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Rajasthan High Court · body

2023 DIGILAW 976 (RAJ)

Houzz Inc v. Mahendra Singh Rathore

2023-05-01

SUDESH BANSAL

body2023
ORDER 1. By way of instant revision petition, filed under Section 115 of the Code of Civil Procedure, challenge has been made to an order dated 03.06.2019 passed by the Court of Additional District & Sessions Judge No.15, Jaipur Metropolitan, Jaipur, dismissing the application under Order 7 Rule 11 CPC filed by petitioner. 2. The relevant facts as culled out from the record are that respondent No.1-plaintiff filed a civil suit for declaration and permanent injunction on 16.09.2017 and pleaded inter alia that defendant No.2-GoDaddy.Com LLC (respondent No.2 herein) permitted the plaintiff to use domain name- inhouzfurniture.com in the year 2015 onwards subject to renewal within five years, but later on, defendant No.1 (petitioner herein), objected to use the domain name-inhouzfurniture.com by plaintiff and served a legal notice dated 02.12.2016. The legal noticed was replied by plaintiff. Thereafter, defendant No.1 (petitioner herein) initiated arbitration proceedings before the Arbitration and Mediation International Forum under the Uniform Domain Name dispute Resolution Policy (UDNRP), though, there was no arbitration agreement between the plaintiff and defendant No.1. However, in the arbitration proceedings, award dated 24.02.2017 came to be passed and in pursuance thereof, the defendant No.2 non registered the name of plaintiff to use the domain name-inhouzfurniture.com. In such circumstances, respondent No.1 instituted the civil suit. 3. After service of notices, petitioner/defendant No.1 submitted an application under Order 7 Rule 10 & 11 CPC raising objections that; (i) In view of passing the arbitration award dated 24.02.2017 under UDNRP, the Civil Court has no jurisdiction to entertain the present suit and at the most plaintiff may assail the arbitration award by way of appropriate proceedings. (ii) No cause of action has accrued within the territorial jurisdiction of Jaipur City, to entertain the present civil suit. 4. Learned trial court, while deciding the application has dealt with the point in respect of objection that the civil suit is barred under Order 7 Rule 11 CPC by virtue of passing the arbitration award dated 24.02.2017 and while dealing with the issue, learned trial court has adverted to Rule 4(k) and Rule 18 of the UDNRP, which reads as under:- '4(k) Availability of Court Proceedings. The Mandatory administrative proceeding requirement set forth in Paragraph 4 shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative Panel decides that your domain name registration should be cancelled or transferred, we will wait ten (10) business days (as observed in the Administrative Panel's decision before implementing that decision. We will then implement the decision unless we have received from you during s that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that you have commenced a lawsuit against the complainant in a Mutual Jurisdiction regarding your right to use your domain name. For purposes of this policy, a Mutual Jurisdiction is one defined as such in the Rules of Procedure (and in which both Parties are subject to court jurisdiction) If we receive such documentation within the ten (10) business day period we will not implement the Administrative panel's decision, and we will take no further action, untill we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that your lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing your lawsuit or ordering that you do not have right to continue to use your domain name." Rule 18 of UDNDR Policy Rules *18 Effect of Court Proceedings. (a) In the event of any legal proceedings initiated prior to or during an administravive proceeding in respect of a domain name dispute that is the subject of the complaint, the Panel, shall have the discretion to decide whether to suspend or terminate the administrative proceeding, or to proceed to a decision. (b) In the event that a Party initiates any legal proceedings during the pendency of an administrative proceeding in respect of a domain name dispute that is the subject of the complaint, it shall promptly notify the Panel and the Provider." 5. Learned trial court, having adverted to Rule 4(k) and Rule 18, has observed that UDNRP does not prohibit the proceedings of Civil Court, therefore, at the stage of deciding the application under Order 7 Rue 11 CPC, the suit may not be rejected as barred before the Civil Court. 6. Learned trial court, having adverted to Rule 4(k) and Rule 18, has observed that UDNRP does not prohibit the proceedings of Civil Court, therefore, at the stage of deciding the application under Order 7 Rue 11 CPC, the suit may not be rejected as barred before the Civil Court. 6. However, it appears that in respect of objection of non accrual of cause of action within the territory of Jaipur City, the trial court has not adverted to the issue and vide impugned order dated 03.06.2019, the application under Order 7 Rule 11 CPC has been dismissed. 7. Having heard learned counsel for both parties and from perusal of record, it is transpired that the petitioner moved a joint application under Order 7 Rule 10 & 11 CPC. As far as the point raised in respect of rejection of plaint under Order 7 Rule 11 CPC is concerned, the trial Court has considered the issue in the light of Rule 4(k) and Rule 18 of the UDNRP and has observed that the jurisdiction of the Civil Court to entertain the civil suit is not barred. This Court does not find any illegality or jurisdictional error in such findings. It is not in dispute that no arbitration agreement exists between the plaintiff and defendant No.1, however, defendant No.1 approached before the Arbitration and Mediation International Forum under UDNRP and the award dated 24.02.2017 was passed under that policy. The Rule 4(k) and Rule 18 of the UDNRP as extracted hereinabove, do not bar the proceedings of Civil Court. Therefore, as far as dismissal of application under Order 7 Rule 11 CPC of petitioner is concerned, this Court is not inclined to interfere with the impugned order. 8. However, it has transpired that the objection in respect of territorial jurisdiction has not been dealt with by the trial Court in the impugned order, though this objection was also raised by petitioner in the application. In this view, this Court is of opinion that the trial Court should have considered and decide the objection of territorial jurisdiction as well and on this point, the matter requires to be remanded to the trial Court to decide the objection in respect of accrual of cause of action within the territorial jurisdiction of Jaipur City. 9. In this view, this Court is of opinion that the trial Court should have considered and decide the objection of territorial jurisdiction as well and on this point, the matter requires to be remanded to the trial Court to decide the objection in respect of accrual of cause of action within the territorial jurisdiction of Jaipur City. 9. Therefore, as a result, without interfering in the impugned order dated 03.06.2019, the matter is remanded to the trial Court to consider and decide the issue of territorial jurisdiction of Jaipur City in accordance with law, as raised by the petitioner. 10. Record of the trial Court be sent back forthwith. 11. With such observations, the instant revision petition is disposed of. 12. Stay application and other pending application(s), if any, also stand dispose of.