1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.935 OF 2009. Rasikbhai Pratapchand Oswal ... Petitioner. Versus M/s Sardar Navsagar Chemical Works through its Managing Partner Prakash Rupchand Mandore and another ... Respondents. ... Mr.S.P.Deshmukh, advocate for the petitioner. Mr.S.P.Shah, advocate for the Respondent No.1. Respondent No.2 served. ... CORAM : V.R.KINGAONKAR,J. Date : 16.07.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. By this petition, the petitioner challenges order rendered by the learned 2 Principal District Judge, Dhule, on application (Exh.22) filed in (RCS No.1/2008)[trade mark suit]. The petitioner is original defendant No. 2. 3. The Respondent No.1 filed the suit for perpetual injunction and recovery of damages on account of infringement of rights arising out of trade mark. The Respondent o.1 deals in production and sale of "Ammonium Chloride Bars" known as "Navsagar Bars". The goods are sold under various leading trade marks. The Respondent No.1 alleged that in order hijack the goodwill of the firm, the defendant Nos.1 and 2 were found selling the Navsagar Bars under trade mark "Bhavara" and "Peru". Consequently, the suit for injunction and recovery of damages was laid. 4. By filing an application (Exh.15), the defendant No.2/petitioner brought to the notice of the Court that the defendant No.1 firm was dissolved in 1983. The defendant No.2 produced necessary evidence to show such kind of 3 dissolution of the firm. He contended that he was no more partner of the defendant No.1 firm which was dissolved. He submitted, therefore, that he was not liable to pay any damages nor injunction could be issued against him. He submitted that there was no cause of action for the plaintiff i.e. Respondent No.1 and as such he sought rejection of the plaint U/o VII Rule 11 of the C.P.C. Thereafter, the Respondent No. 1/plaintiff filed an application U/o I Rule 10(2) of the C.P.C. seeking addition of other two defendants i.e. defendant Nos.3 and 4. The learned Principal District Judge allowed the application. Feeling aggrieved, the defendant No.2 has preferred this petition. 5. The question involved in the petition is whether the addition of parties U/o I Rule 10 of the C.P.C. could be permitted when the suit is for injunction simpliciter alongwith claim for damages on account of infringement of the trade mark rights. The averments in the plaint would show that the trade mark rights of the plaintiffs were infringed by the original defendant Nos.1 4 and 2. It is explicit that the defendant No.1 firm is dissolved way back in 1983 and, therefore, the suit was filed against the firm which was not in existence at all nor the defendant No.2 could be held liable because he was sued in his capacity as partner of the defendant No.1 firm and not in his individual capacity or as a trader. Needless to say, as on the date of filing of the suit, it was filed against one of the defendant which did not exist and another one who could not be roped in because no personal liability was alleged against him. If such a suit is based on a particular cause of action alleged against the defendant against whom the suit can not proceed then the plaintiff could not be permitted to utilise the same cause of action to proceed against the newly added defendants. For, it was necessary to locate whether the same cause of action could be used against them. The plaintiff is at liberty to file separate suit if there is material available to infer infringement of the trade mark by the newly added defendants. However, they can not be joined as defendants and the suit can not proceed 5 against the present petitioners. The suit should have been either dismissed or the plaint could be rejected in view of Order VII Rule 11 of the C.P.C. with liberty to file separate suit against the proposed defendants. The cause of action on which the suit was laid is not extendable in relation to the newly added defendants. In any case, the present petitioners can not be dragged to the litigation alongwith the newly added defendants when there are no specific averments about infringement of the trade mark rights by him in his individual capacity or as a trader or as agent of the newly added defendants. If the plaintiff/respondent No.1 will come across with any new material in order to infer that the petitioner is concerned with the newly added defendants then a separate suit may be filed on such separate cause of action. 6. For the reasons aforestated, I am of the opinion that the impugned order is quite improper and outside the scope of Order I Rule 10 of the C.P.C. Hence, the petition is allowed. The impugned order is set aside. The learned 6 Principal District, Dhule, shall pass necessary orders on the plaint as provided U/o VII Rule 11 of the C.P.C. or may permit the Respondent No.1 to withdraw the suit with liberty to file afresh suit. Rule made absolute accordingly. (V.R.KINGAONKAR,J.) asp/office/wp93509