HINDUSTAN LEVER LIMITED Vs. V V DANUSHKODI NADAR

JUDGEMENT

(1.) THIS revision is directed against the order of interim injunction granted by the Vacation civil Judge, Tirunelveli, in I.A. No 164 of 1989 in T.M.O.P. No. 66 of 1989. The case of the respondents plaintiffs is that they are the proprietors of a novel and original design for containers which has been duly registered on All India basis under No. 153931 as on 30.12.1983 under the Designs Act, 1911. a photo copy of the design registration is marked as document No. 1 while the container is marked as M.O.1. According to the respondents, the said container has a distinctive shape and configuration and that they have been exclusively marketing edible oil (coconut oil) in such containers. The respondents have done extensive business to the tune of 186 lakhs of rupees as per the statements of sales furnished in the plaint . They have spent a large amount for advertisements. Thought the period of five years have expired, they paid the renewal fee even prior to that date. They applied for renewal on 26.8. 1988 long prior to the expiry of the copyright on 30.12.1988 on the other hand, the petitioners herein have been manufacturing shampoo under the name "Clinic and Clinic Special" and has been using the container as per M.O. 2 and have slavishly copied and imitated the respondents containers. A specimen of the offending container used by the petitioner herein is filed along with the plaint as M.O. 3. By such user of the containers, the petitioners have been guilty of piracy of the respondents registration under Section 53 of the Designs Act, 1911. Besides, the petitioners are guilty of passing off their offending products. Hence, the respondents field the suit they also prayed for ad interim injunction till the disposal of the suit restraining the petitioners herein from in any way infringing the respondent's containers registered under the Design Act under registration No. 153931 field as document No. 1 and M.O. 1 in the plaint by manufacturing selling or offering for sale or in any manner advertising the same through news papers, magazines telecasting through television by using the offending container field as M.O. 3 in the plaint or any other container deceptively similar in the respondents registered containers and also from passing of their offending containers M.O. 3 as and for the registered container of the respondents herein filed as document No. 1 and M.O. 1 is the plaint till the disposal of the suit. The said suit was filed before the vacation Civil Judge on 10.5. 1989 and the said Court was pleased to pass interim injunction till 20.8.1989 aggrieved by the same, this revision is field on 23.6.1989. the petitioner has also obtained an order of stay on the same date.

(2.) THE learned counsel for the petitioner. Mr. U.R. Rao mainly contended that the validity of the certificate expires on 30.12.1988 and no order of the injunction ought to have been granted on the basis of the said document. Secondly, it was submitted that the suit should have been filed before the lowest Court of competent jurisdiction, nearly, District 'unaif's Court or Sub-Court, and not before the District Court. In view of Section 15 of the code of Civil Procedure. Sad for the relief of passing off, the remedy is only to file a suit normally under Section 9 of the Civil Procedure Code and sot under the provision of the Designs Act. THE learned counsel also submitted that the requirement as per Rule 3 or order 39, C.P.C. of delivery of the copies of the affidavits and plaint and the document on which the respondents relied, were not complied with while granting ex parte interim injunction and so the Court ought not to have extended the stay till 20.6.1989 Even on merits, it is submitted, by the learned counsel for the petitioner that the petitioners "clinic plus shampoo" costs Rs. 40/-while that of the bottle of the respondent costs a lesser amount of Rs. 14/- Further, their turn-over is much higher than the turn-over of the respondent and as such the injunction granted is not proper and valid. THE learned counsel for the respondent, Mr. S Subbiah in reply to the above arguments, mainly submitted that the revision petition itself is not maintainable as it is only an ad-interim injunction passed by the lower Court and the remedy of the petitioner is to move the said Court to vacate the interim injunction under Order 39 Rule 4, C.P.C. Further, the very order challenged is the order granting injunction till 20.6.1989 and the revision was filed on 23.6.1989. Fresh orders were passed on 20.6.1989. Since the injunction granted under the impugned order has expired already, the revision is not maintainable as infructuous. THE learned counsel also submitted that the questions as regards the maintainability of the suit and all other objections raised here are matters to be agitated only in the suit after the filing of the written statement, when especially the suit has already been taken on file and summons had been issued . THE question of jurisdiction is a matter to be decided by the said Court. Let as consider the rival contentions of both the parties in seriatim.

(3.) THE learned counsel for the respondents pointed out that this Court in the above decision relied on the decision of the supreme Court in Baldevadad v. Filtmatan Ltd. 1970 AIR(SC) 406, 1969 (2) SCC 201, 1970 (1) SCR 435 and the decision of the Himachal Pradesh High Court in Ramdas v. Subhan Baskshmi 1977 AIR(HP) 18) and held that only in cases where the rights or obligations the decision on controversy were adjudicated by the Court, the question of revision against that order arises under Section 115 C.P.C. and not otherwise. THE learned counsel for the revision negotiation Mr. H. N. R. Rao, drew the attention of this court is the explanations to Section 115, C.P.C. wherein it is stated that in this Section the expression any case which has been decided including any order made, or any order deciding an issue, in the course of a suit or other proceeding. According to the learned counsel, the taking of the plaint on file is also not in accordance with the provisions of the Act and further, the interim injunction order will decide the issue. This Court has not accepted the said contention in the prior case referred to above and held that no revision or appeal arises against interim injunction which is not the one that falls under the category of any order made or any order deciding an issue. I do not find any merit in the said contention. THE learned counsel for the petitioner drew the attention of this Court to the unreported decision rendered by me on 18.6.1987 in M/s Rajak Industries Private Ltd. v. Britannia Industries Ltd. In C.R.P. Nos. 2736 to 2738 of 1897 wherein I have upheld the contention that even though the revision against interim order is not maintainable, the revision having been admitted by exercising the power under Section 115, C.P.C., it cannot be dismissed on that ground of maintainability again should have been disposed of only on merits relying on the decision reported in Official Receiver G.v. Seshayya (D.B.) (52 L.W. 810) and the decision of Ramanujam, J. in Vaishnav College for Women v. Thomas (1917- 1 MLJ 76) and also the decision of the Supreme Court in Bukumchand v. Madnava 1983 (1) Scale 707, 1983 (2) UJ 421, 1983 AIR(SC) 540, 1984 (S) SCC 600, 1984 SSCC 600). In that view, the revision cannot be misplaced on the ground that it is not maintainable but it has to be decided on merits.