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2014 DIGILAW 1068 (GUJ)

Jyoti Limited v. Raman Kumar-Proprietor

2014-10-07

S.G.SHAH

body2014
JUDGMENT : S.G. Shah, J. Admit. Learned advocate Mr. V. L. Thakkar waives service of notice of admission on behalf of respondent. 1.1 Heard learned advocate Mr. Sachin D. Vasavada and learned advocate Mr. J. D. Bansal with learned advocate Mr. V. L. Thakkar for the respondent. 2. The appellant - complainant has challenged the order dated 15.03.2014 by the learned 10th (Ad - hoc) Additional District Judge, Vadodara below exhibit 34 in Special Civil Suit No. 2 of 2011. By such impugned judgment, the trial Court has ordered to return the plaint under Order 7 Rule 10 of the Code of Civil Procedure to the plaintiff with direction to present it before appropriate Court within 15 days from the receipt of same from the Registry and also directed to receive the plaint from the Registry within 15 days from such order. With such direction the trial Court has ultimately stated that "The suit is accordingly stands disposed of." 3. Whereas if we peruse the application at exhibit 34 below which, such an order was passed, it becomes clear that it is an application by the defendant - respondent under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure and the prayer in the application is to dismiss the suit for want of territorial jurisdiction, when it is categorically stated in para 7 and 8 of such an application that Honourable Court has no territorial jurisdiction to adjudicate this suit and that there is not cause of action within local limits of the Honourable Court. If we peruse the entire application, it seems that though defendant/respondent is challenging the cause of action and thereby right to file a suit by the plaintiff, in prayer clause, it is stated that the trial Court has no question of territorial jurisdiction and cause of action has not arisen within local limits of the trial Court. Therefore, disposal of suit is mainly for want of territorial jurisdiction. However, in para 7 it is also contended that suit may be returned to the plaintiff to file before appropriate Court with alternative relief to dismiss the suit at this stage. 3.1 Thereby, improper pleadings has resulted into improper order by the trial Court wherein trial Court has also held that it has no territorial jurisdiction and, therefore, directed to return the plaint as referred herein above. 4. 3.1 Thereby, improper pleadings has resulted into improper order by the trial Court wherein trial Court has also held that it has no territorial jurisdiction and, therefore, directed to return the plaint as referred herein above. 4. Whereas learned advocate for the appellant has rightly pointed out that there is a difference between accruance of cause of action and territorial jurisdiction and that so far as territorial jurisdiction is concerned, considering the provision of Section 134 of the Trade Marks Act, the trial Court has got jurisdiction to entertain such suit. There is substance in the submissions by the learned advocate for the appellant considering the Section 134 of the Trade Marks Act which reads as under: "134. Suit for infringement, etc., to be instituted before District Court (1) No suit- (a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit. (2) For the purpose of clauses (a) and (b) of sub- section (1), a "District Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain." 4.1 In view of above facts and circumstances, respondent has submitted that considering the citations which are otherwise recorded by the trial Court in the impugned judgment when there is no cause of action accrued in favour of the plaintiff, the suit is not maintainable. However, it would be altogether a different issue that whether cause of action has arisen or not and whether there is territorial jurisdiction or not. However, it would be altogether a different issue that whether cause of action has arisen or not and whether there is territorial jurisdiction or not. In view of above facts and circumstances, it is clear that though defendant has tried to dispose of the suit for want of cause of action, it was in addition to the issue regarding territorial jurisdiction of the trial Court and therefore trial Court has instead of deciding the issue regarding accedence of cause of action decided the issue regarding its territorial jurisdiction and, therefore, also trial Court has committed legal error in as much as pursuant to Section 134 of the Trade Marks Act, the trial Court has got territorial jurisdiction, if cause of action is arisen in favour of the plaintiff. 4.2 In view of above facts and circumstances, impugned order is certainly bad in law and cannot sustain, because if at all defendant wants to challenge the cause of action and maintainability of the suit, then it is something different from the territorial jurisdiction of the trial Court, for which practically there is no decision by the trial Court. On the contrary, the trial Court has returned the plaint with direction to place it before appropriate Court. If at all conclusion is to the effect that plaintiff has no cause of action in his favour so as to initiate proceedings, the suit cannot be allowed to submit before another authority but needs to be dismissed for want of proper cause of action. 5. In view of above facts and circumstances, matter is required to be remanded back to the trial Court for deciding relevant issue afresh. However, it is made clear that while doing so, this Court has not entered into merits either on the issue of cause of action or territorial jurisdiction. 5.1 Therefore, it would be appropriate for both the parties to plead and prove their case on any such issue and trial Court shall decide such issue without merging them with each other, as it is done in the impugned order. 5.2 In view of above facts and circumstances, appeal is partly allowed. Impugned order is quashed and set aside. The matter is remanded back to the trial Court for deciding it afresh after providing ample opportunity to both the sides to submit their case. 5.2 In view of above facts and circumstances, appeal is partly allowed. Impugned order is quashed and set aside. The matter is remanded back to the trial Court for deciding it afresh after providing ample opportunity to both the sides to submit their case. It is again made clear that this Court has not entered into merits of the matter and trial Court shall decide it afresh purely in accordance with available record and applicable laws. 5.3 Appeal is allowed to aforesaid extent with no order as to costs. 6. In view of order passed in main appeal, Civil Application does not survive and the same is disposed of.