USV LIMITED D BLOCK 1ST FLOOR 9 SOUTH BOAG ROAD ADWAVE TOWER T NAGAR CHENNAI 600 017 Vs. SYSTOPIC LABORATORIES LIMITED NO 11 1ST STREET RAILWAY COLONY MEHTHA NAGAR CHENNAI 600 029

JUDGEMENT

(1.) PLAINTIFF in C. S. No. 58/03 on the file of the Original side of the High Court, Madras, is the appellant in O. S. A. No. 258/03 and the defendant in the said C. S. No. 58/03 is the appellant in O. S. No. 360/03. The said C. S. No. 58/03 was filed by the plaintiff for passing off action against the defendant and along with the civil suit, he also filed O. A. No. 95/03 for injunction, pending the suit, restraining the defendant/respondent from dealing with the medicinal and pharmaceutical preparation under the trade mark PIO-15 and PIO-30 which according to him are identical with and deceptively similar to the plaintiffs trade mark PIOZ-15 and PIOZ-30.

(2.) THE learned single Judge ordered notice on the said application on 28. 1. 03. THE defendant/respondent appeared and filed his counter. He also filed O. A. No. 1396/03 for issuance of notice to the plaintiff/applicant as to why he should not be prosecuted for the acts of perjury and making false statements. THE learned single Judge, by a common order dated 11. 7. 03 dismissed both the applications. THE learned single Judge, while dismissing the injunction application, held that he defendant/respondent has no registered address at Chennai and, therefore, ought to have obtained leave to sue the first defendant, who according to the learned single Judge, was carrying on business outside the jurisdiction of this Court. THE learned single Judge further held that the word PIO is publici juris and the plaintiff/applicant had no monopoly over the same and that the products are not identical. In view of the above findings, the application for injunction sought by the plaintiff/appellant was dismissed. THE learned single Judge also dismissed O. A. No. 1396/03, as stated earlier, holding that no perjury has been committed by the plaintiff/appellant since the address given in the plaint of the appellant is only a bona fide mistake of fact as he believed the address to be the official address of the first defendant. Aggrieved by the said order refusing to grant injunction, O. S. A. No. 258/03 has been filed by the plaintiff/appellant and aggrieved by that portion of the order refusing to initiate action for perjury against the plaintiff/appellant, the defendant has directed O. S. A. No. 360/03. As the issues involved are interlinked in the two appeals, they are disposed of by the following common order.

(3.) NOW we will have to take up the first contention to find out whether the first defendant was marketing his products under the brand name PIO-15 and PIO-30 in Chennai through the consignee agent. If we come to the conclusion that he has been marketing his products at Chennai, then it goes without saying that the first defendant was carrying on his business in Chennai and there will be no necessity for the plaintiff to obtain leave for suing him as this Court gets jurisdiction to entertain the suit a gainst him.