SURESH CHAND PURWAR Vs. VIVEK PURWAR

JUDGEMENT

(1.) This first appeal is filed under Order 43 Rule 1 (a) CPC against the judgement of the trial court dated 01.02.2013 by which the suit plaint filed by the appellant/plaintiff has been returned under Order 7 Rule 10 CPC for being presented in the Court of correct territorial jurisdiction. I note that the suit plaint has been returned not at the stage of final arguments, but at the initial stage of pleadings and where no evidence is led on behalf of the parties.

(2.) The subject suit filed by the appellant/plaintiff was a suit claiming rights in the trademark 'HARI' and 'HARISONS' used for seeking confectionary, spices etc. Relevant claims were of injunction against passing off, infringement, etc. The relevant para in the plaint with respect to courts in Delhi having territorial jurisdiction was para 23 which reads as under:

(3.) By the impugned judgment the trial court has arrived at a finding on a disputed question of fact by holding that Courts at Delhi do not have territorial jurisdiction because the trial court holds that the goods are not being sold by defendant at Delhi. This conclusion given by the trial court is a finding of fact only on the basis of pleadings and whatever documents exist on record without the plaintiff being given opportunity to prove his case of the Courts at Delhi having territorial jurisdiction during trial by leading evidence with respect to sale of the goods by the defendants in Delhi. It is also to be noted that trial court has for some inconceivable reason ignored the reply given by the defendants/respondents in reply to the legal notice/seize and desist notice of the plaintiff dated 20.08.2007. The respondents/defendants admitted to sale of the goods in establishments like Big Bazar, Salasar Spencer etc., which are situated in Delhi as per the case of the appellant/plaintiff.