Dharampal Premchand Ltd. v. Golden Tobacco Products
2007(34) PTC 633 (Del.) (DB)
Decided on: 08.05.2007
Plaintiff had filed a suit for infringement of it’s trademark ‘BABA’, for breach of it’s copyright and for passing off. The Defendant filed an application under Order VII Rule 10 of the Code of Civil Procedure, 1908 seeking rejection of the plaint as the Hon’ble High Court of Delhi did not have jurisdiction to entertain the composite suit in respect of the action for passing off as the goods of the Defendant were not available in Delhi.
The Plaintiff had already filed an application for amendment of plaint before the Hon’ble Court giving up the relief of passing off. However, the Hon’ble Court returned the plaint but permitted the plaintiff to file the fresh suit before the Hon’ble High Court of Delhi.
As the application for amendment of plaint was pending and the plaint was returned, the Plaintiff filed an appeal against the order returning the plaint.
The appeal was contested by the Defendant on the ground that Order VII Rule 10 does not allow breaking up of relief.
The Hon’ble Division Bench of the High Court of Delhi negativated the contention of the Defendant and allowed the appeal of the plaintiff and the impugned order was set aside qua the relief of infringement after relying on State Bank of India v. Sanjeev Malik; AIR 1996 Delhi 284 which held that where a plaint is filed in a court not having jurisdiction to try all the different cause of action, but the court is of the opinion that it can deal with only one or some of the causes of action set out in the plaint, then it ought to retain the lis and strike off from the plaint that part which it holds beyond it’s jurisdiction.