Madras High Court
P.Ayyasamy vs B.Mohammed Yousuff on 16 August, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.08.2013 CORAM THE HONOURABLE MR. JUSTICE K.RAVICHANDRABAABU C.R.P. (NPD) No.1414 of 2011 and M.P.No.1 of 2011 P.Ayyasamy ... Petitioner .vs.. B.Mohammed Yousuff ... Respondent Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the order of dismissal dated 19.11.2010 passed in I.A.No.1654 of 2009 in O.S.No.107 of 2007 on the file of the Principal District Judge, Coimbatore. For Petitioner : Mr.N.Nithianandam For Respondent : M/s.Saravana Sowmiyan O R D E R
This civil revision petition is filed by the defendant in a suit for bare injunction. He is aggrieved against the order passed by the court below in I.A.No.1654 of 2009 in dismissing the said application filed by him under section 5 of the Limitation Act, seeking to condone the delay of 251 days in filing the petition to set aside the exparte decree passed in the said suit in O.S.No.107/2007.
2.The respondent herein filed the above said suit before the District Court, Coimbatore under Order 7 Rule 1 and Sections 26, 151 of C.P.C. read with Sections 28, 19, 134 and 135 of the Trade Marks Act, 1999. The respondent herein sought the relief of permanent injunction restraining the petitioner herein from manufacturing, selling, advertising and offering for sale by infringing the plaintiffs registered trade mark Maharaja Brand along with the device of Maharaja in relation to rice or by using the trade mark Nala Maharaja" along with the device Maharaja or by using any other mark or marks which are in anyway visually similar to the plaintiffs registered trade mark "Maharaja Brand". He also sought for other reliefs for surrender of unused bags, etc., and for render of true and faithful account of profits earned by the defendant through a sale of rice by using the plaintiffs registered trade mark Maharaja Brand.
3.On 16.12.2008, the trial court passed an exparte decree as the petitioner herein did not appear before the Court on the said date. Subsequently, the petitioner filed I.A.No.1654 of 2009 on 24.08.2009 under section 5 of the Limitation Act seeking to condone the delay of 251 days in filing the petition to set aside the exparte decree. It is the contention of the petitioner before the court below that he was under the impression that the written statement had been filed along with counter statement by his counsel and he was expecting information from his counsel about the date of hearing. Thus, it is stated that he was not aware of the fact that he was set exparte and an exparte decree came to be passed in the suit on 16.12.2008 and that he came to know about the said fact only after receiving a communication from an Advocate representing Partners of M/s.Shanmugha Modern Rice Mill, Kangeyam on 20.08.2009. He had been trying to contact his counsel at Coimbatore several times and he was not available. Thus, a delay of 251 days has occurred in filing the petition to set aside the exparte decree. The said application was resisted by the respondent herein by filing a counter affidavit. The court below considered the matter elaborately and by passing a detailed order, rejected the said application by holding that the petitioner has not shown and proved the sufficient cause for condoning the delay of 251 days. Aggrieved against the same, the present civil revision petition is filed.
4.Learned counsel appearing for the petitioner submitted that the petitioner was not informed by the counsel at Coimbatore about the date of hearing of the suit and therefore, the petitioner was not aware of the fact about the exparte decree passed on 16.12.2008. Counsel at lower court was not appearing as a counsel for the petitioner in other proceedings. The Assignee of the respondent have already filed similar suit against the petitioner and the same is pending. Therefore, condoning the delay would not prejudice the interest of the respondent. In support of his contention, the learned counsel relied on the decision of the Division Bench of this Court reported in 2012(1) CTC 801, A.Seyed Hakim v. K.S.Maideen.
5.Per contra, learned counsel appearing for the respondent submitted that the court below after elaborate discussion of facts and circumstances came to the conclusion that the contention of the petitioner herein is not true and he has not shown sufficient cause for condoning the delay. He also pointed out that the petitioner took part in other proceedings before the Intellectual Property Appellate Board at Chennai during the relevant time and therefore, his contention that he was not aware of the exparte decree is not factually correct in view of the fact that the same counsel appeared in both the proceedings. The petitioner filed a rectification application before the Intellectual property Appellate Board against the respondent and he has withdrawn the same as not pressed. Thus, the petitioner has got no valid points in his favour even on merits. The learned counsel relied on the following decisions in support of his submission:
(i)2008(17) SCC 448,Pandlik Jalam Patil (Dead) By L.Rs. v.
Executive Engineer, Jalgaon Medium Project and Another;
(ii)1993(1) SCC 572, Binod Bihari Singh v. Union of India;
(iii)2007(2) SCC 322, D.Gopinathan Pillai v. State of Kerala.
6.Heard the learned counsels appearing on either side and perused the materials placed before this court.
7.In this case, the respondent herein filed the above said suit against the petitioner for injunction and other relief as discussed above complaining that the petitioner is infringing the respondents registered trade mark Maharaja Brand. The suit was filed on 21.02.2007 and it is not stated by the petitioner that he was not served with notice in the said suit. On the other hand, it is an admitted fact that he has engaged a counsel to contest the said suit on his behalf. However, as he did not appear before the court on 16.02.2008, an exparte decree was passed against him on the same day. As there was a delay of 251 days, he filed an application under section 5 of the Limitation Act seeking to condone such delay in filing the set aside petition. The affidavit filed by the petitioner shows that he has only blamed his counsel at Coimbatore to contend that he has not informed him about exparte decree passed on 16.12.2008. According to the petitioner, he came to know about the said exparte decree only on 28.02.2009 when he received a notice from some third parties. Thus, it has to be seen as to whether these reasons stated by the petitioner are true statement and whether he is entitled to get the delay condoned based on those reasons. Admittedly, the petitioner has not marked any document or examined anybody on his behalf to prove his contention. On the other hand, the respondent marked Exs.R1 to R6 and however not examined anybody orally. Thus, the petitioner wants to succeed based on his mere pleadings.
8.Needless to say that mere pleading is not sufficient unless such pleading is proved by adducing material evidence, especially, when the opposite side disputes the contention raised in the petition. In this case, the petitioner has stated that his counsel at Coimbatore has not informed about the exparte decree passed on 16.12.2008. Except by his statement in the affidavit, he has not examined either himself or anybody on his behalf or the counsel to prove such contention. On the other hand, it is stated by the respondent that the very same counsel who appeared in the suit also appeared before the Intellectual Property Appellate Board at the relevant point of time on behalf of the petitioner and therefore, the petitioner's statement that his counsel has not informed about the exparte decree is a false statement. The court below has found at paragraph No.13 of its order that the petitioner engaged the same counsel both before the court below as well as in other proceedings before the Intellectual Property Appellate Board at Chennai. On rendering such factual finding, the court below has rightly come to the conclusion that the petitioners contention that he was unable to contact his counsel inspite of several attempts is unexpectable and unbelievable. It was also specifically pointed out by the court below that the petitioner has not given any proof in support of his contention. It is also found by the court below that the petitioner had appeared before the Intellectual Appellate Board at the relevant point of time and therefore, he ought to have appeared before the court below also. The petitioner has not examined anybody to show that he came to know about the exparte decree only after receipt of notice from the Assignees on 20.08.2009. He has not even marked the said notice before the court. The court below has pointed out that the petitioner failed to produce any evidence that he received notice from those persons on the said date and no copy of such notice was also marked. Thus, the court below has rightly pointed out that the petitioner had come to the Court with false plea. It is also noted by the court below that the respondent herein, after the exparte decree, has assigned right in favour of one Easwaramurthy and Rakkiappasamy and the same has been registered by the Registrar of Trade Marks.
9.Thus, it is manifestly clear that the right of trade mark had been assigned to third party in pursuant to the exparte decree, by the time, the petitioner has chosen to file the application to set aside the same. This accrual of right to third parties cannot be ignored while considering the application under section 5 of the Limitation Act. It is also to be seen that the petitioner filed a rectification application before the Intellectual Property Appellate Board, Chennai in Application No.ORA/82/2007/TM/CH-/6339 and withdrew the same as evident from the order dated 17.08.2009 marked as Exs.R6 before the court below. Thus, it is manifestly clear that the petitioners attempt before the said Board seeking for rectification had also ended in dismissal of the application as the same was withdrawn.
10. It is also to be noted that the petitioner has clearly admitted in his affidavit that this court while disposing of C.M.A.Nos.1945 and 1946 of 2007 by order dated 08.04.2008 directed the suit to be disposed of within a period of three months. Therefore, the petitioner is fully aware of the time limit fixed by this court for the disposal of the suit. When that being the factual and admitted position, the petitioner cannot blame his counsel that too with bald statement without there being any iota of truth in it. The court below has rightly considered all these aspects and rejected the application.
11.No doubt, application under section 5 of the Limitation Act should be construed liberally. At the same time, such liberal construction does not mean that the application has to be allowed even if the petitioner has failed to show sufficient cause or the cause shown is found to be false. I have already pointed out that the court below has found the reasons stated by the petitioner as false. Under those circumstances, I am of the view that the order passed by the court below by exercising its discretion, need not to be interfered with.
12.Learned counsel for the petitioner relied on the decision of the Honble Division Bench of this Court reported in 2012(1) CTC 801, A.Seyed Hakim v. K.S.Maideen to contend that sufficient cause is to be applied in reasonable, pragmatic, practical and liberal manner, if delay is not on account of dilatory tactics, want of bonafides, deliberate inaction or negligence. There is no quarrel about the said proposition. But, before applying such general proposition, the facts and circumstances of each and every case has to be considered on its own merits and to find out whether such facts and circumstances would warrant a liberal construction of the sufficient cause. Even in the said decision, at paragraph No.18, the Honble Division Bench has observed that the word sufficient cause in section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice when the delay is not on account of dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellants. Thus, it is manifestly clear that the one has to fail if it is proved that he has indulged either in dilatory tactics or there was deliberate inaction or negligence on his part which would show that there is no bonafide on his part. As found by the court below, the petitioner has not proved the reasons stated in the affidavit by examining anybody or marking any documents. Therefore, the mere statement made in the affidavit cannot be taken as true and valid statement, more particularly, the other side denies the same. Thus, the burden lies on the petitioner to prove, which he miserably failed. When there is a miserable failure to prove the contention, then the question of liberal approach does not arise. The petitioner has not gone into box to prove or speak about his own contention. Nor he examined any third party to substantiate such contention. He did not even bother to mark any document. Under these circumstances, drawing of an adverse inference against him is inevitable.
13.Learned counsel for the respondent relied on the decision of the Hon'ble Supreme Court reported in 1993(1) SCC 572, Binod Bihari Singh v. Union of India, wherein it was held that person should not be encouraged to get a premium on his falsehood. It is held by the Apex Court at paragraph No.10 of the said order that the appellant therein having taken a false stand on the question of receipt of the signed copy of the award to get rid of the bar of limitation, should not be encouraged to get any premium on the falsehood on his part by rejecting the claim raised by the respondent therein. The other decision relied on by the learned counsel for the respondent is reported in 2007(2) SCC 322, D.Gopinathan Pillai v. State of Kerala, wherein it is held that the delay cannot be condoned without assigning any reasonable, satisfactory, sufficient and proper reason. Yet another decision relied on by the learned counsel for the respondent is reported in 2008(17) SCC 448,Pandlik Jalam Patil (Dead) By L.Rs. v.Executive Engineer, Jalgaon Medium Project and Another, wherein at paragraph No.12, it is observed as follows:
".12..There is no doubt whatsoever in our mind that the respondent made totally incorrect statement in the application filed in the High Court. We express our reservation as to the manner in which a public authority conducted itself in its anxiety to somehow get the relief from the Court. In our considered opinion, incorrect statement made in the application seeking condonation of delay itself is sufficient to reject the application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay. That a party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on its part by condoning delay. (See Binod Bihari Singh v. Union of India, (1993) 1 SCC 572."
14.Considering all these facts and circumstances of the case, I find that the order passed by the court below is just and proper and does not warrant any interference. Accordingly, the civil revision petition is dismissed. No costs. The connected miscellaneous petition is also dismissed.
vri To The Principal District Judge Coimbatore