Gujarat High Court Case Information System
LPA/877/2010 4/ 4 JUDGMENT
THE HIGH COURT OF GUJARAT AT AHMEDABAD
PATENT APPEAL No. 877 of 2010
CIVIL APPLICATION No. 3871 of 2010
APPLICATION No. 4238 of 2010
PATENT APPEAL No. 877 of 2010
Approval and Signature: HONOURABLE
MR.JUSTICE V. M. SAHAI Sd/- HONOURABLE MR.JUSTICE A.J. DESAI Sd/-
Reporters of Local Papers may be allowed to see the judgment ?
be referred to the Reporter or not ?
their Lordships wish to see the fair copy of the judgment ?
this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
it is to be circulated to the civil judge ?
FOOD PRODUCTS & 2 - Appellants
JASVINDERSING HARCHARANSING MADAN - Respondent
SACHIN D VASAVADA for Appellants. MR AJ YAGNIK for Respondent.
MR.JUSTICE V. M. SAHAI
MR.JUSTICE A.J. DESAI
: 07/03/2012 ORAL JUDGMENT
: HONOURABLE MR.JUSTICE V. M. SAHAI)
have heard Mr. Sachin Vasavada, learned counsel appearing for the appellant and Mr. A. J. Yagnik, learned counsel appearing for the respondents.
appellant - original defendant filed an application under Order VII, Rule 11 (though it ought to have been under Order X) read with Section 151 of the Code of Civil Procedure, 1908 for rejection of the plaint on the ground that the City Civil Court, Ahmedabad had no jurisdiction to entertain composite civil suit being Civil Suit No.79 of 2010 under the Copyright Act, 1957 and the Trade Marks Act, 1999.
City Civil Court rejected the application filed by the appellant by order dated 24.2.2010 and held that composite suit was maintainable. The City Civil Court framed the question as to whether the composite suit for infringement of copyright and passing off action was maintainable before it or not ? The City Civil Court held that the composite suit was maintainable without discussing as to why the decision in the case of Dabur India Limited v. K.R. Industries, AIR 2008 SC 3123 would not apply to the case.
aggrieved by the order of the City Civil Court, the appellant filed writ petition before this Court being Special Civil Application No.3871 of 2010 and the order of City Civil Court has been affirmed by the learned Single Judge by judgment dated 1.4.2010 by holding that composite suit was maintainable.
counsel for the appellant has argued that even the Learned Single Judge has not considered the decision of the Hon'ble Supreme Court in the case of Dabur India (Supra).
have heard learned counsel for the parties. After hearing learned counsel, we are of the opinion that in the decision of the Hon'ble Supreme Court in the case of Dabur India (Supra), the Hon'ble Apex Court relying upon decision of Dhodha House v. S. K. Maingi, (2006) 9 SCC 41, in paragraph 29, has held as under :-
What then would be meant by a composite suit? A composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Order II Rule 3 of the Code specifically states so and, thus, there is no reason as to why the same should be ignored. A composite suit within the provisions of the 1957 Act as considered in Dhoda House (supra), therefore, would mean the suit which is founded on infringement of a copy right and wherein the incidental power of the Court is required to be invoked. A plaintiff may seek a remedy which can otherwise be granted by the court. It was that aspect of the matter which had not been considered in Dhoda House (supra) but it never meant that two suits having different causes of actions can be clubbed together as a composite suit."
view of the aforesaid decision of the Hon'ble Supreme Court, since the cause of action with regard to the infringement of Copy Right Act and passing off Trade Mark under Section 27 of the Trade Marks Act are different and distinct cause of action, therefore, separate suits were required to be filed under the aforesaid Acts and composite suit would not be maintainable in view of the aforesaid decision of the Hon'ble Supreme Court in the case of Dabur India (Supra).
the aforesaid reasons, this Letters Patent Appeal succeeds and is allowed. The judgment and order dated 1.4.2010 passed by the Learned Single Judge in Special Civil Application No.3871 of 2010 as well as the order dated 24.2.2010 passed by the learned Chamber Judge, City Civil Court, Ahmedabad below application Exh.23 in Civil Suit No.79 of 2010 are quashed and set aside. The City Civil Court, Ahmedabad is directed to pass fresh order on the application Exh.23 filed by the appellant under Order VII, Rule 11 (though it should be Rule 10) read with Section 151 of CPC. The appellant filed application before the City Civil Court, Ahmedabad for rejection of the plaint though it should have been for return of the plaint for presentation before the appropriate Court having jurisdiction. There shall be no order as to costs.
view of disposal of appeal, Civil Application also stands accordingly disposed of.
M. SAHAI, J.]
J. DESAI, J.]