1. Present appeal under sub-clause (5) of clause (1) of order 43 of the Code of Civil Procedure, 1908, hereafter referred to as the Code, has been filed by Shri Ram Kumar, the defendant appellant for questioning the legality and propriety of the judgment and order dated 14.10.1999, passed by Shri SN Bezbarua, learned District Judge, Kamrup, Gauhati in Misc. (J) Case No. 502/99 arising out of T.S. 1/99 which was filed by M/s JM Agarwal Tobacco Co. Plaintiff respondent No. 1 herein.
2. This suit had been filed by the respondent u/s 105/106 of the Trade and Merchandise Marks Act, 1958, read with Section 55 of Copy Right Act, 1957, for the relief of permanent injunction, rendition of accounts and for permanent injunction for restraining the appellant, his agents, servants etc, from using the Brand 'Bandar Chhap Tambacco' or 'Bandar Brand Tobacco' in the packing of Chewing Tobacco sold by them in the North Eastern State with the device of 'Monkey sitting on the drum'. Main ground on which the injunction order was sought by the respondent was that he was registered Firm engaged in the business of manufacture, processing and sale of chewing tobacco with the reputed trade mark of 'Bandar Chhap Tambacco or Bandra Brand Tobacco' with the device of Monkey sitting on the Drum, with distinctive get up for the last 30 years. The said Trade Mark has been used and displayed prominently on the packing containing the chewing tobacco sold by him and it has been registered under the provisions of the Act vide No. 366552 dated 20.9.1990 clause 34 under registration No. 36655 dated 22.9.1989 and the said registration mark was renewed from time to time and is still in force. It was further alleged by the respondent that they were registered owner, of the label under the Copy Right Act bearing registration No. A-7822/72 first published in India in 1968 and also Copy Right Act registration No. 30205/80 registered in the year 1972 whereby they became the sole and exclusive holder of the said Trade Mark for carrying the business of sale of chewing tobacco including its manufacturing, marketing in which they have been indulging for the past many years. Their product with the said Trade Markacquired considerable reputation and goodwill and was purchased by consumers in general for its excellent quality and advertising popularity. The said tobacco with the above Trade Mark has been sold by them all over Assam and its neighboring States, namely Manipur, Tripura, Mizoram, Arunachal Pradesh and Nagaland. However, the dispute arose between the plaintiff respondent and the defendant appellant which was resolved between them by an agreement dated 9.2.1987, wherein it was agreed between them that the defendant appellant shall not use the said Trade Mark within the territory of the North Eastern States. It is alleged that, despite the agreement the defendant appellant, infringed upon the Trade Mark rights of the respondent and sold Tobacco with the brand name of the appellant whereby utter confusion has been caused in the tobacco consuming public of the North Eastern States which consist apart from the literate, semi-literate and illiterate public who can identify the respondents product by Trade Mark and the get up of the packing. It was in April 1999, that the respondent came to know of the infringement of his rights by the appellant, where he was found selling and offering for sale in the city of Guwahati chewing tobacco bearing label with similar brand over it as used by the respondent in a deceptive manner so as to created confusion in the mind of the customers with the result, serious loss and damage in business was occasioned to him, hence the suit.
3. An application for grant of interim injunction under. 39, Rules 1, 2 and 7 read with section 151 of the Code was also filed by the respondent in which he prayed for the grant of interim injunction order for restraining the appellant, his servants, agents and workers etc., from using the Trademark and the Brand name which exclusively belonged to the plaintiff respondents in the sale of chewing tobacco in the North Eastern States. The injunction application was registered as Misc. (J) No. 502/89. The appellant contested the suit as well as the application. He filed his written statement and objection.
4. It was inter alia pleaded by the appellant that he started his business of sale etc., of chewing tobacco - Hukka Tobacco in the name and style of M/s Munshi Ram Tilak Ram in the year 1964, using distinctive Trade Mark 'Bandar Chapp' in respect of his goods since January, 1964 using different labels and packing under the said brand. He registered his Trade Mark vide No. 303984 under clause 34 and has been selling his goods in the State of Uttar Pradesh, Rajasthan, Punjab, Haryana, Jammu and Kashmir,Himachal Pradesh and Union Territory of Chandigarh and Delhi, which for the sake of brevity shall hereafter be called as eight States earmarked for the appellant business. It was further alleged by the appellant that, apart from this another Trade Mark label of 'Bandar Chap' Tilak Patti under No. 367741, had been advertised in the Trade Mark Journal No. 1074 in association with the aforesaid Registered Trade Mark. His another application No. 461612 for the registration of the Trade Mark Bandar for whole of India has also been advertised in the Trade Mark Journal No.1116, which is opposed by the plaintiff respondents. The appellant further alleged that he is holding registration of Copy Right namely A-7152/71; A-14061/75 and A-14176/75, which are valid subsisting and in force. It was further stated by the appellant that certain disputes arose between him and the respondent giving rise to pendency of certain cases in Courts of law which were however compromised between them and both the parties are in agreement that the respondent would not use the Trade Mark in any of the eight States earmarked for the appellant's business in which the appellant would have exclusive rights to carry on trade by virtue of registration of his trade mark and that respondents would get his application No. 36653 amended to exclude the said eight State earmarked for the appellant's business except that the respondents was entitled to manufacture, dispatch for sale or chewing tobacco from Kaimganj in district Farukabad, U.P. Appellant denied that any agreement was made between respondent and the appellant on 22.2.1987 to the effect that the appellant would not do business in the sale of chewing tobacco in any other state than the 8 states which were earmarked for his business. The appellant also set up a counter case to the effect that the respondent had violated his undertaking given by selling good under the Trade Mark in Ludhiana for which the appellant filed suit at Ludhiana in which false objection was taken by the plaintiff respondent on the ground of Arbitration, the matter is pending in the Punjab and Haryana High Court. Another suit was filed by the defendant appellant against infringement of his rights by the respondent in Delhi High Court. The said suit is registered as suit No. 216/98 and is pending. There too the respondent has taken a false plea of arbitration. It was finally stated by the appellant that he has been using the Trade Mark of 'Bandar Brand' in his business of tobacco in the States of Assam exclusively and continuously and has been advertising the said brand name by publishing notices which was well within the knowledge of the respondent. Both the parties filed documentary evidence in support of their respective claims before the learned district judge.
5. The learned District Judge, while hearing the injunction application considered the case set up by the parties to the suit at great length. He took notice in his Trade Mark which was registered with the plaintiff respondent and the Trade Mark which was registered with the appellant. He further notices the agreement arrived at between the respondent and the appellant ; he also examined prima facie case balance of convenience of both the parties to the suit and took into his notice other relevant considerations in relation thereto in the light of judicial precedents. After discussing the case of the parties to the suit at length the learned District Judge, passed the impugned order issuing the order of injunction for restraining the appellant from using the Trade Mark of 'Bandar Chhap Tobacco' with the device of 'Monkey sitting on the Drum' in his packing of chewing tobacco for sale in the North Eastern States. The main ground on which the said order of injunction was passed by the leaned District Judge in respondent's favour or against the appellant was that under the agreement, appellant was entitled to use the Brand of 'Bandar Chhap Tobacco' only in the eight States which were earmarked for the business of the appellant, whereas, the respondent was entitled to use the brand of 'Bandar Chhap Tambacco' with the device of 'Monkey sitting on the Drum' in State other than those eight States which were earmarked for appellants business. This is how present appeal has been filed by the defendant appellant, who wants that the injunction order passed by the learned district Judge be set aside and the appeal be allowed.
6. Shri N M Lahiri, learned senior Advocate along with Mr. G M Sanewalla, and Mrs. B Goel, have appeared for the appellant, whereas, Shri A K Phukan, senior Advocate along with Mr. S S Sharma, Mr. R K Jain, Mr. D Seal, Advocates have appeared on behalf of the respondent.
7. This case has come before me as a motion matter, during the course of the argument of the appeal it was agreed upon between the learned counsel for the parties that the original record from the file of the District Judge Kamrup, Guwauhati may be summoned and the appeal may itself be finally disposed of at the motion stage. On the above, agreement of the learned counsel for the parties records were called and the case was heard for final disposal; that is how present appeal is being finally disposed of.
8. I have heard the learned counsel for the parties at great length.
9. Shri N M Lahiri, senior Advocate, contended 1-that the DistrictJudge took a wholly wrong view in by inferring from the agreement arrived at between the plaintiff respondent and the appellant, that the area of business operation in the matter of sale of chewing tobacco with the Brand name of Bandar Chhap Tombacco for the appellant was confided to the eight states earmarked for appellant's business. On the contrary, Shri Lahiri posed that the truth was the other way round. According to him, under the agreement respondent had no right what-so-ever to do business of sale of chewing tobacco in the Brand name of Bandar Chhap Tambacco in the eight States which were earmarked for the appellant's business except for manufacturing and sale and dispatch of Tobacco in kaimganj in District Farukhabad, U.P.. Shri Lahiri further argued that there was nothing in the agreement from which it can be inferred that the appellant was prohibited from carrying on business of sale of chewing tobacco with the brand name Bandar Chhap Tobacco with the device of a 'Monkey sitting on the Drum' in the state other than the eight States earmarked for appellants business. Elaborating his above argument Shri Lahiri, contended that a part from the above eight states in which Respondent had no right to carry on business of sale of tobacco in the brand name of Bandar Chhap except for manufacturing and packing and sale of tobacco in the said brand name in Kaimganj, District, Farukhabad. U.P, whereas area of operation in the business of sale of tobacco in the said brand name for the appellant was throughout the country.
10. The second contention of Shri Lahiri was that though neither in the plaint nor in the injunction application, which was filed by the respondent against the appellant prayer for grant of injunction order against the appellant for restraining the sale of tobacco in the brand name of Bandar Chhap tobacco with the device of Monkey sitting on the drum outside Guwahati was made still the learned district judge issued restraint order against the appellant throughout the North Eastern States, thereby the learned district judge, contends Shri Lahiri, has exceeded his jurisdiction in passing the impugned order.
11. Third and last contention of Shri Lahiri was that the District Judge Kamrup possessed jurisdiction and power to issue appropriate order to be operative within the area in respect whereof he exercises jurisdiction. He has no power nor authority under the law to issue direction, writ or order to allow or restrain any party to any legal proceeding for doing or for not doing anything outside his territorial jurisdiction. In substance the contention ofShri Lahiri was that it is alright for the learned district judge to restrain the appellant from selling or indulging in the sale of chewing tobacco in the brand name of Bandar Chhap tobacco with the device of Monkey sitting on the Drum within the district of Kamrup including Guwahati but not beyond that. Therefore the impugned order according to Shri Lahiri, in so far as it restrains the appellant from doing business of the sale of chewing tobacco with the brand name of Bandar Chhap tobacco with the device of Monkey sitting on the Drum in circle in the whole of the North Eastern States is wholly illegal.
12. I have given my serious consideration to the above arguments which have been advanced by Shri Lahiri. I will deal with them hereafter.
13. So far first contention of Shri Lahiri that the defendant appellant had right to carry on the business of sale of chewing tobacco in the brand name of Bandar Chhap tobacco with the device of Monkey sitting on the drum in a circle throughout the country including the eight states which have been earmarked for the appellants business is concerned, I have my grave doubt about the legitimacy of the arguments. I have perused from the original records the Trade Mark which is registered in the name of the appellant. It clearly confines the use of the brand name of Bandar Chhap Tobacco by the appellant in the eight states earmarked for the business of the appellant. Those eight states have specially been named in the registration certificate. The device of monkey sitting on the drum in a circle which is being used by the appellant and to which the respondent has taken exception in the suit is not there in the Trade Mark or brand which has been allotted to the appellant. Whereas in the case of the respondents, his Trade Mark is registered as Monkey facing left sitting on the drum. The two brands registered with the respondent and the appellant are quite distinctive and have no similarity, whereas the offending brand in which the appellant has been found indulging in the sale of chewing tobacco against which grievance has been raised by the respondent is markedly similar to the brand which is registered with the respondent and happens to be his property. What has been done by the appellant for showing dissimilarity between the two is that he had encircled the monkey whereas in respondents brand, there is no circle. If circle is removed then the brand which appellant is using will be exactly same brand which happens to be the property of the respondent. Thus, on the prima facie examination of the case as set up by both the parties before the learned District Judgein the suit, there is no room for doubt that a prima facie case disclosing serious dispute in the matter of encroachment on respondents right by the appellant under the provisions of the two Acts named above (of 1957 & 1958) was made out which required proper adjudication. The facet alleged by the respondent in support of his prayer too provided full justification for the grant of temporary injunction order. The claim of the appellant that he had been indulging in the sale of chewing tobacco in the offending brand name for the last 30 years throughout the country without any injection from the respondent though it was in his notice is a matter which he has an substantiate by evidence at the hearing of the suit. Such claim cannot be subject matter of consideration at the stage of grant of temporary injunction order. In may opinion the learned District Judge was absolutely right in holding that the respondent had prima facie case for the grant of interim injunction order for the removal of the infringement of his rights by the appellant. For the above reasons, I find no force in the first submission of Shri Lahiri.
14. Before dealing with the second submission, I will take the third submission of Shri Lahiri first. It was contended by Shri Lahiri that the learned District Judge possessed no authority or power under the law to issue the restraint order against the appellant to be applicable outside the territorial jurisdiction in relation to which he exercised his power. According to Shri Lahiri the area of operation of the restraint order passed by the learned District Judge, Kamrup, Guwahati, cannot extent beyond the territorial jurisdiction of district Kamrup which is in the State of Assam.
15. The plea of territorial jurisdiction is raised and has relevance in relation to the power of a Court to entertain the matter of dispute which is brought to that court for adjudication. If the suit or any other judicial proceeding is filed in a court of law such court has power to entertain it, if it is satisfied that the cause of action for the suit case or proceeding either in part or wholly had arisen within the area in relation to which such court exercises jurisdiction or that the cause of action for the case, suit or the proceeding has either partly or wholly arisen within its territorial jurisdiction. Once the court is satisfied on that question, the power thereafter is not limited to check the wrong doing of the erring party only within that particular area- The erring party can be restrained by the court from doing the wrong both within and outside the territorial jurisdiction in relation to which the concerned Court exercises power. If the above argument of Shri Lahiri is accepted, it willcreate utter confusion and would require the wronged person to file case, suit or proceeding in every district and in various Courts so as to check the wrongful act of the erring party which if such complained wrong by the wrongdoer extends beyond the territorialjurisdiction of a particular court.
16. In my opinion, there is no legal sanction for such argument either in the Code or in any other law. The contention of Shri Lahiri is accordingly turned down.
17. So far as the second argument of Shri Lahiri is concerned, it is no doubt true that the words 'the whole North Eastern States' has not been used in the relief clause of the plaints of the respondents or in his injunction application, but from a reading of the plaint as a whole, it is clearly made out that the grievance with which the respondent filed the suit was raised in relation to his right of sale of tobacco in the brand name of Bandar Chhap Tabacco (with the device of Monkey sitting on the Drum) in whole of North Eastern States to the exclusion of the appellant. Thus, a clear foundation had been made in the plaint by the respondent for the grant of the injunction in the terms in which the learned District Judge has been pleased to grant to him.
18. Power of the Courts under Order 39, Rules, 1. 2 and 7 of the Code to grant appropriate relief is not confined to the actual relief which has been claimed by the applicant either in the plaint or in the injunction application. Courts have power to grant appropriate relief in keeping with the case of the parties and the interest of justice. Therefore, if from the facts pleaded in the plaint there appears justification to grant or issue an order which is different from the relief claimed in the suit or in the injection application, then the court would be within its power to issue or pass such order. In the present case, the order which is impugned in this appeal to my mind does not fall outside the purview of the case set up by the respondent in his plaint. No exception therefore to the said order on this ground can be taken.
19. No other argument was raised by Shri Lahiri or by any other learned counsel appearing on behalf of the appellants.
20. In view of the above discussion, I find no merit in this appeal which is accordingly dismissed. The cost of this appeal shall abide the result of the suit.