The Court emphasized that the question of jurisdiction was a mixed question of law and fact, and the damages were tentatively assessed, with the Court fee to be determined at the time of the final decision.

JUDGMENT :

H.S. MADAAN, J.

1. Briefly stated, the facts of the case are that plaintiff M/s Archian Foods, a Partnership Firm (herein respondent) through its Chief Marketing Officer and authorized representative, village Fatehgarh, District Roop Nagar has brought a suit for grant of permanent injunction against defendants i.e. M/s Indica Bottling, Industrial Area, Kurukshetra and its Proprietor Dharam Pal Singh (herein petitioners) craving for restraining the defendants or persons claiming under them from continuing their impugned action of passing off in the context of use, marketing, sale advertisement, export etc. of their product in the name and style of ‘Mast Lahori Zeera’ so as to safeguard the material and valuable rights of the plaintiff on the strength of their trade mark and further restraining the defendants from using identical trademark ‘Lahori’ both visually as well as phonetically to prevent further damage to the goodwill and reputation of the plaintiff and to avoid further confusion amongst the customers with imperfect memory and further requiring the defendants to jointly or severally act in accordance with law with regard to their trade policies and practices besides seeking recovery of stocks of defendants pertaining to the cartons, packages, bottles, labels and contents and for recovery of damages. That suit was filed in the Court of District Judge, SAS Nagar (Mohali) and was assigned to Additional District Judge, SAS Nagar (Mohali).

2. On getting notice, the defendants appeared and filed an application under Order 7 Rule 11 read with Section 151 CPC for rejection of the plaint on various ground, to wit, that the plaint does not disclose any cause of action; that the Court at Mohali lacks territorial jurisdiction to entertain and try the present suit since no act of passing off as alleged was committed within jurisdiction of the Court; that the defendants do not have any dealer, partner or agent within jurisdiction of this Court and not even a single bottle of ‘Mast Lahori Zeera’ has been sold by defendants within jurisdiction of the Court at SAS Nagar (Mohali) that the suit is not properly valued for the purpose of Court fee and jurisdiction.

3. The application was resisted by the plaintiffs.

4. Vide the impugned order dated 1.9.2021, the trial Court had dismissed the application. For ready reference, the operative part of the order is being reproduced as under:

“5. The plaintiff has filed the present suit for permanent injunction restraining the defendants from passing off the trade mark of the plaintiff. The plaintiff is using trade mark of ‘Lahori Zeera” while defendants are manufacturing their similar product under the name and style of “Mast Lahori Zeera.” The defendants have filed written statement in this case and have taken similar pleas as taken in their application under Order 7 Rule 11 CPC. It cannot be denied that for deciding application under Order 7 Rule 11 CPC only pleadings are to be seen. The plaintiff in Para No. 55 of the plaint have specifically pleaded that defendants are using online marketing means and methods and selling the product in India including SAS Nagar on commercial basis, But due to legal notice issued by the plaintiff they are not issuing bills. The defendants in their reply to this para have simply pleaded that no act of passing off is committed within the jurisdiction of this Court. The counsel for the defendants has referred to Indian Performing Rights Society Ltd. vs. Sanjay Dalia and Another Civil Appeal Nos. 10643-10644 of 2010 decided on 1.7.2015 (SC) where it has been held that procedure to institute suit in respect of passing off continues to be governed by section 20 CPC. He argued that since no cause of action arisen within the jurisdiction of this Court, therefore, this Court has no jurisdiction to entertain and try the present suit. However, in this judgment itself a reference has been made to Section 134(2) of the Trade Mark Act which provides that suit can be fil