Nadeem Majid Oomerbhoy v. Gautam Tank & Ors.

Delhi High Court · 25 Oct 2018 · 2018:DHC:6901-DB

Sanjiv Khanna; Anup Jairam Bhambhani

FAO(OS)(COMM) No.341/2016

2018:DHC:6901-DB

civil appeal_dismissed Significant

AI Summary

The Delhi High Court held that the interim injunction was revived upon restoration of the suit but refused interim relief under Order XXXIX Rule 2A CPC due to appellant's delay, directing procedural safeguards and dismissing the appeal.

Full Text

FAO(OS)(COMM) No.341/2016 HIGH COURT OF DELHI
FAO(OS) (COMM) No. 341/2016
Date of Decision: 25th October, 2018 NADEEM MAJID OOMERBHOY ..... Appellant
Through Mr. Sanjeev Puri, Sr. Advocate with Mr. Vikram Mehta, Ms. Rishika Rama and Mr. Rounak Biswas, Advocates.

VERSUS

GAUTAM TANK & ORS ..... Respondent
Through Mr. Sudeep Chatterjee and Mr. Rohan Swarup, Advocates for R-1 and R-2.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI SANJIV KHANNA, J. (ORAL)
This intra-Court appeal impugns order dated 25th October, 2016, whereby I.A. No.13305/2016, filed by the appellant, who is plaintiff in CS
(OS) No.806/2005, under Order XXXIX Rule 2A of the Code of Civil
Procedure, 1908 (Code, for short), has been dismissed by the learned single
Judge.

JUDGMENT

2. The appellant had filed the aforesaid suit for injunction against infringement of trademark and passing off in respect of mark „Postman‟. Vide order dated 12th December, 2007, the application filed by the appellant 2018:DHC:6901-DB being I.A. No. 4575/2005 under Order XXXIX Rule 1 and 2 of the Code, was allowed. This order was thereafter made subject matter of challenge by the first respondent and the second respondent in FAO (OS) No.141/2008.

3. During pendency of FAO (OS) No.141/2008, CS (OS) No. 806/2005 was dismissed by the learned single Judge vide judgment dated 24th December, 2010, primarily on the ground that the appellant had not led evidence. Another observation made was that the appellant was trying to prolong the trial on one pretext or the other in view of the interim stay granted in their favour.

4. In view of the said dismissal of the suit, respondent Nos.[1] and 2 withdrew their appeal, FAO (OS) No.141/2008.

5. Subsequently, RFA (OS) No. 19/2011 was preferred by the appellant against the judgment dated 24th December, 2010. Additionally, application C.M.No.3705/2011 was also preferred for staying the operation of the aforesaid judgment and to restore the temporary injunction, which application was dismissed vide order dated 26th April, 2011 by the Division Bench. Special Leave to Appeal preferred against the adverse order in C.M. No.3705/2011 was dismissed by the Supreme Court vide order dated 18th July, 2011 observing that the Supreme Court was not inclined to interfere with the order. However, the High Court was requested to dispose of RFA (OS) No. 19/2011 as expeditiously as possible and in any event within one year from the date of communication of the order.

6. RFA (OS) No. 19/2011 was thereafter allowed vide judgment dated 27th July, 2012, observing that the suit should not have been dismissed as appellant had filed an in-chamber appeal against the order dated 16th December, 2010, passed by the Joint Registrar closing the evidence of the appellant. The said appeal was still pending before the learned single Judge when the judgment dated 24th December, 2010 was pronounced. The judgment dated 24th December, 2010 had incorrectly recorded that no appeal was pending before the learned single Judge against the order of the Joint December, 2010 closing the right to lead evidence.

7. In view of the aforesaid position, the Division Bench disposing of RFA (OS) No. 19/2011, had directed:-

“27. Considering the over-all facts and circumstances of the matter, we set-aside the order dated 16th December, 2010 passed by the Joint Registrar. Consequently, the subsequent judgment passed on 24th December, 2010 dismissing the suit of the plaintiffs does not survive and hence, the same is set-aside. Suit as well as interim application is restored to the original position. 28. The present appeal is allowed, but subject to cost of Rs.1 lac which is imposed upon the plaintiffs due to the

reason of continuous default on the part of the plaintiffs for nonproduction of evidence in time. We also expedite trial in the matter.

29. We appoint Sh.S.M.Chopra, Retired Additional District Judge as a Court Commissioner to record the evidence of the parties. The plaintiffs shall be granted last and final opportunity by the Court Commissioner to produce the evidence before him at their own. If necessary, the plaintiffs are allowed to take dasti notice for summoning of witness from the office of Court Receiver. Parties shall not take unnecessary adjournment. The Court Commissioner would make his endeavour to complete the evidence of the parties within the period of 4-6 months. The entire fee of the Local Commissioner shall be paid by the plaintiffs.”

8. In view of the observations in paragraph 27, we find merit in the contention of the appellant that the interim injunction order dated 20th December, 2007, passed in I.A. No.4575/2005 filed under Order XXXIX Rule 1 and 2 had got revived. This would also be the correct legal position as enunciated by the Supreme Court in Vareed Jacob Vs. Sosamma Geevarghese (2004) 6 SCC 378 and by the High Court in Amal Mal Sindhi Vs. Ram Parkash, ILR (1979) 1 Delhi 449. The latter decision observes that when a suit is dismissed on merits or for default, the interim orders would come to an end as they subsist only during the pendency of the proceedings. On remand, however, when the order of dismissal in default or on merits is set aside, it would have the effect of restoring the original interim order.

9. However, there are two other aspects which arise in the present appeal. Firstly, in the present case, the impugned order has been passed in application being I.A. No. 13305/2016 under Order XXXIX Rule 2A of the Code. The impugned order, we would record, would not justify interference as the respondents were under the belief that the interim injunction order has not got revived. Learned single Judge has also held that the interim order had not got revived. The appellant, it is recorded had also not sought any interim relief in the said application. To be fair, the appellant has not pressed for any relief in terms of Order XXXIX Rule 2A of the Code.

10. The second aspect which is to be noticed pertains to allegations of deliberate delay and prolongation of proceedings. On the said aspect, the Division Bench, while allowing appeal in RFA (OS) 19/2011, had observed as under:-

“26. As regards finding negligence on the part of the plaintiffs, we agree that despite of many opportunities, the plaintiffs had failed to produce the evidence in time but at the same time, we feel that the learned Single Judge ought to have disposed of the appeal while passing the impugned order or at least would have waited for couple of days for removal of objection and listing before Court, rather to brush aside the remedy available with the plaintiffs under the law. In fact, the Chamber Appeal was pending when the impugned judgment was delivered. Even on the next date when the appeal was listed after removing the objections, the

learned Single Judge had granted the liberty to challenge the said order before the Division Bench at the request of the counsel appearing on behalf of the plaintiffs. We are of the view that the approach of the learned Single Judge on this aspect was not correct though the findings with regard to default on the part of the plaintiffs cannot be faulted with”

11. To this extent, the Division Bench had affirmed and concurred with the findings given by the learned single Judge in the judgment dated 24th December, 2010. It is in this context that costs of Rs.1,00,000/- was imposed on the appellant for continuous default, failure and non-production of evidence on time. It is stated at the Bar that evidence of the parties is complete and the suit is ready for final hearing. Counsel for the first and the second respondent has drawn our attention to order dated 16th February, 2017, which was passed by the learned single Judge in CS (OS) 806/2005 on the basis of the submission made by the counsel for the appellant. The said order reads as under:-

9,955 characters total

“1. It is informed that the plaintiff has preferred an appeal before the Division Bench against the order dated 25th October, 2016 insofar as dismissing the application of the plaintiff under Order XXXIX Rule 2A of the CPC. 2. Though the suit is ripe for hearing final arguments but the counsel for the plaintiff states that since the entitlement of the plaintiff to damages is dependent upon the outcome of the appeal, he would like to argue thereafter.

3. The senior counsel for the defendants no.1&2 states that it be also recorded that the plaintiff has today not argued afresh the application for interim relief.

4. The fact remains that the counsel for the plaintiff has not urged on the said application.

5. List in the category of “Finals” as per turn.” The aforesaid order records that the suit was ready for final arguments but plaintiff‟s counsel i.e. the appellant‟s counsel had stated that “since the entitlement of the plaintiff to damages is dependent upon the outcome of the appeal, he would like to argue thereafter”. We fail to understand why the said statement was made, for the simple reason that the outcome of the present appeal would in no way affect the final outcome in the suit. This fortifies the submission of the contesting respondents that the appellant is trying to delay final arguments and proceedings before the learned single Judge.

12. In these circumstances, we are not inclined to interfere with the impugned order; nor are we inclined to record that the interim injunction granted vide order dated 20th December, 2007 passed in C.M. No.4575/2005 would stand revived. We find that there has been no interim order in the present appeal, although the appeal has remained pending after the order dated 25th October, 2016 passed by the learned single Judge.

13. However, balancing equities we would direct the first and the second respondent to file details and figures of their total turnover while using the trademark/name „Postman‟ from the date of restoration of the suit till today. The said details with supporting and affirming affidavit would be filed within four weeks. The first and the second respondent would continue to file the said statements with affirming affidavits after every two months for the subsequent period. We also clarify that in case the first and the second respondent take adjournment and cause delay, it will be open to the learned single Judge to revive the interim injunction order.

14. The appeal is accordingly disposed of without any order as to costs. Observations made in this order, are for disposal of the present appeal and are not final and conclusive findings on merits. The suit would be decided on merits without being influenced by the observations in this order.

SANJIV KHANNA, J. ANUP JAIRAM BHAMBHANI, J. OCTOBER 25, 2018 NA

Nadeem Majid Oomerbhoy v. Gautam Tank & Ors.

AI Summary

Full Text

JUDGMENT

Contact Us for a Free Consultation