M/S. DARZI ON CALL Vs. SUNIL MITTAL

JUDGEMENT

(1.) By the present petition under Sec. 114 and Order XLVII rule 1 read with Sec. 151 [Hereinafter referred to as 'review petition"] of The Code of Civil Procedure, 1908 [Hereinafter referred to as 'CPC"] appellant seeks review of order dtd. 12/5/2023 whereby this Court, while making certain interim arrangements in disposing of its appeal, after considering multifarious factors, has modified the impugned order dtd. 19/4/2017 passed by the learned Single Judge to the extent specified in paragraph 15 therein. <IMG>JUDGEMENT_99_LAWS(DLH)7_2023_1.jpg</IMG>

(2.) According to appellant, the said order calls for review as there is an error apparent on the face of the record as this Court has relied upon the misstatement of the learned senior counsel for respondents qua the respondents' application under Order VI rule 17 of the CPC for bringing the registrations of the word mark 'Darzi/ The Darzi' [Hereinafter referred to as 'word mark"] in various Classes on record before the learned Single Judge being allowed whereas actually the said application was pertaining to the registrations for the composite logo mark [Hereinafter referred to as 'logo mark"] only and also as this Court by virtue of the order under review has granted independent rights to the respondents over the word mark and further as the appellant has never sought any exclusivity over the word 'Darzi' but has always asserted its right over the logo mark only. Further replying upon Jain Shikanji Private Limited Vs. Satish Kumar Jain 2023/DHC/001486 delivered by this very Court, it was contended that this Court could not have taken the fresh/ new registrations into consideration. Lastly, relying upon S. Nagaraj and Ors. vs. State of Karnataka and Anr. 1993 Supp (4) SCC 595 and M.M. Thomas vs. State of Kerala and Anr. (2000) 1 SCC 666, learned counsel for appellant contended that it is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain orders were passed on a wrong or mistaken assumption of facts and that the implementation of those orders would have serious consequences.

(3.) In response, the learned senior counsel for respondents contended that despite obtaining registrations for the word mark in various Classes, respondents were unable to file any application under Order VI rule 17 of the CPC for bringing them on record before the learned Single Judge due to change of counsel thereby resulting in miscommunication. Further, drawing attention of this Court to paragraph 11 of the order under review, it is contended that this Court was duly apprised of the fresh registrations for the word mark obtained by respondents in Class 38 in 2018 and Class(s) 24 and 35 in 2021, however, it was inadvertently submitted before this Court that the said grants had been amended/ incorporated in the pleadings and reliefs before the learned Single Judge.