JAGDAMBA OIL AGENCY Vs. K S OILS LIMITED

JUDGEMENT

(1.) HEARD. This Misc. Appeal under Order 43 Rule 1 of CPC has been filed challenging the order dated 1. 3. 2006 passed by the District Judge, Morena in Civil Suit No. 3-A/2005 allowing a application for temporary injunction filed by the plaintiff-respondent in the suit in question.

(2.) THE plaintiff-respondent No. 1 filed the suit in question seeking declaration and permanent injunction against the appellant and respondent No. 2 in the District Court, Morena which was registered at Suit No. 3-A/2005. It was the case of the plaintiff in the said suit that they are engaged in manufacturing and selling of mustered oil under a trade name viz. "double sher". The said product is being sold by the plaintiff since 1996. The defendant No. 1 and appellant herein is also selling mustered oil in the entire country by using similar words/trade name i. e. "double lion" having similar packing, design and colour. It was the case of the plaintiff that for registering their trade mark they have submitted an application, which is pending before the competent Registrar, however with a intention to cause damage to the business of the plaintiff, defendant No. 1 is selling the product in the area in question i. e. in Morena through defendant No. 2. Accordingly, this suit was filed against the defendant No. 1/appellant for restraining them force selling their product with the same brand name and with similarity in packing and other conditions alongwith the plaint a application for temporary injunction under Order 39 Rules 1 and 2 of CPC was also filed and this application has been allowed by the impugned order. Therefore, the plaintiff has challenged the impugned order by filing this appeal under Order 43 Rule 1 of CPC.

(3.) SHRI Ankur Modi, learned Counsel for the appellant has argued that question of territorial jurisdiction of the Court in Morena for dealing with the matter is involved and without deciding the question of territorial jurisdiction granting injunction is per se illegal. Shri Ankur Modi pointed out that with a view to bring the matter without jurisdiction of the Court in Morena, defendant No. 2 Raghuvardayal and Sons, was impleaded as defendant, whereas Raghuvardayal and Sons is not the authorized dealer and agent of the appellant. The appellant is not selling their product within the territorial jurisdiction of the Court at Morena, and, therefore, the Court at Morena had no jurisdiction to deal with the matter. It is pointed out that when a legal notice was sent by the plaintiff to the defendants, who are carrying on their business in Darjelling from 1998, the defendant-appellant have instituted a Civil Suit No. 2/2005 in the Court of District Judge, Darjelling even prior to the civil suit filed at Morena and it is only after filing of the civil suit in Darjelling that the present suit is filed in Morena, seriously disputing the question of territorial jurisdiction in Morena. Shri Ankur Modi pointed out that the reasons given by the learned District Judge, Morena for confirming territorial jurisdiction at Morena is illegal and perverse. Shri Ankur Modi points out that except for making averments in the plaint with regard to selling of oil manufactured by the appellant in District Morena, there was no material available before the Court below to confer jurisdiction Shri Ankur Modi points out that appellant through Umesh Kumar Agrawal filed an affidavit in which it was specifically stated that they are not selling their product in Morena, Ignoring these factors, rejection of the objection to territorial jurisdiction is assailed by Shri Modi and by inviting my attention to the reasons given by the learned Court below on the question of jurisdiction Shri Modi submits that the said finding is perverse. Inviting my attention to the observations made in para 42 of the impugned judgment where the question of jurisdiction is considered Shri Modi points out that the aforesaid finding is wholly unwarranted. In support of his contention with regard to territorial jurisdiction, Shri Modi invites my attention to the following decisions of Delhi High Court, and submits that once it is found that Court in Morena does not have jurisdiction the suit should have been dismissed and no injunction ought to have been granted. The judgments relied upon by learned Counsel for the appellant are: (i) Haryana Milk Foods Ltd. v. Chambel Dairy Products 98 (2002 )DLT359. (ii) Dhodha House v. S. K. Maingi AIR2006 SC 730 , 2006 (1 )ALD138 (SC ), 2006 (1 )AWC864 (SC ), 2006 (1 )BLJR29 , JT2006 (1 )SC 123 , (2006 )1 MLJ36 (SC ), 2006 (32 )PTC1 (SC ), RLW2006 (1 )SC 543 , (2006 )9 SCC41. (iii) Gupta Brothers Conduit Pipe Manufacturing Co. Pvt. Ltd v. Anil Gupta and Anr. passed in SA No. 986/2001 on 5. 9. 2001 by the Delhi High Court.