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TMI Blog2008 (9) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of 2006. 4. The learned single Judge, by the impugned order dated 5.9.2007, ordered Application No. 6025 of 2007 to revoke the leave, as prayed for, inter-alia observing that, if there is nothing to show that sales have taken place within the jurisdiction of this Court, then leave cannot be granted. There is no other circumstance, which justifies the filing of the suit, within the jurisdiction of this Court because both the Respondent and the applicant carry on business elsewhere. Therefore, not only on the ground of forum convenience, but also because the applicant prima facie failed to establish to the satisfaction of this Court that sales had in fact taken place within the jurisdiction of this Court, leave must be revoked. For deciding whether the leave granted should be revoked, one looks only to the averments in the plaint and the documents filed by the applicant and it is on the basis of his own pleadings that the applicant must establish his case for grant of leave. In this case, the applicant has not succeeded in doing so. Leave granted in Application No. 4056 of 2006 is revoked. Application No. 6025 of 2007 to revoke the leave is ordered as prayed for. 5. The cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibutors, stockiest or any one acting under or through it from in any manner applying or causing to be applied in relation to the biscuit packets or any other goods contained in Class 09.01 09.07 of the Third Schedule of the Designs Rules, 2001, the designs or any other design which is identical to or deceptively similar to or a fraudulent imitation of the Plaintiffs registered Design Nos. 185711, 185712, 185713, 188156 and 188157 in Class 09-01 and 09-07 or from doing anything with a view to enable the Plaintiffs Design Nos. 185711, 185712, 185713, 188156 and 188157 from being pirated, and (b) directing the Defendant to deliver up to the Plaintiff for destruction all the packets bearing and/or containing the pirated design, shape and configuration, including dyes, moulds and other articles used by the Defendant for reproducing and pirating the registered designs of the Plaintiff, bearing Nos. 185711, 185712, 185713, 188156 and 188157. 8. According to the Appellant-Plaintiff, the cause of action for the suit has arisen when the Defendant sold the biscuit packets with the Plaintiffs design, thereby, pirating the registered designs of the Plaintiff in Nos. 185711, 185712, 1857 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant/Plaintiff has not approached the Court with clean hands and hence, the Respondent/Defendant prays to cancel the design registered under Nos. 185711, 185712, 185713, 188156 and 188157 as a counter-claim against the Plaintiff for cancellation of the said designs under the provisions of Sections 4 and 19 of the Designs Act, 2000, considering the defences raised. 12. The Appellant/Plaintiff has filed a reply, inter alia stating that the Court has both territorial and pecuniary jurisdiction to try the case and that the Respondent/Defendant is not entitled to counter-claim for cancellation of designs in the present suit, when a similar relief has already been sought for by it before the competent authority and that the Respondent/Defendant has committed piracy of the Appellant/Plaintiff-company's registered designs. 13. Learned Counsel appearing for the Appellant/Plaintiff urges that the learned single Judge ought not to have revoked the leave granted earlier by this Court in Application No. 4056 of 2006, dated 11.10.2006, and that the learned single Judge should have appreciated the fact that the Appellant/Plaintiff has filed three purchase bills in the suit to show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plaintiff need not take leave of the Court under Clause 12 of the Letters Patent, even if only a part of the cause of action or no part of the cause of action arose within the jurisdiction of the High Court, if the Plaintiff ordinarily resides or carries on business within the jurisdiction of the Court and that while considering whether the plaint is maintainable, the plaint averments alone could be germane and the pleas taken by the Defendants in the written statement or counter-affidavit, are irrelevant at the stage. 16. He also relies on the decision of this Court reported in 2005 (3) C.T.C. 86 (DB) at page 92 (Ummer Koya P.T. v. Tamil Nadyu Chess Association), wherein, it is held that, 'the person aggrieved of the grant of leave has to approach the Court at the earliest point of time and seek for revocation, without due participation in the other proceedings'. 17. Learned Counsel for the Appellant/Plaintiff presses into service the decision of this Court reported in 2001 (2) M.L.J. 557 (DB) : 2001 PTC (21) 349 (Mad) (DB) (Smithkline and French Laboratories Ltd. v. Indoco Remedies Limited, Mumbai), wherein, it is observed that there is no statement by the Defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the Respondent in the affidavit that its products are not sold in Madras. The proper course would have been, after the Respondent had filed the written statement, an issue could be taken as to the jurisdiction and that could have been dealt with either as a preliminary issue or along with other issues on the basis of the evidence that could be let in by the parties. The learned single Judge has revoked the leave granted, holding that this Court has no jurisdiction on the basis of the statement made in the affidavit of the Respondent filed. It is relevant to state here itself that the Appellant has made specific averment in the plaint that the respondents' goods are sold within the city of Madras at several places. The averment made in the plaint alone should have been taken into consideration in order to decide the jurisdiction, at that stage by the learned single Judge. Under the circumstances, we find it difficult to sustain the order under appeal . 20. He also relies on the decision reported in 1992 (1) L.W. 308 (Tuticorin Alkali Chemicals and Fertilisers Ltd. v. Cochi in Silicate and Glass Industries) (DB), wherein this Court held that, In deciding whether to refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India), wherein the Supreme Court has held that the plea as to non-maintainability of the suit on the ground of its being premature, should be promptly raised by the Defendant and pressed for decision and it will equally be the responsibility of the Court to examine and promptly dispose of such a plea, etc. In this decision, the Supreme Court further observed that the power to summarily reject, coffered by Order 7 Rule 11 of the Code of Civil Procedure, can be exercised at the threshold of the proceedings and is also available in the absence of any restriction statutorily placed, to be exercised at any stage of the subsequent proceedings and however, a preliminary objection as to maintainability should be raised as early as possible, though the power of the Court to consider the same at a subsequent stage, is not taken away. 23. Learned Counsel for the Respondent/Defendant also cites a decision of this Court reported in 2008 (1) C.T.C. 527 (Gurusamjy (died) M. v. G. Vijaya), wherein this Court has held that the Court is competent to reject the plaint at any stage if it finds that the conditions under Order 7 Rule 11 Code of Civil Procedure exist and that the provisions of Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the written statement in June 2007. The Appellant/Plaintiff has also filed the reply statement in August 2007. 27. It is an axiomatic fact that whether a cause of action has arisen at a particular place, is a 'question of fact', which can only be decided after recording of the evidence of the parties. It is needless to make a mention that in the case of 'Read v. Brown', 1888 (22) Q.B.D. 128, Lord Esher, M.R., adopted the definition for the phrase cause of action that it meant every fact which it would be necessary for Plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence, which is necessary to prove each fact, but every fact which is necessary to be proved. 28. In this connection, it is significant to point out that the Supreme Court in the decision reported in 2000 (7) SCC 640 at page 654 (Navinchadra N. Majitha v. State of Maharashtra), whereby and whereunder, the Supreme Court has observed as follows: 38. Cause of action is a phenomenon well understood in legal parlance. Mohapatra, J. has well delineated the import of the said expression by referring to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent/Defendant files in evidence the pleadings in the previous suit/subsequent suit and thereby proves to the satisfaction of the Court the identity of the said cause of action. In the instant case on hand, it is the case of the Respondent/Defendant that the action for counter claim has arisen on account of the infringement suit filed by the Appellant/Plaintiff before this Court in C.S. No. 798 of 2006. 30. Moreover, the issue of jurisdictional dispute requiring evidence, must be decided alongwith the other issues in the suit, only at the time of trial. 31. The Appellant/Plaintiffs counsel submits that the Sales Officer of the Appellant/Plaintiff-Company filed an affidavit before this Court in Application No. 6025 of 2007 in Civil Suit No. 798 of 2006 on 4.9.2007 (received in Court on 5.9.2007), inter-alia stating that he went to the market in the City of Chennai and purchased two biscuit packets with infringing designs from two different places in Chennai and the cash memo and the cash bill alongwith the biscuit packets were enclosed thereto and that the Respondent/Defendant-Company's biscuit packets with infringing designs as that of the Appellant/Plaintiff-Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for revocation of leave, it is stated categorically that there is no proof of commercial sale on a extensive scale of the Defendant's biscuit packed... . It is also stated that there is no advertisement of Defendant's biscuits packed in alleged infringing wrappers in the city of Chennai and that there is no distributor, agent, stockists to sell our biscuits in Chennai. I state that the Defendant's products with the alleged infringing designs are not sold commercially in the city of Chennai. Therefore, the Respondent has come out categoric case that they do not have any agent or distributor within the jurisdiction of this Court. 34. According to the Learned Counsel appearing for the Appellant/Plaintiff, the above observations of the learned single Judge are not correct, in view of the averments in the supporting affidavit in Application No. 6025 of 2007, filed by the Sales Officer of the Appellant/Plaintiff-Company to the effect that he has purchased two biscuit packets with infringing designs from two different places in Chennai and that the Respondent/Defendant-company's biscuit packets with infringing designs as that of the Plaintiff-Company, are available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and not the assumptions. 37. In regard to the contention of the Appellant/Plaintiff that it has instituted a suit against the Respondent/Defendant for selling the article/product bearing the registered design within the territorial jurisdiction of this Court, has given rise to the cause of action as a whole and as such, leave to sue as per Clause 12 of the Letters Patent is not required, it is to be pointed out that both the Plaintiff and the Defendant are having their registered offices outside Chennai, viz., Mumbai and Uttar Pradesh respectively. 38. In fact, the jurisdiction based on the cause of action and the jurisdiction based on the person of the Defendant, are two separate categories. 39. Clause 12 of the Letters Patent in regard to the Original Jurisdiction as to suits , the High Court of Judicature at Madras, n exercise of its Ordinary Original Civil Jurisdiction, is empowered to receive, try and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated, or, in all other cases, if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the contention that 'leave to sue' as per Clause 12 of the Letters patent is not required to be present facts and circumstances of the case, put forward on the side of the Appellant/Plaintiff, is not accepted by this Court. On the other hand, it is to be pointed out that the Appellant/Plaintiff has filed 'leave to sue' application in Application No. 4056 of 2006 on 29.9.2006 and the said Application No. 4056 of 2006 was allowed by the learned single Judge on 11.10.2006. Only when the Respondent/Defendant filed Application No. 6025 of 2007 to revoke the leave already granted in A. No. 4056 of 2006 on 11.10.2006, the Appellant/Plaintiff has come forward with the contention that the leave to sue as per Clause 12 of the Letters Patent is not necessary, considering the present facts and circumstances of the case. 43. It is relevant to notice Section 22 of the Designs Act, 2000 in respect of piracy of registered design , which runs as follows: Chapter V. Legal Proceedings: 22. Piracy of registered design. (1) During the existence of copyright in any design it shall not be lawful for any person (a) for the purpose of sale to apply or cause to be ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o shall cause an entry thereof to be made in the register of designs. 44. The plaint deals with the infringement and acts of piracy committed by the Respondent/Defendant. It is to be noted that the words, actually and voluntarily resides or carries on business or personally words for gain mentioned in Section 134(2) of the Trade Marks Act, is not found in Section 22 of the Designs Act, 2000. As a matter of fact, there is no provision under the Designs Act, 2000 for criminal proceedings against piracy of designs. Therefore, this Court is of the view that the Appellant/Plaintiff has rightly projected the application in A. No. 4056 of 2000 seeking the leave of the Court to sue the Defendant as per Clause 12 of the Letters Patent. 45. Moreover, the Appellant/Plaintiff-Company has acquiesced itself in projecting A. No. 4056 of 2000, and therefore, at this distant point of time, it is not open for the Appellant/Plaintiff to take a diametrically and symmetrically opposite stand. 46. It cannot be lost sight of, of the fact that the question of difficulty and importance, cannot be dealt with in Application seeking revocation of leave under Clause 12 of the Letters Patent, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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