HINDUSTAN PENCILS LTD Vs. RAJU BHAI BHATT

JUDGEMENT

(1.) -Defendants have moved this application under Order 7, Rule 11 of the Code of Civil Procedure for rejection of the plaint/dismissal of the suit on the ground that it is barred under law as there is no cause of action to file this suit. It is stated that the plaintiff had earlier filed another suit being CS (OS) No. 664/1991 against the same defendant before this Court alleging infringement of plaintiff's trademark "Natraj". The said suit was, thus, for the same cause of action between the same parties. The injunction application in the said suit was dismissed and ex parte injunction order vacated vide a reasoned order dated 10th July, 1991 passed by J.K. Mehra, J. No appeal was preferred against the said order. Instead, review application being RA No. 14/1991 was preferred which was also not pressed. On 20th September, 1994 when the aforesaid earlier suit was fixed for hearing, it was brought to be notice of the Court that Sh. Vasudev, sole proprietor of the defendant firm, had died. However, legal representatives of the deceased defendant were not brought on record as a result of which CS (OS) No. 664/1991 was abated vide order dated 20th February, 1991 passed by this Court, which reads as under :

(2.) On the basis of the aforesaid facts it is submitted that the present suit is liable to be dismissed inasmuch as: (a) when on the death of the sole proprietor of the defendant cause of action still survived, legal representatives of the deceased could be brought on record and suit proceeded. However, this was not done and, therefore, the plaintiff was guilty of negligence and laches because of which suit was dismissed as abated and the plaintiff is to bear the consequence thereof; (b) Section 11 of the Code of Civil Procedure would apply which provides that no Court shall try any such issues in which the matter directly and substantially was in issue in the former suit between the same parties or between the parties under whom they or any of them claim, were litigating; (c) Section 11 of the CPC stipulates that where the plaintiff is precluded by rule for instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action; and (d) Order 22 Rule 9(i), CPC provides that where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action.

(3.) Learned Counsel for the plaintiff accepted notice of this application and stated that no reply is required to be filed. Both the Counsel were accordingly heard.