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2017 DIGILAW 2676 (DEL)

N. G. DEV v. ANAND SONS

2017-08-02

VALMIKI J.MEHTA

body2017
JUDGMENT : VALMIKI J. MEHTA, J. 1. Plaintiff in the suit filed for passing off, infringement of copyright, injunction etc impugns the order of the Trial Court dated 07.12.2007 whereby the trial court has dismissed two applications which were filed by the appellant/plaintiff. First application filed by the appellant/plaintiff was under Order XXII Rule 10 CPC for substitution of the existing appellant/plaintiff Dr. N.G. Dev by a company “M/s. Dev Pharmacy Private Limited”. Second application was filed under Order VI Rule 17 CPC for adding paragraphs in the plaint to show that the trademark of the present appellant/plaintiff has now been registered with the Registrar of Trademarks and also that the new company, which is sought to be substituted as a plaintiff, has also obtained registration of the trademark. The trademark in question is “PAURUSH JIWAN”. The court below has dismissed the applications, inter alia, by observing that a person, being a legal entity/company, can be added as a plaintiff only if the said new plaintiff/legal entity/company agrees to be added as a plaintiff and that there is no document on record, and no pleading on record by means of the subject applications, that, there exists consent of M/s. Dev Pharmacy Private Limited to be substituted as a plaintiff in place of the present appellant/plaintiff/Dr. N.G. Dev or there exists authorization to the present appellant/plaintiff to add/substitute M/s. Dev Pharmacy Private Limited. The trial court has dismissed the second application filed under Order VI Rule 17 CPC by observing that once the application under Order XXII Rule 10 CPC is dismissed, hence the application under Order VI Rule 17 CPC will also stand dismissed. 2. As regards the observation of the trial court that a person, being a legal entity/company, cannot be added as a plaintiff in the suit, without its consent, there cannot be any quibble. 2. As regards the observation of the trial court that a person, being a legal entity/company, cannot be added as a plaintiff in the suit, without its consent, there cannot be any quibble. Surely, if M/s. Dev Pharmacy Private Limited wants to be substituted as a plaintiff in the suit in place of the present appellant/plaintiff, then along with the application either the Board of Directors’ Resolution of M/s. Dev Pharmacy Private Limited ought to have been filed giving consent to M/s. Dev Pharmacy Private Limited being substituted/added as a plaintiff in the suit or the application filed under Order XXII Rule 10 CPC had to be supported by a power of attorney executed by M/s. Dev Pharmacy Private Limited in favour of the present appellant/plaintiff that the present appellant/plaintiff is duly authorized to act on behalf of the company M/s. Dev Pharmacy Private Limited for such company to be added/substituted as a plaintiff in the suit. Admittedly, however, since this is not done, the impugned order has to stand, subject, of course, to the liberty which is given to the appellant/plaintiff in terms of the present order. 3. So far as the application under Order VI Rule 17 CPC filed by the appellant/plaintiff to add the factum of registration of appellant/plaintiff and the company of the trademark “PAURUSH JIWAN” with the Registrar of Trademarks is concerned, since the admitted case of the appellant/plaintiff is that an assignment has taken place of the appellant/plaintiff of his rights in the trademark “PAURUSH JIWAN” in favour of M/s. Dev Pharmacy Private Limited, in terms of an Assignment Deed dated 24.04.2006 any registration which is obtained by the appellant/plaintiff if the same is a subject matter of the Deed of Assignment dated 24.04.2006, then, that factual aspect can be added in the suit, subject to the entitlement of the existing plaintiff or the new plaintiff for joinder of causes of action inasmuch as the suit at present is not a suit for infringement of trademark and the suit is only for a suit for passing off on the basis of an unregistered trademark. Also, any addition of facts qua a new plaintiff, and which are not the subject matter of Deed of Assignment dated 24.04.2006, once again, will become an issue of joinder of causes of action subject to entitlement of joinder of causes of action in accordance with law, especially Order I Rule 3 and Order II Rule 3 CPC. 4.(i) In view of the above, though no fault can be found with the impugned judgment dismissing the application of the appellant/plaintiff under Order XXII Rule 10 CPC, however, liberty is given to the appellant/plaintiff and/or to M/s. Dev Pharmacy Private Limited to be added or substituted as a plaintiff in the suit in terms of Order XXII Rule 10 CPC and the ratio of the judgment of the Supreme Court in the case of Dhurandhar Prasad Singh vs. Jai Prakash University and Others, AIR 2001 SC 2552 or any other judgment or law which is applicable subject to the condition that the application now allowed to be filed under Order XXII Rule 10 CPC will be filed by its being accompanied with due authorization by M/s. Dev Pharmacy Private Limited to file such an application. An application under Order VI Rule 17 CPC can only be filed in terms of and subject to the observations made in para 3 above. Also, the appellant/applicant/M/s. Dev Pharmacy Private Limited can file the application under Order VI Rule 17 CPC to add the factum of subsequent events of obtaining of registration of the trademark “PAURUSH JIWAN” in favour of M/s. Dev Pharmacy Private Limited and/or the present appellant/plaintiff if that registration is subject matter of assignment in terms of the Assignment Deed dated 24.04.2006 executed by the present appellant/plaintiff in favour of M/s. Dev Pharmacy Private Limited. (ii) Thus while the impugned order dated 07.12.2007 is sustained and liberty granted to the appellant/plaintiff to file applications under Order XXII Rule 10 CPC and Order VI Rule 17 CPC to include all the aspects which are subject of the applications which are already filed under Order XXII Rule 10 CPC and Order VI Rule 17 CPC and subject of course to the necessary authorization being filed by M/s. Dev Pharmacy Private Limited for being added/substituted as a party to the suit and due authorization in favour of the applicant who files the application for adding/substituting M/s. Dev Pharmacy Private Limited as a plaintiff in the suit. 5. The appeal is accordingly disposed of with the aforesaid liberty. Trial court record be sent back. In case there is no date fixed in the suit in the trial court, then the appellant/plaintiff is at liberty to file an appropriate application before the concerned District and Sessions Judge for marking of the suit to a competent court for disposal in accordance with law. Applications when filed under Order XXII Rule 10 CPC and under Order VI Rule 17 CPC will be disposed of by the trial court in accordance with law. The trial court before proceeding with the suit, will issue fresh notices to the defendants in the suit.