1

F.R

IN THE GAUHATI HIGH COURT(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL

PRADESH)

MA(F) No. 1(K) of 2014

BEFORE

HON’BLE MR. JUSTICE P. K. SAIKIA

M/s.Vijay IndustriesA Partnership FirmRepresented by partner Ajay BabulalData, Khairthal, Dist.Alwar,Rajasthan, throughPower of Attorney Holder Sri Rajesh GuptaS/o.Shri Hajarilal GuptaR/o.Circular Road Dimapur, Nagaland.

… APPELLANT

VERSUS

1.Vijay Solvex LimitedA Company Incorporated under

The Companies Act,1956,Bhagwati Sadan, Swamy DayanandMarg, Alwar 301 001Rajasthan State,India.

2.M/s. Agency CenterJain Temple RoadDimapur 797112, Nagaland.

…RESPONDENT

For the Appellant : Mr.Anuroop Singhi, Advocate.

For the Respondents : Mr.S.Dutta, learned Counsel for the

Respondent No.1 Mr.Vikramjeet, learned Counsel for the Respondent No.2.

Date of hearing : 24.06.2014

&

Date of judgment : 04.08.2014

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JUDGMENT AND ORDER (CAV)

1. This appeal is directed against the order dated 23.01.2014, passed by the

learned Addl. Sessions Judge, Dimapur, in Civil Suit No. 3/2013, whereby and

where-under the learned court below returned the plaint to the plaintiff to file it in the

court having jurisdiction over the matter.

2. Being aggrieved and dissatisfied with such order, the plaintiff ( the appellant

in this appeal who would be referred to as plaintiff) has preferred this appeal citing

several infirmities in the order, under challenge.

3. The facts necessary for disposal of the present proceeding, in brief , are that

M/s Vijay Industries, a Partnership Firm, engaged in the business of manufacturing

of all kinds of edible oil, oil cakes, Ghee, Milk products and allied goods (hereinafter

referred to as the ‘said goods’) as well as in selling of said goods under the

trademark “ SCOOTER “ . Such a firm filed Title Suit No. 03/2013 in the court of

Addl. District Judge, alleging of infringement of trade-mark , infringement of copy

right and also seeking injunction restraining the defendants therein from committing

aforesaid illegal activities.

4. The defendants therein are (a) M/S Vijay Salvales Ltd. (b) M/s Agency Centre

who are respondent No. 1 and 2 respectively. Respondent No.1 and 2 would be

referred to as referred to hereinafter as defendant No. 1 and defendant No. 2

respectively.

5. It has been stated that plaintiff, a partnership firm, has its registered Office

at Khairthal in the district of Alwar, Rajasthan. Respondent No. 1 is also a company

incorporated under the Companies Act, 1956 and has its registered Office

Bhagwati Sadan, Swami Dayanand Marg, Alwar, Rajasthan and such a company is

also engaged in the business of manufacturing and marketing of all kinds of edible

oil, oil cakes and Ghee (hereinafter referred to as the ‘impugned goods’) allegedly

under the trademark “SCOOTER” which is identical and deceptively similar in art

work and colour scheme in the label with the trademark, used by the plaintiff firm .

6. Narrating its business and business activities, the plaintiff states that in 1978,

the plaintiff company started its business of manufacturing edible oil, oil cake, ghee

Milk products and allied articles and adopted the trade-mark SCOOTER along with

distinctive art work and colour scheme. Over the years, the goods, marketed under

trade mark ”SCOOTER”, earn tremendous reputation and good will in the market

and the goods sold under trade-mark SCOOTER is known and recognized

everywhere and therefore, the turnover of the plaintiff’s firm for sale of such goods

come to crores.

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7. The plaintiff thus become the proprietor of the trademark No. 337359 in

Clause 29 of the trademark SCOOTER and is therefore, entitled prohibit any other

firm from using its trademark or any other mark which are identical, deceptively

similar to the trademark of the plaintiff since under the law, the plaintiff is entitled to

use such trade mark with its art work in the label to the exclusion of all others and is

also entitled to restrain any one from reproducing such art work in a substantial and

material form. .

8. In has been stated in the plaint that in 1990, the plaintiff gave

licenses/permission to defendant No. 1 to use the trademark and such permission

was given for a period from 01/04/92 to 31/03/95 for which no royalty was charged

from the defendant No. 1. But on and from 31/03/95, the defendant No. 1 was

required to pay Rs. 1,000/- per month to the plaintiff for a period of 15 years as

being the royalty for use of the trademark aforesaid. The period of 15 years expired

on 31/03/2010 and thereafter, no further extension was granted to the defendant No.

1 for use of aforesaid trade mark of the plaintiff.

9. On 9/10/13 the defendant No. 1 issued caution notice in newspapers claiming

the ownership right for the trademark “SCOOTER”. On perusal of the said caution

notice and upon making necessary search, the plaintiff came to know that defendant

No. 1 has adopted identical and deceptively similar trademark with substantial and

material reproduction of art work of label (hereinafter referred to as the impugned

market) in respect of identical and same kind of goods, sold in the same trade

channel and in the same area.

10. In that connection , it has been stated that since the defendant No. 1 had

been exclusively associated with the business of the plaintiff over a long period of

time, he knew very well the business and business activates of the plaintiff and as

such, taking advantage of his closeness with plaintiff and his business , the

defendant No. 1 with malafide intention had adopted similar trademark with same

art-work in the lebel and uses the same in order to secure unlawful gain at the cost

of plaintiff.

11. It is also the case of the plaintiff that the defendant No. 2 is the agent of

defendant No.1 and carries business in the State of Nagaland and in Dimapur in

particularl. According to the plaintiff, the impugned goods are being marketed in

Dimapur by the respondent No. 1 through its dealer, the defendant No.2. Such

activities on the part of defendant No.1 violate the provisions of the Trade mark Act,

1999 as well as the Copyright Act, 1957.

12. Since the activities of the defendant No. 1 & 2 have infringed the right of the

plaintiff, conferred on him under the Copy right Act and under the Trade Mark Right

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Act, the plaintiff a suit in the Court of Additional District and Session Judge, Dimapur

seeking necessary reliefs. Such a suit was registered as C.S. No. 3 of 2013.

13. In order to show that the Court at Dimapur has necessary jurisdiction, in its

plaint, the plaintiff states that it carries on business in Dimapur through its dealers

and also through the website of the firm since the articles manufactured and

marketed by the plaintiff company can be purchased in any part of India including

Dimapur through its website. The plaintiff further states that the defendant No.1

carries on business through its agent, the defendant No.2.

14. In the aforesaid suit, the plaintiff has also filed an application seeking

injunction restraining the defendants therein from manufacturing marketing and

selling of goods till disposal of the aforementioned suit. The court below initially

granted it interim injunction, however, after hearing both the parties, such injunction

was vacated against the aforesaid order vide order dated 15/11/2013 passed in Civil

Suit No. 3 of 2013.

15. Such an order was put to challenge by the plaintiff having filed an appeal

which was registered as MA (F) 1 /2013. This court on hearing both the parties

quashed the order dated 15/11/2013 by its order dated 10/12/2013, restored

temporary injunction granted by trial court in respect of all the articles except

Venaspati Ghee etc with a further direction to take up the issue of jurisdiction as

preliminary issue and then to decide such an issue within a period of 2 months from

the date of appearance and after hearing both the parties. For ready reference the

relevant part of the order is reproduced below:

10. For the reasons set out hereinabove, I hold that it is a fit case wherethe appellant is entitled to temporary injunction so as to restrain thedefendants/respondents and their agents from manufacturing or marketingedible oil under the trademark “SCOOTER”. However, this temporaryinjunction shall not be applicable on Venaspati Ghee etc. since there doesnot appear to be any registered trademark by name “SCOOTER” in the nameof either party from a competent authority as on today.

11. For the end of justice, the respondents are given time to dispose oftheir existing stock of edible oil under the trademark “SCOOTER” till31.12.2013.

12. In the result, the appeal stands allowed. Impugned judgment is herebyset aside with the direction and observations made in this judgment.

13. The trial court is directed to take up the issue of jurisdiction as apreliminary issue and the trial Court is directed to give its finding on thisquestion as early as possible, preferably within a period of two months fromthe date of appearance of both the parties.

14. The appellants and respondents are directed to appear in the trialcourt on 13.01.2014 and receive further direction(s).

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16. Being so directed, the parties appeared before the court below. In the

meantime, the defendant No. 2 filed an application under Order VII Rule 11 read

with Sec. 151 CPC seeking rejection of the plaint. In terms of the order dated

10.12.2013, the court below started hearing the matter but the plaintiff sought for

adjournment on one ground or other. Initially prayers for adjournment, sought for by

the plaintiff, were granted. However, on 22/1/14 when time was sought for, same

was turned down.

17. On rejecting the prayer for adjournment on 22.01.2014, the Court below

proceeded to hear the application under Order VII, Rule 11 of the CPC. The order

was reserved. On 23.1.2014, the impugned order was passed returning the plaint to

the plaintiff on holding that the court below has no territorial jurisdiction to allow the

aforesaid suit. The relevant part of the order is also reproduced below:-

“In view of the principles laid down by Apex Court in the judgmentreferred above and taking into consideration the averments made inthe plaint. I have no hesitation in deciding that the defendant No.2 isnot an agent of the defendant No.1 but it runs its business inindependent capacity and sells the goods of many companies. Theplaintiff is not a resident of Dimapur, he was not been able to establishthat he carries an any business in Dimapur and defendant No.2cannot be said to carry on business in the name or on behalf ofdefendant No.1 at Dimapur. The question as to whether the defendanthad been selling its products in Dimapur or not is irrelevant. It ispossible that the goods manufactured by the defendant No.1 areavailable in the markets of Dimapur or they may be sold in Dimapurbut that by itself would not mean that the defendant No.1 carries onany business in Dimapur.

From the discussion above, it is crystal clear that thiscourt has no territorial jurisdiction even on the fact of plaintiffsaverments made in the plaint to entertain the present suit eitherU/s.134 of the Trade marks Act or under Section 62 of the copyrightAct or U/s. 20 of the CPC. In the facts and circumstances, no cause ofaction wholly or partly arose at Dimapur and therefore the plaintiff casedoes not fall within the scope of S.20 CPC in order to invoke thejurisdiction of this court. Therefore, I hold that the suit is notmaintainable due to lack of territorial jurisdiction. However, I am notdismissing the plaint, but the plaint is hereby returned as perprovisions of Order 7 rule 10 CPC to the plaintiffs to be presentedbefore the court of competent jurisdiction.

The Civil Suit 03/2013 stands disposed off”.

18. As stated above, being aggrieved, the plaintiff as appellant has preferred this

appeal stating that such order is unsustainable in law. In that connection, it has been

pointed out that this court while setting aside the order dated 15.11.2013, passed in

Civil Suit No. 3 of 2013, had directed the Court below to frame preliminary issue on

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jurisdiction of the Court below to try the suit in question, and then, to dispose of the

same on hearing the parties within a certain timeframe.

19. However, such direction was totally ignored by the learned trial court since

the court below instead of framing of preliminary issue on the point of jurisdiction,

chose to hear a petition under order VII Rule 11 of the CPC, and then, came to the

conclusion that court has no jurisdiction to try the suit. In that connection, it has been

contended that a dispute over jurisdiction of the court to try a suit can be decided

only when an issue is framed and only when the parties are allowed to lead

evidence to show that the court has necessary jurisdiction.

20. In support of such a contention, the learned counsel for the plaintiff relies on the decision of Delhi High Court in the Coca—Cola Company vs..Bisleri International Pvt. Ltd. And Ors, reported in 2009 (41) (Del). The relevant part is reproduced below:-

29. The issue of jurisdiction has been dealt with in the caseof Tata Iron & Steel Co. Ltd. V. Mahavir Steels & Ors, 47 (1992) DLT412, this court has dealt with the similar objection and has held in para11 of the judgment which reads as under:

’11 The question regarding jurisdiction can only be goneinto after the evidence of the parties is recorded in the case. Event inthe Punjab case the suit was not thrown out at the threshold underOrder 7 Rule 11 the Code but only after the parties were given anopportunity to lead evidence. The plaint in the present suitcategorically states that the defendant NO. 1 NO. 1 was selling thechannels of defendant NO. 1 NO.2 under the offending trade markwhich is deceptively similar to that of the plaintiff. On these avermentsthe court must assume jurisdiction and proceed with the suit todetermine the question relating to the confirmation/vacation of the stayorder at this stage.”

21. Similar view was also rendered by Delhi High Court in the case of FordMotor Company and Anr. vs. C.R.Borman & Anr , reported in 2008 (38) PTC 76(Del) (DB) as well as in Suresh Chand Purwar (Karta) vs. Vivek Purwar & ors(FAO 198/2013) decided on 14.03.2014. The relevant part of the judgment in FordMotor Company (supra ) is reproduced below:-

9. We are unable to accept the argument of Mr. Banerjee in viewof the explicit pleadings contained in the plaint. It will require evidenceto prove (or disprove) the assertion in the plaint that the plaintiffs carryon business in significant commercial quantities in Delhi. For thatmatter it will also require evidence to be led by the parties andanalysed by the court to determine whether the jurisdiction of Delhicourts is predicated and factored solely on plaintiffs’ goods being soldin Delhi. On a reading of the plaint we are unable to conclude that theplaintiffs do not carry on business in Delhi. The preliminary questionwhich arose in Dhodha House was whether the existence ofjurisdiction under Copyright Act 1957 would also enable the clubbing ofthe dispute arising from the Trade and Merchandise Act 1958.

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22. It is also the contention of the plaintiff/appellant that a court dealing with anapplication under Order VII Rule 10 or an application under Order VII Rule 11 ofCPC has to look into the statements, made in the plaint, and nothing else, and, atthat stage, court needs to presume the statements, made in such plaint as correctand true. In support of such contention, the learned counsel for the petitioner hasrelied on the decision of Hon’ble Supreme Court in the case of Saleem Bhai andOrs., Vs. State of Maharashtra and Ors., reported in (2003) 1 SCC 557

16. The relevant part is reproduced below:-

“7. The short common question that arises for considerationin these appeals is, whether an application under order 7 Rule 11 CPCought to be decided on the allegations in the plaint and filing of thewritten statement by the contesting is irrelevant and unnecessary.

8. Order 7 Rule 11 reads as under:

“11 Rejection of Plaint.—The plaint shall be rejected in thefollowing cases—

(a) Whether it does not disclose a cause of action;

(b)Where the relief claimed is undervalued, and the plaintiff, on beingrequired by the court to correct the valuation within a time to be fixedby the court, fails to do so;

(c)Where the relief claimed is properly valued but the plaint is writtenupon paper insufficient stamped, and the plaintiff, on being required bythe court to supply the requisite stamp paper within a time to be fixedby the court, fails to do so’

(d)Where the suit appears from the statement in the plaint to be barredby any law;

(e)Where it is not filed in duplicate;

(f)Where the plaintiff fails to comply with the provisions of Rule 9;

Proved that the time fixed by the court of the correction of thevaluation or supplying of the requisite stamp papers shall not beextended unless the court, for reasons to be recorded, is satisfied thatthe plaintiff was prevented by any cause of an exceptional nature fromcorrecting the valuation or supplying the requisite stamp papers, asthe case may be within the time fixed by the court and that refusal toextend such time would cause grave injustice to the plaintiff.”

9. A perusal of Order 7 Rule 11 CPC makes it clear thatthe relevant facts which needs to be looked into for deciding anapplication thereunder are the averments in the plaint. The trial courtcan exercise the power under Order 7 Rule 11 CPC at any stage of thesuit—before registering the plaint or after issuing summons to thedefendant at any time before the conclusion of the trial. For thepurposes of deciding an application under clauses (a) and (d) of Rule11 Order 7 CPC, the averments in the plaint are germane; the pleastaken by the defendant in the written statement would be whollyirrelevant at that stage, therefore, a direction to file the writtenstatement without deciding the application under Order 7 Rule 11 CPCcannot but be procedural irregularity touching the exercise of thejurisdiction vested in the court as well as procedural irregularity. TheHigh Court, however, did not advert to these aspect.”

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23 Expressing similar view, the Delhi High Court in the case of Ford MotorCompany (supra) held tas follows:-

7. We have heard in great detail MR. Satish Chandra, learnedSenior Counsel for the appellants and Mr. Saurabh Banerjee, learnedcounsel for the respondents. One principle of law which has not beendisputed by Mr.Saurabh Banerjee, learned counsel for therespondents, is that the narration of events contained in the plaint mustbe treated as factually correct for the purposes of deciding anapplication for the return or the rejection of the plaint, as the case maybe. Exphar SA v. Eupharma Laboratories Ltd. 2004 (28) PTC 251 (SC)holds that the averments made in the plaint must, in interlocutoryproceedings, be treated as true, and if an objection to jurisdiction israised by way of demurrer and not at the trial, the objection mustproceed on the basis that the facts as pleaded by the initiator of theimpugned proceedings are true.

24. Similar view has been rendered by the Madras High Court in the case ofUrooj Ahmed Lords Enterprise Vs. Prethi Kitchen Appliances Pvt. Ltd., reportedin 2013 (13) CTC 247 as well as Delhi High court in the case of Coca- Cola Co. vs.Bisleri International Pvt. Ltd., and Ors. Reported in 2009 (41) PTC 460 (Del).

25. In our instant case---- according to the plaintiff---- the plaint, under

consideration, reveals that the court below has territorial jurisdiction to try the suit. In

that connection, it has been pointed out that there are clear statements in the plaint

that plaintiff personally works for gain, carries on business in Dimapur through his

dealer/agent and also through the website of the Firm. The plaint also reveals that

the defendant No.1 carries on business in Dimapur through his agent, the defendant

No.2

26. In spite of above, court below came to the conclusion that the plaintiff does

not carry on any business or personally works for gain in Dimapur. It also concluded

that plaint does not disclose that the defendant No.1 too carries on business in

Dimapur. Such conclusions are clear manifestations of wrong appreciation of facts

stated in the plaint but also of provisions of Section 134 (2) of the Act of 1999,

Section 62(2) of the Act of 1957 and Section 20 of CPC since the Court below could

not appreciate the fact that Section 134 (2) of the Act of 1999 as well as Section

62(2) of the Act of 1957 enlarged the scope of Section 20(c) of CPC providing

additional forum to the plaintiff to file suits under the Acts aforesaid.

27. This important feature was overlooked by the Court below which is evidentfrom the fact that the court below concludes

“The question as to whether the defendant had been selling its products inDimapur or not is irrelevant. It is possible that the goods manufactured by thedefendant No.1 are available in the markets of Dimapur or they may be soldin Dimapur but that by itself would not mean that the defendant No.1 carrieson any business in Dimapur. From the discussion above, it is crystalclear that this court has no territorial jurisdiction even on the fact of plaintiffsaverments made in the plaint to entertain the present suit either U/s.134 of

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the Trade marks Act or under Section 62 of the copyright Act or U/s. 20 of theCPC. In the facts and circumstances, no cause of action wholly or partlyarose at Dimapur and therefore the plaintiff case does not fall within thescope of S.20 CPC in order to invoke the jurisdiction of this court”.

28. In support of its contention that Section 134 (2) of the Act of 1999 and Section62 (2) of the Act of 1957 expanded the scope of section 20 of the CPC, the plaintiffrefers to the decision of Delhi High Court, reported in Intas PharmaceuticalsLimited Vs. Allergan Inc. reported in 2006 (32) PTC 272 (Del.) (DB) where theDelhi High Court held as follows:-

Para 15. “In this view of the matter, and in terms of the aforesaiddiscussion, we are of the considered opinion, that the submissions of thelearned counsel for the appellant that Seciton 134 of the Trade Marks Actoverrides the provisions of section 20 of the Code of Civil Procedure and thatit impliedly repeals the said provisions, is found to be devoid of merit and isrejected. We hold that he provisions of Section 134 of the Trade Marks Act,1999 do not whittle down the provisions of Section 20 of the CPC but onlyprovide an Additional Forum and place for filing a suit in the case of any trademark violation. “

29. On discussing such an issue from various angles, Madrass High Court too inM.K. Sowbhagyam & Ors., Vas. Wipro Ltd., & Ors., reported in 2010 (42) PTC 410(Mad) held in the following manner :-

“26. A plain reading of the above decision would certainly lend support tothe contention of the respondents/plaintiffs that Section 134 of the Act is inthe nature of expanding the scope of Section 20 of the CPC.”

30. Now, the question is when the statements, made in the plaint can be acted

upon or when such statements can be regarded as true and correct. This question

has been addressed to by the Delhi High Court in the case of Kapoor Saws

Manufacturing Company & Another Vs Crown Saw Blades Mfg. Co.&Ano reported in

2013(53) PTC 506 (Del). The relevant part is reproduced below: -

“139. Whether a plaint discloses a cause of action or not is essentially aquestion of fact. But whether it does or does not must be found out fromreading the plaint itself. For the said purpose the averments made in theplaint in their entirety must be held to be correct. The test is as to whether ifthe averments made in the plaint are taken to be correct in their entirety,a decree would be passed . Dealing with the merits of the case theirLordships noted that so far as the existence of a cause of action wasconcerned the documents filed along with the pleadings should be lookedinto. This was in addition to the pleadings, in order to explain or supportthem”.

31. Attacking the order, under challenge, further, it has also been contended that

the order VII Rule 11 and Order VII Rule 10 of CPC cover areas which are

fundamentally different. In the present case, the defendant No. 1 too filed an

application under Order VII Rule 11 read with section 151 CPC. The learned court

below by its order dated 23.01 2014 was pleased to return the plain, a matter

squarely covered under Order VII Rule 10 of CPC. Such an order in the facts and

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circumstances of the present case caused enormous injustice to the plaintiff/

appellant.

32. It has also been contended that the refusal to grant adjournment on

22.1.2014 in C.S.No.03/2013 was highly illegal since on such a date, the prayer for

adjournment was made on the ground that counsel for the plaintiff could not be

present before such court as he had to appear before the Hon’ble Supreme Court in

connection with SLP filed against the order dated 10.12.2013, passed in MA (F) No.

1(K) 2013. According to the learned counsel for the plaintiff, the ground on which the

adjournment was sought for was entirely rational, reasonable and realistic and the

learned court below ought to have accepted such a prayer for adjournment.

33. But such prayer was rejected on the ground that the aforesaid SLP had

nothing to do with the matter in dispute in CS No.3 of 2013. Such an approach on

the part of the trial court was enormously illegal since the courts are to consider the

authenticity and genuineness of the prayer seeking adjournment in the context in

which such prayer was made. Since the prayer for adjournment was rejected on

grounds which are entirely unreasonable, such rejection ultimately interferes with the

legality of order under challenge.

34. In that connection, learned counsel for the appellant plaintiff has relied on a

decision of this court in the case of Prasanta Kumar Katoni and Ors vs. Tuniram

Katoni and Ors reported in (2007) 2 GLT 689. For ready reference the relevant part

of the decision is reproduced below:-

8. In the case at hand, the fact that the plaintiff was sick on 12.07.05 wasnot disputed. In such circumstances, merely on the ground that as many asseven adjournments had already been granted, the learned Trial Court oughtnot to have refused adjournment and dismissed that suit unless it was,otherwise, satisfied that no good ground for seeking such adjournment hadbeen made out. Viewed thus, it is clear that the impugned order is a refusal toexercise jurisdiction vested in the Court. The rules of Procedure, we mustremember, are the handmaid of justice and not its mistress, and these rulesof procedure are meant to advance the cause of justice and not to defeat it.When such are the salutary objects of a court, it would not be fair to reject aprayer for adjournment of hearing of a suit made by a party merely on theground that more than three number of adjournments, as permitted by theCode of Civil Procedure, have already been obtained by the party concernedif the ground for seeking adjournment is, otherwise, justified and tenable.

35. Hon’ble Supreme Court in the case of State Bank of India Vs. Chanda

Govindji (GM) reported in (2008) 8 SSC 532 expressed similar view .

In ascertaining whether a party had reasonable opportunity to put forward hiscase or not, one should not ordinarily go beyond the date o n whichadjournment is sought for. The earlier adjournment, if any, granted wouldcertainly be for reasonable grounds and that aspect need not be once againexamined if on the date on which adjournment is sought for the partyconcerned has a reasonable ground. The mere fact that in the pastadjournments had been sought for would not be of any materiality. If the

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adjournment had been sought for on flimsy grounds the same would havebeen rejected. Therefore, in our view, that High Court as well as the learnedDistrict Judge and the Rent Controller have all missed the essence of thematter.

36. The learned counsel for the respondent No. 1, however, contends that there

was no infirmity in the order under challenge. To support such a contention, it has

been pointed out that there was no quarrel over the fact that plaintiff does not reside

in any place inside the territorial jurisdiction of Civil Court at Dimapur. There is no

dispute over the fact that the defendant No.1 too does not reside in any place within

the jurisdiction of the court aforesaid. According to the respondents, both respondent

No. 1 and plaintiff are the residents of Alwar in the district of Alwar in the State of

Rajasthan. More important, there is no positive material in the plaint to show that the

plaintiff carries on business or personally works for gain from such a place.

37. Similarly, there is nothing in the plaint to show that the defendant No. 1

carries on business or personally works for gain in such a place. The plaintiff also

could not establish that the defendant No. 2 is the agent/dealer of defendant No. 1.

Further, cause of action, if any, occurs not in Dimapur but in Alwar in the State of

Rajasthan. All these speak loud and clear that the Civil court at Dimapur has no

jurisdiction to try the suit in question and as such, same is liable to be returned.

38. In regard to the allegation that the products, manufactured by the plaintiff

company, can be purchased in any part of the country including Dimapur through its

website and as such, it can be said that plaintiff has been carrying on business in

Dimapur, it has been stated that such argument too is devoid of merit. In that

connection he relied on a decision of Delhi High Court in the Case of World Wide

Wrestling Entertainment INC vs. M/s Reshma Collections and others reported

in 2014(58) PTC (Del) CS (OS) 1801/2013. The relevant part is reproduced below:-

“19. As aforementioned-the plaintiff is claiming jurisdiction of this court byplacing reliance on Section 134(2) of the Act and Section 62(2) of the Copyright Actwhich are pari material. The plaintiff specifically relies on the “carries on business”clause of the basis of three facts, viz. firstly, that the programmes of the plaintiff arebroadcast in Delhi, secondly, on account of the fact that the merchandise of theplaintiff is available in Delhi, and thirdly, because the plaintiff’s website is accessibleto its clients in Delhi. I will deal with each of the contentions separately below.

20. I may deal with the plaintiff’s submission regarding territorialjurisdiction on account of its website being accessible in Delhi first, as bulk of thesubmissions have been advanced on this issue. Section 134(2) of the Act uses theexpression “carries on business”. The objective of inserting Section 134(2) was toprovide the plaintiff a convenient forum to file a suit for infringement, as long as theplaintiff voluntarily resides, carries on business or personally works for gain at suchplace. The said provision goes beyond the normal rules laid down in the CPC forvesting jurisdiction in Courts. The test to be satisfied as regards the aspect ofcarrying on business has been laid down in Dhodha House (supra). The sum andsubstance of the criteria laid down in Dhodha House (supra) is that an essential partof the plaintiffs business, coupled with an element of control exercised by the plaintiff,must exist in such place where the plaintiff claims to be carrying on business eitheron its own or through an exclusive agent.

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21. The aforementioned criteria will be equally applicable to a party thatconcludes transactions with its customers over the medium of internet as opposed toa physical retail space. Internet is another medium which provides audio-visualinteractive facility for doing business. Merely because it is a more advanced orsuperior medium, it does not impinge on the determination of the issue whether themerchandiser is carrying on business at a particular place. Prior to the advent of e-commerce business model, the tests which apply for determination of issues, such aswhen and where the contract is made, or whether the vendor carries on business atthe place where the merchandise may be sold, or service may be offered, would notchange and would be the same as apply to communications over telephone and fax(see Bhagwan Goverdhandas kedia Vs. GIrdharilal Parshottamdas & Co.MANY/SC/0065/1965 : AIR 1966 SC 543). In such cases, the plaintiff would have toshow that it actually has business interest at the relevant place a voice in what isdone; a share in the gain or loss and some control thereover. For example, theplaintiff could show that it has an exclusive C&F operator in the forum State, or anexclusive dealer that stocks the goods or services of the plaintiff in the forum State tobe delivered or shipped as per a consumer’s convenience. The plaintiff could showthat it has a registered/branch office to address a consumer’s dissatisfaction over theplaintiff’s merchandise or service. The plaintiffs goods for a particular geography. Inthe present case, no essential part of the plaintiffs business is carried on at Delhi. Infact, the plaintiff has not pleaded to having any branch office or exclusive agentanywhere in India, let alone Delhi. Merely because the website of the plaintiff isaccessible in Delhi in not sufficient to clothe this court with jurisdiction.

22. If the plaintiff submissions were to be accepted, it would mean thatthe plaintiff could file a suit at any place which provides internet access to theplaintiffs website, irrespective of the defendants location, only on account of theplaintiff website being accessible in the State. The insertion of Section 134(2) waswith a view to enable the plaintiff to institute a suit where it has actual and substantialbusiness interest so that an additional forum convenient to the plaintiff is available. Itthe intent of the legislature had been to vest jurisdiction solely on account ofaccessibility of plaintiffs website at the place of suing, then the same would havebeen expressly provided for, especially keeping in mind plaintiffs submissions thatthe legislature has recognized new media on account of various amendments.

23. In Intas Pharmaceuticals Ltd. V. Allergan Inc,MANU/DE/9199/2006:2006 (132) DLT 641 (DB), a Division Bench of this court heldthat Section 134(2) does not whittle down the provisions of Section 20 of the CPC butprovides an additional forum and a place for filing a suit in case of an infringement ofa trademark. Therefore, if the plaintiff can satisfy the conditions laid down in Section134(2), he may file a suit at such forum where he carries on business, but if the testas regards “carries on business” as laid down in Dhodha House (supra) is notsatisfied, the plaintiff has to then take resort to the provisions of the CPC with regardto jurisdiction contained in Section 15 to 20.”

39. Since the parties to this appeal laid claim which are diametrically opposite, we

need to know whose claim stands to reason. But before we proceed further, let us

have a look at the laws which deal with matters relating to place of suing. Section 15

to Section 20 of CPC deal with such matters. Section 15 of CPC speaks about the

Courts in which suits are to be instituted whereas Section 16 thereof says that suits

are to be instituted where subject matter is situated. On the other hand, Section 17

deals with suit relating to immovable properties which are situated in the jurisdiction

of different courts. On the other hand, when the local limits of the court is uncertain,

such matters are dealt with by Section 18 of CPC. On the other hand, Section 19

deals with suits relating to compensation for wrong to person or movables.

MA(F) 1(K)14

13

40. Section 20 of CPC speaks about the places where suites not covered by

Section 15 to 19 are to be instituted. For ready reference, Section 20 is reproduced

below:- .

Subject to the limitations aforesaid, every suit shall be intuited in a court

within the local limit of whose jurisdiction ---------

(a) the defendants, or each of the defendants where there are more

than one at the time of the commencement of the suit, actually

and voluntarily resides, or carries on business, or personally

works for gain, or

(b) any of the defendants where there are more than one, the time

of the commencement of the suit, actually and voluntarily

resides, or carries on business, or personally works of gain,

provided that in such case either the leave of the Court in given

or the defendants who do not reside, or carry on business, or

personally work for gain, as aforesaid, acquiesce in such

institution;

(c) the cause of action, wholly or in part, arises.

41. Thus, the criteria, specified in Section 20 of the CPC, would determine the

places where the suits, not mentioned in Section 15 to 19 of CPC, are to be

instituted and such criteria are entirely dependent on the status etc of the

defendants.

42. The learned counsel for the plaintiff, however, contends that in so far suits

relating to infringement of the Copy right and the Trade Mark are concerned, such

suits can also be filed in places where the plaintiff actually and voluntarily resides or

carries on business or personally works for gain. In other words, in so far suits under

the Act of 1957 and under the Act of 1999 are concerned; Section 62 (2) of the Act of

1957 or for that matter, Section 134(2) of the Act of 1999 provides additional

platforms. The decision Intas Pharmaceuticals Limited (supra ) as well as to the

decision in M.K. Sowbhagyam & Ors., Vas. Wipro Ltd. (supra) clearly establish

such a position in law.

43. Plaintiff quite arduously contends that in matter of rejection or in matter of

return a plaint, certain matters are well settled. They are (a) a court, seized with

matter relating to rejection or return a plaint , needs to look into the statements in

the plaint, (b) no other materials , not even written statement can be looked into at

that stage, (c) for such purposes, the statements, made in the plaint are to be

considered as truthful one and (d) If the statements, so made in the plaint, reveal

MA(F) 1(K)14

14

cause of action or confers on the court, concerned, the necessary jurisdiction to try

the dispute in the plaint, the court cannot reject or return the plaint. On reading the

decisions, relied on by the plaintiff in between the lines, I have found that aforesaid

propositions are correct pronouncements of the law on the subjects, stated above.

44 One may also note here that the Apex Court of the country, in the case of

Liverpool & London S.P. & I Association Ltd V. M.V. Sea Success 1,(2004) 9 SCC

512 has laid down the test for accepting and acting on such statement in the plaint

and such test--- is ---- whether a decree ,as prayed for, can be granted, if one takes

the averments, made in the plaint as correct and truthful. The relevant part is

reproduced below:-

139. Whether a plaint discloses a cause of action or not is essentially aquestion of fact. But whether it does or does not must be found out fromreading the plaint itself. For the said purpose the averments made in theplaint in their entirety must be held to be correct. The test is as to whether ifthe averments made in the plaint are taken to be correct in their entirety,a decree would be passed .

45. According to the learned counsel for plaintiff, plaint contains clear but

convincing statements to show that the court at Dimapur has territorial jurisdiction to

try the dispute in question. Does such a contention hold any water? On perusal of

the plaint, I have found that it is true that in the plaint, there are statements to the

effect (i) the plaintiff has been carrying on business at Dimapur through its dealers

and agents and (ii) the plaintiff personally works for gain in the city of Dimapur.

However, such bald statements are not enough to confer the court at Dimapur to

exercise jurisdiction over the dispute in question.

46. Even one assumes for the sake of argument that such a statement is true,

yet, on the basis of such statements, a decree, as prayed for, can never be granted

in favor of the plaintiff. In my opinion, in the facts and circumstances of the present

case, in the terms of Order VII Rule 14 of the CPC, the plaintiff was duty bound to

produce some more materials before the court to remove the vagueness in the

claim made in the plaint so as to show that the court at Dimapur has jurisdiction over

the dispute in question.

47. In that connection, we can also peruse the decision of the Apex Court in the

case of Liverpool & London S.P. & I Association Ltd V. M.V. Sea Success 1,reported

in (2004) 9 SCC 512. The relevant part is reproduced below:-

138. We, therefore, are of the opinion that letters patent appeal wasmaintainable.

Rejection of plaint.

139. Whether a plaint discloses a cause of action or not is essentially aquestion of fact. But whether it does or does not must be found out from

MA(F) 1(K)14

15

reading the plaint itself. For the said purpose the averments made in theplaint in their entirety must be held to be correct. The test is as to whether ifthe averments made in the plaint are taken to be correct in their entirety, adecree would be passed.

140. A cause of action is a bundle of facts which are required to be pleadedand proved for the purpose of obtaining relief claimed in the suite. For theaforementioned purpose, the material facts are required to be stated but notthe evidence except in certain cases where the pleading relies on anymisrepresentation, fraud, breach of trust, willful default, or undue influence.

141. Order 7 Rule 14 of the Code of Civil Procedure provides as follows:

“14. Production of document on which plaintiff sues or relies---(1) Whethera plaintiff sues upon a document or relies upon document in his possessionor power in support of his claim, he shall enter such document in a list, andshall produce it in court when the plaint is presented by him and shall, at thesame time deliver the document and a copy thereof, to be filed with the plaint.

(2). Where any such document is not in the possession or power of theplaintiff, he shall, wherever possible, state in whose possessions or power itis.

(3) Where a document or a copy thereof is not filed with the plaint under thisrule, it shall not be allowed to be received in evidence on behalf of the plaintiffat the hearing of the suit.

(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff’s witness, or handed over to a witness merely torefresh his memory.

142. In the instant case the Club not only annexed certain documentswith the plaint but also filed a large number of documents therewith.Those documents having regard to Order 7 Rule 14 of the Code of CivilProcedure are required to be taken into consideration for the purposeof disposal of application under Order 7 Rule 11(a) of the Code of CivilProcedure.

48. Since the statements in the plaint qua jurisdiction of the Court over the

dispute in question are found to be very vague, since the plaintiff fails to produce

more materials in the terms of Rule 14 Order VII to remove the vagueness in the

statements in the plaint and since on such bald statements, no decree as prayed for

could be granted, the statements aforesaid could not be said to have established

that the Civil Court at Dimapur had the necessary jurisdiction to try the dispute in the

suit, aforesaid.

49. Since Section 20 (b) of CPC too enables the plaintiff to file a suit where the

defendant works for gain or carry on business or actually and voluntarily resides ,

the plaintiff contends that the defendant No.1 carries on his business in Dimapur

District through his agent , the defendant No.2. Once again, the plaint does not

reveal any material to show that the defendant No.1 has been carrying on business

in Dimapur through the defendant No.2. His statements in the plaint on this count

too are found to be too obscure and such unclear statements are also not enough to

confer the court with necessary jurisdiction to try the dispute in question.

MA(F) 1(K)14

16

50. One may note here that while preferring an application under Order VII Rule

11 seeking rejection of the plaint, the defendant No.2 contends that he is not agent

of the defendant No.1. Rather he conducted his business on his own and is,

therefore, entirely responsible for the loss and profit of his firm. There is nothing on

record to show such statements of the defendant No. 2 cannot be accepted .Such a

statement has, therefore, settled once for all that defendant No.2 is not the agent of

defendant No.1. This is one more testimony to the fact provision of Section 20 of the

CPC cannot be invoked in the case in hand.

51. In an yet another effort to show that he has been carrying on business in the

city of Dimapur , the plaintiff submits that since any one can purchase the products ,

manufactured by firm of the plaintiff in any part of the country including the city of

Dimapur through the website of the company, the plaintiff needs to be held to have

been doing business in the city of the Dimapur through the website of the

company .Once again, one needs to know if , in view of law laid down on such a

point , such a contention from the side of plaintiff can be accepted .

52 Such a matter had come up for consideration of the Delhi High Court in the

case of World Wide Wrestling Entertainment INC vs. M/s Reshma Collections

(supra ) and held that the business done through website does not satisfy the

requirement of Section 134 (2) of the Act of 1999 or Section 62(2) of the Act of

1957. I respectfully agree with the aforesaid decision of Delhi High Court and

therefore, I have found reason to conclude that business, conducted through

website does not confer jurisdiction on a court even if such transaction through

website occurs at a place within the jurisdiction of the court concerned.

52A. It may be stated here that in its plaint, the plaintiff had candidly admitted that

it was not aware of full constitutions of the dependents and as such, the court may

be pleased to direct the dependents to furnish full particulars of their constitutions.

Such a statement in the plain, in the facts and circumstances of the present case,

goes a long way in establishing the obscurity of the claim of the plaintiff that the

court at Dimapur has territorial jurisdiction to try the dispute in the suit aforesaid

53. It needs to be stated here that one of the criteria, specified in Section 20© of

the CPC was that a suit can filed in place where the cause of action wholly or in part

arises. A perusal of the plaint reveals that the cause of action, if any, arose at a

place within the jurisdiction of Court at Alwar in the State of Maharashtra. Being so,

Section 20© of the CPC too does not help the plaintiff in preferring the suit above in

the court at Dimapur .

54. In view of the above, I am constraint to hold that the plaintiff could not

establish (a) the cause of action for the suit in question arose at Dimapur and (b) he

could not establish that he carries on business or personally works for gain in anyMA(F) 1(K)14

17

place within the jurisdiction of Dimapur Court in a way as required under Section

134(2) of the Act of 1999 or Section 62(2) of the Act of 1957. I have also found that

the plaintiff also could not establish that defendant No.1 carries on business in any

place in the city of Dimapur through his agent/dealer in a way as required under

Section 20(b) of CPC.

55. The learned counsel for the respondents/ defendants further submit that a

court is always under an obligation to see that no vexatious suit is filed aimed at

harassing the opposite party. Such suits are to be nipped in the bud so that it saves

the innocent parties from unnecessary harassment, apart from saving the precious

time of the court. According to learned counsel for the defendants, the present suit is

one which clearly comes within above observations. In support of such a contention,

my attention has been drawn to the decision of Apex Court in T.Arivandanadam vs.

T.V.Satyapal and Another in (1977) 4 SCC 467 as well as in Church of Christ

Charitable Trust Society vs. Ponniamman Education in (2012) 8 SCC 706.

56. In T.Arivandanadam vs. T.V.Satyapal and Another (supra), the Apex held as

follows:-

“5. We have not the slightest hesitation in condemning the petitioner forthe gross abuse of the process of the court repeatedly and unrepentantlyrestored to. From the statement of the facts found in the judgment of the HighCourt, it is perfectly plain that the suit now pending before the First Munsif’sCourt, Bangalore, is a flagrant misuse of the mercies of the law in receivingplaints. The learned Munsif must remember that if on a meaningful not formalreading of the plaint it is manifestly vexatious, and meritless, in the sense ofnot disclosing a clear right to sue, he should exercise his power under OrderVII, Rule 11, C.P.C. taking care to see that the ground mentioned therein isfulfilled. And, if clever drafting has created the illusion of a cause of action, nipit in the bud at the first hearing by examining the party searchingly underOrder X, C.P.C. An activist Judge is the answer to irresponsible law suits. Thetrial courts would insist imperatively on examining the party at the first hearingso that bogus litigation can be shot down at the earliest stage. The PenalCode is also resourceful enough to meet such men, (Cr.XI) and must betriggered against them. In this case, the learned judge to his cost realizedwhat George Bernard Shaw remarked on the assassination of MahatamaGandhi.

“It is dangerous to be too god”

6. The trial court in this case will remind itself of Section 35-A, C.P.C andtake deterrent action if it is satisfied that the litigation was inspired byvexatious motives and altogether groundless. In any view, that suit has nosurvival value and should be disposed of forthwith after giving an immediateharing to the parties concerned. “

57. In Church of Christ Charitable Trust Society (supra), rendering similar view,

the Hon’ble Apex Court again held:-

MA(F) 1(K)14

18

“It is also useful to refer the judgment in T.Arivandandam v. T.V. Satyapal,wherein while considering the very same provision i.e Order 7 Rule 11 andthe duty of the trial court in considering such application, this court hasreminded the trial Judges with the following observation : (SCC p. 470, Para5)

“5….. The learned Munsif must remember that if on a meaningful notformal reading of the plaint it is manifestly vexatious, and meritless,m in thesense of not disclosing a clear right to sue, he should exercise his powerunder Order 7 Rule 11 CPC taking care to see that the ground mentionedtherein is fulfilled. And, if cleaver drafting has created the illusion of a causeof action, nip it in the bud at the first hearing by examining the partysearchingly under Order 10 CPC. An activist Judge is the answer toirresponsible law suits. The trial courts would insist imperatively on examiningthe party at the first hearing so that bogus litigation can be shot down at theearliest stage. The Penal Code is also resourceful enough to meet such men(Chapter XI) and must be triggered against them”

It is clear that if the allegations are vexatious and meritless and notdisclosing a clear right or material(s) to sue, it is the duty of the trial Judge toexercise his power under Order 7 Rule 11. If clever drafting has created theillusion of a cause of action as observed by Krishna Iyer, J.in the abovereferred decision, it should be nipped in the bud at the first bud at the firsthearing by examining the parties under Order 10 of the Code. “

58. We have already found that plaintiff have assailed the order under challenge

on some other grounds as well. The plaintiff contends that this court by its order

dated 10.12 .2013 in MA No. 3(K)/ 2013 has directed the court below to frame an

issue on the question of jurisdiction of the court, and then, to decide the matter.

According to the plaintiff, issue relating to jurisdiction cannot be decided without

framing an issue and without taking evidence on such an issue.

59. In support of such contention, the plaintiff places reliance on the decision of

the Delhi High Court in the case of Coca—Cola Company (supra), , Ford Motor

Company and Anr(supra) and Suresh Chand Purwar (Karta) (supra).Since the

court below did not frame any issue on such a vital question , much less plaintiff

being allowed to lead evidence to show that the court at Dimapur has jurisdiction,

the order of the court , rendered on 23.01. 2014 in CS No. 3/2013 is liable to be

quashed and set aside on this count alone.

60. Such an argument, advanced from the side of plaintiff, is found to be wholly

unsustainable. The plaintiff strenuously claims that in the course of any suit, if any

question arises regarding the rejection or return of plaint, then such a question is to

be considered on the basis of the statements in plaint on treating such statements

as correct and truthful. The learned court below had exactly done what the plaintiff

has been contending so arduously, and then, it came to the conclusion that such a

court has no territorial jurisdiction to entertain the suit aforesaid.

MA(F) 1(K)14

19

61. Since the matters relating to return of plaint or rejection of the same are to

be decided on the basis of statements made in the plaint, since the trial court held

that it lacks territorial jurisdiction to try the suit in question and since the lack of

territorial jurisdiction requires the court to return the plain to the plaintiff to be

presented before the appropriate court, in my view , the court below committed no

wrong in rendering the order on 23.01 2014 which is questioned in this appeal.

62. In regard to non framing of an issue on the point of jurisdiction of the court to

try the suit, above, it may also be stated that before the attending the order of this

court rendered on 10.12.2013 in MA(F) 1/2013 , the defendant No. 2 too had filed an

application under Order VII Rule 11 seeking rejection of plaint. Since the

rejection of plaint requires the court to dismiss the plain at the very threshold, since

such rejection needs to be done only on looking at the plaint and nothing else and

since the court below ultimately came to the conclusion that it has no territorial

jurisdiction to try such a suit, perhaps the court below cannot be faulted for rendering

the order which is challenged in this appeal.

63. Even if one assumes for the sake of argument that the order in question

suffers from an infirmity for rendering such an order not in accordance with direction

of this court, passed on 10.12. 2013 in MA No. 3(K)/ 2013, yet, such an infirmity, in

the facts and circumstances of the case in hand, can at best be regarded as an

irregularity, not forceful enough to make the order in question illegal and

unsustainable.

64. It needs to be stated here that the dispute over the jurisdiction of the court to

try the suit in question has been there at all the material time, as is evident from

order dated10.12 2013, passed in MA (F)No. 1/ 2013 as well as the order which is

questioned in this appeal. This clearly shows that the plaintiff was quite aware of

allegation to the effect that trial court had no jurisdiction to try the suit

aforementioned. This, in turn, shows that the question of prejudice having been

caused to the plaintiff for rendering order aforesaid on 23..01.2014 does not arise,

more so, when the matter relating return of plaint etc. are to decided on the basis of

statements in the plaint itself .

65. The order in question was also attacked on the ground that though his

petition U/ O VII Rule 11 of the CPC, the defendant No. 2 prayed for rejection of the

plaint, yet, the court below was pleased to pass an order retuning the plaint and

same was presumably done in exercise of the power conferred on the court by virtue

of law laid down in Order VII Rule 10 of the CPC. This is not permissible under the

law ----contends learned counsel for the plaintiff.

66 There cannot be any dispute over the fact that the Order VII Rule 10 and

Order VII Rule 11 of the CPC cover maters which are different. While the formerMA(F) 1(K)14

20

deals with return of plaint, the later relates to rejection of plaint. More important, the

consequences are also different. While rejection of a plaint is a decree within the

meaning of decree, so defined in Section 2(2s) of the CPC, the return of a plaint is

only an appealable order.

67. But then, since the matters relating to rejection of plaint and return of the

plaint are to be considered only on looking at the plaint and nothing else, the

infirmity, now under consideration, perhaps, cannot be viewed as an illegality having

an effect to overthrow the order under challenge, more so, when the court below

ultimately came to the clear conclusion that it has no territorial jurisdiction to try such

a suit and when such a decision also finds favor of this court as well.

68. Another which the plaintiff has been pressed into service to overthrow the order

in question is that the refusal on the part of the court to grant adjournment on

22.01.2013. On such a date , the plaintiff had prayed for adjournment on the ground

that his engaged counsel could not attend court since he was to appear in a Special

Leave Petition before the court filed against the order dated 10. 12.2013 passed in

MA 3(k) of 2013.

69. According to plaintiff, such a ground was extremely reasonable and rational one

and on such a ground, being shown, the learned court below ought to have

adjourned the case on 22.01.2014. In that connection, reliance is place on a

decision of this Court in the case of Prasanta Kumar Katoni (supra) as well as the

decision of the Apex Court in State Bank of India Vs. Chanda Govindji (supra).

70. It is true that a genuine ground was assigned for the absence of concerned

counsel of plaintiff on 22.01.2014, but then, once must not be oblivious to the fact

that several adjourns had already been granted to the plaintiff by such a date to

place his side of story before the court 22.01.2014 on the point of jurisdiction of the

Court to entertain the matter in question. Still then, plaintiff on one ground or other

kept on prolonging the hearing of the matter pertaining to jurisdiction of the court.

71. Such revelations, coupled with the fact that this court by its order dated 10.12

2013 passed in MA 3(k) of 2013, required the court below to dispose of the matter

relating to jurisdiction of the court within two months from the date of appearance of

the parties as well as the fact that in inter-gum, the defendant No. 2 too had filed a

petition U/O VII Rule 11 of the CPC, require me to hold that the rejection of the

prayer seeking adjournment on 22.01 2013 cannot be made a ground to dislodge

the order under challenge.

72. In view of what I have discussed herein before and what have emerged there-

from, I am of the opinion that the order under challenge does not suffer from any

MA(F) 1(K)14

21

infirmity whatsoever and being so , the present appeal lacks merit which require this

court to dismiss the appeal.

73. Consequently, this appeal is dismissed, off course without any cost.

74. Return the LCR immediately, if same was called for in the meantime.

JUDGE

samir

MA(F) 1(K)14