Subimal Chakraborty. Vs. Surjya Kumar Maity and ors.

Subimal Chakraborty. vs Surjya Kumar Maity and ors.

Type Court Judgment Court Kolkata Appellate Decided Jan 07, 2011

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https://sooperkanoon.com/case/911778

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Citation: sooperkanoon.com/911778
Court: Kolkata Appellate High Court
Judge: Prasenjit Mandal, J.
Decided On: Jan 07, 2011
Case Number: C.O. No. 2403 of 2007
Subject: Land Acquisition

Case Summary

AI-generated summary - not the official court judgment text.

[MOHIT S. SHAH; S.J. VAZIFDAR, JJ.] - The respondents contended that they are the proprietors inter-alia of the trade mark 555 written in a stylized manner. The respondents claim to be the assignees of this mark. The mark was assigned from time to time. Ultimately by a Deed of Assignment dated 14.9.2004, the registe...

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

Subimal Chakraborty.

Advocate Mr. Probal Kumar Mukherjee,; Mr. Sk. Akhtar Hossain, Advs

Respondent

Surjya Kumar Maity and ors.

Advocate Mr. Amitava Das,; Mr. Pingal Bhattacharyya, Advs

Excerpt

.....with other marks such as meredian, merelane delux and merelane premium. see also, fuentes trade marks (1891, 2 ch.,166)." the above observations establish that it is a defence even to an action for passing off or infringement of a trade mark that the plaintiffs (in this case the respondents) marks are an imitation of the mark of another to wit that the respondents had themselves infringed the mark of another. it is thus clear that the principle was applied to an action for infringement of trade mark and passing off. if the purchasers were in such a case to stamp their goods with the trade mark, "a.b. the basis of the ratio is to deny an infringer a right based on the mark or work which infringes the mark or work of another. the respondents in their affidavit in rejoinder denied the allegations that they had infringed the mark of state express 555. there are no averments, much less is there any evidence, to indicate that the respondents' marks/cartons/labels are an imitation of the mark state express 555. it is significant to note that there is no evidence whatsoever to the effect that the third party has used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the respondents of these marks/labels and cartons which may have persuaded the court to come to the conclusion that the respondents had infringed the mark. if it is established that the mark is a well known mark, the mark being used in respect of different goods may make no difference. firstly, whether the principle would apply even if the mark is not established to be a well known mark. secondly, whether the principle would apply if such a mark i.e. not a well known mark, infringed by the respondents is applied to different goods. the goods need not be identical even if a well known mark is not involved. .....that the defendants/ opposite party nos.1 to 4 have specifically stated that they have no knowledge with regard to the earlier suit passed ex parte. at the time of sale of the land in their favour, the vendor did not disclose that an ex parte decree had been passed earlier against the vendor and others. for non-disclosure of such fact, the learned trial judge has held that this was a sufficient ground for setting aside an ex parte decree. though the stranger purchasers were not parties to that suit, since they had acquired right, title and interest by way of purchase without notice of the earlier suit, they have the right to file an application for setting aside the ex parte decree and that matter has been clearly decided by an earlier order dated july 8, 2005 in civil revision no.515 of 2005, as appearing in page no.70 of the application. the property was purchased during the pendency of the earlier suit being title suit no.22 of 1981. the learned trial judge has come to a finding that the petitioners of the misc. case have been able to show sufficient cause for delay in filing the application under order 9 rule 13 of the c.p.c. and as such, he allowed the application under order 9 rule 13 of the c.p.c. after condoning the delay. since her findings are based on evidence on record and such findings are not perverse, i am of the view that this revisional court is not in a position to analyze the evidence in details. though misc. appeal lies, the petitioner did not prefer to file any misc. appeal.5. this being the position, i am of the view that there is nothing to interfere with the impugned order. accordingly, this applications fails to succeed.6. it is, therefore, dismissed.7. considering the circumstances, there will be no order as to costs.8. urgent xerox certified copy of this order, if applied for, be supplied to the learned advocates for the parties on their usual undertaking.

Full Judgment

1. This application is at the instance of the petitioner and is directed against the order no.40 dated May 31, 2007 passed by the learned Civil Judge (Junior Division), Third Court, Tamluk in Misc. Case No.3 of 2004 arising out the judgment and ex parte decree by order no.172 dated November 24, 2003 passed by the learned Civil Judge (Junior Division), Third Court, Tamluk in Title Suit No.22 of 1981.

2. The petitioner instituted the Title Suit being T. S. No.22 of 1981 against the defendants/opposite party nos.5 to 9 for declaration and recovery of possession and also for injunction. In that suit, the defendants/opposite party nos.5 to 9 appeared and the defendant nos.6 and 7 contested the said suit by filing their respect written statements denying the contentions made out in the plaint. The defendants did not take any steps subsequently. As a result, the suit was decreed ex parte on November 24, 2003. While the petitioner was in possession, on December 7, 2003, the defendant nos.1 to 4 tried to start the construction works on the suit property and the petitioner raised objection. The defendant nos.1 to 4 contended that they had purchased the suit property from Smt. Bharti Banerjee, wife of Sri Ashok Kr. Banerjee, the defendant no.7. Then, the petitioner had no other alternative but to file a title suit being T. S. No.104 of 2003 praying for decree of confirmation of title, recovery of possession and other reliefs. The opposite party nos.1 to 4 entered appearance and contested the said suit by filing a written statement and thereafter, they filed an application for setting aside the ex parte decree passed in T.S. No.22 of 1981. That application under Order 9 Rule 13 of the C.P.C. filed by the opposite party nos.1 to 4 were allowed by the impugned order. Being aggrieved, this application has been preferred.

3. Now, the point for consideration is whether the impugned order should be sustained.

4. Upon hearing the submission of the learned counsel for the parties and on going through the written arguments filed by the parties as well as the materials on record, I find that the defendants/ opposite party nos.1 to 4 have specifically stated that they have no knowledge with regard to the earlier suit passed ex parte. AT the time of sale of the land in their favour, the vendor did not disclose that an ex parte decree had been passed earlier against the vendor and others. For non-disclosure of such fact, the learned Trial Judge has held that this was a sufficient ground for setting aside an ex parte decree. Though the stranger purchasers were not parties to that suit, since they had acquired right, title and interest by way of purchase without notice of the earlier suit, they have the right to file an application for setting aside the ex parte decree and that matter has been clearly decided by an earlier order dated July 8, 2005 in Civil Revision No.515 of 2005, as appearing in page no.70 of the application. The property was purchased during the pendency of the earlier suit being Title Suit No.22 of 1981. The learned Trial Judge has come to a finding that the petitioners of the misc. case have been able to show sufficient cause for delay in filing the application under Order 9 Rule 13 of the C.P.C. and as such, he allowed the application under Order 9 Rule 13 of the C.P.C. after condoning the delay. Since her findings are based on evidence on record and such findings are not perverse, I am of the view that this revisional Court is not in a position to analyze the evidence in details. Though misc. appeal lies, the petitioner did not prefer to file any misc. appeal.

5. This being the position, I am of the view that there is nothing to interfere with the impugned order. Accordingly, this applications fails to succeed.

6. It is, therefore, dismissed.

7. Considering the circumstances, there will be no order as to costs.

8. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.

Same Court & Year Kolkata Appellate · 2011 Same Parties Subimal Chakraborty. vs Surjya Kumar Maity and ors. Same Subject Land Acquisition Same Judge Prasenjit Mandal, J.

Land Acquisition