OM PRAKASH GUPTA Vs. PARKASH KUMAR

JUDGEMENT

(1.) VIDE impugned judgment dated 19th May 2000, while deciding IA No. 7665/1999 and IA No. 8739/1999, the suit filed by the appellant has been dismissed on the ground that there being a suppression of a material fact, not only was the ex -parte injunction granted liable to be vacated, but even the plaint was liable to be rejected. The suppression found is, it not being disclosed in the plaint that when the Registrar of Trade Marks granted to the appellant registration of the trademark (word mark) 'Suraj' as also the device of 'Sun', the same was with a disclaimer of the word 'Suraj' and the device 'Sun'.

(2.) AS explained in the appeal and as urged by learned counsel, the appellant, engaged in the trade of selling tobacco, would not understand what disclaimers would be. He only understood, when his lawyer, at his instructions, applied for and obtained the aforesaid registration. The counsel never informed that the same were with a disclaimer. Unfortunately, it is not the requirement of law that while granting registration, on the certificate, the Registrar should mention the fact of a disclaimer, if any. Thus, on the strength of the certificate, when the appellant went to another counsel on finding infringement by the respondent, the counsel concerned drafted the plaint on the strength of the certificate granted.

(3.) LEST parties are prejudiced, and as we proceed to remand the matter for fresh adjudication, we speak no further.