OM SHIVAM UTPADAN Vs. SARASWATI UTPADAN PRIVATE LTD.

JUDGEMENT

(1.) The present revision petition is directed against the impugned order, whereby the application of the respondent-plaintiff for leading additional evidence i.e. affidavit dtd. 3/9/2015 of the petitioner defendant giving an undertaking not to use the trade-mark of the plaintiff, when the defendant put in cross-examination, denied the existence of affidavit, has been allowed.

(2.) Mr. Harsh Bunger, learned counsel appearing on behalf of the petitioner-defendant submitted that the respondent-plaintiff instituted the suit for injunction for violation of trademark 'Bahadur' with an emblem of 'flying Horse' as an illegal act of ''Passing Off'' their inferior goods as that of the plaintiff. There was no averment with regard to the alleged undertaking, reflected in the affidavit, sought to be placed on record, by way of additional evidence, and it was, for the first time, put in cross-examination to the defendant, which was denied, in such circumstances, the respondentplaintiff, in the absence of any issue of rebuttal, submitted an application for additional evidence, which has erroneously been allowed. The ratio decidendi rendered in CR No.3905 of 2017 titled as "Jasdeep Singh Makkar V/s Brilliant Brainz Educational Society (Regd.) and others ", decided on 11/1/2019, relied upon by Mr. Salathia, on the last date of hearing, is pertaining to a case, where the fact was pleaded, therefore, the same would not be applicable. It would be an evidence beyond the pleadings. Had it been pleaded in evidence, would have been denied it and onus would have shifted upon the plaintiff to lead evidence in affirmative, thus, urges this Court for setting aside the impugned order.

(3.) Mr. Vivek Salathia, learned counsel appearing on behalf of the respondent-plaintiff submitted that there is a passing reference in para No.8 of the plaint, that on basis of dissolution of partnership firm, the defendant had severed all the relations and connections with the firm including trademark and copy right. In fact that would take care of the part of the alleged wanting of pleadings and during the pendency of the revision petition, the order allowing additional evidence has been complied in part and the report of the expert has been placed on record and exhibited, but the cross-examination is yet to be done. It would help the Court for adjudication of the lis and the defendant-petitioner would also given a chance to rebut the same.