JUDGMENT :

Sunder Mohan,J.

PRAYER: Original Side Appeal filed under Section 13(1) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 and read with Clause 15 of Letters Patent read with Order XXXVI Rule 1 of OS Rules, to set aside the Judgment and Order dated 21st October 2021 made in A.No.3185 of 2021 in C.S.No.162 of 2019 and restore the Suit.

Aggrieved by the Judgement dated 21.10.2021 made in C.S.No.162 of 2019, the Appellant has preferred the above appeal.

2. The Appellant/Plaintiff had filed a suit before this Court against the Respondent/Defendant herein praying for a permanent injunction against the respondent from using the trademark “Radisson” and for a permanent injunction restraining the respondent from committing acts of passing off while dealing in paints bearing deceptively similar marks “Radisson” and for consequential reliefs. In the said suit, the Appellant filed an application in A.No.1661 of 2019 for combining the causes of action arising out of infringement of trademark and action of passing off. The learned Single Judge of this Court allowed the said application as the respondent had no objection for combining the causes of action. Thereafter, the respondent filed an application to grant him leave to serve interrogatories on the Appellant in A.No.1611 of 2021. The said application was closed by this Court by order dated 14.07.2021. The suit was posted for trial and the Appellant had examined their witness and marked 14 documents on their side. The respondent cross examined the Appellant's witness and the suit was posted for final arguments of the parties. At that stage, the respondent filed an application in A.No.3185 of 2021 under Order VII Rule 10 of C.P.C praying for return of the plaint to the Court of competent jurisdiction, stating that the suit filed by the Appellant was not maintainable before this Court for want of jurisdiction as the Appellant had suppressed relevant material facts in the plaint.

3. The respondent's case is that the Appellant had been operating business through its Branch office situated at B-136, Gate No.1, Prakash Industrial Estate, G.T. Road, Sahibabad, near Gyani Border, Ghaziabad, Uttar Pradesh – 201 005 and that the respondent is also carrying on business in the State of Uttar Pradesh at a “similar place” where the Appellant have their Branch office. Thus, their case is that since they are doing business mainly at Agra and the Appellant also have a place of business in Uttar Pradesh, the suit should have been filed only before the competent Court at Uttar Pradesh and prayed for return of plaint to the Court of competent jurisdiction, namely, Allahabad High Court.

4. The Appellant herein filed a counter objecting to the Application filed by the respondent. Their case is that :

(a) The petition is not maintainable since as per Order XLIX Rule 3 of C.P.C, the provision of Order VII Rule 10 is not applicable to the Chartered High Courts.

(b) The respondent had agreed for combining the causes of action and having submitted to the jurisdiction of this Court, cannot now turn around and file the application for returning the plaint.

(c) In an application to serve interrogatories on the Appellant, the Appellant raised objections stating that the respondent herein intended to object to the jurisdiction of this Court. The learned Single Judge of this Court by order dated 14.07.2021 closed the said application and held specifically that this Court had jurisdiction to decide the subject suit.

(d) This application has been filed at a belated stage at the time of arguments and also when the Respondent had forfeited his right to file Written Statement.

(e) The suit filed by the Appellant before this Court was maintainable in view of the Section 134(2) of the Trade Marks Act 1999.

5. The learned Single Judge, after hearing the parties, held that an application under Order VII Rule 10 was maintainable in view of the judgement of this Court made in R.P