Point of law: under Order XXVI Rule 10(2) of the CPC, the report of the Local Commissioner is to be treated as evidence in the suit, forming part of the record. No objections have been filed against the report of the Local Commissioner.

JUDGMENT

1. This is a Regular First Appeal filed under Section 96 read with Order XLI Rule 1 & 2 CPC and Section 151 CPC by the plaintiff before the learned Trial Court. The appeal is against the judgment dated 7th November, 2019 passed by the learned ADJ Patiala House Courts, New Delhi in TM No.204/2017, dismissing the suit.

2. The suit had been filed by the appellant/plaintiff under Sections 134 and 135 of the Trade Marks Act, 1999, and Section and 55 of the Copyright Act, 1957, for permanent injunction restraining the respondent/defendant from violating the appellant's/plaintiffs proprietary rights in its registered 'BURBERRY' trade marks and labels as also against passing off, delivery-up, rendition of accounts etc. The learned Trial Court had granted interim injunction to the appellant/plaintiff vide its order dated 12th October, 2017, also appointing a Local Commissioner.

3. The respondent/defendant filed his written statement on 22nd December, 2017. Issues were framed on 1st February, 2019 which are reproduced herein below for ready reference :-

"1. Whether the suit is filed by duly authorised person?

OPD.

2. Whether the plaintiff is entitled to decree for permanent injunction restraining defendants, their agents, representatives, stockists etc. for using selling, soliciting etc. of impugned goods containing Trade Mark "BURBERRY"? OPP.

3 Whether plaintiff is entitled to decree of injunction restraining the 'defendants and their subjects from dealing with or disposing of the merchandise containing Trade Mark 'BURBERRY". OPP.

4. Whether plaintiff is entitled to decree of delivery up of impugned goods containing Trade Mark 'BURBERRY ? OPP.

5 Whether plaintiff is entitled to Rendition of accounts and damages on account of profits made by the defendant by sale of goods containing Trade Mark 'BURBERRY'? OPP.

6. Relief."

4. Vide the impugned judgement dated 07th November, 2019, the learned Trial Court answered the issue No.1 in favour of the appellant/plaintiff. In respect of the issues 2 to 6, it appears that a common reasoning has been given. The learned Trial Court returned a finding that the appellant/plaintiff had failed to prove that the goods that had been seized by the Local Commissioner were counterfeit products. In other words, the appellant/plaintiff had failed to discharge the onus of proving its case since no expert was examined nor any other evidence produced to establish that the goods were counterfeit. The learned Trial Court concluded that the benefit of doubt would go to the respondent/defendant, and held that the seized goods were not proved to be counterfeit. Accordingly, the suit was dismissed.

5. Though notice of the appeal had been directed to be issued, none appeared for the respondent/defendant despite service.

6. Arguments have been advanced by Mr. Rishi Bansal, learned counsel for the appellant/plaintiff. Reliance has also been placed on the decisions of the Coordinate Benches of this Court in Levi Strauss & Co. v. Rajesh Agarwal, 2018 SCC Online Del 6421 and Louis Vuitton Malletier v. Omi, 2018 SCC Online Del 10343 to submit that the learned Trial Court had erred in concluding that there was no evidence to support the case of the appellant/plaintiff and had erroneously ignored the report of the Local Commissioner where it was recorded that the goods were counterfeit. Since the respondent/defendant had not chosen to file any objections to the Local Commissioner's report, the fact that goods bearing the 'BURBERRY' logo/tag had in fact been seized from the possession of the respondent/defendant, ought to have sufficed for the rights of the appellant/plaintiff to have been protected.

7. It is the submission of the learned counsel for the appellant/plaintiff that even if the Local Commissioner was not examined in the court, the report still formed evidence which could not have been overlooked. Furthermore, learned counsel submitted that the learned Trial Court had also ignored the testimony of PW-1 where she had asser