Gauhati High Court
Page No.# 1/13 vs Birendra Prasad on 30 May, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/13
GAHC010078592025
2025:GAU-AS:7006
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./50/2025
DEBENDRA JALEWAL
S/O- ONKARMAL JALEWAL, R/O- H NO. 398, BY LANE POWER HOUSE L N
B ROAD, NALBARI- 781335, ASSAM
VERSUS
BIRENDRA PRASAD
S/O- LATE PREM PRASAD SAH, R/O- SHIV NAGAR, DARJEELING MORE
NEAR LOKNATH MANDIR, SILIGURI- 734003, DARJEELIN WEST BENGAL
Advocate for the Petitioner : MR. B D KONWAR SR. ADV., MRS J M KONWAR,MR J
SINGH,MR P DOLEY,MS S JAIN
Advocate for the Respondent : MR. D SARAF, MS P SHARMA
Linked Case : CRP(IO)/68/2024
BIRENDRA PRASAD SAH
S/O LT. PREM PRASAD SAH R/O SHIV NAGAR DARJEELING MORE NEAR
LOKNATH MANDIR SILIGURI 73403 DARJEELING WEST BENGAL INDIA
VERSUS
DEBENDRA JALEWAL
S/O ONKARMAL JALEWAL HOUSE NO. 398 BYELANE POWER HOUSE L N B
Page No.# 2/13
NALBARI 781335 ASSAM
------------
Advocate for : MR. D SARAF
Advocate for : MR. B D KONWAR SR. ADV. (R-1) appearing for DEBENDRA
JALEWAL
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
30.05.2025
Heard Mr. B. D. Konwar, learned Senior Counsel assisted by Ms. J.M.
Konwar, learned counsel for the review petitioner. Also heard Mr. D. Saraf,
learned counsel for the respondent.
2. By filing an application under Order 47 Rule 1 R/W Section 151 of the
Code of Civil Procedure, 1908, the petitioner has sought for review of the order
dated 24.01.2025, passed by this Court in CRP (IO) 68/2024.
3. The case of the petitioner, in brief, is that the review petitioner has been
engaged in manufacturing and marketing 'Green Matar Mixture' through his
company "KRISHAN". The defendant/respondent used another trademark
"KRISAAN" by merely altering a letter. In the petitioner's view, creates the
consumer confused and unjustly capitalizes on the good will associated with
"KRISHAN". It is contended that this Court erroneously presumed that the
defendant/respondent's trademark was registered, a premise which vitiates the
decision, while simultaneously setting aside the interim reliefs that were
necessary to prevent irreparable loss.
Page No.# 3/13
4. In a subsequent Special Leave Petition vide SLP(C) No.7458/2025 before
the Hon'ble Supreme Court, liberty was granted to the petitioner to seek recall
of the impugned order. Acting within the time frame prescribed by the Apex
Court's direction, the petitioner through this application seeks review of the said
order.
5. Further case of the review petitioner is that this Court by impugned order
dated 24.01.2025, dismissed CRP (IO) No.68/2024 as not maintainable and
determined that the challenged to ad-interim injunction was appealable under
Order 43 Rule 1 (r) CPC, thereby nullifying the ad-interim order dated
05.10.2023, passed by the learned Civil Court in Misc.(j) Case No.27/2023 filed
under Order 26 Rule 9 CPC and Misc.(j) Case No.28/2023 filed under Order 39
Rules 1 and 2 CPC.
6. According to learned counsel for the review petitioner, this Court in a
petition filed under Article 227 of the Constitution of India, erred in setting aside
the interim order dated 05.10.2023 passed by the learned Civil Court in Misc.(j)
Case No.27/2023 filed under Order 26 Rule 9 CPC and Misc.(j) Case No.28/2023
filed under Order 39 Rules 1 and 2 CPC, within the context of a commercial suit
under the Commercial Courts Act, 2015.
7. It was urged by the learned counsel for the review petitioner that this
Court erroneously presumed that the defendant/respondent's impugned trade
mark "KRISAAN" was registered whereas it is in fact unregistered, thereby
vitiating the entire reasoning behind setting aside the trial court's orders. The
erroneous presumption of registration wrongly equated the rights of both
parties, despite the plaintiffs/review petitioner's statutory protection under the
Trade Marks Act, 1999.
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8. Further submission of the learned counsel for the review petitioner is that
this Court dismissed the CRP(IO) No.68/2024 as not maintainable, holding that
the defendant/respondent had chosen the wrong forum, yet proceeded to set
aside the orders of the trial court passed in favour of the review
petitioner/plaintiff, leading to contradictory findings and an inherent miscarriage
of justice. If the revision was not maintainable, this Court should not have
granted substantive relief.
9. It is also contended that the impugned judgment and order of this court
erroneously equates the petitioner's well established registered trade mark
"KRISHAN" with the defendants/respondent's infringing trade mark "KRISAAN",
despite the defendants/respondent's trade mark being unregistered. This court
presumed that both trade marks were registered, thereby holding that prior
notice ought to have been given before granting ad-interim injunction and the
appointment of the Advocate Commissioner. This finding is legally unsustainable
as because the petitioner's trade mark "KRISHAN" is a registered trade mark
under the Trade Marks Act, 1999 whereas the defendant/respondent's trade
mark "KRISAAN" is unregistered and constitutes clear infringement of Trade
Marks Act.
10. According to learned counsel for the review petitioner, the ex-parte orders
of injunction and seizure are justified in cases of blatant Trade Mark
Infringement to prevent irreparable loss.
11. It is further submitted that this Court exceeded its jurisdiction under
Article 227 of the Constitution of India which is supervisory and not appellate in
nature and wrongly substituted its own view that of the trial court despite the
latter's discretionary power in granting ad-interim injunction and appointing
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Advocate Commissioner.
12. It is also contended by learned counsel for the review petitioner that this
Court has set aside the Commissioner's report dated 17.11.2023 and the seizure
list, relying on the defendant/respondent's unsubstantiated claims that the
report was procured without following due process. However, the Advocate
Commissioners acted in accordance with the trial court's direction and prepared
an inventory of infringing materials. The seizure of counterfeit packaging
materials was lawful and justified under the Trade Marks Act, 1999. The
respondent had an opportunity to challenge the report before the trial court but
failed to do so.
13. It was alleged by the learned counsel for the review petitioner that this
Court erred in setting aside the Commissioner's report and the seizure list even
though the defendant/respondent never challenged the report on its merits and
the report was a crucial piece of prima-facie evidence and its exclusion severely
prejudices the adjudication of the suit.
14. It is pointed by the learned counsel for the review petitioner that the
appointment of Advocate commissioners under Order 26 Rule 9 CPC was legally
justified as the learned Court has the power to order detention, preservation
and inspection of the property under Order 39 Rule 7 CPC and such measures
are essential safeguards in intellectual property disputes particularly in trade
mark infringement cases, to prevent destruction of infringing goods and
preserve evidence.
15. The further allegation of learned counsel for the review petitioner is that
this Court failed to appreciate that the petitioner's/plaintiff's trade mark
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"KRISHAN" is a registered mark, whereas the defendant/respondent was using
deceptively similar unregistered mark warranting injunctive relief.
16. The last limb of argument of learned counsel for the review petitioner is
that this Court's decision vide order dated 24.01.2025 amounts to miscarriage of
justice by allowing an infringer to continue using a deceptively similar trade
mark despite clear evidence of dishonest adoption and market confusion
thereby defeating the purpose of the Trade Marks Act, 1999. Accordingly,
learned counsel for the review petitioner prays for recall/review of the order
dated 24.01.2025 passed by this Court in CRP (IO) 68/2024.
17. Against the aforesaid review petition, learned counsel for the respondent
has submitted an affidavit in opposition wherein it is stated that the final
judgment and order dated 24.01.2025 passed by this Court in CRP (IO) 68/2024
relates to setting aside the interim order dated 05.10.2023 passed by the
learned Civil Court in Misc.(j) Case No.27/2023 filed by the review petitioner
under Order 26 Rule 9 of the CPC as well as in Misc.(j) Case No.28/2023 filed by
the review petitioner under Order 39 Rules 1 and 2 CPC is reasoned one after
considering the facts of the case in its entirety.
18. However, the respondent only challenged the interim order dated
05.10.2023, passed in Misc.(j) Case No.27/2023 along with a prayer to exclude
the Commissioner's report dated 17.11.2023 and the seizure list from the
evidence in the case vide CS (Comm) No.03/2023. It is further stated that the
review petitioner did not challenge the interim order dated 05.10.2023 in Misc.
(j) Case No.28/2023 as no injunction was in force due to non-compliance by the
review petitioner with the mandate of Order 39 Rule 3 Proviso of CPC as regards
taking steps within 24 hours of grant of ad-interim injunction order.
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19. It is submitted by learned counsel for the respondent that the respondent
had preferred the civil revision petition against the interim order dated
05.10.2023 in Misc.(j) Case No.27/2023 filed by the review petitioner against
which an appeal does not lie and as such the civil revision petition under Article
227 of the Constitution of India is the only remedy available to the respondent
and cannot be said to be not maintainable. As regards setting aside of both
interim orders dated 05.10.2023 in Misc.(j) Case No.27/2023 filed under Order
26 Rule 9 of CPC and Misc.(j) Case No.28/2023 filed under Order 39 Rules 1 and
2 CPC have been set aside on sound judicial principles by this Court and the
same does not warrant any interference.
20. The learned counsel for the respondent also has contended that when the
Commissioner's report was itself a glaring evidence of the fact that the
Commissioners exceeded the powers conferred upon them by the trial court, the
exclusion thereof is only consequential to such illegal acts and does not cause
any prejudice to anyone. The learned counsel also has submitted that the order
of this Court does not prejudice the trade mark right of the review petitioner as
the trade mark class in which trade mark of the review petitioner was registered
is "device" trade mark which is only visual in nature related to design of packet
of the review petitioner. The trade mark "KRISAAN" packaging of the
respondent was not identical with the packaging of the review petitioner's trade
mark and no such infringement was caused.
21. Learned counsel for the respondent, however, has admitted that they
have also filed application for registration of their trade mark but the same is
pending as the review petitioner has filed objection in the same. The registered
trade mark of the review petitioner vide Application No.3986811 in Class 30 is a
Page No.# 8/13
"device" trade mark and not a "word" trade mark. Accordingly, the use of
"KRISAAN" by the respondent does not constitute any kind of trade mark
infringement.
22. On the issue of order of the Hon'ble Supreme Court, learned counsel for
the respondent has submitted that the Hon'ble Supreme Court has disposed of
the matter on the motion stage itself without issuing notice in the matter and
without entering into the merits of the case. As such, the said order dated
04.04.2025 has no bearing on merits of the case.
23. Having heard the learned counsel for the parties and the documents
available on the record, it reveals that the review petitioner has preferred this
review as per direction of the Hon'ble Supreme Court which is reproduced as
follows -
" We depose of this Special Leave Petition by reserving
liberty to the petitioner herein to seek recall of the
impugned order by filing a revision petition as it is submitted
by the learned Senior Counsel for the petitioner that the
High Court on the one hand observed that the Civil Revision
Petition was not maintainable and that an appeal had to be
filed under Order XLIII Rule 1 (r) of the Code of Civil
Procedure, 1908, while at the same time, the interim order
which was in favour of the petitioner herein was vacated
and the Civil Revision Petition was virtually allowed.
In view of the apparent contradiction as aforestated, we find
that the petitioner would be justified in seeking a
Page No.# 9/13
review/recall of the said order.
If such an application for review/recall is filed by the
petitioner herein, the same shall be considered on its own
merits as expeditiously as possible bearing in mind the
aforesaid submission made by learned Senior Counsel for
the petitioner herein...."
24. Admittedly, the respondent herein as petitioner has preferred the CRP (IO)
68/2024 challenging the order of the Civil Court dated 05.10.2023 in Misc.(j)
Case No.27/2023 under Order 26 Rule 9 of the CPC along with a prayer to
exclude the Commissioner's report dated 17.11.2023 and the seizure list from
the evidence in the case of CS (Comm) No.03/2023 pending in the Court of Civil
Judge, Nalbari. As the petitioner did not challenge the interim order dated
05.10.2023 in Misc.(j) Case No.28/2023 filed by the review petitioner/plaintiff
under Order 39 Rules 1 and 2 CPC, the order passed by this Court dated
24.01.2025 in connection with Misc.(j) Case No.28/2023 may be recalled and
accordingly, reviewed. The order passed by the Civil Court in connection with
Misc.(j) Case No.28/2023 [corresponding to CS (Comm) No.03/2023] under
Order 39 Rules 1 and 2 is accordingly maintained.
25. Regarding Misc.(j) Case No.27/2023 i.e. appointment of Advocate
Commissioner has been challenged in the Civil Revision vide No. CRP (IO)
68/2024 excluding the Commissioner's report dated 17.11.2023 and the seizure
list from the evidence in the commercial suit.
26. The basic principle to entertain the review under Order 47 Rule 1 C.P.C. is
to correct the errors but not to substitute a view. The judgment under review
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cannot be reversed (or) altered taking away the rights declared and conferred
by the Court under the said judgment; once a judgment is rendered, the Court
becomes functus officio and it cannot set aside its judgment or the decree; no
inherent powers of review were conferred on the Court; the review Court cannot
look into the trial Court judgment; it can look into its own judgment for limited
purpose to correct any error or mistake in the judgment pointed out by the
review petitioner without altering or substituting its view in the judgment under
review; the review court cannot entertain the arguments touching the merits
and demerits of the case and cannot take a different view disturbing the finality
of the judgment; the review cannot be treated as appeal in disguise, and review
on the ground that the judgment is erroneous cannot be sustained.
27. It is settled law that even an erroneous decision cannot be a ground for
the Court to undertake review, as the first and foremost requirement of
entertaining a review petition is that the order under review of which is sought,
suffers from any error apparent on the face of the order and in absence of any
such error, finality attached to the judgment/order cannot be disturbed.
28. In "Shanmuga Sundara Nadar vs.Tamil Nadu Housing Board, rep. by its
Chairman, Madras and others", reported in 1988 (2) L.W. 57 (MAD.), the Court
held as under -
"The power to review is a restricted power which authorizes
the Court to look through the judgment not in order to
substitute a fresh or second judgment but in order to
correct it or improve it, because some material which it
ought to have considered has escaped consideration or
failed to be placed before it for any other reason or because
it suffers from a patent error which cannot be sustained by
Page No.# 11/13
any process of reasoning. The Court cannot under cover of
review arrogate to itself the power to decide the case over
again because it feels then that the assessment of evidence,
etc., done formerly was faulty or even incorrect. An
erroneous view of evidence of law is not a ground for
review. A wrong exposition of the law, a wrong application
of the law and failure to apply the correct law have been
held to be not a ground for review."
29. In Meera Bhanja Vs. Nirmala Kumari Choudhury, reported in (1995) 1 SCC
170, the Supreme Court, while considering the scope of the power of review of
the High Court under Order 47, Rule 1, C.P.C., held as under -
"The review proceedings are not by way of an appeal and
have to be strictly confined to the scope and ambit of Order
47, Rule 1 C.P.C. The review petition is of error apparent on
the face of the record and not on any other ground. An error
apparent on the face of the record must be such an error
which must strike one on mere looking at the record and
would not require any longdrawn process of reasoning on
points where there may conceivably be two opinions. The
limitation of powers on Court under Order 47, Rule 1, C.P.C.
is similar to jurisdiction available to the High Court while
seeking review of the orders under Article 226."
30. In the case of Parsion Devi vs. Sumitri Devi, reported in 1997 (8) SCC 715,
the Hon'ble Apex Court has reiterated the position with regard to review of an
order, as follows -
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"Under Order 47, Rule 1, CPC a judgment may be open to
review inter alia if there is a mistake or an error apparent on
the face of the record. An error which is not self-evident and
has to be detected by a process of reasoning, can hardly be
said to be an error apparent on the face of the record
justifying the Court to exercise its power of review under
Order 47, Rule 1, CPC. In exercise of the jurisdiction under
Order 47, Rule 1, CPC, it is not permissible for an erroneous
decision to be "reheard and corrected". A review petition, it
must be remembered, has a limited purpose and cannot be
allowed to be "an appeal in disguise."
31. There is no second opinion of a prime fact that the 'Power of Review' is a
creation of a statute. A mere fact that divergent/different views on the same
subject are quite plausible/possible, is not a ground to review the earlier order
passed by a Court of Law. To put it precisely, the 'Power of Review' is not to be
exercised for substituting the earlier views arrived at by the concerned
Competent Court. An erroneous decision can be subject to an appeal to a higher
forum. But, a review is impermissible on the ground that the Court of Law
proceeded on a wrong proposition of law. Generally speaking, an error apparent
on the face of record means that an error must be quite obvious and self-
evident and in short, it does require an elaborate argument to be established, as
per decision of the Hon'ble Supreme Court in the case of Thungabhadra
Industries Limited vs. The Government of A.P., reported in 1964 AIR 1372.
32. Having regard to the above, this Court does not find any error apparent
on the face of the order in order to entertain the present review application in
connection with Misc.(j) Case No.27/23.
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33. Accordingly, the review petition is partly allowed, dismissing the review of
the order in Misc.(j) Case No.27/2023.
34. Review petition is disposed of accordingly.
JUDGE
Comparing Assistant
