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2025 DIGILAW 1598 (RAJ)

Dilesh Raj Borana v. Udhog Mandir, Bichwal

2025-10-06

KULDEEP MATHUR

body2025
ORDER : 1. The present writ petition under Article 227 of the Constitution of India has been filed against the order dated 23.07.2021 passed by the Court of learned District Judge, Bikaner in Civil Original Suit No.16/2021, whereby the application for return/rejection of the plaint under Order VII Rule X, Order VII Rule XI read with Section 151 CIVIL PROCEDURE CODE (hereinafter referred to as ‘CPC’) filed by the present petitioner – defendant/counter claimant has been rejected in respect of trademark ‘NATURAL GOLD’. 2. Learned counsel for the petitioner – defendant submitted that the respondent – plaintiff filed a suit for permanent injunction along with an application for temporary injunction alleging infringement of trademark and copyright in respect of edible oil registered in the name of ‘NATURAL’ under the Trademarks Act, 1999. 3. Learned counsel for the petitioner submitted that in the plaint filed by the respondent – plaintiff it was averred that the petitioner - firm’s trademark ‘NATURAL’ has been registered under the Trademarks Act, 1999 and therefore, the petitioner firm has complete authority to use the aforesaid name. The petitioner firm, on 30.07.2020 from its distributors and few consumers came to know that edible oil in the name of ‘NATURAL GOLD’ is also available in the market. The tins (container) of the edible oil bears the name and address of the petitioner-defendant. The respondent – plaintiff thus by way of filing a suit before the learned District Court prayed that the petitioner – defendant may be prevented from using and selling its product under the name of ‘NATURAL GOLD’ as the same is infringing the plaintiff’s rights to use its registered trademark ‘NATURAL’. 4. Learned counsel further submitted that the petitioner – defendant filed an application dated 18.02.2021 before the learned District Court under Order VII Rule X, Order VII Rule XI read with Section 151 CPC challenging the jurisdiction of the Court to entertain the suit preferred by the respondent – plaintiff regarding infringement of trademark. In the application filed by the petitioner – defendant, it was stated that the plaint filed by the respondent – plaintiff does not disclose that a cause of action has accrued in its favor within the territorial jurisdiction of the Court hearing the matter i.e the Court of learned District Judge, Bikaner. In the application filed by the petitioner – defendant, it was stated that the plaint filed by the respondent – plaintiff does not disclose that a cause of action has accrued in its favor within the territorial jurisdiction of the Court hearing the matter i.e the Court of learned District Judge, Bikaner. It was further stated that neither the petitioner – defendant resides nor carries on any business of selling oil with trademark ‘NATURAL’ by himself or through any wholesaler, retailer or on commercial basis within the territorial jurisdiction of the Court of learned District Court, Bikaner. It was thus, prayed that the plaint filed by the respondent – plaintiff may be returned or in alternative the same may be rejected for want of jurisdiction. 5. The Court of learned District Court, Bikaner after hearing the parties on the application under Order VII Rule X read with Section 151 CPC filed by the petitioner – defendant has rejected the same on the ground that the respondent – plaintiff in the plaint has disclosed its registered address to M/s Udyog Mandir F-148-149 Bichwal Industrial Area, Bikaner through partner Shri Vijay Kumar Nolakha which indicates that the petitioner firm and its partners reside and carry on business within the jurisdiction of the concerned Court of learned District Court, Bikaner. 6. Further, the plaint filed on behalf of the respondent – plaintiff does not indicate that it is residing or conducting any business activities through its branches, firm, or distributors in Jodhpur. The plaint also does not disclose that the respondent – plaintiff came to know about the infringement of its registered trademark at Jodhpur, which is essential for returning the plaint under Order VII Rule X of CPC on the ground that the court lacks jurisdiction to try the suit. 7. Learned counsel for the petitioner vehemently contended that the respondent – plaintiff, in the plaint filed by it before the Court of learned District Court, Bikaner specifically averred that it is doing business at pan India level and the petitioner – defendant resides in Jodhpur. The respondent – plaintiff also failed to disclose the accrual of cause of action within territorial jurisdiction of the Court at Bikaner. The respondent – plaintiff also failed to disclose the accrual of cause of action within territorial jurisdiction of the Court at Bikaner. He contended that in the impugned order the District Court, Bikaner has failed to take in to consideration that Section 134 (2) of the Trademarks Act, 1999 and Section 62 (2) of the Copyright Act, 1957 only provide for forum convience and do not dispense with the requirment of cause of action as mandated under Section 20 of CPC. Thus, the suit filed on behalf of the respondent – plaintiff ought not to have be entertained by the District Judge, Bikaner. 8. In support of his arguments, learned counsel for the petitioner – defendant has placed reliance on following Judgments:- • Indian Performing Rights Society Vs. Sanjay Dalia , (2015) 10 SCC 161 • Patel Roadways Ltd. Vs. Prasad Trading Company , (1991) 4 SCC 270 • Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust , 2012 (8) SCC 706 • Dhodha House Vs. S.K. Maingi , (2006) 9 SCC 41 • A.B.C. Laminart Pvt. Ltd. Vs. A.P. Agencies , (1989) 2 SCC 163 9. Per contra, learned counsel for the respondent – plaintiff while supporting the impugned order passed by the learned District Judge, Bikaner, submitted that the Court dealing with the application under Order VII Rule X read with Section 151 CPC is only required to undertake a simple exercise of seeing whether the grounds/averments made in the plaint discloses a cause of action or not so long the plaint discloses some cause of action and not the complete cause of action, it cannot be dismissed or returned on mere askance of the respondent – plaintiff. He further submitted that in the present case, the Court of learned District Court, Bikaner has passed a well reasoned order recording its satisfaction with regard to cause of action available to the respondent – plaintiff for filing suit seeking injunction for infringement of trademark and copyright in respect of the edible oil ‘NATURAL’ used by the petitioner – defendant. Lastly, it was urged that the respondent – plaintiff’s ordinary resides/principal place of business of the plantiff is Bikaner and cause of action has also arisen at Bikaner, therefore the respondent – plaintiff was well within its rights to institute a suit at Court of learned District Court, Bikaner. Lastly, it was urged that the respondent – plaintiff’s ordinary resides/principal place of business of the plantiff is Bikaner and cause of action has also arisen at Bikaner, therefore the respondent – plaintiff was well within its rights to institute a suit at Court of learned District Court, Bikaner. On these grounds, learned counsel for the respondent – plaintiff implored the Court to dismiss the instant writ petition. 10. Heard. 11. Section 20 of CPC is reproduced below for ready reference:- “20. Other suits to be instituted where defendants reside 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- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; (c) the cause of action, wholly or in part, arises. [* * * *] [Explanation] [Substituted by the Code of Civil Procedure (Amendment) Act, 1976, Section 7, for " Explanation II" (w.e.f. 1.2.1977).].-A corporation shall be deemed to carry on business at its sole or principal office in [India] [Substituted by Act 2 of 1951, Section 3, for " the States" .] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.” 12. Section 134 of the Trademarks Act, 1999 is reproduced below for ready reference:- “134. Suit for infringement, etc., to be instituted before District Court.— (1) No suit— (a) for the infringement of a registered trade mark; (b) relating to any right in a registered trade mark; (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 plaintiff’s 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 (5 of 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. Explanation.— For the purposes of sub-section (2), “person” includes the registered proprietor and the registered user.” 13. In the present case, the respondent – plaintiff is having a registered office at Bikaner through which it is conducting business of edible oil. The plaint also discloses that it was only on 30.07.2020 when the respondent – plaintiff through its suppliers and consumers came to know that edible oil is being produced and sold by the petitioner – defendant in the name of ‘NATURAL GOLD’ which is claimed to be identical or deceptively similar to the respondent’s trademark product which is also available in the market. 14. True it is that as per Section 20 of CPC a suit for permanent injunction can be filed where the defendant resides or cause of action arises, however in exception to the aforesaid general rule, Section 134 of the Trademarks Act, 1999 provides a special rule of jurisdiction for instituting suits relating to trademark infringement. In that view of the matter a perusal of (2) of the Trademarks Act, 1999 leaves no room of doubt that a suit for infringement of the trademark can be instituted in territorial jurisdiction of a District Court where the plaintiff’s principal place of business is located, he resides or carries on business. In other words, a registered proprietor or a registered user of the trademark may institute an infringement suit where the plaintiff resides or carries on business even if the cause of action does not arise at that place. In other words, a registered proprietor or a registered user of the trademark may institute an infringement suit where the plaintiff resides or carries on business even if the cause of action does not arise at that place. The Hon’ble Supreme Court of India while Interpreting of the Trademarks Act, 1999 in the case of Indian Performing Rights Society (Supra) , observed that there is no doubt about it that the words used in Section 62 of the Copyright Act and of the Trademarks Act ‘notwithstanding anything contained in CPC or any other law for the time being in force’ emphasis is that the requirement of Section 20 of CPC would not have to be complied with by the plaintiff if he resides or carries on business in the local limits of the Court where he has filed the suit. 15. In view of the admitted fact that the respondent – plaintiff is residing and carrying business of edible oil by the name of ‘NATURAL’ in Bikaner so also keeping in mind the observations of the Hon’ble Supreme Court in the precedent law, this Court finds no illegality or jurisdictional error in the impugned order dated 23.02.2021 passed by the Court of learned District Court, Bikaner in rejecting the application filed under Order VII Rule XI read with Section 151 CPC and under Order VII Rule X CPC. 16. Consequently, the present writ petition is dismissed being devoid of any merit. No order as to costs. 17. All pending application(s), if any, also stand dismissed.