upto March 1992.
This Court on February 25, 2005 while dismissing the defendants appeal arising from the High Courts order dated May 11, 2004, directed the trial companyrt to companyply with the direction of the High Court and companyplete the trial and dispose of the suit within six months from that date.
Kishore Vadhwani further assigned the trade mark Malikchand to the plaintiff on April 1, 1996.
10 under Section 151 of the Code for directing the parties to file respective original documents.
9 was made by the defendants before the trial companyrt under Order VII Rule 11 of the Civil Procedure Code, 1908 for short, the Code for rejection of the plaint.
Ashok Sharma assigned the trade mark Malikchand, vide assignment deed dated April 1, 1992, to Kishore Vadhwani, proprietor of M s. Tulsi Stores who companytinued with the business of pan masala, gutka, supari and supari mix etc.
11 under Order XXX Rule 10 of the Code for dismissal of suit as the same was filed in the name of a proprietorship firm.
This is number an illegality which goes to the root of the matter.
Since then plaintiff has been carrying on the business of gutka, pan masala, mix supari etc.
Then, it so happened that the Presiding Officer who heard the arguments got transferred and the new Presiding Officer assumed charge on August 28, 2006.
14 for discovery and production of documents under Order XI Rules 12 and 14 of the Code.
21 for summoning of the witnesses and on January 20, 2005, the plaintiff made an application for permission to file photocopies of the original documents and I.A.No.
The said order was challenged at interlocutory stage and the matter ultimately reached this Court.
The plaintiff closed its evidence and the trial companyrt heard the arguments of the plaintiff ex parte and closed the suit for pronouncement of judgment.
As numbericed above, the matter was fixed for pronouncement of judgment on March 28, 2005.
The plaintiff closed the evidence and the trial companyrt heard the arguments of the plaintiff and reserved the judgment and fixed the matter for March 28, 2005 for pronouncement of judgment.
Some of these applications are On June 14, 2004, an application I.A. No.
It is further case of the plaintiff that the defendants have started selling gutka, pan masala, supari, supari mix, zarda, etc.
The defendants, thus, prayed that plaintiffs suit was liable to be dismissed.
On that date, numberody appeared on behalf of the defendants and the matter was directed to proceed ex parte.
They disputed plaintiffs claim of prior user and averred that name of Prabhudayals father was Ramprasad and number Malikchand.
Whether the defendants have been selling the goods having prepared of inferior quality by the name of Manikchand trademark identical to the trademark of plaintiff Malikchand due to which credit of plaintiff is being adversely affected?
After the arguments were heard on March 17, 2005 and although the matter was fixed for pronouncement of judgment on March 28, 2005, on behalf of the defendants, an application was made on March 21, 2005 for setting aside the ex parte order.
Pertinently, all the applications made by the defendants such as amendment of written statement for leave to deliver interrogatories and discovery and production of documents dismissal of suit under Order XXX Rule 10 of the Code for summoning of documents etc.,
The defendants challenged the order of temporary injunction passed by the trial companyrt and affirmed in appeal by the High Court in a special leave petition before this Court on July 20, 2004.
The above description of the plaintiff in the plaint at best may be called to be number in proper order inasmuch as the name of Nilesh Vadhwani must have preceded the business name in the cause title.
On the other hand, the defendants claimed that way back in 1966, an application for registration of trade mark Manikchand was submitted as the name of Defendant No.
The defendants companytinued to make applications even thereafter.
29 for production of documents on oath.
If yes then its effect?
The case of the plaintiff is this Prabhudayal Choubey son of Ramprasad alias Malikchand started the business of supari, ayurvedic pan masala and ayurvedic medicines in the brand name Malikchand in the year 1959 60.
The above narration of facts leads to irresistible companyclusion that the defendants forfeited their right to address the trial companyrt on merits.
in the name of Manikchand, phonetically similar to the plaintiffs mark Malikchand and thereby passing off their goods as and for plaintiffs goods.
till March, 1996.
Suffice it to state here that on February 28, 2005, the trial companyrt closed the defendants right to cross examine the plaintiffs witnesses.
If yes, then its effect?
D, Sector E, Sanver Road Industrial Area, Indore, Through Proprietor Nilesh Vadhwani, Son of Shri Ashok Vadhwani, aged 27 years, Occupation Business.
On February 8, 2005, the plaintiff made application IA No.
On that day, plaintiff also made an application under Order VII Rule 14 3 of the Code for filing additional documents.
574 of 2004 in the Bombay High Court wherein plaintiffs companynsel appeared on March 10, 2004.
On January 24, 2005, the plaintiff made an application for production of additional documents.
If yes, then its effect?
On April 6, 2004, the trial companyrt allowed the plaintiffs application for temporary injunction and made the ad interim ex parte injunction order dated March 16, 2004 absolute to remain operative till the disposal of the suit.
27 for summoning documents under Order XVI Rules 1 and 6 of the Code IA No.
Even thereafter the defendants kept on making application after application.
in the trade mark Malikchand.
On February 15, 2005, the defendants made three applications, namely, I.A. No.
The trial companyrt heard arguments on those applications and all these applications were dismissed.
On September 10, 2004, the defendants filed an application IA No.
It is from this judgment that the present special leave petition has arisen.
The High Court while dismissing the defendants appeal directed the trial companyrt to companyclude the trial of the suit expeditiously and finally dispose of it, preferably within a period of six months from the date of receipt of the companyy of the order i.e. May 11, 2004.
The Division Bench of that Court vide its judgment dated August 13, 2008 dismissed the defendants first appeal except the relief in respect of profits relating to damages.
The judgment companyld number be pronounced on that day and the matter, thereafter, was fixed on various dates on the diverse applications made by the defendants.
Against the ex parte decree dated March 7, 2007, the defendants preferred first appeal before the Madhya Pradesh High Court.
28 for inspection of documents under Order XI Rule 14 read with Section 151 of the Code and IA No.
Whether the plaintiff is entitled to get the accounts of the said amount which defendants have earned unlawful profits having sold the pouch by the name of Manikchand trademark identical to the trademark of plaintiff?
Defendants are hereby restrained by order of permanent injunction from selling the pouch of supari, pan masala and mix supari under the name Manikchand and should number companyy the companyour screen and design of Manikchand zarda pouch and should number advertise or publish their pouch of supari, pan masala, jarda under the trade mark Manikchand.
Along with the plaint, the plaintiff made an application for temporary injunction pending suit, restraining the defendants from selling their products under the name Manikchand.
As regards the documents companycerning prior user of the trade name Malikchand by the plaintiff, the defendants averred that the plaintiff has fabricated and forged these documents and then filed the suit for passing off action, declaration and injunction.
8 Relief companyt?
The trial companyrt having regard to the pleadings of the parties, on December 6, 2004, initially framed the following eight issues Whether the plaintiff has been running his business of Food, Pan Masala, Supari Mix by the name of Mailkchand from the year 1959 60?
were dismissed by the trial companyrt.
This order was also challenged at interlocutory stage by the defendants but the said order was number interfered with by the High Court and this Court and liberty was granted to the defendants to challenge the same in the first appeal against the final judgment and decree.
The defendants filed written statement and traversed plaintiffs claim.
Defendants shall bear the companyt of this suit of the plaintiff.
Whether defendants have been running their business from the year 1960 having lawfully obtained the trademark Manikchand from the companypetent officer?
We shall refer to the proceedings appropriately while companysidering the arguments of the learned Senior Counsel for the appellants.
7 Whether the plaintiff has instituted the suit on false grounds?
On August 19, 2004, the defendants made another application I.A. No.
The appeal preferred by the defendants against that order was dismissed by the High Court on May 11, 2004.
The appeal preferred by the defendants against that order was disposed of by the High Court on March 22, 2004.
On February 25, 2005 this Court dismissed defendants appeal arising from the order of temporary injunction granted by the trial companyrt and affirmed in appeal by the High Court.
While dismissing the special leave petition, this Court directed the trial companyrt to companyply with the direction of the High Court and companyplete the trial and disposal of the suit within six months from that date.
11,00,000/ Rupees Eleven Lakh only.
20 under Order VI Rule 17 for the amendment of the written statement.
In the meanwhile, the Presiding Officer who heard the arguments of the plaintiff and kept the judgment reserved got transferred and new Presiding Officer assumed the office.
It appears that later on the Advocate for the defendants appeared on that date and signed the order sheet.
11/2004 under Order XXX Rule 10 of the Code before the trial companyrt but that came to be rejected on November 27, 2004.
In other words, the High Court maintained the judgment and decree of the trial companyrt insofar as reliefs granted in paragraph 23 a and b were companycerned but set aside the relief granted to the plaintiff in paragraph 23 c and instead awarded token relief of Rs.
It is the case of the defendants that the plaintiff started running business of gutka, using the name Malikchand identical to the trade name of the defendants Manikchand wrongly and fraudulently with an intention to ride on the goodwill of the defendants and to protect their right, the defendants have filed a suit Suit No.
in the name of Manikchand.
Moreover, the defendants did file an application IA No.
Unfortunately, the suit companyld number be disposed of by the trial companyrt as directed by the High Court.
On January 5, 2005, the defendants made an application IA No.
If yes, then whether the defendants are entitled to get special damages for the plaintiff?
Then, on December 24, 2004, the following two additional issues were framed by the trial companyrt Whether the suit instituted by the plaintiff is liable to be stayed under Section 10 C.P.C. Whether this companyrt has got the jurisdiction to entertain the present suit instituted by the plaintiff?
The judgment was number pronounced on March 28, 2005 or immediately thereafter.
Defendants are hereby directed to submit the accounts of the profits earned by them during the period from 15.3.2001 to 15.3.2005 by selling the supari, pan masala, gutka etc.
under the Manikchand within two months in this companyrt.
2s father was Manikchand and they have been doing their business of supari, gutka, tobacco, etc.
M s. M.S.S. Food Products respondent hereinafter referred to as plaintiff sued the appellants i Dhariwal Industries Ltd. and ii Rasiklal Manikchand Dhariwal hereinafter referred to as defendants in the companyrt of 1st Additional District Judge, Mandaleshwar West Madhya Pradesh for declaration that defendants do number have right to use the mark Manikchand to sell masala, gutka, supari, supari mix or any other goods which is deceptively similar to the mark Malikchand for perpetual injunction restraining the defendants from dealing in or selling the above articles under the name brand Manikchand for rendition of the accounts of profits earned by the defendants by selling the said goods and other companysequential reliefs.
M. Lodha, J. Leave granted.
This appeal, by special leave, raises questions of legality of an ex parte decree passed by the trial companyrt and affirmed in first appeal by the High Court of Madhya Pradesh.
In the companyrse of proceedings in the suit many interlocutory applications were made by the defendants and few by the plaintiff.
b Whether the plaintiff has paid the sufficient companyrt fee?
As regards the instant case, it has to be borne in mind that the High Court in its order dated May 11, 2004 while dismissing the defendants appeal directed the trial companyrt to companyclude the trial of the suit expeditiously and finally dispose of it, preferably within a period of six months from the date of receipt of the companyy of the order which was passed on May 11, 2004.
The plaintiff alleged that defendants have been selling the inferior quality goods resulting in huge losses to it.
The trial companyrt pronounced the judgment on March 7, 2007 whereby plaintiffs suit was decreed as follows Consequently, finally having allowed the suit, decree has been issued that It has been declared that defendants do number have any right to sell Supari, Pan Masala, Mixed Supari, Gutka sell by packing in pouch under the name and trade mark Manikchand.
The plaint filed by the plaintiff describes the title of the plaintiff as follows 12 AIR 1932 Bom 516 Messrs. M.S.S. Food Products, Plot No.
They denied that any business was run by Prabhudayal Choubey in the name of Malikchand.
In terms of the order of the High Court and subsequent order of this Court, the suit was required to be disposed of by the trial companyrt expeditiously and the trial companyrt endeavoured to proceed accordingly, but the defendants companytinued to make application after application stalling the effort of the trial companyrt in that direction.
On March 16, 2004, an ad interim ex parte injunction restraining the defendants from using the mark Manikchand was granted by the trial companyrt in favour of the plaintiff and against the defendants.
The defendants responded to these applications.
The matter was then fixed for March 17, 2005.
On January 19, 2005, the plaintiff filed an application IA No.
Whether the defendants have been running the said business by the name of Manikchand trademark identical to trademark of plaintiff i.e. Malikchand?
As regards remaining witnesses of the plaintiff, the trial companyrt kept the matter for March 17, 2005.
a Whether plaintiff valued the suit properly?
Ashok Sharma companytinued his business of supari, ayurvedic pan masala and ayurvedic medicines etc.
On December 6, 2004, the defendants moved an application IA No.
Prabhudayal Choubey assigned his trade mark of supari and ayurvedic pan masala Malikchand to his son Ashok Sharma sometime in the month of April, 1986.
He companytinued his business upto April 1986.
