JUDGMENT :

Krishna Rao, J.

1. The defendants have filed the present application praying for framing of preliminary issue:

“Whether this Court has territorial jurisdiction to entertain, try and determine the present suit?”

2. The plaintiff has filed the suit against the defendants, for permanent injunction, restraining the defendants and each of them, their servants, agents, assigns, distributors, stockists and dealers from in any way or any manner infringing the plaintiff's trademark “KHAITAN” or any other words identical or deceptively similar to the trademark of the plaintiff.

3. Learned Advocate representing the defendants submitted that the defendants are carrying on business outside the jurisdiction of this Court and admittedly the defendants are not selling the product having trademark “KHAITAR” within the jurisdiction of this Hon'ble Court. He submits that as per the averments made in paragraph 52 of the plaint, the plaintiff has pleaded that the defendants are selling products having mark of “Khaitar” in and around Hyderabad and Telangana which is outside the jurisdiction of this Court and the plaintiff has also pleaded that the acts of passing off has been committed and is continuing to be committed outside the jurisdiction of this Court.

4. Learned Advocate for the defendants submitted that the plaintiff has pleaded that the cause of action of the plaintiff relating to passing off has arisen outside the jurisdiction of this Court but the plaintiff has sought for leave under Clause 14 of the Letters Patent Act, 1865 to join the separate cause of action to institute the present suit before this Court. The defendants further contended that the trademark of both the parties as “Khaitan” and “Khaitar” are registered under Clause 11 and thus suit for infringement under section 28 (3) of the TRADE MARKS ACT , does not lie.

5. The defendants further contended that in the show-cause notice dated 22nd July, 2020, the defendants had duly informed that the defendant no. 1 is permitted to use the trademark “Khaitar” and the defendant no. 2 is the registered proprietor but the plaintiff has not filed any application for cancellation of registration and removal of registered trade mark from the register of the Registrar of Trade Marks before the concern authorities. The defendants contended that the plaintiff and the defendant no. 2 have obtained their registered mark under Clause 11 as “Khaitar” and “Khaitar” respectively and thus this Hon'ble Court has no jurisdiction to try and determine the suit filed by the plaintiff.

6. Mr. Subhasish Sengupta, learned Advocate representing the defendants relied upon the judgments (2022) 8 SCC 401 ( Saranpal Kaur Anand v. Praduman Singh Chandhok and Ors.) , (2018) 14 SCC 1 ( Madiraju Venkata Ramana Raju v. Peddireddigari Ramachandra Reddy and Ors.) , (2016) 2 SCC 683 ( S. Syed Mohideen v. P. Sulochana Bai ), 2023 SCC Online Del 4185 ( Vasundhara Jewellers Pvt. Ltd. v. Vasundhara Fashion Jewellery LLP and Another), 2017 SCC Online Bom 7327 (Harman Overseas and Others v. Dongguan TR Bearing Company Limited) and 2016 SCC Online Cal 11849 ( Skipper Limited v. Akash Bansal & Ors.) and submitted that if the Court is satisfied that ex-facie, the suit is not maintainable or that the act of filing a suit is an abuse of process of law, the Court will be justified in exercising the discretion by refusing to grant leave under Clause 14 of the Letters Patent. He submits that if after considering the reply filed by the defendants, the Court is satisfied that grant of leave under Clause 14 of the Letters Patent will amount to