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4(2). The circumvent order of the Division Bench dated 04.10.2010 and to indirectly achieve what it could not directly achieve, this application is now filed. The competency of the deponent Murali Raman has filed proof affidavit is denied.
4(3). With reference to paragraph 2 of the affidavit, it is stated that the plaintiff has sought a declaration that its product TVS Flame which uses two spark plugs with screw fitted sleeve and three values does not infringe the Defendant's patent No.195904. The plaintiff seeks this declaration of non infringement on two counts - first on the ground that the defendant's patent No.195904 is itself invalid and second on the ground that even if valid, the plaintiff's product is different from the defendant's patent. The plaint proceeds on the aforesaid basis and the plaintiff has taken upon itself the burden of making good its aforesaid contentions.
7(2). The applicant/plaintiff has also filed another application being A.No.22558/2011 for reserving right to lead in evidence on the issue of invalidity of the respondent's patent. The applicant on realising that the said application is bound to fail has come out with the instant application to circumvent the order passed by the Division Bench of this Hon'ble Court and to indirectly achieve what it could not directly achieve in view of the order dated October 4, 2010 which is nothing but the abuse of process of law which ought not to be entertained.
7(5). The applicant is well aware that the said application is not maintainable and would fail in their attempt, has filed the present application to achieve indirectly what it cannot achieve directly. The present application is devoid of any merit and is liable to be dismissed and is in fact an abuse of process of law.
7(6). The respondent does not dispute the fact that some of the issues are common and some of the evidence to be let in would also be common. However, the applicant has come out with this application as an afterthought only with a mala fide intention to circumvent the order of the Division Bench of this Hon'ble Court wherein the applicant was directed to let in evidence on the issue of invalidity of respondent's patent as the applicant has specifically sought for a relief for a declaration of non infringement. The applicant who has not preferred any appeal against the said order and has in fact submitted itself to the order of Division Bench has come out with the instant application seeking for a joint trial. The applicant's main contention is on the premise that the majority of the issues are directly related to the infringement of the respondent's patent and thereby indirectly shifting its burden on the issue of invalidity on the respondent and to make the respondent herein to let in evidence on the issue of invalidity. The applicant herein is attempting to reassess the order passed by the Division Bench of this Hon'ble Court and the same deserves to be dismissed at the threshold. In view of the above said circumstances, the application may be dismissed with compensatory costs.

Whether application is filed to circumvent the Division Bench order:

38. It is argued by the defendant's side that the present application is filed to circumvent the Division Bench order by stating that the plaintiff is required to let in evidence on the issue of alleged invalidity as well as alleged non infringement. In the considered view of this Court, there is no material showing that the present application is an attempt to circumvent the order of the Division Bench. The rights available to the parties under this provision were not touched by the Division Bench.