M/S OBSURGE BIOTECH LTD v. M/S GOODMAN GILMANS LIFE SCIENCES PVT LTD & ANR.

1. By way of this order I propose to decide Review Application NO. 36/2015 under Order XLVII Rule 1 read with Section 151 CPC filed by the plaintiff seeking for review of judgment dated 4th December, 2014 whereby relief of rendition of account was declined.

2. The plaintiff filed a suit for permanent and mandatory injunction and damages for infringement of trademark, passing off, delivery up and rendition of accounts etc. against the defendants.

3. Vide judgment dated 4th December, 2014 the suit of the plaintiff was decreed in terms of prayer clause (A) to (C). However, the other relief of rendition of accounts/ damages was declined by this Court on the ground of absence of evidence. 2015:DHC:1225 CS(OS) No.2535/2012

4. In the present Review application following prayers have been made by the plaintiff:

(i) That vide order dated 7th November, 2013, the Joint Registrar closed the right of the defendants to file written statement and further directed the plaintiff to file original documents within 4 weeks. Thereafter, the case was listed on 18th July, 2014, when the Joint Registrar was on leave and the matter was renotified on 24th November, 2014. Joint Registrar listed the case before the Court for 4th December, 2014. Therefore, form the perusal of the above orders it is clear that the plaintiff was never directed to file evidence.

(ii) That on 4th December, 2014 this Court after hearing the arguments, decreed the suit in terms of prayer (A) to (C) but rest of the prayer was declined in the absence of evidence. However, the plaintiff was never directed to file ex-parte evidence and had the plaintiff given the chance to lead exparte evidence, the plaintiff would have proved the damages since the relevant documents are on record.

(iii) That serious prejudice would be caused to the plaintiff if the plaintiff is not allowed to lead evidence to prove prayer (D) and (E) in the suit. Since the decree has been passed by this Court while exercising its discretion under the provision of Order 8 Rule 10 CPC therefore I am not inclined to review the judgment dated 4th December, 2014 as prayed in the review application. The same is dismissed.

JUDGE FEBRUARY 06, 2015