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High Court Of Delhi
INVEST IMPORT,BEOGRAD (YUGOSLAVIA) - Appellant
Versus
WATKIN MAYORS - Respondent
REGULAR FIRST APPEAL 22 of 1967
Decided On : 12/09/1977
TRADEMARK - INFRINGEMENT - TRADE AND MERCHANDISE MARKS ACT, 1958 - SECTIONS 12(1)(a), 29(4) - PASSING OFF - NECESSARY PARTY TO APPEAL - ORDER 41 RULES 4, 20, 33 CIVIL PROCEDURE CODE - PRELIMINARY DECREE BECOMING FINAL AGAINST ONE DEFENDANT - WHETHER APPEAL BY OTHER DEFENDANT COMPETENT WITHOUT IMPLEADING THE FIRST DEFENDANT AS RESPONDENT.
Fact of the Case:
Plaintiff filed a suit for infringement of trademark and passing off against two defendants. The trial court passed a preliminary decree in favor of the plaintiff and against both defendants. No appeal was filed against the preliminary decree, and it became final between the parties. Subsequently, the trial court passed a final decree for recovery of damages in favor of the plaintiff and against both defendants. One of the defendants filed an appeal against the final decree without impleading the other defendant as a respondent.
Finding of the Court:
The court held that the appeal was incompetent as the other defendant was a necessary party to the appeal and had not been impleaded as a respondent. The court observed that the suit was one and the subject matter was the same, and if the appeal was allowed, it would lead to inconsistent decrees on account of the other defendant not being made a party to the appeal.
Issues: 1. Whether the other defendant was a necessary party to the appeal? 2. Whether the appeal could proceed without impleading the other defendant as a respondent? 3. Whether allowing the appeal would lead to inconsistent decrees?
Ratio Decidendi: 1. The court held that the other defendant was a necessary party to the appeal because the suit was one and the subject matter was the same. The court relied on the principle that if the appeal succeeds which will lead to incongruous position of inconsistent decrees on account of a particular person not being made a party in the appeal, even though he was a party to the suit, the entire appeal must fail. 2. The court held that the appeal could not proceed without impleading the other defendant as a respondent because allowing the appeal would lead to inconsistent decrees. The court observed that the decrees against the other defendant had become final and binding, and if the appeal was allowed, the decree against the appellant would have to be set aside while the decree against the other defendant would remain. 3. The court held that allowing the appeal would lead to inconsistent decrees because the suit was one and the subject matter was the same. The court observed that the decrees against the other defendant had become final and binding, and if the appeal was allowed, the decree against the appellant would have to be set aside while the decree against the other defendant would remain.
Final Decision: The court dismissed the appeal as incompetent.
( 1 ) THE first appeal is directed against the final decree passed by the Additional District Judge, Delhi on August 24, 1966, in favour of the respondent herein and against the appellant and M/s. Raj Kumar Khanna and Sons.
( 2 ) THE respondent, M/s. Watkin Mayors and Co. , filed a suit against the appellant. M/s. Invest Import, Beograd, and M/s. Raj Kumar Khanna and Sons through Raj Kumar Khanna or any other persons incharge of the business of the firm, claiming a permanent injunction against the aforesaid defendents restraining them from marking, importing, selling or offering for sale directly or through their agents or representatives chaff cutter knives and blades and/or other agricultural implements and machines or parts thereof with the name or picture of a Lion or one resembling a Lion. On the allegation that the defendants had marked, imported and sold chaff cutter knives and blades in violation of the plaintiff s registered trade mark thus causing loss to them, the plaintiffs also claimed a decree for Rs. 30,000 as damages with interest at the rate of 6 per cent per annum from the date of the suit till payment against the aforesaid defendants. A preliminary decree was passed in favour of the plaintiffs, the respondent, and against the two defendants, namely, the appellant and M/s. Raj Kumar Khanna and Sons. A local commissioner was appointed. On receipt of the report of the local commissioner and after hearing the objections to his said report a final decree for recovery of Rs. 30,000 was passed against the aforesaid defendants. It is against that decree that the appellant comes in appeal before us.
( 3 ) AS we have said the respondent was the plaintiff, the appellant was the first defendant and M/s. Raj Kumar Khanna was the 2nd defendant in the suit. In the plaint the plaintiffs had, inter alia, pleaded that on or about the end of October and November, 1956 and thereafter, defepdant No. 2 through defendant No. 1 imported chaff cutter knives bearing a trade mark of "lion brand" and wrongfully sold the same in the market in the year 1957 and thereafter. It was alleged that the two defendants conspired and flooded the market with the spurious chaff cutter knives during 1957-58 and the sales of the plaintiff fell very considerably. It was also pleaded, that the defendants, besides other quantities, imported 40,000 pairs of the above referred chaff cutter knives during the aforesaid period. The plaintiff further contended that the defendants had been requested to desist from selling the said spurious goods but they did not listen. On the other hand, the defendants openly declared and affirmed a right in them to import in India and sell and offer for sale in the market chaff cutter knives and blades and other agricultural implements and machines and parts there- of with the name and picture of a lion or one resembling a lion and also to mark the said material or to have them marked for purposes of sale with the name and picture of a lion or one resembling it.
( 4 ) THE suit was tried by the then District Judge, Delhi. Defendant No. 2 did not appear in court despite service. The suit was, therefore, proceeded ex parte against it. Defendant No. 1 put in appearance and filed a written statement asserting that the plaintiffs did not have any valid registered trade mark as claimed nor did it in any way infringe the trade mark of the plaintiffs. It was not disputed that the goods were imported into India by the defendants and marketed but it was denied that there was any conspiracy between the defendants to infringe the trade mark, if any, of the plaintiffs or that the sales by the defendants in any way adversely affected the business of the plaintiffs. A right to , import, market and sell goods in Indian market was claimed.
( 5 ) AFTER the plaintiffs had filed a replication reiterating the earlier stand, the trial court framed eight issues. It was agreed by the parties before the trial court on June II, 1960
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