The legal principle established is that a suit can proceed against a defendant in their assumed name under which they carry on business, as permitted by O. 30 R. 10 CPC.

( 1 ) THROUGH this petition which is under Article 227 of the Constitution of Indian petitioner is seeking quashing of order dated 20. 8. 2004 passed by learned Additional District Judge directing the plaintiff to amend his plaint and incorporate facts disclosing the identity, legal character and status of the defendant so that court can come to conclusion that the defendant being sued is a person , even before ordering issuance of summons of the notice.

( 2 ) BRIEFLY stated facts leading to this petition are that, petitioner herein filed a suit under Sections 27 (2), 28 and 29 read with sections 134 and 135 of the Trade Marks Act, 1999 and sections 51 and 55 of the Copyright act, 1957 alleging that the petitioner has been manufacturing analgestic pharmaceutical product containing 10 mg of Dicyclomine Hydrochloride ip 65 mg of Dextropropoxyphene Hydrochloride BP and 400 mg of acetamnophen IP. The plaintiff has been using spasmoproxyvon as their trade mark for last 26 years and by now they have acquired enormous good will in the market which is evidenced by gradual increase in the sales, year-wise details of which are given in para 19 of the plaint. The plaintiff has been filing suits against various business concerns who are trying to copy their trade mark under different names and ex parte injunctions have been issued in all such cases, details whereof are given in para 16 of the plaint. In para 17 of the plaint it is alleged that in the 1st week of August 2004, the plaintiff came, to know that the defendant has launched a similar pharmaceutical product combination bearing deceptively similar trade mark in respect of packagings, as well as a fraudulently similar trade mark spasmo PREXYMON . The get-up of the packagings in respect of the carton and the blister pack including the impugned trade mark spasmo PREXYMON of the defendant alongwith the identical blue coloured capsules is deceptively similar to that of "the plaintiff which fact is evident on a bare perusal of the two competing blister packings/cartons and the trade marks. Plaintiff had filed suit seeking perpetual injunction restraining the defendant from manufacturing, selling their pharmaceutical preparations under the trade mark spasmo prexymon or any other mark/ marks which are identical/ deceptively to these of the plaintiff and other ancillary reliefs. It appears, that learned additional District Judge, to whom suit was assigned for disposal, had some doubts as to the defendant being a legal person and therefore even before ordering issuance of process, learned Additional Judge, vide impugned order, directed the plaintiff to amend his plaint and incorporate facts disclosing the identity, legal character and status of the defendant so that court can come to conclusion that defendant being sued in a person . Feeling aggrieved, the petitioner has preferred this petition.

( 3 ) SINCE the processes had not yet been issued in the case, the question for consideration is only as to whether the court could give such a direction at this stage. Since no processes has been issued to the defendants in the suit as yet, the issuance of notice to the respondent in this petition, at this stage, was thought to be unnecessary. A perusal of the impugned order will reveal that the learned Additional District Judge was obsessed with the idea that the defendant sued has to be a legal person and unless the plaintiff makes disclosure of relevant facts in this regard the suit could not be proceeded with. This is clearly in conflict with the provisions of O. 30 R. 10 CPC which permits suit being filed against the defendant in their assumed name under which they carry on the business. Such assumed name need not be a legal person. The very object of O. 30 R. 10 is to catch up with a person who carry on trade in some assumed name and not in their real name, as has been held in case of Rajendra Parsad oi1 Mills, Kanpur and another v. Smt. Chunni Devi and Ors. , AIR 1