Allowed

M/S Sterling Machin Tools and Another v. A.K. Enterprises and Others

Allahabad HC20 Sept 2022CLRE/179/2005

Case brief

AI extract

What is this about?

Revision allowed. HC set aside the trial court order rejecting the admission of additional documents filed after issue framing in a trademark infringement suit instituted in 1995, directing expeditious disposal.

What did the court decide?

Revision allowed; order of trial court set aside; documents accepted on record; suit to be disposed within 9 months with penalty for delays.

M/S Sterling Machin Tools and Another Vs A.K… — Intellectual Property | Allahabad HC (2022)

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Court No. - 5

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Case :- CIVIL REVISION No. - 179 of 2005

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Revisionist :- M/S Sterling Machin Tools And Another Opposite Party :- A.K. Enterprises And Others Counsel for Revisionist :- ,Prateek Kumar Counsel for Opposite Party :- Madhav Jain,Virendra Pratap Pal

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Hon'ble Saral Srivastava,J.

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List has been revised.

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Learned counsel for the opposite party is not present.

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Heard learned counsel for the revisionist.

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The plaintiff-revisionist has assailed the order dated 14.03.2005 passed by the Additional District Judge, Court No. 1, Agra in Original Suit No. 2 of 1995 whereby the trial court has rejected the application no. 278Ga of the plaintiff/revisionist to accept the additional documents on record.

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The plaintiffs/revisionists have instituted Original Suit No. 2 of 1995 for permanent of injunction restraining the defendants/respondents as the case may be from manufacturing or selling the pump sets under the trade name of "BHARAT" or "Bharat Marshal" which is identical/deceptively similar to the plaintiffs/revisionists trade mark "Bharat".

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The suit has been instituted on the ground that the plaintiffs/revisionists are engaged in manufacturing of deisel pump sets used extensively for drawing water from wells, borewells, ponds and other water sources for agricultural purposes. The plaintiff/revisionist has spent huge amount of money in advertising their pump sets under the trade mark of 'Bharat" and to establish their good will in the market. It is stated that the defendant/respondent is doing business in the trade mark "Bharat Marshal" which is identical or deceptively identical to the trade name of the diesel pump sets of the plaintiffs/revisionists "BHARAT" and thereby causing damage to the goodwill to the plaintiffs/revisionists.

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In the said case, the plaintiff/revisionist filed application No. 278Ga for taking on record the bills relating to sales made in the year 1976 to 1996. It is stated that these documents are necessary to prove the plaintiffs/revisionist's case. It is further submitted that due to inadvertence, these documents could not

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be produced earlier. The said application was dismissed by the trial court by order dated 14.03.2005 on the ground that in the instant case issues have been framed and PW1 Surendra Pratap Singh has filed his affidavit and has also been cross-examined, and if these documents are accepted on the record, then, the trial court has to proceed afresh and that would delay the disposal of suit.

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Challenging the order passed by the tribunal, it is contended that the revision has been instituted in the year 1995 and on the date of institution of suit, Order 13 Rule 2 of C.P.C. was not amended, and it provides that if the court satisfied that because of bonafide reasons, the document could not be filed, the same can be accepted on record. It is submitted that, it is only after the amendment introduced in the year 2002 in Order 13 Rule 2 C.P.C. a bar has been created that once the issues have been framed, the court will not accept any fresh document. Accordingly, it is contended that the trial court has failed to exercise the jurisdiction vested in it properly and correctly.

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I have heard both the parties and perused the record.

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The unamended Order 13 Rule 2 C.P.C. reads as under:

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"R 2. Effect of non-production of documents.-"[(1) No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof and the Court receiving any such evidence shall record the reasons for so doing.

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Under Order 13 Rule 2, the court is vested with the power to accept additional documents on record even after the issues have been framed, if the same could not be produced for bonafide good reasons. The trial court while deciding the application 278Ga has failed to consider the unamended Order 13 Rule 2 C.P.C. which will cover the case of the plaintiffs/revisionists as suit was instituted in the year in the year 1995 i.e. prior to the amendment.

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This Court is of the view that due to inadvertence, the said documents could not be filed and these documents are necessary to be brought on record for the correct and proper adjudication of issues in trial. The trial court failed to consider this aspect of the matter while considering the application of the plaintiffs/revisionists.

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This Court finds that the trial court committed jurisdictional error in not considering the application 278Ga of the

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plaintiffs/revisionists. Hence, the order of the trial court is not sustainable in law and is accordingly set-aside.

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For the reasons above, this revision is allowed and the documents filed with application 278Ga shall be taken on record.

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As the suit is of the year 1995, therefore, this Court directs the trial court to decide the suit expeditiously preferably within a period of nine months from the date of production of certified copy of this order.

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It is needless to state that the court below shall not grant any unnecessary adjournment to any of the parties and if the court below is of the opinion that any of the adjournment is necessary, the same shall be granted on imposing the cost of Rs. 1,000/- per day.

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Order Date :- 20.9.2022 VPS

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Digitally signed by VED PRAKASH SHARMA Date: 2022.09.27 09:22:49 IST Reason: Location: High Court of Judicature at Allahabad

M/S Sterling Machin Tools and Another v. A.K. Enterprises and Others

Case brief

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M/S Sterling Machin Tools and Another v. A.K. Enterprises and Others

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