Misc. Case No. 280 of 2012 · High Court
Case Details
CRP 275/2012 B E F O R E THE HO’BLE MR.JUSTICE A.K.GOSWAMI The plaintiff had instituted a title suit being Title Suit No. 222 of 2012 befor e the learned Civil Judge No.1, Kamrup, Guwahati for Trade Marks and Copyright i nfringement, passing off, accounting of profits, recovery of damages, declaratio n and permanent injunction along with an application under Order 39 Rule 1 and 2 read with Section 151 CPC and the same was registered as Misc. (J) Case No. 10 1 of 2012. The suit of the plaintiff was subsequently transferred to the Court of the learned Civil Judge, No.2. 2. After appearance upon receipt of summons, the defendants had appeared be fore the learned Trial Court on 08-06-2012 and prayed for time to file written s tatement and an objection to the prayer for injunction of which notice was issue d in Misc.(J) Case No. 101 of 2012. On 08-06-2012, the plaintiff filed a petiti on under Section 151 CPC stating that the plaintiff had filed a transfer petiti on being Transfer Misc. Case No. 280 of 2012 which was to come up before the le arned District Judge, Kamrup, Guwahati on 11-06-2012 and, therefore, praying fo r adjournment of the case and accordingly, the learned Trial Court had fixed 12- 06-2012 for necessary orders. The said transfer petition was filed under Section 24 read with Section 151 CPC before the learned District Judge, Kamrup, and Guw ahati praying for transfer of the suit to any other Court of competent jurisdict ion. Upon hearing both sides on 11-06-2012, the learned District Judge, Kamrup, Guwahati fixed 09-07-2012 for necessary orders. On 12-06-2012, the plaintiff had filed an application under Order 7 Rule 10 A (2) read with Section 151 CPC to allow the plaintiff to present the plaint, in view of the bar imposed by Section 134 of the Trade Marks Act, 1999, for short, the Act of 1999 before the Court o f learned District Judge, Kamrup, Guwahati, on 19-06-2012. The learned Trial Court, by an order dated 12-06-2012, after hea 3. ring the counsel for both the parties, holding that under Section 134 of the Act of 1999, he had no jurisdiction to entertain the suit, returned the plaint to the plaintiff under Order 7 Rule 10 CPC. By the said order, the learned Trial C ourt, taking note of the application filed by the plaintiff under Order 7 Rule 1 0 A (2) CPC, directed the parties to appear before the Court of learned District Judge, Kamrup, Guwahati on 19-06-2012. The plaintiff also filed an application under Section 151 CPC before the Court of the learned District Judge, Kamrup, Gu wahati for re-numbering of Title Suit No. 222 of 2012 and Misc. Case No. 101 of 2012 and though no judicial order was passed on the said application, the suit a nd the injunction application was Registered as Title Suit No. 04 of 2012 and Mi sc. Application No. 311 of 2012, respectively. Subsequently, the case was transf erred for disposal to the Court of the learned Additional District Judge, Kamrup , Guwahati. On 20-06-2012, the defendants, by filing a petition No. 204 of 2012, prayed for time for filing objection regarding maintainability of the suit and for filing objection in Misc. Case No. 311 of 2012 and the learned Additional D istrict Judge, by his order dated 20-06-2012, had fixed 22-06-2012 for objection and objection hearing. On 22-06-2012, the defendants had filed an objection reg arding maintainability of the suit and the learned Additional District Judge, a fter hearing the parties, by an order dated 29-06-2012 held that the suit is ma intainable and directed for filing of written statement, fixing 30-07-2012. By a nother order dated 29-06-2012 in Misc. Case No. 311 of 2012, the learned Trial C ourt had fixed 06-07-2012 for filing objection. On a petition filed by the defen dants for adjournment, the learned Court below, by the order dated 06-07-2012 fi xed 13-07-2012 for objection and objection hearing. On 13-07-2012, the defendant s filed an application under Order 19 Rule 2 read with Section 151 CPC, register ed as petition No. 259/12, praying for cross-examination of the deponent of the injunction application by deferring filing of objection. The plaintiff also file d a petition praying for dismissal of the petition No. 259/12 with a further pr ayer to adjudicate the injunction application. Upon hearing the learned counsel for the parties, by order dated 13-07-2012, the application filed by the defenda nts was allowed and 21-07-2012 was fixed for cross-examination of the deponent o f the injunction application. 4. While by an application under Article 227 of the Constitution of India, registered as C.R.P. No. 275 of 2012, the defendants have challenged th e orders dated 12-06-2012, 20-06-2012, 22-06-2012 and both the orders dated 29-0 6-2012, the plaintiff has assailed the order dated 13-07-2012 by a similar appli cation, registered as C.R.P. No. 302 of 2012. 5. As suggested by the learned counsel for the appearing parties, b oth these petitions were heard together-at first, C.R.P No. 275 of 2012 and ther eafter, C.R.P. No. 302 of 2012 and accordingly, the petitions are being disposed of by this common judgement and order. 6. I have heard Mr. D. Das, learned senior counsel and Mr. S.P. Ro y, learned counsel in both the petitions. For the sake of convenience, the parti es will be referred to as plaintiff and defendants and Mr. D.Das as the counsel for the plaintiff and Mr. S.P. Roy as the counsel for the defendants. I have als o perused the materials on record. 7. Mr. Roy, learned counsel for the defendants submits that returni ng of the plaint is permissible only in case the Court is not having pecuniary or territorial jurisdiction and not in any other case and, therefore, returning of the plaint by the learned Civil Judge No.2 in the instant case when he, admit tedly, had no jurisdiction whatsoever to try the suit, the Court being not a cla ss of Court which had jurisdiction to take cognizance of the suit, was wholly im permissible and he ought to have dismissed the suit. He further submits that th e order dated 12-06-2012 passed by the learned Civil Judge, No.2 was not in acc ordance with Order 7 Rule 10 CPC in absence of any endorsement in the plaint by the learned Civil Judge. It is stated that the endorsement was to be found in th e index. It is also contended by him that direction to both the parties in the o rder dated 12-06-2012 by the learned Civil Judge No.2, to appear on 19-06-2012 before the learned District Judge is against the provision as contained in Order 7 Rule 10 CPC. Contention is also advanced that there being no fresh resolut ion of the Board of Directors of the plaintiff when the suit was re-presented b efore the learned District Judge, the plaint is liable to be rejected. It has be en strenuously argued by him that the learned Civil Judge, assuming that he had jurisdiction to do so, ought to have returned only the plaint to the plaintiff for presentation before the competent Court of jurisdiction and it could not hav e sent the entire record to the Court of the learned District Judge. With rega rd to the order dated 20-06-2012, it has been argued that the learned Additiona l District Judge had committed manifest error of law in directing the petitioner s to file objection within two days on the injunction application although quest ion of jurisdiction was yet to be decided. The learned counsel submits that the learned Additional District Judge had committed jurisdictional error in passing the order dated 29-06-2012 as the said order was passed without framing a preli minary issue and without enabling the parties to lead evidence. 8. Mr. Roy has also submitted that suit being a composite suit unde r the Act of 1999 and Copyright Act, 1957, for short, the Act of 1957, the same is not maintainable. He submits that in view of Section 134(2) of the Act of 199 9 and Section 62(2) of the Act of 1957, the suit must be filed before the Court of learned District Judge where the plaintiff resides and not where the defendan ts reside and to that extent Section 20 CPC stands amended. It is contended by h im that there is no plea in the plaint that the plaintiff has an office at Guwah ati. The learned counsel in support of his submission relies on (i) Raizada Topa ndas and Anr -vs- Gorakhram Gokalchand, reported in AIR 1964 SC 1348 (ii) Dimbes war Bhuyan Atoi -vs- Jatindra Ch.Mahanta, reported in (1982) 1 GLR 516 (iii) I.D .L. Chemicals Limited -vs- Income-tax Officer (Recovery) reported in AIR 1986 Or i 136 (iv)Lt. Col.Anil Bhatt -vs- Citi Bank, N.A reported in AIR 2009 Bombay 99 (v) Allahabad Bank -vs- Shank’s (Steel Fab Pvt.Ltd) reported in AIR 2008 Calcutt a 96 (vi) Dhodha House -vs- S.K. Maingi, reported in (2006) 9 SCC 41=AIR 2006 SC 730 (vii) Dabur India Ltd -vs- K.R. Industries, reported in (2008) 10 SCC 595 ( viii) Rajeswar Rabha -vs- Khagen Chandra Kalita & Ors, reported in (1992) GLR 33 4. Mr. D.Das, learned senior counsel for the plaintiff, on the othe 9. r hand, submits that though the learned Civil Judge did not have jurisdiction to entertain the suit, he had the jurisdiction to return the plaint. It is submitt ed by him that after insertion of Order 7 Rule 10 A CPC by the 1976 amendment, t here is a sea- change regarding scope and power in respect of returning of plai nt and judgments relied upon by Mr. Roy in Raizada Topandas (supra) and Dimbeswa r Bhuyan Atoi (supra) cannot support the defendants as Raizada Topandas (supra) was a case decided prior to insertion of Order 7 Rule 10 A CPC and in Dimbeswar Bhuyan Atoi (supra), there is no reference to Order 7 Rule 10 A CPC. It is submi tted by him that the defendants have waived their right, if any, as no objection was raised by them before the order dated 12-06-2012 was passed directing the parties to appear before the learned District Judge, Kamrup, Guwahati. He has fo rcefully argued that submission regarding non-maintainability of the suit, the s ame being a composite suit; the Court of District Judge, Kamrup, Guwahati not ha ving any territorial jurisdiction to try the suit; the Court of Civil Judge bein g not a class of Court which had jurisdiction to take cognizance of the suit, ou ght to have dismissed the suit instead of returning it, were never raised before the learned Additional District Judge, Kamrup, Guwahati and also in the applica tion under Article 227 of the Constitution of India before this Court and as su ch, this Court may not go into the aforesaid aspects of the matter and should co nsider the legality, validity and the legitimacy of the orders passed on the to uchstone of pleas taken before the learned Trial Court. He submits that Section 134(2) of the Act of 1999 is addition to and not in derogation to Section 20 o f the CPC. He further submits that in Section 105 of Trade and Merchandise Act, 1958, for short, the Act of 1958, which was repealed by the Act of 1999, Sub-sec tion(2) as finding place in Section 134 of the Act of 1999 was not there and the same will have a bearing in appreciating the legal conundrum. He submits that in a given case, it is possible to file a composite suit, subject to the Court h aving jurisdiction in both the subject matters of the suit. The learned senior counsel relies on (i) Sri Athmanathaswami Devasthanam -vs- K. Gopalaswami Aiyang ar, reported in AIR 1965 SC 338 (ii) R.S.D.V. Finance Co.Pvt -vs- Vallabh Glass Works Ltd., reported in 1993 Supp (3) SCC 518=AIR 1993 SC 2094 (iii) Seenappa an d others -vs- Subbaiah and others, reported in ILR 1999 KAR 1543 (iv) Dhodha Hou se (supra) (v) Dabur (supra). 10. reproduced below : Order 7 Rule 10 was amended w.e.f. 01-02-1977. The provision is (cid:28) 10. Return of plaint.- (1) Subject to the provisions of rule 1 0A, the plaint shall at any stage of the suit be returned to be presented to th e Court in which the suit should have been instituted. Explanation- For the removal of doubts, it is hereby declared th at a Court of appeal or revision may direct, after setting aside the decree pass ed in a suit, the return of the plaint under this sub-rule. (2) Procedure on returning plaint- On returning a plaint, the Ju dge shall endorse thereon the date of its presentation and return, the name of t he party presenting it, and a brief statement of the reasons for returning it. (cid:29) 11. Prior to its amendment, Order 7 Rule 10 CPC read as follows : (cid:28) 10. (1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. (2) On returning a plaint the Judge shall endorse there on the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it. (cid:29) 12. s follows : Order 7 Rule 10 A, which was inserted w.e.f. 01-02-1977, reads a
Legal Reasoning
(cid:28) 10A. Power of Court to fix a date of appearance in the Court w here plaint is to be filed after its return- (1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be return ed, it shall, before doing so, intimate its decision to the plaintiff. (1), the plaintiff may make an application to the Court- (2) Where an intimation is given to the plaintiff under sub-rule (a) specifying the Court in which he proposes to present the pla int after its return. (b)praying that the Court may fix a date for the appearance of t he parties in the said Court, and (c)requesting that the notice of the date so fixed may be given to him and to the defendant. 3. Where an application is made by the plaintiff under sub-rule (2), the Court shall, before returning the plaint and notwithstanding that the o rder for return of plaint was made by it on the ground that it has no jurisdicti on to try the suit,- (a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and (b) give to the plaintiff and to the defendant notice of such da te for appearance. (4) Where the notice of the date for appearance is given under s ub-rule (3),- (a) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appeara nce in the suit, unless that Court, for reasons to be recorded, otherwise direct s, and (b) the said notice shall be deemed to be summons for the appear ance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint was returned. 5. Where the application made by the plaintiff under sub-rule (2 ) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint. (cid:29) As 12/6/2012 is the first of the impugned orders challenged in C 13. RP 275/12, it will be appropraite to consider the illegality and validity of the said order. The said order is re-produced herein below in its entirety :- (cid:28)12/6/12
Legal Reasoning
Both sides are represented by the learned counsel. Perus ed the plaint, it reveals from the plaint that the suit is instituted for infrin gement of trade mark etc. As per Section 134 of the Trade Marks Act, 1999, the s uit for infringement etc is to be instituted before the Hon’ble District Court. Section 134 (1) of the Trade Marks Act 1999 states as follows:- (cid:28)Suit for infringement, etc, to be instituted before District Court-(1) No.suit- for the infringement of a registered trade mark; or (a) relating to any right in a registered trade mark; or (b) (c) for passing off arising out of the use by the defendant of any trade mar k which is identical with or deceptively similar to the plaintiff’s trade mark, whether registered or unregistered, shall be instituted in any Court inferior to a District Court having jurisdictio n to try the suit. (cid:29) But the suit is instituted before this Court and through inadvertently, the summ on was issued to the other side. As per Section 134 of the Trade Marks Act, 1999 I have no jurisdiction to entertain this suit. Hence, the plaint be returned to the plaintiff under Order 7 Rule 10 of the CPC. The plaintiff is at liberty to file the suit having proper court of jurisdiction, if so, advised. In the meantime, the plaintiff filed a petition under Order 7 Rule 10 (A ) (2) of the CPC praying to allow the plaintiff to present the plaint before the Court of Hon’ble District Judge, Kamrup, Guwahati in view of the bar imposed by Section 134 of Trade Marks Act, 1999 and the plaintiff also prayed to allow the present the plaint before the Hon’ble District Judge on 19/6/12. Heard both sid es.Both parties are directed to appear on 19/6/12 in the Court of Hon’ble Distri ct Judge, Kamrup, Guwahati in which the plaint is proposed to be presented. (cid:29) 14. From the said order, it is apparent that the learned Civil Judge, by the first part of the order returned the plaint to the plaintiff under Order 7 Rule 10 CPC as he had no jurisdiction to entertain the suit as per Section 134 of th e Act of 1999. By the second part of the order, the learned Single Judge allowed the prayer of the plaintiff made under Order 7 Rule 10 A (2) CPC to present the plaint before the Court of learned District Judge, Kamrup, Guwahati in view of the bar imposed by Section 134 of the Act of 1999 with a further direction to th e parties to appear on 19/6/12. 15. Though Mr. Das has rightly pointed out that in this application, no plea was taken that the learned Civil Judge, in the facts and circumstances of the c ase, being not a class of Court which had jurisdiction to take cognizance of the suit, had no power under Order 7 Rule 10 CPC and or Order 7 Rule 10 A CPC to re turn the plaint, in view of the fact that arguments have been advanced on this s core and also having regard to the fact that, it raises a question of law, I am not inclined to accept the submission of Mr. Das that the plea be ignored. 16. rties on return of plaint. 17. In R.S.D.V Finance (supra), the Apex Court laid down that the only cours e to be adopted in a situation where the Court finds that it had no jurisdiction to try the suit is to return the plaint for presentation to the proper Court an Let me now discuss the case-laws cited by the learned counsel for the pa d not to dismiss the suit. 18. In Sri Athmanathaswami Devasthanam (supra), the High Court had found tha t the suit could be instituted only in the revenue Court as the suit land was ry ot land and that the Civil Court had no jurisdiction to entertain it and the Hig h Court, therefore, had set aside the decree which was passed by the learned tri al Court and ordered the return of the plaint to the plaintiff-appellant for pre sentation to the proper Court. The matter being carried to the Supreme Court, th e Supreme Court held that suit by a land holder to recover arrears of rent and t o eject ryot are triable by a collector and such suits cannot be taken cognizanc e of by Civil Court in view of the statutory provisions holding the field. The A pex Court also stated that when the Court had no jurisdiction over the subject m atter of the suit, it cannot decide any question on merits and coming to the con clusion that it had no jurisdiction over the matter, it had to return the plaint . 19. In Seenappa (supra), it was held that when the suit filed in a Court whi ch has no jurisdiction to entertain the suit, the plaint can be returned by the said Court for presentation to the proper Court which has got jurisdiction, with in the time prescribed by the Court. It is further held that it is a concession given to the parties to take return of the plaint to present the same in proper Court, so that they need not pay fresh Court fees and file a fresh suit in a Cou rt of competent jurisdiction for the same relief. It further went on to say that if the plaintiff does not avail the concession, it does not bar him to file a f resh suit by again paying Court fees in the Court of competent jurisdiction. 20. In IDL Chemicals (supra), the Orissa High Court also laid down that on a finding recorded that the trial Court did not have jurisdiction, the trial Cour t should have given opportunity to the plaintiff to take return of the suit. 21. vy reliance reads as follows:- Paragraph 10 of Raizada Topandas (supra) on which Mr. Roy has placed hea (cid:28)In answering this question it is perhaps necessary to refer to the gene ral principle which admittedly governs the question of jurisdiction at the incep tion of suits. This general principle has been well explained in the Full Bench decision of the Allahabad High Court. Ananti v. Channu I.L.R.(1929) All 501 and has not been disputed before us. It was observed there: The plaintiff chooses his forum and files his suit. If he establishes th e correctness of his facts he will get his relief from the forum chosen: If &he f rames his suit in a manner not warranted by the facts, and goes for his relief t o a Court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentat ion to the proper Court, for the plaint, as framed, would not justify the other kind of Court to grant him the relief &If it is found, on a trial on the merits s o far as this issue of jurisdiction goes, that the facts alleged by the plaintif f are not true and the facts alleged by the defendants are true, and that the ca se is not cognizable by the Court, there will be two kinds of orders to be passe d. If the jurisdiction is only one relating to territorial limits or pecuniary l imits, the plaint will be ordered to be returned for presentation to the proper Court. If, on the other hand, it is found that, having regard to the nature of t he suit, it not cognizable by the class of Court to which the court belongs, the plaintiff’s suit will have to be dismissed in its entirety. (cid:29) 22. In Dimbeswar Bhuyan Atoi (supra), this Court held that the Court below l acked pecuniary jurisdiction to entertain the suit and therefore, the learned tr ial Court ought to have returned the plaint to the plaintiff for filing in the C ourt of competent pecuniary jurisdiction and it did not have jurisdiction to dis miss the suit. In paragraph 9 it is also held as follows:- (cid:28).......We have already noticed in the case reported in AIR 1964 SC 1348 (supra) the law enunciated by their Lordships regarding the general principles of jurisdiction. There the law has been succinctly stated to the effect that if a suit is filed in a Court and nature of the suit is such, that it is not cogniz able by the class of Court to which the Court belongs, then the plaintiff’s suit is to be dismissed in its entirety..... (cid:29) In Allahabad Bank (supra), the Calcutta High Court held that as the Civi 23. l Court had no jurisdiction to entertain the suit where the claim of the bank is more than 10 lakhs, the plaint cannot be returned as Order 7 Rule 10 applies on ly in case of lack of either territorial or pecuniary jurisdiction and not in ca se of statutory power of jurisdiction. It was held that Order 7 Rule 10 speaks o f a situation where either the territorial or pecuniary jurisdiction of that par ticular Court is lacking and that such suit is required to be filed in a differe nt Court to which the Court of Civil Procedure applies having jurisdiction to en tertain the dispute. It also laid down that nowithstanding the rejection of the plaint, the plaintiff is entitled to maintain fresh proceedings before the Debt Recovery Tribunal. While laying down the said proposition, reference to Order 7 Rule 11 (d) of CPC was also made. 24. In Lt. Col. Anil Bhatt (supra), the Bombay High Court held that power of Civil Court to direct return of the plaint is limited to those cases where it h as no territorial or pecuniary jurisdiction. It was also held that in the case i t had no jurisdiction in respect of the subject matter, then it cannot direct re turn of the plaint. The reference was made to M/S Raizada Topandas (supra) and a ccordingly, it held thus follows:- (cid:28)......The proposition which follows is that the power of the Civil Cour t to direct return of the plaint is limited to those cases where it has has no t erritorial or pecuniary jurisdiction. In case if it has no jurisdiction in respe ct of the subject matter, then it cannot direct return of the plaint..... (cid:29) 25. From the authorities cited above, it is evident that if a Court does not have territorial or pecuniary jurisdiction, it has no option but to return the plaint.The sheet anchor and the foundation of submission of Mr. Roy that in the instant case, plaint could not have been returned by the learned Civil Judge, it being not a class of Court which had jurisdiction to take cognizance of the sui t, is based on the decision of the Apex Court in Raizada Topandas (supra). There fore, an attempt must be made to cull out the true ratio. While rendering the sa id judgment, the Apex Court quoted with approval the Full Bench decision of the Allahabad High Court in the case of Mt. Ananti versus Chhannu, reported in AIR 1 930 All 193=I.L.R.(1929) All 501. Therefore, it will be appropriate to have a br ief glimpse of the factual matrix of Mt. Ananti (supra) and the questions posed therein. 26. In Ananti (supra), the plaintiff instituted a suit on the allegation tha t her husband, separated from his brother about 25 years prior to the institutio n of the suit, died about 10 years back and since then she was in possession of her husband’s occupancy holding as his heir. It was pleaded that the defendants, who were the descendants of the brother of the husband of the plaintiff, took p ossession of her holding. She, accordingly, sued for recovery of possession and for recovery of mesne profits. The defendants in the written statement contended that the husband of the plaintiff and his brother were joint and that her husba nd having died as a joint member of her family, the defendants were the tenants of the holding and the plaintiff had no right. They also pleaded that the suit w as not cognizable by the Munsiff’s Court. The Munsiff faced a dilemma- the dilem ma being that if the allegations in the plaint were accepted, the suit would be cognizable by the Civil Court, but if the defence as mentioned in the written st atement could be considered without an enquiry as to its truth or otherwise, the suit would be cognizable by the Revenue Court, having regard to the statutory p rovisions. He, accordingly, framed two questions and made a reference under Sect ion 267 of Agra Tenency Act, 1926 to the High Court. The first question which is relevant for the purpose of this case is quoted below: (cid:28)Where a plaintiff alleging himself to be a tenant sues a defendant trea ting him as a trespasser, for possession and compensation regarding a holding or a part thereof, and the defendant pleads tenancy, then having regard to Ss.99 a nd 230 of the Act (3 of 1926), is the suit maintainable in the Civil Court? (cid:29) 27. The two learned Judges before whom the reference were placed, referred t he matter to a larger Bench, they having not agreed with an earlier decision of the Court. 28. The Full Bench of the Allahabad High Court in Mt.Ananti (supra),held tha t it is for the plaintiff to choose the forum and he is to see in which Court hi s suit would lie, having regard to the facts of the case, which means the allega tions in the plaint and the valuation of the suit. It is for him to see whether, on the allegations made in the plaint, it is cognizable by it. If the plaint is cognizable by the Court, the defence, whatever it may be, will not oust the jur isdiction of the Court. It may be that on the facts alleged and established by t he defendant it may transpire that the plaintiff’s allegations as made in the pl aint are incorrect or false and that the real relief which the plaintiff is enti tled to get (if any) is not within the jurisdiction of the Court which is seised of the case, to grant, and in such circumstances the suit will have to be dismi ssed on the ground that the Court is not in a position to grant relief. 29. It is in that backdrop, the Apex Court had quoted in paragraph 10 of Rai zada Topandas (supra), the passage of Mt. Ananti (supra)extracted herein above. The true import of the said decision is that the question of jurisdiction would, initially depend on the allegations made in the plaint. If the Court finds on t hese allegations that it had no jurisdiction to entertain the plaint, it would r eturn the same for presentation to the proper Court. If, on the other hand, the allegations made in the plaint gave jurisdiction to the Court to hear it and the defendant appeared to controvert those facts, then the defence would only raise an issue for the Court to determine. If it is found, on a trial, on the merits so far as this issue of jurisdiction goes, that the facts alleged are not true and the facts alleged by the defendants are true and that the case is not cogniz able by the Court by reason of it not having territorial or pecuniary jurisdicti on, the plaint would be ordered to be returned for presentation to the proper Co urt. On the other hand, if it is found that, having regard to nature of the suit , it is not cognizable by the class of the Court to which the Court belongs, the plaintiff’s suit will have to be dismissed in its entirety and the plaint canno t be ordered to be returned. 30. In the instant case, no written statement has been filed by the defendan t as yet. On the basis of the allegations made in the plaint, it was apparent th at the Court of Civil Judge did not have jurisdiction to try the suit in view of Section 134 of the Act of 1999. Therefore, this Court is of the considered opin ion that it cannot be accepted as a general principle of law that if a suit is f iled in a Court which is not a class of Court which can adjudicate and try the s uit, the plaint cannot be returned and the suit had to be necessarily dismissed. If on the plain reading of the plaint, in view of statutory prescription, a Cou rt does not have jurisdiction to try the suit, it is not convinceable how the Co urt will have jurisdiction to dismiss the suit. The Court will have jurisdiction to dismiss the suit, after trial, if it is found that though on the basis of th e statements made in the plaint, the Court had the jurisdiction but later on, tr ue facts having emerged on contest, the Court turned out to be a class of Cout w hich did not have jurisdiction to try the suit. 31. No fetters have been placed either in Order 7 Rule 10 or in Order 7 Rule 10A restricting exercise of power of returning the plaint only in case of the C ourt not having pecuniary or territorial jurisdiction as the learned counsel for the defendants would contend. The judgment in Dimbeswar Bhuyan Atoi (supra) and Lt. Col. Anil Bhatt (supra) will have to be understood in the context of the fa cts in Mt. Ananti (supra). The submission of Mr. Das is also not correct that it is because of insertion of Order 7 Rule 10 A, in the instant case, the learned Civil Judge could return the plaint. 32. In view of the provision of Order 7 Rule 10A, notwithstanding re turn of the plaint, on the ground of lack of jurisdiction, the Court on the appl ication of the plaintiff specifying the Court in which the plaint is proposed to be filed, fix a date for appearance of the parties in the said Court and theref ore, submission of the learned counsel for the defendants to the contrary is wit hout any merit. In paragraph 18 of the petition, defendants also contend that t here is no requirement of intimation to be given by the learned Trial Court reg arding its decision to return the plaint. It is also stated that the plaintiff f iled the application under Order 7 Rule 10A after the plaintiff had known the in tention of the learned Trial Court to return the plaint. No irregularity is caus ed thereby and the same is in tune with Order 7 Rule 10 A CPC. Even if the endor sement was made in the index and not on the body of the plaint, the same is only an irregularity and does not vitiate the return of plaint per se. However, it is also found that endorsement is in the plaint (page 141 of the paper book). In any case, no prejudice is caused to the defendants. Same is the case with rega rd to return of other records such as vakalatnama, injunction etc. The suit was already filed and the plaint was only returned to be filed in the Court of the D istrict Judge and therefore, the contention on behalf of the defendants that in absence of a fresh resolution of the Board of Directors, before re-presentation, there is no presentation of the plaint in the eye of law and as such the plain t is liable to be rejected, is found to be without any substance. 33. The defendants had appeared in the Court of learned Civil Judge No.2 on 08-06-2012 and having regard to the subject matter in dispute, it cannot be said that the learned Additional District Judge committed any material irreg ularity or jurisdictional error in granting time for two days by the order dated 20-06-2012 for the purpose of filing objection in the injunction petition. Ther e was no effective order on 22-06-2012 and no argument has also been advanced wi th regard to the perceived invalidity of the said order. 34. Order dated 29-06-2012 passed in Misc (J) Case No. 311/2012 is o nly an order fixing filing of the written objection/objection hearing on 06-07-2 012, consequent upon rejection of the petition pleading non-maintainability of t he suit by a separate order dated 29-06-2012. In the aforesaid circumstances, no interference is called for with the order. 35. Cause of action is a bundle of facts which are necessary to be p roved in a given case. Cause of action, if arises within the jurisdiction of the Court concerned, empowers the Court to entertain the matter. Determination of t erritorial jurisdiction of Civil Court is governed by the provisions of CPC. Sec tion 16 CPC provides for institution of the suit where the subject- matter of t he suit is situate. Section 17 of the Act refers to the suits for immovable pro perty within the jurisdiction of different Courts. Section 18 refers to place o f institution of a suit where local limits of jurisdiction of Courts are uncerta in. While Section 19 of the CPC contemplates suits for compensation for wrongs t o persons or movable, Section 20 provides that the suits which do not come withi n the purview of Section 16 to 19 of the Code are to be instituted where the def endants reside or cause of action arises. 36. ow: Section 20, with which we are concerned, is extracted herein bel (cid:28) 20. Other suits to be instituted where defendants reside or ca use of action arises- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction- (a) the defendant, or each of the defendants where there are mor e than one, at the time of the commencement of the suit, actually and voluntaril y resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carr ies on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such instit ution; or (c) the cause of action, wholly or in part, arises. (Explanation)- A corporation shall be deemed to carry on business at its sole or principal office in (India) or, in respect of any cause of action arising at an y place where it has also a subordinate office, at such place. (cid:29) 37. e is quoted herein below : (cid:28) Jurisdiction of court over matters arising under this Chapter- (1) & &. Section 62(2) of the Act of 1957 is relevant and as such the sam (2). For the purpose of sub-section (1), a ’District Court havin g jurisdiction’ shall, notwithstanding anything contained in the Code of Civil P rocedure, 1908 (5 of 1908), or any other law for the time being in force, includ e a District Court within the local limits of whose jurisdiction, at the time o f the institution of the suit or other proceeding, the person instituting the su it or other proceeding or, where there are more than one such persons, any of th em actually and voluntarily resides or carries on business or personally works f or gain. (cid:29) 38. The Act of 1958 has since been repealed and Act of 1999 has come into force. Section 105 of the Act of 1958 read as follows : (cid:28) Suit for infringement, etc, to be instituted before District C ourt- (1) No suit- (a) For the infringement of a registered trade mark; or (b) Relating to any right in a registered trade mark; or (c) For passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff’s trade ma rk, whether registered or unregistered, shall be instituted in any court inferio r to a District Court having jurisdiction to try the suit. (cid:29) 39. 99 and as such, the same is quoted herein below : It will also be relevant to notice Section 134 of the Act of 19 (cid:28) Section 134; Suit for infringement, etc, to be instituted befo re District Court- (1)No suit- (a)For the infringement of a registered trade mark; or (b)Relating to any right in a registered trade mark; or (c) For passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff’s trade ma rk, whether registered or unregistered, shall be instituted in any court inferi or to a District Court having jurisdiction to try the suit. (2) For the purpose of clauses (a) and (b) of sub-section (1), a (cid:28)Distri ct Court having jurisdiction (cid:29) shall, notwithstanding anything contained in the C ode of Civil Procedure, 1908 or any other law for the time being in force, inclu de a District Court within the local limits of whose jurisdiction, at the time o f the institution of the suit or other proceeding, the person instituting the su it or proceeding, or, where there are more than on such persons any of them, act ually and voluntarily resides or carries on business or personally works for gai n. (cid:29) 40. On the subject of maintainability of composite suit, both the le arned counsel appearing for the respective parties rely upon Dhodha House (Supra ) and Dabur (Supra). In Dhodha House (Supra), apart from the case of Dhodha Hous e, another case being Civil Appeal No. 16 of 1999 was also considered. Dhodha Ho use as plaintiff had filed the suit in the Court of District Judge, Ghaziabad ag ainst the respondent to protect his copyright, trademarks and common law rights which the respondent had allegedly infringed. The plaintiff carried on business of sweetmeats in the district of Ghaziabad whereas the defendant carried on busi ness in the district of Faridkot. The defendant also did not reside at Ghaziabad . Against an order of injunction, the defendant preferred an appeal before the H igh Court and the High Court had held that the Civil Court had no jurisdiction to try the suit. The High Court had also arrived at a finding that the infringem ent complained of primarily is that of the Act of 1958 and not under the Act of 1957. Though the Court at Ghaziabad had jurisdiction to consider the cause of a ction arising out of Act of 1957 in view of Section 62 (2) thereof, the said Co urt did not have jurisdiction under the Act of 1958. The Apex Court, accordingly , dismissed the appeal of Dhodha House holding that no jurisdiction can be conf erred upon a Court which has jurisdiction to try only the suit in respect of one cause of action and not the other. In the other case, namely, Civil Appeal No. 16 of 1999, both the plaintiff and the defendants/appellants carried on business in diesel engine at Rajkot in the State of Gujarat. A suit on the original side of the Delhi High Court was filed for perpetual injunction restraining infringe ment of trademark, copyright, trading style, passing off and for rendition of ac counts. The learned Single Judge dismissed an application for injunction holding that the plaintiff had, prima facie, failed to show that the Delhi High Court h ad territorial as well as pecuniary jurisdiction. The intra-court appeal being a llowed, the defendants preferred appeal before the Apex Court. Cause of action f or filing suit at Delhi was on the basis of sale of products and advertisement b y the appellant for registration of trademarks in the trademarks journal and oth er local papers. The Supreme Court took note of the fact that the Division Bench did not advert to the issue as to whether the defendants had been selling its p roducts at Delhi on a commercial scale or not. The Apex Court held that advertis ement appearing in a journal or in newspapers would not confer any jurisdiction on the Court. The Supreme Court also noticed that the primary ground upon which the jurisdiction of the original side of the High Court was invoked was the viol ation of the Act of 1958. The plaintiff was not a resident of Delhi and it had a lso not been able to establish that it carries on any business at Delhi. In vie w of the aforesaid factual matrix, the Apex Court allowed Civil Appeal No. 16 of 1999. 41. In paragraph 23, the Supreme Court stated as follows : (cid:28) 23. Order 2 Rule 3 of the Code provides that the plaintiff m ay unite in the same suit several causes of action against the same defendant, o r the same defendants jointly. The said order contemplates uniting of several ca uses of action in the same suit. By necessary implication, a cause of action for infringement of copyright and a cause of action for infringement of trademark o r a cause of action of passing off would be different. Even if one cause of acti on has no nexus with another, indisputably Order 2 Rule 3 may apply. However, by reason of application of Order 2 Rule 3 of the Code ipso facto would not confer jurisdiction upon a Court which had none so as to enable it to consider infring ement of trade mark under the 1957 Act as also the 1958 Act. (cid:29) The question that had fallen for consideration in Dhodha House ( 42. supra) was as to whether even though causes of action in terms of Act of 1957 an d Act of 1958 are different, a suit will be maintainable in a Court only because it has jurisdiction to entertain the same in terms of Section 62 (2) of the Act of 1957. The Apex Court observed that a cause of action both under the Act of 1 957 as also the Act of 1958 may be overlapping to some extent. While noting that the territorial jurisdiction conferred upon the Court in terms of the provision of CPC indisputably shall apply to a suit or proceeding under the Act of 1957 a s also the Act of 1958, the Apex Court laid down as follows : (cid:28) 54. For the purpose of invoking the jurisdiction of a Court on ly because two causes of action joined in terms of the provisions of the Code of Civil Procedure, the same would not mean that thereby the jurisdiction can be conferred upon a Court which had jurisdiction to try only the suit in respect o f one cause of action and not the other. Recourse to the additional forum, howev er, in a given case, may be taken if both the causes of action arise within the jurisdiction of the Court which otherwise had the necessary jurisdiction to deci de all the issues. (cid:29) 43. It is apparent that in Dhodha House (Supra), the Apex Court was not considering the maintainability of a composite suit both under the Act of 19 57 and the Act of 1958 as would be demonstrated by the following paragraph: (cid:28) 22. We are not concerned in this case with the maintainability of a composite suit both under the 1957 Act and the 1958 Act. Indisputably, if such a situation arises, the same would be permissible; but the same may not be relevant for the purpose of determining the question of a forum where such suit can be instituted. Sub-section (2) of Section 62 of the 1957 Act provides for a non obstante clause conferring jurisdiction upon the District Court within the local limits of whose jurisdiction, at the time of the institution of the suit o r other proceeding, the persons instituting the suit or other proceedings have b een residing. In terms of sub-section (1) of Section 62, suit can be instituted and the proceeding can be initiated in respect of matters arising under the said chapter for infringement of the copyright in any matters arising under the said chapter for infringement of the copyright in any work or the infringement of an y other right conferred there under. It does not confer jurisdiction upon a Dist rict Court where the plaintiff resides, if a cause of action arises under the 19 58 Act. (cid:29) In Dabur (Supra), the appellant, who was the plaintiff and a man 44. ufacturer of products known as Dabur Red Tooth Powder filed a suit in Delhi High Court praying for the following reliefs : (cid:28) 6. The reliefs claimed for by the plaintiff in the said suit, inter alia, are : (A) An order of permanent injunction restraining the defendant, their partners, proprietors and/or promoters, as the case may be, their servants and agents, representatives, dealers and all others acting for and on their beh alf from reproducing any of the artistic features of the plaintiff’s DABUR RED T OOTH POWDER container/packaging/pouch, including its colour combination, get-up, layout or arrangement of features, printing, publishing, using or otherwise rep roducing any of the artistic features thereof in any material form amounting to an infringement of copyright. (B) An order of permanent injunction restraining the defendants, their partners, proprietors and/or promoters, as the case may be, their servan ts and agents, representatives, dealers and all others acting for and on their b ehalf from manufacturing, selling, offering for sale or otherwise directly or i ndirectly dealing in tooth powder packed in the impugned packaging or any other packaging as may be a slavish imitation and/or a substantial reproduc tion of DABUR RED TOOTH POWDER container/packaging/pouch or from committing any other act as is likely to cause confusion and deception amounting to passing of f. (cid:29) 45. The respondent had filed an application purportedly under Order 7 Rule 11 CPC contending that as the defendant was a resident of Andhra Pradesh, the Delhi High Court had no jurisdiction. The question which was posed by the l earned Single Judge in Dabur (Supra) is as under : (cid:28) The next question, however, which is more important is whether the plaintiff can combine the two causes of action, one under the Copyright Act and the second under the Act of 1958 in a situation where this Court has the ju risdiction insofar as cause of action under the Copyright Act is concerned but has no territorial jurisdiction to entertain the cause of action relating to the Act of 1958. (cid:29) The learned Single Judge accepted the contention of the defendant. The intra-c ourt appeal was also dismissed. The Division Bench had, however, held that while the High Court had jurisdiction to adjudicate and decide upon the relevance of infringement of copyright, it would be open to the appellant to file a fresh sui t in the Court of competent jurisdiction in respect of its action for passing of f and thus the plaint required to be returned for filing in the Court of compete nt jurisdiction only in regard thereto. Before the Apex Court it was contended t hat the jurisdiction of the Court to entertain composite suit under the Act of 1 957 and the Act of 1958 should be determined having regard to the provision of S ection 55 of the former. The Supreme Court explained that the composite suit wi thin the provision of the Act of 1957 as considered in Dhodha House (Supra) woul d mean the suit which is founded on infringement of a copyright and wherein the incidental power of the Court is required to be invoked and that it did not mea n that two suits having different causes of action can be clubbed together as a composite suit and accordingly, had dismissed the appeal. 46. It was held in paragraph 34 as follows : (cid:28) 34. What then would be meant by a composite suit? A composite suit would not entitle a Court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Order 2 Rule 3 of the Code specifically states so and, thus, there is no reason as to why the same should be ignored. A composite suit within the provisions of the 1957 Act as considered in Dhodha Hou se therefore, would mean the suit which is founded on infringement of a copyrigh t and wherein the incidental power of the Court is required to be invoked. A pla intiff may seek a remedy which can otherwise be granted by the Court. It was th at aspect of the matter which had not been considered in Dhodha House but it nev er meant that two suits having different causes of action can be clubbed togethe r as a composite suit. (cid:29) 47. The observation aforesaid to the effect that the Supreme Court n ever meant that two suits having different causes of action can be clubbed toget her as a composite suit has to be understood in the context of the issues confro nting the Apex Court and it cannot be construed that the Apex Court had laid dow n a proposition that two suits having different causes of action cannot be clubb ed together as a composite suit inasmuch as in paragraph 22 of Dhodha House (sup ra), it was categorically laid down that Apex Court was not concerned in the sai d case with the maintainability of a composite suit both under the 1957 Act and 1958 Act. Nonetheless, in paragraph 22 itself, the Apex Court stated that if su ch a situation arose, the same would be permissible. It is clear that both in D hodha House (Supra) and Dabur (Supra), the issue was with regard to territorial jurisdiction of the Court. 48. As laid down in Dhodha House (supra), even if one cause of actio n has no nexus with another, Order 2 Rule 3 will apply. It would thus appear, a composite suit will lie before the Court provided that the Court has jurisdict ion to consider issues arising out of both the Act of 1957 and the Act of 1958. The plaintiff can combine two causes of action, one under the Act of 1957 and th e other under the Act of 1958 or for that matter, Act of 1999, provided the Cou rt has independent jurisdiction, under the Act of 1957 or under the Act of 1958 or the Act of 1999. 49. One more contention of Mr. Roy is that the District Court at Kam rup, Guwahati did not have territorial jurisdiction to entertain cause of action arising under Act of 1957 and Act of 1999, inasmuch as, under Section 62 (2) an d under Section 134 (2), respectively, of the said Acts, the plaintiff can insti tute a suit only where the plaintiff is residing or carrying on business or pres ently working for gain and there being no averment in the plaint to the effect t hat the plaintiff or the person instituting the suit actually and voluntarily re sides and carry on business or presently works for gain in Guwahati, the Distric t Court at Kamrup, Guwahati does not have territorial jurisdiction. 50. Section 62 (2) was interpreted in Exphar Sa -vs- Eupharma Labora tories Ltd. and Another, reported in, (2004) 3 SCC 688 to the effect that it pr escribes additional ground for attracting the jurisdiction of a Court over and a bove the normal ground as laid down in Section 20 of the Code in the following w ords : (cid:28) 13. It is, therefore, clear that object and reason for the int roduction of sub-section (2) of Section 62 was not to restrict the owners of the copyright to exercise their rights but to remove any impediment from their doin g so. Section 62 (2) cannot be read as limiting the jurisdiction of the Distric t Court only to cases where the person instituting the suit or other proceeding , or where there are more than one such persons, any of them actually and volunt arily resides or carries on business or presently works for gain. It prescribes an additional round for attracting the jurisdiction of a Court over and above t he normal grounds as laid down in Section 20 of the Code. (cid:29) 51. Section 62 (2) of the Act of 1957 and Section 134 (2) are pari-m ateria provisions. Section 134 (1) provides that no suit-(a) for infringement o f a registered trademark; or (b) relating to any right in a registered trademark ; or (c) for passing off arising out of use by the defendant of any trademark w hich is identical with or deceptively similar to the plaintiff’s trademark, whe ther registered or unregistered, shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit. On the analogy of Exphar S a (Supra), it will be only logical to hold that Section 134 (2) provides an addi tional ground for attracting the jurisdiction of a Court in relation to a suit u nder Section 134 (1) (a) and Section 134 (1) (b) of the Act of 1999 over and abo ve the normal grounds as laid down in Section 20 of the Act. It is also noticed that for suit under Section 134 (1) (c) of the Act of 1999, no additional forum has been created. It is not in dispute that the defendants reside, carry on busi ness and work for gain at Guwahati. The causes of action have also arisen within Therefore, the s ubmission of Mr. Roy that Court at Guwahati does not have territorial jurisdicti on is wholly not sustainable in law. 52. 53. , is reproduced herein below : Let me now consider C.R.P. No. 302 of 2012. Order dated 13-07-2012, which is the subject matter of challenge the jurisdiction of the District Judge, Kamrup, Guwahati. (cid:28)Both the sides are present. Today is the date fixed for filing objection by the Opposite Party against the temporary injunction application. Th e Ld. Counsel for the Opp. Party filed an application Under Order 19 Rule 2 CPC r/w Section 151 of CPC praying to allow the Opp. Party to cross-examine the depo nent of the affidavit of the injunction application. Copy of the petition was fi led to the petitioner side. The Ld. Counsel for the petitioner by filing petn. N o. 261/12 raised serious objection to the petition and prayed to dismiss the sam e. Heard the Ld. Counsel of both the sides. After hearing the Ld. Counsels I fin d merit in the petition filed by the Opp. Party and accordingly same is allowed. Fix 21/7/12 for cross-examination of the deponent. (cid:29)
Decision
Mr. Das, learned senior counsel for the plaintiff submits that a 54. fter the rejection of the application questioning the maintainability of the sui t, the application under Order 19 Rule 2 read with Section 151 CPC was filed fo r cross-examination of the deponent of the affidavit of injunction application f or deferring the filing of the objection against the injunction petition on fli msy grounds to delay the disposal of the injunction application. The learned sen ior counsel submits that the impugned order is bereft of any reason and displays total non application of mind and on that ground itself, the impugned order des erves to be set aside. He submits that procedure for calling the deponent for cr oss-examination is not contemplated in an interlocutory matter like granting of injunction under Order 39. It is further submitted by him that such an applicati on should be disposed of on an affidavit or otherwise as early as possible. In s upport of his submissions, he relies upon a decision of this Court in the case o f Rajib Barooah and Another -vs- Hemendra Prasad Barooah and Others, reported in AIR 1994 GAUHATI 52. 55. By drawing attention to the application filed, Mr. Roy submits t hat the deponent of the said application had sworn false affidavit in support of the application by stating that he himself was the petitioner. He submits that in view of the averments made in the application and also what is depicted in th e cause title of the application, it was an utmost necessity to cross-examine hi m to elicit truth as to whether he is the Legal Manager of the plaintiff and as to whether he was/is authorized by the company/plaintiff to file the instant ap plication. It is also submitted that false statements were made alleging similar ity of trade mark of the plaintiff with that of the defendants and therefore, it will advance the cause of justice if the defendants are allowed to cross-examin e the deponent so that truth comes out. In support of his submission, learned co unsel relies on a decision of Apex Court in (i) State Bank of Travancore -vs- M/ s Kingston Computers (I) Pvt. Ltd, reported in (2011) 11 SCC 524= 2011 AIR SCW 1 948 and (ii) Rajeswar Rabha -vs- Khagen Chandra Kalita & Ors, reported in (1992) 1 GLR 334 . 56. It needs no reiteration that power to grant injunction is discre tionary to be exercised on sound judicial principles. Order 39 envisages disposa l of petition for injunction by affidavit or otherwise. That the legislative int ent that an application for injunction is to be decided in a summary manner is c lear and apparent from the very language of Order 39. The Court is empowered to grant temporary injunction, on affidavit or otherwise on the sole purpose and o bject that the matter may be disposed of without going through full length trial requiring examination and cross-examination of witnesses, as a lengthy procedur e will be counter-productive and may even frustrate the very purpose of the obj ect of grant of injunction. Such a view had been taken by this Court in Rajib Ba rooah (Supra). 57. In State Bank of Travancore (Supra), the suit of the plaintiff w as dismissed by the learned Trial Court after analyzing the pleadings and evalua ting the evidence produced on the ground that the plaintiff had not produced any evidence to prove that one A.K. Shukla was appointed as a Director of a company and that by a resolution of the Board of Directors he was authorized to institu te the suit. On appeal, the High Court had set aside the judgement of the learne d Trial Court. The Apex Court set aside the judgement of the High Court acceptin g the reasoning of the learned Trial Court. It is to be noted that in the case i n hand, the subject matter involved is an application for injunction. In order to obtain the discretionary relief of injunction, the plaintiff has to satisfy t hree golden principles of grant of injunction. The submission of Mr. Roy primari ly touches upon maintainability of the petition, which can very well be argued. In Rajeswar Rabha (supra), this Court held that it cannot be said that an applic ation for temporary injunction can be decided only on the basis of the statement s made in the affidavit. It was further held that the Court has also the jurisdi ction to summon the deponent of the affidavit for cross-examination either suo-m uto or at the instance of the party though elaborate procedure of adducing evide nces to prove a case for injunction is not warranted. In the said case, consider ing the complex facts and circumstances, cross-examination of the deponent of th e application for injunction was considered to be necessary. The present controv ersy in the opinion of the Court, is not so complex so as to warrant examination of the deponent of the affidavit of the injunction application. 58. The learned Trial Court, by a laconic order, without any consid eration on the germane issues, allowed the application praying for cross-examina tion of the deponent of the injunction application. In view of the discussions a bove, there is no merit in the application filed by the defendants for cross-exa mination of the deponent of the application for injunction and as such, the ord er dated 13-07-2012 is set aside. 59. In the result, C.R.P. No. 275 of 2012 is dismissed and C.R.P. No. 302 of 2012 is allowed. The parties shall appear before the Court of learned Additiona l District Judge, Kamrup, Guwahati on 18-02-2013 for further orders.