JUDGMENT
S.K. Mahajan, J.
1. Plaintiff had filed suit for permanent injunction and mandatory injunction and for rendition of account under the provisions of the Trade & Merchandise Marks Act and the Copyright Act. The case of the plaintiff was that the plaintiff was registered proprietor of the trade mark “JAMCO” in respect of the radio receiving sets, transistorised radios, typewriters and other electric goods. It is alleged that the defendant and its associate had started manufacturing and trading in car stereos, typewriters, radio transistors etc. under the trade mark JAMCO and under the trade and firm name Jamco Radios. This act of the defendant in using the trade mark Jamco and adopting the trade and firm name Jamco Radios was staled to be an infringement of the registered trade mark of the plaintiff and the plaintiff, therefore sought injunction against the defendant restraining him from using the aforesaid trade mark and for rendition of accounts.
2. Defendant is a partnership firm, on being served, written statement was filed by the Finn. The same was signed by one of its partners namely Kul Bhushan Jain. Kul Bhushan Jain is the brother of the proprietor of the plaintiff-Firm. The case of the defendant in the written statement was that both the plaintiff and the defendant-firm was using the trade mark JAMCO for their goods. It was also stated that both the firms had common stocks and used to issue bills from each other’s Firm. It is stated that it was only in 1983 that Mr. Anil Bhushan Jain, proprietor of the plaintiff-Firm by playing fraud got the trade mark registered in his name. It is further submitted that the Firm Jamco Radios was registered by way of declaration by the defendant before the Sub-Registrar’s Office by the same advocate who had acted as an advocate of the plaintiff as well. The case of the defendant is that the plaintiff had acquiesced in the user of the trade mark JAMCO and the Firm name Jamco Radios by the defendant and the plaintiff was, therefore, not entitled to any relief in the suit. Along with the suit an application under Order 39 Rules 1 & 2 was filed for ad-interim injunction. This application was dismissed by the trial court by order dated 11th November, 1998 and no appeal against the same has been filed by the plaintiff.
3. The petitioner who also claimed to be a partner of the defendant-firm had in the meantime filed an application under Order 1 Rule 10 CPC for being imp leaded as a defendant in the suit. Applicant is the lather of the both the proprietor of the plaintiff as well as the other partner of the defendant. This application under Order 1 Rule 10 CPC filed by the petitioner was dismissed by the impugned order. Being aggrieved by the order, the petitioner has filed the present petition.
4. It is contended by learned counsel for the petitioner that since plaintiff is the proprietor of the trade mark “Jamco”, defendant-firm did not have any right to use the same and by infringing the trade mark of the plaintiff the defendant firm was violating the provisions of the Trade & Merchandise Marks Act as well as of the Copyright Act and each partner of the defendant-firm including the applicant will be liable to certain penal consequences including the offences punishable under the provisions of these Acts. It is, therefore, the submission of the applicant that as he did not want to be
privy to these offences, his presence before the Court was necessary for deciding the real matter in controversy between the parties.
5. At the outset, it is submitted by counsel for the respondent that since the applicant is only a sleeping partner in the firm and he is entitled only to the benefits of the firm and was not liable for any loss he was willing to give an undertaking that the applicant will be indemnified against all losses that may be caused to him or for any offence for which the applicant may be held liable in a Court of law. No one is appearing on behalf of the plaintiff inspite of notice having been duly served upon him.
6. The only question involved in the suit is as to whether or not the defendant was infringing the trade mark allegedly registered in the name of the plaintiff and as to whether the plaintiff had acquiesced in the user of the trade mark by the defendant-firm is not a question to be decided by the Court in the proceedings before it. Under the provisions of Order 1 Rule 10 CPC it is only in a case where it appears to the court to be just that the presence of a particular person is necessary for deciding the real matter in controversy between the parties that the Court can direct such person to be imp leaded as a party to the suit. In my view presence of the applicant is not at all necessary for deciding the matter involved in the suit. In any case, since the stand of the applicant is not privy to any alleged violation of the trade mark by the defendant-firm in my view, the ends of justice will be met by directing that the applicant in any case will not be liable for any infringement which may ultimately be held against defendant-firm and he will also not be liable for any penal consequences for the alleged infringement. There is no infirmity or jurisdictional error in the order of the trial court and this court will, therefore, not like to interfere with the impugned order. The petition is accordingly dismissed.