Calcutta High Court
Prapti Fashions Private Limited And ... vs Monoj Kumar Gupta on 7 May, 2014
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
And
The Hon'ble Mr. Justice Arijit Banerjee
A.P.D. No. 64 of 2014
C.S. No. 28 of 2013
Prapti Fashions Private Limited and another
Vs.
Monoj Kumar Gupta
For the Appellants : Mr. Ranjan Bachawat
Mr. Prithwiraj Sinha, Advocate
Mr. Victor Dutta, Advocate
For the Respondents : Mr. Debnath Ghosh, Advocate
Mr. Sayan Roy Chowdhury, Advocate
Mr. A. Poddar, Advocate
Mr. P. Patra, Advocate
Ms. Namrata Barmecha, Advocate
Heard on : April 21, 2014.
Judgment on : May 7, 2014.
ASHIM KUMAR BANERJEE, J:
CURTAIN-RAISER:
The subject lis would involve the authority to use the trade name
"Prapti Fashion". The plaintiff would claim, they have outlets all
over India under the name and style of "Prapti" and they are prior
user of the brand. The defendant started using the same at a later
point of time that would give rise to a cause of action where the
plaintiff would be entitled to claim monopoly on the brand as a
prior user. Significant to note, the defendant was using the label
"Prapti Collections". The plaintiffs would claim, by passage of time,
they acquired goodwill and reputation that the defendant sought to
infringe hence, the plaintiff was entitled to permanent injunction
restraining the defendant from using the brand "Prapti" in their
product. The records would reveal, the plaintiff filed another suit,
prior in time, being T.S. suit No. 122 of 2012. They however, did not
proceed further in the suit and allowed the same to be dismissed.
Earlier, simultaneously with the filing of the suit, they made
identical prayer for injunction that the learned City Civil Court
refused, on appeal, the Division Bench directed expeditious disposal
of the suit. The Division Bench also declined to give any interim
protection.
Soon after filing of the later suit, the appellant/plaintiff filed an
application for injunction. The respondent/defendant filed another
application for dismissal of the suit on the ground, the same was
not maintainable in view of Order XXIII rule 1(4) of the Code of Civil
Procedure.
JUDGMENT AND ORDER IMPUGNED:
Learned Single Judge disposed of both the applications by
dismissing the suit being barred by Order XXIII of the Code of Civil
Procedure. His Lordship held, both suits being T.S. No. 122 of 2012
and C.S. No. 28 of 2013 would claim identical reliefs. Since the
plaintiffs allowed the former suit to be dismissed without having
express leave being obtained for the second suit, the second suit
would be barred hence, this appeal.
CONTENTIONS:
Mr. Ranjan Bachawat learned Counsel appearing for the appellant
would advance his argument by contending, Order XXIII rule 1
would have no application since the second suit was filed at a time
when the earlier suit was also in existence. The earlier suit was
dismissed at a stage when the later suit had already been filed
hence, question of obtaining leave for filing a fresh suit would not
arise. He would however, not admit the contentions of the
defendant; the suits would have identical reliefs. According to him,
the later suit was more comprehensive and in any event, would be
based on continuing cause of action. He would refer to the
pleadings contained in the plaint that would show, defendant
opened two more branches after filing of the prior suit.
He would also rely on the registration of the label mark that he had.
According to him, apart from registration of label mark he was
admittedly prior user that would give right to him to claim for
appropriate injunction claiming monopoly on the mark.
On the continuing cause of action, Mr. Bachawat relied on the
following decisions:
1. Bengal Waterproof Limited, M/s. Vs. M/s. Bombay
Waterproof Manufacturing Company reported in All India
Reporter 1997 Supreme Court page- 1398.
2. N.R. Narayan Swamy Vs. B. Francis Jagan reported in All
India Reporter 2001 Supreme Court page- 2469.
3. Nakoda Dairy Private Limited Vs. Kewal Chand Vinod
Kumar and others reported in The Patents and Trademarks
Cases 2009 Volume- 40 page- 428.
On the applicability of Order XXIII rule 1 he would rely on the
following decisions:
1. Mangi Lal and Another Vs. Radha Mohan and Another
reported in All India Reporter 1930 Lahore page- 599.
2. Girdhari Lal Bansal Vs. The Chairman, Bhakra Beas
Management Board, Chandigarh and Others reported in All
India Reporter 1985 Panjab and Haryana Page-219.
3. Vimlesh Kumari Kulshrestha Vs. Sambhajirao and Another
reported in All India Reporter 2009 Supreme Court Page-
806.
Distinguishing the Lahore decision Mangi Lal and Another (supra)
that the learned Judge relied upon, Mr. Bachawat contended, the
law was different when the said decision was rendered that would
make the difference. According to him Bengal Water Proof (supra)
was wrongly applied. He would rather rely upon paragraph 8 of the
said decision that would support his contention on the issue. He
would distinguish the decision in the case of Vimlesh Kumari
(supra) by contending, the suit was dismissed on a technical defect
that would make the difference.
Per contra, appearing for the respondent, Mr. Sayan Ray
Chowdhury would heavily rely on the decision in the case of Bengal
Water Proof (supra). He would rather distinguish the decision in
Sarguja Transport Service Vs. State Transport Appellate
Tribunal reported in Supreme Court Cases 1987 volume-I page-
5 heavily relied on Mr. Bachawat by contending, the facts of the
present case would not fit in. According to Mr. Ray Chowdhury, the
Rajasthan decision in the case of Hari Ram Vs. Lichmaniya and
others reported in All India Reporter 2003 Rajasthan page- 319
was not the correct law.
Replying to what the respondent would contend, Mr. Prithiraj Sinha
learned Counsel also appearing for the appellant would submit, in
Bengal Water Proof (supra) finality was the prime factor whereas
the Rajasthan case considered the conduct of the parties that
prompted the Court to spring into action. He would refer to page-
480 of the paper book to contend, the respondent themselves
admitted; it was a fresh cause of action. Hence, the subsequent suit
would lie.
OUR VIEW:
We have considered the issue and the proposition of law that the
precedents would espouse. We also carefully perused the relevant
provisions of the Code of Civil Procedure. Order XXIII rule 1(4)
would suggest, when the plaintiff abandons any suit or withdraws
any suit without the permission of the Court he shall be liable for
cost and would be precluded from instituting any fresh suit on the
self-same cause of action. In the present case, the T.S. No. 122 of
2012 was admittedly prior in time. The plaintiff filed the suit in this
Court in January 2013 whereas the City Civil Court dismissed the
suit at the time when both the suits were pending. We have
carefully perused the prayers in both the suits. We fully agree with
the respondent, it was for the same purpose, may be by
articulation, the prayers were differently couched. In the High Court
suit, the plaintiff prayed for permanent injunction restraining the
defendant from using the trade name "Prapti Fashion" as also
"Prapti Collections" or from infringing the registered trade mark that
the plaintiff had on the label. The plaintiff also prayed for
declaration that they were only entitled to use such trade name.
The City Civil Court suit would have the same prayer of declaration,
the defendant was not entitled to use the trade name "Prapti" as
also for permanent injunction restraining them from using such
trade name. We hold, the suits were identical.
The City Civil Court passed the following order at the instance of
the appellant:
"Both parties file hazira. The deftendant file a written objection
against the application under Order XXIII read with Section 151
C.P.C.
The application under Order XXIII read with Section 151 C.P.C. filed
by the plaintiff Prapti Fashions Private Limited for withdrawing the
case is taken up for hearing.
Heard both sides. Strong objection is raised by the learned Advocate
for the defendant.
It appears that the plaintiff has already filed C.S. No. 28 of 2013
before the Hon'ble High Court, Calcutta regarding the selfsame
matter.
So, I think that there is no impediment to allow the application of the
plaintiff to withdraw the case.
Accordingly, the prayer is allowed.
Hence
Ordered
That the application under Order XXIII read with Section 151 C.P.C.
filed by the plaintiff Prapti Fashions Private Limited is allowed with
cost of Rs.1,000/- to the defendant.
The plaintiff is permitted to withdraw the case that without any
liberty to sue afresh and on payment of cost of Rs.1,000."
The Order would show, the plaintiff approached the City Civil Court
for withdrawal of the suit as they had already filed the present suit.
The learned Judge found no impediment to allow the plaintiff to
withdraw the suit. Question of liberty to sue afresh, was not there
and in any event, not granted. The premise of the application was
based upon the subsequent filing of the High Court suit hence, it
was ridiculous to suggest, the prayer for fresh suit was refused or
not granted. We hold, it was not required at all in the present
circumstance. The real issue, in our view, should be, whether the
later suit could be filed or not. If it was filed wrongly it would be
liable to be dismissed. Order XXIII would have no application at all.
The relevant date would be the date of filing of the later suit and not
the date of dismissal of the earlier suit. Now question would remain
what would happen if the plaintiff did not approach the City Civil
Court for withdrawal and pursue both the suits. Section 10 would
prevent them. Section 10 would provide, no Court shall proceed
with the trial of any suit in which the matter in issue is already
directly and substantially in issue in a previous suit between the
same parties in the same or any other Court. So it is a fetter on the
Court to hear a later suit that would preclude the present suit to be
heard until the earlier suit is disposed of. Once the earlier suit is
disposed of Section 11 would come to play. Section 11 would
suggest, no Court shall try any suit in which the matte wasr
directly and substantially in issue in a former suit that got finally
decided. Both these provisions referred to above, would impose a
fetter on Court to hear a later suit when, either a former suit is
pending on the issue or the former suit has already been disposed
of and finality has reached on the issue. Section 10, 11, Order XXIII
read together, would unequivocally suggest, legislature did not want
any conflict of decision on the same issue as also wanted to stop
multiplicity of proceeding. In the present case, the plaintiff filed two
suits on the identical cause of action. His later suit could be stayed
till the disposal of the earlier suit however, no suit could be
dismissed because of pendency of the other suit. Once the former
suit is decided the result would preclude the Court to hear the later
suit. To avoid such situation, the plaintiff prayed for withdrawal of
the earlier suit that could at best help the defendant/respondent to
criticize the conduct of the plaintiff and pray for adequate damage
for the harassment.
Take a situation worse. During pendency of both the suits the
earlier suit got dismissed for default and the plaintiff would not
apply for restoration. There would be no finality on merit hence,
subsequent suit could be heard. At best, the Court could refuse to
extend any relief considering the conduct that the learned Single
Judge of the Rajasthan High Court did. However, that would not be
the abstract proposition of law.
The above proposition of law could be proper if we could ignore the
true spirit of sub-rule 4. We have already held, sub-rule 4 would
not have any application however; the spirit could not be ignored.
Had there been no continued cause of action the appellant would be
out of Court.
Order XXIII rule 1(4) would contemplate a situation when plaintiff
abandons his suit or withdraws the same without the leave of the
Court. In the cases cited at the bar, decisions were rendered
considering the conduct of the parties. In the Bengal Water Proof
(supra), the Apex Court considered the illustration below Order II
rule 2 to the extent, if a landlord sues the tenant for the rent due
till that year and omits to sue for the rent in case of previous years
the claim would be barred in a subsequent suit. The present case
would not fit in. In Bengal Water Proof case, the first suit was
based on infringement of the trade mark whereas the second suit
was based upon passing off action. The Apex Court held, the
plaintiff could have based his claim on passing off in the earlier
suit. In the present case, we have already come to conclusion, the
reliefs are identical. In such event, the issue would be covered by
Section 10 and 11. Pendency of both the suits may not attract
dismissal of the later one however, would preclude the plaintiff to
proceed with both. Sub rule 4 would contemplate a situation prior
to filing of the subsequent suit. It did not speak of any situation like
the present one. The decisions cited at the bar would not fit in
squarely in the present case except the Rajasthan decision. In the
case of Narayan Swami (supra) the first suit was for eviction on the
ground of bonafide requirement. The subsequent suit was based
upon the requirement that came subsequently. The Apex Court
permitted the subsequent suit to continue holding, Order XXIII rule
1(4) would have no application. The decision was rendered on the
logic of continued cause of action. In the present case, rightly or
wrongly, the plaintiff filed the former suit that they did not want to
proceed with that might preclude their claim based on the cause of
action as on the date of filing of the suit. However, user of the trade
name is a continued cause of action that cannot prevent the
subsequent suit to be proceeded with. Bengal Water Proof (supra)
could be distinguished as two suits were not on identical premise
that would make the difference. However, the conduct of the
plaintiff should certainly be considered, so was the harassment that
the defendant suffered. The City Civil Court awarded only a sum of
Rs.1000 as cost that would be pittance.
In Sarbuja Transport, the petitioner withdrew a revisional
application without permission to institute a fresh one. The
subsequent petition was barred. A revisional application or a writ
petition is based upon a particular Order or action. In the said case,
the Regional Transport Authority rejected the application for
renewal of permit on the ground of limitation. The society
challenged the Order before the appellate Tribunal. The appellate
Tribunal got the same disposed of along with other connected
appeals. The petitioner approached the High Court under Article
226/227. When the petition was taken up for hearing the learned
Counsel withdrew the same. The petitioner again filed an identical
petition that the High Court dismissed. The Apex Court upheld the
decision. The learned Counsel relied on paragraph 5 of the decision
where the Apex Court considered Order XXIII rule 1 and held,
withdrawal without permission would bar the fresh one . The Apex
Court observed, "In the case of abandonment or withdrawal of a suit
without the permission of the Court to file a fresh suit, there is no
prior adjudication of a suit or an issue is involved, yet the Code
provides, as stated earlier, that a second suit will not lie in sub-rule 4
of rule 1 of Order XXIII of the Code when the first suit is withdrawn
without permission referred to in sub rule 3 in Order to prevent the
abuse of the process of the Court." The subsequent suit could be
termed as abuse of process that would have an adverse reflection
on the plaintiff however, per se, we cannot support dismissal as the
cause of action was continuing in nature.
RESULTS:
The appeal succeeds and is allowed. The judgment and Order of the
learned Single Judge is set aside. C.S. No. 28 of 2013 is restored
and be heard on merits. In the peculiar circumstance as discussed
above, we impose a cost of Rs.1.5 lac on the appellants out of which
the appellants would pay Rs.1 lac to the respondent and Rs.50,000
to the High Court Legal Service Committee. Costs must be paid
within one week after summer holidays.
Arijit Banerjee, J.
I agree [ASHIM KUMAR BANERJEE, J.] [ARIJIT BANERJEE, J.]