TaxTMI 
TaxTMI 
TaxTMI 
1996 (11) TMI 446
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....ver the decree of dismissal of the suit as passed by the Trial Court on the ground that the suit was barred by 0.2 R.2 Sub-rule (3) was confirmed by the learned Single Judge. As no writ appeal lies against the said order before the Division Bench of the High Court the plaintiff preferred Special Leave Petition under Article 136 of the Constitution of India and as we have granted the leave, the present appeal fell for consideration before us. The case of the plaintiff is that it is a proprietor of the trade mark bearing the word `DUCK BACK' which is registered under the Trade and Merchandise Marks Act, 1000 and also the owner of the copyright in the artistic design of the word `DUCK BACK' registered under the Copyright Act and that the plaintiff has acquired a good reputation in the Indian market for waterproof goods and rubberised waterproof raincoats, It is the further pass of the plaintiff that it markets its products under the registered trade mark `DUCK BACK' throughout the country and its product has obtained good reputation and popularity amongst the consumers as `DUCK BACK' raincoats. The plaintiff further alleges that it came to know that defendants were manufacturing and ....
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....r averred in the plaint paragraph 19 that the cause of action arose on or about 6th April 1982 and continues to arise de die et diem within the jurisdiction of the Trial Court. In pars 20 of the second suit it was further averred that the cause of action arose at Hyderabad where the defendants were indulging in the illegal action, sought to be restrained in the suit and also where the defendants reside. The prayers in the second suit read as under : "Therefore, the Hon'ble Court may be pleased to grant : (a) permanent injunction restraining the defendants and each of them, whether acting by themselves or by their servants or agents from infringing the plaintiff's registered trade mark No.4378 as OI 29.8.1942 being the word mark DUCKBACK by the USE IN COURSE of trade the mark DACKBACK or any other near resemblance to the plaintiff's said trade mark. (b) a permanent injunction restraining the defendants and each of them, whether acting by themselves or by their servants or agents from doing the following acts, that is to say, passing causing or assisting others to pass off waterproof of rubberized material, air pillows, shoes, hot water bags and other goods in Class 25 not being O....
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....t has agreed with the plaintiff and there are no cross objections or cross special Leave Petitions. The learned counsel for the respondent-defendants fairly stated that if this Court takes the view that the suit is not barred as held by the High Court plaintiff's suit would be required to be decreed. Under these circumstances we now proceed to address ourselves to the sole moot question as to whether the second suit filed by the plaintiff was barred by Order 2 Rule 2 sub-rule (3), CPS. The said rule, its sub-rules and illustration below it read as under : "2. Suit to include the whole claim.-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action ; portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.-Whether a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such....
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.... J. in this connection has laid down as under : " In order that a plea of a bar under 0.2 r.2(3). Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based. (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one the plaintiff, without leave obtained from the Court , omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which, the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt. a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presume....
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.... once the plea of bar of Order 2 Rule 2 sub-rule (3) was not available to the defendants in the suit in the absence of the pleadings in the earlier suit being brought on the record by them in support of their case before the Trial Court they had missed the bus especially when even before the High Court, no attempt was made by the defendants to produce the pleadings in the earlier suit by way of an application foe additional evidence. Therefore, it is too late in the day foe the defendants to contend that along with counter in the Special Leave Petition before us they had produced the copy of the plaint in the earlier suit. In the light of the clear pronouncement of the Constitution Bench in the case of Gurbux Singh (supra), it must be held that it was not open to the defendants to raise the contention of the bar of Order 2 Rule 2 sub-rule (3), CPC in the present case and, therefore, the learned Single Judge of the High Court was clearly in error in non-suiting the plaintiff on that ground. However, in order to give completeness to this judgment and as the defendants were permitted to enter into the arens of contest on this ground by the Trial Court as well as by the High Court we ....
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.... any acts of infringement of passing off alleged to have been committed by the defendants in 1980 but plaintiff's grievance is regarding the continuous acts of infringement of its trade mark `DUCK BACK' and the continuous passing off action on the part of the defendants subsequent to the filling of the earlier suit and which had continued on the date of the second suit of 1982. The relevant averments regarding the fresh cause of action which had accrued to the plaintiff after the disposal of the earlier first suit are found in paragraphs 13 to 20 of the plaint in the present second suit. They read as under : "13. Thereafter the plaintiff made enquiries and came to learn the following which it believes to be true : (a) That the defendants neither manufacture nor sell nor deal with goods in class 25 with the mark DUCKBACK. (b) That the Defendant No.1 manufactures and the defendant No.2 offers for sale, sells or otherwise deals with waterproof articles rubberised or otherwise in class 25 applying thereto the mark DACKBAK, a word mark. (c) That the defendants are well aware of the fact that the plaintiff's goods in class 25 have been marketed and sold for years under the plaintiff....
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....resaid averments in the plaint clearly show that the present suit is not based on the some cause of action on which the earlier suit was based. The cause of action for filling this present second suit is the continuous and recurring infringement of plaintiff's trade mark by the defendants continuously till the filing of the present second suit. We asked the learned counsel for the defendants as to whether pending the suit and at present also the defendants are trading in the offending goods, namely, bearing the mark `DACK BACK' and he informed us that defendants even at present are carrying on this business. Therefore, pending the second suit all throughout and during the pendency of these proceedings the defendants have carried on the business of trading in the commodity waterproof raincoats `DACK BACK'. It is obvious that thus the alleged infringement of plaintiff's trade mark `DUCK BACK' and the alleged passing off action on the part of the defendants in selling their goods by passing off their goods as if they were plaintiff's goods has continued all throughout uninterrupted and in a recurring manner. It is obvious that such infringement of a registered trade mark carried on fr....