M/S DARZI ON CALL v. SUNIL MITTAL & ANR.

1. By the present petition under Section 114 and Order XLVII rule 1 read with Section 1511 of The Code of Civil Procedure, 1908[2] appellant seeks review of order dated 12th May, 2023 whereby this Court, while making certain interim arrangements in disposing of its appeal, after considering multifarious factors, has modified the impugned order dated Hereinafter referred to as “review petition” Hereinafter referred to as “CPC” 19th April, 2017 passed by the learned Single Judge to the extent specified in paragraph 15 therein.

2. According to appellant, the said order calls for review as there is an error apparent on the face of the record as this Court has relied upon the misstatement of the learned senior counsel for respondents qua the respondents’ application under Order VI rule 17 of the CPC for bringing the registrations of the word mark “Darzi/ The Darzi”3 in various Classes on record before the learned Single Judge being allowed whereas actually the said application was pertaining to the registrations for the composite logo mark[4] only and also as this Court by virtue of the order under review has granted independent rights to the respondents over the word mark and further as the appellant has never sought any exclusivity over the word “Darzi” but has always asserted its right over the logo mark only. Further replying upon Jain Shikanji Private Limited Vs. Satish Kumar Jain[5] delivered by this very Court, it was contended that this Court could not have taken the fresh/ new registrations into consideration. Lastly, relying upon S. Nagaraj & Ors. vs. State of Karnataka & Anr.[6] and M.M. Thomas vs. State of Hereinafter referred to as “word mark” Hereinafter referred to as “logo mark” 2023/DHC/001486 1993 Supp (4) SCC 595 Kerala & Anr.7, learned counsel for appellant contended that it is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain orders were passed on a wrong or mistaken assumption of facts and that the implementation of those orders would have serious consequences.

3. In response, the learned senior counsel for respondents contended that despite obtaining registrations for the word mark in various Classes, respondents were unable to file any application under Order VI rule 17 of the CPC for bringing them on record before the learned Single Judge due to change of counsel thereby resulting in miscommunication. Further, drawing attention of this Court to paragraph 11 of the order under review, it is contended that this Court was duly apprised of the fresh registrations for the word mark obtained by respondents in Class 38 in 2018 and Class(s) 24 and 35 in 2021, however, it was inadvertently submitted before this Court that the said grants had been amended/ incorporated in the pleadings and reliefs before the learned Single Judge.

4. In rejoinder, the learned counsel for appellant contended that the respondents have neither disclosed anything qua the objection raised by the Trade Mark Registry for the word mark in Class 40 nor amended their pleadings either qua it or qua grant of registrations for the word mark in different Classes before the learned Single Judge. However, the same has no relevance for adjudicating the present review petition.

5. Interestingly, it is factually recorded in paragraph 9 of the order under review that the respondents had obtained registrations for the word mark in various Classes de hors their forming a part of the record before the learned Single Judge. The grant of said registrations in favour of respondents, being a matter of fact, have not been denied by the appellant. Thereafter, based on a pointed query by this Court, it was recorded in paragraph 10 of the order under review about “… …few fresh (additional) documents… …” which included both the logo mark and the word mark and which were, as per respondents, already forming a part of the pleadings in their application under Order VI rule 17 of the CPC before the learned Single Judge. As per learned senior counsel for respondents now, they were only qua fresh registrations of the logo mark in their name in various Classes and not qua the word mark. Irrespective thereto, this Court in paragraph 11 thereof has also recorded about “……few fresh (additional) documents… … …being filed… …” requiring fresh pleadings before the learned Single Judge as they were not yet forming a part thereof. Thus, these were clearly qua fresh registrations for the word mark in the name of respondents in various (three) Classes, for which this Court has left the right qua them open to be agitated before the learned Single Judge.

6. The aforesaid reflects that despite the inadvertent error on the part of the learned senior counsel for respondents, this Court was mindful of there being two sets of documents, first set being qua the logo mark obtained by respondents in various Classes already stood filed alongwith the application under Order VI rule 17 of the CPC before the learned Single Judge as recorded in paragraph 10 thereof whereas the second set being qua the word mark for which though respondents had already obtained registrations in various (three) Classes but were “… …being filed… …” before the learned Single Judge requiring fresh pleadings recorded in paragraph 11 thereof. Thus, there being a clear demarcation between the logo mark and word mark registrations obtained by respondents, this Court was careful in perusing, inspecting, examining and considering them while doing a threadbare analysis to check their relevance and veracity before passing the order under review.

7. This Court, after taking both the above logo mark and word mark registrations into consideration, recorded that “… … the registration of wordmark “The Darzi” obtained by respondents in various classes… …” in paragraph 13 thereof before proceeding to make an interim arrangement for smooth functioning of both parties in paragraph 15 thereof, upon recording that the parties were at loggerheads since long.

8. But admittedly, as there was a misstatement/ inadvertent error by the learned senior counsel for respondents during the course of hearing before passing the order under review to the effect that the registration of the word mark was already forming a part of the record before the learned Single Judge, the order dated 12th May, 2023, though not grave, calls for review, albeit, to a limited extent only as specified hereunder. Reliance is placed upon the proposition of law laid down to that effect in S. Nagaraj (supra) and M.M. Thomas (supra).

9. This Court, in Jain Shikanji (supra) was dealing with fresh/ new documents, which though already in existence were never filed before the learned Single Judge but were filed before the Appellate Court for the first time. Such is not the position here as all the registrations obtained by the appellant herein were/ are fresh/ new/ subsequent in point of time and have a material bearing upon the disputes involved. As per cardinal principle such documents, depending upon the facts and circumstances, can either be looked into or considered or be taken on record. This Court finds no fault in finding those documents material and worthy of looking into at the time of passing the impugned order. In view thereof, reliance upon Jain Shikanji (supra) by the learned counsel for appellant is misplaced.

10. Thus, in view thereof, especially what has been deliberated and discussed in the order under review, this Court in the interest of both parties with a view to serve the ends of justice has no hesitation in rectifying the factual error apparent on the face of the record crept due to the inadvertent submission made by the learned senior counsel for respondents i.e. “It is also clear that since the grant of registration of the new wordmark “The Darzi”, the respondents have amended/ incorporated the pleadings and reliefs qua the same before the learned Single Judge.” in paragraph 12 of the order under review to henceforth read as “It is also clear that since the grant of registration of the new wordmark “The Darzi”, the respondents will be amending/ incorporating the pleadings and reliefs qua the same before the learned Single Judge in accordance with law.”.

11. Barring the above, there is no other requirement for any further review of the order dated 12th May, 2023 and thus rest of the order dated 12th May, 2023 remains the same. In the opinion of this Court, the review of above factual replacement/ correction hereinabove does not, and in fact, could not/ cannot deter this Court from making the interim arrangement in paragraph 15 of the order under review for smooth functioning of both parties, after considering various parameters enumerated therein. Thus, the interim arrangement made therein can continue. It is reiterated that it is an undisputed by the appellant that the respondents have since acquired registration of the word mark in three Classes.

12. It is further made clear that this Court, vide the order under review, had/ has not granted any independent rights to the respondents over the word mark. On the contrary, this Court has left open the question qua bringing on record new facts and pleadings thereto to be agitated before the learned Single Judge in accordance with the law.

13. Additionally, the contention of the appellant that this Court has wrongly held that the parties were agitating rights over the word “Darzi” despite the appellant never asserting its right over the same is itself not a ground for review as it is an established law that grounds of review are not the same as the grounds in an appeal. The present review petition being not an appeal, the appellant cannot urge the grounds of an appeal before this Court under the garb thereof.

14. Irrespective of the above, this Court wishes to reaffirm that the basic parameters to be taken into consideration for review of a decree passed or an order are not the same as those in an appeal as the scope and power of a Court in a review are altogether different from those in an appeal. It is trite law that the power of review is not an inherent right and a judgment or an order, as the case may be, including the present order under review, is to be read conjointly/ collectively as a whole rather than disjointly/ diversly by picking, choosing or splitting it to give a new meaning thereto. As it is the duty of all the litigants to always be cautious in their approach in doing so at all times, similarly, a duty is also always cast upon the Courts to strike and maintain a check and balance to prevent the litigants from doing so.

15. For the afore-going reasons, barring the modification/ review made in paragraph 10 hereinabove, this Court finds no other error apparent on the face of the record to review the order dated 12th May, 2023. Consequently, the present review petition is allowed to the extent above, with no order as to costs, thereby, leaving the parties to bear their respective costs.