PRAPTI FASHIONS PRIVATE LIMITED Vs. MANOJ KUMAR GUPTA

JUDGEMENT

(1.) In a suit for a decree of permanent injunction restraining the respondents from using the tradename Prapti Fashions, G.A. 396 of 2013 has been filed for interim relief. The said application has been opposed by the respondent on the ground that the suit is barred by the provisions of the Code of Civil Procedure and therefore be dismissed. For such purposes G.A. 1278 of 2013 has been filed.

(2.) It has been contended by counsel for the defendant that prior to the instant suit proceeding was initiated by the plaintiff herein before the 3rd Court, City Civil Court, Calcutta being T.S. 122 of 2012 praying for a declaration that it was not entitled to use the trademark Prapti Fashions or the tradename Prapti. In fact the reliefs sought in T.S. 122 of 2012 was similar to the reliefs sought in the instant suit. Subsequently Title suit No. 122 of 2012 was abandoned and the instant suit filed. After the filing of the instant suit Title suit No. 122 of 2012 was withdrawn without obtaining leave to institute a fresh suit. Therefore the instant suit is hit by Order 23 Rule (1) (4) of the Code of Civil Procedure.

(3.) Reliance is placed on (1987) 1 SCC 5, 2002 AIR(Rajasthan) 365 and 2003 AIR(Rajasthan) 319 for the proposition that without taking leave under Order 23 Rule (1)(4) CPC a fresh suit cannot be filed. The notice on which Title suit No. 122 of 2012 was filed forms the basis also of the instant suit. No separate or independent notice has been given for filing the suit in the High Court. In the plaint filed in C.S. 28 of 2013 the plaintiffs have categorically stated that there is every possibility of T.S. 122 of 2012 being decreed in their favour and against the defendant. Therefore there was no reason to withdraw the said suit. The cause of action was against Prapti Fashions and such cause of action continues but as C.S. 28 of 2013 has been filed without leave renders the same bad. This however will not prevent the plaintiffs from filing another suit in this High Court.