1. This application under Section 115 of the Code of Civil Procedure has been directed against an order dated 26-5-1996 recorded by learned Civil Judge Senior Division, Gorakhpur, in Original Suit No. 208 of 1995 whereby he had rejected the application made by the defendant-revisionists under Order VII, Rule 11, C.P.C. The plaintiffs had filed a suit against the I.T.C. for reliefs that they may be restrained from selling a particular brand of cigarette. The defendants took up a preliminary objection on two counts. It was stated that the plaint' did not disclose any cause of action and that the suit was barred under Section 56 of the Trade and Merchandise Marks Act, 1958. On these two pleas the defendants moved a prayer for rejection of the plaint under Order VII, Rule 11, C.P.C. This prayer was dismissed which had given rise to the present revision application.
2. There, arc however, certain other complications which must be stated before the matter is taken up for decision. After the filling of the suit, the plaintiffs (Present O.P.S.) filed an application for an ad-interim injunction which was allowed and the defendants straight away came up in a writ petition before the High Court. At this level the parties came to a settlement and some consent order was passed. Upon that consent order the injunction order was vacated and hearing of the suit was directed to be taken up. The plaintiffs, thereafter amended their plaint and the defendants raised the plea of rejection of the plaint. The plaintiffs objected to the entertainment of that prayer on the ground that it was beyond the consent order. A clarification was sought before the High Court from the Hon'ble Judge who had recorded the consent order. In his clarification, the Hon'ble Judge directed that the application under Order VII. Rule 11, C.P.C. may be confined to the amended plaint. The matter was heard before the Court below and the impugned order was passed. In addition to the merits of the case, the parties, also placed before me conflicting arguments as to what would be the meaning of the words amended plaint for considering the application under Order VII, Rule 11,C.P.C. Before this Court, a true interpretation of Section 115, C.P.C. was also raised and the relevant provisions of the Trade and Merchandise Marks Act, were also analysed by the learned counsels. '
3. The allegations in the suit and the further developmentsas hinted above may now be stated. The suit was filed by Sri Rakesh Behari Srivastava and two others against the I.T.C. Limited, a company within the meaning of the Companies Act, on assertion that the three plaintiffs were smokers and they had purchased and smoked cigarettes under the brand names "W.D. & H. C. Wills ,and "Wills" manufactured and sold by the defendants The plaintiffs used to purchase loose cigarette sticks find had never any opportunity of purchasing a whole packet, and accordingly had no chance to go through the printings on the packets. It was stated that the plaintiffs purchased and smoked the above brands of cigarettes under the impression that they were of a high quality being manufactured under the license of a British Company carrying the same brand names or these cigarettes were manufactured as per standard fixed by the aforesaid foreign company or under its supervision. H was alleged that the cigarettes manufactured by the foreign company were having a different formula than these manufactured in India by the defendants. The plaintiffs were not the sole purchasers and smokers of [he aforesaid brands. There were other people also who purchased and smoked these brands under an impression that the same were manufactured by or under the supervision of the British Company. The plaintiffs have thus been affected by the wrongful act on the pan of the defendants' company and they craved to file a suit on behalf of the general body of the smokers. It was alleged that the defendants had never informed the plaintiffs or other smokers that they were manufacturing the above brand of cigarettes not under the licence or authority of the foreign company and were acting on their own. There was no advertisement or anything like that issued by the defendant-company at any point of time. They had never mentioned anywhere, including the packet of the cigarette, that they acquired the right to manufacture and sell of cigarettes under the above two brands. It was alleged that the defendants had misrepresented to the plaintiffs and other citizen of the country and gave an impression to them that the aforesaid brand of cigarettes were being manufactured and sold by the defendants -- company under the licence and authority of the foreign company. By such representation the defendants clearly deceived the public in general. Due to fraud and misrepresentation the plaintiffs had been made to believe that they were getting genuine brands of cigarettes. It was alleged that these brands marked "Wills" and "W.D. & H.C. Will" were registered in England as the proprietory marks of foreign companies namely British American Tobacco Co. or Imperial Tobacoo Co. Ltd. (In short Foreign Companies).These marks were associated with a foreign company enjoyed tremendous reputation not only in England but also throughout the world including India. The plaintiffs had always been under the impression that the cigarettes manufactured under these two brand marks by the defendants-company were produced on the basis of the know how and expertise of the aforesaid foreign company and was under the rigourous quality control of them. The defendants by producing and selling cigarettes under the two brand names were causing deception and confusion to the general public including the plaintiffs and they had passed off and were still passing off their goods as those manufactured by the aforesaid foreign companies and atleast were causing confusion and deception and there was probability of confusion and deception amongst the general member of the public. It was stated that the use of the said brand marks by the defendants had caused or was likely to cause confusion and deception amongst the members of smoker public. They went on to say that these aforesaid foreign companies by allowing the defendant company to use the identical brand marks to manufacture and sell cigarette, had caused and were still causing confusion and deception and were creating a situation in which there was atleast a probability of confusion and deception in the mind of the smokers as well as the public in general. The two brand marks belong to the said two foreign companies and the production of these foreign companies were still known in India as people associated these marks with the foreign companies. The plaintiffs were throughout under the impression that the cigarette manufactured by the defendants company under the above two brand marks were produced by using the same formula, know how and expertise associated with the said foreign companies under their strict control and the defendants company were associated or connected with the said foreign companies, but the plaintiffs now had come to know that the defendants did not use any expertise, know how or technical assistances of the said foreign companies in manufacturing the cigarette and selling the same under the two brand marks nor was there any quality control whatsoever in respect of the aforesaid product and the cigarettes manufactured by the defendants company were inferior in comparison to those produced by the foreign company. It was alleged that the defendants company had passed off and still passing off the above brand names of cigarettes as if they were goods produced by the said foreign companies and the plaintiffs by purchasing and smoking the said cigarettes have been deceived and confused and the re were chances of deception of the general public also. It was reiterated that the said foreign companies by allowing the defendants to use the said marks in respect of the goods manufactured in India had created a situation whereby the plaintiffs have been deceived and confused. The plaintiffs asserted further that the defendants got these marks registered in their name in India from the office of the Registrar Trade Marks and as such the registration was contained by misleading the Registrar and by committing fraud on his office and that these two marks belong to the said foreign companies and cigarettes produced by the foreign company under these two marks were enjoying tremendous reputation in India on the date the defendants obtained registration in its name in their favour. They could not have applied for such registration as they were not the proprietor of the said Trade Marks. The registration was obtained by suppression of facts regarding the proprietorship. The defendants obtained the registration by making a false statement. Due to false statement, suppression of facts and fraud the registration obtained by the defendants was a nullity and was void ab initio. He would not insist therefore, for any cancellation of the registration. The marks could never be registered in India in the name of the defendant company and the mandatory provisions of the Trade and Merchandise Marks Act were violated. The defendants did not have any distinctiveness in respect of the said marks and the registration was bad under Section 9 of the Trade and Merchandise Act. The plaintiffs relied on a decision of the Calcutta High Court in their plaintiff averments at paragraph 16. It was stated that in terms of this decision as reported in AIR 1924 Cal at page 216 the purported assignment in 1920 of the trade marks "Wills" or "W.D. & H.O. Wills" in favour of the defendants company was invalid and of no use, inter alia, because the purported assignment was not an assignment of the entire business or the origin or the manufacturer and further the purposted assignment was not by both the said foreign companies. It was stated that the using of the aforesaid brand marks by, the defendant company was a wrongful act which affected the plaintiff and the general public prejudicially, and thus the plaintiffs are entitled to file the suit. It was averred that the continuation of the deception and confusion should be slopped and there should be a declaration that the defendants were not entitled to use the aforesaid marks for their product. The plaintiff were, therefore, entitled to a decree of perpetual injunction and damages, which was assessed at Rs. 1 lac. It was stated that the cause of action of the present suit arose when the plaintiff for the first time came to know of the illegal acts on the part of the defendant-company immediately prior to the filing of the suit. The relief that were prayed for were for a decree of declaration that the defendants were not entitled to use the aforesaid marks for their product of cigarette, for further declaration that the registration of the defendants as owners of the above two marks as Trade marks was void ab inito and non-est in the eye of law. The plaintiffs also claimed for compensation and damages and for an order for payment of the same.
4. After the filing of the present suit on 10th March, 1995, the learned civil Judge Gorakhpur recorded an ex parte interim order of injunction restraining the I.T.C. from manufacturing, selling any cigarette in the brand name of "Wills" and "W.D. & H.O. Wills". When the I.T.C. came to know of the injunction order, a writ application was filed in the High Court for quashing the whole proceedings under Art. 227 of the Constitution of India. This writ petition was registered as Civil Misc. Writ Petition No. 6898 of 1995. It was dispsoed of by a consent order dated 21-2-1996 by Hon'ble Mr. Justice Binod Kumar Roy of this High Court. By an interim order dated 18-3-1995 the Court had stayed the operation of the impugned order of injunction. The parties appeared before the Hon'ble Court and agree for disposal of the writ petition on the terms and conditions as detailed below :
(i) The plaintiffs of the suit withdraw their injunction application.
(ii) The controversy raised in the suit was likely to effect about six thousands labourers and so parties, agreed that the suit itself should be disposed of within a time fixed by this Court and on certain terms and condition which, may be considered fit and proper by this, Court.
(iii) The defendants I.T.C. agreed to file written statement by 12-12-1996 raising all the-possible defence including the bar of maintainability of the suit on the ground of applicability of Section 56 of the Trade and Merchandise res judicata.
(iv) The Court would frame proper issues after the filing of the written statement including that of maintainability.
(v) The parties undertook to file their list of witnesses by 26-2-1996.
5. It was also agreed that in the trial, that was to follow, the I.T.C. was to lead evidence regarding the maintainbility of the suit and only thereafter the plaintiffs would lead their evidence. The parties also agreed to waive formal proof of certified copies of judgment etc., only thereafter arguments should be heard and final decision would be pronounced within 14 days of the conclusion of the oral arguments. The Hon'ble Judge hearing the writ petition agreed to this point as accented by the parties and indicated in his order the as the plaintiffs have withdrawn their injunction application the impugned order granting an ad interim injunction was set aside. The parties and the civil Judge were directed to act in the terms of the agreement of the parties.
6. When the matter went to the Court below with these directions the plaintiffs prayed for an amendment of the plaint and the same was allowed. At this stage an application was filed by the I.T.C. before the trial Judge under Order VII, Rule 11, C.P.C. for rejection of the plaint. This application was thought beyond the scope of the agreement between the parties and the consent order given by the High Court in the aforesaid writ petition. Accordingly, the plaintiffs, who were respondents in this writ petition, filed an application before the Hon'ble Judge Sri Binod Kumar Roy that the order dated 22-1-1996 be clarified for the end of justice. The plaintiffs also prayed for in their application before the Hon'ble Judge that the trial Court be directed to proceed with the recording of the evidence of the parties and not to insist upon to decide the application of the defendant No. 2 filed under Order VII, Rule 11, C.P.C. On this application the parties were again heard at length and the Hon'ble Judge recorded his opinion regarding the binding nature of the consent order and passed an order dated 5-4-1996. In clarifying the previous order, the Hon'ble Judge held that 'after the' passing of the consent order without reserving its right to invoke the provisions of Order 7, Rule 11 of the Code of Civil Procedure, there was no scope for the defendant (I.T.C.) to file a separate application for rejection of the plaint invoke the provisions of Order 7, Rule II of the Code of Civil Procedure. He further opined that for this pequent position the defendant (I.T.C.) must blame itself for agreeing to the terms incorporated in the consent order in the next paragraph of his order, however, the Court was of the view that "However, by incorporating the pleadings by amendment the plaintiffs themselves gave a handle to the defendant No. 2 to invoke the provisions of Order 7, Rule 11, of the Code of Civil Procedure which are required to be adjudicated with reference to the amended pleading alone. The Civil Judge is commanded to act accordingly and not as per the interpretation put forward by him or by any one else." It was indicated that the Civil Judge was required to hear the parties afresh in regard to the aforementioned issue first. The Hon'ble Judge reminded the Civil Judge of the limited scope of the provisions under Order 7, Rule 11, C.P.C. and indicated further that in the event the application failed, parties must proceed to lead their respective evidence. It was agreed upon by the I .T.C. again that for adjudication of the question whether any cause of action existed or not for the plaintiffs with reference to the amended pleadings, defendants (I.T.C.) did not want to rely on any document or pleadings and would rely only on the provisions of Order 7, Rule 11, and the relevant case laws.
7. During the hearing of the present application an application was moved by Sri L.P. Naithani on behalf of the plaintiffs-opposite parties with two distinct alternative prayers and a question arose regarding the meaning of the word "amended pleading" as used by Hon'ble Judge Sri Binod Kumar Roy in the aforesaid writ petition in his order dated 5-4-1996. It was contended by Sri Naithani that the present matter should be placed before the Hon'ble the Chief Justice so that it may be directed to be placed before Hon'ble Mr. Justice B.K. Roy for giving further clarification to remove any anomaly between the two orders dated 22-1 -1996 and 5-4-1996. In the alternative, Sri Naithani submitted that the matter should be adjourned awaiting the under order or Mr. Justice B.K. Roy who had also been moved through a separate application seeking further clarification in the matter. The parties were heard on these two applications and by an order dated 1-10-1996, had disposed of the prayer made by Sri Mmthani. I had found in my order daled 1-10-1996 that the words "amended pleading" could only mean the pleading that stood after amendment and not only the amending portion by which the plaint stood amended. I also found that the direction to the learned Court below to look to "amended pleading alone' meant that no written statement or no document was to be seen barring the averment in the amended pleading to determine whether there was any cause of action. On this interpretation of "amended pleading", both the alternative prayers of Sri Naithani were rejected. The aggrieved party was given an opportunity to move to the apex Court in this regard but they have chosen not to move at this stage. This point therefore, may not be reopened as this Court had already given but its mind that the amended pleading means pleading that stood after the amendment and once the Court had allowed consideration of the application under Order 7,. Rule 11, C.P.C. the whole of the pleading that stood after amendment was to be looked into to find out it there was any cause of action.
8. Sri Shanti Bhushan during his further arguments on merits of the case added a new dimension to this part of the controversy. According to him, Order 7, Rule 11 of the C.P.C. did not speak of a right of the defendants and it was, therefore, not within the discretion of the defendant to concede not to exercise it. It was contended that a plain reading of this provisions shows that a duty is cast upon the Court itself to reject the plaint if any of the condition indicated in clause (a), (b), (c) or (d) of the rules had existed. According to him a judicial order, if at all it requires any interpretation, is to be interpreted in terms of the existing laws. It was contended that in the order nothing was spoken touching the point of rejection of the plaint. It was further argued that when the Court had directed that this objection is to be decided it was incumbent upon the trial Judge to reject the plaint if the condition (a) and (d), which were pleaded by the defendant company, were present there. The only restriction was that nothing beyond the amended pleading was to be looked into for taking a decision under Order 7, Rule 11, CP.C. On this point I must agree with the submission of Sri. Shanti Bhushan that Order 7, Rule 11, C.'P.C. casts a duty on the Court and it cannot be left to the event of an objection in this respect to be raised by one party. It is the duty of the civil Court," from the contents of the plaint, to find it there was any disclosure of a cause of action or if at all it was barred under the provisions of any law. The defendant could, at best, assist the Court to indicate that how these clauses (a) and (d) would apply.
9. The scope of the present revision, therefore. narrows down to a great extent and this Court is to see whether there was any application under Order 7, Rule 11 of the C.P.C. and the Court below had failed to exercise its jurisdiction and if at all on the materials pleaded by the plaintiff there was disclosure of any cause of action or if at all the suit was barred under the provisions of the order or the Trade and Merchandise Marks Act.
10. I shall engage myself now on the true import of Order 7, Rule 11, C.P.C. This order deals with the plaint and the rules herein speak about the particulars that are to be contained in a plaint, how the plaintiffs and the defendants are to be described and how a ground of exemption from limitation law is to be pleaded and how the reliefs are to be framed. In the context of this back ground of Order 7 the provisions of Rule 11 thereunder ought to be looked into. Thus, Rule 11 speaks of rejection of the plaint and requires that the plaint shall be rejected where it does not disclose a cause of action. The plaint shall also be rejected where the suil appears from the statement in the plaint to be barred by any law. To decide whether the plaint discloses a cause of action or not the Court is to look into only the allegations in the plaint and as such allegalions should be assumed at that stage to be correct and only thereupon the Court is to see if the assertions did disclose a cause of action or not. The facts-necessary to be proved for claiming the reliefs ought to be stated in the plaint although the evidence may not be pleaded. The very language of Order 7. Rule 11, C.P.C. indicates that the provisions arc mandatory. The only condition is that the defendant's case is not to be looked into at this stage. The plaint is to stand or fall on its own merits or demeriys without any reference to the defendant's case. The absence, of cause of action is not the sole ground for rejection of a plaint, there are three other grounds also as mentioned in Order 7, Rule 11, C.P.C. The provisions of Order 7, Rule 11(a) have been indicated above where the plaint is to be rejected on the ground of absence of a disclosure of cause of action. The plaint is liable to be rejected also when from the plaint averments the suit is found prima facie not maintainable being barred under any law. To attract Rule 11 (a) no investigation into the fact is necessary. If the law by which exclusion of civil Court jurisdiction is contemplated, on its face manifests requirement of investigation into any fact, then there would be no scope for passing an order of rejection of the plaint. In the case at our hands a plea has been taken that the suit was barred under Section 56 of the Trade and Merchandise Marks Act, 1958. This Court will see from the averments in the plaint and from the reliefs claimed therein, if the relief lay in the provisions of Trade and Merchandise Marks Act and not by a suit before the Civil Court. In this regard, this Court has also to see how far a judgment recorded by the Sikkim High Court rejecting a similar plaint would be relevant to the present controversy. To conclude on this Chapter, I hold that irrespective of any objection taken by the defendant, it is the duty of the Court to see if the plaint really discloses any cause of action or if the plaint was barred under the provisions of any law. The defendants may indicate to the Court by an application that the plaint is liable 10 rejection under Order 7, Rule 11, C.P.C. but primary it is the duty of the Court to decide the matter and for that reason it is the plaint only, which is to be seen for a decision under Order 7, Rule 11, C.P.C.
11. I may now move to the question of the scope of Section 115, C.P.C. This section in the C.P.C. has been amended for the State of U.P. and the law that stands for U.P. Slates that the High Court in cases arising out of original suits or other proceedings of the value of Rs. 20,000/-and above including such suit or other proceedings instituted before August 1, 1973 may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto. If such subordinate Court appears to have failed to exercise jurisdiction so vested or to have acted in the exercise of its jurisdiction legally or with material irregularity the High Court may make such order in the case as it think fit. Basically, therefore, the revisional application under Section 115, C.P.C. is maintainable only when a jurisdictional error is committed by the subordinate Court either by over exercise of jurisdiction or by failure of its exercise or by an exercise of that jurisdiction legally or with material irregularity'. The High Court may not interfere into the finding of a subordinate Court if it had acted within the amplitude of his jurisdiction. Even if the revision application be maintainable on the ground of commission of some jurisdictional error, no interference may be made unless the order impugned would have finally disposed of the suit if varied or reversed in terms of the decision under Section 115 or unless the order would occasion a failure of justice or irreparable injury to the parties against whom it was made if it is allowed to stand. This is in addition to commission of a jurisdictional error. The petitioner before the High Court in an application under Section 115, C.P.C. is also to establish that in addition to the jurisdictional error, the impunged order was such that if it was allowed to stand, it would lead to failure of justice and to an irreparable injury to the petitioner or on reveral of the impunged order, the whole suit would have been disposed of Subject to a finding regarding the jurisdictional error, it can be stated safely at this stage that the second set of conditions is certainly fulfilled as the acceptance of the contention of the defendants that there was no cause of action in the plaint or that the suit was barred under the provisions of any other law would have certainly disposed of the suit finally. Thus, in the instant case, in addition to the other points, the Court has firstly to see if there had been a jurisdictional error committed by the Court below.
12. This aspect shall be considered when we enter the merits of the case.
13. A look to the provisions of the Trade and Merchandise Marks Act may now be given. Once my (sic) start the reading of this Act from its very preamble. This Act 43 of 1958 has come into force on 25th Nov. 1959. According to the preamble it is an Act to provide for the registration and better protection of trade marks and for the prevention of the use of fraudulent marks on merchandise. My attention was drawn to Section 2(d) of this Act to the' definition of "deceptively similar". A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion. Under Section 2(h) "High Court" means the High Court having jurisdiction under this Act which shall be the High Court within the Trade Marks Registry is situate. Under Section 2(d) "registered" means registered under this Act. Under Section 2(g) "registered proprietor" in relation to a trade marks, means the person for the time being entered in the register as proprietor of the trade mark. "Registered Trade Mark" means trade mark which is actually on the register. "Registered user" means a person who is for the time being registered as such under Section 49. Section 9 speaks of requisites for registration and Section 11 contains conditions and prohibition of registration of certain marks. Under this section a mark the use of which would be likely to deceive or cause confusion shall not be registered as a trade mark. Section 13 prohibits registration of identical or deceptively similar trade marks. In this section if a trade mark is already registered then the same trade mark shall not be registered in respect of any goods which is identical with or deceptively similar to the trade marks already registered.
14. Chapter IV of the Trade and Merchandise Marks Act, 1958 deals with the effect of registration. Under Section 28 if the registration of a trade mark is valid which gives rise to the registered proprietor of the trade mark the exclusive right to use the trade mark in relation to the goods in respect of the trade marks as registered and to obtain releif in respect of infringement thereto in the manner provided by this Act. Section 28(3) however, provides that when two or more persons are registered proprietors of trade marks which are identical with or merely resemble each other, the exclusive right to the use of any of those trade marks shall not be deemed to have been acquired by any one of those persons as against any other. Section 31 provides that registration of a trade mark will be prima facie evidence of validity and under Section 32 such registration is to be conclusive as to validity after seven years unless it is proved that the registration was obtained by fraud.
15. Chapter VII of this Act covers rectification or correction of the registration of trade marks. Under Section 56 power of cancellation or variation of register or rectification of the register has been given to a High Court or to the Registrar at the instance of persons aggrieved. As to who is the person aggrieved was also stated by Sri Nathani that under the Scheme of the Trade and Merchandise Marks Act, only a rival trader could be taken to be a person aggrieved and only he could have gone to the High Court or the Registrar for cancellation of the registration of trade marks. According to him, the general public, who had no concern with the business was not bound to take recourse to Section 56. It was contended by the petitioner, however, that when common, general and wide terms "person aggrieved" have been used, respondents cannot give a narrow meaning to it to mean only rival traders or rival claimants for the registration of the trade marks, rather it should include every person who has a grievance to such registration either as a rival or even as a consumer of the goods. It was contended by Sri Naithani that there is nothing in Section 56 to infer that it would exclude the jurisdiction of the civil Court. On the other hand, Sri Shanti Bushan drew my attention to the provisions of the Trade and Merchandise Act to say that empowering the High Court or the Registrar to cancell the registration and this High Court being not any High Court but only the High Court as defined under this Act, suggests that the legislatures by implication wanted to get the matter of cancellation of registration out of the ambit of the ordinary civil Court. He drew my attention to Section 105 of the Trade and Merchandise Marks Act, which spoke of the institution of a suit against the infringement of a registered trade mark or of any right in a registered trade mark. He also referred to Section 107 of the said Act to say that wherein a suit for infringement of a trade mark the validity of registration of the plaintiffs trade mark is questioned, by the defendants or where in any such suit, the defendants raise a- defence of any infringement under Section 30 of the Act and the plaintiffs question the validity of the registration of the defendant's trade mark, the issue as to the validity of the registration of the trade mark concerned shall be determined only on an application for the rectification of the register and notwithstanding anything contained in Section 46(4) of Section 56, such application shall be made to ,the. High Court and not ,to, the Registrar.
16. Shri Shanti Bhushan also referred to Sections 46 and 47 to say that registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on an application made to the High Court or to the Registrar. Section 47 also speaks of application made to the High Court of the Registrar in the matter of deceptive registration of well known trade marks. Sri Shanti Bhushan proposed to conclude that all these provisions lead to the only conclusion that the jurisdiction of the Civil Court in the matter of cancellation or registration has been impliedly taken away. It was contended that even in a suit that are contemplated under the scheme of the Act, when a question arose as to the validity of registration of trade marks, it is only the High Court that has been empowered to take a decision on this point and even the Court which is otherwise competent to entertain the suit is enjoined from deciding that issue.
17. It was argued on behalf of the petitioner that similar matters were raised by two different sets of smokers in representative capacity on behalf of the smokers in general in two earlier suits, one in Sikkim and the other in Haryana. It was contended that the Sikkim High Court by an elaborate order rejected the plaint. It was also contended that the trial Court at Gurgaon (Haryana) in the second mentioned earlier suit had relied on the judgment of the Sikkim High Court and it had also rejected the plaint. In both these suits, it was contended, similar prayers were made on similar allegations like the present suit. Before looking to the judgment of the Sikkim High Court it must be staled that plea might be available to the defendant on the maintainability point and the plaintiffs accepted that the plea may be raised as an issue of res judicata. But at the present moment, the judgment of the Sikkim High Court could have relevance only as a precedent and that too, not a binding one, if at all by enunciation of law has been made therein. Finding of fact would not be relevant even for the Sikkim High Court's case. A contention was raised that against the order of rejection of plaint by the Sikkim High Court, the plaintiffs therein had gone up in a Special Leave Petition to the Supreme Court and the Supreme Court had outright rejected the Special Leave Petition. It was proposed to be concluded that the judgment of the Sikkim High Court thereby merges with the judgment of the Supreme Court and the decision would not be read as law of the land. This view, in my opinion, must be disregarded. In rejecting the Special Leave Petition the Supreme Court had not recorded any opinion regarding the merits of the case. Accordingly, the theory of merger of the judgment into the order of the Supreme Court would not arise in this case, Even it" that had been the position i.e. even if the Supreme Court had discussed the merits of the case, the decision would be a precedent not on the facts decided, but only on the principles of law enunciated and the mere fact that the earlier suit was also against the very defendant or was also for a similar prayer would be taken as co-incidental only and this Court may not be swayed by this Judgment beyond its value as a precedent.
18. The Sikkim High Court's judgment has been reported in AIR 1992 Sikkim at page 34. Here also in the plaint against the I.T.C. plaintiffs alleged that the use ol the brand names 'Wills' or W.D. & H.O. Wills' by the I.T.C.. had created an impression that its products are of foreign origin or has been manufactured in collaboration with the foreign companies or with their expertise. The plea of deception thereby was raised. The Court was of the view on the basis of the facts, that such allegations were not statement of fact but were inference from certain facts indicated or inscribed on the cigarette packets. It was held that if the inference drawn by the plaintiffs was not warranted from the inscriptions on the packets it was a clear case of clever drafting to create an illusory cause of action. The provisions of Trade and Merchandise Marks Act were also interpreted and it was held that Sections 11 and 12 of that Act were meant for the purpose of protecting the interest of proprietors of the registered trade marks. A mere fact that the registration had incidently served public interest could not be interpreted as creating right in every person to approach the Court against a confusion or liklihood of a confusion. It was held further that, under Section 56 of the Trade and Merchandise Marks Act the remedy provided thereby was adequate one and the validity of entry could have been rectified by proceedings under Section 56 only. It was further held that where a dispute related to the enforcement of a right created by an enactment and that enactment also provided for an adequate remedy for its enforcement and; further laid down that all questions about the said right should be determined by the Tribunal constituted under the enactment the jurisdiction of the Civil Court would be barred. It was further held that merely because serious allegations of deception on the smoking community had been made, the plaint cannot be refused to be rejected. These enunciation of legal points may be the only relevant ones in the judgment of the Sikkim High Court while discussing the questions raised before this Court.
19. Regarding Section 115, C.P.C. I have already indicated that it was a jurisdictional error committed by the trial Judge which gives jurisdiction to the High Court to take up a revisional application. In respect of this question allegation is that the trial Court had Tailed to decide the question of rejection of the plaint under Order 7. Rule 11 of the C.P.C. In this connection the order of the High Court in writ petition as has been clarified on 5-4-1995. is also relevant. After the filing of the suit the plaintiffs obtained an ex parte injunction order against the production and sale of cigarettes by the defendants under the brands name:, 'Wills' and "W.O. & H. O. Wills". The defendants filed a writ petition to get the whole proceedings quashed. An agreement was arrived at in the writ petition and a consent order was passed. Thereafter the plaint was amended and an application under Order 7. Rule II. C.P.C. was filed. At that stage a clarification was sought and the amended plaint was directed to be looked into for decision on the application under Order 7. Rule 11, C.P.C. What would be meant by the words "amended plaint" had already been indicated in this judgment in an earlier order dated 1-10-1996. It would only mean the plaint that had taken shape after the amendment was introduced and not the amending paragraphs or words only. I have also accepted the contention raised by Sri Shanti Bhusan that irrespective of any plea being raised by the defendants, it was the duty of the court to sec if the plaint did disclose a cause of action and if it was barred under any other law. In looking to this aspect of the matter, the trail Court confined itself to the plaint and the plaint alone and not any documents for plaintiffs or defendants. The order of the trial Court was recorded on 24-5-1996. It is in Hindi and an English translation thereof was produced before me in the paper book which is lying at pages 26 to 60 thereof. In paragraph 13 certain matter; was left vacant in the English translation and the same was read in the original text. Learned trial Court stated the plaint case and the defendants objection and had also referred to the Sikkim High Court 's judgment and to Section 56 of the Trade and Merchandise Marks Act. It was contended that the suit was filed after obtaining the permission under Section
91. C.P.C. Learned trial Court also referred to the clarification order of this High Court dated 5-4-1996 as referred to above.
20. It was argued before the trial Court that in its earlier order the High Court had stated that maintainability point may be decided finally along with other issues and so the application under Order 7. Rule II was not acceptable. Maintainability to the suit is one and rejection of the plaint is another and once by its subsequent order the High Court directed that the application under Order 7. Rule 11 be decided on preliminary basis, the amended plaint alone was to be seen to decide the point. He discarded the contention of the plaintiff to confine himself only to the amending portion of the plaint as in his opinion the plaint must be seen as a whole and not just the amending portion. He found that the plaint is to be accepted or rejected in its entirety.
21. In paragraph 17 of his order, however, the learned trial Court tried to separate the amending portion of the pleading from the original plaint. He took up the amending portions one by one and was of the view in the later portion of this paragraph of his order that mixed question of law and fact were there on the point and the same could not be separated and therefore it was not possible to agitate upon them. He was of the view that in case these are separated and a decision is taken on them it would affect those portions of the plaint which, according to him, could not have been considered in the light of the consent order passed by the High Court. He was of the view that even if "amendment plaint" and the 'original plaint' were separated no separate cause of action would have arisen and it was not possible to consider them separately. He felt that the cause of action in respect of the allegations in the original plaint could not be agitated upon in view of the con sent order and was to be decided finally with other issues and accordingly he was unable to read the entire plaint. In his view very limited scope was given by the High Court to him in its order dated 5-4-1996 for disposing of the application under Order 7, Rule 11. C.P.C, He felt that he was obliged to look to the amending portion of the plaint alone. Accordingly, he was of the view that it was not possible to issue any direction under Order 7. Rule 11. C.P.C. as the original plaint and amended plaint were inseparable. In the concluding portion of his order he had ordered that the application under Order 7. Rule 11. C.P.C. was rejected. It appears that he was obsessed by the presumed bar that had been made in the consent order to take up the question of rejection of the plaint. As indicated above, High Court might have initally directed him not to take up any preliminary issue but by its subsequent order, the Court had clearly indicated that the application under Order 7, Rule 11, be disposed of looking to the amended plaint. He misread and mis-interpreted this direction and failed to take decision as desired by the High Court giving a narrow meaning to the words "amended plaint" under an impression that he was to look to the amending portion only. "Amending Plaint" I reaffirm my view should mean the plaint that stood after amendment and unless that meaning is giving to these words, we would reach an absurdity of rejecting the plaint for the amended portion once and at the same time keeping the question alive for the rest portion of the plaint. In this light it must be stated that the learned Court had failed to exercise the jurisdiction vested in him under Order 7, Rule 11. C.P.C. As observed earlier, this jurisdiction was to he exercised by the Court and the defendants were only to point out that the Court was obliged to exercise this jurisdiction. It was not dependent on the defendant's consent and as such defendant could not have consented that the Court would not exercise this jurisdiction. There having been a clear error of jurisdiction, this application under Section 115. C.P.C. is maintainable. --
22. It has been indicated in the earlier paragraphs of this judgment as to what was the true scope of Order 7, Rule 11, C.P.C. and what were the conditions for exercising the powers under Section 115, C.P.C. to interfere with the impunged order. 1 may now enter into the merits of the case as the revision application would be allowed or rejected upon a finding if the application under Order 7, Rule 11 should riot have or should have been rejected. As indicated in the order the entertainment of the plaint was objected to on two counts, that the suit was barred under the provisions of Section 56 of the Trade and Merchandise Marks Act and the suit also did not disclose any cause of action. These two pleas were resisted with an argument that Section 56 of the Trade and Merchandise Marks Act did not exclude the jurisdiction of the Civil Court and in any case the suit was based not within the frame of the said Act but on a clear allocation of deception and the plaint did disclose a cause of action and the defendants had no right to stall its progress on a frivolous plea. The relevant provision of the Trade and Merchandise Act have been quoted in the earlier paragraphs of the judgment. There is no dispute that the impugned trade marks stand registered in the name of the defendant-company. Upon such registration, certain rights are conferred to the owner of the registered trade mark. Registration gives to the proprietor of the trade mark exclusive right of the use of the trade mark in relation to the goods in respect of which the trade mark has been registered. This right is subject only to one condition that the registration should be valid. This right has been conferred by Section 28 of the Trade and Merchandise Marks Act. This right is proposed to be taken away from the defendants through this suit as an injunction has been sought for against the use of these two marks. The grounds of attack, as stated above, are fraudulent registration and deception under Section 31. Registration is to be taken to be a prima facie evidence of validity of a trade mark. Section 32 goes a bit farther and dictates that subject to the provisions of Sections 35 and 46 a registration shall be conclusive proof of validity after 7 years from the dale of registration unless it is proved that the original registration was obtained by fraud. It is, therefore, clear that the validity of the registration may not be challenged except on the ground of fraud. But still a question remains as to the forum where such validity is to be challenged. Fraud has been alleged on the ground that the registration was obtained suppressing the fact that another foreign company was the owner of the above two trade marks. The definition of registration, however, means registration in terms of the Trade and Merchandise Marks Act. A registration made under the India Merchandise Marks Act, 1889 or the Trade Marks Act, 1948 and in force on the date of commencement of the Trade and Merchandise Marks Act, 1958, was to be treated as a registration under the last mentioned Act. There is no averment in the plaint, however, that the foreign company was registered in India under the first mentioned two Acts so as to continue with its registration even after the passing of the Trade and Merchandise Marks Act. Back to Section 56 of this Act, this Court is to see if the jurisdiction of the civil Court has been excluded. In this connection. I agree with the argument of Sri Shanti Bhushan, as discussed above, that the jurisdiction of the civil Court in the matter of cancellation of registration has been impliedly taken away under Sections 46 and 47 of the Trade and Merchandise Marks Act. The forum for relief is the High Court or the Registrar and even in a suit for infringement of trade mark (Section 111 of this Act), when a question arises as to the validity of the registration of a trade mark, the said question is to be referred to the High Court and is not to be taken by the civil Court itself. Thus, when it is a question of cancellation of the registration even on the ground of fraud, the High Court or the Registrar under the Trade and Merchandise Marks Act is the proper authority and under a proper construction of the Act, they are the exclusive authorities and the civil Court may not enter into the question at all and even in a suit for infringement of trade mark such a question has been kept out of ambit of the decision of the civil Court. It must, therefore, be held that the suit, insofar as it related to the relief of declaration that the registration of the impugned trade marks was fraudulent was not to be entertained by the civil Court.
23. In this connection, Sri Naithani referred to a decision of the Supreme Court as reported in (1994)2 SCC 448 : (1994 AIR SCW 2760) (M/ s. Power Control Appliances v. Sumit Machines Pvt. Ltd.). It was a case of a family business of manufacturing a product under a brand name. The family members had different shares and directorship in all companies run by the family. The son of the sole proprietrix of the appellant-company, after becoming the managing director of the respondent-company, started marketing all the family products, by subsequently commencing it business of manufacturing the same product. Interim injunction against such 'manufacture 'was issued.' The Supreme Court observed in this case that there can be only on mark, one source and one proprietor. It cannot have two origins. The learned counsel for the respondent-plaintiffs laid stress on these words to say that there cannot be two sources of production and two owners of the brand names "Wills" and "W.D. and H.O. Wills". The facts of this quoted decision are certainly different from the facts in the instant case. In the case before the Supreme Court the same family business stood split up by the action of one party who tried to manufacture similar goods under the same brand name and that was resisted. In the instant case, however, there is only one allegation that the two impugned trade marks are used by foreign companies without any averment that they stood registered in India. Therefore, under the definition of the term "registered" as used in the Trade and Merchandise Marks Act, the defendant-revisionist company were the sole owners of the aforesaid trade marks and cancellation of registration could have been made not by the civil Court but by the authorities prescribed under Section 56 of the said Act. In this connection, Sri Shanti Bhushan placed a decision of the Delhi High Court as reported in AIR 1988 Delhi 282. It was a case where two proprietors had the identical trade mark in different goods. There was a prayer by one for deleting the name of the other from the register of trade marks. It was held that the proprietory rights of both of them were protected till their names were there in the register and no one was entitled to take action against the other nor one could be restrained from using his trade mark. It was held that no relief by way of restrained could have been given unless the registration was cancelled by an action taken under Section 56 of the Trade and Merchandise Marks Act. Sri Shanti Bhushan contended that this Judgment also indicated that Section 56 create the sole forum for cancellation of registration of a trade mark.
24. We may now traverse to the second aspect of the plaint, if the plaintiffs could maintain the suit on the allegation of deception and fraud even without referring to the provisions of the Trade and Merchandise Marks Act. It was contended that averments were there that the two impugned brand names were used by a foreign company as well which had tremendous reputation in the esteem of the Smoking people in India and elsewhere and by posing that the cigarettes manufactured by the defendant company were of that brand name a wrong signal was given to the public that these cigarettes were of that high quality as found and expected in the foreign products. It was contended by Sri Naithani that it is not a case of simple infringement of the right of the foreign company. If they have colluded with the defendant-company in the manufacture and sale of inferior quality of cigarettes, the smoking public in general may not be asked to wait for an action by the foreign company and to forbear the deception for all times to come. It was contended that the suit was certainly maintainble as the plaintiffs had alleged how they were deceived and on the question of deception alone the civil Court will have a jurisdiction to entertain the suit and grant the relief of injunction under a true interpretation of Section 9 of the Code of Civil Procedure.
25. To recapitulate the plaint allegation again, it may be stated that the plaintiffs were the smokers of the impugned brand-named cigarettes. They did not know what were the printed declarations on the packets as they were purchased of loose sticks only. From the brand names, they were under the impresion that the cigaretees were being manufactured under the licence of a British company carrying the same brand names. They were also under the impression that these cigaretees were manufactured as per the standards fixed by the foregin companies or under their supervision. It was stated that the defendants had never informed the plaintiffs or other smokers that they were manufacturing the above brand of cigarettes not under the licence or the authority of the foreign company but were acting on their own. There was no advertisement of anything of the nature by the defendant-company to indicate the above fads. They had not indicated even on the packets of the cigarettes that they had acquired the right of manufacture of cigaretees and sale thereof under these two brand names. Thus, there was a misrepresentation to the plaintiffs and other citizens by the defendants that the aforesaid brands were manufactured and sold under the licence and authority of the foreign companies. This was alleged to be clear case of deception of the public in general. Due to fraud and misrepresentation of the defendants the plaintiffs; were led to believe that, they were smoking genuine brands of cigaretees. The defendants were passing off their, goods as if manufactured by the aforesaid foreign company and atleast were causing confusion and deception or there was a probability of confusion or deception amongst the smoking public. The plaintiffs alleged that the defendants did not use any expertise, know how or technical assistance of the foreign company in the manufacture of the aforesaid brands of cigarettes. It was further alleged that the use of the aforesaid brand marks by the defendant company was a wrongful act affecting the plaintiffs and the general public prejudicially and the plaintiffs were entitled to file a suit. Regarding cause of action, it was definitely indicated in the plaint that it had arisen when the plaintiffs for the first time came to know of the illegal acts, on the part of the defendant-company immediately prior to the filing of the suit.
It is true that the words fraud, deception, misrepresentation and confusion have been used in the plaint. This Court is required to examine if mere use of the terms would create a cause of action or really there was deception or fraud at the instance of the defendant-company or if by any action of the defendant-company any confusion or atleast the probability of confusion arose in the mind of the smoking public in general and the plaintiffs in particular. Reference was placed by Sri Naithani on a decision of the Supreme Court reported in AIR 1963 SC 449. It was indicated herein that a trade name likely to deceive and cause confusion was to be inferred from the overall similarity in the two brand names. The Trade and Merchandise Marks Act as per this decision did not lay down any criteria for determining what was likely to deceive or cause confusion. It was held that every case must depend on its own particular facts and the value of the authorities lies not so much in actual decision as in the tests applied for deterring what is likely to deceive or cause confusion. In this connection , the definition of deceptively similarly is important. A market should be deemed to be "deceptively similar" to another mark if it so nearly resumbles without marks as to be likely to deceive or cause confusion. These terms have been used in Section 12 of the Trade and Merchandise Marks Act stating that no trade mark shall be registered in respect of any goods or description of goods which is identical with or deceptively similar to a trade mark already registered in the name of a different proprietor in respect of the similar goods or description of goods. Thus, the words deceptively similar has been used to protect the rights of a owner of registered trade mark and not for other purpose. The plaintiffs' case in the instant proceedings clearly states that the foreign company is registered in England and they have permitted the use of the brand names in India by the defendant-company. Thus, the very use of the identical mark any not be violative of the provisions of the Trade and Merchandise Marks Act and deception may not be inferred under the meaning of any clause under that Act. Deception must therefore be established from facts pleaded otherwise. The case of London Rubber Company, AIR 1963 SC 1882 also spoke of deception or confusion that might result from identical marks or similar marks, and a reading of the judgment indicates that a question arose whether the Deputy Registrar of a particular trade mark. The Supreme Court dealt with the question of deception and confusion on the question of registration of trade mark, and it was held that deception would result from the fact that there was some misrepresentation therein or because of its resemblance to a mark whether registered or unregistered or to a trade name in which a person other than the applicant had rights. I believe, this is the crucial test to be taken in the instant case whether the foreign Company had a right in India to manufacturer and or sell the impugned brand names. The plaint is silent on this point.
In the case of Simatul Chemical Industries, AIR 1978 Guj 216 the Gujarat High Court indicated as to what was the Marks Act. It was held that the test to be applied is the test of an average person with imperfect recollection. The Court has to visualise a customer or a tradesman who may happen to have dealings with the company complaining or who may happen to want to purchase the goods manufactured by such company. It would not be to apply the test of a person of exemplary memory who remembers the spelling of name of each company or a person who jots down meticulously, methodologically the names of the companies in his diaries. It was a dispute between the two companies,' namely, Cibatual and Simatul It was stated that the plaintiff was to show that the two names were so deceptively similar that there was likelihood of confusion amongst the persons dealing with the two companies. It was not a suit at the instance of any customer of the plaintiff-company, rather the plaintiff company itself came forward to protect its own right. In the suit at our hand, the customers of the goods are coming up with a plea of deception on the ground that the brand names used by the defendants are brand names owned by two foreign companies which had permitted the use of the brand names but had not lent the know how or expertise thereof. In the case of K.R. Chinna Krishna Chettiar, AIR 1970 SC 146 the likelihood of deception came up for decision in a matter for registration of trade marks. It was held that when there was striking phonetic resemblance between the distinctive words of existing and proposed trade marks, the proposed trade mark could not be registered. In my view, we are not confronted with this situation in the present case. In the case of Prem Nath Nayar, AIR 1972 Cal 261 it was held that it was the onus on the applicant for a registration of a trade mark to show that the proposed mark was not likely to deceive or confuse. Similar view was taken in the case reported in AIR 1964 Madras 204, where a likelihood of deception or confusion was held sufficient to refuse registration of a trade mark. In my view, these case laws are not applicable to the present set of facts. In the case of K.T. Pavunny. AIR 1982 Kerala 309 a suit under the Code of Civil Procedure for permanent injunction was entertained on the averment that the defendants were carrying on business in a name which was likely to misland the public into the belief that the press run by the defendants was the same as that of the plaintiff. It was, however, not a question touching the likelihood of deception or confusion. The main question was whether the suit would lie before the district Court of the sub-Court.
On behalf of the defendant-revisionists, it was argued that the plaintiffs were to establish that it was a case of deception or confusion created due to some action or inaction on the part of the defendants. As to what was the deception was sought to be explained by the learned counsel and reliance was placed on the decision of the Sikkim High Court, in this connection. According to Sri Shanti Bushan the plaint plaint allegation did not constitute a case of deceipt. According to him in an action for deceipt the plaintiffs must allge the following facts :
(i) that the defendant had made a false representation,
(ii) that the defendant made it fraudulently i.e. knowing it to be false or not knowing it to be true.
(iii) that the defendant made such false and fraudulent representation with the intent that the plaintiff should act on it and
(iv) that the plaintiffs acted on it and by acting on it the plaintiff sustained damage.
According to him, these are the essential averments in a suit based on the allegations of deceipt. It was argued that the ITC, even according to the plaint, had never made any false or fraudulent representation. Although the word misrepresentation was used there was no specification as to what were the misrepresentations. Reference was made to order 6, Rule 4 of the CPC which requires that in all cases in which the party pleading reliance on any misrepresentation, fraud, breach of trust, wilful default or undue influence and in all these cases where particulars may be necessary, particularly such as are exemplified as aforesaid, particulars (with dales and items, if necessary) shall be stated in the pleading. It was argued that the particulars of fraudulent misrepresentations were not at all pleaded. Sri Shanti Bhushan continued to say that there was no allegation in the plaint barring the one that the ITC had used its own brand names which, according to the plaintiffs, originally belonged to the foreign companies and that these two trade marks were registered in England. There was no averment that in India the aforesaid foreign companies or any other person or company except the ITC was the registered proprietor of the two impugned trade marks. ' When ITC was the sole registered owner of the trade marks there could not be any false and fraudulent misrepresentation by use of the said trade marks. In this connection, the learned counsel for the revisionists referred to the decision of the Delhi High Court as reported in AIR 1988 Delhi 282 to say that an exclusive right to use the registered trade mark was given to the registered proprietor by Section 28(1) of the Trade and Merchandise Marks Act and till the trade marks stand registered in the name of that proprietor his right could not be interfered with. Reference was further made to an observation of the Madras High Court in the case of Arvind Laboratories AIR 1987 Madras 265, wherein it was held that an action for deceipt cannot be founded without false and fraudulent misrepresentation. It was argued that such false and fraudulent representation could not be established by the user of its own trade marks by the registered proprietor.
26. On the question of confusion or likelihood of confusion it was submitted that mere confusion could not constitute a cause of action unless the confusion is created by the misrepresentation of the defendant. In case, there be no misrepresentation and the plaintiff gets confused for his own lack of perception, there could not be any cause of action in favour of the plaintiff.
27. These aspects of the case were thoroughly discussed in the judgment of the Sikkim High Court which detailed the necessities for an action of deceipt and, in fact, these were the points which were elaborated by Sri Shanti Bhushan in his arguments, as indicated above. The Sikkim High Court judgment referred to adecision of the House of Lords in Dow Hegar Lawrence, in paragraph 16, to say that general allegations, however strong may be the words in which they arc stated are insufficient to amount to an averment of fraud of which any court ought to take notice, and further observed, it is not a sufficient compliance with the rule to state facts and circumstances which merely imply that the defendant, or someone for whose action he is responsible did commit a fraud of some kind. There must be a probable, if not necessary, connection between the fraud averred and the injurious consequences which the plaintiff attributes to it and if that connection is not sufficiently apparent from the particulars stated, it cannot be supplied by general averments. Back to the averments in the plaint, it is found that the defendant -- I.T.C. were manufacturing and selling cigarettes under the marks "W.D. & H.O. Wills" and "Wills". These two marks were originally owned by foreign companies registered in England. These foreign companies enjoyed tremendous reputation amongst the smoking public in India. These foreign companies had allowed the defendants to use the trade marks without giving to them the knowhow, expertise or technical assistance and the cigarettes manufactured by the defendants were inferior in quality than those manufactured by the foreign companies. The defendants obtained registration of these trade marks by suppression of fact and they had never informed the plaintiffs or the public at large that the cigarettes under those brand names were not being manufactured under the licence or authority of foreign company. These were the misrepresentations and fraud that were alleged in the plaint.
28. From the plaint itself it is clear that the foreign companies had allowed the trade marks to be used by the defendants. The provisions of the Trade and Merchandise Marks Act make it clear that so far as the registration is concerned the proper authority for its cancellation is the Registrar of the Trade Marks or the High Court. The civil court could maintain the suit only on the ground of
fraud/deception/confusion. When, admittedly, the defendants were the registered owners of the two trade marks in question, they had every authority to use the trade marks. There is no averment that these trade marks were, registered with any other person in India. There is no averment that parallel to products of the defendants under these two brand names, cigarettes manufactured by the foreign companies were also being sold in India so that confusion could arise. There is no legal liability with the defendants to intimate the public at large as to what was the contract or agreement between them and the foreign companies towards use of the registered trade marks. I do agree with the submissions of Sri Shanti Bhushan that if by use of a trade mark by the defendants of which they were the registered proprietors any confusion has been created in the mind of the plaintiff, it was not due to any action or inaction on the part of the defendants, rather it reflected the mental stale of the plaintiffs for which the defendants were not at all liable.
29. The plaintiffs in the suit before the Sikkim High Court, after the aforesaid judgment, had gone to the Supreme Court in an SLP and it was rejected forthwith. A question arose whether after the dismissal of the SLP the Sikkim High Court judgment would be deemed to have merged with the Supreme Court. In my view, when the Supreme Court had not spoken anything about the merits of the case and simply rejected the SLP there is no enunciation of law by the Supreme Court and the dictum in the judgment of the High Court may not be read as a dictum of the Supreme Court. Although between the parties the dismissal of the SLP by the Supreme Court would always operate as res judicata and those parties may not again agitate the matter before any other forum. Has it been a stage for determining the maintainability of the suit on the ground of res judicata, the judgment of the Sikkim High Court being confirmed by the Supreme Court by dismissal of the SLP would have certainly operated as res judicata against the present plaintiffs also as the earlier suit was in a representative capacity. But the question at this stage is not of maintainability of the suit but the very entertainability of the plaint and the Sikkim High Court judgment may, therefore, operate as a precedent only, from another High Court.
30. A reading of the Sikkim High Court Judgment indicates that the questions were deeply gone into and elaborate reasonings have been given to discard the case of alleged deception. In the present plaint also the discuss ions made above indicate that taking all the plaint allegations as true, nothing has been averred to indicate that the defendants had made any false representations knowing it to be false or with an intent that the smokers in general would act upon such representation. While it is true that the plaintiffs could maintain a suit on the ground of fraud and deception irrespective of the provisions of the Trade and Merchandise Marks Act, the plaint in the present case does not make out such case of fraud/deception or even confusion attributable to any action or inaction on the part of the defendant. It must, therefore, be held that the plaint was liable to be rejected not only under clause (d) of Order 7,Rule 11 of C.P.C. but also under clause (a) thereof.
31. The present revision-application, accordingly, stands allowed. The impugned order of the trial Judge is set aside and the plaint is rejected for having disclosed no cause of action and for being barred under Section 56 of the Trade and Merchandise Marks Act. The parties are directed to bear their own costs.
32. Petition allowed.