Nadeem Majid Oomerbhoy vs Gautam Tank & Ors

Sanjiv Khanna, J

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.

The appellant had filed the aforesaid suit for injunction against infringement of trademark and passing off in respect of mark „Postmanâ€. Vide

order dated 12th December, 2007, the application filed by the appellant 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.

During pendency of FAO (OS) No.141/2008, CS (OS) No. 806/2005 was dismissed by the learned single Judge vide judgment dated 2t4h

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.

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

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.

RFA (OS) No. 19/2011 was thereafter allowed vide judgment dated 27 th 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 Registrar dated 16th December, 2010 closing the right to lead evidence.

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.

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.

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.â€​

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.

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.

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 withâ€​

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:-

“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.

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.

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.

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

List in the category of “Finalsâ€​ as per turn.â€​

The aforesaid order records that the suit was ready for final arguments but plaintiffâ€s counsel i.e. the appellantâ€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 thereafterâ€. 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.

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.

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.

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.