Aadarsh Pharmaceutical Works v. Aadesh Pharmaceutical Works
2017-08-24
ANJULI PALO
body2017
DigiLaw.ai
ORDER 1. The petitioner/defendant has filed this review petition under Order 47 rule 1 r/w section 114 and section 151 of Code of Civil Procedure being aggrieved by the order dated 1.12.2016 passed by this Court in Civil Revision No.89/2016 whereby the revision filed by the petitioner was dismissed on the ground that there is an issue for consideration as to whether the petitioner/defendant has a right or not to use the registered trademark which is similar to the trademark of the respondent/plaintiff ? 2. Against the aforesaid order, the learned counsel for the petitioner/defendant has contended that this Court committed error while passing the impugned order and failed to see that mere filing of application for renewal or for fresh drug license does not entitle the respondent/plaintiff to manufacture, market or sale his drug product “AP Special Balm” as held by the apex Court in the case of State of Kerala v. Orison J.Francis and another, [ AIR 2009 SC 500 ]. 3. The petitioner/defendant has filed an application for taking document to show that the petitioner is not manufacturing and selling this product under a deceptively similar trademark of the plaintiff/respondent which is a material document to resolve the controversy in the case. 4. Heard learned counsel for the parties at length. Perused the record. Learned counsel of the respondent vehemently opposed the prayer of the petitioner. 5. The question for consideration is that whether the impugned order can be reviewed under Order 47 rule 1 with section 114 r/w section 151 of CPC. 6. This Court finds that drug licence of the respondent had already expired on 21.6.2012. Thereafter, he applied for renewal on 13.8.2012 and the said drug application for renewal of licence was rejected by the competent authority (Drug Controller, Bhopal) on 23.4.2015. It was contended that against which the respondent/plaintiff preferred an appeal before the State Government which was also rejected by order dated 7.9.2015 with liberty to the respondent/plaintiff that he may apply for fresh licence. Thereafter, the respondent applied for fresh licence on 3.10.2015. As per the learned counsel for both the parties, the subsequent application filed by the respondent for renewal was rejected on 23.12.2015. 7. It is true that no one has any legal right to manufacture or sale the drug product without any licence.
Thereafter, the respondent applied for fresh licence on 3.10.2015. As per the learned counsel for both the parties, the subsequent application filed by the respondent for renewal was rejected on 23.12.2015. 7. It is true that no one has any legal right to manufacture or sale the drug product without any licence. This Court finds that the respondents have not suppressed that the subsequent application filed by the respondent for renewal of the licence was already rejected on 23.12.2015, prior to passing of the impugned order. Hence, it can be said that the finding of this Court that the second application for renewal by the respondent was pending for consideration, is erroneous to the record. 8. In such situation, the only remedy available to the parties aggrieved is to challenge the order in the appellate Court. The said power cannot be exercised as it is not permitted for an erroneous decision to “be reheard and corrected”. 9. In case of Satya Pal v. Bal Niketan Nyas, Bhopal and others [2015(3) MPLJ 83], a Division Bench of this Court has held as under : “It is well settled in law that in the guise of review, rehearing is not permissible. In order to seek review it has to be demonstrated that order suffers from error apparent on the face of record. The Court while deciding the application for review cannot sit in appeal over the judgment or decree passed by it. [Also see S.Bagirathi Ammal v. Palani Roman Catholic Mission [ (2009)10 SCC 464 ], State of W.B and others v. Kamal Sengupta and another [ (2008)8 SCC 612 ], and Kamlesh Verma v. Mayawati [ (2013) 8 SCC 320 ].” 10. A review application could not be allowed as an appeal. The scope of review is very limited. The review means an action looking with a view to make correct or improvement in judgment where the Court has not dealt with an issue effectively power of review cannot be exercised as an alternative mode of appeal. The Court has not inherent power to review under section 151 of Code of Civil Procedure. 11. With regard to I.A. No. 7189/2017, Order 47 rule 1 of CPC of requires a high and standard diligence therefore, fresh document cannot be admitted in review. Hence I.A.No. 7189/2017 stands dismissed. 12.
The Court has not inherent power to review under section 151 of Code of Civil Procedure. 11. With regard to I.A. No. 7189/2017, Order 47 rule 1 of CPC of requires a high and standard diligence therefore, fresh document cannot be admitted in review. Hence I.A.No. 7189/2017 stands dismissed. 12. It is well settled that a mere erroneous decision per se does not permit the Court to undertake review. In case of Sasi (dead) through LRs v. Aravindakshan Nair and others, [ (2017) 4 SCC 692 ], and in Parsion Devi v. Sumitri Devi, [(1997) 8 SCC 7] , the Hon'ble Supreme Court has held as under : “In exercise of the jurisdiction under Order 47 rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it is must be remembered has a limited purpose and cannot be allowed to be an “appeal in disguise”. 13. This Court finds no ground for recall of the impugned order. 14. Accordingly, the appeal stands dismissed.