VIKRAMAJIT SEN, J.:— C. M. No. 6527/2007 (Exemption).
2. Allowed, subject to all just exceptions.
CAVEAT No. 556/2007
3. Since Mr. Mohan Vidhani, Advocate, has entered appearance on behalf of the Respondent, the caveat stands discharged.
FAO (OS) No. 144/2007 and CM No. 6526/2007
4. At the threshold, Mr. Vidhani, learned counsel appearing for the Respondent, states that the Respondent does not propose to file any cross objections or any Appeal against the Order impugned before us. This is relevant for the reason that in para 9 of the impugned Order the Plaintiff/Appellant has been permitted to file fresh suit before this very Court after giving up certain reliefs. In these circumstances, the construction sought to be given by Mr. Vidhani to Order VII, Rule 10, C. P. C. is no longer worthy of consideration. Rule 10, according to Mr. Vidhani, does not permit the breaking up of reliefs. We do not agree with this construction of Order VII, Rule 10, C. P. C., but in view of the Relief granted by the learned Single Judge, which the Defendant/Respondent has no intention of challenging, resort to O. VII, R. 10, C. P. C. by the Respondent is not available.
5. Briefly stated the facts of the case are that the Plaintiff had filed a suit for the infringement of its trademark “Baba”, for breach of its copyright, and for passing off. The Defendant/Respondent has adopted the mark “Babu” which according to him is distinct from “Baba”, and is incapable of causing any confusion in the minds of any prospective purchasers. We shall desist from expressing any opinion on this argument since the matter has still to be adjudicated upon its merits.
6. Mr. Anand, learned counsel for the Appellant/Plaintiff does not challenge the finding of the learned Single Judge that this Court would not have jurisdiction in respect of the relief of Passing-off. He submits that this relief will be agitated by the Plaintiff in the Court of competent jurisdiction. He, however, submits that so far as the prayer pertaining to the infringement of the Plaintiff's trademark and copyright is concerned, Courts in Delhi indubitably possess territorial jurisdiction by virtue of Section 134(2) of the Trade Marks Act, 1999 as also Section 62(2) of the Copyright Act. Hence this part of the plaint ought to have been segregated and entertained, as is the intendment and purpose behind the Plaintiff's application for amendment of the plaint, which has not been dealt with on merits.
7. Mr. Vidhani has sought to rely on two Single Bench Judgments of this Court namely Anil Goel…Plaintiff; v. Sardari Lal…Defendant., 75 (1998) DLT 641 and Globe Super Parts, Faridabad v. Domestic Appliances, 1981 PTC 78. Mr. Vidhani has also drawn our attention to the decision in Dabur India Limited v. K. R. Industries, 2006 (33) PTC 107 (Del) and the resultant Appeal Dabur India Limited v. K. R. Industries reported in 2006 (33) PTC 348 (Del) (DB).
8. What is critical to the decision in the present Appeal is that the Plaintiff has already filed an application for amendment of the plaint prior to the passing of the impugned Order. Since Dabur India was argued by Mr. Anand he has been quick to submit that precedent is distinguishable from the present one for the reason that an application for amendment of the plaint in that case had not been filed by the Plaintiff. The result was that at the time of the passing of that impugned order the High Court of Delhi did not and continued not to possess territorial jurisdiction for the relief ‘infringement’ since a prayer for segregation of the maintainable and non-maintainable prayers had not been filed. The Division Bench in terms pronounced that the infringement relief was adjudicable in Delhi.
9. We will now refer to the decision relied upon by Mr. Vidhani. In Anil Goel the amendment was not permitted by this Court, relying on the previous decision in Lok Kalyan Samiti v. Jagdish Prakash Saini, 1995 (33) DRJ 290. This was for the reason that the learned Single Judge found that the High Court had no pecuniary jurisdiction and hence it could not consider an amendment which would have the effect of bestowing pecuniary jurisdiction on it. In other words, if a Court does not have jurisdiction it cannot enable itself to gain it. In the case before us, the Court can entertain the prayer for infringement of trademark and copyright, and segregating the relief of passing off does not have consequence of gaining jurisdiction where initially there was none. This is also the gravamen of the decision in Globe Super Parts. We have already referred to the decision of the Division Bench in Dabur India. In the penultimate paragraph the Court has observed that so far the relief relating to the infringement of copyright is concerned, the trial Court which will have territorial jurisdiction. Hence, it had found that the learned Single Judge was correct in returning the plaint since both reliefs could not have been tried in Delhi. In other words, in the absence of a prayer to fragment and separate the two reliefs, if the plaint had not been returned, the Plaintiff would have had to perforce prosecute two suits without electing to do so.
10. The matter stands concluded by the decision of the Division Bench of this Court in State Bank of India v. Sanjeev Malik reported in AIR 1996 Delhi 284. The Division Bench held that where a plaint is filed in a Court not having jurisdiction to try all the different causes of action, but the Court isof the opinion that it can deal with only one or some of the causes of action set out in the plaint, then it ought to retain the lis and strike off from the plaint that part which it holds is beyond its jurisdiction. The result would be that the plaintiff could file another suit in the proper court pertaining to the cause of action not entertained by that Court. It has categorically been stated that the entire plaint cannot be returned if the Court has jurisdiction in regard to a part thereof. We are in respectful agreement with this enunciation of the law. It will also be relevant to note that this very view has been preferred by the Division Bench of Calcutta High Court in Sheela Adhikari v. Rabindra Nath Adhikari reported in AIR 1988 Cal 273, as had happened in Dabur India's case. In the Adhikari's case it was in terms noted that if an amendment was not brought then the Court would have been left with no option but to reject the plaint.
11. Our attention has also been brought, by learned counsel for the Respondent, to bear on the decision in Dhodha House v. S.K Maingi., reported in 2006 (32) PTC 1 : (AIR 2006 SC 730). In the said case the plaint for a composite suit for infringement of trademark and copyright and passing off had come up for consideration. The ratio of the case is that if one relief is maintainable in a particular Court, other reliefs which could not have been entertained could not in that guise be tried by that Court which was not competent to do so. Learned counsel for the Plaintiff/Appellant states that it is in deference to the observation made by the Hon'ble Supreme Court that in this case an application for amendment was filed and that the Plaintiff had resolved to agitate the relief of passing off in a Court of competent jurisdiction and restrict the plaint in this Court only to the relief of infringement.
12. In these circumstances, the Appeal is allowed. The impugned Order is set aside to the extent that it rejects the plaint vis. a vis the relief of infringement. The amendment Application, being I. A. No. 11887/2006, was pending. We direct the learned Single Judge to decide this Application. Thereafter, consequent reliefs/orders shall follow.
13. Parties to bear their respective costs.
Appeal allowed.