Calcutta High Court
Godfrey Phillips (India) Limited vs I.T.C. Limited on 29 April, 2011
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
(Original Side)
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Sambuddha Chakrabarti
G.A. No.247 of 2011
A.P.O. No.37 of 2011
A.P.O.T. No.25 of 2011
C.S. No.10 of 2009
Godfrey Phillips (India) Limited
Versus
I.T.C. Limited
For the Appellant: Mr. S. K. Kapoor,
Mr. Ranjan Bachhawat,
Mr. Vipul Kundalia,
Mr. Ravi Kapoor,
Mrs. Sonal Shah,
Mr. Kushagra Shah,
Mr. Prithviraj Sinha.
For the Respondent: Mr. S. N. Mookherjee,
Mr. Ratnanko Banerji,
Mrs. Sarvapriya Mukherjee,
Mr. Shaunak Mitra,
Mr. Debamitra Adhikary,
Mrs. Siddiqua Parveen.
Heard on : 11.04.2011.
Judgment on : 29th April, 2011.
Bhaskar Bhattacharya, J.:
2 This appeal is at the instance of a defendant in a suit for infringement of trademark and passing off and is directed against order dated December 7, 2010 passed by a learned Singled Judge of this Court by which His Lordship dismissed the application filed by the appellant for stay of the suit as well as for deleting the pleadings relating to the allegation of passing off.
Being dissatisfied, the defendant has come up with the present appeal. The respondent before us filed in this High Court a suit being C.S. No.10 of 2009 praying for permanent injunction restraining the appellant before us and/or its servants, agents, dealers, retailers and others from infringing or in any manner using or causing to be used and/or enabling others to infringe or use the trademark PILOT and/or PILOT NUMBER ONE or any other deceptively similar mark or any trademark consisting of the word PILOT and/or PILOT NUMBER ONE in respect of cigarettes or other tobacco products.
After entering appearance in the suit, the appellant filed an application under Section 124 of the Trade Marks Act, 1999 ("Act") and thereby prayed for stay of all further proceedings of the suit till the disposal of the application for cancellation of registration of the trademark bearing registration No.117155, awaiting adjudication before the Registrar of Trade Marks, Kolkata and also for striking off the pleading in respect of the allegation of passing off as made in the plaint.
3
The case made out by the appellant in the said application may be summed up thus:
a) Prior to the filing of the suit by the respondent, the appellant had filed an application for cancellation of the respondent's registered trademark No.117155 in the month of December, 2006.
b) After service of copy of the said application for cancellation, the plaintiff repeatedly prayed for extension of time to file its evidence and subsequently, by suppression and misrepresentation of facts filed the suit and obtained an ex parte injunction order on 22nd January, 2009 knowing well that the suit was not maintainable and/or otherwise liable to be stayed in view of pendency of the appellant's application for rectification of the trademark of the respondent.
c) As regards the allegation of passing off, this High Court has no territorial jurisdiction to entertain, try and determine the same under the provisions of the Act, as the defendant is a resident of the State of Maharashtra. It further appears that no part of cause of action with regard to the claim based on passing off having arisen within the territorial jurisdiction of this Court even according to the averments made in the plaint and no leave under Clause 12 of the Letters Patent having been obtained, this Court had no jurisdiction to try and determine the suit in respect of the plaintiff's alleged claim 4 based on the principle of passing off and the claim in respect of cause of action based on passing off should be summarily dismissed.
d) As indicated earlier, the learned Single Judge by the order impugned herein has rejected the application for stay on the ground that the provision contained in Section 124 of the Act is not attracted in the present case and at the same time, so far as the relief based on the allegation of passing off is concerned, leave to add such cause of action can be granted at any point of time before the hearing of the suit starts in terms of Clause 14 of the Letters Patent.
Being dissatisfied, the defendant has come up with the present appeal. Mr. Kapoor, the learned Senior Advocate appearing on behalf of the appellant, has strenuously criticized the order passed by the learned Single Judge on the ground that his client having filed an application for rectification of the trademark of the plaintiff on the ground of non-user of the same for more than 50 years, it was a fit case for stay as the provision contained in Section 124 of the Act is attracted. According to Mr. Kapoor, even if an application is filed for removing the registration of the plaintiff on the ground of non-user as provided in Section 47 of the Act, the same substantially comes within the purview of Section 57 of the Act and thus, it is a fit case where Section 124 of the Act should be attracted.
5
As regards the allegation of passing off stated in the plaint, Mr. Kapoor points out that there is no allegation in the plaint that any part of such cause of action has arisen within the territorial limits of this Court and at the same time, it is apparent from the averments made in the plaint itself that his client carries on business in the State of Maharashtra and as such, in view of the fact that the suit based on the prayer for infringement of trademark should remain stayed under Section 124 of the Act and in the absence of any leave granted under Clause 14 of the Letters Patent, the learned Single Judge should have struck out the averments in relation to the allegation of passing off.
Mr. Mookherjee, the learned Senior Advocate appearing on behalf of the respondent, on the other hand, has opposed the aforesaid contentions of Mr. Kapoor and has supported the order passed by the learned Single Judge. According to Mr. Mookherjee, in the case before us, the defendant having applied not for rectification of the registration of the plaintiff but having prayed for removal of the registration on the grounds specified in Section 47 of the Act, the provision contained in Section 124 of the Act is not attracted as the said provision is applicable if any application is filed under Section 57 of the Act. Mr. Mookherjee submits that if we go through the averments made in the purported application for rectification filed by the appellant, it would appear that the same is in substance an application under Section 47 of the Act for removal of registration on the ground of non-user.
6
As regards the prayer for striking out averments of the allegation of passing off, the submission of Mr. Mookherjee is twofold.
First, according to Mr. Mookherjee, there cannot be part rejection of a plaint and thus, such prayer is not tenable. Secondly, Mr. Mookherjee submits that his client is at liberty to pray for leave under Clause 14 of the Letters Patent at any point of time before the commencement of the suit and thus, at this stage, there was no justification of even passing an order for return of the plaint as regards the case based on passing off on the ground of want of territorial jurisdiction.
Mr. Mookherjee, therefore, prays for dismissal of the appeal. Therefore, the questions that arise for determination in this appeal are whether the learned Single Judge was justified in dismissing the application filed by the appellant by holding that Section 124 of the Act is not applicable to the proceeding initiated by the appellant and whether the leave under Clause 14 of the Letters Patent can be given at any point of time before commencement of the hearing of the suit.
In order to appreciate the aforesaid questions, it will be profitable to refer to the provisions contained in Sections 9, 11, 47, 57 and 124 of the Act as well as Clause 14 of the Letters Patent which are quoted below:
7
"S.9. Absolute grounds for refusal of registration. - (1) The trade marks-
(a) which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person;
(b) which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service;
(c) which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade, shall not be registered:
Provided that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well- known trade mark.
(2) A mark shall not be registered as a trade mark if -
(a) it is of such nature as to deceive the public or cause confusion;
(b) it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
(c) it comprises or contains scandalous or obscene matter;
(d) its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950).
(3) A mark shall not be registered as a trade mark if it consists exclusively of-
(a) the shape of goods which results from the nature of the goods themselves; or
(b) the shape of goods which is necessary to obtain a technical result; or
(c) the shape which gives substantial value to the goods.8
Explanation. - For the purposes of this section, the nature of goods or services in relation to which the trade mark is used or proposed to be used shall not be a ground for refusal of registration.
"S.11. Relative grounds for refusal of registration. - (1) Save as provided in section 12, a trade mark shall not be registered if, because of-
(a) its identity with an earlier trade mark and similarly of goods or services covered by the trade mark; or
(b) its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark. (2) A trade mark which-
(a) is identical with or similar to an earlier trade mark; and
(b) is to be registered for goods or services which are not similar to those for which the earlier trade mark is registered in the name of a different proprietor, shall not be registered, if or to the extent, the earlier trade mark is a well-known trade mark in India and the use of the later mark without due cause would take unfair advantage of or be detrimental to the distinctive character or repute of the earlier trade mark. (3) A trade mark shall not be registered if, or to the extent that, its use in India is liable to be prevented-
(a) by virtue of any law in particular the law of passing off protecting an unregistered trade mark used in the course of trade; or
(b) by virtue of law of copyright.
(4) Notwithstanding in this section shall prevent the registration of a trade mark where the proprietor of the earlier trade mark or other earlier right consents to the registration, and in such case 9 the Registrar may register the mark under special circumstances under section 12.
Explanation.- For the purposes of this section, earlier trade mark means-
(a) a registered trade mark or convention application referred to in section 154 which has a date of application earlier than that of the trade mark in question, taking account, where appropriate, of the priorities claimed in respect of the trade marks;
(b) a trade mark which, on the date of the application for registration of the trade mark in question, or where appropriate, of the priority claimed in respect of the application, was entitled to protection as a well-known trade mark.
(5) A trade mark shall not be refused registration on the grounds specified in sub-sections (2) and (3), unless objection on any one or more of those grounds is raised in opposition proceedings by the proprietor of the earlier trade mark.
(6) The Registrar shall, while determining whether a trade mark is a well-known trade mark, take into account any fact which he considers relevant for determining a trade mark as a well-known trade mark including-
(i) the knowledge or recognition of that trade mark in the relevant section of the public including knowledge in India obtained as a result of promotion of the trade mark;
(ii) the duration, extent and geographical area of any use of that trade mark;
(iii) the duration, extent and geographical area of any promotion of the trade mark, including advertising or publicity and presentation, at fairs or exhibition of the goods or services to which the trade mark applies;10
(iv) the duration and geographical area of any registration of or any application for registration of that trade mark under this Act to the extent they reflect the use or recognition of the trade mark;
(v) the record of successful enforcement of the rights in that trade mark; in particular, the extent to which the trade mark has been recognised as a well-known trade mark by any court or Registrar under that record.
(7) The Registrar shall, while determining as to whether a trade mark is known or recognised in a relevant section of the public for the purposes of sub-section (6), take into account-
(i) the number of actual or potential consumers of the goods or services;
(ii) the number of persons involved in the channels of distribution of the goods or services;
(iii) the business circles dealing with the goods or services, to which that trade mark applies.
(8) Where a trade mark has been determined to be well-known in at least one relevant section of the public in India by any court or Registrar, the Registrar shall consider that trade mark as a well- known trade mark for registration under this Act. (9) The Registrar shall not require as a condition, for determining whether a trade mark is a well-known trade mark, any of the following, namely:-
(i) that the trade mark has been used in India; (ii) that the trade mark has been registered;
(iii) that the application for registration of the trade mark has been field in India;
(iv) that the trade mark-
(a) is well known in; or
(b) has been registered in; or
11
(c) in respect of which an application for registration has
been filed in, any jurisdiction other than India; or
(v) that the trade mark is well-known to the public at large in India. (10) While considering an application for registration of a trade mark and opposition filed in respect thereof, the Registrar shall-
(i) protect a well-known trade mark against the identical or similar trade marks;
(ii) take into consideration the bad faith involved either of the applicant or the opponent affecting the right relating to the trade mark.
(11) Where a trade mark has been registered in good faith disclosing the material informations to the Registrar or where right to a trade mark has been acquired through use in good faith before the commencement of this Act, then, nothing in this Act shall prejudice the validity of the registration of that trade mark or right to use that trade mark on the ground that such trade mark is identical with or similar to a well-known trade mark.
"S.47. Removal from register and imposition of limitations on ground of non-use.-
(1) A registered trade mark may be taken off the register in respect of the goods or services in respect of which it is registered on application made in the prescribed manner to the Registrar or the Appellate Board by any person aggrieved on the ground either-
(a) that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods or services by him or, in a case to which the provisions of section 46 apply, by the company concerned or the registered user, as the case may be, and that there has, in fact, been non bona fide use of the trade mark in relation to those goods or services by any proprietor 12 thereof for the time being up to a date three months before the date of the application; or
(b) that up to a date three months before the date of the application, a continuous period of five years from the date on which the trade mark is actually entered in the register or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods or services by any proprietor thereof for the time being:
Provided that except where the applicant has been permitted under section 12 to register an identical or nearly resembling trade mark in respect of the goods or services in question, or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark, the tribunal may refuse an application under clause (a) or clause (b) in relation to any goods or services, if it is shown that there has been, before the relevant date or during the relevant period, as the case may be, bona fide use of the trade mark by any proprietor thereof for the time being in relation to-
(i) goods or services of the same description; or
(ii) goods or services associated with those goods or services of that description being goods or services, as the case may be, in respect of which the trade mark is registered. (2) Where in relation to any goods or services in respect of which a trade mark is registered-
(a) the circumstances referred to in clause (b) of sub-section (1) are shown to exist so far as regards non-use of the trade mark in relation to goods to be sold, or otherwise traded in a particular place in India (otherwise than for export from India), or in relation to goods to be exported to a particular market outside India; or in relation to services for use or available for acceptance in a particular place in India or for use in a particular market outside India; and 13
(b) a person has been permitted under section 12 to register an identical or nearly resembling trade mark in respect of those goods, under a registration extending to use in relation to goods to be so sold, or otherwise traded in, or in relation to goods to be so exported, or in relation to services for use or available for acceptance in that place or for use in that country, or the tribunal is of opinion that he might properly be permitted so to register such a trade mark.
on application by that person in the prescribed manner to the Appellate Board or to the Registrar, the tribunal may impose on the registration of the first-mentioned trade mark such limitations as it thinks proper for securing that registration shall cease to extend to such use.
(3) An applicant shall not be entitled to rely for the purpose of clause (b) of sub-section (1) or for the purposes of sub-section (2) on any non-use of a trade mark which is shown to have been due to special circumstances in the trade, which includes restrictions on the use of the trade mark in India imposed by any law or regulation and not to any intention to abandon or not to use the trade mark in relation to the goods or services to which the application relates.
"S.57. Power to cancel or vary registration and to rectify the register. - (1) On application made in the prescribed manner to the Appellate Board or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto.
(2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, may apply in the 14 prescribed manner to the Appellate Board or to the Registrar, and the tribunal may make such order for making, expunging or varying the entry as it may think fit.
(3) The tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register. (4) The tribunal, of its own motion, may, after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any order referred to in sub-section (1) of sub-section (2).
(5) Any order of the Appellate Board rectifying the register shall direct that notice of the rectification shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly.
"S.124. Stay of proceedings where the validity of registration of the trade mark is questioned, etc.- (1) Where in any suit for infringement of a trade mark-
(a) the defendant pleads that registration of the plaintiff's trade mark in invalid; or
(b) the defendant raises a defence under clause (e) of sub-section (2) of section 30 and the plaintiff pleads the invalidity of registration of the defendant's trade mark, the court trying the suit (hereinafter referred to as the court), shall, -
(i) if any proceedings for rectification of the register in relation to the plaintiff's or defendant's trade mark are pending before the Registrar or the Appellate Board, stay the suit pending the final disposal of such proceedings;
(ii) if no such proceedings are pending and the court is satisfied that the plea regarding the invalidity of the registration of the plaintiff's or defendant's trade mark is prima facie tenable, raise an issue regarding the same and adjourn the case for a period 15 of three months from the date of the framing of the issue in order to enable the party concerned to apply to the Appellate Board for rectification of the register.
(2) If the party concerned proves to the court that he has made any such application as is referred to in clause (b) (ii) of sub-section (1) within the time specified therein or within such extended time as the court may for sufficient cause allow, the trial of the suit shall stand stayed until the final disposal of the rectification proceedings. (3) If no such application as aforesaid has been made within the time so specified or within such extended time as the court may allow, the issue as to the validity of the registration of the trade mark concerned shall be deemed to have been abandoned and the court shall proceed with the suit in regard to the other issues in the case. (4) The final order made in any rectification proceedings referred to in sub-section (1) or sub-section (2) shall be binding upon the parties and the court shall dispose of the suit conformably to such order in so far as it relates to the issue as to the validity of the registration of the trade mark.
(5) The stay of a suit for the infringement of a trade mark under this section shall not preclude the court from making any interlocutory order (including any order granting an injunction directing account to be kept, appointing a receiver or attaching any property), during the period of the stay of the suit."
"Letters Patent Cl. 14. Joinder of several causes of action. And We do further ordain, that were Plaintiff has several causes of action against a Defendant, such causes of action not being for land or other immovable property, and the said High Court shall have original jurisdiction in respect of one of such causes of action, it shall be lawful for the said High Court to call on the Defendant to show cause why the several causes of action should not be joined together in one suit and 16 to make such order for trial of the same as to the said High Court shall seem fit."
After hearing the learned counsel for the parties and after going through the provisions contained in the Act and Letters Patent as quoted above, we find that if in a suit alleging infringement of trademark, the defendant takes a plea that the registration of the plaintiff's trademark is invalid and at the same time, if any proceedings for rectification of the register in relation to the plaintiff's or defendant's trademark are pending before the Registrar or the Appellate Board, the Court trying the suit, shall stay the suit pending the final disposal of such proceedings.
In the case before us, according to the defendant, it has filed proceedings before the Register for rectification of the registration of the plaintiff' trademark even prior to the filing of the suit and at the same time, has also raised dispute as to the validity of the registration of the plaintiff's trademark and thus, the grant of stay of the suit is mandatory.
We, therefore, propose to consider whether the defendant has really filed the proceedings for rectification and has also taken the plea of invalidity of the registration of the plaintiff's mark so as to attract the provisions contained in Section 124 of the Act.
It is now a settled law that in order to decide the exact nature of an application, the Court should not be solely guided by the label of the application 17 or the reference to the statutory provision under which the same is made but should verify what it contains and what relief it has prayed for on the basis of its contents. Wrong reference of section of a statute does not preclude the Court from granting the just relief if it appears that the Court has otherwise the jurisdiction to entertain the same on the basis of averments made in support of the claim. Similarly, reference to a statutory provision in the cause title on the application will not bring the case under that statutory provision if it contains different relief or grounds for the relief claimed.
The application filed by the appellant before the Registrar has been described as one "for the rectification of the trademark or the removal of the trademark from the Registrar under Sections 47 and 57 read with Rule 92."
The prayers made in the application are as follows:
"In the circumstances and for the reasons stated above, we pray that
i) the entry to registration no. 117155 in class 34 be removed from the Registrar of Trade marks under section 47 and 57 of the Trade marks Act, 1999.
ii) the cost of the proceedings in our favour.
iii) any other or further relief be granted to meet the ends of justice."
The grounds taken in the said application is support of the relief claimed are quoted below:
"We are the person aggrieved by the aforesaid registration. Therefore, we seek the removal of the impugned trademark on the following grounds:-18
i) the impugned trademark was registered without any bona fide intention that it shall be used in relation to the goods in respect of which it has been registered and that there has been no bona fide use of the trademark in relation to those goods for the time being up to a date to three months before the date of the instant this application.
ii) Further and in the alternative, up to a date three months before the date of the instant application, a continuous period of 5 years or longer has elapsed during which the impugned trademark was registered and during which there has been no bona fide use thereof in relation to those goods by the registered proprietor.
iii) The registration of the mark is without sufficient cause and wrongly remaining on the Register and therefore liable to be expunged from the Register under section 57(2) of the Trade Marks Act, 1999.
iv) The trademark has been registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to the goods by it and there has in fact been no bona fide the use of the trade mark three months prior to the date of the application and therefore liable to be expunged from the Register under section 47 (1) (a) of the Trade marks Act 1999.
In any view of the matter, the label as registered under no. 117155 for "Pilot Virginia" cannot be permitted in view of the provisions laid down in the Cigarettes and other tobacco products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003."
On a plain reading of the application filed by the defendant before the Registrar, we find that the basis of the relief claimed in the application as indicated in the grounds Nos. i), ii) and iv) is twofold. First, the registration was made without any bona fide intention to use the same and that within the 19 required period of five years three months preceding the filing of the application, the plaintiff had not used the same and those grounds are available under Section 47 of the Act for removal. The third ground mentioned above, i.e. the registration of the mark is without sufficient cause and wrongly remaining on the Register and therefore liable to be expunged from the Register under section 57(2) of the Trade Marks Act, 1999 is, in our opinion, really not available under Section 57(2) of the Act although the defendant has relied upon the said provision of Section 57(2). According to Section 57(2) of the Act, any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, may apply in the prescribed manner to the Appellate Board or to the Registrar, and the tribunal may make such order for making, expunging or varying the entry as it may think fit.
Thus, in order to bring a case within the purview of Section 57(2), the applicant must show either 1) an entry duly registered has been removed from the register or omitted therefrom for no valid reason; or 2) an entry has been entered in the register although it has not been registered; or 3) any entry is wrongly remaining in the list although there is already an order of removal or rectification; or 4) a particular entry has been registered, but there is some error or defect in that entry thereby making it as one which is not the exact one which was granted registration.
20
The ground No. iii) indicated above, thus, does not come within the purview of Section 57(2) although claimed as such and is really a ground for removal, and a repetition of grounds Nos. i), ii) and iv). Apart from those four grounds, a fifth ground has been taken by the defendant contending that the registration of the plaintiff's mark cannot be permitted in view of the provisions laid down in the Cigarettes and other tobacco products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. We have gone through the Act and even the aforesaid Act of 2003 and find that no ground of rectification is available under the said Act of 2003.
It is, therefore, apparent that the appellant in its application before the Registrar really has made out a case of removal of the Registration of the Respondent's trademark which is available under Section 47 of the Act and thus, pendency of an application for removal of registration does not attract the provision contained in Section 124 of the Act. It is well-known that unlike the effect of declaration of invalidity of registration, the order of removal takes effect from the passing of such order. Thus, pendency of an application for removal cannot be said to be one alleging invalidity of the registration because if the application succeeds in the long run, the same will give rise to the cause of removal of the registration from the date of the order unlike the case of rectification of registration. Moreover, the concept of removal of registration being different from that of rectification of registration, there cannot be overlapping 21 grounds for the both and the legislature is also conscious of such position as would appear from the fact that it has not included the selfsame ground for both rectification and removal of registration.
We, therefore, find that the learned Single Judge rightly held that the pendency of the application for removal filed by the defendant in this case will not bring the case within the purview of Section 124 of the Act and refused to stay the further proceedings of the suit.
As regards the other point regarding the inclusion of the prayer based on the cause of action of passing off, we find that Clause 14 of the Letters Patent, quoted above, empowers this Court to join such cause of action. According to Mr. Kapoor, such prayer for invocation of Clause 14 must be made before the prayer for return of plaint is made by the defendant. We are, however, unable to accept such contention of Mr. Kapoor as a sound proposition of law. Once the power has been conferred under Clause 14 of the Letters Patent, the Court is entitled to exercise such power at any time before the commencement of the trial. In our opinion, the phrase "it shall be lawful for the said High Court to call on the Defendant to show cause why the several causes of action should not be joined together in one suit and to make such order for trial of the same as to the said High Court shall seem fit" is wide enough to grant such relief even at the subsequent stages of the suit. At this stage, we can profitably refer to the decision of the Supreme Court in the case of Gajanan Jaikhan Joshi Vs. Prabhakar Mohanlal Kalwar, reported in (1990) 1 SCC 166 where in a suit for specific performance of 22 contract for sale of immovable property, in the absence of the required pleading that the plaintiff was at all material time ready and willing to perform his part of the contract, on the prayer of the defendant, a preliminary issue was framed as to whether the suit was liable to be dismissed for want of the necessary pleading and at that stage, the plaintiff came up with a prayer for amendment of plaint for the purpose of frustrating the defence of maintainability of the suit. Even in such a situation, the Supreme Court set aside the order of the High Court and allowed the amendment thereby making the preliminary issue already framed as infructuous. Such being the position of law, it is absurd to suggest that the Court should strike out the relief based on passing off for want of territorial jurisdiction only because the plaintiff did not pray for leave under Clause 14 before the filing of the application by the defendant alleging want of territorial jurisdiction in respect of part of cause of action.
On consideration of the materials on record, we, therefore, find that in the facts of the present case, the learned Single Judge rightly passed the order impugned and we find no reason to interfere with the just order passed by His Lordship.
Appeal is thus dismissed.
In the facts and circumstances, there will be, however, no order as to costs.
23
(Bhaskar Bhattacharya, J.) I agree.
(Sambuddha Chakrabarti, J.) Later:
Urgent xerox certified copy of this judgment and order, if applied for, be supplied to the parties within a week subject to compliance with all requisite formalities.
(Bhaskar Bhattacharya, J.) I agree.
(Sambuddha Chakrabarti, J.)