Full Judgment Text
Neutral Citation Number 2023/DHC/001486
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: January 10, 2023
% Pronounced on: March 01, 2023
+ FAO (COMM) 185/2022 & CM APPLs.52334-52335/2022
JAIN SHIKANJI PRIVATE LIMITED ..... Appellant
Through: Mr. J. Sai Deepak with Ms. Kangan
Roda, Mr. Nitesh Jain, Mr. Sharad
Besoya and Mr. Vatsal Chandra,
Advocates.
Versus
SATISH KUMAR JAIN ..... Respondent
Through: Mr. Gaurav Barathi with Ms. Muskan
Arora and Mr. Vishal Shrivastava,
Advocates.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE SAURABH BANERJEE
J U D G M E N T
SAURABH BANERJEE, J.
1. The three elements essential for adjudication of trade mark disputes,
like the present one, involve „ Name ‟ ( Jain ), „ Work ‟ ( Shikanji ) and
„ Identity ‟ ( Jain Shikanji ).
2. Present dispute is inter-se „Jain‟ family members, who amongst other
products, deal in Shikanji under the name and style of Jain Shikanji . By
virtue of the present appeal, appellant belonging to one „Jain‟ family
member is calling upon this Court to adjudicate upon the legality of the
impugned order whereby it has been restrained from using the trade mark
Jain Shikanji of respondent, the other „Jain‟ family member. The details
thereof are elucidated hereinunder.
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Digitally Signed
By:BABLOO SHAH
Signing Date:01.03.2023
16:55:00
Neutral Citation Number 2023/DHC/001486
3. Appellant ( original defendant ) by this appeal seeks to impugn order
dated 05.11.2022 passed by the learned Trial Court whereby an application
1
under Order XXXIX rules 1 & 2 of The Code of Civil Procedure, 1908 of
the respondent ( original plaintiff ) has been allowed in his favour and the
appellant along with other persons claiming through it have been restrained
from selling, offering for sale any goods, advertising or promoting any
product under the trade mark Jain Shikanji/ Jain Shikanji Restaurant or any
other trade mark similar or deceptively similar to the trade mark of the
respondent namely Jain Shikanji till the disposal of the said suit.
4. Records reveal that the respondent, an individual, claiming himself to
be proprietor of the registered trade mark Jain Shikanji and running several
outlets in different parts of the country under the name and style of Jain
Shikanji and Jain Shikanji Restaurant for selling shikanji drink, shikanji
powder and other food products under the said registered mark, instituted a
suit for permanent and mandatory injunction for infringement of trade
marks, passing off, dilution of trade marks, unfair competition, damages
and delivery up etc. with respect to his trade mark/ logo/ device Jain
Shikanji and other Jain Shikanji formative/ containing marks in addition to
2
other ancillary reliefs against the appellant, a company incorporated under
the provisions of the Companies Act, 2013 and engaged in the business of
selling and manufacturing similar products as that of the respondent under
the trade mark Jain Shikanji before the learned Trial Court.
5. As per respondent, the dispute involved herein has a history which
3
started from the father of respondent, Late Sh. Parmatma Sharan Jain , who
began by opening a Shikanji Shop under the name and style of Jain Shikanji
1
Henceforth referred as “ CPC ”
2
Henceforth referred as “ Suit ”
3
Henceforth referred as “ late Sh. Jain ”
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Digitally Signed
By:BABLOO SHAH
Signing Date:01.03.2023
16:55:00
Neutral Citation Number 2023/DHC/001486
at Vikas Nagar Colony, Kadrabad, Delhi-Meerut Road, Modinagar, District
Ghaziabad, Uttar Pradesh more than five decades ago . With time, the said
trade mark Jain Shikanji became distinctive of the said late Sh. Jain and his
sons, including the respondent and gained immense popularity and
goodwill.
6. Respondent claimed that after the demise of said late Sh. Jain in
1991, he along with his four other surviving brothers systematically devised
a manner to carry forward the said business under the name and style of
Jain Shikanji . Resultantly, over a period of time, the said trade mark Jain
Shikanji acquired a secondary meaning. The respondent also opened several
outlets under the name and style of Jain Shikanji from time to time after
obtaining requisite food licenses, which are being renewed from time to
time and also after obtaining registrations for the trade mark Jain Shikanji
from time to time with appropriate statutory tax authority, which are also
being paid from time to time.
7. Respondent claimed to have filed several applications for registration
of the mark Jain Shikanji in Class 29, 32, 35, 42 amongst other classes
claiming user since 14.06.1996 from 26.05.2008 onwards and as few such
registrations are valid and subsisting in its name, it has the exclusive right to
use the same in respect of goods or services for which they are registered.
8. Respondent claimed to have learnt in the second week of September
2021 that since its incorporation on 13.11.2019, the appellant commenced
carrying on the similar business of manufacturing, selling, producing,
importing, exporting, distributing, trading, supplying, running, managing
and dealing in making of shikanji masala, soda snacks and in all kinds of
food, food products, dairy products, bakery and confectionery products
under its trade mark Jain Shikanji. Claiming the said usage by appellant in
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By:BABLOO SHAH
Signing Date:01.03.2023
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Neutral Citation Number 2023/DHC/001486
the same line of business as respondent was to show an association with the
respondent as it was without any permission, license or authorization from
him, respondent instituted the suit against appellant before the learned Trial
Court.
9. Appellant, upon service admitted its registration/ incorporation under
The Companies Act, 2013 on 13.11.2019 and claimed that as Mr. Anubhav
Jain, Promoter-Director of appellant belonged to the family of late Sh.
Banarsi Das Jain who started the business under the name and style of Jain
Shikanji in 1937 and further as the said Promoter-Director of appellant was
the son of Sh. Pradeep Kumar Jain ( a son of brother of late Sh. Jain ) and
4
Mrs. Beena Jain , who were already using the said trade mark Jain Shikanji ,
appellant was well within its rights to use the said trade mark Jain Shikanji
as well. Also, as per appellant „Jain‟ being the surname of family of the
Promotor-Director of appellant, it was free to use the said trade mark Jain
Shikanji for the purposes of carrying on the lawful business.
10. Further, appellant referring to two earlier suits, being Suit No.
309/2008 before the learned Civil Judge, Ghaziabad, Uttar Pradesh and Suit
No. 06/2008 before the learned District Judge, Ghaziabad, Uttar Pradesh
instituted after withdrawal of Suit No. 309/2008 by the respondent against
the parents of the Promoter-Director of appellant questioned the very
maintainability of the suit, especially during the pendency of Suit No.
06/2008. Additionally, as per appellant though vide an order dated
01.11.2008 passed in Suit No. 06/2008, the parents of the Promoter-
Director of appellant were restrained from using the trade mark Jain
Shikanji , however, the said order was subsequently modified vide order
dated 29.04.2011 by the Hon‟ble High Court of Judicature at Allahabad in
4
Henceforth collectively referred as “ parents ”
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By:BABLOO SHAH
Signing Date:01.03.2023
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Neutral Citation Number 2023/DHC/001486
an appeal preferred by the parents of the Promoter-Director of appellant
st
wherein it was held that “… …the order dated 1 November 2008 of the
Court below on 6-C application is modified to the extent that the said order
shall remain in operation so far as in respect of business at Modinagar is
concerned. The application for grant of temporary injunction is rejected
with regard to the business of the defendants at Ghaziabad subject to the
condition stipulated above i.e., filing the returns.” . To sum up, as per
appellant, the parents of the Promoter-Director of appellant were entitled to
carry on the business under the name and style of Jain Shikanji and the
newly instituted suit was not maintainable.
11. The appellant thence, referring to a legal notice dated 15.04.1999
issued by one Sh. Swadesh Kumar Jain ( brother of respondent ) to Sh.
Pradeep Kumar Jain ( father of Promoter-Director of appellant ) and the
reply thereto by the said Sh. Pradeep Kumar Jain on 21.04.1999 (both were
not disclosed by respondent in the plaint filed before the learned Trial
Court) questioned the conduct of the respondent and once again the
maintainability of the suit contending that the respondent was well aware of
the business of the parents of the Promoter-Director of appellant since
before.
12. After hearing the parties and taking due note of all the contentions,
specifically the defenses raised by appellant and the documents on record,
learned Trial Court vide the impugned order restrained the appellant, along
with other persons claiming through it, from selling, offering for sale any
goods, advertising or promoting any product under the trade mark Jain
Shikanji/ Jain Shikanji Restaurant or any other trade mark similar or
deceptively similar to the trade mark of the respondent namely Jain Shikanji
till the disposal of the said suit.
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Digitally Signed
By:BABLOO SHAH
Signing Date:01.03.2023
16:55:00
Neutral Citation Number 2023/DHC/001486
13. Hence the challenge in the form of present appeal wherein the learned
counsel for appellant contended that there is a „family aspect‟ involved in
the present litigation on two counts, firstly as the Promoter-Director of
appellant belonged to the family of late Sh. Banarsi Das Jain, the original
founder of the business under the name and style/ using the trade mark Jain
Shikanji and secondly as his own parents were using the said trade mark
Jain Shikanji to the knowledge of the respondent, appellant was well and
truly entitled to use the trade mark Jain Shikanji .
14. Learned counsel for appellant then contended that both Jain and
Shikanji being generic words, nobody, much less the respondent, can
acquire any exclusive right in either of them or in the combination thereof
and thus appellant cannot be restrained from using the said trade mark Jain
Shikanji to carry on business by the respondent.
15. Learned counsel for appellant thence, relying upon several trade mark
applications filed before the Trade Mark Registry by both respondent and
appellant in different classes for the same trade mark Jain Shikanji ,
contended that as the appellant was the prior applicant of such applications
and sought registration thereof prior to the respondent, it had a better right
in and to the trade mark Jain Shikanji .
16. Learned counsel for appellant, in wake of pendency of Suit No.
06/2008 and the order dated 29.04.2011 passed by the Hon‟ble High Court
of judicature at Allahabad, contended that being the registered proprietor of
the trade mark Jain Shikanji , respondent had already acquiesced for a
continuous period of five years in instituting the suit as he was well aware
of the use of trade mark Jain Shikanji by the parents of the Promoter-
Director of appellant. As such, relying upon Section 33 of the Trade Marks
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Digitally Signed
By:BABLOO SHAH
Signing Date:01.03.2023
16:55:00
Neutral Citation Number 2023/DHC/001486
5
Act, 1999 the respondent was no longer entitled to either apply for a
declaration of the said registered trade mark Jain Shikanji being invalid or
to oppose the use of the same in relation to the goods or services for which
it has been so used by appellant.
17. Learned counsel for appellant, then relying upon Section 17 of the
TM Act and placing reliance upon Sanjha Chulha vs. Sanjha Chulha &
6
Ors. contended that registration of the device mark Jain Shikanji in favour
of respondent does not grant exclusive right to him to use any part of the
said mark and thus registration of the device mark Jain Shikanji in his
favour does not give any right to him over the word mark Jain Shikanji .
18. Learned counsel for appellant lastly, upon drawing the attention of
this Court to paragraph 28 of the impugned order, contended that in any
event as the trade dress comprising of the colour scheme, design, font etc.
of the trade mark Jain Shikanji of appellant is totally different from that of
respondent, there was no violation of any of the Intellectual Property Rights
by appellant.
19. Per Contra learned counsel for respondent contended that though
appellant claims to be hailing from the family of late Sh. Jain, however, the
same is immaterial as neither the appellant nor the parents of the Promoter-
Director of appellant were ever associated with the business of the said late
Sh. Jain at any stage since beginning. This was substantiated by submitting
that evidently no document or evidence in support thereof was filed before
the learned Trial Court by appellant.
20. Learned counsel for respondent then submitted that both Suit No.
309/2008 and Suit No. 06.2008 were instituted by respondent against the
parents of the Promoter-Director of appellant and not the appellant. Further,
5
Henceforth referred as “ TM Act ”
6
2022 SCC OnLine Del 3616
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Digitally Signed
By:BABLOO SHAH
Signing Date:01.03.2023
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Neutral Citation Number 2023/DHC/001486
in any event the appellant company was formed much later and was non-
existing at the time of institution of the said suits. Thus, the appellant was
neither a party in the said suits nor involved therein at any stage.
21. Learned counsel for respondent then drew our attention to the order
dated 29.04.2011 (quoted hereinabove) whereby the Hon‟ble High Court of
judicature at Allahabad in the appeal filed by the parents of the Promoter-
Director of appellant had merely modified the order dated 01.11.2008
passed by the learned District Judge, Ghaziabad by allowing them to use the
said trade mark Jain Shikanji from a particular shop at Ghaziabad only and
directed that the same was subject to their filing of quarterly sales returns.
Based thereon, it was pointed out that the said order had neither been
modified nor varied whereafter it was submitted that as the parents of the
Promoter-Director of appellant never filed any quarterly returns in
compliance thereof, the earlier order dated 01.11.2008 passed by the learned
District Judge, Ghaziabad stood revived. Thus, the parents of the Promoter-
Director of appellant were precluded from carrying out any business under
the name and style of Jain Shikanji beyond the precincts of a particular shop
in Ghaziabad, which of course included the appellant or anyone belonging
to their family. As such, in principle and even otherwise, the appellant could
not have carried out any business under the name and style of Jain Shikanji
as it could not take benefit of either late Sh. Jain or the parents of the
Promoter-Director of appellant as it was of no avail to it.
22. Learned counsel for respondent then contended that it is immaterial if
the device/ label marks of the parties are different as the ultimate test is
likelihood of confusion and in any event case of the respondent rests on the
wrongful use of trade mark Jain Shikanji per se.
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Digitally Signed
By:BABLOO SHAH
Signing Date:01.03.2023
16:55:00
Neutral Citation Number 2023/DHC/001486
23. Learned counsel for respondent lastly contended that the respondent
had validly obtained registration for the trade mark Jain Shikanji in
different classes and as the appellant has no connection with the said trade
mark Jain Shikanji and/ or its originator, it can neither use nor apply for
registration of the same
24. Having heard learned counsel for the parties at length and after
pondering over various judgments cited by them and having perused the
plethora of documents filed by appellant, we proceed to deal with the
aforesaid contentions raised by the parties.
25. However, prior to moving ahead, it is relevant to mention that after
the final conclusion of the rejoinder arguments by learned counsel for
appellant, in response to a query made by this Court, admitted that most of
the documents referred to and relied upon by him during the course of
arguments, based whereon most of the arguments emanate, were either
fresh/ new documents filed along with the appeal paper book without
7
seeking any permission for bringing them on record before this Court
despite the application qua them still pending before the learned Trial Court
or they were either fresh/ new documents filed along with a subsequent
application under Order XLI rule 27 of the CPC filed after a considerable
8
delay of few months for seeking permission from this Court. The appellant
has thus filed two sets of fresh/ new documents before this Court which
were admittedly never forming a part of the record before the learned Trial
Court.
26. First set of documents filed by appellant along with the appeal
without seeking any permission or leave of this Court cannot be taken into
consideration as they being fresh documents were never forming a part of
7
Henceforth referred as “ first set ”
8
Henceforth referred as “ second set ”
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Digitally Signed
By:BABLOO SHAH
Signing Date:01.03.2023
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Neutral Citation Number 2023/DHC/001486
the record before the learned Trial Court. Therefore, all arguments
addressed qua them are negated and cannot/ need not be adjudicated by this
Court.
27. Qua the second set of documents, though the appellant has filed an
application under Order XLI rule 27 of the CPC seeking permission to bring
on record few additional documents, however, no arguments qua the said
application were ever addressed by the learned counsel for appellant at any
stage. Moreover, and in any event, the said documents were themselves
never forming a part of the record before the learned Trial Court as the
application under Order XI rule 12 of the CPC of the appellant qua them
was pending when the present appeal was preferred by the appellant. Thus,
the said documents and all arguments addressed qua them are also negated
and cannot/ need not be considered and/ or adjudicated by this Court. Even
otherwise, the provisions of Order XLI rule 27 of the CPC are stringent and
an application can only be allowed on certain restrictive grounds as it is an
exception to the general rule with a view to enable a party only in
exceptional circumstances, whence such a case at the Appellate stage is
made out by the party, such party has to satisfy the Court that despite
exercising proper due diligence the said documents were not within its
knowledge, power and/ or possession any time before.
28. Appellant‟s application under Order XLI rule 27 of the CPC cannot
be allowed as no arguments were addressed qua it and being without any
plausible explanation and/ or reasoning of their non-filing before the
learned Trial Court despite prior knowledge thereof. Alas, the said
application is bereft of any substance. Not to mention that the said
application has been filed subsequently, only after initiation of the present
appeal before us. As this Court cannot look into fresh documents which
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Digitally Signed
By:BABLOO SHAH
Signing Date:01.03.2023
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Neutral Citation Number 2023/DHC/001486
were neither produced before the learned Trial Court nor which find any
reference in the impugned order, they and arguments qua them cannot be
considered. It is noteworthy, that surprisingly the said application makes no
mention of the first set of documents filed by the appellant along with the
appeal.
29. Based on the two sets of documents, appellant can neither be
permitted of canvassing a case beyond the purview permissible by pleading
new grounds and raising new pleas not forming a part of the records before
the learned Trial Court nor can be allowed to fill in the blanks to carve out
something which was missing with a view to fill up the lacuna or improve
upon the existing facts from that which was before the learned Trial Court.
An appeal under Order XLIII rule 1(r) of the CPC is to be and can be only
considered on the basis of material/ documents produced and forming a part
of the record before the learned Trial Court. A duty is cast upon a party like
appellant while approaching the Appellate forum to confine its case to what
it was before the Court below and not to put forth a fresh case by urging
fresh points on the basis of fresh documents for the first time which were
neither urged as they were never forming a part of the record before the
learned Trial Court.
30. Now coming to the contention of the appellant that both Jain and
Shikanji are two common generic words which on combination cannot be
used as a trade mark and thus cannot acquire distinctiveness. According to
us, the same is meritless as the very same appellant has itself, admittedly but
wrongly adopted, used and also applied the said trade mark Jain Shikanji as
a part of its trade name and repeatedly applied for registration and
withdrawn applications in different classes from time to time. This shows
that the appellant itself identified and recognized the very same Jain
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By:BABLOO SHAH
Signing Date:01.03.2023
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Neutral Citation Number 2023/DHC/001486
Shikanji as a trade mark and also the brand value attached to it. Otherwise,
why else would the appellant itself proceed to apply for registration of a
generic expression Jain Shikanji (on which it has a doubt of being a trade
mark). It does not lie in the mouth of the same appellant to contend that the
said trade mark Jain Shikanji is descriptive or that the respondent does not
or cannot have any claim thereto as the same is contrary to its own claims.
The said contention is thus turned down.
31. Besides that, today it is a matter of common knowledge that mark(s)
such as INDIA TODAY , UNDER ARMOUR , HEAD & SHOULDERS ,
TECH MOON , STUDIO MOSAIC , BLACK BULL , AMERICAN
EAGLE , AMERICAN AIRLINES , AGARWAL PACKERS &
MOVERS , HOLIDAY INN, STUDIO DEPOT , FAIR & LOVELY ,
VICTORIA SECRET , RED BULL etc. which, though, are a combination
of two separate generic words as one singular mark, very much exist and
have been adopted and used all across the globe. Such trade mark(s), after
acquiring distinctiveness and upon gaining goodwill are recognized to have
built a reputation to qualify as a well-known mark amongst the public at
large. Needless to say, such trade mark(s) are most certainly capable of
being applied for and being registered.
32. Thus, the words „Jain‟ and „Shikanji‟ separately are commonly used
words but once joined/ used together „singularly‟ are distinctive and unique
capable of being a mark in itself. The said trade mark Jain Shikanji of the
respondent, since its registration in different classes has not yet been
removed. Glaringly and admittedly , the appellant had never raised any
(counter) claims of any kind in relation to the said trade mark Jain Shikanji
against respondent before the learned Trial Court. The position is the same
till now.
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Digitally Signed
By:BABLOO SHAH
Signing Date:01.03.2023
16:55:00
Neutral Citation Number 2023/DHC/001486
33. Surprisingly, though learned counsel for appellant has made tall
claims of Jain Shikanji being a family mark as the Promoter-Director of
appellant is said to derive his rights from the originator of the said trade
mark Jain Shikanji from his forefathers and also his own parents, yet no
documents qua either were never filed, much less, produced before the
learned Trial Court. So much so, the surviving parents of the Promotor-
Director of appellant neither supported the appellant nor filed any
supportive documents thereof. This casts a shadow of serious doubt upon
the claims of appellant. No such document was filed before the learned
Trial Court and even if filed could not have come to the aid of the appellant
as parents of the Promoter-Director of appellant were bound by the order
dated 29.04.2011 passed by the Hon‟ble High Court of judicature at
Allahabad and order dated 01.11.2008 passed by the learned District Judge,
Ghaziabad, Uttar Pradesh as noted hereinbefore.
34. In any event, appellant‟s reliance upon the earlier two suits instituted
by the respondent against the parents of the Promoter-Director of appellant
is of no assistance as the said suits were never instituted against the
appellant and it was/ is not a party therein as the appellant was incorporated
only on 13.11.2019 and both suits were instituted against the parents of the
Promoter-Director of appellant much prior thereto.
35. Appellant cannot avail the benefit of Section 33 of the TM Act as no
such contention was raised by the appellant before the learned Trial Court,
the same is futile for purposes of the present appeal as the same cannot be
gone into at the Appellate stage by this Court. Even otherwise, the appellant
could not have acquired the use of the trade mark Jain Shikanji from any of
its predecessor/ entity and it is a matter of fact that the respondent instituted
the suit against appellant before the learned Trial Court well before the
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Signing Date:01.03.2023
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period of lapse of five years since the registration/ incorporation of the
appellant company. Thus, the contention of appellant qua applicability of
Section 33 of the TM Act is belied.
36. Regarding the contentions of appellant qua Section 17 of the TM Act,
once again as no such contention was raised by the appellant before the
learned Trial Court the same is futile for purposes of the present appeal as
the same cannot be gone into at the Appellate stage by this Court. In view
thereof, reliance placed upon Sanjha Chulha (supra) is misplaced.
37. Qua the relevancy of date of filing of an application seeking
registration of a trade mark before the Trade Mark Registry, once again as
no such contention was raised by the appellant before the learned Trial
Court the same is futile for purposes of the present appeal as the same
cannot be gone into at the Appellate stage by this Court. Even otherwise, in
view of this Court the same is irrelevant, especially for the purposes of the
present dispute as what is important is the „user‟, the „claim of usage‟ and
the evidence adduced therewith, based whereon the subsequent registration
has been granted in favor of the respondent. The same is further not
material as admittedly the appellant placed reliance on its applications for
registration of the trade mark Jain Shikanji and Jain Shikanji Restaurants ,
which though filed prior to the application of the respondent, however, were
subsequently withdrawn by it.
38. Moreover, the contention of the learned counsel of appellant with
respect to colour scheme and the design, font etc. of the trade dress of
appellant is totally different is irrelevant as the trade mark in issue was Jain
Shikanji and not the colour scheme, design, font etc.
39. Lastly, qua the maintainability of the present appeal it is trite that an
Appellate forum has a very limited role to play while exercising jurisdiction
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Signing Date:01.03.2023
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under Order XLIII rule 1(r) of the CPC. Unless and until, the impugned
order before the Appellate forum has been passed without exercising proper
discretion or the Appellate forum finds some arbitrariness, perversity, or
capriciousness in the impugned order or the same is against the enshrined
principles of law, the scope of interference by the Appellate forum is
extremely minimal. At the end of the day what is appealed under Order
XLIII rule 1(r) of the CPC is an interim order, i.e., an initial finding arrived
by the Court based upon the basic three tests of considering whether there
was a prima-facie case in whose favor the balance of convenience lay and
who would suffer the irreparable harm, loss, and injury. All such factors are
very different when it comes to an appeal challenging the final order/
judgment which is passed after going through a proper trial and threadbare
adjudication of all the facts before the Court.
40. As appellant in the present appeal, in addition to filing fresh
documents (which have already been dealt hereinbefore), has tried to agitate
and rely upon averments and pleadings beyond pleadings before the learned
Trial Court, the same cannot be considered for adjudication under Order
XLIII rule 1(r) of the CPC. Generally, no party like the appellant can be
allowed to improve/ built upon its case, much less at an Appellate stage as
the proceedings before the Appellate forum of subsequent instance are
nothing but an extension/ continuation of the earlier proceedings before the
original Court of first instance. Appellate forum is not to discharge the
functions of a Court of first instance as the ambit of an appeal before it is
not as vast as it is before the Court below, merely because a different view
is possible from the plausible view taken by the Court of first instance
below. Under normal circumstances, save and except as enumerated
hereinabove, the Appellate forum certainly cannot and in fact should not
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Signing Date:01.03.2023
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rehear similar arguments before it. Likewise, the Appellate forum is not to
substitute its view for a possible/ plausible view which in its opinion is or
can be otherwise to what has been held by the learned Trial Court.
Considering the above, not every order impugned before the Appellate
forum is to be or can be set aside just because the Appellate forum has
another or different view.
41. The Appellate forum is to entertain and then adjudicate upon an
appeal only whence the appellant is able to make out a plausible case on
any of the above grounds for correcting the error in the impugned order
instead of de-novo looking into a new issue/ question of law or fact which
never existed before the learned Trial Court. All the aforesaid draws to the
conclusion that a party like the appellant herein cannot be allowed to set up
a new/ separate case at an appellate stage. The aforesaid view has long since
been laid down by the Apex Court in Wander Ltd. & Anr. vs. Antox India
9
P. Ltd. and very recently reaffirmed by the Apex Court in Shyam Sel and
10
Power Limited & Anr. vs. Shyam Steel Industries Limited wherein it has
been held as under: -
“ 33. We ask a question to ourselves that, in an appeal against the
order of a Single Judge, if the Division Bench of the High Court is not
required to evaluate the question as to whether the discretion
exercised by the trial court was right or wrong, what else is it
required to do. We are unable to trace the source of the duty of the
Appellate forum which makes it bound to pass a suitable interim order
pending the trial of the suit.
34. The Division Bench of the High Court further observes that for
doing so, it has to put itself in a position as if it was moved to pass an
interim order in the suit. At the cost of repetition, we reiterate that if
the approach of the Division Bench of the High Court is to be upheld,
then there would be no necessity to have the trial courts at all.
Thereafter, the Division Bench of the High Court observes that the
case was different from Wander Ltd. (supra). The Division Bench of
9
1990 (Supp) SCC 727
10
2022 SCC OnLine SC 313
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the High Court stops at that. It does not even take the trouble to
observe as to how the scope of the appeal before it was different from
the scope as defined by this Court in Wander Ltd. (supra). In a line
thereafter, the Division Bench of the High Court observes that prima
facie case on facts theoretically is in favour of the appellant therein
(plaintiff) and thereafter, passes various directions including the
injunction. Though, in fact, it allows the appeal in entirety by allowing
an application under Order XXXIX Rules 1 and 2 CPC pendente
lite the suit, it graciously observes in the ultimate para that it was only
nd
modifying the order dated 2 April 2019 passed by the learned Single
Judge.
35. The learned Judges of the Division Bench of the High Court have
taken pains to make a mention of the judgment of this Court in the
case of Wander Ltd. (supra). This judgment has been guiding the
Appellate forums in the country for decades while exercising their
Appellate jurisdiction considering the correctness of the discretion
and jurisdiction exercised by the trial courts for grant or refusal of
interlocutory injunctions. In the said case, the learned Single Judge
had refused an order of temporary injunction in favour of the plaintiff
who was claiming to be a registered proprietor of the registered trade
mark. The Division Bench of the High Court had reversed the order
passed by the learned Single Judge and granted interim injunction.
Reversing the order of the Division Bench of the High Court and
maintaining the order of the learned Single Judge, this Court
observed thus:
“14. The appeals before the Division Bench were against the exercise
of discretion by the Single Judge. In such appeals, the Appellate forum
will not interfere with the exercise of discretion of the court of first
instance and substitute its own discretion except where the discretion
has been shown to have been exercised arbitrarily, or capriciously or
perversely or where the court had ignored the settled principles of law
regulating grant or refusal of interlocutory injunctions. An appeal
against exercise of discretion is said to be an appeal on principle.
Appellate forum will not reassess the material and seek to reach a
conclusion different from the one reached by the court below if the
one reached by that court was reasonably possible on the material.
The Appellate forum would normally not be justified in interfering
with the exercise of discretion under appeal solely on the ground that
if it had considered the matter at the trial stage it would have come to
a contrary conclusion. If the discretion has been exercised by the trial
court reasonably and in a judicial manner the fact that the Appellate
forum would have taken a different view may not justify interference
with the trial court's exercise of discretion. After referring to these
principles Gajendragadkar, J. in Printers (Mysore) Private
Ltd. v. Pothan Joseph [(1960) 3 SCR 713: AIR 1960 SC 1156] : (SCR
721)
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“… These principles are well established, but as has been observed by
Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942] A.C.
130] „…the law as to the reversal by a court of appeal of an order
made by a judge below in the exercise of his discretion is well
established, and any difficulty that arises is due only to the application
of well settled principles in an individual case‟.”
The Appellate judgment does not seem to defer to this principle.”
42. Discernment of an appeal at the appellate stage in view of the settled
position of law qua Order XLI rule 1(r) of the CPC leads us to conclude that
the appellant has been unable to make out a case for interference by this
Court. Hence, taking into consideration the overall factual and legal aspects
involved herein and the overall conduct of appellant, this Court, finds no
merit in the present appeal.
43. Accordingly, for the afore-going reasons, the present appeal along
with all the applications, if any, is dismissed with no order as to costs and
leaving the parties to bear their own costs.
SAURABH BANERJEE, J.
MANMOHAN, J.
MARCH, 01, 2023
akr
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