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Madhya Pradesh High Court

Flame Of The Forest Safari Lodge vs Blue Jay Entertainment And Developers ... on 10 May, 2022

Author: Anil Verma

Bench: Anil Verma

1                                  CIVIL REVISION No. 222 of 2022

       IN THE HIGH COURT OF MADHYA PRADESH
                           AT INDORE
                              BEFORE
                HON'BLE SHRI JUSTICE ANIL VERMA

                     ON THE 10th OF MAY, 2022

                   CIVIL REVISION No. 222 of 2022

    Between:-
    1.   FLAME OF THE FOREST SAFARI LODGE THROUGH
    PROPRIETOR MR. KARAN MODI R/O KUTHWAHI VILALGE
    POST RATA DIST MANDLA KANHA NATIONAL PARK (MADHYA
    PRADESH)
    2. KARAN MODI S/O SHIVKUMAR MODI KUTHWAHI VILLAGE,
    POST RATA, DISTRICT MANDLA, KANHA NATIONAL PARK,
    (MADHYA PRADESH)
                                                    .....PETITIONER
    (BY SHRI ANSHUMAN SINGH ADVOCATE WITH MS DARSHANA
    BAGHEL, ADVOCATE )

    AND

    BLUE JAY ENTERTAINMENT AND DEVELOPERS PVT. LTD.
    THROUGH    DIRECTOR   MANVIR   SINGH   BAIS  R/O
    KOLUGHATTA VILLAGE PUNJAURA (MADHYA PRADESH)
                                                .....RESPONDENTS
    (BY SHRI ADITYA GARG, ADVOCATE)
       This revision coming on this day for orders, the court passed
the following:
                              ORDER

With the consent of both the parties matter is heard finally at motion stage.

The petitioner has filed the present revision petition under section 115 of the Code of Civil Procedure, 1908 (in short CPC) being aggrieved by the impugned order dated 15.3.2022 passed by 1st Civil Judge Junior Division Bagli District Dewas in civil suit No. 5/2022 whereby an application filed by the petitioner under Order 7 Rule 11 CPC has been dismissed.

The brief facts of the case are that the plaintiff claims to be operating a resort in Bagli by the name ''Flame of the Forest''. Defendant no. 2/ Karan Modi is the proprietor of defendant no.1/ Flame of forest Safari Lodge located at Kutwahi village Post Rata Kanha National Park District Mandla. The plaintiff company after its incorporation in the year 2008 has been working with the brand name /trademark ''Flame of the Forest'' and acquired immense reputation and goodwill but defendants with malafide intention and to tarnish the reputation of plaintiff company have incorporated the same business with similar name. Therefore, the plaintiff has filed the civil suit against the defendants with a prayer to restrain them from using the trademark Flame of the Forest.

In the suit defendants have filed an application under Order 7 Rule 11 of CPC. After hearing both the parties the trial court has rejected the same by the impugned order. Therefore, this revision has been filed.

Learned counsel for the petitioner contended that the dispute between the parties for a claim of passing off on account of 3 CIVIL REVISION No. 222 of 2022 unregistered trademark of the plaintiff, is a commercial dispute within the definition of Section 2(c) (xvii) of Commercial Courts Act, 2015, therefore, as per provisions of Commercial Courts Act, the jurisdiction of the civil court is barred to try the aforesaid dispute. There is no cause of action arises within the jurisdiction of the Court of Civil Judge Junior Division Bagli. The Civil Judge Junior Division is not the District Court competent to entertain and decide the suit filed by plaintiff. The impugned order passed by the trial court is illegal and beyond the jurisdiction. Hence he prays that the impugned order passed by the trial court be set aside.

Per contra learned counsel for respondent has opposed the revision petition and supported the impugned order passed by the learned trial court.

Both the parties heard at length and perused the documents filed by them.

The first contention of learned counsel for the petitioner is that the dispute between both the parties regarding trade-mark is a commercial dispute, therefore, as per provisions of Commercial Courts Act, the jurisdiction of civil court to hear the present dispute is barred.

Section 6 of Commercial Courts Act provides as under:-

6. Jurisdiction of Commercial Court.- The Commercial Court shall have jurisdiction to try all suits and applications relating to a commercial dispute of a specified value arising out of the entire territory of the State over which it has been vested territorial jurisdiction.

Explanation- For the purposes of this section, a commercial dispute shall be considered to arise out of the entire territory of the State over which a commercial Court has been vested jurisdiction, if the suit or application relating to such commercial dispute has been instituted as per the provisions of Sections 16 to 20 of the Code of Civil Procedure, 1908 (5 of 1908).

Further Section 2(i) of Commercial Courts Act reads thus:-

(i) "Specified Value", in relation to a commercial dispute, shall mean the value of the subject matter in respect of a suit as determined in accordance with section 12 [which shall not be less than three lakh rupees] or such higher value, as may be notified by the Central Government.

On perusal of the plaint filed by plaintiff before the trial court, it is evident that plaintiff has valued his suit for the purpose of valuation, jurisdiction and declaration at Rs. 2 lakhs, the specified value of the present suit is less than Rs. 3 lakhs. Hence trial court has rightly held that this matter is not treated as a commercial dispute and only Commercial Court has the jurisdiction to entertain such dispute.

The second contention of learned counsel for the petitioner is that the present matter relates to claim for infringement of 5 CIVIL REVISION No. 222 of 2022 unregistered trade-mark of plaintiff, therefore, in terms of Section 134 of Trade-marks Act, 1999 the learned Civil Judge Junior Division Bagli being below in rank of District Judge, lacks the jurisdiction to entertain the said dispute.

The High court of Calcutta in the case of Reckitt Benckiser Healthcare India Ltd. Vs. Emami Limited reported in 2015 SCC Online Cal 121 has held as under:

There is no dispute that in view of the provisions contained in Section 134 of the said Act of 1999 if a plaintiff intends to file a suit alleging infringement of the registered trade mark of his product, no Court inferior to a District Judge can entertain the said suit. Therefore, we are satisfied that when the respondent no. 1 has filed the said suit, claiming infringement of its trade mark under Section 29(8)(a) of the said Act of 1999, the Court of the learned Civil Judge (Senior Division), Alipore lacks jurisdiction to entertain the said suit and consequently, all the said ex parte ad-interim orders of injunction and appointment of Receiver passed on November 21, 2014 and the impugned order dated December 19, 2014 are all without jurisdiction and void.

So far as the decision of the Supreme Court in the case Tayabbhai M. Bagasarwalla (supra) relied by the respondent is concerned we find that was a case where the Supreme Court was deciding the question as to whether a defendant can violate or refuse to obey an order passed by a court, by raising objection to the jurisdiction of the Court to pass the said order. In that case, the defendant raised an objection to the jurisdiction of the court, the court overruled the objection as to jurisdiction and made the interim injunction absolute and the appeal of the defendant against the interim orders were pending before the High 6 CIVIL REVISION No. 222 of 2022 Court; it took about six years for the High Court's decision that the Civil Court had no jurisdiction to entertain the suit. In those circumstances the Supreme Court held that any contention that by virtue of the said decision of the High Court, no one can be punished thereafter for disobedience of violation of the interim orders committed, prior to the said decision of the High Court would indeed be subversive of rule of law and would seriously erode the dignity and authority of the Courts. In the said case the Supreme Court found that the suit was not filed in wrong Court knowingly or with a view to snatch and interim order.

In the case of Sanjay Kumar @ Mallu Vs. Manoj Kumar Sahu reported in (2008) 71 ALR 122, the High court of Allahabad has held as under:-

5.A plain reading of the aforesaid section shows that the suit under this provision cannot be filed in any Court inferior to the 'District Court' having jurisdiction to try the suit. Sub-section (2) of the said section shows that the 'District Court' having jurisdiction shall be read as the Court defined in the Code of Civil Procedure, 1908. In the said Procedure Code, the word District Court has not been defined but the 'District' has been defined under Section 2(4) as under:

"district means the local limits of the jurisdiction of a principal civil court of original jurisdiction (hereinafter called as a "District Court") and includes the local limits of the ordinary original civil jurisdiction of a High Court".

6. In this definition the words "Principal civil court of original jurisdiction" have appeared which has been called as District Court. When this definition is read with the definition of "District Judge" given under Section (17) of 7 CIVIL REVISION No. 222 of 2022 the General Clauses Act, 1897, it becomes clear that the Court of District Judge only is the Court of Principal civil court of original jurisdiction. The definition of District Judge runs as under:

Section 3(17)"District Judge" shall mean the Judge of a principal civil court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction.

8. In the case of I.T.I. Ltd. Naint, Auahabad v. District Judge, Allahabad and Ors. 1998 (3) AWC 2244, a controversy had arisen regarding the jurisdiction of District Judge to transfer the arbitration proceeding to the Court of Addl. District Judge. Though the facts of that case were different but the Court of 'District Judge' was discussed in details. The following observations were made:

"It admits of no manner of doubt and rather, it is abundantly clear from Section 3(17)of the General Clauses Act, as well that the 'Court of District Judge' and the expression "the principal civil court of original jurisdiction in a district" are synonym. The Court of Civil Judge may also be a civil court of original jurisdiction but it would not be "the principal civil court of original jurisdiction in a district". The Court of Addl. District Judge is no doubt, a class of civil court as visualized by Section 3 of Bengal, Agra and Assam Civil Courts Act, 1887 and it exercises the same power as the District Judge in relation to the functions assigned to it by the District Judge under Section 8(2)of the aforesaid Act but that by itself would not invest it with the trapping of a principal civil court of original jurisdiction in a District."

In this case the plaintiff itself in the plaint appears to have claimed relief on the ground of infringement of its trade-mark by the defendants. The petitioner raised objection to the jurisdiction of the court of learned Civil Judge junior division Bagli at the earliest. But the learned trial court has not considered all material legal aspects as discussed above. Therefore, the impugned order passed by the court below suffers from non exercising jurisdiction vests in the Court as well as procedural irregularity. The impugned order passed by the court below is contrary to the law and deserves to be set aside.

Accordingly the present revision petition is allowed and the impugned order dated 15.3.2022 passed by the trial court is hereby set aside.

The present revision petition stands disposed of with no order as to costs.

C.c. as per rules.

(ANIL VERMA) JUDGE BDJ Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2022.05.12 12:02:38 +05'30'