JUDGMENT

ORDER

Mohammad Rafiq, J. - Under challenge is the order dated 1-9-2017 passed by the trial court dismissing the petitioner-defendant''s (hereafter ''the defendant'') application under Order 7, Rule 11 CPC read with 151 CPC in the respondent-plaintiff''s (hereafter ''the plaintiff'') suit for permanent injunction, damages, delivery up, rendition of accounts for infringement of its patent under the Patent Act, 1970 (hereafter the Act of 1970'').

2. The plaintiff in its suit claimed to be one of the largest companies in the world inter alia for manufacturing and grinding elements used in reducing wear costs and optimized mill operations leading to reduction in power costs and improving throughput. It alleged infringement of its Indian Patent No. 248740 (IN740) (hereafter suit patent) valid and subsisting inter alia by the defendant. It was submitted that during May, 2016 the plaintiff obtained a product sample of the defendant from the scrap market believed to be infringing the suit patent. The sample product was tested and analyzed at an independent expert laboratory i.e. Metallergy and Material Engineering Division of M.S. University of Baroda on May 9, 2016. The Laboratory''s test results revealed that the defendant''s product contained Aluminia, Livcoria and Titanum Oxide clearly infringed the plaintiff''s patent IN740. It was submitted that the other co-defendants in the suit were on their part indulging by placing orders on its manufacturers infringing the plaintiff''s registered valid and existing patent and hence were also required to be injuncted from so doing and making such purchases. Legal notices having been issued to such defendants from refraining from facilitating and encouraging breach of the plaintiff''s patent but to no avail, the cause of action for laying the suit arose. Litigation in respect of the disputes relating to the suit patent and otherwise were adverted to in the plaint-which it was however emphatically stated had little or no bearing on the suit as filed.

3. The plaintiff claimed that Section 48 of the Patent Act grants an exclusive monopoly to the patentee to make use, sell offer, offer for sale, import and distribute its patented product and processes required to manufacture the goods in issue. It was submitted that thus any sale/use offer for sale of the patented product and processes without the plaintiff''s permission/licence constituted an infringement under the Act of 1970. It was submitted that an infringement by the defendant and user of such manufactures by the purchaser made both liable for infringement. Injunction was thus sought against the principal defendant and co-defendants impleaded who were purchasing or in the process of purchasing manufactures in infringement of the plaintiff''s suit patent IN740. For laying the suit, the cause of action was set out in the plaint for reasons stated as May 2016 and as the petitioner defendant had its registered office at Jaipur, the jurisdiction of the Jaipur courts was stated to have been invoked.

4. The petitioner defendant in reply to the summons in the plaintiff''s suit filed an application under Order 7, Rule 11 CPC on the ground of limitation, absence of cause of action and res judicata. By the impugned order dated 1-9-2017 the said application has been dismissed.

5. Mr. G.D. Bansal, appearing for the petitioner defendant submitted that the issue agitated in the suit was also earlier agitated in writ petition No. 9062/2012, before the Andhra Pradesh High Court at Hyderabad inter alia seeking restrain on the A.P. Power Generation Corporation Ltd. from making purchases of the defendant''s products purportedly manufactured in infringement of the plaintiff''s patent IN740. That was dismissed. It was stated that the plaintiff in 2016 also filed a suit for permanent injunction against the defendant before the Delhi High Court which the court vide its order dated 16-2-2017 returned to the plaintiff on an application in opposition under Or