Delhi High Court
Christian Louboutin Sas vs Abubaker & Ors. on 11 April, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
7.
+ RFA (OS)(COMM) 13/2018 & CM 29064/2018
CHRISTIAN LOUBOUTIN SAS ..... Appellant
Through: Mr Sudhir Chandra, Senior Advocate
with Mr Pravin Anand, Mr Dhruv
Anand, Ms Udita Patro and Mr
Nischay Mall, Advocates.
versus
ABUBAKER & ORS. .... Respondents
Through: Mr Sunil Fernandes and Ms Nupur
Kumar, Advocates.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE I.S.MEHTA
ORDER
% 11.04.2019
Dr. S. Muralidhar, J.:
1. The present appeal is directed against the judgment dated 25 th May, 2018
passed by the learned Single Judge, dismissing the Appellant‟s suit being CS
(Comm) No. 890 of 2018 at the very first hearing of the suit without there
being any summons issued to the Respondents/Defendants.
2. Admit. With the consent of counsel for the parties, the appeal is heard
finally.
Background
3. The aforementioned commercial suit was filed by the Appellant
(Plaintiff), a company duly incorporated under the existing laws of France,
having its registered office at Paris against the Defendants who are located
in Mumbai. The suit was filed for a permanent injunction to restrain the
Defendants from infringing the Plaintiff‟s trademark, passing off, unfair
competition, dilution and tarnishment, apart from damages, rendition of
accounts of profits and delivery up etc.
4. According to the Plaintiff, when it conducted a market survey in early
April, 2018 it learnt of the Defendants‟ use of the Plaintiff‟s „RED SOLE‟
trademark on ladies shoes being sold by the Defendants. Relying on the
report of a private investigator who visited the premises of the Defendants,
the Plaintiff claimed that the Defendants were engaged in counterfeiting
activities by selling shoes that bore the Plaintiff‟s well-known trademark
„RED SOLE‟.
5. In the plaint, it was explained that the Plaintiff‟s „RED SOLE‟ trademark
has been registered in Clause 25 with No. 1922048 (with an illustration of
an outsole of a shoe, which is not reproduced here) in respect of the shoes,
except orthopaedic footwear, with the sole condition and disclaimer that "the
mark shall be limited to the colour Red as shown in the representation on the
Form of the application (Pantone No. l8.1663TP)". The Plaintiff has
explained that the aforementioned „RED SOLE‟ trademark is in fact a
device mark wherein a specific tone of red colour (Pantone No. l8.1663TP)
is applied to the outsole of a shoe and "is unique in its own accord and
became known in the world of fashion only after being introduced by the
Plaintiff". It is further averred that "the trademark, being an innovation of
the Plaintiff, is used and known only in relation to the Plaintiff and goods of
the Plaintiff only". The claim of the Plaintiff is that "due to its uniqueness
and since the said trademark is the central and quintessential element of the
goods of the Plaintiff, the Plaintiff considers this intellectual property is
incredibly valuable and has expended a significant amount of resources on
securing registrations and protecting the 'RED SOLE' trademark". The
further claim is that the „RED SOLE‟ trademark is internationally
recognizable and has extensive usage in India; the 'RED SOLE' trademark
enjoys trans-border reputation in India; the goodwill and renown of the
'RED SOLE' trademark has spilled over into India from various countries
and that the consumers are well aware of this goodwill and reputation even
before the Plaintiffs trademark was first formally launched in India.
6. The Plaintiff, along with the above suit, had filed IA No.6898/2018 under
Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 („CPC‟),
seeking an interim injunction to restrain the Defendants inter alia from
manufacturing, selling or offering for sale, footwear including ladies shoes
bearing the 'RED SOLE' trademark. A separate application was filed for the
appointment of a Local Commissioner to visit the shops of the Defendants
and seize the infringing goods.
Impugned order of the Single Judge
7. The suit, along with the aforementioned applications, was first listed for
hearing before the learned Single Judge in the Commercial Division of this
Court on 18th May, 2018. After hearing the submissions of Mr. Sudhir
Chandra, learned Senior counsel for the Plaintiff, the learned Single Judge
reserved orders. Thereafter on 25th May 2018, the learned Single Judge, by a
47 page judgment, dismissed the suit in limine. Among the grounds on
which the suit has been dismissed are:
(i) In view of the „admissions‟ in the plaint, the suit ought to be dismissed in
terms of Order XII Rule 6 CPC.
(ii) Even taking all the averments in the plaint to be „completely correct‟, the
Plaintiff would not be entitled to the reliefs of infringement or passing off or
claim "existence of dilution, unfair competition etc".
(iii) Use of a single colour of the Plaintiff does not qualify the single colour
to be a trademark in view of provisions of Sections 2(m) and 2(zb) of the
Trade Marks Act, 1999 („Act‟).
(iv) "Also Section 30 (2) (a) of the Trade Marks Act, in the facts of the
present case, is a complete disentitlement to the reliefs claimed by the
Plaintiff on the basis of causes of action pleaded in the plaint".
(v) The Plaintiff was also not entitled to the relief of injunction against
passing off because (a) a single colour cannot become a trademark and the
Plaintiff cannot claim rights in one colour as a trademark for exclusive use
of the Plaintiff (b) The issue of passing off would arise only if there was
disentitlement in the defendants to not use the red colour shade in the soles
of the ladies footwear being manufactured and sold by the Defendants, but
there is no such disentitlement for the Defendants because the user by the
defendants of the red colour shade on the footwear is pursuant to the legal
rights conferred upon the defendants under Section 30(2)(a) of the Trade
Marks Act as already discussed above. (c) There would be no deception
since the word mark under which the Plaintiff were selling their goods was
"CHRISTIAN LOUBOUTIN", which was completely different from the
Defendants‟ word mark/trademark „Veronica‟.
(vi) Although the learned Single Judge did not base his conclusions on
Order VII Rule 11 CPC, he nevertheless observed that "the suit does not
contain any legal cause of action because even if whatever are the causes of
action in the plaint are taken as correct, even then such causes of action
taken as true, will not entitle the plaintiff for the reliefs as claimed in the
present suit".
8. Before the learned Single Judge, Mr. Sudhir Chandra, the learned Senior
counsel for the Plaintiff, placed reliance on two judgments of learned Single
Judges of this Court holding that a single colour was entitled to protection as
a trademark. The first was a decision dated 23rd April 2018 in CS (COMM)
738 of 2018 (Deere & Company v. Mr. Malkit Singh). The other was a final
judgment dated 12th December 2017 by another learned Single Judge in CS
(COMM) 714 of 2016 (Christian Louboutin Sas v. Mr. Pawan Kumar) in
which the Plaintiff‟s entitlement to exclusive ownership of the trademark
"RED SOLE‟ in relation to its use on the soles of ladies‟ footwear was
upheld. The learned Single Judge has in the impugned judgment held the
said judgments to have been incorrectly decided and, therefore not binding
or applicable since they did not consider the definition of „trademark‟ under
Section 2 (m) of the Act and also did not notice Section 30 (2) of the Act. In
support of this conclusion the learned Single Judge referred to the decisions
in Padma Sundara Rao (Dead) v. State of Tamil Nadu (2002) 3 SCC 533
and N. Bhargavan Pillai (Dead) by Lrs. v. State of Kerala (2004) 13 SCC
217.
9. The learned Single Judge also distinguished the judgment of the Division
Bench of this Court in Bright Enterprises Private Ltd. v MJ Bizcraft LLP
2017(69) PTC 596 [Del][DB] on the ground that the suit was not being
dismissed under Order XIII-A CPC but with reference to Order XII Rule 6
CPC.
10. This Court has heard the submissions of Mr Sudhir Chandra, learned
Senior Counsel appearing for the Appellant/Plaintiff and Ms Nupur Kumar,
learned counsel appearing for the Respondents/Defendants.
Questions of law
11. The substantial questions of law that arise for determination are as
follows:
(i) Can a commercial suit seeking a permanent injunction against
infringement of a registered trademark be dismissed at the very first hearing
of the suit invoking Order XII Rule 6 CPC? On the facts of the present case,
can it be said that the plaint disclosed „admissions‟ of the Plaintiff that
would disentitle it to the reliefs prayed for in the suit?
(ii) Was the learned Single Judge, in the facts and circumstances of the
present case, without the Defendants entering appearance and raising any
plea, justified in holding that "a single colour cannot under any
circumstances be given the benefit for being used as an exclusively owned
trademark of a manufacturer/seller etc." and that the device mark of the
Plaintiff "could legally not have been got registered as a trademark."?
(iii) Was the learned Single Judge justified in proceeding to dismiss the suit
disagreeing with the correctness of the judgments of two co-ordinate
benches of the High Court on the very issue, without referring the matter to
a larger Bench?
Question (i)
12. The learned Single Judge has in the impugned judgment explained that
he was dismissing the suit in limine "by applying the provisions of Order
XII Rule 6 CPC". Order XII Rule 6 CPC comes into play when there is an
„admission‟ by the Plaintiff of "the truth of the whole or any part of the case
of any other party".
13. Since the suit was being heard for the first time, and with there being no
appearance on behalf of the Defendants, the learned Single Judge was in no
position to know what the case of the „other party‟ i.e. the Defendants, was.
Even otherwise By reading the plaint as a whole, this Court is unable to
agree with the learned Single Judge that there is any „admission‟ by the
Plaintiff of any case that may have been put up by the Defendants.
14. The learned Single Judge took note of the submission of the Senior
counsel for the Plaintiff, based on the decision of the Division Bench of this
Court in Bright Enterprises Private Ltd. v MJ Bizcraft LLP (supra) that:
"this Court should not act as an adversary and the present
commercial suit cannot be dismissed at this stage by holding
that there is no real prospect for the plaintiff to succeed
inasmuch as this plea under Order XIIIA CPC as applicable to
commercial suits can only be taken by the defendants after they
are served in the suit, and the defendants move such an
application under Order XIIIA CPC for dismissing the suit on
the ground that plaintiff has no real prospect to succeed, with a
30 days notice being given in terms of the application under
Order XIIIA CPC to the Plaintiff to contest this issue."
15. However, the learned Single Judge rejected this submission by holding
that:
"The provision of Order XIIIA CPC is an additional provision
applicable to commercial suits filed in commercial courts
thereby entitling dismissal of a suit in spite of existence of
disputed questions of fact on the ground that plaintiff has no
real prospect of succeeding, but existence and applicability of
Order XIIIA CPC does not take away the existence and
application of Order XII Rule 6 CPC. This Court is not hearing
the lack of maintainability of the suit on the ground that the
plaintiff has no "real prospect" of succeeding as stated under
Order XIIIA CPC as applicable to commercial cases and that
trial will be required on disputed questions of fact, but the lack
of maintainability of the suit on the ground of lack of merits
in the suit and for it to be dismissed on the ground that the
suit plaint even if is taken as completely correct with respect
to its averments of the causes of action pleaded i.e. even if
the contents of the plaint are deemed to be correct, yet a
legal cause of action is not made out and consequently this
Court by applying Order XII Rule 6 CPC is entitled to
dismiss the suit at this stage itself without issuing of
summons in the suit. A decree is defined under Section 2(2)
CPC to include a dismissal of a suit and therefore Order XII
Rule 6 CPC can be invoked, by the Court for dismissal of the
suit even without issuing of summons to the defendants."
(emphasis supplied)
16. There appears to be, in the above reasoning, a conceptual confusion as to
what Order XII Rule 6 CPC requires a Court to do. The said provision reads
thus:
"Order XII Rule 6 CPC
Judgment on admissions.
(1) Where admissions of fact have been made either in the pleading or
otherwise, whether orally or in writing, the court may at any stage of
the suit, either on the application of an party or of its own motion and
without waiting for the determination of any other question between
the parties, make such order or give such judgment as it may think fit,
having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree
shall be drawn up in accordance with the judgment and the decree
shall bear the date on which the judgment was pronounced."
17. The word „admissions‟ in Order XII Rule 6 CPC has to be understood
with reference to Order XII Rule 1 CPC which is titled „Notice of
Admission of case‟ and states that "any party to a suit" may give notice in
pleading or writing "that he admits the truth of the whole or any part of the
case of any other party." For invoking Order XII Rule 6 CPC the sine qua
non is a party to a suit admitting "the truth of whole or any part of the case
or any other party". There can be no occasion to invoke Order XII Rule 6
CPC at the first hearing without the „other party‟ appearing in the suit and
putting forth its case. This basic requirement appears to have been
completely lost sight of by the learned Single Judge. His reasoning is
relatable to Order VII Rule 11 CPC, particularly when he observes: "suit
plaint even if is taken as completely correct with respect to its averments of
the causes of action pleaded i.e. even if the contents of the plaint are deemed
to be correct, yet a legal cause of action is not made".
18. This is further reflected in the manner in which the learned Single Judge
dealt with the objection that the Court could not position itself as the
„adversary‟ in the absence of the Defendants as is evident from the
following passage in the impugned judgment:
"I really fail to understand that when the Court put a
proposition to the plaintiff that the suit is not maintainable and
the same is liable to be dismissed inasmuch as even if the
contents of the plaint are taken to be correct still no legal cause
of action is made out for granting of the reliefs claimed in the
suit, then how by putting such a proposition would the Court
become an "adversary". This argument of the plaintiff in my
opinion is a completely misconceived one, and in fact is raised
only as an attempt to get summons issued in the suit, although
the suit plaint does not make out a legal cause of action for
grant of the reliefs prayed. This argument is therefore rejected
that the suit cannot be dismissed without issuing of summons;
because, the Court can do so by invoking and applying Order
XII Rule 6 CPC."
19. In S. M. Asif v. Virendra Kumar Bajaj 2015 (9) SCALE 729, the
Supreme Court explained that:
"The words in Order XII Rule 6 CPC "may" and "make such
order..." show that the power under Order XII Rule 6 CPC is
discretionary and cannot be claimed as a matter of right.
Judgment on admission is not a matter of right and rather is a
matter of discretion of the Court. Where the defendants have
raised objections which go to the root of the case, it would not
be appropriate to exercise the discretion under Order XII Rule
6 CPC. The said rule is an enabling provision which confers
discretion on the Court in delivering a quick judgment on
admission and to the extent of the claim admitted by one of the
parties of his opponent‟s claim."
20.Therefore, in the present case, in the absence of the Defendants entering
appearance and filing their written statement, and/or reply to the application
for interim injunction, the question of the Court determining if there was any
„admission‟ on the part of the Plaintiff of the case of the Defendants on any
aspect, did not arise.
21. Order VII Rule 11 CPC permits a Court even at the first hearing to reject
the paint for failing to disclose a cause of action. Order XII Rule 6 CPC, on
the other hand, does not refer to the failure of the Plaintiff to make out a
„legal cause of action‟. It refers to „admissions‟ made by one party of the
case of the other. It could be an admission by the Defendant of the Plaintiff‟s
case or vice versa. Therefore, the stage at which Order XII Rule 6 CPC is
invoked is different. By its very nature, it envisages the „other party‟ making
known its case. In the present case, the learned Single Judge did not invoke
Order VII Rule 11 CPC. He repeatedly states that he is invoking Order XII
Rule 6 CPC. The reasoning of the learned Single Judge that because a Civil
Court can under Order VII Rule 11 CPC reject a plaint for failure to disclose
a cause of action, it could do so at the first hearing even under Order XII
Rule 6 CPC is misconceived. This Court specifically is unable to accept the
reasoning of the learned Single Judge as under:
"Also, it is not necessary that a Court can only apply Order VII
Rule 11 CPC and reject the plaint when it discloses no cause of
action, because, there would be many situations which may
though fall under Order VII Rule 11 CPC may yet also fall
under Order XII Rule 6 CPC, and once that is so, the Courts are
surely not prohibited from dismissing the suit at the threshold
by calling in aid Order XII Rule 6 CPC. No provision of law
has been shown to this Court, contrary to Order XII Rule 6
CPC, that where the suit plaint does not disclose any legal
cause of action for granting the reliefs claimed in the suit, then
why the suit cannot be dismissed by applying Order XII Rule 6
CPC."
22. The learned Single Judge erred in overlooking the legal position
explained by the Division Bench of this Court in Bright Enterprises Private
Ltd. v MJ Bizcraft LLP (supra) where it reversed a judgment of a learned
Single Judge of this Court which again had dismissed a suit seeking
permanent injunction against infringement of a registered trade mark at the
initial stage without issuing summons to the Defendant. Just as in the present
case, there too it was nobody‟s case "that the suit had not been duly
instituted in the sense that it did not comply with the requirements of Order
VI and VII CPC." It was "neither a case of return of a plaint under Order VII
Rule 10 nor a case of rejection of a plaint under Order VII Rule 11 CPC." It
was a "dismissal of the suit itself on merits". After referring to Order V Rule
1 (1) CPC read with Section 27 thereof, this Court observed:
"18. In the present case, the learned Single Judge has neither
returned the plaint under Order VII Rule 10 nor rejected the
plaint under Order VII Rule 11 CPC. Therefore, it was
incumbent upon the learned Single Judge to have issued
summons to the respondents /defendants, particularly because
the respondents/defendants had not appeared at the time of
presentation of the plaint and did not admit the claim of the
appellants/plaintiffs. The Rule of audi alteram partem is
embedded in Order V Rule 1 sub-rule (1) read with Section 27
CPC."
23. The DB further explained the different consequences that would entail
where the suit is dismissed summarily as opposed to the plaint being
rejected under Order VII Rule 11 CPC or returned under Order VII Rule 10
CPC. It held:
"We may also point out that there is a clear distinction between
„return of a plaint', „rejection of a plaint' and „dismissal of a
suit'. These three concepts have different consequences. A
dismissal of a suit would necessarily result in a subsequent suit
being barred by the principles of res judicata, whereas this
would not be the case involving „return of a plaint' or „rejection
of a plaint'. What the learned Single Judge has done is to have
dismissed the suit of the appellants/plaintiffs at the admission
stage itself without issuance of summons and this, we are afraid,
is contrary to the provisions of the statute."
24. The learned Single Judge has in the impugned judgment referred to only
one aspect of the decision of the DB in Bright Enterprises Private Ltd. v.
MJ Bizcraft LLP (supra) which dealt with Order XIII A CPC, and
overlooked the above passages which were squarely applicable to the case
on hand and binding on the learned Single Judge.
25. The result of the above discussion is that Question (i) is answered in
negative. In the facts of the present case, and considering the averments in
the plaint, it cannot be said that it discloses any „admission‟ by the Plaintiff
of the case of the Defendants that would disentitle it to the reliefs prayed for
in the suit.
Question (ii)
26. The learned Single Judge has in the impugned judgment examined in
great detail whether the registration granted to the Plaintiff in respect of the
device mark „RED SOLE‟ was valid. The reasoning given for this exercise
was as follows:
"Registration of a trademark is only prima facie evidence of its
validity vide Section 31(1) of the Trade Marks Act and
therefore once what has been got registered as a trademark,
could legally not have been got registered as a trademark results
in an illegality because what is registered as a trademark could
legally not have been got registered as a trademark, then when
that matter comes up before the court then the courts are surely
entitled to reject the claim of ownership and entitlement to a
trademark which is not capable of being a trademark under the
Trade Marks Act."
27. The learned Single Judge has on an analysis of Section 10 read with
Section 30 (2) (a) of the Act come to the conclusion that a "single colour not
being a mark, the single colour cannot be claimed as a trademark". The
Plaintiff assails this to be based on an incorrect understanding of the
Plaintiff‟s mark. From the averments in the plaint, it is evident that the
Plaintiff is claiming distinctiveness over the use of „pantone red‟, which is a
particular shade of the colour red and used at a specific part of a shoe. As
pointed out by the Plaintiff, "this placement is illustrated in the trademark
registration certificate as being the outsole of a shoe, which is limited to the
colour Red." The Plaintiff further claims that
"The placement of the colour is completely arbitrary and of a
whimsical character. That further that this in-dissociable
combination constituting the mark does not result from the
shape imposed by the nature or function of the product. That if
the RED SOLE trademark is emblematic, it is due to the
promotional efforts of the Appellant."
28. It is further contended that "a „device‟ by definition is a feature or a
thing which appears on a product and serves the purpose of source
identification." While the above claims have to be tested further by a Court
on the basis of the pleadings and evidence, it perhaps explains why the
Plaintiff has sought and obtained registration for „RED SOLE as a device
mark. The specific case of the Plaintiff is that the said trademark was a
"device trademark" consisting of a combination of a colour red and the
placement of the said colour at a specific position on the outsole of a shoe
and that it would be wrong to assume that it consists only of an individual
single colour. It is pointed out that the determination of the nature of the
trademark was a „mixed question‟ of law and fact.
29. In any event, this being a critical aspect of the case of the Plaintiff, any
determination whether the Plaintiff was entitled to seek the protection of its
registered trademark would require deliberation on the basis of the case put
forth by the Defendants. Section 30 (2) (a) is a defence available to a
Defendant in an infringement suit. It is doubtful that a Court could suo motu
confront the Plaintiff in a case like the present with that „defence‟ without
the Defendant raising it. Further, for the purposes of that provision whether
the device mark is „functional feature‟ that is utilitarian or aesthetic or
whether as claimed by the Plaintiff it "is an arbitrary placement of a colour
on an arbitrarily selected portion of a shoe, namely, the outsole of a shoe, to
designate its origin" is not something that can be finally determined suo
motu by the Court at the very first hearing of the suit.
30. It must be recalled here that the Plaintiff is the holder of a registered
trademark and the suit is one for infringement. Under Section 31 of the Act,
there is a prima facie presumption of validity of a mark that is registered. It
is not even the case of the Defendants that they or anyone else applied for
cancellation of the Plaintiff‟s trademark. In the circumstances, the exercise
undertaken by the learned Single Judge as above, at the very first hearing of
the trade mark infringement suit, was uncalled for.
31. However, this Court would not like to comment anything further on
these aspects, lest it might prejudice the case either in one way of the other.
The above discussion is only to highlight that at the very first stage of the
suit, it was simply not possible for the learned Single Judge to come to such
a definite conclusion on whether the mark was unique; whether it was
validly registered in favour of the Plaintiff; and whether the Plaintiff could
seek the relief of restraining the Defendants from infringing the said
trademark. Question (ii) is accordingly answered in the negative.
Question (iii)
32. The learned Single Judge noted in the impugned judgment that the
Plaintiff relied on two decisions of Single Judges of this Court in Deere &
Company v. Mr. Malkit Singh and Christian Louboutin SAS v. Mr. Pawan
Kumar in support of the plea that the device mark in question deserved
protection from infringement. In Christian Louboutin SAS v Mr. Pawan
Kumar the suit was for infringement of the very same „RED SOLE
trademark of the Plaintiff. The Single Judge who decreed the suit held that
the said device mark was a „well known‟ mark. The learned Single Judge in
the impugned judgment has disagreed with the above decisions, which were
of co-ordinate benches, on the ground that they have been incorrectly
decided and that they did not consider the definition of „trademark‟ under
Section 2 (m) of the Act and Section 30 (2) (a) of the Act. While it was
perhaps open to the learned Single to disagree with a co-ordinate bench, he
could not have proceeded to deliver the impugned judgment, without
referring the matter to a larger Bench. This was not the course of action that
was available to the learned Single Judge. Being bound as he was by the
doctrine of stare decisis as explained by the Constitution Bench of the
Supreme Court of India in Union of India v Raghubir Singh (1989) 2 SCC
754 as follows:
"It cannot be doubted that in order to promote consistency and
certainty in the law laid down by a superior Court, the ideal
condition would be that the entire Court should sit in all cases to
decide questions of law, and for that reason the Supreme Court
of the United States does so. But having regard to the volume of
work demanding the attention of the Court, it has been found
necessary in India as a general rule of practice and convenience
that the Court should sit in Divisions, each Division being
constituted of Judges whose number may be determined by the
exigencies of judicial need, by the nature of the case including
any statutory mandate relative there to, and by such other
considerations which the Chief Justice, in whom such authority
devolves by convention, may find most appropriate. It is in
order to guard against the possibility of inconsistent decisions
on points of law by different Division Benches that the rule has
been evolved, in order to promote consistency and certainty in
the development of the law and its contemporary status, that the
statement of the law by a Division Bench is considered binding
on a Division Bench of the same or lesser number of Judges.
This principle has been followed in India by several generations
of Judges."
33. The above exposition was a distillation of the law explained in a number
of earlier decisions including Mattulal v. Radhe Lal [1975] 1 SCR 127
where it was held that where the view expressed by two different Division
Benches of the Supreme Court could not be reconciled, the pronouncement
of a Division Bench of a larger number of Judges had to be preferred over
the decision of a Division Bench of a smaller number of Judges. In Acharya
Maharajshri Narandrapra Sadji Anandprasadji Maharaj v. The State of
Gujarat [1975] 2 SCR 317, it was held that even where the strength of two
differing Division Benches consisted of the same number of Judges, it was
not open to one Division Bench to decide the correctness or otherwise of the
views of the other.
34. The departure by the Division Bench of a High Court from the well
established practice noted above was adversely commented upon by the
Supreme Court in Mahadeolal Kanodia v. Administrator General of West
Bengal AIR 1960 SC 936 in the following words:
"Before we part with this appeal, however, it is our duty to refer
to one incidental matter. We have noticed with some regret that
when the earlier decision of two judges of the same High Court
in Deorajan's Case (58 CWN 64) was cited before the learned
judges who heard the present appeal they took on themselves to
say that the previous decision was wrong, instead of following
the usual procedure in case of difference of opinion with an
earlier decision, of referring the question to a larger Bench.
Judicial decorum no less than legal propriety forms the basis of
judicial procedure. If one thing is more necessary in law than
any other thing, it is the quality of certainty. That quality would
totally disappear if judges of co-ordinate jurisdiction in a High
Court start overruling one another's decisions. If one Division
Bench of a High Court is unable to distinguish a previous
decision of another Division Bench, and holding the view that
the earlier decision is wrong, itself gives effect to that view the
result would be utter confusion. The position would be equally
bad where a Judge sitting singly in the High Court is of
opinion that the previous decision of another single Judge
on a question of law is wrong and gives effect to that view
instead of referring the matter to a larger Bench. In such a
case lawyers would not know how to advise their clients and
all courts subordinate to the High Court would find
themselves in an embarrassing position of having to choose
between dissentient judgments of their own High Court.
As far as we are aware it is the uniform practice in all the High
Courts in India that if one Division Bench differs from an
earlier view on a question of law of another Division Bench, a
reference is made to a larger Bench. In the Calcutta High Court
a rule to this effect has been in existence since 1867. It is
unfortunate that the attention of the learned judges was not
drawn in the present case to that rule. But quite apart from any
rule, considerations of judicial propriety and decorum ought
never to be ignored by courts in such matters." (emphasis
supplied)
35. In view of the legal position explained in the above decisions, the
learned Single Judge in the present case ought to have referred the matter to
a larger bench of two Judges since he was unable to agree with the decisions
of co-ordinate Single Judges which supported the case of the Plaintiff.
Question (iii) is accordingly also answered in the negative.
36. The Court has refrained from discussing the merits of the issues decided
by the learned Single Judge for the reason that the suit requires
consideration at the hands of the learned Single Judge after the Defendants
enter appearance and make their submissions in accordance with law.
37. Ms. Nupur Kumar, learned counsel for the Defendants/Respondents
submitted that the suit of the Appellant would not be maintainable and
referred to Section 134 of the Act and the decision of the Supreme Court in
Indian Performing Rights Society v. Sanjay Dalia (2015) 10 SCC 161. It
will be open to the Defendants to raise all their pleas, including the above
plea, before the learned Single Judge, which will then be dealt with by the
learned Single Judge in accordance with law.
Conclusion
38. For the aforementioned reasons, this Court sets aside the impugned
judgment dated 25th May 2018 of the learned Single Judge and restores the
suit CS (COMM) No. 890 of 2018 and the applications pending therein to
the file of the learned Single Judge for disposal in accordance with law. The
Court‟s attention has been drawn to Order 41 Rule 23 CPC which enables
the Appellate Court, while remanding the case to issue further directions. In
terms thereof, the Court directs that both the counsel for the Plaintiff and the
Defendants shall remain present before the learned Single Judge on 13th May
2019, when the aforementioned suit with all the pending applications
therein, shall be listed for directions.
39. This Court clarifies that it has not in the present judgment expressed any
opinion on the merits of the case, one way or the other, of either the Plaintiff
or the Defendants. The appeal is allowed and the pending applications are
disposed of in above terms.
S. MURALIDHAR, J.
I.S. MEHTA, J.
APRIL 11, 2019
rd
