Hindustan Pencils Ltd v. Raju Bhai Bhatt & Others

A.K. Sikri, J.

1. Defendants have moved this application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint/dismissal of the suit on the ground that it is barred under law as there is no cause of action to file this suit. It is stated that the plaintiff had earlier filed another suit being CS (OS) No. 664/1991 against the same defendant before this Court alleging infringement of plaintiffs trademark Natraj. The said suit was, thus, for the same cause of action between the same parties. The injunction application in the said suit was dismissed and ex parte injunction order vacated vide a reasoned order dated 10th July, 1991 passed by J.K. Mehra, J. No appeal was preferred against the said order. Instead, review application being RA No. 14/1991 was preferred which was also not pressed. On 20th September, 1994 when the aforesaid earlier suit was fixed for hearing, it was brought to the notice of the Court that Sh. Vasudev, sole proprietor of the defendant firm, had died. However, legal representatives of the deceased defendant were not brought on record as a result of which CS (OS) No. 664/1991 was abated vide order dated 20th February, 1991 passed by this Court, which reads as under:

It is suggested from the order dated 5.9.95 that the proprietor of the defendant firm was reported to have died on 26.6.94 and therefore no effective steps have been taken. The order dated 12.12.95 also suggests that the proprietor of the defendant firm reported to have died on 26.6.94. Therefore, no effective proceeding has taken place or any step taken by the plaintiff. More than 160 days have lapsed since the death of the proprietor of the defendant firm and also 120 days have lapsed after the knowledge of the death of the proprietor of defendant firm to the plaintiff as suggested from the order dated 5.9.94. So far, no steps have been taken by the plaintiff for setting aside the abatement of the suit and bringing on record the legal representatives of the deceased proprietor of the defendant No. 1. In the circumstances, the suit is disposed of as having abated.

2. On the basis of the aforesaid facts it is submitted that the present suit is liable to be dismissed inasmuch as: (a) when on the death of the sole proprietor of the defendant cause of action still survived, legal representatives of the deceased could be brought on record and suit proceeded. However, this was not done and, therefore, the plaintiff was guilty of negligence and laches because of which suit was dismissed as abated and the plaintiff is to bear the consequence thereof; (b) Section 11 of the Code of Civil Procedure would apply which provides that no Court shall try any such issues in which the matter directly and substantially was in issue in the former suit between the same parties or between the parties under whom they or any of them claim, were litigating; (c) Section 12 of the CPC stipulates that where the plaintiff is precluded by rule for instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action; and (d) Order 22 Rule 9(i), CPC provides that where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action.

3. Learned Counsel for the plaintiff accepted notice of this application and stated that no reply is required to be filed. Both the Counsel were accordingly heard.

4. While considering the application under Order 7 Rule 11, CPC, it is trite that the averments in the plaint alone are to be considered to see whether there is a cause of action (see Indian Herbs Research and Supply Co. Ltd. and Anr. v. Lalji Mal and Anr., 95 (2002) DLT 723 [LQ/DelHC/2001/1751] =2002 (24) PTC 318 (Del.) [LQ/DelHC/2001/1751] . Paras 10, 11 and 21 of the plaint, which deal with cause of action, are relevant. A conjoint reading of these three paras would clearly reveal that the plaintiff thought that on the death of Mr. Vasudev, the defendant No. 3 firm, which was a sole proprietorship concern had closed his business. However, after seeing the advertisement of defendant No. 3 in November, 1996, the plaintiff came to know that it is now being run as a partnership firm with defendant Nos. 1 and 2 as its partners. Case pleaded by the plaintiff is that every infringing act gives fresh cause of action. On that basis and treating the act of the defendants, as revealed in November, 1996 as fresh cause of action, present suit is filed. This is so held by the Supreme Court in M/s. Bengal Waterproof Ltd. v. M/s. Bombay Waterproof Manufacturing Co. & Anr., AIR 1997 SC 1398 [LQ/SC/1996/1949] . The present application seeking dismissal of this suit in view of abatement of earlier suit, therefore, is misconceived. The order of this Court in the earlier suit dismissing the injunction application would be of no consequence and provisions of Section 11 would not be attracted as the suit was not finally decided. Order passed in an injunction application is not final adjudication and is only a tentative expression on the basis of prima facie view. Whatever help of that order the defendants can seek when interim application is argued in the present case is a different matter. But certainly dismissal of the plaint cannot be pressed on this account. Section 11, therefore, shall have no application. Provisions of Section 12, consequently shall also not apply. Abatement of the earlier suit shall also not be of any avail to the defendants inasmuch as the said suit which abated was against a sole proprietorship firm of Mr. Vasudev. The sole proprietorship firm has no legal entity in the eyes of law and is to be identified with the sole proprietor. Therefore, essentially the suit was against Mr. Vasudev. The present suit is filed against a partnership firm which is not only with different constitution, albeit with same name, but with two new different persons as partners. Further as pointed out above, the alleged infringement has given rise to fresh cause of action on the basis of which present suit is filed.

5. I, therefore, do not find any merit in this application, which is accordingly dismissed.