S.L. Bhayana, J.

- This application has been moved by the applicant, defendant No.2 in the CS (OS) No. 1251/07, thereby seeking rejection of the plaint under Order VII Rule 11 of CPC as being barred by or opposed to law.

2. To support this application, applicant has submitted that, Ms. Gopika Pant has acted in combined role as to constituted attorney pursuant to the power of attorney and as an advocate in same cause which is opposed to law. It is further asserted by the applicants that DSK legal, Law firm appointed by the constituted attorney Ms. Gopika Pant is also a partner of the said law firm and has been acting as advocate of the plaintiff as well and thus performing combined function of advocate as well as the constituted attorney of the suitor which is opposed to the mandate of law, as deposition made by the said constituted attorney on behalf of the non-resident clients is not in conformity with law as it amounts to conflict of duty and interest, and would result in miscarriage of justice. He has further prayed that in view of the above mentioned irregularity, plaint is liable to be rejected learned counsel for the applicant also has relied upon the judgment of Bombay High Court in Oil and Natural Gas Commission v. Offshore Enterprise Inc., AIR 1993 Bombay 217.

3. The only short question which arises for consideration is whether the issue of dual capacity as raised by the applicants vitiates the whole proceedings or not?

4. Learned counsel for the plaintiff has vehemently opposed the present application and submitted that issue of dual capacity as raised by the defendant No.2 is totally misplaced on account of the fact that constituted attorney, namely, Ms. Gopika Pant had never appeared before this Court as representing the plaintiff as an advocate and the advocates who had appeared to attend the matter before the Court were neither partners nor employees of the law firm in which Ms. Gopika Pant is a partner and all the advocates who, have appeared before the Court are all acting as advocates in their own individual capacity.

5. I have heard the objections and explanations of both the parties. A few facts leading to the present dispute as disclosed in the present application, in brief, are that plaintiff/non-. applicants had filed a suit bearing No. 1251/07 for infringement of trade mark bearing registration No. 74905 for three ring device of writing instrument registration No. 1152812 for word mark STARWALKER and for passing off in relation to the plaintiffs trademark. It is evident from the record that this Court vide its interim order dated 13/7/07 and its final order dated 19/05/08 restrained the defendants/applicants from using the three ring device or device which is deceptively similar to the three ring device of the plaintiffs writing instrument. Defendants have filed an appeal against the final order, which was also dismissed vide order dated 15/01/09. Defendants then filed a review petition against the said order which was also dismissed by court vide order dated 20/03/09 having found no merit.

6. To support his submission learned counsel for the non-applicants has relied upon the following judgments:(1) Columbia Pictures Industries, Inc and Ors v. Site Cable Network Ltd., 94(2001) DLT 177: 2001 (60) DRJ 11(DB);

(2) Mother Dairy Fruit & Vegetable Pvt Ltd v. Gujarat Co-operative Milk, 2006(32) PTC 593 (Del);

(3) Microsoft Corporations v. Mr. G.V. Rao, CS(OS) 1168/05 decided on 15/01/09;

(4) Union Bank of India v. Naresh Kumar & Ors., (1996) 6 SCC 660;

(5) Mars Incorporation v. Mares Confectioneries Pvt., 2007 (34) PTC 642 (Mad): 2007 (34) PTC 642 [Mad]; and (6) Uday Shankar Triyar v. Ram Kalewar Prasad Singh & Anr., (2006) 1 SCC 77.

7. After considering all the facts and submissions made by the counsel of the parties, I am of the view that the issue of dual capacity as raised by the applicants is mere a technical irregularity, which does not affect the root cause of the issue as raised in the original suit, it