The court ruled that a cause of action exists from the plaint's averments, necessitating a trial, and upheld the limitation of judicial superintendence under Article 227.

JUDGMENT

1. This petition under Article 227 of the Constitution of India has been filed by the defendant before the learned Commercial Court, Central District, Tis Hazari, against its orders dated 15th December, 2021, dismissing the application under Order VII Rule 11 CPC filed by the petitioner/defendant for rejection of the suit as there was no cause of action.

2. The respondent before this Court had filed a suit for permanent injunction to restrain the petitioner/defendant from infringing the copyright of the respondent/plaintiff with further directions of delivery up, damages and rendition of accounts.

3. The respondent/plaintiff is the proprietor of M/s Capital Enterprises and claimed to be carrying on an old, established and reputed business of manufacturing and trading in socks etc. In his suit he claimed to have adopted the trade mark/logo `R.D. Special' in the year 1994. He applied for registration of the logo under No.4242962 in respect of socks and other goods included in class 25. He also claimed to have created an artistic packaging in the year 1994 which was an original artwork and thus, he was the owner of the copyright in the same.

4. The suit was filed alleging that in the last week of July, 2021, the respondent/plaintiff came to know that the petitioner/defendant had filed an application for registration of a deceptively similar logo and packaging under No.4793702 dated 24th December, 2020 in respect of socks in class 25 under the Trade Marks Act, 1999, claiming the use of the impugned logo and packaging since 1st January, 2019. Hence, the suit was filed for a decree of perpetual injunction restraining the defendant, their agents, employees, dealers, representatives and all other persons acting on their behalf from reproducing, publishing and/or visually representing in any manner of the logo/packaging or any other logo/packaging which was deceptively similar or was a substantial reproduction of the respondent's/plaintiff's said packaging and amounting to infringement of the respondent's/plaintiff's copyright in his artistic work/packaging. ;

5. Though the petitioner/defendant filed a written statement, she also filed an application under Order VII Rule 11 CPC which has been placed on the record as Annexure P-3. It was submitted that the plaint was liable to be rejected, as it did not disclose any cause of action. Vide the impugned order dated 15th December, 2021, two applications were disposed of, one under Order VII Rule 10 CPC filed by the petitioner/defendant for return of the plaint as the courts in Delhi had no jurisdiction, and another under Order VII Rule 11 CPC, for rejection of the plaint.

6. With regard to the application under Order VII Rule 11 CPC, the learned Trial Court observed that para 18 and para 28 of the plaint were sufficient to show that the cause of action existed for the filing of the suit. It was also noted that the respondent/plaintiff had also pleaded that the petitioner/defendant had been clandestinely selling socks using the impugned logo and packaging. Therefore, the issue of cause of action was a disputed question of fact which could be decided on merits, only after the evidence was led by both the parties. Aggrieved thereby, the petitioner/defendant has filed the instant petition. It is to be noted that the present petition does not question the decision of the learned Trial Court in dismissing the application under Order VII Rule 10 CPC, though in the written submissions, reference has been made to the absence of jurisdiction with the courts at Delhi to deal with the suit by contending that none of the products of the petitioner/defendant were being sold