Hari Ram and Sons v. Vivek Purwar & Anr

NAVIN CHAWLA, J. NOVEMBER 02, 2022/rv/AB/Ais

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 07.09.2022 Date of decision: 02.11.2022 + RFA-IPD 4/2022 VIVEK PURWAR AND ANR. ..... Appellants Through: Mr.Jagdish Sagar, Mr.Praveen Kumar Jain, Mr.Naveen Kumar Jain, Ms.Shalini Jha, Ms.Rashmi Kumari and Ms.Meenakshi Dutta, Advs. versus HARI RAM AND SONS ..... Respondent Through: Mr.S.K.Bansal and Mr.Ajay Amitabh Suman, Advs. + RFA-IPD 5/2022 & CM 96-99/2022 HARI RAM AND SONS ..... Appellant Through: Mr.S.K.Bansal and Mr.Ajay Amitabh Suman, Advs. versus VIVEK PURWAR & ANR. ..... Respondents Through: Mr.Jagdish Sagar, Mr.Praveen Kumar Jain, Mr.Naveen Kumar Jain, Ms.Shalini Jha, Ms.Rashmi Kumari and Ms.Meenakshi Dutta, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. The present cross-appeals have been filed challenging the judgment and order dated 01.06.2022 passed by the learned Additional District Judge, Central, Tis Hazari Courts, Delhi (hereinafter referred to as the 'learned Trial Court') in the suit, being TM No.1054/2016, titled Hari Ram & Sons v. Prem Narain Purwar & Ors, decreeing the suit filed by the plaintiff in the suit [the appellant in RFA-IPD 5/2022] for the relief of permanent injunction against the defendants in the suit [the appellants in RFA-IPD 4/2022], thereby restraining the defendants in the suit from using the trade mark 'HARI RAM AND SONS & HR LOGO'. 2. The parties are referred to in the present judgment as 'the plaintiff in the suit' and 'the defendants in the suit'. FACTUAL BACKGROUND 3. The defendants in the suit are aggrieved of the impugned judgment and order on the ground that the learned Trial Court, having categorically held that it does not have territorial jurisdiction to try the suit, could not have proceeded to decree the same. It is contended that the decree passed by the learned Trial Court is a nullity. 4. On the other hand, the plaintiff in the suit is aggrieved of the finding of the learned Trial Court on the issue of lack of territorial jurisdiction and has challenged the same. 5. As the two appeals are arising from the same judgment and decree and raise the same issue of lack or otherwise of the territorial jurisdiction of the learned Trial Court, they are being disposed of by way of this common judgment. 6. The plaintiff in the suit had filed the subject-suit alleging therein that they are engaged in the business of manufacturing, marketing and sales of sweets, namkeens, confectionary, fast food, chutney and other allied and related goods since the year 1890 in Agra in the State of Uttar Pradesh under the trade mark 'M/s. HARI RAM & SONS'. In the year 1964, the plaintiff in the suit adopted the trade marks 'HR LOGO' and the words 'HARI RAM & SONS'. The plaintiff in the suit is also the registered proprietor of the mark 'HARI RAM & SONS' registered in Classes 30 and 42 respectively. 7. It was averred that in the year 1911, Sh. Hari Ram with his father Sh. Mithulal came to Allahabad (now Prayagraj) and started a namkeen business in the name and style of 'M/s. Hari Ram and Sons", preparing samosa and mota sev along with Sh. Gauri Shankar and Sh. Ram Bharose, and continued this arrangement till the year 1943. In the year 1943, Smt. Jogia (the wife of Sh. Mithu Lal and the mother of Sh. Hari Lal) partitioned all the movable and immovable properties, including the namkeen business, vide registered Partnership Deed dated 22.12.1943, wherein the namkeen business came to the share of Sh. Hari Ram and Sh. Ram Bharose. The said mark has been in use by the partnership firm since then by the legal heirs, though the partners have changed and partnership reconstituted due to the retirement and/or death of previous partners. 8. It was alleged that the defendants in the suit have adopted the same mark and are engaged in the same business as that of the plaintiff in the suit. It was alleged that the adoption of the mark by the defendants in the suit is mala fide and dishonest as the defendant no.1 is the brother of Sh. Ram Purwar and the uncle o