Delhi High Court
Dr. N. G. Dev vs M/S Anand Sons & Anr. on 2 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 41/2008 & CM No. 1324/2008
% 2st August, 2017
DR. N. G. DEV ..... Appellant
Through: Mr. S. K. Bansal and Mr. Vinay
Kumar Shukla, Advocate
versus
M/s ANAND SONS & ANR. ..... Respondents
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Plaintiff in the suit filed for passing off, infringement of
copyright, injunction etc impugns the order of the Trial Court dated
07.12.2007 whereby the trial court has dismissed two applications
which were filed by the appellant/plaintiff. First application filed by
the appellant/plaintiff was under Order XXII Rule 10 CPC for
substitution of the existing appellant/plaintiff Dr. N. G. Dev by a
company "M/s. Dev Pharmacy Private Limited". Second application
was filed under Order VI Rule 17 CPC for adding paragraphs in the
plaint to show that the trademark of the present appellant/plaintiff has
now been registered with the Registrar of Trademarks and also that the
new company, which is sought to be substituted as a plaintiff, has also
obtained registration of the trademark. The trademark in question is
„PAURUSH JIWAN‟. The court below has dismissed the applications,
inter alia, by observing that a person, being a legal entity/company,
can be added as a plaintiff only if the said new plaintiff/legal
entity/company agrees to be added as a plaintiff and that there is no
document on record, and no pleading on record by means of the
subject applications, that, there exists consent of M/s. Dev Pharmacy
Private Limited to be substituted as a plaintiff in place of the present
appellant/plaintiff/Dr. N. G. Dev or there exists authorization to the
present appellant/plaintiff to add/substitute M/s. Dev Pharmacy
Private Limited. The trial court has dismissed the second application
filed under Order VI Rule 17 CPC by observing that once the
application under Order XXII Rule 10 CPC is dismissed, hence the
application under Order VI Rule 17 CPC will also stand dismissed.
2. As regards the observation of the trial court that a person,
being a legal entity/company, cannot be added as a plaintiff in the suit,
without its consent, there cannot be any quibble. Surely, if M/s. Dev
Pharmacy Private Limited wants to be substituted as a plaintiff in the
suit in place of the present appellant/plaintiff, then along with the
application either the Board of Directors‟ Resolution of M/s. Dev
Pharmacy Private Limited ought to have been filed giving consent to
M/s. Dev Pharmacy Private Limited being substituted/added as a
plaintiff in the suit or the application filed under Order XXII Rule 10
CPC had to be supported by a power of attorney executed by M/s. Dev
Pharmacy Private Limited in favour of the present appellant/plaintiff
that the present appellant/plaintiff is duly authorized to act on behalf
of the company M/s. Dev Pharmacy Private Limited for such company
to be added/substituted as a plaintiff in the suit. Admittedly, however,
since this is not done, the impugned order has to stand, subject, of
course, to the liberty which is given to the appellant/plaintiff in terms
of the present order.
3. So far as the application under Order VI Rule 17 CPC
filed by the appellant/plaintiff to add the factum of registration of
appellant/plaintiff and the company of the trademark „PAURUSH
JIWAN‟ with the Registrar of Trademarks is concerned, since the
admitted case of the appellant/plaintiff is that an assignment has taken
place of the appellant/plaintiff of his rights in the trademark
„PAURUSH JIWAN‟ in favour of M/s. Dev Pharmacy Private
Limited, in terms of an Assignment Deed dated 24.04.2006 any
registration which is obtained by the appellant/plaintiff if the same is a
subject matter of the Deed of Assignment dated 24.04.2006, then, that
factual aspect can be added in the suit, subject to the entitlement of the
existing plaintiff or the new plaintiff for joinder of causes of action
inasmuch as the suit at present is not a suit for infringement of
trademark and the suit is only for a suit for passing off on the basis of
an unregistered trademark. Also, any addition of facts qua a new
plaintiff, and which are not the subject matter of Deed of Assignment
dated 24.04.2006, once again, will become an issue of joinder of
causes of action subject to entitlement of joinder of causes of action in
accordance with law, especially Order I Rule 3 and Order II Rule 3
CPC.
4.(i) In view of the above, though no fault can be found with
the impugned judgment dismissing the application of the
appellant/plaintiff under Order XXII Rule 10 CPC, however, liberty is
given to the appellant/plaintiff and/or to M/s. Dev Pharmacy Private
Limited to be added or substituted as a plaintiff in the suit in terms of
Order XXII Rule 10 CPC and the ratio of the judgment of the
Supreme Court in the case of Dhurandhar Prasad Singh vs. Jai
Prakash University and Others, AIR 2001 SC 2552 or any other
judgment or law which is applicable subject to the condition that the
application now allowed to be filed under Order XXII Rule 10 CPC
will be filed by its being accompanied with due authorization by M/s.
Dev Pharmacy Private Limited to file such an application. An
application under Order VI Rule 17 CPC can only be filed in terms of
and subject to the observations made in para 3 above. Also, the
appellant/applicant/M/s. Dev Pharmacy Private Limited can file the
application under Order VI Rule 17 CPC to add the factum of
subsequent events of obtaining of registration of the trademark
„PAURUSH JIWAN‟ in favour of M/s. Dev Pharmacy Private Limited
and/or the present appellant/plaintiff if that registration is subject
matter of assignment in terms of the Assignment Deed dated
24.04.2006 executed by the present appellant/plaintiff in favour of
M/s. Dev Pharmacy Private Limited.
(ii) Thus while the impugned order dated 07.12.2007 is sustained
and liberty granted to the appellant/plaintiff to file applications under
Order XXII Rule 10 CPC and Order VI Rule 17 CPC to include all the
aspects which are subject of the applications which are already filed
under Order XXII Rule 10 CPC and Order VI Rule 17 CPC and
subject of course to the necessary authorization being filed by M/s.
Dev Pharmacy Private Limited for being added/substituted as a party
to the suit and due authorization in favour of the applicant who files
the application for adding/substituting M/s. Dev Pharmacy Private
Limited as a plaintiff in the suit.
5. The appeal is accordingly disposed of with the aforesaid
liberty. Trial court record be sent back. In case there is no date fixed in
the suit in the trial court, then the appellant/plaintiff is at liberty to file an
appropriate application before the concerned District and Sessions Judge
for marking of the suit to a competent court for disposal in accordance
with law. Applications when filed under Order XXII Rule 10 CPC and
under Order VI Rule 17 CPC will be disposed of by the trial court in
accordance with law. The trial court before proceeding with the suit, will
issue fresh notices to the defendants in the suit.
AUGUST 02, 2017/ SR VALMIKI J. MEHTA, J
