Judgment

Date of Judgment :::: 17.8.17

The instant revision petition under Section 115 of the Code of Civil Procedure has been filed by the petitioner/defendant No.1 being aggrieved with the order dated 9.9.2011 passed by the Addl. District Judge (Fast Track), Court No.8, Jaipur Metropolitan, Jaipur (hereinafter referred to as ‘the learned trial court’) in Civil Suit No.15/2010 with the following prayer:-

“Under the facts and circumstances of the present case, it is most respectfully prayed that this Hon’ble Court may kindly be pleased to:-

(a) Issue the order/direction/writ in the nature of certiorari quashing the Impugned Order dated 09.09.2011 passed by the Ld. ADJ (Fast Track), Court No.8, District Judge Jaipur at Jaipur in Suit No.15 of 2010.

(b) Allow the application of the Petitioner/Defendant No.1 under Order 7 Rule 10 & 11 CPC read with Section 151 C.P.C. in toto.

(c) Summon the records of subject matter Suit No.15 of 2010 from the LD. ADJ, (Fast Track), Court No.8, Jaipur District Court.

(d) Award the cost of the proceedings in favour of the Petitioner/Defendant No.1 and against the Respondent No.1/Plaintiff.

(e) Pass any such other order and further order(s), which this Hon’ble Court may deem fit and proper under the facts and circumstances of the present case.”

Brief facts of the case of the petitioner-defendant No.1 are that the petitioner /defendant No.1 is the Company duly incorporated under the Companies Act, 1956 having its registered office at L-311, Street No.7, Mahipalpur Extension, New Delhi – 110037 and its corporate office at Building No.9A, II Floor, DLF Cyber City, Phase III, Gurgaon, Haryana. The Board of Directors of petitioner-company, vide Resolution dated 4.2.2010, authorized one Shri Vipul Sharma, the Manager Legal of the petitioner-company to institute and defend all the legal proceedings of any nature whatsoever including the present one, which is inclusive of inter-alia to sign the Vakalatnama, sign and verify the pleadings, depose to all the facts of the case and to do all other actions necessary for the purpose of filing and pursuing the instant proceedings and so have been done by him. He is having locus to sustain and maintain the instant proceedings on behalf of the petitioner-company.

The plaintiff/ respondent No.1 filed the suit bearing No.15/2010 before the trial court against the petitioner and sought relief of permanent injunction against the use of trademark ‘Kamdhenu’. The respondent No.1 also filed an application under Order 39 Rule 1 and 2 CPC seeking interim injunction. The respondent No.1 filed the aforesaid suit on the basis of their alleged proprietary rights of the trade mark/trade name ‘Kamdhenu’ in relation to ghee, butter and edible oil since the year 1981. It is alleged in the plaint that the petitioner/ defendant No.1 has been engaged in the business of selling steel bars through respondent No.2 in the city of Jaipur. The plaintiff/respondent No.1 invoked the jurisdiction of the trial court on the basis of Sections 134 and 135 of the Trade Marks Act, 1999 (hereinafter referred to as ‘the Act of 1999) and Section 20 CPC.

The petitioner/defendant No.1 filed written statement and alleged that the petitioner has been using the trade mark/trade name ‘Kamdhenu’ in relation to saria, steel bars, POP, construction material and other goods since the year 1991. It is also claimed by the petitioner that the goods of the petitioner and the respondent No.1 are different and distinct. The petitioner filed reply to the interim injunction application of the respondent No.1.

Thereafter, the petitioner filed an application under Order 7 Rule 10 and 11 CPC. The petitioner averred in the application that the reliance placed by respondent No.1 on Sections 134 and 135 of the Act of 1999 is erroneous and irrelevant as the respondent No.1 is not the registered proprietor of the trade mark/trade name ‘Kamdhenu’. It is further averred that the petitioner neither resides nor has any branch office within the