The main legal point established in the judgment is the entitlement to seek summary judgment without filing an application under Order XIIIA of the CPC, as provided under the Delhi High Court (Original Side) Rules, 2018, Chapter XA Rule 1.

Rajiv Sahai Endlaw, J.

The two plaintiffs i.e. Mallcom (India) Ltd. and Mallcom Safety Pvt. Ltd., being the proprietors of the registered trade mark Tiger (Label)", in respect of safety equipment, more particularly safety shoes, have instituted this suit to restrain the defendants no.1 and 2 i.e. Rakesh Kumar and Manoj Kumar from carrying on business in the name and style of defendant no.3 M.K. Sales Corporation and the defendants no.4 and 5 viz. Adeeba International and Alina Exim, from infringing the said trade mark of the plaintiffs and passing off their goods under the mark Tiger and for ancillary relief’s.

2. The suit came up first before this Court on 5th May, 2016 when, while issuing summons thereof, vide ex parte ad-interim order, the defendants were restrained from manufacturing, selling or otherwise dealing in goods under the trade mark Tiger or any other mark similar or deceptively similar to the plaintiffs" mark Tiger, and commissions were also issued for seizure of the infringing goods. The defendants no.4 and 5 filed an application under Order XXXIX Rule 4 of the CPC. Though the same counsel appears for all the defendants, separate written statements have been filed by defendants no.1 to 3 on the one hand and the defendants no.4 and 5 on the other hand and to which replications have been filed by the plaintiffs. The defendants no.4 and 5 filed IA No.11941/2017 for amendment of their written statement and which application was dismissed vide order dated 5th October, 2018.

3. The counsel for the plaintiffs, on 17th January, 2019 contended that though the suit was ripe for framing of issues but the plaintiffs were seeking summary judgment. On enquiry, whether any application under Order XIIIA of the CPC as applicable to commercial suits, had been filed, the answer was in the negative. However, the counsel for the plaintiffs on 17th January, 2019 referred to the amendment vide Notification dated 16th October, 2018 with effect from 1st November, 2018 to the Delhi High Court (Original Side) Rules, 2018, particularly to the new Chapter XA inserted therein and Rule 1 titled "Summary Judgment" whereof provides "At the time of Case Management Hearing, a Court, may of its own, decide a claim pertaining to any dispute, by a summary judgment, without recording oral evidence" and contended that by the said amendment to the Rules, the need for filing an application for summary judgment under Order XIIIA of the CPC had disappeared. It was however enquired from the counsel for the plaintiffs, whether Order XIIIA of the CPC, providing for an application to be made for a summary judgment, had been done away with. Upon the counsel for the plaintiffs replying in the negative, it was further enquired that, since there was obviously an inconsistency in Order XIIIA Rule 4 of the CPC prescribing the procedure for applying for summary judgment and Chapter XA Rule 1 of the Delhi High Court (Original Side) Rules, which of the two will prevail. The counsel for the plaintiffs contended that there is no inconsistency. Granting liberty to the counsels to address on the said aspect, the hearing was adjourned to 14th February, 2019.

4. The application of the plaintiffs for interim relief and the application of the defendants no.4 and 5 under Order XXXIX Rule 4 of the CPC were also for consideration on 17th January, 2019. However, the counsel for the defendants contended that the defendants had preferred a Special Leave Petition (SLP) against the order 5th October, 2018 of dismissal of the application of the defendants for amendment of the written statement but which SLP had not been listed till then and sought adjournment. Adjournment was denied and after hearing the counsels, the ex parte adinterim order was made absolute till the decision of the suit.

5. The counsel for the plaintiffs as well as the counsel for the defendants were heard on 14th February, 2019, on the entitlement of the plaintiffs to seek summary judgment, without filing an