ORDER K.M. Mehta, J. M/s. Parsvanath Developers Limited, petitioner, original defendant has filed this petition under Article 227 of the Constitution of India with a prayer that this Court may issue a writ of certiorari, or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 22.12.2006 passed by the learned City Civil Judge, Court No. 9, City Civil Court, Ahmedabad, below Exh. 26 in Regular Civil Suit No. 785 of 2006 and to reject the plaint or be pleased to direct the City Civil Court, Ahmedabad to reject the same. This petition was filed on 30.1.2007. 2. On behalf of the petitioner Orissa Defendant (hereinafter referred to as the defendant) Shri S.B. Vakil, learned Sr. Counsel with Mr. R.R. Shah, learned advocate, appears. On behalf of the respondents - original plaintiffs Mr. Mihir Thakore, learned Sr.Counsel with Mr. Y.J. Trivedi, learned advocate, appears. 2.1 The matter was initially heard. However, both the learned sr. counsel for the parties have stated that this Court may take up the matter for final hearing and final disposal. Therefore, this Court passed an order on 13.2.2007 to be placed for final disposal and ultimately the matter was placed for hearing from time to time and I have heard both the learned counsel at length. Hence Rule is issued in the main matter. Mr. Y.J. Trivedi, learned advocate for the respondents waives service of rule on behalf of the respondents orig. plaintiffs. 3. The facts giving rise to this petition which are stated in the pleadings by the original plaintiffs are as under: 3.1 Parshwanath Realty Private Limited, a Company incorporated under the Companies Act, 1956, is original plaintiff No. 1 and Parshwanath Housing Finance Corporation Limited is plaintiff No. 2. Plaintiff No. 1 is a Company incorporated and registered under the provisions of the Companies Act, 1956 in the State of Gujarat and the same was incorporated under the name and style of Parshwanath Construction Private Limited on 29.11.1972. Subsequently, the name of the said Company has been changed in 1990 and 1996 and from 31.3.2000 plaintiff No. 1 Company has continued its business activity under the name and style of Parshwanath Realty Private Limited. Plaintiff No. 2 is a Public Limited Company, incorporated and registered under the provisions of the Companies Act, 1956, having its registered office at Ahmedabad. Plaintiff No. 2 is a Public Limited Company, incorporated and registered under the provisions of the Companies Act, 1956, having its registered office at Ahmedabad. The plaintiffs are carrying on business of housing finance, construction and developers of land and buildings. 3.2 The plaintiffs submit that the Directors of plaintiffs' Companies have first started construction business under the name and style containing or consisting of word Parshwanath. The main promoter is Shri Navnitbhai C. Patel. He is a renowned Civil Engineer. He started Parshwanath Group in the year 1967 with the sole object to provide houses and have thereafter developed various schemes in the State of Gujarat, more particularly in the district of Ahmedabad. 3.3 It is the case of the plaintiffs that since 1967 Shri Navnitbhai C. Patel is carrying on the business of construction and developer and has become a renowned name in the construction industry. Initially the business was started in the form of registered partnership firm Shri Parshwanath Corporation. The plaintiffs have developed the business under Parshwanath group having various sister concerns and associate companies like Parshwanath Construction Pvt. Ltd., originally incorporated in the year 1972, which is now working under the name of plaintiff No. 1 Company. Another company is Parshwanath Housing Finance Corporation Limited engaged in the business of housing finance and construction since 1985. Parshwanath Farm, a partnership firm started its business in 1994 which is presently named as Parshwanath Corporation and Shree Parshwanath Construction Corporation, a partnership firm started its business in the year 2001. The said construction activities are carried on by his son Mr. Rushabh N. Patel since 1996. All these activities are carried on under the name and banner of "Parshwanath". Therefore, the business activity of the plaintiffs is popular in the trade and business and with has acquired enviable reputation and goodwill in the trade and general public as "Parshwanath Group" since last three decades. 3.4 The traders, consumers and general public are identifying and recognising the plaintiffs by the said name Parshwanath. It is the case of the plaintiffs that the business of the plaintiffs' partnership firm and other sister firms and companies and the objects of the Companies clearly establish that the business activities of Parshwanath Group are to provide finance for construction and purchase of houses in India. It is the case of the plaintiffs that the business of the plaintiffs' partnership firm and other sister firms and companies and the objects of the Companies clearly establish that the business activities of Parshwanath Group are to provide finance for construction and purchase of houses in India. The other objects as mentioned in the Articles of Association and Memorandum of Association clearly establish the wide range of business activities of the group, which is made known to the public throughout length and breadth of India. 3.5 The plaintiffs therefore submit that the plaintiffs have by their own skill and effort promoted the business activity of construction and therefore the word Parshwanath is capable to connote and denote the business activities of the plaintiffs alone and none else. It was submitted that because of very high standard quality of construction and services, the business of the plaintiffs developed and that goes to establish the continuous business run by the said Parshwanath Group and acquired immense reputation and goodwill. The traders, consumers and the general public possesses very high recognition for the Parshwanath Group. 3.6 It is the case of the plaintiffs that because of open, extensive and continuous use of the name Parshwanath by the plaintiffs, the name Parshwanath has become very popular and has acquired distinctiveness to the goods and services of the plaintiffs and none else. In other words, the word Parshwanath is capable to connote and denote the business activities of the plaintiffs and none else. 3.7 It is the case of the plaintiffs that the defendant is a Company having its registered office at Delhi and carrying on business of construction and development of land. It was further submitted that the plaintiffs got information through an advertisement published in Divya Bhaskar (on page 12) dated 12.3.2006 that the defendant is going to continue its business activity of construction and development under the name and style of Parsvanath Developers Limited. It is very clear that the defendant has adopted identical name 'Parsvanath' in respect of identical business. It is the case of the plaintiffs that the defendant has as per the news published in the newspaper "Financial Express" dated 23.3.2006 carrying the business under the name and style of Parsvanath Group. The case of the plaintiffs show that the defendant has started carrying on business in the word "Parsvanath" which is contrary to well established law. It is the case of the plaintiffs that the defendant has as per the news published in the newspaper "Financial Express" dated 23.3.2006 carrying the business under the name and style of Parsvanath Group. The case of the plaintiffs show that the defendant has started carrying on business in the word "Parsvanath" which is contrary to well established law. 3.8 It is the case of the plaintiffs that the plaintiffs have recently come to know that the defendant has applied for SEBI registration for their Company for public issue and are likely to come in the market and thereby going to collect huge public money under the name and style of Parsvanath and if by any act of the defendant, if the defendant fails in the public issue it will greatly damage the reputation and goodwill of the plaintiffs' group and the people will believe that the defendants are either plaintiffs' company or some way connected with the plaintiffs' companies. The plaintiffs have recently received certain queries and complaints from their clients because of the advertisements published by the defendant. The plaintiffs submit that because of confusion created or deception caused on account of the said advertisements, the plaintiffs have received phone calls from various persons from Ahmedabad and other parts of Gujarat that whether the plaintiffs have started further development of their business in different parts of the country with some other partner. Thus confusion and deception has already taken place in the mind of trade and general public within limits of City of Ahmedabad and the plaintiffs have to give explanation to such queries. The plaintiffs submit that since the plaintiffs and the defendant are in the same class of business, the confusion and deception has taken place and it is misleading to the general public to believe that the defendant is connected with the business of the plaintiffs, though the defendant is in no way connected with the business of the plaintiffs. 3.9 It is the case of the plaintiffs that the defendant has adopted the identical and deceptively similar name with an intention to encroach upon high goodwill & reputation enjoyed by the plaintiffs in city of Ahmedabad and various parts of the State of Gujarat. 3.9 It is the case of the plaintiffs that the defendant has adopted the identical and deceptively similar name with an intention to encroach upon high goodwill & reputation enjoyed by the plaintiffs in city of Ahmedabad and various parts of the State of Gujarat. It is the case of the plaintiffs that the defendant is likely to start its business on very large scale in the city of Ahmedabad and other parts of Gujarat under the name and style of Parsvanath Developers Ltd., which is likely to cause irreparable loss and injury to the business reputation and goodwill acquired by the plaintiffs since 1972. It is the case of the plaintiffs that the defendant is newcomer and they are yet to commence their business activity in city of Ahmedabad & Gujarat, they are required to be restrained from using the name Parsvanath for their construction business as it will render themselves liable for "passing off action". 3.9A The plaintiffs have also stated that to acquire statutory protection, they have applied for registration under the Trade Marks Act, 1999 and filed necessary applications under Class 19 (Building materials, (non-metallic), non-metallic rigid pipes for building; asphalt, pitch and bitumen; non-metallic transportable buildings; monuments, not of metal) and also under Class 37 (relating to building construction; repair, installation services) on 24.2.2006 on the basis of user since 1972. It is the case of the plaintiffs that the plaintiffs are the first adoptors and user and have the exclusive right under common law to user the mark PARSHWANATH and because of continuous user for the said business the word PARSHWANATH has acquired secondary meaning to indicate the business activities of the plaintiffs and one else. As they have also applied for registration under the above Act, they have the exclusive right acquired by statute and the said right will be confirmed from the date of application as per Section 23 of the Act which provides for registration. 3.9B It was further stated that because of open, extensive and continuous use of the name PARSWHANATH by the plaintiffs, the name PARSHWANATH has become very popular and has acquired distinctiveness to the goods and services of the plaintiffs and none else. In other words, the word "PARSHWANATH" is capable cannot and denote the business activities of the plaintiffs and none else. In other words, the word "PARSHWANATH" is capable cannot and denote the business activities of the plaintiffs and none else. 3.10 It is the case of the plaintiffs that the advertisement published in the Divya Bhaskar published from Ahmedabad also published in Financial Express, and the defendant has started their business activity in Ahmedabad, the cause of action for the plaintiffs to file the Suit arose within limit of city of Ahmedabad. In view of the same, the plaintiffs filed Suit in April 2006 with the following prayers: (A) This Court be pleased to declare that the plaintiffs are the owner and proprietor of the property under the trading name and style containing or consisting of word Parsvanath and that no other person, firm or company is entitled to use the trade name or trading style containing or consisting of word Parsvanath or construction business. (B) The defendant, its servants, agents, dealers, distributors, etc. be restrained by an order of permanent injunction from advertising or using the trading style Parsvanath Developers Ltd., any other identical and/or deceptively similar trading style which may be identical and/or deceptively similar to the various trading styles of the plaintiffs group Parshwanath Group containing the word Parshwanath in respect of construction business, and thereby restrain them from committing act of passing off. 3.10A Along with the application, the plaintiffs have also filed list of documents at Exh. 4, 4/1 and 4/18 to show its reputation and goodwill in the market and the defendant issued advertisement in "Divya Bhaskar" on 12.3.2006 and on 23rd March 2006 in "Financial Express" [i.e. Exh. 4/19, 4/20]. 3.11 Along with the Suit, Injunction Application, i.e. Notice of Motion at Exh. 7 was filed and it is prayed in para 20(A) as follows: "The defendants, their servants, agents, dealers, distributors etc. be restrained by an order of temporary injunction from advertising or using the trading style "Parsvanath Developers Ltd., or any other identical and/or deceptively similar trading style which may be identical and/or deceptively similar to the various trading styles of the plaintiffs group "Parsvanath Group" containing the word "Parshwanath" in respect of construction business and thereby restrain them from committing act of passing off, till the hearing and final disposal of the suit". 3.12 When matter was placed before the learned trial Judge, along with the notice of motion, the learned Judge after going through the papers and after going through the judgment in the case of Laxmikant V. Patel v. Chetanbhai Shah & Anr., 2002 (24) PTC 1 (SC) = (2002) 3 SCC 65 and other decision of this Court viz. In the case of Shree Sainath Industries v. Sainath Auto Industries, XLV (2) GLR 1314, granted ex-parte ad-interim injunction on 4.4.2006 as prayed for in 20(A) of the notice of motion till the filing of the reply to the Notice of Motion. 3.12A Being aggrieved and dissatisfied with the said order Parshwanath Developers Limited , the defendant filed Appeal from Order No. 84 of 2006 before this Court along with Civil Application No. 4289 of 2006 and the said matter was placed for hearing before this Court on 10.4.2006. This Court gave the following directions: (i) The applicant (i.e. Defendant) is directed to file his reply to the injunction application of the opponent on or before 15th April, 2006 (ii) The applicant will serve the copy of reply in advance to the opponent (plaintiffs) (iii) Learned trial Judge is directed to prepone the hearing and fix it on 18th June, 2006. The impugned order stands suspended till the disposal of the application by the learned trial Judge. It is made clear that the order of suspension of impugned order will not influence the learned trial Judge in any manner and the application shall be decided strictly on its merits." PRESENT CONTROVERSY: 4.1A After the aforesaid order was passed, it appears that the original defendant filed an application on 16.6.2006 under Order 7 Rule 10 and 11 read with Section 151 of the Code of Civil Procedure (Exh. 26). In the said application averments were made that the defendant has its Head Office and Registered Office at New Delhi and branch office in various cities of India. The defendant has neither any office in Gujarat nor has it commenced any construction activity in Gujarat. It is the case of the plaintiffs that a 'passing off' action is governed by the provisions of Section 134(c) of the Trade Marks Act, 1999 which provides that suit for passing off to be instituted. The defendant has neither any office in Gujarat nor has it commenced any construction activity in Gujarat. It is the case of the plaintiffs that a 'passing off' action is governed by the provisions of Section 134(c) of the Trade Marks Act, 1999 which provides that suit for passing off to be instituted. The element of jurisdiction in the said suits is governed by the provisions of Section 20 of the Code of Civil Procedure . It is their case that the plaintiffs have assumed jurisdiction only on the basis of a news article pertaining to the defendant. In view of the advertisement published it is the case of the plaintiffs that the plaintiffs have cause of action to file Civil Suit in Ahmedabad. However, it is their case that neither the defendant actually or voluntarily resides at Ahmedabad nor has commenced any construction activity in Gujarat. In these circumstances the City Civil Court at Ahmedabad has no jurisdiction to try and entertain the present Suit. It was stated that no cause of action has ever arisen in favour of the plaintiffs and against the defendant either in whole or in part. The defendant has prayed for the following relief: (a) Return the plaint to the plaintiffs for filing the same before the appropriate Court. 4.1B The plaintiffs have filed their reply to the defendant's application under Order 7 Rule 10 and 11 of the Code of Civil Procedure on 29.6.2006 at Exh. 30 In the said reply it was reiterated that the plaintiffs have already made necessary pleadings in paras 14, 15, 16 and 17 of the application about the lawful activity and cause of action of his filing of the present Suit. It was further averred that the defendant is likely to start business activity in the city of Ahmedabad. They have also reiterated that earlier advertisements published in Divya Bhaskar and Financial Express clearly establishes that defendant has already started necessary activities in the name and style of Parsvanath Developers Ltd. The said report is from Ahmedabad and statement was given by the Chairman of the defendant Company Shri Pradip Jain in Ahmedabad. They have also reiterated that earlier advertisements published in Divya Bhaskar and Financial Express clearly establishes that defendant has already started necessary activities in the name and style of Parsvanath Developers Ltd. The said report is from Ahmedabad and statement was given by the Chairman of the defendant Company Shri Pradip Jain in Ahmedabad. It was further submitted that the advertisement in Financial Express do reveal that where the defendant has given full page advertisement in the city of Ahmedabad and other cities of the State of Gujarat which gives clearly 'cause of action' to file the present suit by the plaintiffs within territorial jurisdiction of the City Civil Court. Along with the said application the plaintiffs produced xerox copy of the publication in which name of the defendant published in Sandesh Newspaper dated 6.4.2006, xerox copy of publication in which name of defendant published in Sandesh Newspaper on 25.6.2006 and copy of publication invited by AUDA dated 15.3.2006 and copy of website of the defendant dated 27.6.2006. (Exh.31/1 to 31/4). 4.1C The defendant has filed rejoinder dated 9.10.2006 to the said application. TRIAL COURT FINDINGS: 4.2 Thereafter, the learned Judge has heard the matter. The learned Judge has observed that though it was styled as an application under Order 7 Rule 10 and 11 of the C.P.C., from the prayer it appears that the application is only under Order 7 Rule 10 of the C.P.C. i.e. return of the plaint. 4.3 The learned trial Judge after considering the facts of the case has further observed as under:- "I have considered the law points and factual aspects and principles hold in different cases and arguments advanced. Section 20 of the C.P.C. Clause (c) reveals that the Suit can be instituted where the cause of action wholly or in part arises. In this case, it is alleged of threat of use of deceptive trade name and identical and similar deceptive trade style. The advertisement in the Divya Bhaskar dated 12.3.2006 speaks about the responsible person of the defendant to start new business in the name of Parshwanath in Gujarat and in Ahmedabad also which is published in Ahmedabad and thereafter, AUDA has given the advertisement and plots of lakhs of rupees are purchased by the defendant to start construction. The advertisement in the Divya Bhaskar dated 12.3.2006 speaks about the responsible person of the defendant to start new business in the name of Parshwanath in Gujarat and in Ahmedabad also which is published in Ahmedabad and thereafter, AUDA has given the advertisement and plots of lakhs of rupees are purchased by the defendant to start construction. Thus, the plots are purchased in Ahmedabad and so, the premises given by the Chairman Pradeep Jain in a statement in press on 12.3.2006 before filing of the Suit is materialised and so, the cause of action has rightly arisen within the local limits of this Court and so the application of the defendant cannot be allowed. Hence the following order is passed: ORDER The application of the defendant Exh. 26 is hereby rejected." 5. Being aggrieved and dissatisfied with the said judgment and order, the present petitioner has filed this petition under Article 226/227 of the Constitution of India on 30.1.2007. 5.1 On behalf of the original defendant, I have heard Mr. S.B. Vakil, learned Sr. Counsel with Mr. R.R. Shah, learned advocate. SUBMISSION OF MR. S.B. VAKIL LD. SR. COUNSEL FOR ORIGINAL DEFENDANT: 5.2 The learned counsel has relied on Order 7 Rule 1 of the C.P.C. which provides for particulars to be contained in the plaint and provides that the plaint shall contain inter alia the following particulars. xx xx xx (e) The facts constituting the cause of action and when it arose; (f) The facts shows that the Court has jurisdiction. 5.3 The learned counsel has also invited my attention to Order 7 Rule 10 of the Code of Civil Procedure which reads as under: "Rule 10 Return of plaint (1) Subject to the provisions of Rule 10-A, the plaint shall, at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted." 5.4 The learned counsel has relied on Order 7 Rule 11 of the C.P.C., which provides rejection of plaint. "11. Rejection of plaint The plaint shall be rejected in the following cases: (a) Where it does not disclose a cause of action. (b) xxx xxxx (c) xxx xxxx (d) Where the suit appears from the statement in the plaint to be barred by any law. "11. Rejection of plaint The plaint shall be rejected in the following cases: (a) Where it does not disclose a cause of action. (b) xxx xxxx (c) xxx xxxx (d) Where the suit appears from the statement in the plaint to be barred by any law. 5.5 The learned Counsel has submitted that when the trial Court has observed that though this application is under Order 7 Rule 10 and 11, in fact the application is under Order 7 Rule 10 for rejection of the plaint. In that the learned counsel submitted that the application under Order 7 Rule 10 and 11 are like two intersecting circles have partly common field or scope. Rule 10 applies to plaints presented to a Court in which the suit ought not to have been instituted and is required to be returned for presentation to the Court in which the Suit ought to have been instituted. Rule 10 does not apply to a plaint, which cannot be presented to any Court. A plaint presented to a court, which has no territorial jurisdiction to try the suit can be presented to the Court which has territorial jurisdiction to try the Suit and comes within the scope of Rule 10. However, all plaints, which can be rejected under Rule 11 cannot on rejection be presented to another Court and such plaints do not falls within this Rule. A plaint which does not disclose a "cause of action" or a rejected plaint wherein the relief claimed remains under valued or is insufficiently stamped are plaints which cannot be presented to any Court. However, where the bar does not appear from the averments made in the plaint, but requires adjudication on facts only Rule 10 will apply. 5.6 Moreover, plaints rejected under Rule 11(d) would be either presentable to another Court or not. The suit which appears from the statement in the plaint to be totally barred by any law cannot be presented to another Court, whereas the plaint of a suit which is barred only qua the Court which returns it, but is not totally barred can be presented to Court having jurisdiction and would fall within the scope of Rule 10. Therefore, a plaint covered by Rule 11(d) which is barred only vis-a-vis the Court which returns it would fall under both the Rules 10 and 11. Therefore, a plaint covered by Rule 11(d) which is barred only vis-a-vis the Court which returns it would fall under both the Rules 10 and 11. In such cases the nature of the order to be passed, whether for return for presentation to the proper Court or for rejection is a matter of form. The application is covered under both the Rules 10 and 11. 5.7 The learned Senior Counsel further submitted that the application is on the basis that the suit appears from the statements in the plaint to be barred by Section 20 of the C.P.C., as the plaint and the documents filed therewith, even if the averments of facts therein are assumed to be correct, do not disclose that the cause of action, wholly or in part, arises within the local limits of the jurisdiction of the trial Court. It is not in dispute that the suit does not fall under Clause (a) or (b) of Section 20 of the Civil Procedure Code or (d) of Rule 11 of the C.P.C. Ahmedabad denotes three areas viz. Ahmedabad City to which the territorial jurisdiction of the trial Court is limited, Ahmedabad (Rural) District and Ahmedabad Urban Development Area. 5.8 The learned counsel has relied on the material averments in the plaint in paragraph Nos. 14 and 17 of the plaint. After referring to the averments made by the plaintiffs in the plaint and two advertisements which this Court has referred to earlier and the documents produced with the plaint it appears that what the plaintiffs call an advertisement is only a 'news report'. The plaint averments whether the defendant is going to start its business activity or have started the same in Ahmedabad are equivocal and self contradictory. There is no mention that the news report is published from Ahmedabad City limits to which the trial Court's territorial jurisdiction is limited. 5.9 The learned Sr.Counsel submitted that there is no averment in paragraph No. 14 of the plaint that the application for SEBI registration has been made at Ahmedabad or that the defendant is going to collect huge public money under the name and style of Parsvanath at Ahmedabad. 5.9 The learned Sr.Counsel submitted that there is no averment in paragraph No. 14 of the plaint that the application for SEBI registration has been made at Ahmedabad or that the defendant is going to collect huge public money under the name and style of Parsvanath at Ahmedabad. It is submitted that bald averments that the defendant is likely to start its business on very large scale in the city of Ahmedabad cannot be considered as a plea of 'cause of action' arisen in the city of Ahmedabad within the territorial limits of the jurisdiction of the trial Court. Therefore, the averments made by plaintiffs in plaint do not disclose any cause of action arising within the territorial jurisdiction of the trial Court. 5.10 In support of the aforesaid contention, the learned Counsel relied upon the following authorities: 5.10A The learned Sr. Counsel has also relied upon the judgment of the Hon'ble Apex Court in the case of Oil and Natural Gas Commission v. Utpal Kumar Basu and Ors., (1994) 4 SCC 711 , more particularly on para 8 at page 719 which reads as under: 5.10B "8. From the facts pleaded in the writ petition, it is clear that NICCO invoked the jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction. According to NICCO, it became aware of the contract proposed to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta. In response thereto, it submitted its bid or tender from its Calcutta office and revised the rates subsequently. When it learnt that it was considered ineligible it sent representations, including fax messages, to EIL, IBGC, etc., at New Delhi, demanding justice. As stated earlier, the Steering committee finally rejected the offer of NICCO and awarded the contract to CIMMCO at New Delhi, on 27.1.1993." 5.10C In the aforesaid judgment, the observations of the Hon'ble Supreme Court is that merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also, the mere fact that it send fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. So also, the mere fact that it send fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. 5.10D Thereafter, he has relied upon the judgment of the Hon'ble Apex Court in the case Dhodha House & Patel Field Marshal Industries v. S.K. Maingi & P.M. Diesel Ltd., 2006 (32) PTC 1 : AIR 2006 SC 730 more particularly on paragraph 31 at page No. 737 which shows that the cause of action will arise only when a registered trade mark is used and not when an application is filed for registration of the trade mark...... In other words, a suit may lie where an infringement of trade mark or copy right take place but a cause of action for filing the suit would not arise within the jurisdiction of the Court only because an advertisement has been issued in the trade marks journal or any other journal, notifying the factum of filing of such an application". 5.10E Learned Counsel has further relied upon the judgment of the Madras High Court in the case of Jolen Inc. Represented by ITS Constituted Attorney, Mr.A. Arulselvan v. Shobanlal Jain & Ors., 2005 (2) R.A.J. 62 (Mad.). The learned Counsel stated that it is observed that the so called advertisement is only a press report and affords no cause of action against the defendant. 5.10F The learned Counsel has relied on the judgment of the Delhi High Court in the case of Haryana Milk Foods Ltd. v. Chambel Dairy Products, 2002 (25) PTC 156 (Del) particularly paragraph No. 11 and 12 on page 159 & 160. So far as paragraph 11 is concerned, it reproduced as under: 5.10G "11. It is trite law that the question of jurisdiction has to be decided, prima facie, by looking into the averments made in the plaint and not by the defence which may be set up by the defendant. It also does not depend upon the character of the relief prayed for by the plaintiffs. [See Jawahar Engineering Company (supra)]. It is trite law that the question of jurisdiction has to be decided, prima facie, by looking into the averments made in the plaint and not by the defence which may be set up by the defendant. It also does not depend upon the character of the relief prayed for by the plaintiffs. [See Jawahar Engineering Company (supra)]. It is equally true that to determine the question of jurisdiction of the Court on the basis of bundle of facts, it is not enough to look only at a paragraph of the plaint, the entire plaint must be taken into consideration to ascertain the bundle of facts which give rise to the cause of action and to determine whether any one or more of such facts occurred within the territorial jurisdiction of the Court." 5.11 The learned counsel relying on the said judgments has stated that the so-called advertisement is only a press report and affords no cause of action against the defendant. He has further submitted that the averment that the defendant has started its business activity in Ahmedabad is palpably false in view of emphatic averments to the contrary in paragraph No. 14 of the plaint. The plaint is required to be read not formally, but meaningfully and if clever drafts has created any illusion of cause of action, the same can be unravelled by the Court. Averment in paragraph No. 17 of the plaint has to be read meaningfully in light of averments in paragraph No. 14 of the plaint. The averment lacks the necessary particulars as contemplated by Order 7 Rule 1. 5.11A. He has further stated that the averments in the plaint has to be read meaningfully in light of averments in paragraph No. 14 of the plaint and that the averments also lack the necessary particulars as contemplated by Order 7 Rule 1 and the decision of Delhi High Court in the case of Haryana Milk Foods Ltd. (supra). 5.11A. He has further stated that the averments in the plaint has to be read meaningfully in light of averments in paragraph No. 14 of the plaint and that the averments also lack the necessary particulars as contemplated by Order 7 Rule 1 and the decision of Delhi High Court in the case of Haryana Milk Foods Ltd. (supra). In support of his submission, he has relied upon the judgment of the Hon'ble Apex Court in the case of T. Arivandandam v. T.V. Satyapal and Anr., AIR 1977 SC 2421 , particularly on paragraph 5 at page 2423 wherein the Hon'ble Apex Court has held that if on a meaningful not formally reading of the plaint it is manifestly vexatious and meritless, in the sense of not disclosing the clear right to sue, he should exercise his power under Order 7 Rule 11 of Civil Procedure Code, taking care to see that the grounds mentioned therein is fulfilled and if clever drafting has created an illusion of cause of action, nip in the bud at the first hearing by examining the party searchingly under Order 10 of Civil Procedure Code. 5.11B The learned Sr. Counsel has also relied upon the judgment of the Hon'ble Apex Court in the case of I.T.C. Limited v. Debts Recovery Appellate Ribunal and Ors., (1998) 2 SCC 70 wherein in paragraph 16 at page No. 77, the Hon'ble Apex Court has held that the question is whether the real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 Civil Procedure Code. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. He has also relied upon paragraph 27 of the said judgment at page 81 wherein it is held that the ritual of repeating a word or creation of an illusion in the plaint can certainly be unravelled and exposed by the Court while dealing with an application under Order 7 Rule 11(a). He has also relied upon paragraph 27 of the said judgment at page 81 wherein it is held that the ritual of repeating a word or creation of an illusion in the plaint can certainly be unravelled and exposed by the Court while dealing with an application under Order 7 Rule 11(a). He has also relied upon said judgment wherein it is held that inasmuch as the mere allegation of drawal of monies without movement of goods does not amount to a cause of action based on "fraud", the Bank cannot take shelter under the words "fraud" or "misrepresentation" used in the plaint. 6. As against this, Mr. Mihir Thakore, learned Sr. Counsel with Mr. Y.J. Trivedi, appear on behalf of the plaintiffs. SUBMISSION OF MR. MIHIR THAKORE LD. SR. COUNSEL WITH MR. Y.J. TRIVEDI, LD. ADVOCATE FOR THE PLAINTIFF : 6A The learned Sr. Counsel has stated that in order to establish that the plaintiff has right to file suit for passing off on the basis of trade name and the cause of action arose within the city limits of Ahmedabad, the learned Counsel; has relied upon the following documentary evidence in this behalf: 6.1 Newspaper report of Divya Bhaskar of 12.3.2006, Ahmedabad edition which clearly stating the statement of Mr. Pradip Jain that he is going to invest 400 crores in Gujarat in the name of Parsvanath developers. This again is itself an act of passing off within the city of Ahmedabad for the trade name of the defendant is deceptively similar to the trade name of the plaintiffs. 6.2 Learned Sr. Counsel has submitted that the Advertisement in Financial Express, Ahmedabad Edition dated 23.3.2006 stated as under: "India's first real estate company with Naredco ICRA DR 2 rating 52 Projects under construction Successfully completed 14 projects Developing integrated townships Group housing projects Shopping, Multiplexes and Commercial Complexes" 6.3 This advertisement was published in Financial Express, Ahmedabad Edition, on 23.3.2006 before the Suit was filed. This newspaper circulates within the city of Ahmedabad. The said advertisement was itself an act of passing off of the plaintiffs trade name. This passing off took place through circulation of Financial Express in the City of Ahmedabad and people started believing that the plaintiffs' were the Company which has given this advertisement. This newspaper circulates within the city of Ahmedabad. The said advertisement was itself an act of passing off of the plaintiffs trade name. This passing off took place through circulation of Financial Express in the City of Ahmedabad and people started believing that the plaintiffs' were the Company which has given this advertisement. 6.4 It would be evident from the above that the plaintiff have not only averred that advertisements have been published in newspapers which are widely circulated within city limits of Ahmedabad, which have resulted in passing off, but people have also made inquiries from them whether they have partnered with somebody and are coming in a big way. All these have happened within the city of Ahmedabad, namely, the advertisements circulated in Ahmedabad, the statement of the Chairman published in Ahmedabad and the inquiries made from the plaintiffs in Ahmedabad, the damage has been caused to the plaintiffs' reputation by the act of passing off in Ahmedabad.). Therefore, it cannot be said on the basis of the averments made in the plaint and the documents produced along with the plaint that no part of the cause of action has arisen within the city of Ahmedabad and within the jurisdiction of City Civil Court, Ahmedabad. 6.5 It would be pertinent to highlight that the only meaningful reading of the plaint would imply that part of the cause of action for quia timet action has arisen within the jurisdiction of the City Civil Court, Ahmedabad and the plaint cannot be returned for presentation to the proper Court or rejected on the averments made in the plaint. 6.6 After relying on the said advertisements he has stated that the right of the plaintiff to exclusively use the name is, inter alia, infracted by advertisement in Financial Express published in Ahmedabad and therefore the City Civil Court, Ahmedabad has jurisdiction to entertain and try the Suit. 6.7 While it is true that the plaintiff has relied upon the documents referred to in (2) and (3) above, the plaintiff has produced along with list Exh. 31/3 an advertisement given by AUDA dated 15.3.2006 inviting parties to submit their bids on or before 31.3.2006 and the public auction was to take place on 5.4.2006. 6.7 While it is true that the plaintiff has relied upon the documents referred to in (2) and (3) above, the plaintiff has produced along with list Exh. 31/3 an advertisement given by AUDA dated 15.3.2006 inviting parties to submit their bids on or before 31.3.2006 and the public auction was to take place on 5.4.2006. The AUDA office is situated within the city of Ahmedabad on Ashram Road and a bid was submitted by the defendant in respect of Final Plot No. 43/2/A, Vastrapur and Final Plot No. 293/1/C Vejalpur-3, as is evident from the Sandesh of 6.4.2006 produced at Exh. 31/1. The above documents show that the defendant has done the act of passing off by submitting applications in their trade name within the city of Ahmedabad. This is an additional evidence showing passing off before the date of the plait albeit not produced with the plaint. However, the documents produced with the plaint itself are sufficient to show the act of passing off. 6.8 Reliance has also been placed by the learned Senior Counsel in the case of State of Orissa v. Klockner and Company, AIR 1996 SC 2140 more particularly on paragraph No. 24 at page 2146. 7.1 The learned Sr. Counsel for the respondents has relied upon the judgment of the Hon'ble Apex Court in the case of Exphar SA v. Eupharma Laboratories Ltd., AIR 2004 SC 1682 wherein in paragraph No. 9, the Hon'ble Apex Court has observed as under: 7.1A "9. Besides when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the Court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the Division Bench should have taken the allegations contained in the plaint to be correct." 7.1B The learned Senior Counsel has also placed reliance on the judgment of the Hon'ble Apex Court in the case of Rajasthasn High Court Advocates Association v. Union of India, AIR 2001 SC 416 particularly on paragraph 17, which reads as under: 7.1Bi "17. The expression 'cause of action' has acquired a judicially settled meaning. The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in 'cause of action'. It has to be left to be determined in each individual case as to where the cause of action arises." 7.1C The learned Sr. Counsel also relied upon the judgment of the Division Bench of Delhi High Court Judgment in the case of Inspiration Cloths & U v. M/s.Colby International Limited, 2001 AIHC 1733. In the said judgment, it is held that "A distinction must always be drawn between a case where the plaint on the face of it discloses no cause of action and another in which after considering the entire material on the record the Court comes to the conclusion that even if all the allegations are taken to be proved, the plaintiff would not be entitled to any relief whatsoever. A distinction must always be drawn between a case where the plaint on the face of it discloses no cause of action and another in which after considering the entire material on the record the Court comes to the conclusion that there is no cause of action. In the first case the plaint can be rejected but in the latter case the plaint cannot be rejected. The suit has to be dismissed. Learned Single Judge adopted the second approach. This was not the stage where the court was expected to enter into this controversy that whether there was a cause of action to the plaintiff against the defendant or not. No doubt that where the plaint is based on a document, the Court will be entitled to consider the said document also and ascertain if a cause of action is disclosed in the plaint, but validity of the document cannot be considered at this stage. No doubt that where the plaint is based on a document, the Court will be entitled to consider the said document also and ascertain if a cause of action is disclosed in the plaint, but validity of the document cannot be considered at this stage. To enable a Court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and documents accompanying the plaint only and nothing else." 7.1D The learned Sr.Counsel further placed reliance on the case of Shanti Ranjan Das Gupta v. Dasuram Mirzamal Firm, AIR 1957 Assam 49. 7.1E The learned Sr. Counsel has relied upon the decision in the case of Jagannath Prasad and Others v. Smt. Chandrawati and another, AIR 1970 Allahabad 309 (paragraph 6). 8. In view of the aforesaid decisions, the learned Senior Counsel has submitted that for the purpose of Order 7 Rule 10 or Rule 11 of the C.P.C., only the averments in the plaint and the documents produced with the plaint have to be seen for the purpose of determining whether city Civil Court, Ahmedabad, has territorial jurisdiction to entertain the suit. If yes, the plaint can neither be returned nor rejected. He has referred to paragraphs 14 and 17 of the plaint which I have already referred. He has also referred to advertisement in Financial Express which also I have already referred to. 9. In view of the same, the learned Senior Counsel has submitted that the plaintiffs have not only averred that advertisements have been published in newspapers which have resulted in passing off, but people have also made inquiries from them whether they have partnered with somebody and are coming in a big way. All this has happened within the city of Ahmedabad namely the advertisements circulated in Ahmedabad, the statement of the Chairman published in Ahmedabad and the inquiries made from the plaintiffs in Ahmedabad, the damage has been caused to the plaintiffs' reputation and goodwill by the act of passing off in Ahmedabad. Therefore, it cannot be said on the basis of the averments made in the plaint and the documents produced along with the plaint that no part of the cause of action has arisen within the city of Ahmedabad and within the jurisdiction of City Civil Court, Ahmedabad. 10. Therefore, it cannot be said on the basis of the averments made in the plaint and the documents produced along with the plaint that no part of the cause of action has arisen within the city of Ahmedabad and within the jurisdiction of City Civil Court, Ahmedabad. 10. The learned Sr.Counsel has submitted that the title of the said application refers to Rule 10, Rule 11 Order 7 as well as Section 151, it would be evident from the averments made in the application Exh. 26 and the relief prayed for therein that the application is filed only under Order 7 Rule 10 of the Code of Civil Procedure. The following would clearly establish that the application is under Order 7 Rule 10 and no other provision is relied upon by the defendant. He has further relied on para 5 of the application Exh. 26. He has stated that the relief prayed for is also for return of the plaint and not rejection of the plaint. The application therefore clearly is an application under Order 7 Rule 10 and not under Order 7 Rule 11 of the Code of Civil Procedure. 10(i) A plaint can be rejected under Order 7 Rule 11(a) if and only if the plaint does not disclose a cause of action. There is not even a statement in the application that the plaint does not disclose a cause of action and the averment in the application Exh. 26 is confined to the alleged lack of territorial jurisdiction of the City Civil Court. 10(ii) A plaint shall be rejected under Order 7 Rule 11(d), where the suit appears from the statement in the plaint to be barred by any law. Lack of territorial jurisdiction of the Court to entertain a suit cannot be equated to bar of the suit by any law. The mere fact that a particular Court does not have territorial jurisdiction does not mean that the suit as framed is barred by any law. Looking at the averments in the application it would be evident that there is not even a pleading therein that from any statement made in the plaint the suit appears to be barred by any provision of law. 10(iii) In view of above, the contention of the defendant before this Court that the application filed by defendant is also under Order 7 Rule 11 is ex-facie untenable. 10(iii) In view of above, the contention of the defendant before this Court that the application filed by defendant is also under Order 7 Rule 11 is ex-facie untenable. Rejoinder of the Defendant by Mr.S.B.Vakil, learned Senior Counsel: 11.1 In the rejoinder the learned counsel has stated that the plaint contains no averment of any threat. The only relevant averment is that the defendant is likely to start its business on a large scale. It is submitted that "likelihood" is not any threat and affords no cause of action even for a quia timet action based on the defendant's threat to pass off its business as that of the plaintiffs. The plaint contains no averment of any threat. The only relevant averment is that the defendant is likely to start its business on a large scale. It is submitted that "likelihood" is not any threat and affords no cause of action even for a quia timet action. Only a clear and unequivocal threat to infringe the plaintiff's right can give to the plaintiff a cause of action or right to sue for a quia timet action. He has relied on the decision of the Hon'ble Supreme Court in the case of Mst. Rukhmabai v. Lala Laxminarayan and Ors., AIR 1960 SC 335 particularly paragraph No. 31 on page 349 where the Hon'ble Apex Court has held that there can be no right to sue. Only there is an accrual of the right asserted in the Suit and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.". He has further relied on paragraph No. 33 at page No. 349, which reads as under: 11.1A "33. The legal position may be briefly stated thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes jeopardizes the said right". 11.1-B. The learned Sr. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes jeopardizes the said right". 11.1-B. The learned Sr. Counsel has further submitted that the plaintiffs have no cause of action. He has submitted that out of the two advertisements published in "Divya Bhaskar" and "Financial Express", the Press of "Divya Bhaskar" has outside the city limits of Ahmedabad when the suit was filed. As regards the second advertisement, which is being published and circulated in city of Ahmedabad, he has stated that mere giving advertisement will not give any case of action. In support of his submission, he has relied upon the decision of the Hon'ble Apex Court in the case of M/s. Dhodha House v. S.K. Maingi With M/s. Patel Field Marshall industries and ors. v. M/s. P.M. Diesel Ltd., AIR 2006 SC 730 . The Hon'ble Supreme Court has referred to Trade Marks Journals and thereafter explained in para 31 cause of action and further observed in paras 48 and 51. OBSERVATIONS AND FINDINGS: 12.1 I have considered the facts and circumstances of the case. It may be noted that along with the plaint the plaintiff has filed two lists of documents. List of documents include 1 to 16 and Exh. 4 i.e. produced Exh. 4, 4/1 to 4/16 and 4/19 & 4/20 are advertisements dated 12.3.2006 & 23.3.2006 of the defendant. 12.2 I have also considered the submissions made by the plaintiff and the documents produced. I have also considered the defendant's reply. Thereafter the defendant's application under Order 7 Rule 10 and 11 and the plaintiff's reply to the sand and the defendant's rejoinder to the same. 12.3 In view of the rival submissions, according to this Court there are four points for determination which require consideration. 12.4 (A) Whether the passing off action is available to the plaintiffs as a quia timet action against the defendant' 12.5 (B) For the purpose of "passing off action", on the basis of the above facts, whether the Suit of the plaintiffs is maintainable in the City Civil Court, Ahmedabad' 12.6 [C] Whether the objection taken by defendant under Order 7 Rule 10 is maintainable', i.e. Application Exh.26 in the present case. 12.7 (D) Whether the objection under Order 7 Rule 11 is maintainable on the basis of the judgments cited by the defendant' FACTS OF THE CASE: 13. The plaintiffs are carrying on business at the name of Parshwanath Realty Private Limited and Parshwanath Housing Finance Corporation Limited, a corporate name in which the plaintiff is carrying on construction activity. Therefore, the plaintiff are carrying on business in the corporate name more particularly the word "Parsvanath". It is alleged by the plaintiffs that the defendant has proposed to start construction activity within city limit of Ahmedabad in the name particularly the word "Parsvanath Developers Ltd." Therefore, the main contention of the plaintiff is that the defendant may be restrained from carrying on the business in the name particularly the word "Parsvanath". It may be noted that there is no separate trade mark of both the plaintiffs and the defendant and therefore the plaintiffs have filed suit for passing off of his trading name and style containing or consisting of the word "Parsvanath". Though passing off is a common law remedy. However, some of the provisions of the Trade mark Act throw considerable light on the question raised. Therefore, this Court refers to the following provisions of the Act. 14. The definition of Trade Mark under Section 2(1)(zb) trade mark means in relation to the other provisions of this Act, viz. a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification of trade mark or collective mark. Section 2(1)(m) defines "Mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. Section 2(o) defines "Name" includes any abbreviation of a name. 14.1 Section 2(2)(c) provides definition of "use of a mark"..... (ii) in relation to services, shall be construed as a reference to the use of the mark as or as part any statement about the availability, provision or performance of such services. Section 2(o) defines "Name" includes any abbreviation of a name. 14.1 Section 2(2)(c) provides definition of "use of a mark"..... (ii) in relation to services, shall be construed as a reference to the use of the mark as or as part any statement about the availability, provision or performance of such services. In view of this definition if a trader is using any name or word for carrying on business in relation to his goods or business and if other person uses either identical name or deceptively similar name for carrying on business then it will be a case of passing off trading name. 14.2 The term "passing off" is not defined in the provisions of the Trade Marks Act, 1999. Section 27(2) states that the rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof are unaffected by the provisions of the Act. Section 134(1)(c) refers to jurisdiction of Courts to try suits for passing off arising out of the use of any trade Mark. Section 135 of the Act provides for reliefs in suits for passing off such as injunction, damages, delivery up of the infringing labels and marks for destruction, or erasures. 15.1 The law of passing off is based on the principle that unfair competition is calculated to destroy honest business and should not be allowed. The object of the law is to restrain commercial piracy. The law is not limited to cases of pure trade marks, but is based on a "much wider principle, the principle being that the Court will always interfere by injunction to restrain irreparable injury being done to the plaintiffs' property. 15.2 No person can misrepresent that his goods and his business are the same as the goods and the business of another. There is other proposition that no man can have any right to represent his goods as the goods of another person. [See: The Law of Trade Marks and Passing Off by Dr. S. Venkateswaran, 4th Edition, page Nos. 464-465] REGARDING PASSING OFF ACTION: 16.1 The test of passing off involves a misrepresentation made by a trader to his prospective customers calculated to injure, as a reasonably foreseeable consequence, the business or goodwill of the other trader. [See: The Law of Trade Marks and Passing Off by Dr. S. Venkateswaran, 4th Edition, page Nos. 464-465] REGARDING PASSING OFF ACTION: 16.1 The test of passing off involves a misrepresentation made by a trader to his prospective customers calculated to injure, as a reasonably foreseeable consequence, the business or goodwill of the other trader. 16.2 Goodwill, misrepresentation and damage are the three elements of the tort of passing off, which is often referred to as the "classical trinity" of passing off. 16.3 The law of passing off has been equated to "unfair competition by misrepresentation" by Christopher Wadlow in the Third Edition of his book "THE LAW OF PASSING OFF". 16.4 In the U.S.A. Passing of is treated as a form of unfair competition and the subject referred to under that heading. In Canada the courts speak note of passing off but of wrongful appropriation of the plaintiffs' personality, he having a "proprietary right in the exclusive marketing for gain in his personality". [See: TRADE MARKS & PASSING OFF, by P. Narayanan, 6th Edition, Chapter 25 Passing off Action, page 685 para 25.01]. 16.5 The "passing off" is a tort and was originally known as an action for deceit. The proprietor of a trade mark is entitled to prevent a party from using a deceptively similar mark and file a suit for passing off to obtain reliefs mentioned above. Three things are required to be established in a passing off action viz. (i) reputation; (ii) deception or confusion and (iii) damages. WHAT IS MEANT BY TRADE NAME: 17. "The name under which a business trades will almost always be a trade mark (or if the business provides services, a service mark, or both). Independently of questions of trade or service mark, however, the name of a business (a trading business or any other) will normally have attached to it a goodwill that the courts will protect. An action for passing off will then lie wherever the defendant company's name, or its intended name, is calculated to deceive, and so to divert business from the claimant, or to occasion a confusion between the two businesses. If this is not made out there is no case. An action for passing off will then lie wherever the defendant company's name, or its intended name, is calculated to deceive, and so to divert business from the claimant, or to occasion a confusion between the two businesses. If this is not made out there is no case. The ground is not to be limited to the date of the proceedings; the court will have regard to the way in which the business may be carried on in the future, and to its not being carried on precisely as carried on at the date of the proceedings. Where there is a probability of confusion in business, an injunction will be granted even though the defendant adopted the name innocently and even though the claimant has decided no longer to use the name." [see KERLEY'S LAW OF TRADE MARKS AND TRADE NAMES (13th Edition, page 487, para 14.190]. 17.1 Where the name of a company has acquired reputation in relation to some goods or business, if another person subsequently adopts a deceptively similar name for similar goods or business the latter can be restrained by an injunction from carrying on its business under such a name. (see "TRADE MARKS AND PASSING OFF", 6th Edition, by P.Narayanan, page 800-801 para 25.104). 17.2 The law of passing off applicable to trade names. Apart from a trade mark in the strict sense of the term, a trader may use a name to indicate his business or goods. The definition of a mark includes a name. A trade name can therefore serve the purpose of a trade mark. Where the business is such that no sale of any goods is involved, it is carried on invariably under a trading name or style. Individuals, firms or companies rendering certain professional services come under this category. The name under which such business is carried on is called a "trade name". The reputation or goodwill of the business is often attached to the trade name which will be protected by Courts. Copying of their names by competitors would, therefore, cause injury to their business. The law is that no man is entitled to carry on his business in such a way as to represent that if is the business of another, or is in any way connected with the business of another. Copying of their names by competitors would, therefore, cause injury to their business. The law is that no man is entitled to carry on his business in such a way as to represent that if is the business of another, or is in any way connected with the business of another. The general principles of the law applicable to cases where a person uses a name or intends to use a name which is likely to deceive and thereby divert the business of the plaintiff to the defendant or cause confusion between the two businesses are analogous to the principles which are applicable to ordinary cases of passing off relating to sale of goods. 17.3 The object of the law of passing off is to protect some form of property usually he goodwill of the plaintiff in his business or his goods or his services or in the work which he produces or something of that kind. The goodwill of the business is ordinarily represented by a mark, name, get up or other badge. Passing off is a form of tort. The substantive law of passing off is almost entirely based on common law, i.e. case law. The statute deals only with the rules of procedure and the remedies available. QUIA TIMET ACTION: 18. The plaintiffs submit that the suit is based on "Quia timet action". So, what is meant by "quia timet action'" 18.1 "Quia timet action: It is a Latin word which means 'because he fears or apprehends'. In legal terminology it has been defined as an action by which a person may obtain an injunction to prevent or restrain some threatened act being done which if done, would cause him substantial damage, and for which money would be no adequate or sufficient remedy quoted in Mars Incorporated v. Kumar Krishna Mukerjee, (2003 (26) PTC 60 at 64 (Del) from Osborne's Concise Law Dictionary [Sweet & Maxwell (London), 8th Ed. 1993; Bore and Rutherford]. In an action for passing off the plaintiff has to establish that the defendant's activities or proposed activities will lead to passing off. Hence a quia timet action will lie. (Computer Vision, [1975] RPC 171; British Medical Association v. Marsh, (1931) 48 RPC 565; John Dickinson v. Apsley Press, (1937) 54 RPC 219; Delavelle v. Harry, (1946) 63 RPC 103. In an action for passing off the plaintiff has to establish that the defendant's activities or proposed activities will lead to passing off. Hence a quia timet action will lie. (Computer Vision, [1975] RPC 171; British Medical Association v. Marsh, (1931) 48 RPC 565; John Dickinson v. Apsley Press, (1937) 54 RPC 219; Delavelle v. Harry, (1946) 63 RPC 103. (see "Law of Trade Marks and Passing Off" by P.Narayanan, (6th Edition) paragraphs 25.43, page 723. 18.2 The object of quia timet action is to prevent an injury which has not yet been caused but is about to be caused. 18.3 In any event, the defendant has threatened to use their corporate name Parshwanath in Ahmedabad which contained the word "Parsvanath" which is incidental to the names of the plaintiff and therefore, there is likelihood of deception and confusion. In fact, it is stated that after the above advertisements were published by the defendant, the plaintiffs had received several phone calls from various persons inquiring whether the plaintiffs have started further development of their business in different parts of the country with some other partners. 18.4 In view of the aforesaid law, in connection with passing off trade name, the question will have to be determined as to whether the present Suit filed by the plaintiff against the defendant for passing off trade name the word "Parsvanath" which is used by defendant is maintainable at law. For answering this question, this Court will have to refer to the following authorities: 18.4A The Hon'ble Bombay High Court, in the case of The National Bank of India v. The National Bank of Indore, (1922) 24 BLR 1181, per Mulla, J.) held as under: 18.5 "The principles by which this case must be decided are well established. The fundamental principle is that a person shall not trade under a name so closely resembling that of the plaintiff as to be mistaken for it by the public: Hendricks v. Montagu; in other words, that a person shall not carry on his business in such a way as to represent that his business was the business of another person: [Merchant Banking Company of London v. Merchants' Joint Stock Bank]. The question to be determined in cases of this description is that the one is in the ordinary course of human affairs likely to be confounded with the other: [Hendriks v. Montagu]. The question to be determined in cases of this description is that the one is in the ordinary course of human affairs likely to be confounded with the other: [Hendriks v. Montagu]. It is not necessary to prove that the defendant in taking the name complained of by the plaintiffs had any fraudulent intent. It is enough if the plaintiffs prove that the act of the defendant in assuming the name complained of is an injury to the plaintiffs' rights: [North Cheshire and Manchester Brewery Company v. Manchester Brewery Company]. There is no question in such cases of property or monopoly in the name. The principle upon which the cases on this subject proceed is not that there is property in the word, but that it is a fraud on a person who has established a trade and carries it on under a given name with some other person who assumes the same name or the same name with a slight alteration in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name. 18.6 A person shall not trade under a name so closely resembling that of the plaintiff as to be mistaken for it by the public. The question to be determined in cases of this description is whether there is a similarity between the two names as that the one is in the ordinary course of human affairs likely to be confounded with the other. It is not necessary to prove that the defendant in taking the name complained of by the plaintiffs had any fraudulent intent. It is enough if the plaintiffs prove that the act of the defendant is assuming the name complained of is an injury to the plaintiff's rights. 18.7 The Division Bench of this Court (Coram: D.P.Desai & M.P.Thakkar, JJ, as he was then) in the case of Simatul Chemical Industries Pvt. Ltd. v. Cibatul Limited., 1978 (19) GLR 315, (p. 317) has started with remarks "one will have to reflect a great deal before saying 'what is in a name'' for everything centres around a name" which is also in the present case. The Division Bench has, in the said judgment, referred the decision of the Bombay High Court in the case of The National Bank of India v. The National Bank of Indore (24 BLR 1181) and considered number of English decisions including judgment of Earl of Halsbury L.C. in the NORTH CHESHIRE BREWERY'S CASE and others and ultimately in paragraph 9 (page 328) this Court has observed as under: 18.8 "para 9. ....... Just as a citizen is entitled to protection in respect of his movable and immovable properties, he is entitled to seek protection in respect of his proprietary rights in goodwill. As the Court will not permit theft of the property of a citizen, it will not permit the theft of the goodwill earned by a citizen. There is also another dimension of the matter. The consumers require to be protected if there is any danger of confusion being caused in their mind and there is a likelihood of their being led into believing that the product in reality manufactured by X is manufactured by Y or by someone connected with Y. When a consumer or customer effects a purchase, he is entitled to be assured of the fact that he is purchasing the very goods that he wants and the goods manufactured by a concern in which he has confidence and not goods manufactured by another concern whom the consumer or the customer does not know and that too by reason of the fact that he is deceived into believing that the product is manufactured by the former though it is in fact manufactured by the latter...." 18.9 In the case of Bharat Tiles P.Ltd. v. Bharat Tiles Mfg. Co., 1978 (19) GLR 518 (per B.K.Mehta, J.), after referring to aforesaid Bank case of National Bank of India (supra) it has been held that the principles are well known and settled by the authorities. The name under which a business trades will almost always be a trade mark and it is always considered difficult, if not impossible, to distinguish between the trading business and a trade name. The name under which a business trades will almost always be a trade mark and it is always considered difficult, if not impossible, to distinguish between the trading business and a trade name. 18.10 In the case of Laxmikant V Patel v. Chetanbhai Shah and anr., (2002) 3 SCC 65 , the Hon'ble Supreme Court has observed in paragraphs 8, 10, 11, and 12, as under: 18.11 "para 8 - it is common in trade and business for a trader or a businessman to adopt a name and/or mark under which he would carry on his trade or business. According to Kerly (LAW OF TRADE MARKS AND TRADE NAMES, 12th Edn., para 16.49), the name under which a business trades will almost always be a trade mark (or if the business provides services, a service mark, or both). Independently of questions of trade or service mark, however, the name of a goodwill that the courts will protect. An action for passing-off will then lie wherever the defendant company's name, or its intended name, is calculated to deceive, and so to divert business from the plaintiffs, or to occasion a confusion between the two businesses. If this is not made out there is no case. The ground is not to be limited to the date of the proceedings; the court will have regard to the way in which the business may be carried on in the future, and to its not being carried on precisely as carried on at the fate of the proceedings. Where there is probability of confusion in business, an injunction will be granted even though the defendant adopted the name innocently. Xxx xxx xxx xxx 18.12 " para 10 - A person may sell his goods or deliver his services such as in case of a profession under a trading name or style. With the lapse of time such business or services associated with a person acquire a reputation or goodwill which becomes a property which is protected by courts. A competitor initiating sale of goods or services in the same name or by imitating that name results in injury to the business of one who has the property in that name. With the lapse of time such business or services associated with a person acquire a reputation or goodwill which becomes a property which is protected by courts. A competitor initiating sale of goods or services in the same name or by imitating that name results in injury to the business of one who has the property in that name. The law does not permit any one carry on his business in such a way as would persuade the customers or clients in believing that the goods or services belonging to someone else are his or are associated therewith. It does not matter whether the latter person does so fraudulently or otherwise. The reasons are two. Firstly, honesty and fair play are, and ought to be, the basic policies in the world of business. Secondly, when a person adopts or intends to adopt a name in connection with his business or services which already belongs to someone else it results in confusion and has propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury". 18.13 "para 11 - Salmond & Heuston in Law of Torts (20th Edn., at p.395) call this form of injury as "injurious falsehood" and observe the same having been "awkwardly termed" as "passing-off" and state: "The legal and economic basis of this tort is to provide protection for the right of property which exists not in a particular name, mark or style but in an established business, commercial or professional reputation or goodwill. So to sell merchandise or carry on business under such a name, mark, description, or otherwise in such a manner as to mislead the public into believing that the merchandise or business is that of another person is a wrong actionable at the suit of hat other person. This form of injury is commonly, though awkwardly, termed that of passing-off one's goods or business as the goods or business of another and is the most important example of the wrong of injurious falsehood. The gist of the conception of passing-ff is that the goods are in effect telling a falsehood about themselves, are saying something about themselves which is calculated to mislead. The gist of the conception of passing-ff is that the goods are in effect telling a falsehood about themselves, are saying something about themselves which is calculated to mislead. The law on this matter is designed to protect traders against that form of unfair competition which consists in acquiring for oneself, by means of false or misleading devices, the benefit of the reputation already achieved by rival traders." 18.14 "para 12 - In Oertli v. Bowman, (1957 RPC 388 CA) (at p.397) the gist of passing-off action was defined by stating that it was essential to the success of any claim to passing-off based on the use of given mark or get-up that the plaintiff should be able to show that the disputed mark or get-up has become by user in the country distinctive of the plaintiffs' goods so that the use in relation to any goods of the kind dealt in by the plaintiff of that mark or get-up will be understood by the trade and the public in that country as meaning that the goods are the plaintiff's goods. It is in the nature of acquisition of a quasi-proprietary right to the exclusive use of the mark or get-up in relation to goods of that kind because of the plaintiff having used or made it known that the mark or get-up has relation to his goods. Such right is invaded by anyone using the same or some deceptively similar mark, get-up or name in relation to goods not of plaintiff. The three elements of passing-off action are the reputation of goods, possibility of deception and likelihood of damages to the plaintiff. In our opinion, the same principle, which applies to trade mark, is applicable to trade name". 19. In view of the same, so far as point No. 12.4A is concerned the present suit of the plaintiffs in respect of passing off action filed by the plaintiffs against the defendant as quia timet action is maintainable at law. Second point & third point together: (para 12.5B and 12.6C) 20.1 In this case one of the contentions of the defendant is that the Civil Court has no territorial jurisdiction to entertain, hear and try the Suit for that this Court has to refer to certain provisions of the Code of Civil Procedure. Second point & third point together: (para 12.5B and 12.6C) 20.1 In this case one of the contentions of the defendant is that the Civil Court has no territorial jurisdiction to entertain, hear and try the Suit for that this Court has to refer to certain provisions of the Code of Civil Procedure. 20.2 In Code of Civil Procedure, the procedures to be followed in instituting suit has been provided in Secs.15 to 20. PLACE OF SUING: 21.1 "The words 'place of suing' occur in the heading of ss. 15-20, a group of sections which refer to the local venue of suits cognizable by Indian Courts in India and in places to which the Code applies. Sections 15-20 lays down rules as to place of suing and there is no doubt that in that section the expression is used with reference to those rules. Those rules regulate the venue in places in India where the Code applies. They deal with matters of domestic concern and prescribe rules for assumption of territorial jurisdiction by Indian Courts in matters within their cognizance." (Re: Mulla The Code of Civil Procedure page 460). 21.2 The Hon'ble Apex Court in the case of M/s.Dhodha House (Supra), in paragraph 19 of the judgment, has observed as under: (see Section 16 to 20 of Code of Civil Procedure): 21.3 "Cause of action, as is well-settled, is a bundle of facts which are necessary to be proved in a given case. Cause of action, it is trite, if arises within the jurisdiction of the court concerned empowers the court to entertain the matter. Determination of territorial jurisdiction of a civil court is governed by the provisions of the Code of Civil Procedure (for short, 'the Code'). Section 16 of the Code provides for institution of the suits where subject-matter of the suit is situate. Section 17 of the Code refers to the suits for immovable property within jurisdiction of different courts. Section 18 refers to place of institution of a suit where local limits of jurisdiction of courts are uncertain; whereas Section 19 of the Code contemplates suits for compensation for wrongs to person or movables. Section 17 of the Code refers to the suits for immovable property within jurisdiction of different courts. Section 18 refers to place of institution of a suit where local limits of jurisdiction of courts are uncertain; whereas Section 19 of the Code contemplates suits for compensation for wrongs to person or movables. Section 20 of the Code, wherewith we are concerned in this case, provides that the suits which do not come within the purview of Sections 16 to 19 of the Code are to be instituted where the defendant resides or cause of action arises." 21.4 Thereafter, I refer to section 20 of the Code of Civil Procedure which provides that subject to the limit aforesaid other suits to be instituted where the defendant resides or cause of action arises. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction and the cause of action, wholly or in part, arises. 21.5 In a leading case of A.B.C. Laxminart Pvt. Ltd. v. A.P. Agencies, 1989 (2) SCC 163 wherein the Apex Court has held that what is meant by "cause of action". "para 12 - A cause of action means every fact, which if traversed, it would be necessary for the plaintiffs to prove in order to support his right to as judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiffs to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiffs." PROVISION OF ORDER 7 RULES 1, 10 AND 11 TO BE CONSIDERED: 22. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiffs." PROVISION OF ORDER 7 RULES 1, 10 AND 11 TO BE CONSIDERED: 22. Order 7 of the Civil Procedure Code provides for plaint. Order 7 Rule 1 provides particulars to be contained in plaint. The plaint shall contain the following particulars. In that, clause (e) provides the facts constituting the cause of action and when it arose. Clause (f) provides that the facts showing that the Court has jurisdiction. Order 7 Rule 10 provides that subject to the provisions of Rule 10-A, the plaint shall at any stage of the Suit be returned to be presented to the Court in which the suit should have been instituted. Once the Court has come to the conclusion that it has no jurisdiction to deal with the matter at any stage of the suit, it has to return the plaint to the plaintiff for presentation to proper court. 22.1 Order 7 Rule 11 provides rejection of plaint. The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action and (b) where the suit appears from the statement in the plaint to be barred by any law. 22.2 Under the provisions of Order 7 Rules 10 and 11 of the Code of Civil Procedure, what is required to be considered is the averments made by the plaintiff in the plaint along with the documents produced therein. Order 7 Rule 10(1) of the Civil Procedure Code provides that the plaint shall, at any stage of the suit, be returned to the person for presentation to the Court in which the suit have been instituted. With regard to the defendant's action, what is required to be considered is the averments made by the plaintiffs in the plaint along with the documents produced therein. WHAT IS MEANT BY CAUSE OF ACTION: 23. Cause of action means a right to sue. It consists of material facts which are imperative for the plaintiff to allege and prove. In other words, it is a "bundle of facts which it is necessary for the plaintiff to prove before he can succeed", or "which gives the plaintiff right to relief against the defendant". Cause of action means a right to sue. It consists of material facts which are imperative for the plaintiff to allege and prove. In other words, it is a "bundle of facts which it is necessary for the plaintiff to prove before he can succeed", or "which gives the plaintiff right to relief against the defendant". 23.1 So far as answer to point 12.5(B) is concerned, from the averments made by the plaintiffs and the defendant it appears that the defendant's advertisements have appeared in the newspaper which are widely circulated within city limits of Ahmedabad. In fact, it is the case of the plaintiffs that deception and confusion have taken place in city of Ahmedabad as pleaded by the plaintiffs in city of Ahmedabad as pleaded by the plaintiffs in paragraph Nos. 14 to 17. The cause of action has thus arisen in city of Ahmedabad and, therefore, the City Civil Court, Ahmedabad will have jurisdiction to entertain and try the Suit filed by the plaintiffs against the defendant. 23.2 In a passing off action, the cause of action arises where the damage is done. Even though the defendant has contended that it did not carry on business in Ahmedabad, the fact of deception and confusion having taken place in city of Ahmedabad on account of the advertisements of the defendant in the newspaper in Ahmedabad is sufficient to confer jurisdiction on the City Civil Court at Ahmedabad to entertain and try the Suit. 24. In view of the averment made by the plaintiffs in the plaint together with the documents produced therein on record by the plaintiffs, in my view, it can be said that cause of action for filing the Suit has arisen in Ahmedabad and therefore the Suit is maintainable in the City Civil Court at Ahmedabad. 25. In view of the aforesaid discussion which I have made, the objection filed by the defendant at Exh. 26 under Order 7 Rules 10 and 11 of the Civil Procedure Code requires to be rejected and it is rejected accordingly. 25.1 So far as the point at paragraph No. 12.5B is concerned, the suit of the plaintiff is maintainable within City Civil Court at Ahmedabad and so far as the point at paragraph 12.6C i.e. this point is concerned, the present application filed by defendant at Exh. 25.1 So far as the point at paragraph No. 12.5B is concerned, the suit of the plaintiff is maintainable within City Civil Court at Ahmedabad and so far as the point at paragraph 12.6C i.e. this point is concerned, the present application filed by defendant at Exh. 26 regarding objection under Order 7 Rule 10 is rejected at this stage. 25.2 The fourth point i.e. 12.7(D) that the learned advocate for the original defendant has stated that his application under Order 7 Rule 11 is maintainable at law and the suit filed by the plaintiffs against the defendant for passing off action is not maintainable within City Civil Court at Ahmedabad in view of various authorities cited by him. For considering this contention, I will have to consider what is meant by "precedent". 25.3 In the case of Divisional Controller v. Mahadeva Shetty, AIR 2003 SC 4172 , the Hon'ble Supreme Court has held as under: "23...... The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Therefore, while applying the decision to a later case, the Court dealing with it should carefully try to ascertain the principle laid down by the previous decision. A decision often takes its colour from the question involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. 25.4 As regards the judgment in the case of I.T.C. Limited v. Debts Recovery Appellate Tribunal and Others, (1998) 2 SCC 70 , the ratio of the said judgment is distinguishable on facts. 25.5 The facts of the said case disclose that the bank had in the plaint alleged fraud against I.T.C. Limited without giving any particulars of the fraud and the only fraud alleged was non-delivery of the goods by I.T.C. Ltd. To Tadi Konda Family. The bank which had issued a letter of credit was not concerned with the principal contract between I.T.C. Ltd. And Tadi Konda Family and the averment of fraud in the facts of the case were made merely to get over any objection that may be raised by filing of an application under Order 7 Rule 11. The bank which had issued a letter of credit was not concerned with the principal contract between I.T.C. Ltd. And Tadi Konda Family and the averment of fraud in the facts of the case were made merely to get over any objection that may be raised by filing of an application under Order 7 Rule 11. In that case the question was whether the real cause of action had accrued to the plaintiffs. In paragraph 10 of the said judgment at page 75, it has been observed that the only exceptions recognised by the Court to prevent enforcement of the Bank Guarantee were cases of fraud or irretrievable injury. In the said judgment it was observed in the same paragraph that the case did not come within the exceptions and, therefore, "there was no cause of action against the appellants". 25.6 In paragraph No. 16 at page 77 of the said judgment it has been observed that the question is whether a real cause of action as set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Civil Procedure Code. On considering the plaint in the said case, the Court came to the conclusion at paragraph No. 23 page 79 that an allegation of non-supply of goods by the sellers to the buyers did not by itself amount, in law, to a plea of "fraud" as understood in this branch of law. It was in those circumstances that the Hon'ble Supreme Court ordered that plaint be returned under Order 7 Rule 11 of the C.P.C. It is in this context that the Hon'ble Supreme Court observed that when allegation of drawal of money under L.C. Without movement of goods does not amount to a cause of action based on fraud mere repetition of the word "fraud" in the plaint does not imply any cause of action to the plaintiff. 25.7 Reliance is placed on the decision reported in the case of Dhodha House & Patel Field Marshal Industries v. S.K. Maingi & P.M. Diesel Ltd., 2006 (32) PTC page 1 : AIR 2006 SC 730 . In the said case it was held that the plaintiffs had no branch office in Delhi and therefore they are not entitled to invoke the jurisdiction of the Court in Delhi. In the said case it was held that the plaintiffs had no branch office in Delhi and therefore they are not entitled to invoke the jurisdiction of the Court in Delhi. The question that has arisen for consideration in that case was whether the plaintiff carried on business or had office in Delhi. In view of the provisions of Section 62 of the Copyright Act, a suit can be filed at a place whether the plaintiff carries on business. It was held that the plaintiff was not a resident of Delhi. It was also held that the plaintiff had not been able to establish that it carried on any business in Delhi. It is in those circumstances that the court held that the Delhi Court had no jurisdiction to entertain the suit. It has been observed that the jurisdiction of the Delhi Court could not have been invoked only on the ground of an advertisement which was published in the Trade Mark journal. (see: para 51 page 740) 25.8 In that decision Dodha House (supra) (page 737 para 31), it has been held that "a cause of action will arise only when a registered trade mark is used and not when an application is filed for registration of the trade mark. In a given case, an application for grant of registration certificate may or may not be allowed. The person in whose favour a registration certificate has already been granted indisputably will have an opportunity to oppose the same by filing an application before the Registrar, who has the requisite jurisdiction to determine the said question. In other words, a suit may lie where an infringement of trade mark or copyright takes place but a cause of action for filing the suit would not arise within the jurisdiction of the Court only because an advertisement has been issued in the Trade Marks Journal or any other Journal, notifying the factum of filing of such an application". 25.9 In the same decision (page 740 para 48), "in Patel Field Marshal (supra) , again the thrust was on the sale of products and/or advertisement by the appellant for registration of trade marks in the Trade Marks Journal and other local papers. 25.9 In the same decision (page 740 para 48), "in Patel Field Marshal (supra) , again the thrust was on the sale of products and/or advertisement by the appellant for registration of trade marks in the Trade Marks Journal and other local papers. The Division Bench of the High Court, as has been noticed hereinabove, did not advert to the issue as to whether the defendant had been selling its product in Delhi on commercial scale or not. It is, therefore, not necessary for us also to dilate further on the said question. We have furthermore noticed hereinbefore that the advertisement appearing in a journal or newspapers by itself would not confer any jurisdiction on the Court, if it otherwise did not have any". 25.10 In my opinion, the facts of the present case are completely different. The advertisements in the newspapers have been published within the city limits of Ahmedabad twice and there has been deception and confusion arisen. Therefore, the aforesaid case is clearly distinguishable from the facts of the case. Therefore, in the present case, the City Civil Court, Ahmedabad, has jurisdiction to entertain the case. In view of the peculiar facts and circumstances of the case, the above case is of no assistance to the defendant. 26. As regards the judgment in the case of Haryana Milk Foods Ltd. v. Chambel Dairy Products, 2002 (25) PTC 156 (Del) the said judgment is distinguishable on facts of the said case. It was held in the said case that bald allegations were made in paragraph 17 of the plaint without giving particulars. It was held that the plaintiffs had not alleged even a single transaction of sale of his product by the defendant within the territorial jurisdiction of the Court. The said decision is not applicable to the present case. The plaintiffs have given details in the plaint about the threatened activities of the defendant which have caused actual deception and confusion. 27. Moreover in the case of T. Arivandandam v. T.V. Satyapal (supra) the facts disclose clear abuse of the process. The said decision is not applicable to the present case. The plaintiffs have given details in the plaint about the threatened activities of the defendant which have caused actual deception and confusion. 27. Moreover in the case of T. Arivandandam v. T.V. Satyapal (supra) the facts disclose clear abuse of the process. After the order for eviction reached finality right upto the High Court and despite the fact that the High Court had granted over six months' time to the tenant to vacate the premises, the tenant's son, after that period was over, filed a new suit alleging that the said decree was obtained by fraud and collusion and sought injunction against the execution of the decree which was fully contested by the father. The action on the part of the son to file second suit was clearly an abuse of the process and the Court rightly invoked the provision of Order 7 Rule 11 for the plaint only created an illusion of cause of action and the proceedings were required to be nipped in bud. However, the Court was careful enough to state: "The learned Munsif must remember that if on a meaning not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 C.P.C. Taking care to see that the ground mentioned therein is fulfilled." 28. In the facts and circumstances of the case, the judgments relied on by the defendant has no application to the facts of the case since on a meaningful and not formal reading of the plaint it is clearly not vexatious or meritless. On the contrary, a clear right to sue is evident from the pleadings and documents produced. LAST CONTENTION REGARDING CAUSE OF ACTION: 29. Regarding the last submission which has been noted in para 11.1B of this judgment is concerned, in this case when this Court has held that the Suit is filed on the basis of passing off action and when deception and confusion has arisen within city limits of Ahmedabad the contention that the advertisement appeared in Divya Bhaskar which is outside the city limits of Ahmedabad is thoroughly misconceived and liable to be rejected. As regards the second advertisement in Financial Express, admittedly it is published within city limits of Ahmedabad and circulated widely within city limits of Ahmedabad. The contention of the defendant on the basis of the judgment of the Hon'ble Supreme Court in the case of Dhodha House & Patel Field Marshal Industries (supra) that merely an advertisement does not give cause of action is also distinguishable on facts of the case as I have already discussed the said judgment. The said judgment only states that if the advertisement published in the trade mark journal that does not give jurisdiction whereas in the present case the advertisement has been published in Financial Express within city limits of Ahmedabad and as stated above deception and confusion has arisen within the city limits of Ahmedabad and therefore the said contention of the learned counsel for the defendant in para 11.1B is required to be rejected. The said contention of the learned counsel for the defendant is rejected as there is no merit in the said contention. DEFENDANT'S CONTENTION REGARDING LIMITATION, RIGHT TO SUE, AND THE DECISION OF S.C. MST. RUKHMABAI V. LALA LAXMINARAYAN'S CASE (RE: para 11.1): 30A. The argument of the learned counsel for the defendant is wholly misconceived because the said judgment of Mst. Rukhmabai V. Laxminarayan (supra) arose out of Article 120 of the Limitation Act, 1908 (old Act). Article 120 of the Old Act provides that suit for which no period of limitation is provided elsewhere in the Schedule the period of limitation is six years when the right to sue accrues. Under the new Limitation Act, 1963 the said provision is Article 113 of the Limitation Act which provides for that any suit for which no period of limitation is provided elsewhere in this Schedule, the period of limitation is three years when the right to sue accrues. Thus the language of Article 120 under Old Act and the language of Article 113 under the New Act is in pari materia. Therefore, the aforesaid decision which is in context of Limitation Act has to be considered in that context. 30B. It may be noted that "right to sue" means a right to seek relief, that is to obtain relief by means of legal process. There must be first an accrual of a right asserted in a suit, then its infringement. Therefore, the aforesaid decision which is in context of Limitation Act has to be considered in that context. 30B. It may be noted that "right to sue" means a right to seek relief, that is to obtain relief by means of legal process. There must be first an accrual of a right asserted in a suit, then its infringement. If these facts are proved, then a person gets a right to sue. The question as to when a right to sue accrues, depends upon the facts and circumstances of each case. The Privy Council in BOLO v. KOKLAN [ AIR 1930 PC 270 at page 272] had occasion to interpret the expression "right to sue", as contemplated by Article 120 (new Article 113) of the Limitation Act wherein it was held that there can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. 30C. The aforesaid judgment of the Privy Council has been considered by the Hon'ble Apex Court in the case of Mst. Rukhmabai v. Lala Laxminarayan (Supra) is followed in Gannon Dunkerley & Co. v. Union of India ( AIR 1970 SC 1433 ). 30D In this case the plaintiffs have filed Suit for passing of trade name where they are using the word "Parsvanath". Thus the plaintiffs have asserted their rights and information that the defendant is also carrying on business in the name of "Parsvanath" and likely to enter within city limits of Ahmedabad and deception and confusion has arisen within the city limit of Ahmedabad. The plaintiffs have right to sue as there was an accrual of right of passing off action asserted in the plaint and its infringement as well as a clear and unequivocal threat to infringe that right by the defendant, as stated, against whom suit is instituted. Therefore, in view of this unequivocal position, the aforesaid decisions will not help the case of the defendant. In view of the above, the whole contention of the defendant is misconceived in law and liable to be rejected and the contention is rejected accordingly. The decision of Mst. Rukhmabai (supra) is of no assistance to the defendant. 31. Therefore, in view of this unequivocal position, the aforesaid decisions will not help the case of the defendant. In view of the above, the whole contention of the defendant is misconceived in law and liable to be rejected and the contention is rejected accordingly. The decision of Mst. Rukhmabai (supra) is of no assistance to the defendant. 31. In view of the aforesaid discussion which I have made, the principle laid down in the judgments referred to by the learned counsel for the petitioner and which are relied on by the learned counsel for the defendant cannot be disputed. However, the question is whether the said judgments are applicable to the facts of the case. In view of the discussion which I have made, all the judgments are distinguishable on facts of the case and therefore all the decisions do not help the case of the defendant in establishing the fact that the present suit filed by the plaintiffs is not maintainable at law and defendant's application under Order 7 Rules 10 and 11 at Exh. 26 is rejected at law. CONCLUDING REMARKS: 32. Width of the principle of passing of: "The tort (of passing off) is no longer anchored, as in its early nineteenth century formulation, to the name or trade mark of a product or business. It is wide enough to encompass other descriptive material, such as slogans or visual images, which radio, television or newspaper advertising campaign can lead the market to associate with a plaintiffs' product, provided always that such descriptive material has become part of the goodwill of the product. [See:Law of trade Marks and Passing Off by P. Narayanan, 6th Edition, Chapter 25, Passing Off Action, para 25.06, page 691] 32A "It is an era of explosion of knowledge, information and technology. It is also an era of globalisation. The world prosperity depends on free trade between the countries, in goods, capital, persons, information, inventions and technologies. With the emergence of a new concept of "intellectual capitalism", capital is no longer in banks but is in minds. The return on intellectual capital is considerable and not measurable by any standard. It manifests itself as tangible asset in the form of inventions, technologies, designs, books, etc. With the emergence of a new concept of "intellectual capitalism", capital is no longer in banks but is in minds. The return on intellectual capital is considerable and not measurable by any standard. It manifests itself as tangible asset in the form of inventions, technologies, designs, books, etc. The intellectual capital requires protection from piracy and imitation." [Re: Law relating to Copyright Patent & Trade Mark and GATT by D.P. Mittal page No. I-5] 32B Trade Name - "A trade name is generally understood to mean the name or designation identifying and distinguishing an enterprise. Mark is defined to include a "name" and name would thus include trade name or trading style. A trade name could very well be used to distinguish the goods or service of an enterprise. There are several enterprises using their distinct trade name or business name as house marks in relation to their goods or services........" "A manufacturer or trader normally desires to use as a mark something associated with his name. The name or business name identifying his business activity is a natural mark for him to use to identify his good" [Re: Law of Trade Marks & Geographical Indications by K.C. Kailasam/Ramu Vedaraman, 2003 Edition, page 93] 32C In the Chapter International Protection of Intellectual Property Rights Treaties for Protection of Intellectual Property Rights in para 28.1 [of the book Law Relating to Copy Right Patent & Trade Mark and GATT by D.P. Mittal page 615] it was stated that for the protection of the Intellectual Property Rights (IPRs), there are agreements and treaties at International level. These treaties relate to rights such as patents, trade marks, trade secret, copyright, industrial designs, integrated circuits, geographical indications. In that the important convention at Paris for the protection of Industrial Property and the Patent Co-operation Treaty and it is stated, in para 28.5.4 and 28.5.5. of the book by D.P. Mittal, page 619, thus: "28.5.4 As to Trade Names: Protection must be given to trade names in each contracting State without the obligation of filing or registration. 28.5.5 As to Indications of Source: Measures must be taken by each contracting State against direct or indirect use of a false indication of the source of the goods or the identity of the producer, manufacturer or trader." 33. 28.5.5 As to Indications of Source: Measures must be taken by each contracting State against direct or indirect use of a false indication of the source of the goods or the identity of the producer, manufacturer or trader." 33. Before parting with the judgment, this Court must make it clear that this Court has referred to and relied on only two advertisements produced by the plaintiffs along with the plaint. This Court has not referred to any other material produced by the plaintiffs in the rejoinder in this behalf. 34. It is no doubt true that the defendant has filed application having title as application under Order 7 Rules 10 and 11 read with Section 151 of the Civil Procedure Code but the contents of the body of the application refer to only Order 7 Rule 10 of the Civil Procedure Code. In fact, the learned trial Judge has held that the application is under Order 7 Rule 10 of the Civil Procedure Code. However, the learned counsel for the defendant has stated that this Court should consider this application both under Order 7 Rule 10 and Rule 11 of the Civil Procedure Code and I have considered both the provisions under Order 7 Rule 10 and Rule 11 of the Civil Procedure Code. 35. In view of the above, this Court passes the following final order: (a) The plaintiffs have made necessary averments in plaint and plaintiffs have satisfied that the plaint fulfills the ingredients of Order 7 Rule 1 of the Code of Civil Procedure. The plaintiffs have been able to show and prove how the cause of action has been arisen and how the City Civil Court has jurisdiction to try and entertain the Suit. The plaintiffs have also made necessary averments for claiming reliefs in the plaint. (b) In view of the provisions of the Code of Civil Procedure, particularly Sections 15 to 20 read with judgment of the Hon'ble Supreme Court in the case of A.B.C. Laxminart Pvt. Ltd. (supra) the plaintiffs have been able to prove that right to sue has arisen within city limits of Ahmedabad. (c) The plaintiffs' Suit for passing off of trade name and trading style against defendant as quia timet action is maintainable at law. (c) The plaintiffs' Suit for passing off of trade name and trading style against defendant as quia timet action is maintainable at law. (d) In view of several decisions cited by the learned counsel for the plaintiffs, this Court has considered only averment made by the plaintiffs in plaint and two advertisements produced by the plaintiffs along with the plaint [Exh. 4/21, 4/22] (pages 84 & 86) regarding maintaining action of passing off. (e) In view of the fact that the defendant has published advertisements one in Divya Bhaskar and another in Financial Times which are widely circulated in city of Ahmedabad and plaintiffs have also been able to prove and deception and confusion has arisen within city limits of Ahmedabad, the plaintiffs have been able to prove that cause of action has arisen within city limit of Ahmedabad. (f) The application made by defendant under Order 7 Rule 10 at Exh. 26 is rejected at law. (g) The application filed at Exh. 26 by defendant under Order 7 Rule 11 is also rejected in spite of several decisions by the learned counsel for the defendant as all the decisions cited by the learned counsel for the defendant are distinguishable in the facts and circumstances of the case which I have already discussed above. 36. Thus, present writ petition under Article 227 of the Constitution of India is hereby rejected. The impugned order dated 22.12.2006 passed by the City Civil Court No. 9, Ahmedabad below application Exh.26 in Regular Civil Suit No. 785 of 2006 is hereby confirmed. Interim relief, if any, stands vacated. There shall be no order as to costs. 37. Before parting with the judgment, this Court is extremely grateful to the learned sr. counsel Mr. S.B. Vakil with Mr. R.R. Shah, learned advocate for the petitioner and learned sr. counsel Mr. Mihir Thakore with learned advocate Mr. Y.J. Trivedi and Mr. Hemal P. Shah for rendering their able assistance in adjudicating the matter.