M/S. N.K. ELECTRONICS Vs. NARINDER KUMAR

JUDGEMENT

(1.) In a suit instituted at the instance of Narinder Kumar Proprietor of M/s. N.K. Sales Corporation (herein referred as, 'the respondent'), the defendant M/s. N.K. Electronics appellant was proceeded against ex-parte on 10.10.2006 and ex-parte decree was passed on 12.2.2007. According to the appellant he came to know about the ex-parte decree on receipt of the summons in an execution on 24.7.2007 and he moved an application for setting aside ex-parte proceedings and decree on 22.8.2007. This suit was under the Copy Right and Trade Marks Act pending before the Additional District Judge, Ludhiana, therefore, he dismissed the application for setting aside the ex-parte decree on 28.3.2012, against which this appeal has been preferred. In his application for setting aside the ex-parte decree, he had pleaded that he continued attending the case since the very date he was summoned in the case. He filed written statement through his counsel Mr. Jaswant Singh on 16.3.2005 and plaintiff filed replication on 27.4.2005 and attended the proceedings up to 18.7.2006. Since the case was being adjourned unnecessarily from time to time, he was told by his counsel that he would inform him when the case is fixed for substantial date or for evidence. However, on 10.10.2006, neither he nor his counsel appeared, therefore, he was proceeded against ex-parte and ultimately ex-parte decree was passed against him on 12.2.2007. However, he came to know about the ex-parte decree on 24.7.2007 when he received summons, as such, he having filed the application within one month from the date of knowledge has prayed for setting aside the ex-parte decree.

(2.) Upon notice the defendant appeared and contested the application. He has stated that the application was hopelessly time barred. The plaintiff was a registered owner of the trade mark N.K. Sales Corporation and the defendant had been deliberately infringing his trade mark. Since the defendant-appellant (herein referred as, 'the appellant') had no case, therefore, he intentionally absented himself from the court and ultimately ex-parte decree was passed against him. The application is time barred. After passing of the decree, it was immediately conveyed to the plaintiff in the presence of Dr. Dev Kaushal at his shop and he was requested not to continue to use his trade mark but he did not agree. Summons were sent to him. His absence from the court was intentional. Thus, he prayed for dismissal of the application.

(3.) From the pleadings of the parties, the trial court framed the following issues.