The Court emphasized that on an application under Order VII Rule 11 CPC, only the contents of the plaint are to be considered, and the alleged violation of statutory law cannot be determined without evidence.

JUDGMENT

Alka Sarin, J. - The present civil revision has been preferred by the defendant- petitioners impugning the order dated 06.12.2021 (Annexure P-7) passed by the District Judge, Panchkula whereby the application filed by them under Order VII Rule 11(d) read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') has been dismissed.

2. The brief facts relevant to the present lis are that the plaintiff- respondent filed a civil suit for injunction for restraining the defendant- petitioners from passing off, infringement of trademark, infringement of copyright, acts of unfair competition, dilution, rendition of accounts, damages, etc. The plaintiff-respondent claims himself to be the proprietor of M/s Simla Mandi Goods Transport Company which is engaged in transportation services. It was alleged that that defendant-petitioner Nos.2 and 3 had started a new company under the name and style of "Shimla Mandi Goods Transport Pvt. Ltd." (defendant-petitioner No.1) and had started a new business under an identical name to that of the transport firm of the plaintiff-respondent under a nearly identical, deceptively similar trade mark as that of the plaintiff-respondent and had copied the entire get-up, lay out, overall appearance and all the unique features of the business of the plaintiff-respondent.

3. The defendant-petitioners filed an application (Annexure P-5) for rejection of the plaint under Order VII Rule 11(d) CPC stating therein that the plaintiff-respondent had wrongly claimed himself to be the sole proprietor of M/s Simla Mandi Goods Transport Company (Regd.) and that the said firm consisted of two partners namely, Jitender Gupta (plaintiff- respondent) and his brother namely, Rajinder Gupta. Both of them had 50% share in the firm and on the death of Rajinder Gupta on 02.05.2021 he left behind three legal heirs i.e. his wife, son and daughter. It was further averred in the application that the plaintiff-respondent had not disclosed as to how after the death of Rajinder Gupta he had assumed the status of sole proprietor of the firm. According to the defendant-petitioners the suit was in contravention of the provisions of the Indian Partnership Act, 1932 and was barred by law. Reply (Annexure P-6) to the application under Order VII Rule 11 CPC was filed by the plaintiff-respondent. However, before the application under Order VII Rule 11 CPC could be disposed off, the legal heirs of the deceased partner, Rajinder Gupta, moved an application under Order I Rule 10 CPC for being impleaded as a party to the suit.

4. While dismissing both the applications vide the impugned order dated 06.12.2021, the District Judge, Panchkula observed that the legal representatives of Rajinder Gupta had filed a civil suit before the Delhi High Court on the original side bearing Civil Suit No.CS(OS) 563 of 2021 titled "Ritu Gupta and Others vs. Jitender Gupta and Others" for relief of partition, rendition of accounts, declaration besides permanent and mandatory injunction against the defendants therein who includes the plaintiff-respondent in the present suit namely Jitender Gupta as also his wife and two firms including M/s Simla Mandi Goods Transport Company. In the said civil suit before the Delhi High Court no interim relief has been granted restraining the present plaintiff-respondent from acting as a sole proprietor of the firm.

5. Learned senior counsel appearing for the defendant-petitioners contended that the District Judge, Panchkula erred in dismissing the application under Order VII Rule 11 CPC on illegal and erroneous grounds. According to counsel, the plaintiff-respondent had no locus standi to file the suit as a sole proprietor after the death of the other partner since the partnership firm stood dissolved on the death of the second partner. It was further submitted that even the Delhi High Court had prima facie not accepted the status of the plaintiff-respondent as a sole proprietor and had therefore pa