta, Delhi and Madras. The different States of the country have been attached with one or the other of them. So far as the State of Madhya Pradesh is concerned it has been attached with the Registrar, Trade Marks at Bombay. The State of Bihar, likewise, has been attached with Registrar, Trade Marks, at Calcutta. According to the counsel, if the case of the opposite party regarding situs of the business, was true, he should have applied for registration with the Registrar, Trade Marks, Calcutta and not Bombay. The fact that such application was made with the Registrar, Trade Marks, Bombay is indicative of the fact that situs of the business is really at Jabalpur. 8. Section 20 of the Code of Civil Procedure contains provisions regarding local limits of the jurisdiction of the court to entertain suits. The suit can be instituted either within the local limits of the court where defendant resides or carries on business or cause of action has arisen, wholly or in part. The relevant statements in regard to the cause of action, in paragraph-19 of the plaint, read as follows : "That the case of action for the present suit arose on 2nd November, 1995 and also on various dates of publication in News paper, writing letters to customers as well as on 11th November, 1995 when the plaintiff received letter from his customer at Fraser Road, Patna, P.S. Kotwali District Patna within the jurisdiction of this court." In the application under Order VII Rules 10 and 11 of the Code the petitioner has stated relevant facts in regard to the letters, Newspaper etc. referred to in paragraph 19 of the plaint and annexed thereto, in great details. referred to in paragraph 19 of the plaint and annexed thereto, in great details. From perusal of the said Newspaper, publications, letters etc., I am inclined to agree with the contention of the learned counsel for the petitioner that they did not give rise to any cause of action for tiling the suit at Patna. As indicated above, the place of publication, the place of business and the principal seller 311 are at Jabalpur. The only thing in favour of the opposite party is said to be the location of the Branch Office at Fraser Road, Patna and printing of the Panchang in a press at Kankerbagh Road, Patna. I have already made my comments in this regard above. 9. In the fact and circumstances of the case, I am also inclined to think, though prima facie, that the Panchang in the name of Shree Vishwa Hindu Panchang is duplicate of its original namely, Vishwa Hindu Panchang. The whole exercise by way of the present litigation seems to be the result of some misunderstanding between the family members which require resolution outside the court. An one stage this Court adjourned the hearing of this case to enable the parties to settle the matter themselves outside the court. So far as this civil revision is concerned, for the reasons stated above, in my opinion, the order rejecting the application of the petitioner can not be sustained. 10. In the result, this civil revision is allowed. The impugned order is set aside the court below is directed to return the plaint to the plaintiff under Rule 10 of order VII of the Code for proper presentation in accordance with law. There will be 10 order as to cost. 11. Before I part with the judgment, I must mention that the case was heard in part on 27.11.97. Counsel for the petitioner and the opposite party made submissions. At their request the hearing was adjourned for today. However, when the hearing was resumed none appeared on behalf of the opposite party. In the circumstances, the case was heard ex parte today.