Allahabad High Court
M/S Harisons (India) Products Pvt. Ltd. vs M/S Hari Ram Purwar Papad And Spices ... on 7 July, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:105468-DB
Reserved
Chief Justice's Court
(1) Case :- COMMERCIAL APPEAL No. 9 of 2025
Appellant :- M/s Harisons (India) Products Pvt. Ltd.
Respondent :- M/s Hari Ram Purwar Papad and Spices India Product and another
Counsel for Appellant :- Manish Goyal (Sr. Adv.), Anjali Goklani, Nikhil Mishra
Counsel for Respondent :- Dheerendra Kumar Srivastava, Namit Srivastava, Devansh Misra
(2) Case :- COMMERCIAL APPEAL No. 10 of 2025
Appellant :- M/s Harisons (India) Products Pvt. Ltd.
Respondent :- M/s Hari Ram Purwar Papad and Spices India Product and another
Counsel for Appellant :- Manish Goyal (Sr. Adv.), Anjali Goklani, Nikhil Mishra
Counsel for Respondent :- Dheerendra Kumar Srivastava, Namit Srivastava, Devansh Misra
(3) Case :- COMMERCIAL APPEAL No. 11 of 2025
Appellant :- M/s Harisons (India) Products Pvt. Ltd.
Respondent :- M/s Hari Ram Purwar Papad and Spices India Product and another
Counsel for Appellant :- Manish Goyal (Sr. Adv.), Anjali Goklani, Nikhil Mishra
Counsel for Respondent :-Dheerendra Kumar Srivastava, Namit Srivastava, Devansh Misra
(4) Case :- COMMERCIAL APPEAL No. 12 of 2025
Appellant :- M/s Harisons India Products Pvt. Ltd. through its authorized person Shri Yogesh Chandra Tiwari
Respondent :- M/s Hari Ram Purwar Papad and Spices India Product and another
Counsel for Appellant :- Manish Goyal (Sr. Adv.), Anjali Goklani, Nikhil Mishra
Counsel for Respondent :- Dheerendra Kumar Srivastava, Namit Srivastava, Devansh Misra
Hon'ble Arun Bhansali, Chief Justice
Hon'ble Kshitij Shailendra, J.
(Per : Arun Bhansali, CJ)
1. These appeals arise out of orders dated 25.02.2025 passed by Commercial Court, Kanpur Nagar in four commercial suits filed by the appellant, whereby the applications filed by respondent no.2 under Order VII Rule 11 CPC have been accepted and the plaints filed by the appellant have been rejected as barred by Order II Rule 2 CPC, Order XXIII Rule 1(4) CPC and Section 12 CPC.
2. The suits were filed praying for decree of permanent injunction against the respondents restraining them or any person on their behalf from infringing the trade marks annexed as Annexure-1 to the respective plaints. Further prayer was made for a decree directing the respondents to render correct account of profits made by them on sale of their goods by infringing the trade marks registered in the plaintiff-appellant's name. Along with the plaints, documentary evidence was produced.
3. An interim injunction was granted by the Commercial Court by order dated 17.09.2024.
4. The respondents, on appearance, filed applications under Order VII Rule 11 CPC seeking rejection of plaints on the grounds stated therein. The appellant filed its objection to the applications under Order VII Rule 11 CPC.
5. The Commercial Court, by the orders impugned, allowed the applications on finding the suits as barred under the provisions of Order II Rule 2 CPC, Order XXIII Rule 1(4) CPC and Section 12 CPC and consequently rejected the plaints. Feeling aggrieved, the present appeals have been filed.
6. Learned counsel for the appellant pointed out that prior to filing of the suits before the Commercial Court, Kanpur Nagar, the appellant had instituted proceedings being Original Suit No. 15 of 2023 and Original Suit No. 16 of 2023 before the Court of District Judge, Allahabad wherein reference was made to the advertisements issued by the defendant-respondents and published in different newspapers. The suits filed at Allahabad were withdrawn on 21.03.2024. Whereafter, for a different cause of action, which accrued at Kanpur on account of actual sales effected through online marketplace, the suits were filed at Kanpur Nagar.
7. Submissions have been made that the suits at Allahabad pertained to the infringement which took place by publishing advertisements in newspapers 'Dainik Jagaran' and 'Amar Ujala' dated 26.09.2022, 02.10.2022, 21.10.2022 and 22.10.2022 whereas the suits at Kanpur Nagar pertain to continuous infringement at Kanpur by effecting delivery of products in the month of April 2024, besides the fact that the infringing trade mark/trade name is different in the suits filed at Allahabad from the suits filed at Kanpur Nagar.
8. Further submissions have been made that based on the plea raised in the applications under Order VII Rule 11 CPC, the plaints could not have been rejected as though provisions of Order II Rule 2 CPC and Order XXIII Rule 1(4) CPC have been invoked for rejecting the plaints, the previously filed plaints were not even on record of the Commercial Court and therefore, the applicability of the said provisions could not have been adjudicated by the Commercial Court in the present cases and on that count, the orders impugned deserve to be quashed and set aside.
9. Further submissions have been made that without seeking written statement and evidence in support thereof, the plaints in the present circumstances could not have been rejected and on that count also, the orders impugned deserve to be quashed and set aside.
10. Learned counsel for the respondents vehemently opposed the submissions. Submissions have been made that a suit was filed between the parties at the Courts in Delhi in the year 2008 in which injunction was granted on 02.02.2009 against the respondents. Application filed under Order VII Rules 10 and 10-A CPC was allowed on 24.09.2016 and the suit was ordered to be returned back, however, a restraint order was passed against which appeal was filed before the Delhi High Court which came to be decided on 02.11.2022 wherein order passed under Order VII Rule 10 CPC was upheld and rest of the findings and directions were set aside.
11. Based on the said return of plaint, suits were filed before the Court at Allahabad claiming jurisdiction of the Courts at Allahabad, however, during pendency of the said suits, applications were filed seeking to 'not press' the said suits and after the orders were passed by the Court at Allahabad dismissing the suits as not pressed without granting any liberty to file fresh suits, the present suits were filed before the Commercial Court at Kanpur Nagar, which had no jurisdiction and that as the cause of action was same which is apparent, the filing of the suits at Kanpur Nagar was barred by provisions of Order II Rule 2 CPC, Order XXIII Rule 1(4) CPC read with Section 12 CPC and therefore, the Commercial Court was justified in rejecting the plaints as barred by law.
12. Submissions were made that a bare look at the orders passed by the Court at Allahabad reveals that no liberty was granted to file fresh suits while permitting disposal of the suits as 'not pressed' and therefore, the filing of the subsequent suits on the same cause of action is ex facie barred by law and as such, the rejection of the plaints cannot be faulted and consequently, the appeals deserve dismissal.
13. In the alternative and without prejudice, it was submitted that in case the Court finds that the matter is required to be considered by the Court after filing written statement/evidence being led, on the aspects raised pertaining to maintainability of the suits, the Commercial Court be directed to frame preliminary issues and decide the same.
14. We have considered the submissions made by counsel for the parties and have perused the material available on record.
15. Parameters for deciding application under Order VII Rule 11(d) CPC are well established, whereunder a plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law.
16. Hon'ble Supreme Court in Saleem Bhai Vs. State of Maharashtra: (2003) 1 SCC 557, while considering Order VII Rule 11 CPC, laid down as under:-
"9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court..."
17. From the above, it is clear that in order to consider application under Order VII Rule 11 CPC, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments.
18. Again, in Srihari Hanumandas Totala Vs. Hemant Vithal Kamat : (2021) 9 SCC 99, in a case, where the issue pertained to a suit being barred by res judicata, Hon'ble Supreme Court has laid down the following guiding principles for deciding an application under Order VII Rule 11 CPC:-
"25.1. To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to.
25.2. The defence made by the defendant in the suit must not be considered while deciding the merits of the application.
25.3. To determine whether a suit is barred by res judicata, it is necessary that (i) the "previous suit" is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit.
25.4. Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the "previous suit", such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be perused."
19. Provisions of Order II Rule 2 CPC and Order XXIII Rule 1(3) and (4) CPC read as under:-
"2. Suit to include the whole claim.-- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.--A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.--For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
.... .... ....
"ORDER XXIII
WITHDRAWAL AND ADJUSTMENT OF SUITS
1. Withdrawal of suit or abandonment of part of claim. - (1) .... .... ....
(3) Where the Court is satisfied ,-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff--
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),
he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."
20. A perusal of the above provisions reveal that under sub-rule (2) of Rule 2 of Order II CPC, where a plaintiff omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished and under sub-rule (3) where a person entitled to more than one relief in respect of the same cause of action omits any relief, except with the leave of the Court, he shall not afterwards sue any relief so omitted.
21. Order XXIII CPC, which inter alia deals with withdrawal of suits, under sub-rule (4) of Rule 1 provides that where a plaintiff withdraws from the suit or part of the claim without the permission to institute a fresh suit in respect of the subject matter of such suit, he shall be precluded from instituting any fresh suit in respect of such subject matter.
22. It would be seen that for invoking provisions of Order II Rule 2 CPC or Order XXIII Rule 1(4) CPC, the Court is required to arrive at a specific finding that the cause of action in the previous suit and the suit before it was the same. Unless there is similarity of the cause of action in the previously instituted/withdrawn suit and the suit before the Court, the provisions would have no application.
23. In the present case, as is evident from the material produced on record, the plaintiff-appellant, along with the plaints, had produced the application seeking withdrawal of the suits and the orders passed thereon, and copies of the plaints were not before the Commercial Court. Unless the plaints, which were filed before the Court at Allahabad, were before the Commercial Court, it could not have, based on the contentions raised by the respondents, recorded a finding regarding the suits being barred under Order II Rule 2 CPC and Order XXIII Rule 1(4) CPC as the Court was required to compare both the plaints and record a specific finding in this regard.
24. As laid down in the case of Srihari Hanumandas Totala (supra), once consideration of pleadings are required for adjudicating the plea of suit being barred, such a plea will be beyond the scope of Order VII Rule 11(d) CPC, which judgment applies to the present case on all fours.
25. So far as the plaints in the present cases are concerned, based on the plaints, it cannot be said that the suits are barred.
26. In view thereof, we are firmly of the opinion that the Commercial Court, Kanpur Nagar fell in error in exercising the jurisdiction under Order VII Rule 11(d) CPC in rejecting the plaints as barred by law.
27. So far as the alternative prayer made by learned counsel for the respondents in relation to the framing of preliminary issue etc. is concerned, the said jurisdiction lies with the Commercial Court and in the circumstances of a given case, if the conditions, as enumerated in Order XIV Rule 2 CPC are present, it is always open for the Commercial Court to determine the issue relating to jurisdiction as a preliminary issue.
28. Consequently, the appeals are allowed. The orders dated 25.02.2025 passed by the Commercial Court, Kanpur Nagar in all the four suits are set aside. The matters are remanded back to the Commercial Court to proceed with the suits in accordance with law.
29. Looking to the nature of the suits, it is expected of the Commercial Court to deal with the same with expedition.
30. No order as to costs.
Order Date :- 07-07-2025
AHA
(Kshitij Shailendra, J) (Arun Bhansali, CJ)
