(VIKRAMAJIT SEN, J.)

1. In the Pfizer Appeal the Plaintiffs have assailed the Order dated 16.7.2008 of the learned Single Judge holding that the High Court of Delhi lacks territorial jurisdiction. The impugned Order returns the Plaint for filing in the appropriate court. The dispute centres upon the averments made in the Plaint and the response thereto contained in the Written Statement.

2. P.M. Diesels litigation has remarkable annals. For the present purposes the relevant pleadings are found in paragraph 30 of the Plaint wherein it has, inter alia, been asserted that “the goods of the parties bearing the impugned trade marks are also sold in the Union Territory of Delhi”. The interim injunction had been declined on 10.3.1998 principally for the reason that the Plaintiff/Appellant had failed to establish the territorial jurisdiction of the courts in Delhi. In the Appeal the Division Bench set aside the Order and the lis was carried further to the Supreme Court. Their Lordships noted that one of the three contentions raised was that the Defendants were selling the offending goods in Delhi, and that the Delhi High Court did not advert to it. Indeed, the Supreme Court remanded the matter to the Delhi High Court for it to answer this aspect of the dispute opining that questions of fact “required to be properly determined in case evidence is led by the parties”. Eventually, the Defendant filed the application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC for short) for dismissal of the Suit which was allowed but after treating it under Order VII Rule 10 (return of the Plaint). It is this Order dated 20.8.2008 which has been assailed before us.

3. The respective pleadings in the Pfizer Enterprises action relevant for the present purposes are produced in juxtaposition:-

Plaint Written Statement

17. This Hon’ble Court has necessary jurisdiction to entertain and try the present Suit, by virtue of Section 134(1) of the Trade Marks Act, 1999 as the Plaintiffs products including DALACIN C, are available for sale & distribution within the jurisdiction of this Hon?ble Court. Further, the 17. That the contents of para 17 of the plaint are wrong and emphatically denied and the plaintiffs are put to strict proof of their said averments. It is submitted that this Hon’ble Court has no territorial jurisdiction to entertain and try the present suit in as much as none of the plaintiffs are the „registered proprietor of the aforementioned trade marks in terms of Section 2(1)(v) of the Trade Marks Act, 1999 and the present suit for an alleged infringement is liable to be dismissed on this account alone. Even an alleged action of passing off is not maintainable in as much as the trade marks, get-up, placement, design, prices, packaging, etc. of the two competing products is completely different and one can by no stretch of imagination be confused/passed Defendants’ products under the impugned mark are available for sale in Delhi and therefore, the cause of action has also arisen within the jurisdiction of this Hon’ble Court. off as the other particularly in view of the fact that both the medicines are scheduled drugs and there is neither any possibility nor even any remote probability of one being mistaken for the other. From the array of parties as disclosed in the plaint it is clear that the both the plaintiff and the defendant carry on their business in Mumbai and therefore this Hon’ble Court would have no territorial jurisdiction to entertain and try the present suit. Reply to the preceding paragraph may be read as a reply to this paragraph also.

4. It would be of advantage to recall Order VI Rule 2 of the CPC which mandates that the evidence by which the material facts are to be proved ought not to be pleaded. Rule 4 prescribes that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may