OJA/201/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD O.J.APPEAL No. 201 of 2007 In CIVIL SUITS No. 1 of 2007 With CIVIL APPLICATION No. 331 of 2007 In O.J.APPEAL No. 201 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- HONOURABLE MR.JUSTICE Z.K.SAIYED Sd/- ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder? NO 5 Whether it is to be circulated to the civil judge? NO ===================================================== HIND MOSAIC AND CEMENT WORKS & 1 - Appellant(s) Versus SHREE SAHJANAND TRADING CORPORATION & 1 - Opponent(s) ============================================================= Appearance : MR K.B.TRIVEDI,ADVOCATE GENERAL WITH MR YJ TRIVEDI AND MR VENKATESH PASTAY for Appellant(s) : 1 - 2. None for Opponent(s) : 1, MR R. PARTHASARTHY WITH MR PRANAV S TRIVEDI AND MR. AYUSH SHARMA for Opponent(s) : 2, ============================================================ CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA OJA/201/2007 2/7 JUDGMENT and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 27/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.A.MEHTA) 1 In light of the broad consensus worked out by the parties on their own it is not necessary to record respective contentions and facts in detail. 2 The appellants herein are the original plaintiffs who preferred a suit against the opponents, defendants in the suit, for infringement of patent standing in the name of the appellants. Defendant No.2 put in appearance and resisted the suit principally on the ground of jurisdiction and on merits, simultaneously also making a counter claim by way of Revocation Application. It is also an accepted fact that a counter claim has also been lodged by the defendants before the Controller. However, in view of provisions of Section 104 of the Patents Act, 1970 the suit stood transferred to the High Court. 3 On 21.08.2007 the learned Single Judge passed an OJA/201/2007 3/7 JUDGMENT order below application for injunction whereunder ad-interim relief granted in favour of the plaintiffs, which had continued till then, was vacated after hearing the parties by a detailed judgment. The appellants, being aggrieved by the said order dated 21.08.2007 carried the matter in Appeal before the Division Bench and the Appeal was decided by the judgment rendered on 25.01.2008 whereunder injunction as prayed for by the appellants was granted reversing the order made by the learned Single Judge. The defendants carried the matter further before the Apex Court. On 03.03.2008 the Supreme Court passed an order in Civil Appeal No. 1759 of 2008. The order of the Division Bench was set aside and O.J. Appeal No.201 of 2007 restored to file with a direction to consider afresh the matter in accordance with law. The Apex Court has recorded that contentions of both the sides are kept open and no opinion on merits has been expressed. The matter being of importance and urgency the Division Bench has been directed to hear and decide the matter as expeditiously as possible and not later than four weeks from the date of the order. Accordingly the OJA/201/2007 4/7 JUDGMENT matter has been listed before this Bench as a specially assigned matter. 4 The learned Counsel appearing for both the sides have, as noted hereinbefore, worked out a consensus to proceed ahead with the hearing of the suit itself instead of investing time and labour in hearing of the application for interim relief considering the urgency of the matter. Both the sides have placed on record the following schedule of the steps to be taken by the parties : “Steps to be taken by the parties. Steps Date 1.1 Submission of additional documents (if any) by 15th April,2008 1.2 Submission of draft issues by both the parties by 15th April,2008 2.1 Framing of issues by the Hon'ble Court by 22nd April,2008 2.2 Both the parties should see that appointment of Court Commissioner for recording evidences (i.e. Cross Examination of Witnesses of both the parties) is effected. by 22nd April,2008 3. Completion of leading evidence (i.e. affidavit by the way of Examination-in- Chief and other documentary evidence) by 30th April,2008 4. Completion of recording of oral evidence. by 15th June,2008 5. Completion of final hearing and disposal of suit by 15th June to 30th June 2008 OJA/201/2007 5/7 JUDGMENT “ The learned Counsel appearing for both the sides have assured the Court that the parties shall cooperate in proceeding with hearing of the suit on the basis of the aforesaid schedule or as may be suitably modified by the learned Single Judge so as to ensure that the suit is finally decided. 5 Further, both the learned Counsel have stated, under instructions, that the respective parties shall maintain separate accounts in relation to the dispute between the parties so as to ensure that whichever party succeeds ultimately, the Court will be in a position to make appropriate directions. 6 In the aforesaid set of circumstances, without expressing any opinion on merits of the dispute between the parties the Appeal is disposed of with a request to the learned Single Judge to hear and decide the suit as expeditiously as possible, and preferably in light of the consensus schedule worked out by the parties, ofcourse subject to the convenience of the learned Single Judge. For the OJA/201/2007 6/7 JUDGMENT purpose of appointment of Court Commissioner to record oral evidence the learned Single Judge may consider the option of appointing a Retired District Judge/Principal Judge of the City Civil Court or a Retired Judge of this High Court, as may be agreed upon by the parties, so as to save time and see that the parties abide by the schedule which they have worked out. The parties are directed to ensure that the accounts maintained by them are scrutinised and certified by a Chartered Accountant and copies thereof placed on record of the suit. 7 Subject to the aforesaid the Appeal is disposed of in the aforesaid terms. Request made on behalf of the appellants that liberty be reserved to revive the Appeal in case of difficulty does not merit acceptance in light of what is recorded hereinbefore and hence the request stands rejected. CIVIL APPLICATION No. 331 of 2007 In light of the order made in the Appeal the Civil Application stands disposed of accordingly. Sd/- (D.A. Mehta,J.) Sd/- OJA/201/2007 7/7 JUDGMENT (Z.K.Saiyed, J.) M.M.BHATT