The main legal point established in the judgment is the interpretation of the provisions of Section 62(2) of the Copyright Act and its impact on the jurisdiction of the court for infringement of trademark, design, and passing off.

JUDGMENT :

Reva Khetrapal, J.-

1. By this order I propose to dispose of the above-mentioned two applications, both of which have been filed by the defendant seeking to oust the present suit from the jurisdiction of this Court. Though the first application is styled as one under Order VII Rule 11 of the CPC and the second as one u/s 21 of the Code, de hors their garb both applications are under Order VII Rule 10 of the Code for return of the plaint on the ground that this Court is not clothed with territorial jurisdiction to entertain the suit.

2. Although initially counsel for plaintiff sought to urge that Section 21 of the CPC could be invoked only in the appellate and revisional forum and not in the original forum and, in any event, precludes a prayer for return of the plaint, subsequently he contended himself by urging that without prejudice to his aforesaid contentions and assuming both applications to be a case of "defective labelling", the merits of the defendant's plea of lack of jurisdiction may be gone into in the backdrop of the averments made in the plaint alone, without looking into the defense of the defendant.

3. Order VII Rule 1 of the Code makes it imperative for the plaintiff to incorporate in the plaint the particulars as to the facts Constituting the cause of action and the facts showing the court has jurisdiction. It is, Therefore, trite that the question of jurisdiction has to be decided by looking into the averments made in the plaint and not by the defense which may be set up by the defendant. It is also legally well-established that as cause of action is a bundle of facts which, if arises within the jurisdiction of the Court concerned empowers the Court to entertain the matter, it is not enough to look only at the paragraph of plaint concerning cause of action (or any other paragraph in isolation). The entire plaint must be taken into consideration and viewed in its entirety to determine the conferment of jurisdiction in the court concerned. Bearing in mind these broad principles, I embark upon an examination of the plaint.

4. It is relevant to mention at this juncture that the present suit is a composite suit under the following enactments:

a) Trade and Merchandise Marks Act, 1958 claiming infringement of trademark based on right in the trade mark and passing off.

b) Copyright Act, 1957 for infringement of registered and unregistered copyright and

c) Designs Act, 2000 for infringement of registered design

5. The plaintiff has made allegations against the defendant which are incorporated in paragraphs 19, 20 and 21 of the plaint, which are reproduced as under:

19. That in or around March 2002, to the shock of the plaintiff, it was discovered that someone was manufacturing, exporting and selling ceiling fans in the Middle East countries under the brand name "ASHA" which amounts to infringement of the plaintiff's registered copyrights, trademarks, designs and constitutes passing off the goods as those of the plaintiff's goods. In or around the middle of March 2002, the plaintiff obtained one ceiling fan of the brand name "ASHA" from Dubai and was shocked to see that the fan and the packaging constituted infringement of the plaintiff's copyrights, trademarks, designs and that some one was passing off its goods as those of the plaintiff's goods.

20. It is relevant to point out that on the packaging and the ceiling fan there was no indication of who the manufacturer was. The only indication given was of the name of the importer being Bin Wahlan Trading Co. L.L.C., Dubai. After making inquiries the plaintiff in April 2002 came to know that the ceiling fans were being supplied from Hyderabad or Bombay. On further inquiries, the plaintiff came to know that the defendant was the supplier of the said ASHA fans. But the plaintiff did not have any proof. The plaintiff has now on 10th May 2002 obtained a copy of the invoice cum delivery challan prepared by the defendant for exporting the fans to the said importer, M.s, Bin Wah