Case Note & Summary
The plaintiffs, Rasiklal Manikchand Dhariwal and others, filed a suit alleging infringement of their registered trademark 'MANIKCHAND' and passing off by the defendants' use of the mark 'MALIKCHAND'. The defendants took out a Notice of Motion seeking dismissal of the suit under Section 11 of the Code of Civil Procedure, 1908 (CPC) as barred by res judicata, or alternatively, rejection of the plaint under Order 7 Rule 11 CPC. The defendants contended that an earlier suit between the same parties, involving the same cause of action, had been disposed of on the basis of consent terms and withdrawn without any liberty to file a fresh suit. The plaintiffs argued that the earlier suit was not a final adjudication and that the consent terms did not operate as res judicata. The court examined the consent terms and found that they constituted a final settlement of the disputes between the parties. The court held that the earlier suit was disposed of on merits based on the consent terms, and the withdrawal without liberty to file a fresh suit barred the present suit under Section 11 CPC. Consequently, the court allowed the Notice of Motion and dismissed the suit as barred by res judicata.
Headnote
A) Civil Procedure - Res Judicata - Section 11 CPC - Consent Terms - Withdrawal of Suit - The court held that where an earlier suit between the same parties was disposed of on the basis of consent terms and withdrawn without any liberty to file a fresh suit, the present suit for the same cause of action is barred by res judicata. The consent terms operated as a final adjudication of the rights of the parties. (Paras 1-10)
B) Trademark Law - Infringement and Passing Off - Trade Marks Act, 1999 - The plaintiffs claimed infringement of their registered trademark 'MANIKCHAND' and passing off by the defendants' use of 'MALIKCHAND'. However, the court did not decide on merits as the suit was dismissed on the preliminary ground of res judicata. (Paras 2-3)
Issue of Consideration
Whether the present suit for trademark infringement and passing off is barred by res judicata in view of the earlier suit between the same parties being disposed of on the basis of consent terms and withdrawn without liberty to file a fresh suit.
Final Decision
The Notice of Motion is allowed. The suit is dismissed as barred by res judicata under Section 11 of the Code of Civil Procedure, 1908.
Law Points
- Res judicata
- Order 7 Rule 11 CPC
- Trademark infringement
- Passing off
- Consent terms
- Withdrawal of suit
- Leave to file fresh suit
Case Details
Notice of Motion No.634 of 2013 in Suit No.574 of 2004
Dr. Birendra Saraf a/w Ms. Pooja Kshirsagar and Mr. Chandansingh Shekhawat i/b ALMT Legal for the Plaintiffs; Mr. Hemant Engineer i/b Gordhandas & Fozdar for Defendant No.1; Dr. Veerendra Tulzapurkar, Senior Counsel a/w Mr. P.K. Saxena, Mr. Vinod Bhagat, Mr. Anil Naidu and Mr. Dhiren Karania i/b G.S. Hegde & V.A. Bhagat for Defendant No.2.
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Nature of Litigation
Notice of Motion for dismissal of suit as barred by res judicata or rejection of plaint under Order 7 Rule 11 CPC.
Remedy Sought
Defendants sought dismissal of the suit or rejection of the plaint.
Filing Reason
Plaintiffs alleged trademark infringement and passing off by defendants' use of mark 'MALIKCHAND'.
Previous Decisions
An earlier suit between the same parties was disposed of on the basis of consent terms and withdrawn without liberty to file a fresh suit.
Issues
Whether the present suit is barred by res judicata under Section 11 CPC in view of the earlier suit disposed of on consent terms and withdrawn without liberty to file a fresh suit.
Whether the plaint is liable to be rejected under Order 7 Rule 11 CPC.
Submissions/Arguments
Defendants argued that the earlier suit between the same parties for the same cause of action was disposed of on consent terms and withdrawn without liberty to file a fresh suit, thus barring the present suit.
Plaintiffs contended that the earlier suit was not a final adjudication and the consent terms did not operate as res judicata.
Ratio Decidendi
Where an earlier suit between the same parties is disposed of on the basis of consent terms and withdrawn without any liberty to file a fresh suit, the consent terms constitute a final adjudication of the rights of the parties, and the subsequent suit for the same cause of action is barred by res judicata under Section 11 CPC.
Judgment Excerpts
This Notice of Motion is taken out by the Defendants for dismissal of the present suit under Section 11 of the Code of Civil Procedure ('Code'), as barred by res judicata, or alternatively, for rejection of the plaint under Order 7 Rule 11 of the Code.
Procedural History
The plaintiffs filed Suit No.574 of 2004 alleging trademark infringement and passing off. The defendants filed Notice of Motion No.634 of 2013 seeking dismissal of the suit on grounds of res judicata or rejection of plaint. The motion was heard and reserved on 15 February 2016, and judgment pronounced on 18 November 2016.
Acts & Sections
- Code of Civil Procedure, 1908: Section 11, Order 7 Rule 11
- Trade Marks Act, 1999:
