Delhi High Court

M/S. Lachhman Das Behari Lal vs Ghanshyam Das Jetha Nand & Ors. on 11 September, 2009

Author: Manmohan Singh

..*                  HIGH COURT OF DELHI : NEW DELHI

+        I.A. Nos. 8325/2008 and 8327/2008 in CS (OS) No. 1205/2006

                                        Judgment reserved on : 4th May, 2009

                                        Pronounced on :      11th September, 2009

M/s Lachhman Das Behari Lal                         ...Plaintiff
                    Through             : Mr. Sudershan Rajan, Adv.

                                        Vs.

Ghanshyam Das Jetha Nand & Ors.             .....Defendants
                     Through    : Mr. Anil Goel, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1.

Whether the Reporters of local papers may be allowed to see the judgment? No

2. To be referred to Reporter or not? No

3. Whether the judgment should be reported No in the Digest?

MANMOHAN SINGH, J

1. By this order, I shall dispose of the three applications being I.A.

No. 8325/2008 under Order 9 Rule 13 for setting aside the judgment and

decree dated 6th September, 2007; I.A. No. 8326/2008 under Section 5 of

the Limitation Act for condonation of delay in filing the application under

Order 9 Rule 13 and I.A. No. 8327/2008 under Section 151 CPC for stay

of the operation of judgment and decree dated 6th September, 2007.

2. The plaintiff has filed the present suit for permanent injunction

to restrain the defendants from infringing the plaintiff‟s registered

trademark, copyright, passing off and for rendition of accounts. By order

dated 16th May, 2007 the defendants were proceeded ex parte. The

affidavit of Mr. Manohar Lal Wadhwa, a partner in the plaintiff firm, was

produced as evidence in support of the claim made by the plaintiff. The

suit was decreed by the judgment and decree dated 6th September, 2007.

The defendants have filed an application under Order 9 Rule 13 r/w

Section 151 CPC on 11th July, 2008 to set aside the judgment and decree

dated 6th September, 2007.

3. The main contentions of the defendant nos. 1 and 2 who have

filed the application for setting aside the ex parte decree are: (i) that the

defendant nos. 1 and 2 never received the summons/notice in this case and

they were not aware about the pendency of the present suit; (ii) the

defendant no. 1, on 12th January, 2008, after release from the judicial

custody/jail came to know through his nephew Shri Mohnish Moorjani that

an ex parte judgment and decree had been passed by this court against the

defendant nos. 1 and 2 who came to know of the said fact on 22nd

November, 2007 when Mr. Sushil Aggarwal, Advocate on behalf of the

plaintiff appeared before the High Court of M.P. (Jabalpur Bench) and

objected to the grant of bail to defendant no. 1 in the criminal revision case

bearing no. 2107/2007 arising out of the said criminal case, on the ground

that a decree for the sum of Rs. 50 lakh has been passed against the

defendants by this court.

4. It is mentioned that the defendant no. 1 is a permanent resident

of Jabalpur and is a patient of sugar and blood pressure due to which he

could not appoint an Advocate in Delhi immediately and he found the

present advocate only on 27th January, 2008 after great efforts. After

inspection being conducted on 12th February, 2008 the defendants came to

know that service of the summons in the suit was effected on the

defendants by way of publication in the newspaper „Navbharat‟ dated 13 th

March, 2007. It is stated that the defendant no. 1 was never served

personally with the summons of the said suit.

5. It is stated that the defendant no. 1 came to Delhi on 8 th March,

2008 and after narration of the facts by the defendant no. 1, the counsel

took 2-3 days time for preparing the present application for setting aside

the ex parte judgment and decree dated 6th September, 2007. It is stated

that the non-appearance of the defendant no.1 on any date of hearing was

due to aforesaid reasons only which are bonafide, unintentional and

beyond his control. Therefore, the ex parte decree should be set aside

otherwise the defendant no. 1 will suffer irreparable loss and injury and

would be forced to pay the amount to which he is not liable to pay to the

plaintiff.

6. Along with the application under Order 9 Rule 13, the

defendants have also filed an application under Section 5 of the Limitation

Act with the prayer that the delay in filing of the application under Order 9

Rule 13 be condoned and opportunity be given to the defendants to contest

the case on merits. The grounds stated in the application under Section 5

of the Limitation Act are almost the same as those mentioned in the

application filed under Order 9 Rule 13.

7. The application is strongly opposed by the plaintiff in his reply.

It is stated in the reply that the defendants were duly served and that they

have not shown any good cause or reason for setting aside the ex parte

decree against the defendants. In para nos. 5 to 7 of the reply, the plaintiff

has given details of the various cases filed by the plaintiff against the

defendants wherein interim orders have been passed. In spite of the orders

of this court, the defendants continue to violate them from time to time and

many criminal as well as contempt petitions are pending against the

defendants. It is stated that the defendant is a habitual offender and has no

respect for the orders passed by this court and in view thereof, the conduct

of the defendants also disentitles them to the relief of setting aside the ex

parte decree.

8. In para 2 of the application being I.A. No. 8325/2008, the

defendants have stated that till 15th of February, 2005 they were working

for gain at LIG-671, Katangi Road, M.T. Nagar, Jabalpur (M.P.) and then

they shifted to Plot no. 12, Katangi Road, Jabalpur, M.P. It is stated in the

reply that the said statement made by the defendants is false as is apparent

from the Trade Mark office as well as Excise office. That there is a record

of such cases shows that the defendant is giving false information and is

giving wrong details about the changing of his office premises. In fact,

there has been no such change of premises as alleged but the defendants

are trying to create evidence of change of its premises while it is not so. It

is stated that while filing the application for registration of the trademark

bearing no. 1274106 dated 22nd March, 2004, the address given by the

defendant no. 1 was as follows:-

"502, Vishwakarma Colony, Opposite Akashvani, Sharda Nagar, Karmeta, Jabalpur........"

9. It is also stated that according to the report of the Central Excise

Department, the defendant no. 1 has obtained on 5th May, 2003, the Central

Excise Registration No. AHYP00392AXM001 with address as 502,

Vishwakarma Colony, Opposite Akashvani, Sharda Nagar, Karmeta,

Jabalpur. According to sub-clause (2) of Clause I of the notification under

Central Excise Rule 9, the central excise licence ought to have been

obtained in the name of Jabalpur Industries, LIG-671, Katangi Road, M.T.

Nagar, Jabalpur-482002 (M.P.) which is contrary to law. It is stated by the

plaintiff in the reply that on 9th July, 2004 the defendant no.1 got the

address changed to LIG-671, Katangi Road, M.T. Nagar, Jabalpur (M.P.)

and similarly, on 22nd February, 2008 the address was again changed by

the defendant no. 1 to Plot No. 12, Katangi Road, By Pass, Jabalpur

(M.P.). It is stated that only on 22nd February, 2008 has the defendant

given the address of Plot No. 12, Katangi Road, By Pass, Jabalpur, M.P. to

the Central Excise Department which clearly establishes that the defendant

continued to operate from LIG-671, Katangi Road, M.T. Nagar, Jabalpur

(M.P.) until 21st February, 2008. The defendant has only changed the

above mentioned address in February, 2008 and has made an excuse in the

application to get the decree set aside.

10. It is also stated in the reply that in spite of the interim orders

passed by this court, the defendant is again violating the decree passed by

this court in the present suit. During the hearing of the applications,

certain packing was shown by learned counsel for the defendant which is

presently used by the defendant but it appears that the present label is

almost the same against which the decree has been passed by this court.

11. As regards the contention of the defendant regarding service of

summons and notice in the case is concerned, it is mentioned that initially

the service was effected on the defendants by registered post at the address

given by him in the infringing packing i.e. LIG-671, Katangi Road, M.T.

Nagar, Jabalpur (M.P.). This address is also given by the defendant with

the Central Excise Department from 9th July, 2004 to 21st February, 2008.

This address was changed by the defendant with the Central Excise

Department to Plot No. 12, Katangi Road, By Pass, Jabalpur only in

February, 2008. Till then, the defendant was operating from the address

LIG-671, Katangi Road, M.T. Nagar, Jabalpur (M.P.) which was given in

the plaint. Thus, the defendant was served at the right address but he was

violating the service of summons and for this reason, the substituted

service was allowed upon him which was effected in „Navbharat‟, Jabalpur

Edition which is a newspaper having wide circulation in the area where the

defendant resides and is also carrying out his work for gain. Further, the

defendants were also served through affixation of summons at their known

address through the District Court, Jabalpur, M.P. Thus, the service of

summons on the defendant is complete as per Order 5 Rule 20 of the Code

of Civil Procedure.

12. It is argued by learned counsel for the plaintiff that even the

learned Single Judge has passed the decree and has observed in the

judgment that since the defendants have chosen not to appear, the evidence

filed on behalf of the plaintiff has gone uncontroverted.

13. It is also argued that even after service of summons was

complete, this court afforded two opportunities to the defendants to enter

appearance. However, the defendants failed to appear despite

opportunities and were rightly proceeded ex parte. It has also been argued

by the plaintiff that the defendant has not shown any sufficient cause for

absence. It is argued that the defendant has averred in the application that

the defendant no. 1 had shifted from LIG-671, Katangi Road, M.T. Nagar,

Jabalpur (M.P.) to Plot no. 12, Katangi Road, Jabalpur, M.P.in the year

2005. However, the same has been proved to be false. It is also argued

that after coming to know about the decree passed by this court, there is

total negligence on the part of the defendant to approach this court and the

defendant has filed the present application with unclean hands by giving

incorrect facts as stated comprehensively in the reply to the application.

14. It is also stated that the defendants have failed to produce any

evidence that the defendant has left the previous address altogether and

there is also no evidence of running the business from the new address. It

is further stated that the explanation given by the defendant about the

change of address is totally false and frivolous as per the following

reasons:-

a) That he has given the said address in his containers/packing.

b) The photocopy of stamp paper filed by the defendant before this

court is manipulated and forged and has been created to obtain

favourable orders from this court.

c) The defendant has himself given the address LIG - 671,

Katangi Road, M.T. Nagar, Jabalpur, M.P. to the Central Excise

Department on 9th July, 2004 which means that he had been in

the above said premises since 9th July, 2004 as per Central

Excise record.

15. Lastly, learned counsel for the plaintiff has argued that there

has been an unexplained delay in filing of the application and the

defendant has to give the explanation of each day in filing the present

application after having the knowledge of the judgment and decree passed

by this court.

16. Considering the facts and circumstances, it is not possible to

decide the issues which have arisen only on the basis of the affidavits filed

by the parties in support of the application and replies to the application

and facts alleged therein without recording the evidence.

17. Therefore, on the pleas and contentions raised in the

applications, the following issues are framed:-

1. Whether there is sufficient cause for setting aside the ex parte judgment and decree passed against the defendant and delay, if any, is liable to be condoned? O-applicant