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Home > Judiciary > Civil Law > Scopew of Section 10 and Order 39 Rule 1 & 2 in Trade mark Suit



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Scopew of Section 10 and Order 39 Rule 1 & 2 in Trade mark Suit

Posted on 01 December 2010 by G.Aravinthan

Court

Madhya Pradesh High Court



Brief



Citation

Jagdamba Oil Agency vs K.S. Oils Ltd



Judgement

 

Rajendra Menon, J.

1. Challenge in this petition under Article 227 of the Constitution is made to an interlocutory order dated 27-6-2005 passed by learned Distt. Judge, Morena in Civil Suit No. 3-A of 2005.

2. Learned Distt. Judge, has allowed an application for stay of the suit in question pending before him under Section 10 of CPC, thereafter, has proceeded to consider and decide certain applications interlocutory in nature filed under Order 39 Rules 1 and 2 of CPC by the respondents, petitioner feels aggrieved by the aforesaid action of learned Distt. Judge, Morena.

3. It is the case of the petitioner that the respondent No. 1 has filed the suit in question being Civil Suit No. 3-A of 2005 which is pending in the Court of Distt. Judge Morena it is alleged by the plaintiff in the aforesaid suit that the petitioner/defendant in the suit so also the plaintiff are engaged in manufacturing and sale of mustard oil and both are using a common trade mark, i.e., ("double Sher"). It is the case of the defendant/respondents that they are using the aforesaid trade mark since 1996, an application for registration of aforesaid trade mark is under consideration before the Competent Authority and they have acquired proprietary right and interest over the said trade mark. Inter alia contending that the respondents be restrained from using the aforesaid trade mark in the area of the plaintiff, suit in question has been filed.

4. Petitioner contends that on the same facts and circumstances, they have also initiated proceedings in the Court of Distt. Judge, Darjeeling under Section 142 of the Trade Mark Act and have sought various reliefs in the said suit filed by them in Darjceling. An objection was raised and taking recourse of the provision of Section 10 of CPC, petitioner prayed for stay of trail of the present suit filed by the respondents pending before Distt. Judge, Morena. The application under Section 10 was taken up for hearing by the learned Distt. Judge Morena and by the impugned order, he has recorded a finding that the issues involved in both these cases, i.e., case pending before him so also under Section 142 before Distt. Judge, Darjeeling, involve similar questions and are substantially of the same nature and finding so, has stayed proceedings of the trial of the present suit pending before him. However, after having ordered so, learned Distt. Judge has proceeded to take up for consideration certain interlocutory applications pending in the suit.

5. It is the case of the petitioner that once learned Distt. Judge has come to the conclusion that conditions stipulated under Section 10 of the CPC for stay of the suit is attracted and has passed the order staying proceeding of the trial, learned Distt. Judge, it was argued by the petitioner's Counsel has committed grave error in proceeding for consideration of interlocutory application including application under Order 39 Rules 1 and 2 of CPC. Inter alia contending that once proceedings in a trial of the suit is stayed exercising jurisdiction under Section 10 of CPC, learned Court below can not proceed to decide any other interlocutory application, petitioner is before this Court seeking a direction to the learned Distt. Judge, not to proceed with hearing of any application in the pending suit trial of which, stands stayed by the impugned order. In support of this contention, Shri Ankur Mody, learned Counsel representing petitioner, invited my attention to the following judgments :-

(i) Pukhraj D. Jain v. G. GopalLakmhna (2004) SCC 251;

(ii) Manilal v. Shri Meenu Singhania 1998 Volume 2 MPWN 198; and

(iii) Sujanbai v. Moliram .

On the basis of aforesaid judgments, it is argued that even for deciding an application under Order 39 Rules 1 and 2 of CPC, certain issues which are involved in the previous suit filed by the petitioner before Distt. Judge, Darjeeling will have to be decided, the same be not permissible under law, it is submitted that learned Distt. Judge, be restrained from proceeding to decide the application under Order 39 Rules 1 and 3 of CPC.

6. Refuting the aforesaid, Shri Mriglani, learned Counsel representing respondents taking me through the suit filed by respondent in the Court of District Judge Morena Annexure P-2 so also the suit under Section 142 of the Indian Trade Mark Act, 1999 Annexure P-5, filed by the petitioner before Distt. Judge, Darjeeling, inviting my attention to the provisions of Section 142 of the Trade Mark Act, has argued that under law, both the proceedings are entirely different in nature and therefore no case for stay of the proceeding was in fact made out. However, apart from the aforesaid contention, Shri Mriglani has pointed out that it is well settled in law that the term "trial" used in Section 10 of CPC is limited in meaning and it only refers to final hearing of the suit and decision of the suit after such final hearing and it does not prevent hearing of interlocutory applications like application for injunction. Shri Mriglani argued that even if the trial of the suit is stayed under Section 10 of CPC, the Court is not precluded from taking up for hearing interlocutory applications including an application for injunction under Order 39 Rules 1 and 2 of CPC. In support of the aforesaid proposition, Shri Mriglani invited my attention to the observations made by the Bombay High Court in the case of Sujanbai (supra) relied upon by Shri Ankur Mody and also invited my attention to the following judgments:-

(i) Indian Bank v. M.S. Co-operative Federation ;

(ii) Rameshwer v. Vth Addl. Distl. Judge, Basti and Ors. AIR 1999 Allahabad 1;

(iii) Escorts Construction Equipment Ltd. and Ors. v. Action Construction Equipment Pvt. Ltd. and Anr. AIR 1999 Delhi 73;

(iv) Baburao Vithalrao Sulunke v. Kadarappa Prasappa Dabbannavar and Anr. AIR 1974 Mysore 63;

and two judgments of this Court in the case of:-

Bhuralal Tejpal and Ors. 1982 MPLJ 312 and Shri Mahila Grih Udyog Lijat Papad v. Smt. Usha Sontake 1999 (I) MPJR 130.

7. That apart, it was contended by Shri Mriglani that in a petition under Article 227 of the Constitution, interference can be made by this Court only if it is found that the order impugned is passed in total disregard to and in contravention of settled principle of law, statutory provision and is perverse to such an extent that no prudent person can record the impugned finding. Inter alia concluding that the order passed in the facts and circumstances of the case is not of such a nature that interference in a petition under Article 227 of the Constitution is called for, Shri Mriglani inviting my attention to a judgment of the Supreme Court in the case of Naresh Shridhar Mirajkar and Ors. v. Slate of Maharashtra , had

argued that in the facts and circumstances of the case, the order impugned does not call for any interference in these proceedings under Article 227 of the Constitution.

8. I have heard learned Counsel for the parties and perused the record. So far as merit of the conclusion with regard to maintainability of the suit filed by the petitioner under Section 142 of the Registration of Trade Mark Act or otherwise are concerned, I am of the considered view that this question need not be looked into in the present proceedings as they are not relevant for deciding this petition. In this petition, the only short question involved is as to whether the direction given by the learned Court for proceeding to decide the interlocutory application is in accordance with law.

9. Learned Distt. Judge, Morena having considered rival contentions has recorded a finding in Paras 9 and 10 in the impugned order that the proceedings pending before him so also before Distt. Judge at Darjeeling are similar in nature, question involved in both the cases are identical and therefore, has stayed trial of the suit pending before him. Thereafter, he has ordered that he will take up for hearing certain interlocutory application filed by the plaintiff/respondent and has fixed the case for further proceeding. The question is that whether the same is permissible. Even though, elaborate argument has been advanced by both the side, I am of the considered view that the question stands settled and concluded by series of judgments. Supreme Court in the case of lndian Bank (supra), has considered the aforesaid question in Paras 8 and 9 in the said judgment meaning of the word "trial" as contained in Section 10 has been interpreted and it has been held by the Supreme Court that the object of prohibition contained in Section 10 is to prevent concurrent finding from simultaneous trial of two parallel suits. It has been held by Supreme Court that there is no bar to the institution of a suit nor is there any bar for passing interlocutory orders, such as orders for consolidation of the suit, attachment and appointment of receiver. It is clear from the observations made by Supreme Court in Paras 8 and 9 of the aforesaid judgment even if the trial of the suit is stayed exercising power under Section 10 of CPC, the Court is not precluded from proceeding to hearing of interlocutory application like application for temporary injunction. The aforesaid view of the Supreme Court is consistently followed in all the cases relied upon by Shri Mriglani. The same view is reiterated by Allahabad High Court in the case of Rameshwar (supra), in Para 6 wherein, it is held that even after stay of proceeding of a suit under Section 10, consideration of interlocutory matters can be made by the Court. Similarly, in the case decided by Delhi High Court and Mysore High Court, the same view is upheld. Two Benches of this Court have also considered the said question in the case of Bheralal Tuja Prasad (supra), it has been held by this Court that application's for temporary injunction or appointment of receiver can be taken up even after orders are passed staying proceeding in a trial. In the case of Shri Mahila Grih Udyog (supra), specific question with regard to consideration of an application for temporary injunction under Order 39 Rules 1 and 2 of CPC and the implication of stay of a suit under Section 10 of CPC was considered and learned Judge has held in clear term that even after staying proceeding pertaining to trial of a suit, application for temporary injunction under Order 39 Rules 1 and 2 of CPC can be taken up for hearing.

10. Considering the settled legal principle that emerges from a combined reading of the aforesaid judgments, I am of the considered view that learned Distt. Judge, Morena has not committed any error in proceeding to decide the interlocutory application even after staying trial of the suit under Section 10 of CPC. The order passed by learned Court is strictly in consonance with the settled legal principle and there being no apparent error of law the order impugned does warrant interference exercising jurisdiction in a petition under Article 227 of the Constitution. Accordingly, I find no ground to interfere in the matter.

11. The arguments advanced by Shri Ankur Mody to the effect that even for deciding application under Order 39 Rules 1 and 2 of CPC, the questions which are substantially in issue in earlier suit filed by the petitioner at Darjeeling will have to be considered and decided, is not to be taken into consideration by this Court in these proceedings but these are the factors which are to be considered by the Court concerned which decide application under Order 39 Rules 1 and 2 of CPC. Aforesaid arguments are to be advanced by the petitioner before the Court when the application for injunction is taken up for consideration and at this stage on these grounds, this Court can not pre-suppose that for deciding the application under Order 39 Rules f and 2 of CPC, the Court is required to decide certain issues which are substantially in issue in the pending proceedings at Darjeeling. On these grounds, interference at this stage in this petition can not be made.

12. Accordingly, finding no ground to interference in the matter, appeal is dismissed without any order as to the costs.





Tags :- scopew section 10 order 39 rule 1 & 2 trade mark suit




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