INDO BRINE INDUSTRIES LIMITED Vs. NEERAJ AGARWAL

JUDGEMENT

(1.) This first appeal has been filed by INDO BRINE INDUSTRIES LIMITED (in short the plaintiff-appellant) against the decree and judgment dated 23.7.2011 passed by Addl. District Judge (Fast Track) No. 7 Jaipur Metropolitan, (in short "the trial court") in civil suit No. 107/2010 whereby the trial court allowed the application under Order 7 Rule 11 CPC filed by (Dandi Salt Private Limited, Ram Niwas Hukam Chand Gupta, and Neeraj Kumar Agarwal (in short the defendants 2 to 4) and thereby dismissed the civil suit against all the defendants (defendants 2 to 4 and Neeraj Agarwal S/o. Ashok Agarwal, and M/s. Pacs Chemical (defendants 1 and 5 (in short" the defendants") filed by the plaintiff-appellant. The brief facts giving rise to this first appeal are that the plaintiff-appellant filed a civil suit before the trial court for perpetual and mandatory injunction on infringement of trade mark and infringement of copyright and for the damages and rendition of accounts, it was stated in the plaint that the plaintiff-appellant is a company incorporated under the Companies Act, 1956 and engaged in the business of manufacturing, selling and exporting 'iodized Salt' amongst others, under the trade mark and label containing and consisting of the name DANDI NAMAK in Hindi as also DANDI SALT in English. The trade marks (logo) containing and consisting of the name DANDI NAMAK in Hindi in respect of 'iodized Salt for human consumption and for preserving food stuff included in class-30 have been granted registration in favour of the plaintiff-appellant under Nos. 1641653 and 1641655 in class-30 by the office of the Registrar of Trade Marks and that too after the objections filed by the defendant No. 3 for the defendant No. 2 as also by other opponents were considered in accordance with the provisions of the Trade Marks Act, 1999. it was also mentioned in the plaint that inspite of the registration of the trade mark DANDI NAMAK in the name of the plaintiff-appellant and plaintiff-appellant being the prior user since the month of June, 1998, all the defendants in collusion with each other and at the instance of each other continued the acts of infringement of the trade mark of the plaintiff-appellant. The defendants continued to use and infringe the trade mark, infringement of copyright and passing off their goods as and for the plaintiff and in this process also the defendants filed collusive suits amongst each other as also against the plaintiff-appellant in the territorial jurisdiction of District Court at Jaipur. The plaintiff-appellant has drawn attention of this court towards para 27 of the plaint, which reads as under:

(2.) in the civil suit plaintiff-appellant prayed as under:

(3.) The defendants No. 2 to 4 and 5 filed written statements, during the pendency of the application under Order 39 Rules 1 and 2 CPC. The defendant No. 1 chose to file an application under order 39 Rule 4 CPC and later on the same was considered as reply of the defendant No. 1. The trial court granted ad-interim injunction against each of the defendants vide order dated 21.8.2010 and thereafter upon hearing the arguments and on consideration of the documents placed on record by the parties in the matter of temporary injunction application under Order 39 Rules 1 and 2 CPC, the trial court allowed the same and granted temporary injunction till the disposal of the suit in favour of the plaintiff vide order dated 28.10.2010. The defendants 2 to 4 as also the defendant No. 5 separately filed S. B. civil Misc. Appeals Nos. 3222/10 and 3476/10 against the plaintiff-appellant. This court has not passed any interim order against the order of the trial court dated 28.10.2010 inspite of several hearings. The defendant No. 5 sought permission to withdraw its appeal to pursue the remedy under Order 39 Rule 4 CPC. The appeal filed by the defendant No. 5 was dismissed by this court as having been withdrawn with liberty to argue the matter upon the application under order 39 Rule 4 CPC before the trial court. After lapse of almost 8 months, the defendants 2 to 4 filed application under Order 7 Rule 11 CPC seeking dismissal of the suit. The plaintiff-appellant filed detailed reply to the application. After hearing the plaintiff-appellant and the defendants 2 to 4 on 16.7.2011, the matter was posted on orders upon the application under Order 7 Rule 11 CPC on 23.7.2011. The trial court allowed the application under Order 7 Rule 11 CPC with a detailed order. On 23.7.2011 the plaintiff filed an application under Order 41 Rule 5(2) read with section 151 CPC stating that the plaintiff-appellant wants to file appeal before the High court and for long time injunction was operating in favour of the plaintiff-appellant and against all the defendants and the same was allowed to continue for a period of 30 days by the order dated 23.7.2011. The appellant filed the present appeal before this court on 12.8.2011 and this court in the presence of both the parties continued the order dated 23.7.2011 of the trial court vide order of this court dated 24.8.2011 and it is being continued further by the orders dated 30.8.2011, 8.9.2011, 14.9.2011 and 16.9.2011. The arguments of the plaintiff-appellant and the defendants were heard on 23.9.2011 in this appeal.