P.AYYASAMY Vs. B.MOHAMMED YOUSUFF

JUDGEMENT

(1.) This civil revision petition is filed by the defendant in a suit for bare injunction. He is aggrieved against the order passed by the court below in I.A.No.1654 of 2009 in dismissing the said application filed by him under section 5 of the Limitation Act, seeking to condone the delay of 251 days in filing the petition to set aside the exparte decree passed in the said suit in O.S.No.107/2007.

(2.) The respondent herein filed the above said suit before the District Court, Coimbatore under Order 7 Rule 1 and Sections 26, 151 of C.P.C. read with Sections 28, 19, 134 and 135 of the Trade Marks Act, 1999. The respondent herein sought the relief of permanent injunction restraining the petitioner herein from manufacturing, selling, advertising and offering for sale by infringing the plaintiff s registered trade mark Maharaja Brand along with the device of Maharaja in relation to rice or by using the trade mark Nala Maharaja" along with the device Maharaja or by using any other mark or marks which are in anyway visually similar to the plaintiff s registered trade mark "Maharaja Brand". He also sought for other reliefs for surrender of unused bags, etc., and for render of true and faithful account of profits earned by the defendant through a sale of rice by using the plaintiff s registered trade mark Maharaja Brand .

(3.) On 16.12.2008, the trial court passed an exparte decree as the petitioner herein did not appear before the Court on the said date. Subsequently, the petitioner filed I.A.No.1654 of 2009 on 24.08.2009 under section 5 of the Limitation Act seeking to condone the delay of 251 days in filing the petition to set aside the exparte decree. It is the contention of the petitioner before the court below that he was under the impression that the written statement had been filed along with counter statement by his counsel and he was expecting information from his counsel about the date of hearing. Thus, it is stated that he was not aware of the fact that he was set exparte and an exparte decree came to be passed in the suit on 16.12.2008 and that he came to know about the said fact only after receiving a communication from an Advocate representing Partners of M/s.Shanmugha Modern Rice Mill, Kangeyam on 20.08.2009. He had been trying to contact his counsel at Coimbatore several times and he was not available. Thus, a delay of 251 days has occurred in filing the petition to set aside the exparte decree. The said application was resisted by the respondent herein by filing a counter affidavit. The court below considered the matter elaborately and by passing a detailed order, rejected the said application by holding that the petitioner has not shown and proved the sufficient cause for condoning the delay of 251 days. Aggrieved against the same, the present civil revision petition is filed.