Delhi District Court
Firdosh Alam vs Murtja on 25 September, 2024
IN THE COURT OF MS. MANU VEDWAN,
DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 179/2021
CNR No. DLNE01-000721-2015
Firdosh Alam
S/o Jan Mohd.
R/o 1391, Street No. 18/3,
E-2 Block, Near Nijamiya School,
Nehru Vihar, Mustafabad, Delhi. .....Plaintiff
Versus
Mohd. Murtja
S/o Mohd. Yusuf
R/o E-50, Gali No. 15 Foota,
Gali No. 10, Subhash Mohalla,
North Ghonda, Delhi. ..... Defendant
Date of Institution : 05.06.2015
Date of Reserving Judgment : 24.09.2024
Date of Judgment : 25.09.2024
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendant seeking the decree of permanent and mandatory injunction alongwith recovery of damages and compensation.
2. Plaint 2(a). Brief facts, as stated in the plaint are that plaintiff is peace loving citizen who is engaged in the business of manufacturing and supplying of CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 1 of 16 goggle, spectacles et cetera. It is stated that plaintiff is exclusively doing business of manufacturing and supplying of kid's goggle under the trade mark and style of "NANO". In this regard plaintiff had also applied for the trade mark "NANO" under the Trade Marks Act, 1999 vide application number 02904260, dated 18.02.2015. It is further stated that plaintiff is doing the aforesaid business of manufacturing kid's goggle in the name and style of "NANO" for last 8-9 years and commands a good image and reputation in this trade. It is further stated that recently from various sources plaintiff came to know that the defendant is also doing the business of manufacturing and supplying of kid's eye wear/ kid's goggle under the same name and style of "NANO". Thereafter, plaintiff made enquiries and he came to know that the defendant is illegally and unauthorizedly using the abovesaid trade mark "NANO" in respect of the same trade that is kid's goggle/eye wear from last one month.
2(b). It is further stated that defendant is manufacturing and supplying duplicate and spurious copy of the eye wear range similar to the eye wear range of the plaintiff on lower price than the plaintiff. It is further stated that the defendant is doing the abovesaid illegal business from his factory situated at Inderlok Industrial Area as well as from his house number E-50, Gali number 10, Subhash Mohalla, North Ghonda, Delhi. It is further stated that the defendant is intentionally and unethically used the mark belonging to the plaintiff that is "NANO" without plaintiff's permission and thereby committed cheating by wrongful gaining profit to himself and loss/damage to the plaintiff. Defendant had done this with the motive to encash the goodwill and reputation of the trade mark of plaintiff. It is further stated that feeling aggrieved by the abovesaid illegal conduct, plaintiff had got served a legal notice, dated 20.04.2015, thereby calling upon the defendant to immediately stop using the mark of plaintiff and further to compensate the plaintiff. Defendant instead of complying with CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 2 of 16 the same, opted to give it's reply, dated 27.04.2015, on false and frivolous facts. It is further stated that in the reply of notice, defendant had admitted that the defendant is manufacturing and supplying the goggle kid's eye wear with the mark of plaintiff that is "NANO".
2(c). It is further stated that after receiving the notice from the plaintiff, defendant had not stopped the abovesaid illegal conduct/acts and he is still using the mark of plaintiff "NANO" and thus causing loss in the business and reputation of plaintiff. It is further stated that the plaintiff had approached the defendant many times and requested him not to indulge in such kind of illegal activities, but, the defendant instead of mending his ways threatened the plaintiff that if the plaintiff again raised his voice, he would have to face dire consequences. It is further stated that the plaintiff has also made a written complaint, dated 06.06.2015, to the concerned Station House Officer. It is further stated that by the abovesaid illegal conduct, the defendant has committed the tort of 'passing off' by which, the plaintiff had suffered a huge loss of business and reputation/goodwill which he earned by working hard from last 8-9 years. As per the estimate, plaintiff must have suffered a loss/damages of reputation/good will/business to the tune of rupees 4,00,000/- on account of aforesaid illegal, unethical conduct of the defendant. Besides that, defendant had also caused mental and physical harassment, pain and agony and therefore the defendant is liable to compensate to the plaintiff for the same to the tune of rupees 1,00,000/-. It is therefore requested that decree of permanent injunction alongwith mandatory injunction, decree of damages to the tune of rupees 4,00,000/- and decree of compensation to the tune of rupees 1,00,000/- be passed in favour of plaintiff and against the defendants.
3. Written statement CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 3 of 16 3(a). On the other hand, in the written statement filed by the defendant apart from denying the contentions of plaint it is stated by the defendant that the suit of plaintiff is not maintainable on account of latches and acquiescence. It is stated that the defendant had used the mark "NANO" ever since the year 2002. It is further stated that the plaintiff had complete knowledge of long, continuous and commercial use of said trade mark by the defendant. It is further stated that the plaintiff could not feign ignorance regarding such commercial use of the mark by defendant for such a long time of 14 years. It is further stated that the defendant was engaged in the well known and well established business inter-alia of manufacturing and marketing of toy goggles parts and accessories thereof for the past several years. It is further stated that the defendant was the true owner and lawful proprietor of the trade mark "NANO" in respect of the said goods. The said trade mark "NANO" was adopted by defendant long back in the year 2002.
3(b). It is further stated that the defendant adopted the said trade mark "NANO" from the Greek origin word and it's means "Very small". It is further stated that since defendant had to sell toy goggles for use as toy by the small kids, defendant adopted the said trade mark to also refer to small. It is further stated that the said trade mark "NANO" is distinctive of goods and business of defendant and has by continuous and open use acquired enviable goodwill and reputation translating into further distinctiveness. It is further stated that on account of superior quality of goods sold under the trade mark "NANO" and by virtue of long, continuous, commercial use of the trade mark defendant had acquired enviable goodwill and trade reputation among the public and trade. It is stated that the trade mark "NANO" has come to be exclusively identified and associated with the defendant among the public and trade. It is further stated that the plaintiff had filed the trade mark application number 2904260, dated 18.02.2015, in CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 4 of 16 Class-09, for registration of trade mark/label "NANO" in respect of kid's goggle with claim of false user since 01.02.2014. Even, that claim of user by plaintiff clearly shows that the plaintiff had recently started the business of manufacturing and marketing of said goods under the trade mark "NANO", while, the defendant had used the said trade mark for last 14 years among the public and trade.
3(c). It is further stated an inspection of record of Trade Marks Registry also shows that various persons had registered or applied for the trade mark "NANO" much prior to plaintiff's aforesaid application. It is further stated that the adoption of the impugned trade mark "NANO" by the plaintiff is absolutely dishonest, malafide and in bad faith and is also in contravention of the provisions of the Trade Marks Act, 1999. It is further stated that the defendant's business is lawful and it has nothing to do with the plaintiff. The defendant was prior adopter/ prior user. It is further stated that the plaintiff had recently copied the defendant's trade mark and the features of product to trade upon and benefit from the goodwill of defendant. It is further stated that in any case, defendant had no intention or desire to derive any unfair advantage from the purported reputation and goodwill of any entity other than the defendant. It is further stated that the plaintiff had no goodwill and he had copied defendant's product and trade mark and trying to take benefit of defendant goodwill in the market. It is therefore requested that the suit of plaintiff be dismissed.
4. Replication Replication to the written statement of defendant was filed by plaintiff which is essentially a reiteration of the averments in the plaint and denial of contentions in the written statement.
5. Issues CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 5 of 16 On the basis of pleadings, the following issues were framed:-
(i) Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? OPP
(ii) Whether the plaintiff is entitled for decree of mandatory injunction as prayed in the suit? OPP
(iii) Whether the plaintiff is entitled for a decree of rupees 4 lakhs towards damages and rupees 1 lakh towards compensation, as prayed in the suit? OPP
(iv) Relief.
6. Plaintiff's evidence 6(a). Plaintiff has led his piece of evidence. Plaintiff has got examined himself as PW1. He reiterated the facts as are mentioned by him in his plaint. Thereafter, he tendered his evidence by way of affidavit which is Ex. PW1/1 and relied upon the documents i.e. copy of Driving License as Ex.PW1/A (OSR), application for registration of trade mark "NANO" before the registrar, dated 18.02.2015, as Mark A (colly), notice sent by plaintiff and reply sent by defendant as Ex.PW1/C (Colly) and complaint given by plaintiff to concern police officials as Mark B. During the course of cross examination, PW1 produced the certified copy of application filed before Registrar Trade Mark for registration of Trade Mark "NANO" in his name and the same is Ex.PW1/X1. PW1 also produced the copy of registration of declaration of firm name M/s. Force Kids Eye wear in the name of his father and the same is Ex.PW1/X2.
6(b). PW1 was cross examined at length by Learned Counsel for defendant. During the course of his cross examination, PW1 submitted that his firm was not registered and as such he had no firm. PW1 further submitted that he had not taken any license from any authorities to pursue any business and that he runs his business activity from his house. PW1 also submitted that his goods were not tested anywhere. PW1 submitted CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 6 of 16 that the polythene containing his goods did not bear any name. The box bears the name FORCE and not the word "NANO". PW1 submitted that he did not sell in retail and sells his goggles at rupees 52/- per box (12 pieces). PW1 further submitted that the carton title "FORCE" was his carton and the same is Ex.PW1/D1 and the carton title FORCE used by defendant is Ex.PW1/D2. PW1 further submitted that he knew the defendant for more than 25 years.
Defendant's evidence 6(c). After closing of plaintiff's evidence, defendant has led his piece of evidence. Defendant in order to prove his case stepped into the witness box as DW1. DW1 has reiterated the same facts as are mentioned by him in his written statement. Thereafter, he tendered his evidence by way of affidavit which is Ex.DW1/A and relied upon the following documents i.e. aadhar card of defendant as Ex.DW1/1 (OSR), bills as Ex.DW1/2 and Ex.DW1/3 respectively, photographs of kids goggle purchased from the market by the defendant as Ex.DW1/4 and Ex.DW1/5, search report of "NANO" as Ex.DW1/6 and search report of "FORCE" as Ex.DW1/7. DW1 was cross examined at length by Learned Counsel for plaintiff. During the course of his cross examination, DW1 submitted that he had no knowledge that the plaintiff was using the trade mark "NANO" on his goods, prior to use of DW1 of the said trade mark. DW1 submitted that he knew Sh. Jaan Mohammad, the father of plaintiff for last about 15-20 years and he used to work with the plaintiff earlier. DW1 denied the suggestion put to him by Learned Counsel for plaintiff that the plaintiff was the prior user of the mark "NANO". He further denied the suggestion that he had copied the trade mark "NANO" from the goods of plaintiff.
7. Arguments CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 7 of 16 I have heard the arguments advanced on behalf of parties and perused the case file carefully. Learned Counsel for defendant has relied upon the judgments titled as Cadila Healthcare Limited v. Dabur India Limited, IA 1496/2008, decided on 09.07.2008, Century Traders v. Roshan Lal Duggar & Co., AIR 1978 Delhi 250 and Nirapara Roller Flour Mills Pvt. Ltd. vs Ammini Karnan, RFA No. 371/2007, decided on 11.05.2010. All these judgments have been perused very carefully vis-a-vis facts of the case.
Written submissions on behalf of plaintiff 7(a). Written submissions have also been filed on behalf of plaintiff in which once again contents of plaint have been reiterated. Apart from this, it is stated in the written submissions that plaintiff came to know that the defendant is also doing the business of manufacturing and supplying of kids eye wear under the name and style of "NANO". It is stated that basically the defendant is using the goodwill of the plaintiff which caused wrongful loss to the plaintiff and wrongful gain to the defendant. It is further stated that plaintiff has got examined himself as PW1 and has relied upon the certified copy of application for registration which is Ex.PW1/X1 in which it is mentioned that the plaintiff is the user of trade mark, since, 01.02.2014. It is further stated that the documents relied upon by the defendant that are Ex.DW1/2 and Ex.DW1/3 are not reliable and that defendant has not searched the internet before using the word "NANO" as submitted by him in his cross examination. It is further stated that the defence of defendant is that plaintiff is using the product from, 01.02.2014, and applied for the trade mark only on 18.02.2015. It is further stated that after moving application for registration plaintiff gave the legal notice to the defendant, dated 20.04.2015, regarding stopping of using the trade mark "NANO" and compensate the plaintiff. It is further stated that even after service of notice defendant did not raise any objection and also not CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 8 of 16 stopped using the trade mark name "NANO". It is further stated that during the pendency of suit trade mark "NANO" has been got registered by the plaintiff, on 02.08.2019.
8. Reasons and analysis/finding After recording the gist of evidence led by both the parties, let me record the findings on each issue.
8(a). Issue number 1, that is, whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? and Issue number 2, that is, Whether the plaintiff is entitled for decree of mandatory injunction as prayed in the suit? The onus to prove both these issues is upon the plaintiff. They being interconnected and having bearing upon each other are taken up together. To start with, it needs to be stressed that the incidence of legal burden is clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends. The incidence of the burden on different issues may lie in different places, and issues may rise or fall according to the facts proved, but on analysis of issue the legal burden will not change it is the burden of establishing the facts and contentions which will support a party's case. The evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side. Indian Evidence Act also works in consonance with this universally acceptable scheme.
8(b). As, mentioned in Section 101 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 9 of 16 bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Also, whether a civil or a criminal case, the anvil for testing of "proved", "disproved" and "not proved", as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. In such a suit, plaintiff has to create a high degree of probability so as shift the onus on the defendants. Thereafter, the result of the suit depends upon the evaluation of the result drawn by the applicability of the rule. Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
8(c). Further, an injunction is a judicial process whereby a party is required to do, or to refrain from doing any particular act. A party against whom a perpetual injunction is granted is thereby restrained from doing the act complained of. Relief of injunction is based on principles of justice, equity and good conscience. Section 38 to 41 in the Specific Relief Act, 1963 deals with various aspects of the injunction. There is equally and important condition for the grant of perpetual injunction, namely, when there is no equally efficacious relief which could be granted to the plaintiff, except the relief of perpetual injunction, it should be granted. It should be noted that the section contemplates the existence of rights in favour of the plaintiff as a condition precedent to the grant of the relief of the perpetual injunction, which is either threatened to be violated or is actually violated and existence of legal right in favour of one person contemplates the existence of corresponding legal duty in relation to that legal right in the other. Reliance is placed upon Nirav Deepak Modi v. Najoo Behram Bhiwandiwals, A.I.R. 2012 Bom 50 and Vishnukumar v. CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 10 of 16 Jankibai, A.I.R. 2006 (NOC)144 (M.P.).
8(d). Also, with respect to mandatory injunction it is most exceptional remedy and should be applied with the greatest safeguard for the prevention of waste as well as injustice. In granting or withholding an injunction, courts should exercise a judicial discretion and weigh the amount of substantial mischief done or threatened to be done to the plaintiff and compare it with that which the injunction is granted would inflict upon the defendant. It is a statutory rule that an injunction should only be granted when pecuniary compensation would not afford adequate relief. But it does not necessarily follow therefrom that a court has always the power to grant pecuniary compensation for a wrong whenever an injunction is asked for. Reliance is placed upon Anand & Iyer's Commentary on The Specific Relief Act, 1963 (Act No. 47 of 1963). Thus, in any suit where the plaintiff is claiming any type of injunction, the onus is definitely on him to prove his own case. Law is well settled that merely because the defendant fails to prove his case, plaintiff suit is not to be decreed and the plaintiff has to stand or fall on the basis of the strength of his own suit.
8(e). Adverting, to the facts of the present case, the mark in question was the words "NANO" . The proprietary interest claimed by the plaintiff is to the extent of using this mark "NANO". Plaintiff does not claim any proprietary interest in any pictures printed or embossed or stamped on goods/cartons of goods. The proprietary interest in aforesaid trade mark is claimed by the plaintiff by virtue of user. Thus, basically the suit in question is based on a claim of passing off. It is not a suit for infringement of a registered trade mark. It is to be noted that on, the registration of a trade mark in accordance with the section 28 of the Trade Marks Act, 1999, a registered proprietor gets an exclusive right to use the trade mark in relation to the goods and he is entitled to the relief in respect of the CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 11 of 16 infringement in the manner provided by the act. At the same time, section 27 (2) of the Trade Marks Act, 1999 provides that nothing in this Act shall be deemed to affect rights of the action against any person for passing off the goods as the goods of another person or the remedies in respect thereof. Remedies/reliefs are enumerated/explained in section 135 of Trade Marks Act, 1999 which is reproduced herein:-
135. Relief in suits for infringement or for passing off:-
(1) The relief which a court may grant in any suit for infringement or for passing off referred to in section 134 includes injunction (subject to such terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery-up of the infringing labels and marks for destruction or erasure.
(2) The order of injunction under sub-section (1) may include an ex parte injunction or any interlocutory order for any of the following matters, namely:--
(a) for discovery of documents;
(b) preserving of infringing goods, documents or other evidence which are related to the subject-matter of the suit;
(c) restraining the defendant from disposing of or dealing with his assets in a manner which may adversely affect plaintiff's ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.
(3) Notwithstanding anything contained in sub-section (1), the court shall not grant relief by way of damages (other than nominal damages) or on account of profits in any case-
(a) where in a suit for infringement of a trade mark, the infringement complained of is in relation to a certification trade mark or collective mark; or
(b) where in a suit for infringement the CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 12 of 16 defendant satisfies the court:--
(i) that at the time he commenced to use the trade mark complained of in the suit, he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was on the register or that the plaintiff was a registered user using by way of permitted use; and
(ii) that when he became aware of the existence and nature of the plaintiff's right in the trade mark, he forthwith ceased to use the trade mark in relation to goods or services in respect of which it was registered; or
(c) where in a suit for passing off, the defendant satisfies the court--
(i) that at the time he commenced to use the trade mark complained of in the suit he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was in use; and
(ii) that when he became aware of the existence and nature of the plaintiff's trade mark he forthwith ceased to use the trade mark complained of.
8(f). Therefore, it is not wrong to say that in an action for passing off plaintiff has to establish prior user to secure an injunction and the registration of the mark or similar mark in point of time is not that relevant. While, an action for passing off is a common law remedy, the action for infringement is a statutory remedy conferred on the registered proprietor for the vindication of the exclusive rights. Registration under the Statute does not confer any new right to the mark claimed. Trade mark is essentially adopted to advertise ones product and to make it known to the purchaser. Passing off is said to be species of unfair trade competition or of actionable unfair trading by which one person, through deception attempt to obtain an economic benefit of the reputation which other has established. Reliance is placed on Century Traders vs. Roshan Lal Duggar CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 13 of 16 & Co. AIR 1978 Delhi 250 and M/s. L.D. Malhotra Industries v. M/s Ropi Industries, 1 LR 1976 (1) Delhi 278. Use plays an all the important part and a trader acquires a right of property in a distinctive mark merely by using and onus of proving user is on the plaintiff. Again, the most important test in cases of infringement and passing off is that of prior user. Plaintiff has to establish that he is the user of the aforesaid mark prior in point of time then the impugned user by the defendant. The registration of the said mark or similar mark prior in point of time to use by the plaintiff is relevant and the mere presence of the mark in the register maintained by the Trade Mark registry did not prove it's user by the persons in whose name the mark was registered. In Cadila Healthcare Ltd. vs. Cadila Pharmaceuticals Ltd. 2001 PTC 300 (SC), Hon'ble Supreme Court has laid down the following tests in the cases of passing off and observed as under:-
...."In other words in the case of un-registered trade marks, a passing off action is maintainable. The passing off action depends upon the principle that nobody has a right to represent his goods as the goods of some body. In other words a man is not to sell his goods or services under the pretence that they are those of another person. As per Lord Diplock in Erwen Warnink BV v. J. Townend & Sons, 1979 (2) AER 927, the modern tort of passing off has five elements i.e. (1) a misrepresentation, (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trade (in the sense that this is a reasonably foreseeable consequence), and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timet action) will probably do so."....
8(g). Again, coming back to the facts of case in hand, here, plaintiff has not filed even a single product or say photograph of the product to establish/prove that in what way he is using the alleged trade mark CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 14 of 16 "NANO" that is whether it is placed upon the goods/cartons of goods and if placed in what manner it has been placed has not been established by the plaintiff by producing any carton carrying trade mark "NANO" or say a product carrying said trade mark. Actual use of the mark under such circumstances as showing an intention to adopt and use it as a trade mark is the essential test. Also, plaintiff has mentioned in his plaint that use of "NANO" mark make his goods distinctive so that his product be understood by the public that goods are plaintiff's good and he has goodwill, but, again no evidence in that regard led by the plaintiff that is production of any bill, goods, et cetera. It needs to be stressed that the real question, while, deciding such cases is to see how a purchaser who must be looked upon as an average man of ordinary intelligence would react to a particular trade mark or say the particular name/representation/packaging of the good. The burden of proving that the particular trade mark or say the goods is likely to deceive or cause confusion is upon the plaintiff. While deciding such questions of the infringement of Trade Mark/passing off the goods, the visual or phonetic aspect and the reasonable likelihood of any deception being caused by or any confusion arising from the use of the mark must be taken into consideration. Law is clear that confusion in minds of people should be such that same be capable of injuring or damaging the goodwill or reputation of the plaintiff. 8(h). Despite opportunities given, plaintiff has miserably failed to file the relevant pieces of evidence especially with respect to the fact that how the mark "NANO" claimed by him has been depicted by him on the product or on the packaging. Instead, plaintiff is admitting two cartons shown by the defendant as the cartons carrying his goods/goggle/eye wear et cetera during his cross examination with the mark "FORCE". It is not understandable in what way, the claims made by the plaintiff regarding the similarity/use may affect the plaintiff or his business. It can thus be safely CS No. 179/2021 Firdosh Alam Vs. Mohd. Murtza Page No. 15 of 16 summed up that the plaintiff has not been able to establish not only prior user aspect, but, also misrepresentation made by the defendant in course of trade which may help in calculating the injury to business or goodwill of the plaintiff has also not been established/proved by the plaintiff. Though, now plaintiff claimed that the certificate of registration has been issued in his favour, but, despite the liberty being given, plaintiff is unable to amend the plaint incorporating this fact. Accordingly, in the totality of circumstances and in view of above discussion, it can be safely said that the burden of proof lying upon plaintiff in light of preponderance of probabilities/degree of probabilities has not been discharged by him. Thus, both these issues are decided against the plaintiff.
Issue number 3, that is, whether the plaintiff is entitled for a decree of rupees 4 lakhs towards damages and rupees 1 lakh towards compensation, as prayed in the suit? The onus to prove this issue is upon the plaintiff. As, issue bearing numbers 1 and 2 have already been decided against the plaintiff, this issue is also decided against the plaintiff.
9. In the view overall circumstances and also in light of foregoing discussion, the suit of plaintiff is dismissed. Parties to bear their own costs.
Decree sheet be prepared accordingly.
10. File be consigned to Record Room after necessary compliance.
MANU Digitally signed by MANU
VEDWAN
VEDWAN Date: 2024.09.25 16:57:10
+0530
(Manu Vedwan)
District Judge-02 (North East District)
Karkardooma Courts, Delhi.
Announced in the open court
today i.e. 25th September, 2024
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