WIN MEDICARE PVT. LTD. Vs. K. PHARMACEUTICALS

JUDGEMENT

(1.) BY this order I propose to dispose of I.A. No. 1556/2009 under Order IX Rule 13 read with Section 151 CPC for setting aside the ex parte judgment and decree dated 9th November, 2005 and I.A. No. 10416/09 under Section 151 CPC seeking condonation of delay in moving the application under Order IX Rule 13 read with Section 151 CPC.

(2.) THE brief facts of the case are that the plaintiff filed a suit for permanent injunction restraining infringement of copyright, passing of, rendition of accounts of profits, delivery up etc. against the defendant M/s. K. Pharma Works, Jind -126102. The said suit was for the first time listed before court on 16th December, 2005 when the summons in the main suit and notices in the application were issued to the defendant returnable on 17th February, 2006. On the next date of hearing, Mr. Manoj Sharma, appeared on behalf of the defendant and sought time to file written statement and reply to the injunction application. The next date of hearing in the matter was fixed for 25th March, 2006. On 25th March, 2006 another opportunity was granted to the defendant to file the written statement and reply subject to payment of costs of Rs. 10,000/ -and the next date of hearing in the matter was fixed for 4th May, 2006.

(3.) IN the application filed by the defendant under Order IX Rule 13 CPC, it is contended that the defendant came to know about the disposal of the suit on 14th December, 2008 when the legal notice sent by the plaintiff's Counsel was received by the defendant's staff. The defendant thereafter contacted his Counsel but could not get any satisfactory reply. The defendant then filed a complaint before the Delhi Bar Council against his counsel. It is stated that there was no fault on the part of the defendant who had engaged Counsel and has also signed the written statement but for the reasons best known to the Counsel, he did not appear before the court nor informed the defendant about the matter and in fact the defendant was misled by the counsel. On merit, the defendant has also denied any infringement of copyright and passing of his goods as that of the plaintiff.