O.P Dwivedi, J.— By this order I propose to dispose of application No. 1295/1997 under Section 10 read with Section 151 CPC filed by the defendants No. 4 and 5 for staying the S. No. 3047/1996 as earlier suit being No. 1187/1993 involving the same matter and issue between and same parties is also pending.
2. Briefly stated, the facts in the background are as under:—
On 21 st May, 1993, the plaintiffs above named filed a suit against the defendants seeking a decree for permanent injunction restraining the defendants from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in miser grinders and juicers under the impugned trade mark MAGGI or any other trade mark as may identical to or deceptively similar with the trade mark MAGGI of the plaintiffs. Apart from permanent injunction, the plaintiff also prayed for rendition of accounts, delivery of the impugned goods including wrappers, packagings, stationery, dyes, blocks etc. of the defendants. It is alleged that the plaintiffs were engaged in the business of manufacturing and selling various culinary products such as soups, noodles, pastas, sauces, Wiurze sauce etc. under the trade mark MAGGI in various international markets. In India these goods are manufactured and sold by the plaintiff No. 2 which is a joint Venture of plaintiff No. 1 since 1974. It is further alleged that in May, 1993, the plaintiff came to know that the defendants are using the same trade mark MAGGI on their products namely mixer, grinders and juicers. The plaintiff thereupon filed a suit being No. 1187/1993 complaining the misuser of the trade mark MAGGI by the defendants in respect of aforesaid goods namely mixer, grinders, juicers.
3. Later on, the plaintiff came to know through Trademark Journal No. 1129 dated 16th June, 1996 that the defendants attempted to appropriate the same trade mark MAGGI on other goods also and have now even applied for registration of the trade mark MAGGI in addition to electric fans, heaters, geysers, bulbs, tube lights, torches, exhaust fans, emergency lights, transformers, electric fittings, stabilisers, regulators, electric hot plates for cooking, fridge, air conditioners, water coolers, room coolers, electric components, gas lighters and other heating, lighting cooling and cooking apparatus/instruments and domestic utensils, household articles, plasticwares, glasswares, vegetable cutters, thermowares, flower plants, buckets, plant sets, vacuum flasks, water filters, casseroles, containers (food), brushes, cup saucers etc. The plaintiff thereupon filed subsequent suit being No. 3047/1996 seeking similar relief. Pleadings of both suits are at evidence stages.
4. Through this application (No. 1295/1997) under Section 10 CPC filed by the defendants No. 4 and 5 seeking stay of the subsequent suit being No. 3047/1996 on the ground that the matter and issue of both the suits are same namely use of trade mark MAGGI by the defendants and therefore, the subsequent suit is liable to be stayed under Section 10 CPC. As against this, submission of learned counsel for the plaintiffs was that both suits are in respect of different items which is clearly made from the plaint. Therefore, it cannot be said that the matter and issue is directly or substantially the same in both the suits.
5. I have heard learned counsel for the parties. In my view the provisions of section 10 cpc cannot be applied in the facts and circumstances of the present case. It is clear from perusal of the plaint, the first suit bearing No. 1187/1993 was in respect of misuser of the trade mark MAGGI on three specific items namely mixer, grinders and juicers whereas the second suit being No. 3047/1997 covers many more items namely electric fans, heaters, geysers, bulbs, tube lights, torches, exhaust fans, emergency lights, transformers, electrjc fittings, stabilisers, regulators, electric hot plates for cooking, fridge, air conditioners, water coolers, room coolers, electric components, gas lighters and other heating, lighting cooling and cooking apparatus/instruments and domestic utensils, household articles, plasticwares, glasswares, vegetable cutters, thermowares, flower plants, buckets, plant sets, vacuum flasks, water filters, casseroles, containers (food), brushes, cup saucers. If the defendants were not manufacturing other items which are the subject matter of subsequent suit or if the plaintiff had no knowledge of the misuser of the trade mark MAGGI by the defendants in respect of those items, there was not occasion for the plaintiff to have sought any relief in the earlier suit in respect of items which are covered by the subsequent suit Moreover cause of action in the second suit is based on the Trademark Journal No. 1129 dated 16th June, 1996 wherefrom the plaintiff came to know that the defendants had applied for registration of trade mark MAGGI in respect of other items which are the subject matter of the second suit. Obviously this will give rise to a fresh cause of action and therefore, the plaintiff could very well institute the second suit being No. 3047/96. The matter in issue in the former suit is the alleged misuser of the trade mark MAGGI on three specific items namely mixer, grinders and juicers whereas the matter in issue in the second suit is alleged misuser of the trade mark MAGGI by the defendants on many other items namely electrical and domestic utensil items of which the plaintiff was no aware at the time of filing of first suit. So it cannot be said that the matter in issue in both the suits is directly or substantially the same, particularly when a fresh cause of action arose to the plaintiff because of defendant's application for registration of the said trade mark.
6. I am of considered view that the Section 10 CPC has not attracted in the present case so application No. 1295/1997 for stay the subsequent suit being No. 3047/1996 is hereby dismissed.
7. IA stands disposed of.