M.M. Sundresh, J.

1. The appellant is the first defendant in the suit filed in C.S.No.949 of 2008. Pending suit, an application was filed by the appellant under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as "the C.P.C.,") to reject the plaint on the ground of lack of territorial jurisdiction alleging that no cause of action has arisen within the jurisdiction of the Court. The learned single Judge has dismissed the said application and therefore, the appellant has come forward to file this Original Side Appeal before us.

2. Facts in Brief:-

2.1. The first respondent filed a suit against the appellant herein and the second respondent seeking the following reliefs:

"(i) Permanent injunction to restrain the first defendant from using the registered design of the plaintiff to his products;

(ii) Permanent injunction to restrain the first defendant from passing off his goods as that of the plaintiff's products;

(iii) Directing the defendants to surrender to the plaintiff for destruction all the infringing goods and associated items such as moulds, dies, articles, packets, cartons, packaging materials, advertising materials etc., and all other things used in connection with the manufacture or marketing of the infringing goods;

(iv) Direct the defendants to pay compensation to the plaintiff by way of damages for the infringement and the loss suffered by the plaintiff;

(v) Direct the defendants to pay the costs of the suit;

(vi) Pass any such other orders as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case and in the interest of justice."

2.2. In the said suit the first respondent has averred in its plaint that it is carrying on business in Chennai having its residence within the jurisdiction of this Court. A further averment has been made that the defendants have sold their infringed goods at Chennai by themselves or through their agents. The relief has been sought for on the basis of passing off their goods as that of the plaintiff in Chennai. The relevant averments in the plaint regarding the cause of action are as follows:

"15. The plaintiff is carrying on business in Chennai and resides within the jurisdiction of this Hon'ble Court and hence it is submitted that this Hon'ble Court has competent jurisdiction to try this suit. The plaintiff has stated in detail in the plaint how and when the defendants have acted in violation of plaintiff's Design right how the defendants have passed off their goods as that of the plaintiff. Since the defendants have sold their infringing goods at Chennai either by themselves or through their agents and have passed off their own goods as that of the plaintiff in Chennai, this Hon'ble Court has jurisdiction to entertain the suit against the defendants. Further the plaintiff resides and carries on business within the jurisdiction of this Hon'ble Court. Though the reliefs are sought under the Designs Act, 2000 and the Trade Marks Act, 1999, they all arise from a single transaction of selling the infringing product in the market and hence, from a single cause of action."

2.3. An application was filed by the appellant in Application No.5533 of 2008 in C.S.No.949 of 2008 seeking invocation of the power of this Court for the rejection of the plaint under Order VII Rule 11 of C.P.C. It has been contended in the said application that the plaintiff cannot sue before this Court with the averment that it resides and carries on business in an action for infringement of its registered design under the Designs Act, 2000. There is no cause of action for maintaining the suit before this Court as the plaintiff has failed to make necessary averments that the first defendant is selling his product commercially within its jurisdiction. A third contention has been raised that inasmuch as the defendants are residing outside jurisdiction of this Court, the suit is liable to be set aside as no leave has been obtained by the plaintiff as required