MOHANLAL KUMAWAT Vs. DHANRAJ MEGHWAL

JUDGEMENT

(1.) Challenge in the present first appeal filed by the appellant/plaintiff under Section 96 read with order 41 of the Code of Civil Procedure has been made to the judgment dated 25.3.2019 passed by the Court of Additional District Judge No.1, Bundi (Rajasthan) in Civil Suit No.53/2018 (Mr. Mohan Lal Kumawat vs. Dhanraj Meghwal) whereby the application filed by the respondent/defendant under Order 7 Rule 11 CPC has been allowed and the suit filed by the appellant/plaintiff has been dismissed.

(2.) Brief facts of the case are that the appellant/plaintiff filed a civil suit against the respondent/defendant under Sections 27(2) (c) of the Trade Marks Act, 1999 read with Section 20 of the Code of Civil Procedure, 1908 for 'passing off action' of prior user trademark 'Raj Radios' before the Court below. Pending civil suit, respondent/defendant filed an application under Order 7 Rule 11 CPC praying therein to allow the aforesaid application and dismiss the civil suit filed by the appellant/plaintiff. The Court of Additional District Judge No.1, Bundi (Rajasthan) vide its judgment dated 25.3.2019 allowed the application under Order 7 Rule 11 CPC filed by the respondent/defendant and dismissed the civil suit filed by the appellant/plaintiff. Aggrieved and dissatisfied with the judgment dated 25.3.2019, passed by the Court below, the appellant/plaintiff preferred instant appeal before this Court.

(3.) Learned counsel for the appellant/plaintiff submitted that the Court below has passed the impugned judgment ignoring the principle of law relevant under Order 7 Rule 11 CPC. Impugned judgment passed by the Court below is contrary to the settled principles of law laid down by the Hon'ble Apex Court, contrary to the provisions of the Trade Marks Act, 1999 as also the provisions contained under Order 7 Rule 11 CPC. The Court below failed to appreciate the principle of 'passing off action', the said principle is based on the 'theory of prior user of the disputed trade mark, between the concerned parties, who appeared before the Court. The Court below failed to appreciate the established law that 'no one can be permitted to trade by deceiving or misleading the purchasers or to unauthorized divert to itself the reputation and goodwill of others'. Under Section 27(2) and action for passing off against registered user of trade mark is maintainable at the instance of a prior user of the same, similar or identical mark. Since such a remedy is available against the registered user of a trade mark. While passing the impugned order the Court below completely failed to consider the averments made by the appellant/plaintiff in plaint that the appellant/plaintiff is the prior adopter and user of the trademark. The findings of the order impugned are absolutely perverse and based on none reading and misreading of the pleadings and judgments which were relied by the appellant/plaintiff to support his case. The impugned judgment suffers from vice of error apparent on face of it. The Court below further erred in holding that the trademark of the appellant/plaintiff is unregistered one and therefore, the appellant/plaintiff has no right, locus or remedy to file a suit for passing off action against the registered owner of the trademark. The Court below failed to consider that for deciding an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908, the averments made in the plaint are required to be considered. The Court below has not dealt with the application under Order 7 Rule 11 CPC in its true and proper prospective and passed the impugned order on the basis of surmises and conjecutres.