The assignment of a registered trademark along with its goodwill confers on the assignee the exclusive right to use the trademark and to obtain relief in respect of infringement of the trademark. Therefore, the assignee can continue with the suit for infringement of the trademark.

( 1 ) THE facts leading to this application by the defendant succinctly are that the plaintiff-M/s. Thermofriz Insulations Private Limited instituted a suit for injunction, rendition of accounts and damages etc. , on the allegations that they were registered proprietors of the trade mark "thermofriz" under registration Number 283711/b in Class 19 in respect of non-metallic fibre boards tor use as building material for ceiling and panelling, that the same had been widely advertised having been written in a special style and the plaintiff had acquired a distinctive reputation because of the superiority of their goods. However, the defendant. Shri Mohan Rai trading as Vijay Udyog fraudulently and dishonestly adopted the trade mark THERMOFRI2 in order to gain undue advantage of the reputation of the plaintiff and started passing off his inferior goods as that of the plaintiff.

( 2 ) DURING the pendency of the suit, one Vinod Kumar Bhuwalka, sole proprietor of firm styled M/s. Vijay Chemicals moved an application under O. XXII Rule 10 read with Section 151 of the Civil P. C. (hereinafter referred to as the Code), being I. A. No. 1005/80, for substitution in place of the original plaintiff on the ground that the plaintiff-company had, by a deed of assignment executed on 30th November, 1979, assigned all proprietary rights, title and Interest in the registered trade mark "thermofriz" to him along with its goodwill. It was urged that all the rights arising under the aforesaid registered trade mark had thus devolved on him and he had become entitled to use the same in his own name instead of the plaintiff-company and was also entitled to take all actions against the persons infringing the said trade mark including the defendant. This application was opposed by the defendant, inter alia, on the ground that having assigned the trade mark to Shri Vinod Kumar Bhuwalka, the plaintiff ceased to be dominus litus and as such they were not entitled to continue with the suit and their name be struck off the plaint. Of course, tha applicant was put to proof of the alleged assignment.

( 3 ) ON 1st May. 1980, the learned counsel for the defendant, Shri Anoop Singh stated that he had no objection to the substitution of the petitioner i. e. , Shri Vinod Kumar Bhuwalka in place of the existing plaintiff subject to all just exceptions and without prejudice to the rights of the parties to raise any plea according to law and an order was made accordingly.

( 4 ) THE defendant has now come up with this application under Section 151 of the Code. He has raised an objection that the present plaintiff has no right to continue with this suit for the following reasons;

1. The suit is based on tort and as such there could be no assignment of the right to sue for damages under law. 2. The plaintiff cannot be substituted in a suit for perpetual injunction which is a discretionary relief and arises out of the tortious act, 3. The plaintiff cannot continue with the present suit on the same cause of action, the said cause of action having lapsed on the original plaintiff ceasing to exist. 4. The right to sue could not be assigned under law.

( 5 ) IN reply counsel for the present plaintiff has asserted that all these objections were open to the defendant in opposition to his application for substitution under Order XXII Rule 10 of the Code and he not having raised the same was debarred from raising any fresh ground of objection. Further, according to him, the petitioner having been already substituted in place of the original plaintiff the question of rejection of the plaint does not arise. On merits it is contended that rights under the trade mark in question having been assigned to the present plaintiff, he had acquired all rights to continue with the present suit and the Court, having already exercised its discretion in favour of the plaintiff by substituting him, was precluded from entertaining any such plea. He" asserts that the cause of action is continu