Delhi High Court
Sant Ram Mangat Ram Jewellers vs Pawan Kumar Jain on 17 January, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.95/2010
% 17th January, 2012
SANT RAM MANGAT RAM JEWELLERS ..... Appellant
Through: Ms. Sumita Kapil, Advocate.
versus
PAWAN KUMAR JAIN ..... Respondent
Through: Mr. M.K. Miglani and Mr. Kapil
Kumar Giri, Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal (RFA) filed under
Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned
judgment of the trial Court dated 3.11.2009 decreeing the suit of the
respondent / plaintiff against the appellant / defendant, a sole proprietorship
concern of Sh. Girish Kumar Jain by restraining the appellant / defendant
from using the trademark "Sant Ram Mangat Ram Jain Jewellers" or any
other mark similar thereto.
2. This appeal in my opinion, can be disposed of on a limited issue of res
RFA No.95/2010 Page 1 of 5
judicata / estoppel by judgment. This is because the present respondent /
plaintiff had filed a suit in the competent civil court at Chandigarh seeking to
restrain the defendants in that suit, one such defendant being the present
appellant, from using the trademark "Sant Ram Mangat Ram Jain Jewellers".
This suit was disposed of on the statement being made by the counsel for the
defendants in that suit that the defendants will not run their business in the
name of M/s. Sant Ram Mangat Ram Jain or in any other name similar
thereto. The trial court has dealt with this aspect in para 31 of the impugned
judgment as under:
"31. Ex.P-71 is the certified copy of order dated 30.09.1991
passed by the Court of Shri M. S. Lobana, Additional District
Judge, Chandigarh on injunction application u/o 39 rules 1 & 2
CPC filed by the present plaintiff Pawan Kumar Jain and his firm
SANT RAM MANGAT RAM JAIN JEWELLERS through its
sole proprietor Pawan Kumar Jain against M/s Dev Brothers,
Dev Kumar, Partner of M/s Mangat Ram Jain & Sons Jewellers,
Girish Kumar, Partner of M/s Mangat Ram Jain & Sons
Jewellers, Raj Rani and Mrs. Prabha Rani, both partners of M/s
Mangat Ram Jain & sons Jewellers and M/s Mangat Ram Jain &
Sons Jewellers, Chandigarh and injunction application of the
plaintiff was allowed and the defendants were restrained from
passing off the plaintiff's goods in the name and style of M/s
Mangat Ram Jain & Sons Jewellers or in any other name similar
to the plaintiff's trade name and mark M/s Sant Ram Mangat
Ram Jain Jewellers and the defendants were also restrained to
use, publish, advertise any such material bearing mark of M/s
Sant Ram Mangat Ram Jain Jewellers or any other mark similar
to the plaintiff's trade name or mark M/s Sant Ram Mangat Ram
Jain Jewellers till the final disposal of the suit. Girish Kumar,
defendant no.3 in the said civil suit filed by the plaintiff is
admittedly the surviving proprietor of the defendant firm herein.
Ex.P-72 is the certified copy of the statement of Shri R.S. Walia,
RFA No.95/2010 Page 2 of 5
advocate for the respondent, that of the Pawan Kumar Jain,
plaintiff and final order passed by the Court of Additional
District Judge, Chandigarh dated 25.03.1995 in that civil suit
reflected on one sheet of paper reads as under :-
"Statement of Shri R.S. Walia, counsel for the
respondent.
The respondent shall not run their business in the
name and style of M/s Sant Ram Mangat Ram Jain or in
any other name similar thereto.
RO&AC
Sd/-
Sd/-
ADJ/25.3.1995"
Statement of Shri Pawan Kumar Jain, plaintiff, on S.A.
In view of the statement of counsel for the
respondent Mr. Walia and the assurance given by him, I
withdraw this suit.
RO&AC
Sd/- 25/3/95
Sd/-
ADJ/25.3.1995"
Present : Plaintiff with Sh. M. Mittal Adv.
Sh. RS Walia for the respondent.
In view of the statement of counsel for the
respondent Mr. Walia and the plaintiff which shall form a
part of this order, this suit is hereby dismissed as
withdrawn with no order as to costs.
Announced : 25.3.1995
Sd/-
Additional District Judge, Chandigarh"
It is worthwhile to note that when above said statements were
made and order was passed on 25.3.1995 by Court of Additional
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District Judge, Chandigarh in above said case, the plaintiff had
already instituted the present suit on 28.08.1992 against the
defendant having Girish Kumar as one of the partners who
ultimately became the sole proprietor of the defendant firm
during the pendency of this suit (31.12.2003 Ex. DW1/2) and he
(Girish Kumar) has been defendant no.3 in the said suit filed at
Chandigarh by the plaintiff."
3. Admittedly, this order dated 25.3.1995, and the statement made on
behalf of the appellant who was one of the defendants in the suit before the
court of ADJ at Chandigarh, has never till date been challenged and has
therefore become final. Once the order dated 25.3.1995 has become final, the
same binds the parties.
4. Learned counsel for the appellant argues that the statement was made
by the lawyer without any instructions and during the pendency of the present
suit, and therefore, the statement and the order dated 25.3.1995 cannot be
binding upon the appellant. I am afraid that the submission as made by the
learned counsel for the appellant is misplaced inasmuch as the only way to
have corrected the order and the statement dated 25.3.1995 recorded by the
court of ADJ at Chandigarh was to move the same court to have the statement
/ order corrected, and which was not done. That having not been done, the
matter must necessarily rest there. Benefit can be taken in this regard of
Explanation 1 to Section 11 CPC which provides that if there are two suits
which are pending between the parties in which there are common issues,
even if a later suit is decided prior to the earlier suit, then the decision in the
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later suit will operate as res judicata for the earlier suit. Therefore, even if the
present suit was pending, it cannot mean that the pendency of the suit in any
manner will prevent finality of the statement and the order dated 25.3.1995
recorded by the court of ADJ at Chandigarh.
5. So far as the contention of the appellant that there is a fraud upon the
appellant, even if that be so, the challenge to an action of fraud, has
necessarily to be brought in a court of law, and if not brought within the
necessary period of limitation, the decision alleged to be vitiated by fraud
achieves finality. Of course, I am making this observation assuming that the
appellant has been defrauded as alleged by the counsel for the appellant. I am
not however holding that there was in fact a fraud played upon the appellant,
and as alleged by the learned counsel for the appellant.
6. Accordingly, the present appeal is without any merit and is accordingly
dismissed, leaving the parties to bear their own costs.
VALMIKI J. MEHTA, J.
JANUARY 17, 2012
dk
