Amrut Energy Private Limited vs Amrit Engineering Pvt. Ltd
2023 Latest Caselaw 864 Guj

      C/SCA/966/2023                              ORDER DATED: 03/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/SPECIAL CIVIL APPLICATION NO. 966 of 2023

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                       AMRUT ENERGY PRIVATE LIMITED
                                  Versus
                        AMRIT ENGINEERING PVT. LTD
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Appearance:
MR DIPEN S THAKKAR(5607) for the Petitioner(s) No. 1
MR TUSHAR L SHETH(3920) for the Petitioner(s) No. 1
MR DHAIRYA A SHAH(12544) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 03/02/2023

                               ORAL ORDER

1. By way of present writ-application the writ-applicant herein is aggrieved by the order dated 4.11.2022 passed below Ex.18 in Trademark Suit No.13 of 2020.

2. Brief facts leading to the filing of the present writ- application which are germane for consideration of the issue in question read thus :-

2.1 The writ-applicant herein is the original defendant and the respondent herein is original plaintiff, who filed Trademark Suit No.13 of 2020 against the present writ-applicant-defendant for infringement and passing off the plaintiff's suit product and prayed for permanent injunction and also prayed for temporary

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injunction by filing separate application at Exh.5.

2.2 The writ-applicant-defendant filed written statement at Ex.10 on 5.12.2020 with documentary evidences by way of filing documentary evidence list at Ex 12.

2.3 The suit was kept for filing of rejoinder of the respondent-original plaintiff on 29.12.2020, on that day the respondent-plaintiff's advocate remained absent and writ- applicant-defendant's advocate was present and again the matter was kept for filing rejoinder. The matter came to be listed on 30.1.2021 and on 4.3.2021 respectively before the trial Court. However, the respondent - original plaintiff filed an application at Exhibit 13 for adjournment for filing rejoinder. The said application below Ex.13 came to be allowed.

2.4 Thereafter, the matter was kept on 22.4.2021 and 11.6.2021, on the said dates also in view of Covid-19 Pandemic none could remain present. On 20.8.2021, there was holiday declared, thereafter the matter was kept on 4.10.2021. On the said date the respondent-original plaintiff's advocate remind absent and writ-applicant-defendant's advocate was present and the court had issued transfer notice to the respondent-plaintiff and the matter was kept for rejoinder.

       C/SCA/966/2023                                 ORDER DATED: 03/02/2023




2.5       On 29.10.2021, respondent-plaintiff's advocate remained

absent and the writ-applicant - defendant's advocate was present and on that day the writ-applicant - original defendant moved an application at Ex.-14 for closure of right of the respondent-plaintiff of filing rejoinder, wherein on 29.10.21 it was ordered to issue notice for hearing of Ex.14 and transfer notice.

2.6 On 7.1.2022, none appeared for the respondent - original plaintiff, however the advocate for the writ-applicant - defendant was present. Though additional copy of Ex.14 was supplied, the court directed the writ-applicant - original defendant to supply copy of Ex.14 application within one week and on the same day i.e. on 7.1.2022, copy was e-mailed to the advocate of the respondent - plaintiff and the same was disclosed by way of filing purses at Ex.15 and the matter was kept for hearing of Ex.14.

2.7 Thereafter, on 1.2.2022, again the respondent-plaintiff's advocate was absent and writ-applicant - defendant's advocate was present and the matter was kept for hearing of Ex.14. Thereafter, on 24.2.2022, the respondent-plaintiff's advocate was absent and writ-applicant - defendant's advocate was present and on that day the Court by order dated 24.2.2022 passed below Ex.14, closing the right of the respondent -

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original plaintiff for filing of rejoinder and adjourned the matter for hearing of Ex.5.

2.8 On further two occasions on 25.3.2022 and 7.5.2022 the court was on leave and again on 10.6.2022 the respondent- plaintiff's advocate was absent and writ-applicant - defendant's advocate was present and the matter was kept for hearing of Ex.5. Again on 26.7.2022 respondent-plaintiff's advocate was absent and writ-applicant - defendant's advocate was present and the Court closed the right of respondent-plaintiff of hearing of interim injunction application i.e. Ex.5, which is recorded in the Rojnama dated 13.9.2022 (page-73H).

2.9 On 13.9.2022, respondent - plaintiff's advocate was absent and the writ-applicant - defendant's advocate was present and on the same day an application came to be filed below Ex.16 by the writ-applicant - original defendant preferred for dismissing the suit for non-prosecution, inter alia on the premise that even after several adjournments from January 2020 to December 2021, the respondent - plaintiff was not represented through the advocate, so an application came to be filed for closure of right and the trial Court by order dated 24.2.2022 closed the right of the respondent - plaintiff for filing rejoinder/counter and thereafter the matter came to be posted for hearing of Ex.5. On five occasions the respondent

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- plaintiff did not attend the court proceedings and therefore it can be said that the respondent - plaintiff was not interested in proceeding with the suit. The said application was kept for hearing.

2.10 In 21.10.2022, the respondent - plaintiff's advocate was absent and the writ-applicant - defendant's advocate was present and the matter was kept for hearing of Ex.16. On 4.11.2022 a new advocate tendered a vakalatnama below Ex. 17 who filed an application at Exh.18 for hearing of Ex.5 application and also sought for adjournment inter alia on the premise that the respondent-plaintiff has appointed a new counsel in the matter on 4.11.2022 and requested the court to hear the Ex.5 application and also requested the writ-applicant

- defendant to provide soft copy of Written Statement and documentary evidences.

2.11 The writ-applicant - original defendant objected to the said application and stated by endorsement that right of filing counter was closed and before that six adjournments were granted for the same, thereafter notice came to be issued to the respondent-plaintiff and four times matter was adjourned from 20.8.2021 to 17.12.2021 and the respondent-plaintiff failed to remain present in the Court proceedings. It is further stated that the right of filing counter was closed and the suit

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was posted for framing of issues, therefore the said application below Ex.18 be dismissed.

2.12 By order dated 4.11.2022, the application which was preferred by the respondent - original plaintiff came to be allowed. The said order passed below Exh.18 allowing the application is duly produced at page-63/B.

3. Being aggrieved by the said order dated 4.11.2022 passed below Ex.18 in Trademark Suit No.13 of 2020 the writ- applicant has approached this Court seeking the following reliefs :-

"(A) Your Lordships may graciously be pleased to issue Writ of Certiorari or a Writ in nature of Certiorari or any other appropriate Writ, direction or order, to quash and set aside the order dt. 4.11.22 passed by the Ld. 6th Additional District Judge, Ahmedabad, below Exhibit 18 in Trademark Suit No. 13 of 2020 and further be pleased to dismiss the application of the plaintiff at Exh.18 At Annex "D" Colly.

(B) Your Lordships may graciously be pleased to issue Writ of Certiorari or a Writ in nature of Certiorari or any other appropriate Writ, direction or order, to dismiss the Trademark Suit No. 13 of 2020 of the plaintiff on the ground of gross delay and sheer negligence of the plaintiff in attending suit

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proceedings; and adopting dilatory tactic to dodge the court proceedings.

(C) Your Lordships may graciously be pleased to issue appropriate Writ, direction or order, for framing general directions for the subordinate Courts for not passing orders of "notice for hearing /fix for hearing in the miscellaneous applications being filed during the pendency of the suit, when advocate of the parties have already entered their appearance and/or when the party is served and choose not to appear in the suit; and decide the such applications on the very same day without waiting for the other side to attend the court proceedings.

(D) Pending admission, hearing and final disposal of the present petition Your Lordships may be pleased to stay the further proceedings of Trademark Suit No. 13 of 2020 pending in the Court of Ld. 6th Additional District Judge, Ahmedabad.

(E) Ad-interim relief in terms of para 18(B) may kindly be granted in the interest of justice.

(F) Any other and further relief/s as may be deemed just, fit and proper in the facts and circumstances of the case may kindly be granted in the interest of Justice."

4. Mr. Tushar L. Sheth, the learned advocate appearing for

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the writ-applicant vehemently submitted that the writ-applicant by preferring an application below Ex.18 has tried to overreach the process of law. It was submitted that the said order passed below Ex.18 was in ignorance of the mentioning in the Rojnama dated 13.9.2022 for closure of right of hearing of interim injunction application i.e. Ex.5.

4.1 Mr. Sheth, the learned advocate submitted that by allowing application below Ex.18 dated 4.11.2022 which was preferred by the newly appointed/engaged advocate by the respondent - original plaintiff on 4.11.2022, the learned Judge acceded the respondent-plaintiff's request for hearing of interim injunction application below Ex.5, the right of which was already closed on 13.9.2022 and which was never reopened by specific judicial order. The only ground mentioned in the application seeking hearing of Ex.5 was that new advocate was engaged by the respondent - original plaintiff and that could not be a ground to hear the Ex.5 application, otherwise the same would result in multiplicity of proceedings.

4.2 Mr. Sheth, the learned advocate vehemently submitted that the respondent - plaintiff is taking illegal recourse to dodge the proceedings and that after a period of 01 year and 06 months a new advocate came to be appointed by the respondent - plaintiff, it is nothing but a tactic to delay the

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proceedings.

4.3 Mr. Sheth, the learned advocate submitted that the Court below failed to appreciate that on 13.9.2022 by an order recorded in the Rojnama the Court had closed the right of respondent - plaintiff of hearing the interim injunction application below Ex.5. Until the said stage is reopened by specific judicial order, the Court could not have entertained the application below Ex.18.

4.4 Mr. Sheth, the learned advocate also submitted that the application of the original defendant at Ex.18 dated 13.9.2022 for dismissing the suit for non-prosecution is pending which is not decided and though the respondent - plaintiff's advocate was not appearing in the suit before 4.11.2022, the said application is pending.

4.5 Mr. Sheth, the learned advocate submitted that the order passed below Ex.18 fixing the date of hearing of Ex.5 is required to be quashed and set aside.

5. Mr. Dhairya A. Shah, the learned advocate appearing for the respondent submitted that the order passed by the Court below is just and proper. The order passed below Ex.18 is passed after perusing record and considering the long absence of the writ-applicant - original plaintiff in the suit proceedings

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inspite of issuance of report of notice sent by the Court allowed the application by imposing cost of Rs.2,000/- which is directed to be paid by the respondent-plaintiff to the advocate for the defendant No.2 within a period of two days of the said order and no error could be said to have been committed by the Court below by allowing the application below Ex.18. It is further directed by the Court that soft copy of the Written Statement and documents be provided to the plaintiff within a period of one week.

5.1 Mr. Shah, the learned advocate placed reliance on the Rojknama which is also relied upon by the learned advocate appearing for the writ-applicant more particularly Rojnama dated 13.9.2022, wherein it is stated that the stage of hearing of Ex.5 is closed and the matter is kept for framing of issues which is produced at page-72. Placing reliance on the same Mr. Shah, the learned advocate submitted that while the same is reflected in the Rojnama, there is no judicial order closing the stage of Ex.5.

5.2 Mr. Shah, the learned advocate also placed reliance on the submissions/grounds taken by the writ-applicant more particularly Ground-(B) and submitted that the writ-applicant himself has stated that the stage of hearing of Ex.5 has been closed in the Rojnama, however there is no judicial order

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closing the said stage, but there was an order passed below Ex.18 which was a judicial order and the same was passed after going through the previous record.

5.3 Mr. Shah, the learned advocate submitted that one of the reasons for non-appearance on the part of the respondent - original plaintiff was that the respondent - plaintiff was signatory and the Director of the respondent Company - original plaintiff who expired on 7.6.2021. The death certificate is duly produced at pages 7 and 8 respectively, page-7 is resolution of the respondent - plaintiff Company and page-8 is the death certificate dated 7.6.2021.

Analysis :-

6. The application filed below Ex.18 by the respondent - original plaintiff requesting the Court to hear Ex.5 application read thus :-

"IN THE HON'BLE DISTRCIT COURT OF AHMEDABAD AT AHMEDABAD

TRADEMARK SUIT NO. 13 OF 2020

AMRIT ENGINEERING PVT. LTD. ...PLAINTIFF

VS

AMRUT ENERGY PRIVATE LIMITED ...DEFENDANT

C/SCA/966/2023 ORDER DATED: 03/02/2023

Application for requesting court to hear Exh. 5 application (Injunction Application)

1. The plaintiffs have appointed a new counsel in the matter Mr Dhairya Shah on 4th November 2022.

2. The advocate for plaintiff matter Request that the Ex. 5 application be heard in the matter and further request the counsel of the defendant to serve with the copy soft copy of WS and evidence they have filed.

3. The court is requested to keep any date at its convenience for hearing the Ex. 5 application.

Advocate for plaintiff Sd-

Dhaiya Shah"

6.1 The said application was objected by the learned advocate appearing for the writ-applicant - original defendant and which read thus :-

"Right of filing counter was closed and before that six

adjournment were granted for the same. Thereafter notice was issued to the plaintiff and 4 times matter was adjourned from 20.08.21 to 17.12.21, thereafter matter got adjourned on five occasions from 25.03.22 to 13.09.22. The Plaintiff has not attended proceedings since months together. Thereafter right of filing counter was closed and suit was posted for framing of issues. So the present application is required to be dismissed."

       C/SCA/966/2023                              ORDER DATED: 03/02/2023




6.2       The impugned order dated 4.11.2022 which came to be
passed below Ex.18 reads thus :-


                                 "ORDER

Heard, perused the record considering the long absence of plaintiff in the present matter despite issue/ report of notice sent by this Court, present application is hereby allowed requisite of cost of Rs. 2000/- to be paid by the plaintiff to the Ld. Advocate for the defendant within 2 days from the order. The Defendant directed to provide soft copy of WS and documents (soft copy) to plaintiff within one week.

Sd-

4.11.022"

7. At this stage, it is apposite to refer to position of law :-

(a) In the case of Hari Vishnu Kamath vs. Ahmad Ishaque and ors., reported in AIR 1955 SC 233, Head-note-(i) reads thus :-

"Anno : Const. India, Art. 227 N. 7:

Constitution of India, Art. 226 - Conditions mder which certiorari can lie.

With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction,

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as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer & right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari. AIR 1952 SC 179 - AIR 1952 8C 192 - AIR 1952 SC 319 and AIR 1954 SC 440, Rel. on.

(Para 21)"

(b) In the case of M/s. Garment Craft v. Prakash Chand Goel, reported in AIR 2022 SC 422, Paragraph-18 reads thus :-

"18.Having heard the counsel for the parties, we are clearly

of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for

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deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based.

Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal1. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.,has observed:-

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do

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the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

8. The writ-applicant herein is aggrieved by the impugned order dated 4.11.2022 which was passed on the application preferred by the respondent - original plaintiff for hearing the application below Ex.5. The writ-applicant objected as referred above the said application stating that the right of filing counter of the respondent - original plaintiff was closed. After issuance of notice to the plaintiff the matter was adjourned from time to time and the respondent - original plaintiff failed

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to attend the proceedings for months together. Since the right of filing the counter was closed, the matter was posted for framing of issues. On the said ground the application below Ex.18 could not have been granted. The Court below considered application below Ex.18 and the objections raised by the writ-applicant herein - original defendant and allowed the said application below Ex.18.

8.1 After perusing and considering the record, it is pertinent to note that the contention of the writ-applicant that the stage of hearing of Ex.5 came to be closed by the order recorded in the Rojnama dated 13.9.2022, in view of this Court cannot be considered for the reason that it is neither stated in the writ- application that the said Rojnama is signed by the learned Judge. A pertinent query was placed to the learned advocate appearing for the writ-applicant, the learned advocate was not in a position to make such statement.

8.2 Considering the fact that the Rojnama has evidentiary value of public document under Section 74(1)(iii) of the Evidence Act, and the same does not form a part of the objections which were raised by the writ-applicant while opposing the application filed by the respondent - original plaintiff requesting the learned trial Court to fix the matter for hearing of Ex.5 application as referred above.

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9. No interference is called for in the order dated 4.11.2022 passed below Ex.18 in Trademark Suit No.13 of 2020, keeping it open for the writ-applicant to take all the contentions before the trial Court including the contention whether the stage of Ex.5 came to be closed by the order in Rojnama dated 13.9.2022 and the learned trial Court may adjudicate upon the same. While exercising supervisory jurisdiction under Article 227 of the Constitution of India, this Court would not sit in appeal over the decision of the trial Court.

10. Considering the fact that the respondent - original plaintiff remained absent in attending the suit proceedings either by himself or through an advocate for more than one year, more particularly as stated by Mr. Sheth, the learned advocate appearing for the writ-applicant - original defendant that the respondent - original plaintiff remained absent for the period from 4.10.2021 to 4.11.2022 the cost which is imposed by the Court below quantified to Rs.10,000/-.

12. For the foregoing reasons, the present writ-application stands disposed of in terms of the aforesaid directions.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED