ARDATH TABACCO COMPANY LTD Vs. MUNNA BHAI

JUDGEMENT

(1.) THE plaintiff, engaged in the business of manufacture and sale of internationally known cigarettes STATE EXPRESS 555, instituted the present suit for restraining the defendants No. 1 to 3, vendors/ stockist of cigarettes at Calcutta and defendants No. 4 to 6 the vendors/stockiest of cigarettes at Delhi from dealing in the cigarettes under the label PEACOCK but the packaging and trade dress whereof is identical or deceptively similar to that of the plaintiff'es cigarettes. Besides the defendants No. 1 to 6, the plaintiff sought the order in the nature of "john Doe" as adopted by the american, English, Canadian and Austrian courts and which, Hon'ble Mr justice Dalveer Bhandari of this court (as his Lordship then was), in exparte order dated 14th June, 2002 in IA No. 5628/2002 in CS (OS) 1072/2002 held to be applicable and justified by Indian Courts as well. Thus Ashok Kumars were impleaded as defendants No. 7 to 23.

(2.) VIDE ex parte order dated 19th February, 2004, the defendants were restrained from manufacturing, selling, stocking or dealing in cigarettes under a label, carton or packaging material deceptively similar to the label, carton and packaging material and artistic work as of the STATE EXPRESS 555 of the plaintiff. The defendant No. l had initially appeared through counsel and also filed a counter affidavit in this court. However, the said counsel subsequently after duly notifying the defendant No. l and upon the failure of the defendant No. 1 to instruct, sought discharge and the defendant no. l was on 13th December, 2005 proceeded against ex parte. The defendants No. 2 and 3 also failed to appear in spite of service and were vide order dated 12th July, 2006 ordered to be proceeded against ex parte. The defendant No. 5 died during the pendency of the suit and his legal heirs were ordered to be substituted vide order dated 21st August, 2006. The defendants 4 and 6 and the legal heirs of defendant No. 5 compromised the matter with the plaintiff and decrees in terms of the said. compromise were passed against them. Thus the suit survives against the three Calcutta defendants only.

(3.) VIDE ex parte order dated 19th February, 2004 (supra) this court had also appointed two court commissioners, one for visiting the premises of the defendants 4 to 6 in Delhi and the other for visiting the premises of the defendants 1 to 3 at Calcutta as well as any other premises (probably on the basis of "john Doe" order (supra)) where the impugned goods were suspected to be stocked. The Court Commissioners appointed to visit the premises of the defendants 1 to 3 against whom only the suit survives, at Calcutta, not only found the infringing goods in the premises of the defendants 1 to 3 but also in some other neighbourehood premises and the Court Commissioner as directed took possession of all the infringing goods and delivered the same to counsel for the plaintiff.