A.G. CEMENT PVT. LTD Vs. ACC LIMITED

JUDGEMENT

(1.) The plaintiff had instituted a title suit being Title Suit No. 222 of 2012 before the learned Civil Judge No. 1, Kamrup, Guwahati for Trade Marks and Copyright infringement, passing off, accounting of profits, recovery of damages, declaration and permanent injunction along with an application under Order 39 Rule 1 and 2 read with Section 151 CPC and the same was registered as Misc. (J) Case No. 101 of 2012. The suit of the plaintiff was subsequently transferred to the Court of the learned Civil Judge, No. 2. After appearance upon receipt of summons, the defendants had appeared before the learned Trial Court on 08.06.2012 and prayed for time to file written statement and an objection to the prayer for injunction of which notice was issued in Misc. (J) Case No. 101 of 2012. On 08.06.2012, the plaintiff filed a petition under Section 151 CPC stating that the plaintiff had filed a transfer petition being Transfer Misc. Case No. 280 of 2012 which was to come up before the learned District Judge, Kamrup, Guwahati on 11.06.2012 and, therefore, praying for adjournment of the case and accordingly, the learned Trial Court had fixed 12.06.2012 for necessary orders. The said transfer petition was filed under Section 24 read with Section 151 CPC before the learned District Judge, Kamrup, and Guwahati praying for transfer of the suit to any other Court of competent jurisdiction. Upon hearing both sides on 11.06.2012, the learned District Judge, Kamrup, Guwahati fixed 09.07.2012 for necessary orders. On 12.06.2012, the plaintiff had filed an application under Order 7 Rule 10A(2) read with Section 151 CPC to allow the plaintiff to present the plaint, in view of the bar imposed by Section 134 of the Trade Marks Act, 1999, for short, the Act of 1999 before the Court of learned District Judge, Kamrup, Guwahati, on 19.06.2012.

(2.) The learned Trial Courts by an order dated 12.06.2012, after hearing the counsel for both the parties, holding that under Section 134 of the Act of 1999, he had no jurisdiction to entertain the suit, returned the plaint to the plaintiff under Order 7 Rule 10 CPC. By the said order, the learned Trial Court, taking note of the application filed by the plaintiff under Order 7 Rule 10A(2) CPC, directed the parties to appear before the Court of learned District Judge, Kamrup, Guwahati on 19.06.2012. The plaintiff also filed an application under Section 151 CPC before the Court of the learned District Judge, Kamrup, Guwahati for re-numbering of Title Suit No. 222 of 2012 and Misc. Case No. 101 of 2012 and though no judicial order was passed on the said application, the suit and the injunction application was Registered as Title Suit No. 04 of 2012 and Misc. Application No. 311 of 2012, respectively. Subsequently, the case was transferred for disposal to the Court of the learned Additional District Judge, Kamrup, Guwahati. On 20.06.2012, the defendants, by filing a petition No. 204 of 2012, prayed for time for filing objection regarding maintainability of the suit and for filing objection in Misc. Case No. 311 of 2012 and the learned Additional District Judge, by his order dated 20.06.2012, had fixed 22.06.2012 for objection and objection hearing. On 22.06.2012, the defendants had filed an objection regarding maintainability of the suit and the learned Additional District Judge, after hearing the parties, by an order dated 29.06.2012 held that the suit is maintainable and directed for filing of written statement, fixing 30.07.2012. By another order dated 29.06.2012 in Misc. Case No. 311 of 2012, the learned Trial Court had fixed 06.07.2012 for filing objection. On a petition filed by the defendants for adjournment, the learned Court below, by the order dated 06.07.2012 fixed 13.07.2012 for objection and objection hearing. On 13.07.2012, the defendants filed an application under Order 19 Rule 2 read with Section 151 CPC, registered as petition No. 259/12, praying for cross-examination of the deponent of the injunction application by deferring filing of objection. The plaintiff also filed a petition praying for dismissal of the petition No. 259/12 with a further prayer to adjudicate the injunction application. Upon hearing the learned counsel for the parties, by order dated 13.07.2012, the application filed by the defendants was allowed and 21.07.2012 was fixed for cross-examination of the deponent of the injunction application.

(3.) While by an application under Article 227 of the Constitution of India, registered as C.R.P. No. 275 of 2012, the defendants have challenged the orders dated 12.06.2012, 20.06.2012, 22.06.2012 and both the orders dated 29.06.2012, the plaintiff has assailed the order dated 13.07.2012 by a similar application, registered as C.R.P. No. 302 of 2012.