Calcutta High Court (Appellete Side)
Biswanath Moira vs Raju Das And Another on 5 March, 2019
1 S/L. 58.
March 5, 2019.
MNS.
C. O. No. 829 of 2019 Biswanath Moira Vs. Raju Das and another Mr. Sayantan Basu, Mr. Bratin Kumar Dey, Mr. Prodeep Pandey ...for the petitioner.
Mr. Arindam Chandra, Mr. Kaushik Panja, Mr. Souvik Ghosh ...for the opposite party no. 1.
Affidavit-of-service filed in Court today be taken on record. The petitioner and the opposite party no. 1 are represented through their learned counsel.
The present challenge has been preferred against an order whereby the trial court allowed an application of the plaintiff/opposite party no. 1 for police help to implement an ad interim order of injunction restraining the defendant no. 2/petitioner from infringing the registered trade mark "Bishu's Special Moya" in relation to Moya or any other sweetmeat products by using the plaintiff's registered trade mark and trade name or identical to such registered trade mark and trade name and also restrained from passing off or causing or enabling or assisting any other to pass of its goods which is phonetically or structurally similar to that of "Bishu's Special Moya".
2
It is argued by learned senior counsel appearing for the petitioner that the trial court adjudicated and allowed such application for police help without ascertaining on proper enquiry as to whether there really had been any violation of the injunction order at all.
It is argued that the photographs annexed to the police help application do not disclose the date of taking such photographs. Even the purported receipt/bill produced along with the said application for police help does not disclose any sort of violation of the injunction order.
It is further submitted on behalf of the petitioner that since the application of the opposite party no. 1 under Order XXXIX Rule 2A of the Code of Civil Procedure, alleging violation of the injunction application, is still pending, the application for police help ought to have been disposed of along with the same, since evidence will be led by both parties in connection with the said application under Order XXXIX Rule 2A of the Code.
Learned counsel for the plaintiff/opposite party no.1, being the main contesting opposite party, argues that the photographs categorically show the violation of the injunction order.
It is further submitted that the said photographs contained dates. It is argued that the application for implementation of the police help was rightly allowed by the trial court, in view of obvious violation of the order of injunction by the petitioner.
In view of the nature of dispute involved in this revisional application, service on the defendant no. 1/opposite party no. 2 is dispensed with.
It appears from the annexures to the application for police help, contrary to what has been submitted on behalf of the opposite party no. 1, that the photographs-in- question do not contain any date. Moreover, although a receipt was furnished along with 3 such application for police help on behalf of the opposite party no. 1 in the court below, the same does not disclose the sale of any sweetmeat identical with the trade mark/trade name on which injunction was passed.
Moreover, learned senior counsel for the petitioner is justified in arguing that although the scope of the application for implementation by police help and the contempt application under Order XXXIX Rule 2A of the Code are different, since the subject matter of dispute in both pertain to violation of the ad interim injunction, and the scope of adduction of evidence in the application under Order XXXIX Rule 2A of the Code is much wider, the ends of justice would be subserved in the event the application for police help is revived and is disposed of along with the application under Order XXXIX Rule 2A of the Code.
Moreover, it is palpable that the trial court did not enter into any enquiry worth the name before passing an order of police help, without appreciating that the presence of police at the drop of a hat might adversely affect the goodwill of the petitioner's sweetmeat business in the eye of the general public.
Accordingly, C. O. No. 829 of 2019 is disposed of by setting aside the impugned order and directing the trial court to hear out afresh and dispose of the application of the plaintiff/opposite party no. 1 under Section 151 of the Code of Civil Procedure, for implementation of the ad interim order of injunction dated December 8, 2017 passed in Title Suit No. 22 of 2017 along with the application filed by the opposite party no. 1 in connection with the said suit under Order XXXIX Rule 2A of the Code.
The petitioner is directed to file his written objection to the application under Order XXXIX Rule 2A of the Code within a fortnight from date. 4
The trial court is directed to dispose of both the applications as expeditiously thereafter as the business of the said court permits, without granting any unnecessary adjournment to either of the parties, positively within one month from the date of communication of this order to the court below.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)