Dinesh Bastimal Jain (Sole ... vs Nirmal Singh & Anr
2012 Latest Caselaw 156 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Decision : 9th January, 2012

+                           CONT.CAS.(CRL.) 3/2011

       DINESH BASTIMAL JAIN (SOLE PROPRIETORSHIP FIRM)
                                               ..... Petitioner
            Through: Mr.N.K.Kantawala and Mr.Praver Sharma,
                     Advocates.

                                 versus

       NIRMAL SINGH & ANR               ....Respondents
           Through: Mr.S.K.Bansal, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J.

1. Petitioner beseeches this Court to punish the respondents for having committed criminal contempt by misusing the process of the law. The relevant facts to be noted are that the respondents filed a suit on the Original Side of this Court which was registered as CS(OS) No.672/2004 praying therein that the defendant M/s.Pioneer Products, the sole proprietary firm of the petitioner be restrained from selling goods under the trademark 'VOV' or any other mark deceptively similar thereto. As per the averments made in the plaint, the respondents claimed proprietary interest in the trademark 'VO5'.

2. Petitioner alleges that vide order dated 27.08.2010, a learned Single Judge of this Court held that Courts at Delhi have no jurisdiction to entertain the plaint, on account of the plaintiffs of the suit not pleading carrying on business through

self or through a distributor at Delhi. While returning the plaint it was directed that the same should be filed in the Court of the Principal Civil Judge, Thane. It is pleaded by the petitioner that instead of filing the plaint in the Court of the Principal Civil Judge, Thane, the respondents, abused the process of law, by filing a suit against the petitioner claiming same relief (as was claimed in CS(OS) No.672/2004), which subsequent suit was registered as Suit No.1389/2010 in the Court of the learned District Judge, (South), Delhi. It is pleaded that without disclosing the earlier suit filed in the year 2004 and the order passed by the Court therein, the respondents obtained an ex-parte ad-interim injunction against the petitioner. Claiming the filing of the second suit to be not only an abuse of the process of the law; relying upon a decision of a Division Bench of this Court reported as 71 (1998) DLT 1 Satish Khosla vs. M/s.Eli Lilly Ranbaxy Ltd. & Anr., it is pleaded that the filing of the second suit amounts to the commission of a criminal contempt. Prayer made is to punish the respondents and vacate the ex-parte injunction obtained by the respondents.

3. Before dealing with the defence raised by the respondents, it assumes importance to note that the petitioner sought the injunction granted to be vacated by filing FAO No.344/2011, which was dismissed vide order dated 08.08.2011 by a learned Single Judge of this Court holding that the appropriate remedy of the petitioner is to file an application under Order 39 Rule 4 of the Code of Civil Procedure and pray therein that the ex-parte ad-interim injunction granted be vacated. The petitioner did so and filed a written statement taking such defence as was available and

also sought vacation of the ex-parte ad-interim injunction granted against it, but failed in its endeavour, inasmuch as vide order dated 01.10.2011, the learned Additional District Judge-I confirmed the ex-parte ad-interim injunction and did not return the plaint. The said order passed by the learned Trial Judge has been challenged by the petitioner by way of FAO No.480/2011 and the said appeal is pending.

4. Now the defence raised by the respondents to the contempt petition.

5. It is pleaded; that as held by the Supreme Court in the decision reported as 1997 PTC (17) 98 Bengal Waterproof Ltd. vs. Bombay Waterproof Mfg. Co., the cause of action pertaining to infringement of plaintiff's trademark is a continuous cause of action and reoccurs each time the infringements occurs. Thus, it is pleaded that the respondents were entitled to file a fresh suit and need not have pursued their remedy by filing the plaint which was returned to be re- filed in the Court of the Principal Civil Judge, Thane. It is pleaded that the respondents filed the second suit after appointing M/s.J.L.Morison (India) Ltd. as its distributor having office at Flat No.404, Rohit House, 3 Tolstoy Marg, New Delhi through whom goods of the respondents were sold at Delhi, and since earlier plaint was rejected on the issue of territorial jurisdiction on account of the respondents not pleading carrying on business at Delhi through self or through a distributor, necessary jurisdiction was conferred upon Courts at Delhi to try the suit. It is the stand of the respondents that in para 20 of the plaint it was disclosed that the plaintiffs had earlier filed CS(OS) No.672/2004 against the defendants before the Delhi High Court which had returned the plaint for want of

territorial jurisdiction vide order dated 27.08.2010. In a nutshell, the defence is that the respondents did not abuse the process of the law and acted within their right to file the second suit in view of the decision of the Supreme Court in Bengal Waterproof Ltd.'s case (supra) and that in the plaint the factum of filing of the previous suit and return of the plaint was disclosed.

6. At the hearing of the petition, learned counsel for the petitioner conceded that in para 20 of the second plaint filed, disclosure of the previous suit and return of the plaint has been made. Learned counsel also conceded that in view of the decision of the Supreme Court in Bengal Waterproof Ltd.'s case (supra), the respondents could have filed the second suit and need not have pursued the remedy available in terms of the order dated 27.08.2010 when the plaint of CS(OS) No.672/2004 was returned. But, learned counsel highlighted that the disclosure of filing the earlier suit was by way of a whisper and hence not audible to the Court. Learned counsel urged that the pleadings in the second suit should have been loud and clear, in that, it should have been pleaded in the plaint that the reason for return of the plaint was as per the order dated 27.08.2010 and that copy of the said order should have been filed as also the pleadings in the earlier suit. This, learned counsel highlighted, was the minimum requirement to be complied with, as per the law declared by the Division Bench of this Court in Satish Khosla's case (supra).

7. The issue of extent of disclosure in the pleadings is always a vexed issue for the reason what is relevant for 'A' may be trivial for 'B' and vice-versa. But, a minimum standard of uniform application would be found in various decisions,

which we do not intend to catalog for the reason we find that case law is becoming legion and it would be advisable that on the facts of each case, settled legal principles are noted and then applied.

8. Where, with respect to a recurring cause of action, a second suit is filed, in our opinion, sufficient compliance with the law requiring truthful disclosure in the pleadings would be satisfied if it is disclosed to the Court that with respect to the second action, an earlier proceeding was initiated and the result thereof stated. It would not be necessary to file the pleadings of the earlier suit for the reason, in a case of a recurring cause of action it would be obvious that the pleadings in the earlier suit would be pari materia with the second. In the instant case, it has been truthfully disclosed in the plaint filed before the learned District Judge, Delhi, that the earlier plaint filed was returned. Any person with basic legal knowledge would understand that as against rejection of a plaint, a return of a plaint is always on account of the Court having no territorial jurisdiction to entertain the suit. The pleadings in the second suit filed disclosed cause of action at Delhi; i.e. it has been pleaded in para 31 of the plaint, with reference to M/s.J.L.Morison (India) Ltd. being appointed as a distributor by the respondents and said company carrying on business from Flat No.404, Rohit House, 3 Tolstoy Marg, New Delhi.

9. We thus hold that the respondents have neither abused the process of the law nor have committed criminal contempt of Court by filing the second suit.

10. We simply highlight that while confirming the ex- parte ad-interim injunction, vide order dated 01.10.2011, the

learned Additional District Judge, Delhi has considered the filing of the earlier suit and the plaint being returned and the effect thereof. Since the said order is in challenge in appeal, lest parties are prejudiced in appeal, we refrain from speaking on the subject, but would simply highlight that suppression of a fact is a relevant ground to decline the equitable relief of injunction, and the learned Trial Judge has considered said aspect and yet confirmed the ex-parte ad-interim injunction granted. We clarify that the Court of Competent Jurisdiction has not found it to be a prima-facie case of suppression. We speak no more and let the Appellate Court do the rest while deciding FAO No.480/2011.

11. Before concluding we highlight that to constitute the offence of having committed criminal contempt of a Court by abusing its process, the intention of parties is relevant. On the subject matter of pleadings, parties are not expected to know the technical rules of pleading and are expected to understand the pleadings which they sign by instinct and commonsense. Commonsense guided the respondents that they should disclose in the second plaint the filing of the earlier suit and return of the plaint, which every reasonable person would normally do, when on a recurring cause of action a subsequent suit is filed. Thereafter, on the span of the sweep of the pleadings, parties are guided by legal advice. In the instant case, we do not find any such deliberate intention on the part of the respondents to restrict the sweep of the span of the pleadings in the second plaint. That apart, as observed by the Supreme Court in the decision reported as AIR 1980 SC 946 The Advocate General, State of Bihar vs. M/s.Madhya Pradesh Khair Industries & Anr., every abuse of

the process of the Court may not necessarily amount to contempt of Court; abuse of the process of the Court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice is a contempt of Court. In cases of minor abuses of the process of the Court, the same have to be dealt with suitably between the parties by striking out pleadings or in some other manner for example to vacate injunctions granted. It is only when it is found that a course of conduct abuses and makes a mockery of the judicial process and extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice that the power of contempt, which otherwise has to be used sparingly, should be exercised. The reason is that the power of contempt is to vindicate the majesty of the law in its active manifestation against obstruction and outrage.

12. The petition is dismissed.

13. Parties to bear their own costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE JANUARY 09, 2012 dk