IMPORTANT POINT
The main legal point established in the judgment is that the test for exercising the power under Order VII Rule 11 of C.P.C. is whether the plaint discloses a cause of action, and the court cannot embark upon a roving inquiry into the truth of the allegations at this stage.

ORDER :

This Civil Revision Petition challenges the order passed by the Additional District Court, Thodupuzha (for short, 'the trial court') in IA No.5/2022 in OS No.1/2022 dismissing an application seeking to reject the plaint under Order VII Rule 11 of the Code of Civil Procedure (for short, C.P.C.).

2. The petitioner is the defendant and the respondent is the plaintiff. The suit is one for declaration that the plaintiff is the registered owner and user of the trademark MISTY MOUNTAIN in relation to the services of providing food, drinks and temporary accommodation and consequential permanent prohibitory injunction to restrain the defendant from using the said trademark or passing off their services under the said trademark. The plaintiff is a partnership firm carrying on the business of running hotels and resorts in Idukki, Kerala. The defendant also is a partnership firm engaged in the same business in Munnar, Idukki. The case of the plaintiff is that its predecessor adopted the trademark MISTY MOUNTAIN in 1999 and deployed in trade in relation to “Misty Mountain Plantation Resort”, which commenced operation on 18.1.1999 and has been in constant and uninterrupted use of the said trademark since then. While so, its predecessor secured registration for the trademark on 6.12.2019. Subsequently, the trademark was assigned to the plaintiff on 13.9.2019. It is alleged that the defendant has adopted a deceptively similar trademark as that of the plaintiff in respect of the same services of the plaintiff and, therefore, infringing its registered trademark besides passing of its (defendant’s) services offered under the mark as and that of the plaintiff’s services. The defendant filed written statement denying the plaint allegations. The defendant also filed a separate application as IA No.5/2022 to reject the plaint on the ground that the plaint does not disclose the cause of action. The trial court, after hearing both sides, dismissed the application vide order dated 13.2.2024. It is challenging the said order; this Revision Petition has been filed.

3. I have heard Sri. Philip T. Varghese, the learned counsel for the petitioner.

4. Order VII Rule 11 of C.P.C. enumerates the grounds for rejection of a plaint and declares that the plaint shall be rejected on those grounds. The remedy under Order VII Rule 11 is an independent and special remedy wherein the court is empowered to summarily dismiss a suit at the threshold if it is satisfied that the action should be terminated on any of the grounds contained in this provision. Rule 11 (a) gives one of the instances of the rejection of the plaint in case of non-disclosure of cause of action. It only says that the plaint shall be rejected where it does not disclose a cause of action. It does not say that the plaint shall be rejected where the plaintiff has no cause of action to sue. There is a distinction between the non-existence of a cause of action and the non-disclosure of the cause of action. Only the latter one falls under Order VII Rule 11. For the limited purpose of determining the question whether the plaint is liable to be rejected for no-disclosure of the cause of action under Order VII Rule 11(a), the averment in the plaint alone is material or relevant and nothing else (State of Orissa v. Klockner and Company and Others, AIR 1996 SC 2140). The test for exercising the power under Order VII Rule 11 was laid down by the Supreme Court in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I and Another [(2004) 9 SCC 512]. Paragraph 139 of the judgment reads thus :

“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plant itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”

Whether the cau