Patel Enterprise & vs Gujarat Tea Depot Company & ... on 17 July, 2017

[Cites 4, Cited by 1]

Gujarat High Court

Patel Enterprise & vs Gujarat Tea Depot Company & ... on 17 July, 2017

Bench: Bela M. Trivedi

                   C/CRA/286/2017                                                      ORDER



                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      CIVIL REVISION APPLICATION NO. 286 of 2017
         ==========================================================
                       PATEL ENTERPRISE & 1....Applicant(s)
                                     Versus
                  GUJARAT TEA DEPOT COMPANY & 1....Opponent(s)
         ==========================================================
         Appearance:
         MR SUDHIR NANAVATI, SR ADVOCATE with MS ANUJA S NANAVATI,
         ADVOCATE for the Applicant(s) No. 1 - 2
         MR SN SOPARKAR, SR. ADVOCATE with MR YJ TRIVEDI, CAVEATOR for
         the Opponent(s) No. 1 - 2
         ==========================================================
          CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

                                           Date : 17/07/2017
                                               ORAL ORDER

1. The order dated 16.2.2017 passed by the City Civil Court No.25, Ahmedabad (hereinafter referred to as "the trial Court") below Exh. 21 in Civil Suit No.1954 of 2015 rejecting the application of the applicants - original defendants seeking rejection of the plaint under Order VII Rule 11 of CPC, is challenged by the applicants in the present Civil Revision Application filed under Section 115 of the CPC.

2. The respondents - original plaintiffs have filed the suit seeking following reliefs against the applicants - defendants in para 36 of the plaint : -

                    "A)       The        Hon'ble             Court      be      pleased          to
                    restrain             the     defendants,              their          agents,



                                                  Page 1 of 8

HC-NIC                                         Page 1 of 8       Created On Sun Aug 20 20:50:57 IST 2017
          C/CRA/286/2017                                                    ORDER

          B)        The         Hon'ble          Court      be      pleased          to
          restrain          the      defendants,              their         agents,

dealers, distributors, stockists, servants and representatives be restrained by an order of permanent injunction from manufacturing, marketing, advertising for sales, the defendant's products under the trademark/label bearing the mark DOUBLE TIGER and/or any other mark which is substantial and materially reproduction of plaintiff's copyright in its artwork and thereby restrain them from committing an act of infringement Copyright of art works registered and referred in paragraph No. 12 of the plaint C) The Hon'ble Court be pleased to restrain the defendants, their agents, Page 2 of 8 HC-NIC Page 2 of 8 Created On Sun Aug 20 20:50:57 IST 2017 C/CRA/286/2017 ORDER dealers, distributors, stockists, servants and representatives be restrained by an order of permanent injunction from manufacturing, marketing, advertising for sales, the defendant's products under the trademark/label bearing the mark DOUBLE TIGER and/or any other mark which is identical and/or deceptively similar to the plaintiff's prior used marks WAGH BAKRI and thereby restrain them from committing an act of passing off action."

3. In the said suit, the applicants - defendants had filed an application under Order VII Rule 11 seeking rejection of the plaint on the ground that the Court did not have the jurisdiction as transpiring from the averments made in the plaint. The respondents - plaintiffs having filed the reply, the applicants had filed the rejoinder to the said reply stating inter alia that if it was held that the application under Order VII Rule 11 was not maintainable, the said application be treated as an application under Order VII Rule 10 for return of the plaint for the presentation before the appropriate Court having jurisdiction. The trial Court rejected the said application considering both the provisions under Order VII Rule 10 and under Order VII Rule 11 of the CPC, vide the impugned order, against which the present Civil Revision Application has been filed.

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4. The learned Sr. Advocate Mr.S. I. Nanavati for the applicants at the outset submitted that he does not press for the rejection of the plaint under Order VII Rule 11 so far as the prayers contained in paragraphs 36(A) and (B) of the plaint are concerned. His main thrust of submission is with regard to the prayer contained in paragraph 36(C) of the plaint on the ground that the trial Court did not have the jurisdiction to try the suit for the action of passing off, and therefore, the entire plaint deserves to be returned under Order VII Rule 10 of the CPC. It is sought to be submitted by Mr. Nanavati that as per Section 20 of CPC, the suit could be instituted in the Court within the local limits of whose jurisdiction, the defendants carry on the business or personally work for gain or cause of action wholly or in part arises. According to him, in the instant case, the respondents - plaintiffs for the purpose of jurisdiction have stated in the plaint that the goods of the defendants are marketed in the city of Ahmedabad, and therefore, the plaintiffs had purchased the product of the defendants from the city of Ahmedabad. However, the plaintiffs have produced the invoice of village Sanand, which is outside the city limit of Ahmedabad, and therefore, trial Court would not have the jurisdiction with regard to the action of passing off. He further urged that there was nothing on record to show that the defendants had sold their Page 4 of 8 HC-NIC Page 4 of 8 Created On Sun Aug 20 20:50:57 IST 2017 C/CRA/286/2017 ORDER products within the territorial jurisdiction of the trial Court, and therefore, the plaint was liable to be returned under Order VII Rule 10 of the CPC. According to Mr.Nanavati, the statements made in the affidavit by the defendant before the Registrar have been misconstrued by the trial Court to mean that the products of the defendants are being sold all over India including the city of Ahmedabad.

5. Per contra, the learned Sr. Advocate Mr.Soparkar appearing with Mr.Trivedi for the respondents - plaintiffs submitted that the plaint can not be returned in part, qua prayer 36(C) only under Order VII Rule 10 of the CPC. Mr.Soparkar taking the Court to the averments made in the plaint submitted that the plaintiffs have specifically averred that the products of the defendants were being sold and were available within the city of Ahmedabad, and therefore, the trial Court would have the jurisdiction to try the suit qua the action of passing off also. He has relied upon the various decisions of this Court as well as of the Supreme Court to submit that the cause of action is bundle of facts, which are required to be proved by the plaintiffs for obtaining the reliefs claimed in the suit.

6. Now, it is not disputed by Mr. Nanavati for the applicants that the application under Order VII Rule 11 of CPC seeking rejection of the plaint was sought to be converted by the applicants -

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HC-NIC Page 5 of 8 Created On Sun Aug 20 20:50:57 IST 2017 C/CRA/286/2017 ORDER plaintiffs into an application under Order VII Rule 10 seeking return of the plaint. The question therefore which falls for consideration before this Court is as to whether such a conversion of application could be permitted, or whether a composite application under Order VII Rule 11 and Order VII Rule 10 would be maintainable in the eye of law ? It is needless to say that the criteria for consideration of an application under Order VII Rule 10 would be absolutely different from the criteria for consideration of an application under Order VII Rule 11 of CPC. The plaint could be returned at any stage under Order VII Rule 10 if the Court finds that the Court lacks jurisdiction either pecuniary or territorial to try the suit, whereas the plaint could be rejected under Order VII Rule 11, if the case falls under any of the clauses mentioned therein. For the purpose of rejection of plaint under Clause(d) of Rule 11, the suit must appear from the statement in the plaint to be barred by any law i.e. there has to be a statutory bar of jurisdiction. Therefore, it is inconceivable that a composite application under both the provisions could be filed, or if the application was filed under one provision that be permitted to be converted into the one under the other provision. Further, it cannot be gainsaid that the plaint could be rejected in part under Order VII, Rule 11, but the plaint could not be returned in part under Order VII, Rule 10. It Page 6 of 8 HC-NIC Page 6 of 8 Created On Sun Aug 20 20:50:57 IST 2017 C/CRA/286/2017 ORDER has to be returned as a whole for being presented to the Court in which the suit should have been instituted, after following the procedure laid down therein. In the instant case, therefore, Mr. Nanavati's submission that the plaint be returned under Order VII, Rule 10 on the ground that the trial Court does not have the jurisdiction to grant the prayer sought in para 36(c) of the plaint, though it has jurisdiction to grant other prayers, cannot be accepted.

7. It is also pertinent to note that the issues whether the Court has territorial jurisdiction or not, or whether the cause of action or part thereof had arisen within the jurisdiction of the trial Court or not, are the issues that could be decided by the trial Court only after the evidence is led by the parties in the suit. It is trite law to say that a cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, material facts are required to be stated in the plaint but not the evidence. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Court, the plaintiff may not succeed, can not be a ground for rejection of the plaint. Beneficial reference in this regard be made of the judgment of Supreme Court in the case of Mayur (H.K.) Ltd. and Others versus Owners & Parties reported in (2006) 3 SCC 100.

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8. So far as the prayer with regard to the action of passing off contained in paragraph 36(C) is concerned, though it has been vehemently submitted by the learned Advocate Mr.Nanavati that the plaintiffs have not produced any document to show that the defendant's goods are being sold within the city of Ahmedabad, the said submission cannot be accepted. In the opinion of the Court it would be a matter of evidence to be led by the plaintiffs at the time of trial to substantiate their pleadings. Suffice is to say that the plaintiffs have categorically stated in the plaint for the purpose of jurisdiction that the defendant's goods are being sold and are available in the city of Ahmedabad. Mr. Nanavati having failed to point out any statutory bar of jurisdiction, the plaint could not be rejected under Clause (d)of Rule 11, Order VII.

9. In that view of the matter, the Court does not find any substance in the present civil revision application. The Civil Revision Application, therefore, is dismissed.

(BELA M. TRIVEDI, J.) vinod Page 8 of 8 HC-NIC Page 8 of 8 Created On Sun Aug 20 20:50:57 IST 2017

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