Valmiki J. Mehta, J.

1. This first appeal is filed under Order 43 Rule 1 (a) CPC against the judgement of the trial court dated 01.02.2013 by which the suit plaint filed by the appellant/plaintiff has been returned under Order 7 Rule 10 CPC for being presented in the Court of correct territorial jurisdiction. I note that the suit plaint has been returned not at the stage of final arguments, but at the initial stage of pleadings and where no evidence is led on behalf of the parties.

2. The subject suit filed by the appellant/plaintiff was a suit claiming rights in the trademark ‘HARI’ and ‘HARISONS’ used for seeking confectionary, spices etc. Relevant claims were of injunction against passing off, infringement, etc. The relevant para in the plaint with respect to courts in Delhi having territorial jurisdiction was para 23 which reads as under:

“This Hon’ble Court has the territorial jurisdiction to try and adjudicate upon the prese1nt suit. The defendants are committing the impugned acts within the jurisdiction of this Hon’ble Court by conducting, soliciting, selling and marketing their impugned goods and business under the impugned trade mark/label/trade name in Big Bazar, Spencer in South Delhi, North Delhi besides other parts of the country. The plaintiff is carrying on its said goods and business under the said Trade Mark/label in Delhi. The plaintiff’s trade mark registrations are effected from the Trade Marks Registry, Delhi. The defendants have admitted in their reply to cease and desist notice that their goods under the impugned trade mark/trade name are available and sold in South Delhi, North Delhi etc. The cause of action in whole and/or in part has arisen within the jurisdiction of this Hon’ble Court. Further the defendants have filed application for registration of impugned trade mark on all India basis including Delhi. The plaintiff has tremendous goodwill and reputation in its said trademarks/labels in South Delhi, North Delhi which is being tarnished by defendants impugned activities of the Defendants in Delhi. The plaintiffs said proprietary rights are being prejudicially affected in Delhi due to the defendants impugned activities. This Hon’ble Court, as such, has the jurisdiction to try and adjudicate the present suit by virtue of Section 62 (2) of the Indian Copyright Act 1957 and Section 134 of the Trade Marks Act”.

3. By the impugned judgment the trial court has arrived at a finding on a disputed question of fact by holding that Courts at Delhi do not have territorial jurisdiction because the trial court holds that the goods are not being sold by defendant at Delhi. This conclusion given by the trial court is a finding of fact only on the basis of pleadings and whatever documents exist on record without the plaintiff being given opportunity to prove his case of the Courts at Delhi having territorial jurisdiction during trial by leading evidence with respect to sale of the goods by the defendants in Delhi. It is also to be noted that trial court has for some inconceivable reason ignored the reply given by the defendants/respondents in reply to the legal notice/seize and desist notice of the plaintiff dated 20.08.2007. The respondents/defendants admitted to sale of the goods in establishments like Big Bazar, Salasar Spencer etc., which are situated in Delhi as per the case of the appellant/plaintiff.

4. The issue in the present case is whether plaint can be returned under Order 7 Rule 10 CPC by deciding a disputed question of fact without allowing parties to lead evidence. Law in this regard is settled by a Division Bench of this Court in the case of Pfizer Enterprises Sarl Vs. Cipla Ltd. 2009 (39) PTC 358 (Del.) (DB) which holds that such disputed questions of fact cannot be decided before allowing the parties to lead evidences to support their respective cases. This judgement has been referred to by me in the judgment delivered in the case of M/s Kapoor Saws Manufacturing Company & Anr. Vs. M/s