The single judge bench of the Jharkhand High Court held that merely allowing the application under Order XLI Rule 27 of the Code of Civil Procedure and taking the document on record will itself not be sufficient to mark the exhibit straight away rather the appellant/plaintiff has further to prove the existence, authenticity, genuineness, and contents of the said document in accordance with the law by examining himself and by adducing any other witness to prove this document. Further, the respondent/defendant has to be given the opportunity to rebut this document by adducing the documentary as well as the oral evidence.
Brief facts
The factual matrix of the case is that the Plaintiff/Appellant alleged that he was engaged in the business of manufacturing and marketing of various variety of Incense Sticks (Agarbatti) under the trademark “Bhuwalka Dashmesh-100 (Label)” written in an artistic manner of the Trade Mark Rules, 2002 for the past several years. Furthermore, the plaintiff came to know that the Defendant is also manufacturing and marketing the identical product of incense sticks under the trademark/label “Vasan Dashmesh 100 (Label)” and has fraudulently started selling the same under the said impugned mark in order to confuse and deceive the public to believe that the products are that of the plaintiff. Thereafter, the plaintiff served the legal notice, however, the defendant continued to pass off the product. After that, the notice was again issued by the Plaintiff and the defendant returned the same with the endorsement refused. The trial court dismissed the suit of the Plaintiff and the first appeal was filed.
Contentions of the Appellant
The Appellant contended that the learned trial court failed to appreciate the evidence on record and passed the decision without applying its judicial mind. It was furthermore submitted that the defendants adduced no evidence that the “Vasan Dashmesh 100” is the registered trademark of the defendant under which they are running the business. The document online certificate of registration of trade mark issued under the Trade Marks Act, 1999 issued under the signature of the Registrar of Trade Mark has already been filed. It ought to have been marked as an exhibit under the provisions of Sections 65-A and 65-B of the Evidence Act.
Issues before the Court
- whether the appellant is the registered owner of the Trade Mark “Bhuwalka Dashmesh 100 (Label)” and has been carrying on the business of manufacturing and marketing of incense sticks under the said Trade Mark since 10.04.2002?
- whether the respondents are passing of their product as the product of plaintiff/appellant?
Observations of the court
For the first point of determination, the plaintiff filed the documentary evidence i.e. trade mark registration certificate. It was the xerox copy and in order to clarify the ambiguity shown in the xerox copy of the registration certificate, the plaintiff/appellant has filed an application under Order XLI Rule 27 of the Code of Civil Procedure with the prayer to bring the certified copy of the Trade Mark on record to enable the Court to come to the proper conclusion. The court allowed the application.
The Hon’ble court observed that the appellant/plaintiff must further establish the existence, authenticity, genuineness, and contents of the aforementioned document in compliance with the law by questioning himself and by calling witnesses to attest to it. Simply approving the application and placing the document on record will not be sufficient to mark exhibit right away. It is also necessary to provide the respondent/defendant with the chance to rebut this document by presenting both oral and documentary evidence. The Court cannot evaluate a document's evidentiary value unless the existence, authenticity, genuineness, and contents have been established.
The court relied upon the judgment titled Uttaradi Mutt v. Raghvendra Swami Mutt.
Based on these considerations, the court was of the opinion that the defendant/respondent should also be given an opportunity to rebut the same. Therefore, the court remanded the matter to the learned court below.
The decision of the court
With the above direction, the court allowed the appeal.
Case title: Pradeep Bhuwalka Vs Raju Vasan
Coram: Hon’ble Mr. Justice Subhash Chand
Case No.: F.A. No.114 of 2017
Advocates for the Plaintiff: Ms. Khushboo Kataruka, Advocate Mr. Shubham Kataruka, Advocate
Advocate for the Defendant: Mr. Sanjay Prasad, Advocate
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