Rajasthan High Court - Jodhpur
M/S Udyog Mandir vs M/S Khushi Products on 7 December, 2022
Bench: Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 15440/2022
M/s. Udyog Mandir, F-148-149, Beechwal Industrial Area,
Bikaner-334006 (Raj.) through Partner Vijay Kumar Naulakha
S/o Sh. Sohanlal Naulakha, Age 54 Years.
----Petitioner
Versus
M/s. Khushi Products Khasra No.3360, Plot No.47, Vivekanand
Vihar, Makrwali, Ajmer-305004 (Raj). through Authorised
Signatory/ Owner/ Proprietor/ Partner/ Manager/ Representative.
----Respondent
For Petitioner(s) : Mr. G. D. Bansal
For Respondent(s) : Mr. Falgun Buch alongwith
Dr. Rohit Jain
Mr. Shri Ram Jakhar
Mr. Gopalkrishna Chhangani.
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order
07/12/2022
The present writ petition has been filed against the order
dated 16.09.2022 passed by the learned Additional District Judge,
No.6, Bikaner, whereby the application preferred by the petitioner
under Order 26 Rule 9 read with Section 151 CPC has been
rejected.
Briefly, the facts noted in the present case are that the
petitioner is a registered partnership firm located at Bikaner in
Rajasthan. The petitioner is carrying on the business for
manufacturing and marketing edible oil since 1997 under the
Trade Mark "NATURAL".
It is submitted that the respondent, who is involved in
similar nature of business has used "PEARL NATURAL" for its
product. In these circumstances, the petitioner preferred an
(2 of 4) [CW-15440/2022]
application under Section 135 of the Trade Marks Act, 1999 before
the learned trial Court and during the pendency of the same, an
application under Order 26 Rule 9 CPC was filed for appointment
of a local Commissioner for visiting/inspecting the premises of the
respondent and for preparation of the inventory etc., of the
impugned goods. The application preferred by the petitioner under
Order 26 Rule 9 was rejected vide order dated 16.09.2022.
Aggrieved of the order dated 16.09.2022, the present writ petition
has been filed.
This Court, on 19.10.2022 after hearing the counsel for the
petitioner passed the following order:-
"1. The petitioner has instituted a suit while pleading
that he is having a registered trade mark 'Natural' and
that the respondent is selling his goods in the name of
'Pearl Natural'.
2. The petitioner has also filed an application under
Order 26 Rule 9 of the Code of Civil Procedure read with
Section 135 of Trade-Marks Act before the trial court and
prayed that a local commissioner be appointed so that
he can visit/inspect the premises of the respondent and
prepare the inventory etc. of the impugned goods.
3. In support of his contention that commissioner can be
appointed by the Court even ex-parte, learned counsel
relied upon two judgments of Delhi High Court rendered
in the cases of Pepsico, Inc. & Anr. Vs. Tristos Food Pvt.
Ltd. & Ors., reported in 2014 (57) PTC 136 [Del][DB]
and Autodesk Inc. and Anr. Vs. A.V.T. Shankardass and
Anr., reported in 2008(37) PTC 581(Del.) (D.B.).
4. Issue notice. Issue notice of the stay application also,
returnable on 07.12.2022.
5. Meanwhile, Mr. Lokesh Mathur, learned counsel is
appointed as Court Commissioner/Local Commissioner
who shall inspect the premises of respondent and
prepare an inventory of the infringing mark/logo/label
(3 of 4) [CW-15440/2022]
and packaging materials etc. containing the word
'Natural'/'Pearl Natural'.
6. He shall release the material/goods covered by
inventory so prepared to the respondent on
Supurdginama. The use or sale (if any) of the goods
handed over on supurdgi shall remain subject matter of
present petition/suit and shall be subject to final order to
be passed herein.
7. The petitioner shall pay fee of ₹25,000/- and other
expenses relating to travelling, lodging and boarding on
actual basis to Mr. Lokesh Mathur.
8. Petitioner/local commissioner shall be entitled for
police protection at the time of inspection, if required. In
case any such request is made by the petitioner/local
commissioner to the concerned Superintendent of Police,
he shall provide police aid to the local commissioner, the
cost whereof shall be borne by the petitioner."
In pursuance of the direction issued by this Court on
19.10.2022, the Commissioner appointed by this Court has visited
the site and prepared a report. The report has been filed before
this Court and the same is annexed with this writ petition, which is
taken on record as well.
Learned counsel for the petitioner submits that in view of the
detailed direction issued by this Court on 19.10.2022, the
Commissioner appointed by this Court had already visited the site
and a report to that effect has already been filed before this Court.
He therefore, prays that the report filed before this Court by the
Commissioner may be ordered to be transmitted to the learned
trial Court with a direction that the same should be taken into
consideration while deciding the suit and the pending applications
before it.
Learned counsel for the respondent are not in a position to
refute the submissions made before this Court and submit that the
(4 of 4) [CW-15440/2022]
learned trial Court may be directed to decide the pending
application preferred by the petitioner under Order 39 Rule 1 and
2 CPC at the earliest after giving reasonable opportunity of
hearing to the parties.
I have considered the submissions made at the Bar and have
gone through the relevant record of the case.
The rejection of the application of the petitioner preferred
under Order 26 Rule 9 CPC vide order dated 16.09.2022 was
challenged before this Court and this Court by a detailed order
dated 19.10.2022 appointed a local Commissioner. The report
prepared by the local Commissioner has been filed before this
Court, which is placed on record. Since the application preferred
under Order 26 Rule 9 CPC already stands allowed in terms of the
report received from the Commissioner after visiting the site,
therefore, the ends of justice will be met if the report prepared by
the Commissioner is placed before the learned trial Court and the
trial court shall consider the same while deciding the suit and
pending applications.
Learned trial Court is directed to decide the application under
Order 39 Rule 1 and 2 CPC and other pending applications after
giving reasonable opportunity of hearing to the parties and
considering the report placed before it within a period of two
months from the date of receipt of the certified copy of this order.
The writ petition stands disposed of in the above terms.
(VINIT KUMAR MATHUR),J
18-Shahenshah/-
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