Pradeep Bhuwalka, son of Jagdish Prasad Bhuwalka under the name & style of M/s v. 1. Raju Vasan, son of late Kundan Lal Vasan 2. Rahul Vasan, son of
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Appellate Jurisdiction) F.A. No.114 of 2017 Pradeep Bhuwalka, son of Jagdish Prasad Bhuwalka under the name & style of M/s Bhuwalka Perfumery, resident of Katras, PO & PS Katras, District Dhanbad. ..... … Plaintiff/Appellant Versus 1. Raju Vasan, son of late Kundan Lal Vasan 2. Rahul Vasan, son of Raju Vasan Under the name & style of M/s Vasan Perfumery Works, resident of near old rice mill, Punjabi Mohalla, (Keshalpur Road), Katrasgarh, PO & PS Katrasgarh, Dhanbad.
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE SUBHASH CHAND ------ For the Plaintiff For the Defendants : Ms. Khushboo Kataruka, Advocate Mr. Shubham Kataruka, Advocate : Mr. Sanjay Prasad, Advocate
Decision
-------- ORDER CAV On 5 th February 2024 Pronounced on 15th March 2024 I.A. No. 502 of 2021 The instant interlocutory application is on behalf of appellant under Order XLI Rule 27 of the Code of Civil Procedure with these averments that the learned Trial Court while deciding the suit of the plaintiff/appellant had framed issue no. III as under: whether the plaintiff is the registered owner of trade mark of “Bhuwalka Dashmesh 100” for selling incense sticks? 1.2 In order to prove the said issue the plaintiff/appellant had got exhibited Trade Mark Registration Certificate having Trade Mark 2 F.A. No.114 of 2017 No. 2433921 issued under the seal and signature of the Registrar of Trade Marks, Trade Mark Registry, Government of India under Trade Marks Act, 1999 as Exhibit-8. The xerox copy of Exhibit-8 is annexure-1 to this IA. The learned trial court while deciding the Issue No.III, IV and V held that the plaintiff/appellant does not have registered Trade Mark “Bhuwalka Dashmesh-100” Exhibit-8 is the public document issued by the Public Office however the word “Bhuwalka” was not visible or appearing in the said certificate. 1.3 Accordingly, the appellant/plaintiff again applied for the Trade Mark Certificate having Trade Mark No. 2433921 which was issued on 26.05.2017 under the seal and signature of the Examiner of the Trade Marks, Government of India, Trade Marks Registry, I.P. Bhawan, 5th Floor, CP-2, Sector-V, Salt Lake, Kolkata-700091 as “Bhuwalka Dashmesh-100”. The certified copy of the Trade Mark Certificate dated 26.05.2017 is annexure no.2 to this IA. 1.4 From the very perusal of this annexure no.2 it is evident that the Trade Mark which was issued to the plaintiff's name “Bhuwalka Dashmesh- 100” which is being used since 10.04.2002 and registration date is 27.11.2012 valid upto 27.11.2022. In comparison to the Exhibit-8 the document which is already on record, the instant certificate which is annexure-2 of this IA clearly goes to show that two are at variance and such variance is determined either way would have a material bearing on the crucial issue arising for decision between the parties. 1.5 In order to meet the substantial cause and to pronounce the effective judgment certified copy which is annexure no.2 of this IA is desirable to take on record. In view of the above prayed to allow the IA by 3 F.A. No.114 of 2017 admitting this certificate which is annexure-2 to this IA as Exhibit-9 in the suit. In support of this IA, the affidavit is filed on behalf of Pradeep Bhuwalka. 2. Against this IA on behalf of respondent neither the objection nor the counter-affidavit has been filed. 3. From the very perusal of the plaint averment it is found that the plaintiff has averred that he has got trade mark “Bhuwalka” registered under the Trade Marks Act, 1999 on 24.03.2009 which was valid for 10 years upto 2019. Under the same trade name, plaintiff has launched various products including “Dashmesh 100” perfumed incense sticks. So far as the “Bhuwalka Dashmesh 100 (Label)” is being manufactured, marketed and used by the plaintiff since 10.04.2002 regarding which additional representation has been done under the Trade Marks Act, 1999 as early as on 26.11.2012. 3.1 As such the plaintiff has also averred himself to be the proprietor of the said trade mark “Bhuwalka Dasmesh-100 (Label)”. The said certificate could not be produced by the plaintiff before the trial court and had adduced the Exhibit-8 certificate bearing Trade Mark No. 2433921 dated 27.11.2012. Upon which in xerox copy thereof only “Dashmesh 100” is found visible. To clarify the same ambiguity in the certificate, the present certificate which is annuexure-2 of this IA is sought to be filed by the plaintiff/appellant. From the perusal of this document itself it is found that in this very certificate, trade mark number is given to 2433921 and name of proprietor is shown “Pradeep Bhuwalka” and registration date is shown 27.11.2012. Certificate date is shown 29.10.2015. It is shown to be used since 10.04.2002. All these particulars are similar in the xerox copy of this IA annexure-1 which is Exhibit-8 on the LCR and this certificate was issued on 26.05.2017. 4 F.A. No.114 of 2017 3.2 From the perusal of the same it is found that the trade mark is shown therein “Bhuwalka Dashmesh 100”. In view of the comparison of the Exhibit-8 which is xerox copy of the same is already on record and to clarify the ambiguity therein the certified copy of the trade mark which is sought to be filed by the appellant/plaintiff at the stage of appeal is required to pronounce the judgment. 3.3 It would be relevant herein to quote the para-9 of the judgment in the case of “Jayaramdas & Sons v. Mirza Rafatullah Baig And Others” (2004) 10 SCC 507 wherein the Hon'ble Apex Court held: “9. As already pointed out, both the sets of documents are certified copies of public documents. The appellants would not ordinarily suspect or doubt the documents where the certified copies of public documents were secured from the public officer having the custody of such public documents. It is only when it came to their knowledge that the certified copies were at variance with the originals or were not complete copies that they thought of securing another set of certified copies and then seeking leave of the court for producing the certified copies obtained by them as an additional evidence in the appellate court. The case of the appellants for production of additional evidence falls within clause (aa) of sub-rule (1), abovesaid. It would have been better if such ground was set out specifically in the application so that the opposite party could have had an opportunity of meeting the plea and the first appellate court could also have had the provisions of clause (aa) of sub-rule (1) in its mind for dealing with the appellants’ application. However, still we feel that the ends of justice demand the additional evidence being allowed to be produced dehors the deficiency in the application filed by the appellants.” 5 F.A. No.114 of 2017 3.4 In view of the averment made in the IA the due diligence is found on the part of the appellant/plaintiff to procure the copy of this document. Accordingly, this IA deserves to be allowed. 4. I.A. No. 502 of 2021 is hereby allowed. The certificate annexure-2 of this IA is taken on record subject to payment of cost of Rs.5,000/- on behalf of the appellant. Jharkhand High Court, Ranchi AFR Dated: 15.03.2024 RKM (Subhash Chand, J.)