Rasiklal Manickchand Dhariwal & Anr vs M/S M.S.S.Food Products

3. M/s. M.S.S. Food Products--respondent (hereinafter referred to as `plaintiff') sued the appellants--(i) Dhariwal Industries Ltd. and (ii) Rasiklal Manikchand Dhariwal (hereinafter referred to as 1 `defendants') in the court of 1st Additional District Judge, Mandaleshwar (West) Madhya Pradesh for declaration that defendants do not have right to use the mark "Manikchand" to sell masala, gutka, supari, supari mix or any other goods which is deceptively similar to the mark "Malikchand'; for perpetual injunction restraining the defendants from dealing in or selling the above articles under the name/brand "Manikchand"; for rendition of the accounts of profits earned by the defendants by selling the said goods and other consequential reliefs.

4. The case of the plaintiff is this: Prabhudayal Choubey son of Ramprasad alias Malikchand started the business of supari, ayurvedic pan masala and ayurvedic medicines in the brand name "Malikchand" in the year 1959-60. He continued his business upto April 1986. Prabhudayal Choubey assigned his trade mark of supari and ayurvedic pan masala "Malikchand" to his son Ashok Sharma sometime in the month of April, 1986. Ashok Sharma continued his business of supari, ayurvedic pan masala and ayurvedic medicines etc. upto March 1992. Ashok Sharma assigned the trade mark "Malikchand", vide assignment deed dated April 1, 1992, to Kishore Vadhwani, proprietor of M/s. Tulsi Stores who continued with the business of pan masala, gutka, supari and supari mix etc. till March, 2 1996. Kishore Vadhwani further assigned the trade mark "Malikchand" to the plaintiff on April 1, 1996. Since then plaintiff has been carrying on the business of gutka, pan masala, mix supari etc. in the trade mark "Malikchand".

5. It is further case of the plaintiff that the defendants have started selling gutka, pan masala, supari, supari mix, zarda, etc. in the name of "Manikchand", - phonetically similar to the plaintiff's mark "Malikchand" - and thereby passing off their goods as and for plaintiff's goods. The plaintiff alleged that defendants have been selling the inferior quality goods resulting in huge losses to it.

18. Against the ex parte decree dated March 7, 2007, the defendants preferred first appeal before the Madhya Pradesh High Court. The Division Bench of that Court vide its judgment dated August 13, 2008 dismissed the defendants' first appeal except the 10 relief in respect of profits relating to damages. In other words, the High Court maintained the judgment and decree of the trial court insofar as reliefs granted in paragraph 23(a) and (b) were concerned but set aside the relief granted to the plaintiff in paragraph 23(c) and instead awarded token relief of Rs. 11,00,000/- (Rupees Eleven Lakh) only. It is from this judgment that the present special leave petition has arisen.

Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.

(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time. 39

51. The purpose and objective of Rule 4 of Order XVIII of the Code is speedy trial of the case and to save precious time of the court as the examination-in-chief of a witness is now mandated to be 40 made on affidavit with a copy thereof to be supplied to the opposite party. The provision makes it clear that cross-examination and re- examination of witness shall be taken either by the court or by Commissioner appointed by it. Proviso appended to sub-rule (1) of Rule 4 of Order XVIII further clarifies that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with the affidavit shall be subject to the order of the court. In a case in which appeal is allowed, Rule 5 of Order XVIII provides that the evidence of each witness shall be taken down in writing by or in the presence and under the personal direction and superintendence of the Judge or from the dictation of the Judge directly on a typewriter or recorded mechanically in the presence of the Judge if the Judge so directs for reasons to be recorded in writing.

58. On February 28, 2005, the three witnesses whose examination-in-chief was tendered by the plaintiff in the form of affidavits were present for cross-examination but despite the opportunity given to the defendants, they chose not to cross-examine them and thereby the trial court closed the defendants' right to cross- examine these witnesses. In view of this, it cannot be said that any prejudice has been caused to the defendants if these three witnesses did not enter the witness box.

71. In view of the above, appeal has no merit and is dismissed with costs which we quantify at Rupees 50,000/- (fifty thousand).

NOVEMBER 25, 2011.