Jindal Stainless (Hisar) Ltd. v. Suncity Sheets Private Limited and Anr.

12. The application also highlights the goodwill that the word mark ―JINDAL‖, as employed by JIPL, has accumulated over a period of time. It is claimed that, by dint of continuous usage, the word mark ―JINDAL‖ has acquired secondary meaning and is identified and recognized with the products manufactured by JIPL.

13. The defendants‘ mark is alleged, in the present application, to be infringing JIPL‘s registrered ―JINDAL‖ word mark. By using the impugned mark, the defendants are also alleged to be passing off their goods as those of JIPL.

14. Having so asserted, the application, in paras 23 to 26, seeks to justify the prayer for permission to implead JIPL as Plaintiff 2, thus: ―23. That in the instant suit, the Defendants have contended that it has been wrongly alleged that there is infringement of mark "JINDAL" by the Defendants. The Defendants in support of their foregoing contention have stated that there is neither a subsisting registered word trademark "JINDAL" nor is there any application for registration of the word trademark "JINDAL".

24. That infringement of trademark "JINDAL" is in issue in the present suit and the Applicant herein is the registered proprietor of the registered word trademark "JINDAL". The right to relief vis-avis the Applicant also arises by the same act of Defendants i.e. infringement of the registered word trademark "JINDAL" by way of usage of mark by the Defendants herein. Further, the right to relief in respect of the same act of the Defendants exists in the Applicant and the Plaintiff herein. The Applicant and the Plaintiff companies being part of the same O.P. Jindal Group and promoted by common promoters have common interests in protection of the trademark rights in the mark "JINDAL". The issue of word trademark "JINDAL" is also involved in the present suit of which the Applicant is the registered proprietor. The Applicant owing to its registered word trademark "JINDAL" is interested in the causes of action and reliefs sought in the present suit by the Plaintiff. The materials sought to be brought on record by way of the present application are also relevant and necessary to adjudicate the issues involved in the present suit.

25. That the instant application has been moved bonafide and in the interest of justice. No prejudice shall be caused to the Defendants in case the Applicant is impleaded as a plaintiff no. 2 in the instant suit. Further, trial has not commenced in the present suit.

26. That in case the Applicant is not impleaded as plaintiff NO. 2 in the present suit, it shall suffer irreparable loss which otherwise cannot be compensated in terms of money. The Applicant states that it is a necessary party to the present suit since the issue of Applicant's registered word trademark is involved in the present suit.‖

15. The defendants oppose the request. Rival submissions Submissions of Mr. Rajshekhar Rao on behalf of the applicant

16. In order to justify the prayer for permission to implead JIPL as Plaintiff 2 in the present suit, Mr. Rajshekhar Rao, learned Senior Counsel, submits that JIPL and the plaintiff are sister concerns, inasmuch as promoters of the plaintiff own 50% of the shareholding in JIPL. Mr. Rao invokes Order I Rule 12 and Order I Rule 10(2)3 of the CPC, in order to justify his prayer for permission to implead JIPL as Plaintiff 2. He submits that the plaintiff and JIPL are companies of the same O P Jindal group and share a commonality of cause of action vis-à-vis the defendants. Both, he points out, are aggrieved by the use, by the defendants, of the impugned mark and the use of the word ―JINDAL‖ therein. The impugned marks, submits Mr. Rao, infringe the device marks of the plaintiff, as asserted in the suit as originally filed, as well as the ―JINDAL‖ wordmark of JIPL. He places reliance, in this context, on para 6 of the judgment of the High Court of Bombay in Paikanna Vithoba Mamidwar v. Laxminarayan Sukhdeo Dalya[4].

17. Predicated on the said decision, Mr. Rao submits that, as the existing plaintiff and JIPL belong to the same group and are aggrieved by the same infringing act of the defendants, they ought to be permitted to join in one suit. In this context, Mr. Rao has also sought to emphasise what he perceives to be extreme mala fides on the part of the defendants. He submits that though, in the written statement, the

1. Who may be joined as plaintiffs. – All persons may be joined in one suit as plaintiffs where – (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and (b) if such persons brought separate suits, any common question of law or fact would arise. (2) Court may strike out or add parties. – The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 1978 SCC OnLine Bom 76 defendants have sought to contend that the transactions between them are at arm‘s length, the phone number of Defendant 2 was the number of the Marketing Manager of Defendant 1. In such circumstances, Mr. Rao submits, relying on a decision of a learned Single Judge of High Court of Assam in Sitaram Agarwalla v. Rajendra Chandra Pal[5], that Plaintiff 1 and JIPL could not be denied the right to sue together.

18. Mr. Rao additionally submits that the very intent of engrafting Order I in the CPC was to prevent multiplicity of litigation and that, where it lay in the power of the court to do so, the court was required to exercise the said power. In this context, Mr Rao placed reliance on the judgement of the Full Bench of this Court in Carlsberg Breweries v. Som Distilleries & Breweries Ltd[6] and of the High Court of Rajasthan in Hariram Fatandas v Kanhaiya Lal[7].

19. Mr Rao emphasizes the fact that the O P Jindal group of Companies was operating through various corporate entities and that, therefore, the plaintiff and JIPL are not rank strangers. They are, in fact, he submits, sister concerns sharing a common grievance against the defendants. The fact that the plaintiff does not have any registration for the word mark ―JINDAL‖, submits Mr Rao, is of no real consequence, as ―JINDAL‖ forms the dominant part of the device marks which are registered in the plaintiff‘s favour.

20. Mr Rao also seeks to stress on the perceived equities of the situation, as he submits that the defendants are in collusion which, he submits, affects the plaintiff and JIPL equally. He has also referred to 1955 SCC Online Gau 58 AIR 2019 Del 23 (FB) certain invoices in this regard.

21. The right of JIPL to have filed its own independent suit against the defendants, asserting its rights in respect of its registered ―JINDAL‖ word mark vis-à-vis the impugned marks of the defendants cannot be gainsaid; ergo, submits Mr Rao, allowing the present application would not result in creation of any right in JIPL that did not otherwise vest in it – on the other hand, it would avoid multiplicity of litigation. Mr Rao has again, in this context, referred to Rules 1, 28, and 10 of Order I of the CPC. If the present application is not allowed, submits Mr Rao, the O P Jindal group would be unable to protect its registered trade marks against infringement.

22. Mr Rao disputes the contention of the defendant, in the response filed to the present application, that JIPL is seeking, by this application, to introduce an entirely new cause of action. He has, in this context, referred to para 50 of the plaint, which reads thus: ―50. That it is humbly stated the act of using the Plaintiff‘s trademark JINDAL either on a standalone basis or with any prefix or suffix by the Defendants clearly amounts to passing off of the Defendants‘ products as that of the Plaintiff. It is further stated that the Defendants‘ unauthorized use of the mark JINDAL also clearly amounts to infringement of the Plaintiff‘s abovementioned registered trademarks containing/comprising the mark well-known trademark JINDAL.‖

23. Mr Rao, therefore, prays that the present application be allowed AIR 1975 Raj 23

2. Power of Court to order separate trials. – Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient.

9. Misjoinder and non-joinder. – No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it: Provided that nothing in this rule shall apply to non-joinder of a necessary party. and that JIPL be permitted to implead itself as Plaintiff 2 in the suit. Submissions of Mr J. Sai Deepak

24. Mr Sai Deepak, arguing for the defendants, submits that the interpretation placed by Mr Rao on Order I Rule 1 and Rule 10 and Order II Rule 3 is flawed. He submits that Order I Rules 1 and 10 and Order II Rule 3 deal with different circumstances, and that neither one subsumes the other. Mr Rao, he submits, has overlooked the words ―any right to relief‖ in Order I Rule 1, which indicates that, while applying the Rule, the identity of the person who is entitled to relief is also a relevant consideration. If one act of a defendant, therefore, gives a right to two persons to claim relief, they cannot join in one proceeding, if the property against which the wrong is done, and in respect of which relief is claimed, is different. The right being asserted, and the property in respect of which the right is being asserted are both, therefore, relevant considerations. Additionally, the relief sought by all plaintiffs must be the same. Persons who seek individual and different reliefs cannot join in one plaint as plaintiffs, even if they allege the same tort having been committed by the same tortfeasor.

25. The words ―any right to relief‖ in Order I Rule 1(a), submits Mr Sai Deepak, are conditioned by the words ―whether jointly, severally or in the alternative‖. In the present case, he submits that there is no commonality whatsoever in the relief sought by the present plaintiff and JIPL. Order I Rule 1(b), too, he submits, would not apply, as the words ―common question‖ cannot be read as synonymous with ―similar question‖. It is only persons who are aggrieved by the infringement of the same mark who, he submits, can join as plaintiffs. The marks asserted by the plaintiff and JIPL being different, Mr Sai Deepak submits that they cannot join as plaintiffs in one suit.

26. The interconnection between the plaintiff and JIPL as commercial entities, or the shareholdings of one in the other, submits Mr Sai Deepak, is irrelevant. The ―single economic entity‖ principle cannot be invoked in respect of intellectual property rights unless the rights are licensed, for example, by one plaintiff to the other.

27. Mr Sai Deepak submits that where commonality of interest can constitute a ground for plaintiffs to join in one suit, the CPC says so, as in the case of Order I Rule 8(1)10. There is, he submits, a difference between ―commonality of rights‖ and ―commonality of interest‖. Order I Rule 10 empowers the Court to join, as parties in a suit, all such persons ―whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit‖. The presence of JIPL, submits Mr Sai Deepak, is not necessary for the Court to adjudicate the questions involved in the present suit, instituted by the plaintiff. In effect, he reiterates, the application seeks to add a plaintiff merely to introduce a new cause of action, which Order I does not permit.

28. Order II Rule 3 has, in Mr Sai Deepak‘s submission, no

8. One person may sue or defend on behalf of all in same interest. – (1) Where there are numerous persons having the same interest in one suit,— (a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; (b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. applicability to the present case at all, as it permits joinder of causes of action where one plaintiff seeks to unite, in one suit, several causes of action against the same defendant. The causes of action so joined, he submits, must arise out of the same act or series of acts. If the same act or transaction, or series of acts or transactions, result in one plaintiff having more than one cause of action against the same defendant, the plaintiff can unite the causes of action in one suit. Order II Rule 3, therefore, pertains only to joinder of more of than cause of action in one suit; nor to joinder of more than one party in one suit. While the plaintiff also permits more than one plaintiff to join causes of action, in one suit, against the same defendant, the plaintiffs who seek to do so must be jointly interested in the common causes of action. No such joint interest exists, in the present case, submits Mr Sai Deepak, between the plaintiff and JIPL.

29. Though Mr Rajshekhar Rao did not seek to independently rely on Section 151 of the CPC, Mr Sai Deepak submits that the provision can have no applicability, as there exist specific provisions in the CPC dealing with joinder of parties, as well as joinder of causes of action, in one suit.

30. The decision of the Full Bench of this Court in Carlsberg Breweries[6], submits Mr Sai Deepak, is totally irrelevant, as the reference to the Full Bench of five Hon‘ble Judges itself arose out of a judgement rendered by a Full Bench of three Hon‘ble Judges in Mohan Lal v. Sona Paint11, in which the issue in controversy was the invocability of Order II Rule 3 of the CPC where the parties were the 2013 (55) PTC 71 (Del) (FB) same.

31. Reiterating the contention that Order I Rule 1 applies only where the plaintiffs who seek to join in the same suit seek, jointly or severally, the same relief, Mr Sai Deepak cites Corporation of Calcutta v. Radhakrishna Deb12, Lobsang Khampa v Sunam Ram13, Subhash Arora v Kishan Sharma14, Kasturi v. Ayyamperumal15 and South Asia Human Rights Documentation Trust v. Suhas Chakma16. Analysis

32. The issue in controversy is, in my opinion, easily answered by a mere reference to Order I Rules 1 and 10 and Order II Rule 3 of the CPC. Order I Rule 1(a)

33. Order I Rule 1(a) applies where any right to relief exists in the persons seeking to be joined as plaintiffs in one suit, arising out of the same act or transaction or series of acts or transactions, jointly, severally or in the alternative.

34. Mr Sai Deepak sought to contend that there must be commonality of relief for Order I Rule 1 to apply. I cannot agree. The 1950 ILR Cal 108 AIR 1977 HP 23

ILR (2010) 3 Del 11: (2010) 42 PTC 323 (Del) provision does not say so. All it says is that all plaintiffs must be alleged to have a right to relief. However, what it does go on to say is that the right to relief, whether existing jointly, severally or in the alternative, must arise out of the same act or transaction or series of acts or transactions.

35. Quite clearly, the plaintiff and JIPL, between themselves, do not satisfy this criterion. The ―act or transaction‖ cannot be merely read as the act of infringement. Infringement does not occur in vacuo. It requires an infringer and – if one may be so bold as to coin a word – an infringee. One must infringe; the other must be infringed. Equally, there must be an infringing mark and an infringed mark. Unless the infringing mark and the infringed mark are both the same, the act or transaction cannot be treated as one.

36. Infringement is a tort committed by the infringing mark on the mark infringed. The ―act‖ or ―transaction‖, therefore, involves two dramatis personae; the infringer, i.e., the proprietor of the infringing mark, and the person whose mark is infringed. For the act to be the same, the actors must also be the same. For the transaction to be one, the persons who are parties to the transaction must also be common.

37. ―Transaction‖ is the noun of the verb ―transact‖. ―Transact‖ is defined, in P. Ramanatha Aiyar‘s Advanced Law Lexicon, as ―to carry on business; to settle a dispute by a transaction; to carry to completion, to carry on the operation or management‖. ―Transaction‖ is defined as ―internal or external event that affects the finances or operations of a business, resulting in an accounting entry‖; alternatively, as ―an act of carrying out a business deal‖. Even while stressing the amplitude of the expression ―transaction‖, the Supreme Court, in Association of Unified Tele Services Providers v U.O.I.17, held, in the context or Section 13(b) of the Comptroller & Auditor General‘s (Duties Powers and Conditions of Service) Act, 1971, thus: ―The expression ‗transaction‘ occurring in Section 13(b) means an incident of buying and selling or action of conducting business, it also means an exchange or interaction between people, the ‗transaction‘ is, therefore, an expression of widest amplitude and would cover even the lease agreement entered into by the Union with the service provider.‖

38. Infringement and passing off are torts; the former arising from statute, the latter from common law. Howsoever widely one may construe the expression, they are not ―transactions‖ though, in a given case, they may arise from a single transaction. They are the legal consequence of a mark being registered, or used, when another mark, allegedly confusingly or deceptively similar, is already in existence.

39. Though infringement cannot, therefore, etymologically or legally, be termed a ―transaction‖, it is, nonetheless, an ―act‖. One refers to the ―act of infringement‖. As an act, infringement involves, as already noted, two actors; the infringer and the ―infringee‖. Unless the actors are common, the acts cannot be the same. More particularly, the infringing mark, and the allegedly infringed mark, must be the same.

40. Infringement requires the existence of a registered mark. Neither is the plaintiff the registered proprietor of any of the marks of JIPL, nor is JIPL the registered proprietor of any of the marks of the plaintiff. The acts of infringement, of which the plaintiff and JIPL complain, allegedly committed by the defendants, are not, therefore, the same.

41. That the defendants, and the allegedly infringing marks, may be common, is totally insufficient to allow joinder of plaintiffs under Order I Rule 1(a). One mark may be alleged to infringe a hundred others. The allegedly infringed marks may contain different suffixes or prefixes, or may incorporate the infringing mark with other distinct embellishments. All such persons cannot be permitted to join as plaintiffs in one suit, as the acts of infringement, of which they complain, are different.

42. To wit, the plaintiff alleges that the defendant‘s mark infringes the plaintiff‘s registered,, and trade marks. JIPL, on the other hand, alleges that the defendant‘s mark infringes its registered JINDAL word mark. The plaintiff holds no registration in the word mark ―JINDAL‖, and JIPL holds no registration in,, and. The acts of alleged infringement, by the defendant‘s mark, of the plaintiff‘s,, and marks is, therefore, clearly distinct, and different, from the act of alleged infringement, by by the defendant‘s mark, of JIPL‘s ―JINDAL‖ word mark. The acts being different, Order I Rule 1(a) cannot be invoked by JIPL to join as a plaintiff in the present suit. Order I Rule 1(b)

43. Mr Rao also invokes Order I Rule 1(b). Clauses (a) and (b) of Order I Rule 1 are separated by the conjunction ―and‖. They are, therefore, required to be cumulatively satisfied for Order I Rule 1 to apply. Ergo, once it is held that Order I Rule 1(a) is not satisfied, the applicability of Order I Rule 1 itself stands, ipso facto, ruled out. This position, indeed, stands recognized in the following words, to be found in para 8 of the report in Paikanna Vithoba Mamidwar v. Laxminarayan Sukhdeo Dalya18, on which Mr Rajshekhar Rao himself relies: ―Now, therefore, it will be clear upon a plain reading of Order 1, rule 1, Civil Procedure Code that persons having a right to relief, whether jointly or severally and even alternatively can bring a single suit, provided the circumstances giving rise to that relief arises out of the same act or transaction or series of acts or transactions and provided further that in doing so any common question either of law or of fact was involved.‖ (Emphasis supplied)

44. Nonetheless, even if one were to independently examine Order I Rule 1(b), the present case cannot be said to justify its invocation. Order I Rule 1(b) requires the arising of ―any common question of law or fact‖ as a condition for the provision to justify joinder of different plaintiffs in one suit.

45. The grievance of the plaintiff, as well as of JIPL, is that the defendant‘s mark infringes their respective registered trade marks. Infringement is a mixed question of fact and law, as it AIR 1979 Bom 298: 1978 SCC OnLine Bom 76 involves application of Section 29(1) to (5)19 of the Trade Marks Act to the facts of each case. Mr Sai Deepak is perfectly correct in his submission that the question to be posed, in every case where infringement is pleaded, is not whether the defendant‘s mark infringes per se, but whether the defendant‘s mark infringes the plaintiff‘s registered mark. Sans a registered mark of the plaintiff, there can be no infringement. Where, therefore, the alleged infringed registered mark of two parties are different, they cannot join as common plaintiffs in a suit.

46. Apropos the present case, the question – mixed of fact and law – that arises between the defendants and the plaintiff is whether the defendant‘s mark infringes the plaintiff‘s,, and marks, whereas the question that

29. Infringement of registered trade marks. – (1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. (2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of— (a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or (b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or

(c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark. (3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to cause confusion on the part of the public. (4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which— (a) is identical with or similar to the registered trade mark; and (b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and

(c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark. (5) A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered. arises between the defendants and JIPL is whether the defendant‘s mark infringes JIPL‘s ‗JINDAL‘ word mark. Neither does the plaintiff own any registration in the ‗JINDAL‘ word mark, nor does JIPL own any registration in the marks that the plaintiff asserts in the present suit. The Court would, in each case, have, therefore, to examine the aspect of infringement independently.

47. The fact that the plaintiff is also claiming infringement, by the defendant‘s mark, because of the use of ‗JINDAL‘ therein, makes no difference. That merely constitutes the basis for claiming infringement and is, at best, one of the grounds that the plaintiff could urge. The allegedly infringed marks of the plaintiff are, plainly, different from the allegedly infringed marks of JIPL. That has to end the matter, insofar as the issue of whether ―common questions of fact or law‖ arise if the plaintiff and JIPL were to file separate suits. In each case, the allegation of infringement would be qua the defendant‘s mark, but the buck would stop there. It cannot, merely on that ground, be said that ―common questions of fact or law‖ would arise, therefore, if the plaintiff and JIPL were to be file independent suits. Where the allegedly infringed marks are different, quite obviously, the questions of fact and law which arise would also be different.

48. The consequence, in the alternative, would be completely unacceptable in law. Every proprietor, who alleges that his registered mark was infringed by the defendant‘s mark, could join in one suit. That cannot, quite obviously, be permitted. The Court cannot interpret Order I Rule 1(b) in such a manner which would result in absurd consequences.

49. Of course, the Court could, undoubtedly, consolidate different suits involving allegations of infringement of different marks. That, however, is a power vested in the Court ex debito justitiae. In that regard, the Supreme Court has, in Prem Lala Nahata v. Chandi Prasad Sikaria20, observed thus: ―19. It is recognised that the court has wide discretionary power to control the conduct of proceedings where there has been a joinder of causes of action or of parties which may embarrass or delay the trial or is otherwise inconvenient. In that situation, the court may exercise the power either by ordering separate trials of the claims in respect of two or more causes of action included in the same action or by confining the action to some of the causes of action and excluding the others or by ordering the plaintiff or plaintiffs to elect which cause of action is to be proceeded with or which plaintiff should proceed and which should not or by making such other order as may be expedient. (See Halsbury's Laws of England, Vol. 37, para 73.) Surely, when the matter rests with the discretion of the court, it could not be postulated that a suit suffering from such a defect is something that is barred by law. After all, it is the convenience of the trial that is relevant and as the Privy Council has observed in the decision noted earlier, the defendant may not even have an absolute right to contend that such a suit should not be proceeded with.‖ We are not, however, concerned, in the present case, with consolidation of suits. The issue is whether JIPL can join as an additional plaintiff in the suit already instituted by the plaintiff against the defendants.

50. It is possibly for this reason that the legislature has, advisedly, separated clauses (a) and (b) of Order I Rule 1 of the CPC with the ―and‖ conjunction, thereby making cumulative fulfilment of both clauses necessary for Order I Rule 1 to apply. In the present case, however, neither clause applies.

51. Before closing this discussion, I may note that Mr Rao‘s contention that JIPL is part of the O P Jindal group is not borne out by any averment in the plaint. Rather, para 8 of the plaint avers that the plaintiff JSHL has the following eight subsidiaries:

(i) JSL Lifestyle Ltd,

(ii) Jindal Stainless Steelway Ltd,

(iii) Green Delhi BQS Ltd,

(iv) JSL Media Ltd,

(v) JSL Logistics Ltd,

(vi) Jindal Strategic Systems Ltd,

(vii) Jindal Lifestyle Ltd and

(viii) J S S Steelitalia Ltd, and the following two associates:

(i) Jindal Stainless Ltd and

(ii) Jindal Stainless Corporate Management Services Pvt Ltd.

Having said that, even if it were to be assumed that the plaintiff and JIPL were ―sister‖ concerns or part of one corporate group, that by itself would not justify JIPL joining as a plaintiff in the suit instituted by the plaintiff, which is undisputedly a distinct corporate entity, independently incorporated. There is no provision in the CPC, cited by Mr Rao, which envisages different corporate entities being, for that sole reason, entitled to institute a common suit, even if the ingredients of Order I Rule 1 or Order II Rule 3 are not satisfied.

52. The present application cannot, therefore, be justified on the anvil of Order I Rule 1 of the CPC. Re.Order II Rule 3

53. As Mr. Sai Deepak correctly points out, Order I Rule 1 and Order II Rule 3 of the CPC cater to exigencies which are the reverse of one another. Order I Rule 1 envisages more than one plaintiff joining in a single suit, against a common defendant. Order II Rule 3, on the other hand, envisages a single plaintiff joining, in a suit against a single defendant or common defendants, more than one causes of action.

54. Order II Rule 3(1) starts with the words ―save as otherwise provided‖. The provision is, therefore, subject to other provisions in the CPC, which would include Order I Rule 1. If, therefore, two or more plaintiffs are not entitled to join in one suit under Order I Rule 1, they cannot seek the benefit of Order II Rule 3 of the CPC, either. Even on this ground, therefore, the plaintiff in GIPL cannot seek to maintain a joint suit under Order II Rule 3.

55. Eschewing from consideration, for the time being, the opening words of Order II Rule 3(1), the provision, as it follows, may be divided into two parts.

56. The first part of Order II Rule 3 empowers a plaintiff to unite, in one suit, several causes of action against the same defendant/defendants. More than one plaintiff cannot, therefore, jointly seek the benefit of this part of Order II Rule 3.

57. The second part of Order II Rule 3 allows more than one plaintiff, who are jointly interested in the same causes of action, against the same defendant/defendants, to unite all such causes of action in one suit. The ingredients of this part of Order II Rule 3(1) may be identified thus:

(i) The plaintiffs must be jointly interested in the causes of action which they seek to unite in the suit.

(ii) The causes of action must be against the same defendant or defendants.

58. The expression ―cause of action‖ has been defined by the Supreme Court in, inter alia, Hindustan Petroleum Corporation Ltd. v. Ajay Bhatia21, Naval Kishore Sharma v. U.O.I.22 and Swaati Nirkhi v. State23 as the bundle of facts which a plaintiff must prove in order to be entitled to obtain a decree in his favour. Let us apply this principle to the present case.

59. In order to entitle itself to a decree, the plaintiff JSHL must establish that

(i) the marks,, and which it seeks to assert are registered in its favour and

(ii) the impugned mark of the defendant infringes the said,, and marks of the plaintiff within the meaning of Section 29 of the Trademarks Act. As against this, the facts which JIPL would have to establish, in order to entitle itself to a decree, are that

(i) the word marks ―JINDAL‖ and ―JINDAL COR‖ and

(ii) the defendant‘s mark infringes the said ―JINDAL‖, ―JINDAL COR‖ and ―JINDAL ACL PROTECTION‖ word marks, or the and device marks.

60. Infringement of the plaintiff‘s,, and marks is, quite obviously, altogether different from infringement of JIPS‘s ―JINDAL‖ and ―JINDAL COR‖ and ―JINDAL ACL PROTECTION‖ word marks and the and device marks. The bundle of facts which have to be proved by the plaintiff and by JIPL, in order to entitle themselves to decrees in their favour are also, therefore, distinct and different, the only common factor being the allegation of infringement, vis-à-vis the common mark of the defendant. As such, the cause of action of the plaintiff, which is the alleged infringement of its,, and marks by the defendant‘s mark is distinct from the cause of action of JIPL, which is infringement of the ―JINDAL‖, ―JINDAL COR‖ and ―JINDAL ACL PROTECTION‖ word marks and the and device marks by the defendant‘s mark.

61. It cannot, therefore, be said that the plaintiff and JIPL are jointly interested in any cause of action. Their respective causes of action and, consequently, their interest therein, are distinct and different. They cannot, therefore, seek to unite such causes of action in one suit even under Order II Rule 3(1) or, equally, to join as plaintiffs agitating such causes of action against the common defendant in one suit.

62. Order II Rule 3 of the CPC can also, therefore, not come to the rescue of Mr. Rajshekhar Rao. Re.Order I Rule 10

63. Order I Rule 10(2) of the CPC, which, in fact, is the provision which empowers a court to join parties as plaintiffs or defendants is, even on a plain reading, inapplicable to the present case. A Court is empowered, under Order I Rule 10(2) to join, whether as plaintiff or defendant, any party whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit. The suit, in this case, is CS (Comm) 604/2021, instituted by the plaintiff against the defendants. The question involved in the suit is whether the defendant‘s mark infringes the plaintiff‘s,, and marks or, whether, by using the said mark, the defendants are passing off their goods as goods of the plaintiff. It is obvious that, to decide the said question, JIPL is not a necessary party. JIPL has no interest in any of the marks registered in favour of the plaintiff. The plaintiff and the defendants are represented. The Court has to examine the aspect of infringement and passing off on the anvil of Section 29 of the Trademarks Act and applying the well settled principles in that regard. JIPL is a stranger to that controversy.

64. JIPL is not, therefore, either a necessary or a proper party, whose impleadment is required for the Court to properly and effectively adjudicate on the issues in controversy in the present suit. No case for impleadment of JIPL as an additional plaintiff can be said to be made out, therefore, even under Order I Rule 10 of the CPC. Avoiding multiplicity

65. One of the submissions advanced by Mr Rao is that, if JIPL‘s application is allowed, it would avoid multiplicity of proceedings.

66. Avoiding of multiplicity of proceedings is, indeed, a laudable objective. That said, civil courts adjudicating civil suits are bound by the protocol of the CPC. They cannot transgress the boundaries of the provisions of the CPC, merely to avoid ―multiplicity of proceedings‖. Else, chaos would result. Courts could start allowing distinct, different and disparate causes to be joined, merely to avoid multiplicity of proceedings, oblivious of the CPC and its discipline. That, clearly, is not permissible.

67. Rejecting an application under Order I Rule 10(2) to implead a party and, in the process, the submission that doing so would avoid multiplicity of proceedings, the Supreme Court, in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay24, held thus: ―14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.‖

68. Where, therefore, the plea of JIPL, to be impleaded as Plaintiff 2, cannot be allowed under any of the provisions that govern the issue, the Court cannot accept the prayer, even for the purpose of avoiding ―multiplicity of proceedings‖. Collusion between defendants

69. Mr Rao also sought to contend that the defendants are in collusion.

70. To my mind, however, any allegation of collusion between the defendants, besides being a contested issue of fact which would have to be determined consequent on trial, is completely foreign to the entitlement of JIPL to be impleaded as an additional plaintiff in the present suit. That entitlement has to be decided solely on the basis of the provisions of Order I, read with the law that applies in that regard. Authorities cited

71. Paikanna Vithoba Mamidwar was a case in which two adjacent plots No. 76 and 77, which earlier belonged to a Hindu Undivided Family, devolved, on partition, on two plaintiffs, who were father and son. Plot No. 78, of the defendants, was to the south of Plots 76 and 77. The defendants dug five pits on their plots. The plaintiffs alleged that the defendants had, thereby, encroached upon Plot 77. The crucial sentence in this judgement is to be found in para 3, which notes: ―In plot no. 77 apparently both the plaintiffs 1 and 2 were interested.‖ Plaintiff 1 owned Plot 76 and Plaintiff 2 owned Plot

77. As is noted in para 3 of the report, ―the building standing on plot no. 77 also extends over plot no. 76 and this building is jointly owned.‖ Para 6 of the report is revealing: ―6. The plaint map will go to show that the encroachment is only on plot No. 77. Plot No. 76 is to the east of plot No. 78 and the alleged construction by the defendants is only along the line east-west and to the south of plot No. 77. It is plot No. 77 which subsequently on account of partition between plaintiffs 1 and 2 came to be divided into two, the western portion to the west of line M.R. having gone to plaintiff No. 1 and the eastern portion to the line M.R. having gone to plaintiff No. 2.‖ Paras 8 to 10 of the report have to be understood in the above context: ―8. Now, therefore, it will be clear upon a plain reading of Order 1, rule 1, Civil Procedure Code that persons having a right to relief, whether jointly or severally and even alternatively can bring a single suit, provided the circumstances giving rise to that relief arises out of the same act or transaction or series of acts or transactions and provided further that in doing so any common question either of law or of fact was involved. Now in the present case there can be no dispute that though plaintiffs 1 and 2 were not jointly interested in removal of the encroachment on their respective portions which came to them on partition from out of plot No. 77, they were severally interested. Merely because they were severally interested, Order 1, rule 1, Civil Procedure Code would not disentitle to them to bring a common suit provided the other conditions were satisfied. It cannot also be disputed tint it is the same act or series of acts or transactions of the defendants which have given rise to this right to relief based upon the independent rights of plaintiffs 1 and 2. That right to relief is the removal of encroachment occasioned on account of digging of pits and effecting a construction by the defendants to the south of their properties. The third condition, therefore, which has to be satisfied is that if the two plaintiffs had brought separate suits, the suits would have given rise to a common question of law or of fact.

9. Now there can be no dispute and no objection if the two plaintiffs could have brought two separate suits. In this particular case since there can be no dispute that the right to relief in the two plaintiffs arose as a result of the same act or series of acts, they could have also combined them in one suit provided any common question of law or fact arose.

10. The essential question which has, therefore, to be decided in the present revision application is whether a common question either of law or of fact would have arisen if two separate suits had been brought. If the answer to that question is in the affirmative, then it would follow that a single suit could He. Now there is no question here of a common question of law arising. The only question of fact which arises in a suit for removal of encroachment is what are the boundaries of the respective properties and what is the extent of the encroachment. Now the question as to what is the extent of the encroachment, and whether it is on two separate portions, may be a different question of fact, but as to what are the boundaries of the plots if they are portions of the same plot, would undoubtedly be a common question of fact. In other words, if in the present case, the allegation is that the defendants have by their act encroached upon portions of plot No. 77 which the plaintiffs own, then the question which would have been required to be decided, and which is required to be decided, is what is the boundary of plot No. 77 on the southern side. That would determine the extent of encroachment of the different portions. Therefore, though the right to remove the extent of the encroachment and possession of the encroached portion in the different plaintiffs is different, the question which has to be basically and first answered is what is the south boundary of plot No. 77 and that undoubtedly is a common question of fact. If that is so, then, in my opinion, it follows that two suits if brought separately would have raised a common question of fact and, therefore, under Order 1, rule 1, Civil Procedure Code could have been continued in one suit.

72. Paikanna Vithoba Mamidwar was, therefore, a case in which the encroachment by the defendants was on a single plot, i.e. Plot 77, in which both the plaintiffs were interested. In the present case, the intellectual property rights, which the plaintiff and JIPL allege to have been infringed, are of different marks. Moreover, the act of construction of the pits was a single act which, by itself, comprised the entirety of the alleged tort committed by the defendants. In the present case, the tort of infringement does not stand committed, in its, entirety, merely by the existence of the allegedly infringing marks of the defendants. The acts of infringement of the,, and marks of the plaintiff, and of the ―JINDAL‖, ―JINDAL COR‖ and ―JINDAL ACL PROTECTION‖ word marks, or the and device marks of JIPL, by the defendants‘ marks, are distinct and different.

73. Paikanna Vithoba Mamidwar cannot, therefore, support Mr Rao. Rather, the emphasis, by the High Court in that case, on the joint interest, of both the plaintiffs, in Plot 77, which was encroached by the defendants, itself indicates that, where the interest of the plaintiffs in the corpus forming subject matter of the tort is different, or, rather, the corpus itself is different – as in the present case – the plaintiffs cannot join in one suit.

74. Apropos Carlsberg Breweries, the issue which stood referred to the Full Bench of five Hon‘ble Judges, as delineated in the opening paragraph of the judgement, itself indicates why it would not apply to the present case: ―The reference to this larger, Special Bench of five judges, was occasioned by the detailed speaking order of a learned Single Judge, in the present suit, which sought the reliefs of infringement of design and a decree for injunction against passing off. The learned Single Judge, by the order dated 02.05.2017, referred the question as on the whether the decision in Mohan Lal v. Sona Paint, 2013 (55) PTC 61 (Del) (FB) - hereafter ―Mohan Lal‖ on the aspect of maintainability of a composite suit in relation to infringement of a registered design and for passing off, where the parties to the proceedings are the same needs re-consideration by a larger bench in the light of Order II Rule 3 CPC, which permits joinder of causes of action.‖ From these opening words in the decision, the following aspects become apparent:

(i) The issue involved infringement and passing off of a single registered design; not of two designs, one of one plaintiff and one of the other.

(ii) The parties to the proceeding were the same.

(iii) The issue was whether, in such circumstances, the allegations of infringement, and passing off, of a single design, registered in the name of a single plaintiff, by the impugned design of a single common defendant, could be combined.

(iv) The issue arose in the context of Order II Rule 3 of the

(v) The issue before the Full Bench was of joinder of defendants, not joinder of plaintiffs – though that difference may not be of significance, since Order I Rule 3 of the CPC, which allows several defendants to be joined in one suit, mirrors Order I Rule 1. Para 43 of the report is, in fact, sufficient to defeat the reliance, on the decision, by Mr Rao: ―43. In regard to both causes of action, suits claims are (1) against the same defendant or set of defendants, and; (2) in respect of the same set of acts and transactions. The only difference is that the relief claimed is different. The question is whether Mohan Lal's understanding on the inconsistency and disparateness as to the relief being fundamental to the frame of the suit, would defeat a composite action, per se.‖ Para 69 of the report answered the question referred thus: ―69. The reference is answered by holding that one composite suit can be filed by a plaintiff against one defendant by joining two causes of action, one of infringement of the registered design of the plaintiff and the second of the defendant passing off its goods as that of the plaintiff on account of the goods of the defendant being fraudulent or obvious imitation i.e identical or deceptively similar, to the goods of the plaintiff.‖

75. There is, clearly, nothing in common between the issue which arose for decision before the Hon‘ble 5-judge Full Bench, and that which arises in the present case. Joinder of causes of action is expressly envisaged by Order II Rule 3 of the CPC. What is required, however, for causes of action to be joined in one suit, is (i) identity of defendants and (ii) identity of plaintiffs, or joint interests of the plaintiff/plaintiffs against the defendant/defendants in the causes of action. Where these factors coalesced, the Full Bench held, unexceptionably, that, predicated in such identical causes of action, reliefs of infringement and passing off could be urged in one suit. As was observed in the opening para of the judgement, the only question was whether different reliefs, predicated on the same cause of action arising between the same plaintiffs and defendants, could be combined in one suit.

76. No such issue arises in the present case. Carlsberg Breweries cannot, therefore, help Mr Rao.

77. Hariram Fatandas dealt with the sale, by one Lal Mohammad, of a plot of land to the four defendants, and the subsequent sale, by Lal Mohammad himself, of the same plot, to the four plaintiffs in the suit from which the proceedings emanated. Lal Mohammad asked the defendants to attorn to the plaintiffs. The plaintiffs instituted a joint suit for eviction of the defendants, pleading bona fide requirement for personal use. The defendants pleaded that the plaintiffs could not have instituted a joint suit. The learned Trial Court held against the defendants. The defendants appealed to the High Court.

78. Apropos Order I Rule 1 of the CPC, the High Court held thus: ―Before any persons may join as plaintiffs, it is thus necessary that a relief in respect of or arising out of the ―same act‖ or ―transaction or series of acts or transaction‖ should be alleged to exist. This requirement has obviously been fulfilled in the present case as the “same act” is that relating to the lease of the premises by Lal Mahammad, to the defendants, on October 1, 1968, on a rent of Rs. 50/- per mensem. The relief which the plaintiffs have claimed, jointly, against the defendants thus arises out of that basic fact, not only in regard to that part of the suit which relates to the recovery of the arrears of rent and damages, but also the other part relating to eviction from the suit premises. One essential requirement of Order I rule 1 C.P.C. has therefore been fulfilled in this case. According to the other requirement of the rule, joinder of plaintiffs would be permissible if it could be shown that ―any common question of law or fact‖ would arise if they brought their suits separately. It is quite obvious in this case that the common questions of fact which would arise on the filing of separate suits would be those relating to the existence of the tenancy granted by Lal Mohammad and the non-payment of rent by the defendants at the rate of Rs. 50/- per mensem. It is therefore clear that both the essential requirements of Order I rule 1 C.P.C. have been fulfilled and there is no reason why the four plaintiffs should not have joined in their suit against the defendants.‖ Thus, on facts, the High Court found that both essential requirements of Order I Rule 1 stood fulfilled. On facts, I have already held that, in the present case, they are not. A Concluding Observation

79. A court which consigns to the background the discipline of the CPC and zealously forays ahead to pass orders which, in its view, do ―substantial justice‖, oftentimes bedevils the very cause that it purports to espouse. The CPC is not meant to be lightly avoided. It is true that, as a document of procedure, its provisions have, at times, to be accorded an elastic interpretation. Infinite elasticity is, however, as unknown to physics as to law. Stretching the law, elastic as it may be, to breaking point, is no part of the duty of a Court functioning within the legitimate perimeters of the authority that the law vests in it. That, however, is precisely what JIPL would, in the present case, exhort this Court to do. Conclusion

80. JIPL cannot, therefore, seek to be impleaded as an additional plaintiff in the present suit.

81. The application is accordingly dismissed.

C. HARI SHANKAR, J.

JANUARY 30, 2023