Sanjay Kishan Kaul, J.

1. The principle of forum non convenience emerged as a concept primarily applicable to a foreign forum. The important question whether it will apply to domestic forum in India governed by Code of Civil Procedure, 1908 (hereinafter referred to as the "said Code") has given rise to the present appeals since the appellants have been non suited by the learned Single Judge applying the said principle.

2. The doctrine of forum non convenience which originated in Scotland and thereafter brought to England and United State of America simply put means that if legal proceedings are initiated in a particular forum and that forum is of the opinion that there is a more convenient forum where such lis should be tried, it desists from trying the particular lis. The meaning to be given to “convenience”, and as to whether other parameters also come into play, is another aspect which has developed in respect of this doctrine over a period of time making its application more stringent.

The factual background

3. M/s Glaxo Smithkline Consumer Healthcare Limited is a company incorporated and registered under the Companies Act, 1956 while Horlicks Limited, United Kingdom is a foreign company which owns the registered trade mark Horlicks (hereinafter referred to as "appellants"). M/s Heinz India Pvt Limited (hereinafter referred to as "respondent") is the licensed user of the trademark Complan. There is a commonality in the products to the extent that both these products are positioned as a complete planned food for better growth of the children. The products manufactured under the two brand names became competing products in the market.

4. The appellants being the owners of the trademark Horlicks filed a civil suit in the Calcutta High Court in August, 2004 alleging the disparagement of their product by an advertisement of the respondent who are the licensed users of the trade mark Complan. The Complan advertisement had depicted the two cups including one cup with the alphabet ‘H’. In the said advertisement, Complan cup was shown as growing in height as compared to the cup with the alphabet ‘H’. The appellants succeeded in getting injunction orders against the respondent restraining the respondent to continue with the said advertisement or any other advertisement which reflected adversely on the appellants product Horlicks. It was, however, clarified that the order would not prevent the respondent from publishing the advertisement of its product without showing the cup marked with alphabet ‘H’ in the said advertisement.

5. The respondent introduced another advertisement replacing the alphabet on the second cup with the alphabet ‘X’ which gave rise to contempt proceedings where the judge once again found that the act of the respondent was in disregard of the intent of the injunction and thus directed for deletion of even the brown cup/mug from the disputed advertisement. The matter is stated to be pending in appeal.

6. The second set of litigation was instituted in the same year in the Madras High Court by the appellants alleging that a series of advertisements had been issued throughout the country in August, 2004 disparaging the products ‘Horlicks’ and ‘Boost’ with false and misleading comparison with the product ‘Complan’. The advertisement showed two cups on either side bearing alphabets ‘X’ and ‘Y’ with white colour liquid and chocolate colour liquid which was suggested to be indicative of ‘Horlicks’ and ‘Boost’. The children consuming Complan were shown to grow taller. The Madras High Court vide a detailed order held that the appellants were entitled to the temporary injunction restraining the respondent from using the two cups with the alphabets ‘X’ and ‘Y’ along with Complan cup and that the respondent was not entitled to use the words ‘largest selling brand’.

7. The third suit was instituted by the respondent against the appellants in the Bombay High Court in respect of a moving advertisement of the appellan