Case Note & Summary
The appellant, a cooperative sugar factory, filed two suits in the District Court seeking relief for infringement of its copyright and trade mark in the label 'Bhingari Santra' used for country liquor since 1979. The respondents, defendants in the suits, filed applications under Order 7 Rule 11 CPC for rejection of the plaints on grounds of limitation and res judicata. The District Court allowed the applications, rejecting the plaints. The appellant appealed to the High Court. The High Court held that the plaint disclosed a continuing cause of action as the alleged infringement was ongoing, and therefore the suit could not be rejected as barred by limitation at the threshold. The court also held that the earlier suit filed by the appellant, which was withdrawn without liberty to file a fresh suit, did not operate as res judicata because the earlier suit was not decided on merits and the cause of action was continuing. The High Court set aside the orders of the District Court and remanded the suits for trial on merits, directing the trial court to decide the issues of limitation and res judicata after recording evidence.
Headnote
A) Civil Procedure - Rejection of Plaint - Order 7 Rule 11 CPC - Limitation - The court held that when the plaint discloses a continuing cause of action, the suit cannot be rejected as barred by limitation at the threshold. The plaintiff's claim of infringement of copyright and trade mark since 1979 and continuing use by defendants gives rise to a recurring cause of action. (Paras 3-5)
B) Civil Procedure - Rejection of Plaint - Order 7 Rule 11 CPC - Res Judicata - The court held that withdrawal of an earlier suit without liberty to file a fresh suit does not bar a subsequent suit if the cause of action is continuing and the earlier suit was not decided on merits. The principle of res judicata applies only to matters directly and substantially in issue in a former suit. (Paras 6-7)
C) Copyright Act, 1957 - Infringement - Continuing Wrong - The court observed that the plaintiff's allegation of continuous use of its label design by the defendants since 1986 constitutes a continuing wrong, and the suit for infringement is not barred by limitation as long as the infringement continues. (Para 4)
D) Trade Marks Act, 1999 - Infringement - Continuing Wrong - The court noted that the plaintiff's claim of trade mark infringement in respect of 'Bhingari Santra' is a continuing wrong, and the suit is maintainable despite delay in filing, as each fresh use gives rise to a fresh cause of action. (Para 5)
Issue of Consideration
Whether the plaint in a suit for infringement of copyright and trade mark can be rejected under Order 7 Rule 11 CPC on grounds of limitation and res judicata when the plaintiff alleges a continuing wrong and the earlier suit was withdrawn without liberty to file a fresh suit.
Final Decision
The High Court allowed both appeals, set aside the orders of the District Court rejecting the plaints, and remanded the suits to the trial court for disposal on merits. The trial court was directed to decide the issues of limitation and res judicata after recording evidence.
Law Points
- Order 7 Rule 11 CPC
- Copyright Act 1957
- Trade Marks Act 1999
- Limitation Act 1963
- Res Judicata
- Rejection of Plaint
- Cause of Action
- Continuing Wrong
Case Details
2015 LawText (BOM) (09) 2
First Appeal No. 2061 of 2013 and First Appeal No. 2090 of 2013
Shri. Vaibhav Joglekar holding for Shri. Kishore C. Sant for appellant; Shri. D.Y. Mali holding for Shri. V.P. Raje for respondent(s)
The Kopargaon Sahakari Sakhar Karkhana Ltd.
The Kolhapur Sugar Mills Ltd. (in FA 2061/2013) and Brihan Karan Sugar Syndicate Pvt. Ltd. & Anr. (in FA 2090/2013)
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Nature of Litigation
Appeals against orders rejecting plaints under Order 7 Rule 11 CPC in suits for copyright and trade mark infringement.
Remedy Sought
The appellant sought to set aside the orders of the District Court rejecting the plaints and to restore the suits for trial.
Filing Reason
The appellant alleged that the respondents were infringing its copyright and trade mark in the label 'Bhingari Santra' used for country liquor since 1979.
Previous Decisions
The District Court allowed the respondents' applications under Order 7 Rule 11 CPC and rejected the plaints on grounds of limitation and res judicata.
Issues
Whether the plaint can be rejected under Order 7 Rule 11 CPC on the ground of limitation when the plaintiff alleges a continuing wrong.
Whether the withdrawal of an earlier suit without liberty to file a fresh suit operates as res judicata barring the subsequent suit.
Submissions/Arguments
Appellant argued that the infringement is a continuing wrong and each fresh use gives rise to a fresh cause of action, so the suit is not barred by limitation.
Appellant argued that the earlier suit was withdrawn and not decided on merits, so res judicata does not apply.
Respondents argued that the suit is barred by limitation as the alleged infringement started in 1986 and the suit was filed in 2012.
Respondents argued that the earlier suit was withdrawn without liberty to file a fresh suit, so the subsequent suit is barred by res judicata.
Ratio Decidendi
A plaint cannot be rejected under Order 7 Rule 11 CPC on the ground of limitation if the plaintiff alleges a continuing wrong, as each fresh act of infringement gives rise to a fresh cause of action. Withdrawal of an earlier suit without liberty to file a fresh suit does not bar a subsequent suit if the earlier suit was not decided on merits and the cause of action is continuing.
Judgment Excerpts
The appeals are filed against the orders made by the District Court under the provision of Order 7 Rule 11 of the Civil Procedure Code in the suits filed by the present appellant in respect of its rights under the Copyright Act 1957 and under the Trade Marks Act 1999.
It is the case of the plaintiff that since the year 1979 it is manufacturing country liquor in the brand name 'Bhingari Santra'.
The court held that when the plaint discloses a continuing cause of action, the suit cannot be rejected as barred by limitation at the threshold.
Procedural History
The appellant filed two suits in the District Court for copyright and trade mark infringement. The respondents filed applications under Order 7 Rule 11 CPC for rejection of the plaints. The District Court allowed the applications and rejected the plaints. The appellant filed the present appeals before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 7 Rule 11
- Copyright Act, 1957:
- Trade Marks Act, 1999:
