M/S. Honeypath Construction and ors. Vs. Kishore Das and ors.

M/S. Honeypath Construction and ors. vs Kishore Das and ors.

Type Court Judgment Court Kolkata Appellate Decided Jan 04, 2011

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https://sooperkanoon.com/case/911784

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Citation: sooperkanoon.com/911784
Court: Kolkata Appellate High Court
Judge: Prasenjit Mandal, J.
Decided On: Jan 04, 2011
Case Number: C.O. No. 3423 of 2009
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

M/S. Honeypath Construction and ors.

Advocate Mr. Bibhas Majumdar;, Mr. Md. Majnu Sk, Advs

Respondent

Kishore Das and ors.

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. .....by the learned civil judge (senior division), second court, barasat, district north 24 parganas in title suit no.3 of 1999 thereby rejecting an application under order 18 rule 4 of the code of civil procedure filed by the plaintiffs.2. the short fact is that the plaintiffs/petitioners herein instituted a title suit no.3 of 1999 for specific performance of contract, permanent injunction and other reliefs against the defendants/opposite parties herein in respect of the property as described in the schedule of the plaint. the suit was at the stage of recording evidence and in that suit, the plaintiff no.1 deposed on behalf of all the plaintiff. subsequently, the plaintiff no.3 tendered evidence under order 18 rule 4 of the code of civil procedure for marking a copy of a document dated december 13, 1997 as exhibit as secondary evidence. the prayer for adducing evidence by the plaintiff no.3 has been rejected by the impugned order. at the same time, the learned trial judge has also closed the evidence on behalf of the plaintiffs. being aggrieved, this application has been preferred.3. now, the question is whether the impugned order should be sustained.4. upon hearing the learned counsel for the parties and on going through the materials on record, i find that the plaintiff no.1 deposed in the suit by way of tendering evidence under order 18 rule 4 of the code of civil procedure and at that time, he deposed to the effect that he was deposing on behalf of all the plaintiffs. subsequently, the plaintiffs thought that the plaintiff no.3 would also depose and he would prove one document dated december 13, 1997. that prayer was turned down by the impugned order.5. now, no doubt as per amended provisions of the c.p.c. of the act 22 of 2002 evidence may be tendered under order 18 rule 4 of the code of civil procedure so as to minimize the courts time in recording evidence. so, there is no bar to adduce evidence by way of order 18 rule 4 of the c.p.c. the cross-examination.....

Full Judgment

1. This application is at the instance of the plaintiffs and is directed against the order no.99 dated August 26, 2009 passed by the learned Civil Judge (Senior Division), Second Court, Barasat, District North 24 Parganas in Title Suit No.3 of 1999 thereby rejecting an application under Order 18 Rule 4 of the Code of Civil Procedure filed by the plaintiffs.

2. The short fact is that the plaintiffs/petitioners herein instituted a Title Suit No.3 of 1999 for specific performance of contract, permanent injunction and other reliefs against the defendants/opposite parties herein in respect of the property as described in the schedule of the plaint. The suit was at the stage of recording evidence and in that suit, the plaintiff no.1 deposed on behalf of all the plaintiff. Subsequently, the plaintiff no.3 tendered evidence under Order 18 Rule 4 of the Code of Civil Procedure for marking a copy of a document dated December 13, 1997 as exhibit as secondary evidence. The prayer for adducing evidence by the plaintiff no.3 has been rejected by the impugned order. At the same time, the learned Trial Judge has also closed the evidence on behalf of the plaintiffs. Being aggrieved, this application has been preferred.

3. Now, the question is whether the impugned order should be sustained.

4. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the plaintiff no.1 deposed in the suit by way of tendering evidence under Order 18 Rule 4 of the Code of Civil Procedure and at that time, he deposed to the effect that he was deposing on behalf of all the plaintiffs. Subsequently, the plaintiffs thought that the plaintiff no.3 would also depose and he would prove one document dated December 13, 1997. That prayer was turned down by the impugned order.

5. Now, no doubt as per amended provisions of the C.P.C. of the Act 22 of 2002 evidence may be tendered under Order 18 Rule 4 of the Code of Civil Procedure so as to minimize the Courts time in recording evidence. So, there is no bar to adduce evidence by way of Order 18 Rule 4 of the C.P.C. The cross-examination is to be done in the Court. The examination of a witness may also be done by appointment of a commissioner, but it has not been done. The learned Trial Judge rejected the evidence of the plaintiff no.3 simply on the ground that the plaintiff no.1 deposed on behalf of all the plaintiffs. If any of the plaintiff or any person on behalf of the plaintiff deposed for all the plaintiffs, there is no bar the other plaintiff to adduce evidence on behalf of the plaintiffs particularly with regard to a particular document which is within the special knowledge of that plaintiff. Here, in the instant case, the plaintiff no.3 wanted to adduce evidence by way of Order 18 Rule 4 of the C.P.C. along with the prayer to mark a carbon copy of a writing dated December 13, 1997 which is nothing but a receipt granted by the opposite party at the time of making payment by the plaintiffs. So, the original is lying with the opposite party and the carbon copy of the same is lying with the possession of the plaintiffs and the plaintiffs have wanted to mark the said document as exhibit for which the plaintiffs have wanted to tender evidence under Order 18 Rule 4 of the Code of Civil Procedure.

6. This being the position, when the original is lying with the opposite party side as per claim of the petitioners, the carbon copy of the same may well be tendered as evidence under the provisions of Section 65(a) of the Indian Evidence Act, 1872. The fact that the carbon copy is admissible as evidence will be evident from the decision of Nawab Singh v. Inderjit Kaur reported in AIR 1999 SC 1668. The Honble Apex Court has held that rejection of an application without affording tenant an opportunity of adducing secondary evidence was not justified. This decision has also been followed in the case of Anupama Chowdhury & ors. v. year Ali Mallick and Anr. reported in 2006(1) CHN 151 and the decision of Ratan Das v. Goutam Das reported in 2010 (1) CLJ Cal 902.

7. This being the position, I am of the view that the learned Trial Judge has failed to exercise the jurisdiction vested in him and the order impugned cannot be supported. It is hereby recorded that though the plaintiff no.1 has deposed on behalf of all the plaintiffs, there is no bar to adduce evidence by other plaintiffs particularly with respect to a matter which is within the special knowledge of that plaintiff. The impugned order is, therefore, set aside. The learned Trial Judge shall proceed with the suit as per above observations and in accordance with law.

8. The application is disposed of in the manner indicated above. Since the suit is old, the learned Trial Judge is directed to dispose of the suit within four months from the date of communication of the order.

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

10. 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 M/S. Honeypath Construction and ors. vs Kishore Das and ors. Same Subject Land Acquisition Same Judge Prasenjit Mandal, J.

Land Acquisition